Terms and Conditions
Consultant shall provide services according to the Services List and as specifically described in any relevant “Scope of Work” (collectively, the “Services”). Consultant may revise the Services List from time to time in its sole discretion. Both the Services List, in its most current form, and any relevant Scope of Work are incorporated herein by reference.
(a) Consultant shall perform the Services as an independent contractor and not as an agent, employee or partner of Company. Consultant represents and warrants that, if required by law, it is licensed to perform the Services. (b) Consultant reserves the right to hire and determine which of its employees or contractors will perform the Services, as well as the right to reassign or replace them. Consultant may subcontract any part of the Services to qualified persons. (c) Consultant shall obtain and pay for all required business permits and pay all taxes related to its performance of the Services.
In exchange for the Services, Company agrees to pay Consultant the hourly rates, fees and costs set forth in the Services List. In addition, Company shall reimburse Consultant for the following expenses: (a) For travel outside the Portland Metropolitan area, the consultant’s rate shall be billed for the drive time to the Company’s site. The return drive will not be billed. Overnight accommodations and meal per diem may also apply. (b) Parking, long distance telephone charges, and messenger services that result from the Services. Page 2 of 6 v6.7 (c) All other reasonably incurred expenses, if authorized in advance by Company or incurred by Consultant, as the result of changes requested by Company or failure of Company to fully disclose any material aspect of the Services relating to such quote.
4. BILLING AND PAYMENT
Consultant shall submit its invoice on the earlier of completion of a work order or every week, with appropriate supporting documentation, if needed and requested by Company, to Company for payment. Invoices for all parts, supplies, or equipment (software or hardware) purchased by Consultant on Company’s behalf (collectively, “Equipment”) and for the Services, are due upon receipt. Claims arising from invoices must be made within ten working days. Consultant will assess a monthly late fee of 1.5 percent on any unpaid balance remaining after 30 days. In the event of a late payment, Consultant reserves the right to modify payment terms, including requiring advance payment of all outstanding invoices and future fees. Consultant reserves the right to request a deposit, or full payment in advance. Company is responsible for paying all state or local sales, privilege, business, opportunity, use, import or export, value added, excise, or other similar tax or duty, except those based on Consultant’s net income, that are levied on the Services or the Equipment. Consultant will bill these amounts to Company as part of its regular invoice.
5. TERM; TERMINATE
The term of this Agreement begins on the commencement of work or upon the returned signed agreement, whichever may come first, and continues until terminated as set forth below. Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party, with or without cause. Notwithstanding section 4, the following amounts are due immediately upon termination of the Agreement : (I) all amounts due for Equipment that was ordered or delivered prior to termination and (ii) all amounts due for any Services performed through the termination date including any applicable minimum charge; and (iii) taxes described in section 4.
6. WARRANTIES AND CORRECTION OF WORK
Consultant warrants that its employees and agents will perform the Services in a timely manner as agreed to by Consultant and in accordance with generally accepted industry standards. Company’s sole remedy for breach of this warranty is Consultant’s prompt correction of the Services attributable to that breach. Consultant does not warrant any Equipment it provides Company or uses in the course of performing the Services. Company shall look solely and exclusively to the relevant third-party supplier or manufacturer in the event of a claim related to such Equipment. Returns are subject to the relevant third-party supplier or manufacturer’s return policy. Each party warrants that it has the authority to enter into and perform this Agreement, and that the person signing this Agreement on its behalf is it’s duly authorized representative. Other than as set forth in this section, consultant makes no other warranties or representations, express or implied, including any warranty of title, non-infringement, merchantability, or fitness for a particular purpose.
Company and Consultant acknowledge and agree that all Services provided by Consultant to Company, including all fees charged and generated in connection therewith, shall be the sole property of Consultant. Company and Consultant further acknowledge and agree that in connection with the Services provided, Company and Consultant will have access to certain confidential and proprietary information owned by, and related to, each other. For purposes of this Agreement, “Confidential Information” means any information concerning the businesses and affairs of Company and Consultant that is not already generally available to the public, including, but not limited to: (a) financial data and information; (b) past, present, active, or prospective clients and customers; (c) business plans and strategies; (d) pricing rates, lists, guidelines, or policies; and (e) operations and procedures manuals. Company and Consultant shall not at any time during the term of this Agreement and for two (2) years following its termination, use or disclose any Confidential Information of the other to any person, firm, or corporation, except (I) with the prior written and express consent of Company or Consultant or (ii) to the extent necessary to comply with law or the valid order of a court of competent jurisdiction, in which event Company or Consultant shall provide the other with advanced notice as soon as practicable to allow the owner of the Confidential Information to contest it.
8. OWNERSHIP OF WORK
The parties agree that any software or modifications to software or other intellectual property written, created, or modified by Consultant shall be the property of Company, and that Consultant shall have a perpetual, transferable right to use intellectual property for any other purpose but only to the extent that such intellectual property (i) is of a generalized nature applicable to other Consultant clients and not specific to Company, and (ii) does not contain any Company Confidential Information.
Consultant shall maintain the following insurance (subject to policy exclusions found therein) for all Services provided under this Agreement: a) Comprehensive general personal injury and property damage liability insurance with a policy limit of not less than $1,000,000.00 per occurrence. b) Statutory workers' compensation insurance for all employees. c) Employer liability insurance with a policy limit of not less than $100,000.00. d) Professional liability (errors and omissions) insurance with a policy limit of not less than $1,000,000.00.
