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TERMS OF SERVICE

 

Last updated September 2023

CONSULTING SERVICES AGREEMENT

 

This Consulting Services Agreement (“Agreement”) is entered into between you, your employee, agent, user, or purchaser of our services (collectively “Client”) and us, CrushContracts Inc (“Consultant”), and is effective immediately upon Client’s purchase of our services (“Effective Date”). Collectively, the Client and Consultant are the “parties” and each individually, a “party”.  For other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.

 

1. Services and Warranties

 

1.1  Services. Subject to the terms of this Agreement, Client will request and Consultant will perform contract review, contract management and other contract related consulting services for Client (“Services”). Consultant may refer to its Services as ICE – Insightful Contract Evaluation® or ICE from time to time. Consultant will perform such Services in a diligent and workmanlike manners. The content, style, form, and format of any work product of the Services shall be reasonably satisfactory to Client and shall be consistent with Client’s values and standards.

 

1.2. Compensation. Client will purchase Services via pre-paid hours directly from its website, applicable statements of work, order forms or task orders that may be mutually executed from time to time (“ICE Plan”). Consultant shall be compensated for the Services as set forth in the applicable ICE Plan.  Any other fees and/or expenses must be approved in writing by the Client. Consultant shall be solely responsible for any and all taxes, Social Security contributions or payments, disability insurance, unemployment taxes, and other payroll type taxes applicable to such compensation.

 

1.3. Expenses. Unless otherwise approved by Client in writing, Consultant shall be responsible for all expenses incurred while performing Services under this Agreement. This includes automobile, and other travel expenses; laptop, cell phone expenses; meals; and all salary, expenses, and other compensation paid to employees or contract personnel the Consultant hires to complete the work under this Agreement.

 

1.4. Equipment. Consultant will furnish all equipment, tools, and materials used to provide the services required by this Agreement. Consultant represents that s/he is in possession of the equipment, tools, and materials necessary to perform the services described in the applicable ICE Plan.

 

1.5. Consultant Warranties. Consultant represents and warrants that Consultant (i) has the right to perform services for others during the term of this Agreement and (ii) its employees performing Services hereunder will have sufficient expertise, training, licenses and experience to successfully perform the Services and shall be subject to all applicable laws and the terms and conditions of this Agreement. Consultant agrees that all its personnel shall be compensated, taxes withheld, and other benefits made available as required by applicable law and regulations.  As applicable, upon Client’s request and prior to starting any Services, Consultant shall require all of its employees who shall perform Services hereunder to sign a non-disclosure agreement (“NDA”) and Consultant shall forward copies of all of such signed NDAs to Client upon request.

 

1.6  Mutual Warranties. Each party warranties it is a duly organized company or business, validly existing and is in good standing under the laws of its respective jurisdiction, is qualified to do business and is in good standing and has all requisite power and authority, corporate or otherwise, to conduct its business as now being conducted, to own, lease and operate its properties and to execute, deliver and perform this Agreement. It is not a party to, and is not bound or affected by or subject to, any instrument, agreement, charter or by-law provision, law, rule, regulation, judgment or order which would be contravened or breached as a result of the execution of this Agreement; and It has and shall maintain all the licenses, permits, and approvals from governmental agencies required to perform its obligations under this Agreement. Except as expressly stated herein above in this Section 1, each party disclaims all warranties, express, implied or statutory, respecting the content and Services provided under this Agreement, including any implied warranties of merchantability and fitness for a particular purpose.

 

 

2. Term and Termination.

 

2.1. This Agreement shall be effective for the duration specified in the ICE Plan purchased, and if there is no termination date, then until terminated by either party subject to the terms and conditions of this Agreement.

2.2. This Agreement can be terminated by either party for any reason with a thirty (30) day written notice.

2.3. This Agreement can be terminated for cause immediately for breach by the other party of a material covenant, commitment or obligation under this Agreement if such breach has not been substantially cured within the thirty (30) day period (“Cure Period”) following a written notice of such breach. During the Cure Period, each party will continue to perform its obligations under the Agreement.

