This Consulting Agreement (“Agreement”) is entered into as of the date set forth on the client's enrolling date by and between UHM Digital Solutions LLC, a Wyoming company (“Consultant”) and the entity executing this Agreement as Client (the “Client”).
Whereas, the Client desires to retain Consultant as an independent contractor to perform consulting services for the Client, and Consultant is willing to perform such services, on the terms described below.
In consideration of the mutual promises contained herein, the parties agree as follows:
1. Services. Consultant agrees to perform for the Client the services described in the Project Assignment(s) form located to PaymentPlans Page Agreement (the “Services”). Consultant may perform additional services for the Client from time to time, at the written request of Client. Such additional services shall be incorporated on writing as may be executed by Consultant and the Client.
2. Client Cooperation.
2.1 Client acknowledges and agrees that Consultant’s ability to successfully provide the Services is contingent upon Client’s cooperation, including making available such stakeholders and personnel as reasonably requested by Consultant to grant any consents and permissions as reasonably required by Consultant under this Agreement. Consultant shall have no liability for deficiencies in the Services or otherwise under or related to this Agreement, resulting from any act or omission of Client or any of Client’s respective officers, directors, employees, contractors, agents, predecessors, successors and assigns.
2.2 If any Service will be provided at Client’s premises, Client agrees to provide safe and adequate space, power, network connections and access to applicable hardware, software and other equipment and information, and assistance from qualified personnel familiar with Client’s hardware, software, other equipment and information, as reasonably requested by Consultant.
2.3 Unless otherwise agreed in writing by Consultant, Consultant shall not be obligated to procure or install any hardware or software belonging to a third party to provide the Services and Client shall be responsible to obtain, at its own expense, all such third party materials for Consultant to perform the Services.
3. Fees and Expenses.
3.1. Fees. In consideration for the Services, the Client shall pay to Consultant fees for services rendered under this Agreement as set forth in the Project Assignment(s) undertaken by Consultant. All payments are due net ten (10) days from date of invoice.
3.2 Expenses. Client shall, within ten (10) days of receipt of Consultant’s invoice, reimburse Consultant for expenses incurred in connection with any additional performance of services with a Twenty Five Percent (25%) handling fee. Consultant will submit verification of such expenses as Client may reasonably require.
3.3 Interest. Client shall pay interest to Consultant from the due date to the date of payment upon any and all amounts overdue and payable hereunder at a rate of one and one-half percent (1.5%) per month over the published prime rate of the J.P. Morgan Chase Bank,, N.A., New York, New York or its successor, in effect from time to time during the period such amounts are overdue. The interest rate shall be compounded monthly and recalculated at the end of each month; such rate shall be applied to the total overdue amount during the following month.
3.4 Payments to Consultant. All payments made by Client to Consultant shall be provided in the currency set forth in Exhibit A at such places and in such manner (which may include electronic transfers) as Consultant may direct in writing from time to time without any deductions for taxes or charges of any kind, which taxes and charges, if any, are assumed by Client.
3.5. Taxes. Client shall ensure that no tax is deducted from any payment to Consultant.
4. Mutual Confidentiality.
4.1 Definition. “Confidential Information” means any Client or Consultant proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed by the disclosing party to the receiving party either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information does not include information that (i) is known to the receiving party at the time of disclosure (ii) has been published or is otherwise readily available to the public through no wrongful act of the receiving party or (iii) has been rightfully received by receiving party from a third party without confidential limitations.
4.2 Non-Use and Non-Disclosure. Each party will not, during or subsequent to the term of this Agreement, (i) use the Confidential Information for any purpose whatsoever other than the performance of the Services or (ii) disclose the Confidential Information to any third party. Each party agrees that all Confidential Information will remain the sole property of the disclosing party. Each party also agrees to take all reasonable precautions to prevent any unauthorized disclosure of such Confidential Information.
4.3 Third Party Confidential Information. Consultant recognizes that the Client has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Client’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that, during the term of this Agreement and thereafter, Consultant owes the Client and such third parties a duty to hold all such confidential or proprietary information in confidence and not to disclose it to any person (other than Consultant personnel, affiliates, employees, agents and independent contractors who need to know such information in connection with the performance of the Services), firm or corporation or to use it except as necessary in carrying out the Services for the Client consistent with the Client’s agreement with such third party.
4.4 Return of Materials. Upon Client or Consultant’s request, the other party will deliver to the disclosing party all of its property or Confidential Information that it may have in its possession.
5. Ownership. Client shall own all right, title and interest (including patent rights, copyright rights, trade secret rights, mask work rights, trademark rights, sui generis database rights and all other rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, knowhow, ideas and information made or conceived or reduced to practice, in whole or in part, by Consultant in connection with Services (collectively, “Inventions”) and Consultant will promptly disclose and provide all Inventions to Client. All Inventions are works made for hire to the extent allowed by law. In addition, if any Invention does not qualify as a work made for hire, Consultant hereby makes all assignments necessary to accomplish the foregoing ownership. Consultant shall further assist Client, at Client’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. Consultant hereby irrevocably designates and appoints Client and its agents as attorneys in fact to act for and in Consultant’s behalf to execute and file any document and to do all other lawfully permitted acts to further the foregoing with the same legal force and effect as if executed by Consultant. All tools, know-how, methods, techniques and other Inventions that Consultant developed prior to or develops not in connection with Services to Client are expressly excluded from the provisions of this Section 5 and remain the exclusive property of Consultant.
