NOW, THEREFORE, pursuant to the terms stated herewith, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, We hereby agree as follows:
1. ENGAGEMENT OF SERVICES.
Consultant shall render such eCommerce, website development, website optimization, digital design & marketing services (“Services”), per Client request in his area of experience and expertise during the Term (as defined elsewhere) of this Agreement. Consultant shall, to the best of his ability, render the services requested by the Client in a professional manner using such skills and resources as Consultant deems appropriate.
2. DESCRIPTION OF SERVICES.
The Consultant will, in consultation with the Client, direct marketing directives and materials to enhance and accomplish the overall vision of the business, as communicated and defined by Client, as well as achieving the goals set forth by the Client for its activities. Consultant will communicate with the Client on a regular basis to receive direction and guidance for the Services to be provided.
3. CONFLICT OF INTEREST.
Client agrees and acknowledges that Consultant may consult or provide services to any other business or entity whose industry parallels or is similar to Client's industry. Consultant agrees not to disclose to any Client, or bring onto any Client's premises, or induce any Client to use any confidential information that belongs to anyone other than the Client or Consultant.
4. TRADE SECRETS / INTELLECTUAL PROPERTY RIGHTS.
Consultant agrees during the Term of this Agreement and thereafter that he will take all steps reasonably necessary to hold Client's Proprietary Information (as defined below) in trust and confidence, will not use such Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement, and will not disclose such Proprietary Information to any third party without first obtaining Client's express written consent on a case-by-case basis. By way of illustration but not limitation "Proprietary Information" includes (a) trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter collectively referred to as "Inventions"); and (b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses,prices and costs, suppliers and customers; and (c) information regarding the compensation of employees of Client. Notwithstanding the other provisions of this Agreement, nothing received by Consultant will be considered to be Client's Proprietary Information if (1) it has been published or is otherwise readily available to the public other than by a breach of this Agreement; (2) it has been rightfully received by Consultant from a third party without confidential limitations; or (3) it has been independently developed for Consultant by personnel or agents having no access to Client's Proprietary Information and has not been acquired by Client in the Transaction.
5. WORK PRODUCT OWNERSHIP.
All materials and concepts, digital or non-digital, created or developed, in whole or in part, by Consultant in connection with the Services rendered on behalf of Client (collectively the “Service Product”) will be the exclusive property of Client. Upon successful completion of all project terms and outstanding balances owed to Consultant and further upon Client’s request, Consultant will execute all documents necessary to confirm or perfect the exclusive ownership of Client to the Service Product and return to Client all of Client’s records, notes, documentation and other items that were used, created, or controlled by Consultant, on behalf of Client, during the term of this Agreement.
6. REPRODUCTION OF PRODUCT.
Upon successful completion of all compensation terms and outstanding balances owed to Consultant, Client is granted full and unlimited reproduction rights to the Service Product developed in whole or in part by the Consultant. Consultant retains the right to reproduce the Service Product in any form for marketing, future publications, competitions or other promotional uses. Consultant may also reproduce the Service Product in part, but not duplicate, for use in commercial means or for-profit use. Consultant retains full ownership and control of design mockups, drafts, sketches, and all preliminary concepts and designs which are created by Consultant during work on the Service Product but not included into the final version of the Service Product.
If Client supplies their own server or utilizes a 3rd party hosting service, Consultant CANNOT warranty the performance of the server. In addition, if Client authorizes Consultant to use any 3rd party plugins or code on Project, Consultant CANNOT warranty the performance of those plugins and code beyond the initial installation per the software vendor's instructions. If Client authorizes Consultant to integrate their website with any other website or 3rd party service, Consultant CANNOT warranty the performance of the 3rd party service or external website. Consultant CANNOT warranty any preexisting coding or programming which may exist within Project. Consultant is NOT responsible for the entry of content or the creation of content, unless otherwise clearly stated. Consultant WILL warranty work and guarantee its performance at the time of release of files to Client, per the Project scope requirements. In order to meet Project timeline, it is essential that Client provides appropriate, accurate content in a timely manner, as outlined and as requested.
Client attests that to the best of his knowledge any materials or intellectual property created are original and do not infringe upon the intellectual property rights of others.
8. GOVERNING LAW.
This Agreement will be governed and construed in accordance with the laws of the State of California as applied to transactions taking place wholly within California between California residents and entities.
In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
10. INJUNCTIVE RELIEF.
A breach of any of the promises or agreements contained in Section 5 of this Agreement may result in irreparable and continuing damage to Client for which there may be no adequate remedy at law, and Client is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
11. ENTIRE AGREEMENT; WAIVER OF SEVERANCE.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The terms of this Agreement will govern all services undertaken by Consultant for Client.
IN WITNESS WHEREOF, the parties have caused this Independent Consultant Services Agreement to be executed by their duly authorized representative.