2.4  Termination shall be in addition to any other remedies that may be available to the non-breaching party.

2.5  Upon termination of this Agreement, all Service obligations shall cease immediately except for compensation for any authorized work performed by Consultant up to the time of termination.

2.6  Either party may terminate this Agreement immediately upon provision of written notice if the other party becomes insolvent or files for bankruptcy.

 

3. Refunds. Client shall receive a refund for unused hours minus any discounts offered by Consultant only in the event of a termination for cause by Client as defined in Section 2.3, or termination for convenience by Consultant. Refunds for a Force Majeure even shall be determined by Consultant on a case by case basis.

 

4. Confidentiality

4.1  Definitions.

a. “Confidential Information” shall mean all confidential or proprietary information disclosed orally or in writing by one party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure without any breach of confidence; (c) is independently developed by the receiving party; or (d) is required to be disclosed by law. Each party agrees to hold the other’s Confidential Information in confidence, and not to use or disclose such Confidential Information other than in connection with performance of obligations hereunder.

b. “Intellectual Property” means any and all patent rights, copyright rights, trademark rights, mask work rights, Trade Secrets (as defined by the Federal Defend Trade Secrets Act, 18 U.S.C. §1836(b) et seq,), processes, materials, methods, works of authorship and/or design, and all related know-how, designs, trademarks, formulae, processes, service and product delivery as well as any work capable of being copyrighted or patented, sui generis database rights and all other intellectual and industrial property rights of any sort throughout the world, including any application therefor.

 

4.2  Nondisclosure of Confidential Information.

a. During the term of Consultant’s relationship or engagement with the Client, Consultant will acquire considerable knowledge of Client’s products and Confidential Information, and may develop close relationships with Client’s and contacts. Consultant acknowledges that all such information is valuable and that Client has a right to maintain such Confidential Information for its exclusive use.  Consultant agrees and warrants that during Consultant’s relationship or engagement with Client and thereafter, Consultant will not use or disclose Client’s Confidential Information in any way to anyone except as authorized by the Client in writing until such time as such Confidential Information has become public knowledge other than as a result of the Consultant's breach of this Agreement or breach by those acting in concert with the Consultant or on the Consultant's behalf.  Consultant further agrees that upon termination of Consultant’s relationship or engagement with Client, Consultant shall, as per Client’s direction, immediately turn over to Client and/or destroy all Confidential Information in Consultant’s possession or control, including any hard copy or electronic documents, records, and materials, and retain no copies in any format.  The terms of this Agreement are Confidential Information.

 

b. No license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights or other form of intellectual property is granted or implied by the exchange of Confidential Information between the parties.  Any and all documents produced and delivered by the Client to the Consultant will remain the property of the Client and all such documents and document copies will be promptly returned to the Client upon demand.

c. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" AND THE CLIENT MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, ABOUT ITS MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ADEQUACY, ACCURACY, SUFFICIENCY OR FREEDOM FROM DEFECT OF ANY KIND, INCLUDING FREEDOM FROM ANY PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT THAT MAY RESULT FROM THE USE OF THE CONFIDENTIAL INFORMATION. THE CLIENT WILL NOT BE LIABLE FOR ANY EXPENSES OR LOSSES INCURRED OR ANY ACTION UNDERTAKEN BY THE CONSULTANT AS A RESULT OF THE RECEIPT OF CONFIDENTIAL INFORMATION.  THE ENTIRE RISK ARISING OUT OF THE UNATHORIZED USE OF THE CONFIDENTIAL INFORMATION REMAINS WITH THE CONSULTANT.

 

4.3 Personal Information.  With respect to any Confidential Information that constitutes personal data, personal information, personally identifiable information or similar information under applicable privacy or data security laws (collectively, “Personal Information”), Consultant shall not (i) sell, as defined in the California Consumer Privacy Act of 2018 (as amended, the “CCPA”), Personal Information or (ii) retain, use or disclose Personal Information for any purpose other than the specific purpose of providing the Services. 