6. Term and Termination.
Term. The term of this Agreement will begin on the date of this Agreement and will continue until the earlier of (i) final completion of the Services or (ii) termination as provided in Section 6.2.
(A) Discretionary Termination. Consultant shall have the right to terminate this Agreement without cause at any time, upon thirty (30) days prior notice to Client and without any penalty or compensation payable to Client for such termination.
(B) Termination for Breach. This Agreement may be terminated by either party upon sixty (60) days written notice to the other party in the event of a breach of a material provision of this Agreement by the other party, if, during said sixty (60) days period, the breaching party fails to cure the breach. Such written notice shall describe the breach in reasonable detail.
(C) Termination Upon Insolvency. Consultant may terminate this Agreement immediately upon written notice to Client if Client is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations.
6.3 Survival. Upon such termination, all rights and duties of the Client and Consultant toward each other shall cease except:
(A) The Client shall pay, within ten (10) days after the effective date of termination, all amounts owing to Consultant for Services completed prior to the termination date and related expenses, if any, in accordance with the provisions of Section 1 of this Agreement; and
(B) Section 4 (Confidentiality), Section 5 (Ownership), Section 7 (Warranty Disclaimer), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 10 (Dispute Resolution), and Section 11 (Miscellaneous) shall survive termination of this Agreement.
7. Warranty Disclaimer. CONSULTANT MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PERFORMANCE OF SERVICES TO CONSULTANT OR TO ANY OTHER PERSON. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR ANY WARRANTIES ARISING UNDER ANY STATUTE, COURSE OF DEALING OR OTHERWISE.
8. Indemnification. Client agrees to indemnify and hold harmless Consultant, its officers, employees, customers, and agents from any and all claims, taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees, court costs, and other legal expenses, arising directly from a breach or alleged breach, or any grossly negligent, reckless or intentionally wrongful act of the Client.
9. Limitation of Liability. Client agrees that Consultant will not be liable for any lost profits, or for any claim or demand against Client by any other party. In the event that Consultant is or may be obligated to pay any cost, settlement, judgment, fine, penalty, or similar award or sanction as a result of a claim, investigation, or other proceeding instituted by any third party, and if such obligation is or may be a direct or indirect result of any inaccurate or incomplete information that Client provided to Consultant during the performance of Services, Client agrees to indemnify Consultant, and defend and hold Consultant harmless against such obligation.
In no event will Consultant be liable for any consequential, indirect, exemplary, punitive special, or incidental damages or losses, including without limitation, loss of use, profits, goodwill or savings, or loss of data, data files or programs, or cost of procurement of substitute goods, technology, or services, arising from or relating to this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence) or otherwise, even if Consultant has been advised or was aware of the possibility of any such loss or damages.
Consultant total cumulative liability in connection with this Agreement, whether in contract or tort or otherwise, will not exceed the actual amount of Fees paid by Client to Contractor for Services rendered for the specific contested project under this Agreement.
10. Dispute Resolution.
10.1 Any dispute arising out of this engagement, except actions by Consultant to enforce payment of Fees and expenses, must be resolved by litigation filed (i) within three (3) months from the accrual of the cause of action and (ii) exclusively with a court that has jurisdiction over the Consultant by virtue of the Consultant residing at the address used by Consultant for notice purposes pursuant to Section 10.5 (the “Jurisdiction”). Each party consents to the jurisdiction and venue of such court.
10.2 This Agreement will be governed by the internal substantive laws, but not the choice of law rules, of the Jurisdiction.
11.1 Entire Agreement. 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 them. 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 a duly authorized representative of each of the Client and Consultant.
11.2 Assignment. Neither this Agreement, nor any right hereunder or interest herein, may be assigned or transferred by Consultant without the written consent of the Client which shall not be unreasonably withheld.
11.3 Headings. Section headings are used in this Agreement for reference purposes only and shall not affect the interpretation or meaning of this Agreement.
11.4 Notice. Any notice or other communication required or permitted by this Agreement shall be in writing and shall be deemed given if delivered personally, by internationally-operating courier services, or sent via email (with evidence of delivery) to a party to this Agreement at such party’s address set forth below (or at such other address for a party as may be specified by like notice).
If to the Consultant:
30 N Gould St Ste R Sheridan, WY 82801
If to the Client: at the address used to enroll into the program.
Attorneys’ Fees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
Severability. 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, and it shall be construed so as to be enforceable to the extent compatible with the intent of the parties and the applicable law as it shall then appear.
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