Terms and Conditions
1. SERVICES; COMPENSATION
From time to time, the Client and Consultant may agree on certain services to be performed under this Agreement, and in that case, shall prepare a statement of work in substantially the form set forth in Exhibit A (“Statement of Work”), as attached hereto and incorporated herein.
1.1 Services. Subject to the terms of this Agreement, Consultant shall, to the best of its ability, render and perform the services for the Client set forth in each Statement of Work (the “Services”) during the Term (as defined below) set forth therein. The Services of Consultant hereunder shall not be exclusive, and Consultant and its agents or contractors may perform similar or different services for other persons or entities, whether they are competitors of Client. The manner and means by which Consultant chooses to complete the Services are in Consultant’s sole discretion and control. In completing the Services, Consultant shall provide its own equipment, tools and other materials at its own expense. Client may make his/her/its facilities and equipment, if any, available to Consultant when necessary to perform the Services. Consultant shall make its progress on performing the Services known and available to Client during normal business hours upon his/her/its written or electronic request.
1.2 Compensation. In exchange for Consultant’s performance of the Services hereunder, Client shall pay and deliver the fees and payments identified and described in the Statement of Work for the Services selected under same (the “Compensation”). Client shall pay and deliver the first payment (“Payment”) to Consultant upon Client’s execution and delivery of this Agreement. For any subsequent monthly Payments, if any, Client hereby agrees and authorizes Consultant to charge Client’s credit/debit card on the first business day of each month following the month of execution of this Agreement. The Parties acknowledge and agree that the Services for each month will be deemed fulfilled under this Agreement upon Consultant’s receipt of that month’s Payment. Client has no other compensation or payment obligation to Consultant other than the payment and delivery of the Compensation defined herein.
2. RELATIONSHIP OF PARTIES; TAXES
2.1 Independent Contractor. It is the express intention of the Parties that Consultant is an independent contractor. Neither party is an agent, representative, joint venture, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either of the Parties. Consultant shall be responsible for payment to any employees it may employ for the Services performed under this Agreement and for all of its employees’ contributions, taxes or payments required to be made because of its personnel or employees by the federal and state Unemployment Compensation Acts, Social Security Acts and all amendments thereto, and all similar payments, contributions, or taxes imposed by the laws of any applicable local, state or federal governmental agency, and all other current and future acts, state, federal, or arising by the laws of any applicable local, state or federal governmental agency, requiring payment by Consultant on account of such employees performing the Services under this Agreement and shall indemnify and hold the Client harmless from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorney’s fees and other legal expenses arising directly or indirectly from Consultant’s breach of this subsection of this Agreement.
2.2 Employment Taxes and Benefits. Consultant agrees to pay all applicable self-employment and other taxes on the Compensation provided to it and its employees. Consultant will defend, indemnify and hold the Client harmless from and against all claims, damages, losses, and costs and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed upon the Client to pay any withholding limited to labor laws or wage laws, imposed by any applicable local, state or federal governmental agency, in connection with Compensation received by Consultant. Consultant’s employees and agents will not be entitled to participate in any plans, arrangements, or policies of the Client including, but not limited to, any plan arrangement or policy providing bonus, vacation, stock option, sick leave, disability, medical, retirement, profit sharing, or similar benefits for the Client employees. No employee benefits or tax qualified plans provided to the Client employees shall be available to Consultant or Consultant’s agents, Consultants or employees (even if Consultant’s agents, contractors, or employees are later determined to have been a common-law employee of the Client for any purpose). Consultant acknowledges that no insurance whatsoever, including Worker’s Compensation insurance has been or will be obtained by the Client on behalf of Consultant or its agents, contractors or employees.
3. INTELLECTUAL PROPERTY.
Consultant acknowledges that, as between the Client and Consultant, the Consultant’s following non-exhaustive items consisting, without limitation, of its methodology, including principles, processes, concepts, coaching techniques, and training manuals or tools, as well as assignments and projects, email attachments, and documentation (collectively defined as the “Work Product”) are proprietary, wholly owned by Consultant, and may not be used by Client for any other purposes other than the Parties performance of the terms of this Agreement. As between Client and Consultant, all right, title and interest in the Work Product belongs to and is owned by the Consultant.
Consultant will keep all communications with Client (“Confidential Information”) confidential except where (i) mutually agreed to in writing by the Parties; (ii) where necessary to share such information with the Parties’ accountants or attorneys; (iii) where disclosure to a governmental entity is required; or (iv) where disclosure is ordered by a court of competent jurisdiction. Confidential Information does not include information which: (a) is known to Consultant at the time of disclosure to Consultant by the Client as evidenced by written records of Consultant, (b) has become publicly known and made generally available through no wrongful act of Consultant, or (c) has been rightfully received by Consultant from a third party who is authorized to make such disclosure.