 

5.  Non-solicitation.

During term of this Agreement, and for an additional twelve (12) months immediately following the termination of the Agreement for any reason, neither party directly or indirectly, hire or solicit any employee or independent Consultant of the other party that provided Services (“Conflicted Personnel”) during the term of this Agreement, except pursuant to a general solicitation which is not directed specifically to any such Conflicted Personnel.

 

6.  Consultant Inventions and Work for Hire. 

6.1 Invention means any idea, concept, discovery, invention, development, research, technology, work of authorship, trade secret, software, firmware, content, audio-visual material, tool, process, technique, know-how, data, ICE Plan, device, apparatus, specification, design, prototype, circuit, layout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, whether or not it may be patented, copyrighted, trademarked or otherwise protected (including all versions, modifications, enhancements and derivative works thereof). 

6.2. Consultant acknowledges and agrees that any Invention, work of authorship, whether or not copyright protection is obtained for it, that is created, conceived, or developed by Consultant either solely or in conjunction with other employee or independent Consultants of Client during and after Consultant’s relationship or engagement with Client that relates directly or indirectly to or is useful in any manner in the business then being conducted or proposed to be conducted by Client and/or that is based on or uses Confidential Information is “works made for hire” as defined under U.S. copyright law, and will belong exclusively to Client including any copyrights, patents or other intellectual property rights pertaining thereto.  Consultant hereby makes and agrees to make all assignments to the Client, and designates and appoints the Client as Consultant’s agent and attorney-in-fact to effectuate and accomplish the foregoing ownership.  Such “works made for hire” shall not include any invention and/or intellectual property that is developed entirely on Consultant’s own time, without use of any Client assets, ideas, Confidential Information, and/or direction. 

 

7. Prior Invention Disclosure. As applicable and upon Client’s request, Consultant will disclose to Client a complete list of all Inventions or innovations made by Consultant prior to commencement of the services for Client and which Consultant desires to exclude from the application of this Agreement.  Consultant will disclose to Client such additional information as Client may request regarding such Inventions or innovations to enable Client to assess their extent and significance.  Client agrees to receive and hold all such disclosures as Confidential Information of Consultant, and shall protect it as it protects its Confidential Information. Except as disclosed as per this Agreement, Consultant has no other agreements, relationships or commitments to any other person or entity which conflict with Consultant's obligations to Client. Consultant agrees not to enter into any agreement, either written or oral, in conflict with this Agreement.

 

8. Relationship of the Parties. This Agreement does not create an employment relationship.  Consultant enters into this Agreement as, and shall continue to be, an independent Consultant. Consultant shall not look to Client as his/her employer, partner, agent or principal, or be entitled to any benefits accorded to Client's employees, including without limitation disability insurance, vacation or sick pay.  Consultant shall be responsible for his/her own taxes, and insurance including without limitation unemployment, disability, worker's compensation, as well as licenses and permits usual or necessary for completing Consultant’s services to Client.

 

9. Injunctive Relief. Consultant acknowledges and agrees that any violation by Consultant of this Agreement will cause irreparable harm to Client, that the payment of money alone would not be an adequate remedy for the harm done, and that the harm resulting from a violation is not readily measured in monetary terms.  Accordingly, in addition to all other rights and remedies which Client may have, Client shall be entitled to injunctive relief to stop any violation or threatened violation of Sections 2, 3, 4 and 5 of this Agreement. In any action brought by Client in which Client obtains a judgment or arbitration order finding a violation of any of the provisions of this Agreement by Consultant, Client shall be entitled to recover its reasonable costs and attorneys’ fees incurred in such action.