Company warrants and represents to Consultant that it is the owner or licensee of, and/or has the right to be in possession of all data, technology, and equipment furnished to Consultant under this Agreement, and has the right to modify any software to be modified as contemplated in any work order. Company will defend, at its expense, indemnify and hold Consultant, its agents, employees, suppliers and contractors harmless against any loss, damage or expense they incur (including reasonable attorney fees) as a result of Company’s breach of this paragraph.
11. NON-SOLICITATION / NON-HIRE
Company recognizes that the Consultant has spent considerable time and money hiring and training its employees and other contractors with whom the Consultant does business (“Workers”). Company recognizes that in entering into this relationship with Consultant that Company will have access to such Workers and could hire them away from Consultant. Company recognizes that unless it is willing to enter into this agreement prohibiting the solicitation or hiring of Consultant’s Workers that Consultant would not enter into this Agreement. Company agrees that during the term of this Agreement and for a period of one (1) year after services are last provided hereunder for any reason, that (i) Company will not, for itself or for or with others, directly or indirectly, solicit or induce any Worker of the Consultant to cease working with the Consultant or reduce the Worker’s involvement with the Consultant; and (ii) Company will not, directly or indirectly, hire any Worker in any capacity, whether as an employee, independent contractor, or otherwise, even if the Worker no longer works for the Consultant. Company further agrees and covenants that if Company enters into any agreement with a third party that allows the third party to have access to the Workers then Company will make sure the third party signs a similar agreement prohibiting the third party from soliciting or hiring the Workers just as Company is obligated to under this Agreement. Company acknowledges that both the time period and the scope of these provisions are fair and reasonable and only designed to allow the Consultant to attempt to maintain its relationship with its Workers after termination of this Agreement. In the event that a court of competent jurisdiction determines that the time or scope of this section is excessive in any way or is unenforceable for any reason, then the parties agree that such court shall have the authority to modify the provisions to the maximum permissible time and scope, and as so modified, enforce the same against Company. Company agrees that monetary damages may not be adequate in the event of any breach or threatened breach, and therefore agrees that in either such event, Consultant shall have the right to obtain injunctive relief in addition to damages, and not as an election of remedies.
12. LIMITATION OF DAMAGES
CONSULTANT, ITS EMPLOYEES, SUPPLIERS, AND CONTRACTORS’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT OR THE PERFORMANCE OF THE SERVICES (WHETHER ARISING FROM CONTRACT, TORT, OR OTHERWISE) IS LIMITED TO AN ACTION FOR MONEY DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY COMPANY UNDER THIS AGREEMENT DURING THE TWO YEARS IMMEDIATELY PRIOR TO ACCRUAL OF A CLAIM. CONSULTANT, ITS EMPLOYEES, SUPPLIERS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXTRAORDINARY DAMAGES (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF DATA, LOSS OF BUSINESS PROFITS, OR BUSINESS INTERRUPTION THAT ARISE FROM OR RELATE TO THIS AGREEMENT OR THE PERFORMANCE OF THE SERVICES. Page 5 of 6 v6.7 COMPANY ACKNOWLEDGES THAT THE ESTIMATED AND ACTUAL FEES AND CHARGES REFLECT THIS LIMITATION OF LIABILITY AND ALLOCATION OF RISK.
This Agreement shall not be assigned by Company without Consultant’s prior written consent.
A party’s failure to require performance shall not affect that party’s right to demand performance at a later date.
If a court deems any provisions of this Agreement illegal, invalid or otherwise unenforceable, such provision is severed from this Agreement and shall not affect the legality, validity or enforceability of any other provision. The parties shall change or interpret the severed provision so as to best accomplish its intended objective(s), if possible under applicable law.
16. FORCE MAJEURE
Neither party shall be liable because of a failure of or delay in performance caused by fire, flood, strike, riot, storm, explosion, act of God, war, governmental action, earthquake, labor condition, material shortage, or other cause beyond that party’s reasonable control.
17. ATTORNEY FEES
In the event either party retains legal counsel to enforce any of the terms and conditions of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees, costs and expenses incurred (including expert witness fees, deposition related fees, and copying costs), whether or not suit or action is filed, and including all reasonable fees and expenses incurred at mediation, arbitration, trial, or on appeal.
18. GOVERNING LAW
Oregon law governs this Agreement. The parties agree that the exclusive venue for any state or federal lawsuit involving this Agreement will be Multnomah County, Oregon. The parties further agree that, except where immediate injunctive relief is needed, before any lawsuit is filed in federal or state court, the parties will engage in a cooperative, good faith mediation to resolve any dispute.
19. ENTIRE AGREEMENT
This Agreement states the complete and exclusive understanding of the parties regarding its subject matter (except as to work orders on Consultant’s form that may be added from time to time) and supersedes any prior oral or written discussions, negotiations or agreements. No waiver or alteration of the provisions of this Agreement shall be binding on a party unless signed by that party’s duly authorized representative. Consultant specifically rejects any additional or conflicting terms and conditions that are contained in any purchase order or similar document provided by Company.
The parties may execute this Agreement in counterparts, each of which is an original, but together constitute a single instrument