5. TERM; TERMINATION; SURVIVAL
5.1 Term. The initial term of this Agreement shall commence upon (i) the Effective Date hereof and shall continue until the earlier of: (i) the completion of the Services; or (ii) the termination as provided below (“Initial Term”). The Parties may, from time to time, mutually agree in writing to extend the Initial Term of this Agreement for the performance of additional Services in accordance with and to be reduced to writing through a new or amended Statement of Work (the “Renewal Term”) (each Renewal Term together with the Initial Term, the “Term”).
5.2 Termination. Either Party may terminate this Agreement for any or no reason upon seven (7) days advance written notice to the other Party.
5.2.1. Notice of Termination. Any such notice of termination shall be addressed to the Party at the address shown below or such other address as either Party may notify the other of and will be deemed given upon delivery if personally delivered, or forty-eight (48) hours after deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested.
5.2.2. Refunds. Upon the early termination of this Agreement, Client shall only be entitled to a refund of Payment(s) made and delivered to Consultant in advance, if any, for the month(s) following the month this Agreement is terminated. Client shall not be entitled to a Refund of any pro rata amounts of the Payment for the month that this Agreement is terminated.
5.3 Survival. Upon termination or expiration, all rights and duties of the Parties toward each other will cease except: (a) the Client shall pay, within thirty (30) days of the effective date of termination, all amounts of Compensation owing to Consultant for Services completed and accepted by the Client prior to the termination date in accordance with the provisions of Section 1 hereof; and (b) Section 2, Section 3, Section 4, Section 5.3, Section 7, Section 9, Section 10, Section 11, and Section 12, shall survive any termination or expiration of this Agreement.
This is a contract for the services of Consultant; consequently, Consultant shall not transfer or assign any of its rights or delegate any of its obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the Client’s prior written consent. Any purported transfer, assignment, or delegation by Consultant without such prior written consent shall be null and void ab initio and of no force or effect. Subject to the foregoing, this Agreement shall inure to the benefit of the Parties and their successors, transferees, and assignees.
7. INDEMNIFICATION & RELEASE.
7.1 Client shall defend, indemnify and hold Consultant harmless from and against any claim, loss, costs, or damages, including, but not limited to reasonable attorneys’ fees, arising out of or resulting from any action by a third party based upon (i) any negligent, reckless, or intentionally wrongful act or omission of the Client or the Client’s assistants, employees, agents, (ii) or any breach or alleged breach by the Client or the Client’s assistants, employees or agents of any of the covenants, representations, or warranties contained in this Agreement.
7.2 Client hereby agrees to release, waive, acquit, and forever discharge Consultant, along with its agents, successors, assigns, personal representatives, executors, heirs, and employees, from every claim, loss, costs, damages, or demand that Client may have, whether now or in the future, relating to or arising from this Agreement or the Services provided hereunder. Client agrees that this release shall be binding on her/his/its successors, assigns, agents, heirs, executors, and personal representatives. Client acknowledges that this release is entered into without duress or undue influence.
8. CONFLICTING OBLIGATIONS.
Consultant represents and warrants that it and the agents or contractors it provides hereunder, if any, have no outstanding agreement that are in conflict with any of the provisions of this Agreement or that would preclude Consultant or his agents or contractors from complying with the provisions hereof, including the provisions of Section 4 hereof, and further represents and warrants that it will not enter into any such conflicting agreement during the Term of this Agreement.
9. SCHEDULING & CANCELLATION POLICY
9.1 Scheduling. Client and Consultant shall work in good faith to schedule all Sessions (as defined in Exhibit A) and any other appointments for a mutually agreeable time and location.
9.2 Cancellation Policy. Client shall provide Consultant with twenty-four (24) hours advance electronic mail notice to cancel or reschedule an appointment or Session. In the event Client fails to provide timely notice under this Section 9.2, Consultant reserves the right to deem the appointment or Session fulfilled under Client’s Package, as selected in Exhibit A.
10. WARRANTIES AND LIMITATIONS
10.1 Each Party hereto represents and warrants that: (a) each Party has the full corporate or individual contractual capacity, right, power, and authority to enter this Agreement and to perform the acts required of each hereunder; (b) the execution of this Agreement by such Party, and the performance by such party of their obligations and duties hereunder do not, and will not violate any agreement to which such Party is bound; and (c) when executed and delivered by such Party, this Agreement shall constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10.2 Consultant warrants to the Client that the Services to be delivered hereunder will be of the kind and quality designated in Exhibit A and will be performed in a professional manner pursuant to industry standards and in accordance with the International Coach Federation’s Code of Ethics. Any Work Produce provided hereunder is provided “AS IS.” Consultant expressly disclaims any implied warranties of merchantability or fitness for a particular purpose or non-infringement. The warranties contained in this subsection are made in lieu of all other express or implied warranties, whether oral or written, statutory or derived from other applicable law.