 

10. Indemnification. 

10.1. Each Party (“Indemnitor”) shall indemnify, defend, and hold the other Party ("Indemnitee") harmless from and against judgments, liabilities, fines, penalties, losses, claims, actions, demands, lawsuits, costs, and expenses including, without limitation, reasonable attorneys' fees, that arise out of or relate to (a) the gross negligence, willful misconduct or fraud of the Indemnitor; (b) the Indemnitor’s breach of any obligation, representation or warranty under this Agreement; or (c) the failure by the Indemnitee to comply with any applicable laws, rules and regulations, provided that: (a) Indemnitee notifies Indemnitor promptly in writing about the claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations; and (c) Indemnitee provides Indemnitor with the assistance, information and authority reasonably necessary to perform the above. Indemnitor shall reimburse Indemnitee for its reasonable out-of-pocket expenses incurred in providing such assistance.

10.2. In the event that any information, design, specification, instruction, software, data or material furnished by the Indemnitor hereunder (“Material”) is held or is reasonably believed by Indemnitor to infringe or misappropriate the intellectual property rights of a third party, Indemnitor shall have the option, at its expense, to (a) modify the Material so it no longer infringes or misappropriates; (b) obtain for Indemnitee a license to continue using the Material; or (c) require return of the affected Material and all rights thereto from Indemnitee. If Consultant is the Indemnitor, Client may, upon thirty (30) days prior written notice to Consultant, terminate the relevant ICE Plan, in which case Client shall be entitled to recover the fees paid for that portion of the Material.

 

11. Limitation of Liability. EXCEPT FOR THE PARTIES CONFIDENTIALITY AND IP OBLIGATIONS UNDER THIS AGREEMENT, THE INDEMNITOR’S AGGREGATE LIABILITY WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO CLIENT IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”). FOR VIOLATIONS OF CONFIDENTIALITY AND IP OBLIGATIONS OF THIS AGREEMENT, THE INDEMNITOR’S AGGREGATE LIABILITY WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

 

12. No Conflicts. Consultant agrees that Consultant has not made, and agrees not to make, any agreement, oral or written, that conflicts with this Agreement and/or any other agreements with the Client. Consultant will not violate any agreement with or the rights of any third party in relation to Consultant’s relationship or engagement with the Client. When acting within the scope of Consultant’s relationship or engagement (or otherwise on behalf of the Client), Consultant will not use or disclose his or her own or any third party’s confidential information or intellectual property, except as expressly authorized by the Client in writing.

 

13. Dispute Resolution, Arbitration. Most Client concerns can be resolved quickly and to Client’s satisfaction by communicating promptly with Consultant. In the unlikely event that a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator and/or arbitrator in the jurisdiction agreed to in this this Agreement. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to do so. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties.  Costs of arbitration, including attorney fees, will be allocated by the arbitrator.

 

14. Force Majeure. In the event either party shall be delayed or hindered in or prevented from the performance of any act required hereunder by reasons of pandemic, strike, lockouts, labor troubles, inability to procure materials or services, failure of power or restrictive government or judicial orders, or decrees, riots, insurrection, war, Acts of God, inclement weather or other reason or cause beyond that party’s control, then performance of such act (except for the payment of money owed) shall be excused for the period of such delay.

 

15. General. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, other than the conflicts of laws principles thereof. This Agreement contains the entire understanding of the parties and supersedes all prior agreements between the parties with respect to the subject matter hereof. All obligations under this Agreement which by their nature extend beyond termination will survive termination and remain in effect. Except in connection with the transfer or sale of all or substantially all of the assets or business of such party, neither party may assign this Agreement without the prior written consent of the other and such consent may not be unreasonably withheld. This If any provision of this Agreement shall be found invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect.  Neither party’s failure to object to any document, communication, or act of the other will be deemed a waiver of any of the terms of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement. The parties will comply with applicable laws and regulations. This Agreement may only be modified by mutual written agreement. Notwithstanding the foregoing, Consultant may revise its consulting services agreement by updating the terms and conditions and posting them on the website. Accordingly, Client must periodically visit the Site to determine if any changes have been made before signing up for a new ICE Plan. Client’s continued use of Consultants Services after any changes have been made to the consulting terms and conditions signifies and confirms Client’s acceptance of any such changes or amendments.

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