WHEREAS, Consultant is engaged in the business of providing services detailed in the online marketing proposaland
WHEREAS, Client wishes to utilize the services of Consultant in
connection with the project detailed in the online marketing proposal.
NOW, THEREFORE, Consultant and Client agree as follows:
Scope of Services
Consultant will perform the following work
("Consultant's Work" or the "Work") for Client in accordance with the
completion times as set forth in the Online Marketing Proposal.
Term and Termination
Unless terminated as provided herein, this Agreement
shall extend to and terminate upon completion of Consultant's Work as
provided herein. Client may terminate this Agreement without cause upon
thirty (30) days written notice. In the event of termination without
cause, Client agrees to pay Consultant for all of Consultant's Work
performed up to the date of termination. Either party may terminate
this agreement for material breach, provided, however, that the
terminating party has given the other party at least 21 days written
notice of and the opportunity to cure the breach. Termination for
breach shall not preclude the terminating party from exercising any
other remedies for breach.
Ownership of Intellectual Property
To the extent that Consultant has received payment of
compensation as provided in this Agreement, Consultant hereby assigns
to Client all right, title, and interest in any intellectual property
created or developed by Consultant for Client under this agreement.
Confidential Information
All information relating to Client that is
known to be confidential or proprietary, or which is clearly marked as
such, shall be held in confidence by Consultant and shall not be
disclosed or used by Consultant except to the extent that such
disclosure or use is reasonably necessary to the performance of
Consultant's Work.
All information relating to Consultant that
is known to be confidential or proprietary, or which is clearly marked
as such, shall be held in confidence by Client and shall not be
disclosed or used by Client except to the extent that such disclosure
or use is reasonably necessary to the performance of Client's duties
and obligations under this Agreement.
These obligations of confidentiality shall
extend for a period of one (1)after the termination of this agreement,
but shall not apply with respect to information that is independently
developed by the parties, lawfully becomes a part of the public domain,
or of which the parties gained knowledge or possession free of any
confidentiality obligation.
Warranty and Disclaimer
Consultant warrants that Consultant's Work will be
provided in a workmanlike manner, and in conformity with generally
prevailing industry standards. THIS WARRANTY IS EXCLUSIVE AND IS IN
LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR
PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
Limitation of Remedies
Client's sole and exclusive remedy for any claim against
Consultant with respect to the quality of Consultant's Work shall be
the correction by Consultant of any material defects or deficiencies
therein, of which Client notifies Consultant in writing within ninety
(90) days after the completion of that portion of Consultant's Work. In
the absence of any such notice, Consultant's Work shall be deemed
satisfactory to and accepted by Client.
Limitation of Liability
In no event shall Consultant be liable for any loss of
profit or revenue by Client, or for any other consequential,
incidental, indirect or economic damages incurred or suffered by Client
arising as a result of or related to Consultant's Work, whether in
contract, tort, or otherwise, even if Client has advised of the
possibility of such loss or damages. Client further agrees that the
total liability of Consultant for all claims of any kind arising as a
result of or related to this Agreement, or to any act or omission of
Consultant, whether in contract, tort or otherwise, shall not exceed an
amount equal to the amount actually paid by Client to Consultant for
Consultant's Work during the twelve (12) month period preceding the
date the claim arises. Client shall indemnify and hold Consultant
harmless against any claims by third parties, including all costs,
expenses and attorneys' fees incurred by Consultant therein, arising
out of or in conjunction with Client's performance under or breach of
this Agreement.
Relation of Parties
The performance by Consultant of its duties and
obligations under this Agreement shall be that of an independent
contractor, and nothing herein shall create or imply an agency
relationship between Consultant and Client, nor shall this Agreement be
deemed to constitute a joint venture or partnership between the parties.
Employee Solicitation/Hiring
During the period of this agreement and for twelve (12)
months thereafter, neither party shall directly or indirectly solicit
or offer employment to or hire any employee, former employee,
subcontractor, or former subcontractor of the other. The terms "former
employee" and "former subcontractor" shall include only those employees
or subcontractors of either party who were employed or utilized by that
party on the Effective Date of this Agreement.
Miscellaneous Provisions
Consultant agrees to notify client in writing
if it intends to subcontract any part of the Work to an independent
contractor. Except as provided herein, neither party may assign this
Agreement, in whole or in part, without the prior written consent of
the other party. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto, together with their respective legal
representatives, successors, and assigns, as permitted herein.
Any dispute arising under this Agreement
shall be subject to binding arbitration by a single Arbitrator, in
accordance with its relevant industry rules, if any. The parties agree
that this Agreement shall be governed by and construed and interpreted
in accordance with the laws of Colorado. The arbitration shall be held
in Colorado. The Arbitrator shall have the authority to grant
injunctive relief and specific performance to enforce the terms of this
Agreement. Judgment on any award rendered by the Arbitrator may be
entered in any Court of competent jurisdiction.
If any litigation or arbitration is necessary
to enforce the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees and costs.
If any term of this Agreement is found to be
unenforceable or contrary to law, it shall be modified to the least
extent necessary to make it enforceable, and the remaining portions of
this Agreement will remain in full force and effect.
Neither party shall be held responsible for
any delay or failure in performance of any part of this Agreement to
the extent such delay is caused by events or circumstances beyond the
delayed party's reasonable control.
The waiver by any party of any breach of
covenant shall not be construed to be a waiver of any succeeding breach
or any other covenant. All waivers must be in writing, and signed by
the party waiving its rights. This Agreement may be modified only by a
written instrument executed by authorized representatives of the
parties hereto.
This Agreement constitutes the entire
agreement between the parties with respect to the subject matter
hereof, and supersedes all prior agreements, proposals, negotiations,
representations or communications relating to the subject matter. Both
parties acknowledge that they have not been induced to enter into this
Agreement by any representations or promises not specifically stated
herein.