10.3 Client acknowledges that the Services performed hereunder are not a substitute for mental health care and that Consultant is not acting as a psychotherapist, and does not purport to offer mental health care. Client acknowledges that Consultant is not responsible for the success or results of any Services performed hereunder.
10.4 Limitation of Liability. Except for claim arising under Section 2, Section 4, and Section 7, each Party hereto disclaims any and all liability for special, incidental, consequential or indirect damages (including loss of use and profits) arising out of this Agreement or with respect to the installation, use, operation or support of any Work Product developed pursuant to this Agreement, however caused, whether for breach of contract, negligence, or otherwise, even if the breaching Party has been informed of the possibility of such damages. In no event shall the Consultant’s liability to Client for monetary damages exceed the Compensation amounts due and owing Consultant hereunder at the time of said breach. These limitations shall apply notwithstanding any failure of the essential purpose of any limited remedy.
11. DISPUTE; GOVERNING LAW; EQUITY
11.1 Dispute Venue. Client and Consultant agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall exclusively be filed and resolved in a state court located in the city of Virginia Beach in the Commonwealth of Virginia.
11.2 Governing Law. The terms, conditions and provisions of this Agreement and any dispute arising hereunder shall be governed by and under the laws of the Commonwealth of Virginia, without regard to its conflict of law principles.
11.3 Equitable Relief. The Parties may, without limiting any other remedies, rights, or recourse under the laws of the Commonwealth of Virginia, apply and pray to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, and the same may be sought and prayed for by a Party hereunder without posting an injunction bond.
12.1 Entire Agreement. This Agreement, along with any Exhibits or Statements of Work agreed to by the Parties, is the entire agreement of the Parties and supersedes any prior or contemporaneous agreements between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the Parties hereto. In the event of any conflict between the terms of this Agreement and any Exhibit hereto, the terms of this Agreement shall control and govern.
12.2 Amendments and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term, waived only by a writing signed by the Party to be bound. No waiver of any default of the terms or conditions of this Agreement will be deemed to be a waiver of any other default, or any subsequent default of any terms or conditions of this Agreement, but will apply solely to the instance to which such waiver is directed. Without limiting the foregoing, to be enforceable between the Parties, any new, revised, or counterpart Statement of Work under this Agreement shall be executed in writing or electronically by both Parties and make specific reference to this Agreement.
12.4 Severability. If a court of competent jurisdiction holds any provision of this Agreement, or its application to any person, place or circumstance, to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places and circumstances, shall remain in full force and effect.
12.5 Attorneys’ Fees. In any legal action or other proceeding brought to enforce the terms of this Agreement, the Consultant shall be entitled to recover its reasonable attorneys’ fees, fees, and costs.
12.6 Counterparts; Headings. This Agreement may be executed simultaneously and in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one (1) and the same instrument. The headings provided for herein are for convenience and reference only, and shall not be deemed a substantive part of this Agreement.
12.7 Recitals. The recitals contained in this Agreement above are incorporated into and made an integral and substantive part of this Agreement.
12.8 Portfolio Release. Client agrees that the Consultant has the right to use materials created pursuant to this Agreement for the Consultant’s portfolio, samples, self-promotion including advertising for Consultant’s business including without limitation Facebook or Instagram, or any other social media platform. In the event Client wishes to exclude some specific materials from the release under this paragraph, or to limit the time period of such release, the Consultant and Client may agree in writing to such limitation.
12.9 Additional Services. All services outside the scope of this Agreement that are requested by the Client and which the Consultant agrees to perform will be billed at a rate of [$450] per hour. Client will be notified and must approve in writing (email is sufficient) additional services before they will be performed, although The Company may not necessarily be able to inform Client in advance of the total cost of such additional services. Client will also be given opportunity to purchase additional services at package rates, when deemed appropriate by the Consultant.
12.10 License. Client grants the Consultant a limited, nontransferable, nonexclusive license to copy, use, store, set up, publicly display, publicly perform and transmit any trade names, trademarks, service marks, copyrights, content, text, images, software, functionality, page and other design and layout, media and other materials therein and solely in connection with creation of the Campaign and direct response marketing in accordance with this Agreement. Other than as specifically provided herein, the Parties, their employees, subsidiaries, affiliates, agents and assigns, shall make no disclosure of any Proprietary Information without the express written consent of the other Party. In addition, neither Party shall use the Proprietary Information for any purpose other than purposes related to their business relationship as laid out in this Agreement. In the event that the receiving Party is required by applicable law, rule, regulation or lawful order or ruling of any court, government agency or regulatory commission to disclose any Proprietary Information, the receiving Party understands that the disclosing Party may desire to seek an appropriate protective order or take steps to protect the confidentiality of such Proprietary Information. Consequently, the receiving Party agrees that it will provide the disclosing Party with prompt notice of such request(s).