THIS CONSULTING AGREEMENT (the "Agreement") dated this ______ day of ______, ____
H2Optimize of 10818 W County Rd 72, Midland, Texas, 79707
- AND -
Michael Alexander of 817 De La Vina St #3, Santa Barbara, CA, 93101
A. The Client is of the opinion that the Contractor has the necessary qualifications, experience and abilities to provide services to the Client.
B. The Contractor is agreeable to providing such services to the Client on the terms and conditions set out in this Agreement.
IN CONSIDERATION OF the matters described above and the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Contractor (individually the "Party" and collectively the "Parties" to this Agreement) agree as follows:
1. Services. The Client hereby agrees to engage the Contractor to provide the Client with services (the "Services") consisting of software planning, design, prototyping, and development.
2.1. The term of this Agreement (the "Term") will begin on the date of this Agreement and will remain in full force and effect indefinitely until terminated as provided in this Agreement.
2.2. If either Party materially breaches a material provision of this Agreement, the other Party may terminate this Agreement upon five (5) days written notice unless the breach is cured within the notice period.
2.3. Either Party may terminate this Agreement at any time, with or without cause, upon fifteen (15) days’ notice, but, if (and only if) without cause, the Company shall upon termination pay the Contractor all unpaid and undisputed amounts due for Services completed prior to notice of termination.
2.4. Sections 3 through 21 of this Agreement and any remedies for breach of this Agreement, except as otherwise provided for in this Agreement, shall survive any termination or expiration.
2.5. Except as otherwise provided for in this Agreement, the obligations of the Contractor will end upon termination of this Agreement.
3. Performance. The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.
4. Currency. Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in USD (US Dollars).
5. Compensation; Reimbursement of Expenses.
5.1. For the services rendered by the Contractor as required by this Agreement, the Client will provide compensation (the "Compensation") to the Contractor of $30.00 per hour.
5.2. The Client will provide compensation to the Contractor of $15.00 per hour for travel time when such travel is authorized by the Client. Travel time includes all time spent between departure from origination and arrival at destination, inbound and outbound, minus any time therein during which billable Services are performed.
5.3. All expenses must be pre-approved by the Client.
5.4. The Contractor will provide to the Client an invoice every two weeks.
5.5. Invoices submitted to the Client by the Contractor will be due within 15 days of receipt.
5.6. Any late payments will trigger a fee of 5.00% per month of the amount still owing.
6. Confidentiality; Rights; Ownership of Intellectual Property.
6.1. The Company shall own all right, title and interest (including patent rights, copyrights, 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, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by the Contractor in connection with Services or any Proprietary Information (as defined below) (collectively, “Inventions”) and the Contractor will promptly disclose and provide all Inventions to the Company. 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, the Contractor hereby makes all assignments necessary to accomplish the foregoing ownership. the Contractor shall further assist the Company, at the Company’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights assigned. The Contractor hereby irrevocably designates and appoints the Company and its agents as attorneys?in?fact to act for and in the Contractor’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 the Contractor.
6.2. The Contractor agrees that all Inventions and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees) the Contractor develops, learns or obtains in connection with Services or that are received by or for the Company in confidence, constitute “Proprietary Information.” The Contractor will hold in confidence and not disclose or, except in performing the Services, use any Proprietary Information. However, the Contractor shall not be obligated under this paragraph with respect to information the Contractor can document is or becomes readily publicly available without restriction through no fault of the Contractor. Upon termination and as otherwise requested by the Company, the Contractor will promptly return to the Company all items and copies containing or embodying Proprietary Information, except that the Contractor may keep his personal copies of his compensation records and this Agreement.
6.3. As additional protection for Proprietary Information, the Contractor agrees that during the period over which it is (or is supposed to be) providing Services (i) and for one year thereafter, the Contractor will not encourage or solicit any employee or consultant of the Company to leave the Company for any reason, and (ii) the Contractor will not engage in any activity that is in any way competitive with the business or demonstrably anticipated business of the Company, and the Contractor will not assist any other person or organization in competing or in preparing to compete with any business or demonstrably anticipated business of the Company.
6.4. If any part of the Services or Inventions is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed or otherwise exploited without using or violating technology or intellectual property rights owned or licensed by the Contractor and not assigned hereunder, the Contractor hereby grants the Company and its successors a perpetual, irrevocable, worldwide royalty-free, nonexclusive, sublicensable right and license to exploit and exercise all such technology and intellectual property rights in support of the Company’s exercise or exploitation of the Services, Inventions, other work performed hereunder, or any assigned rights (including any modifications, improvements and derivatives of any of them).
6.5. The Contractor may utilize publicly distributed software, documentation and information within the solutions provided to the Company under the terms of this agreement, provided that said software, documentation, and information is either in the public domain or is licensed for public distribution under terms that do not conflict with the licensing of the Company's products in which they are included.
7. Property Ownership and Return.
7.1. Upon expiry or termination of this Agreement, the Contractor will return to the Client any physical or electronic property.
7.2. All supplies or materials, physical or electronic, purchased by the Client for use by the Contractor shall remain the property of the Client.
7.3. The Contractor shall not be held liable for the condition of any supplies or materials, physical or electronic, provided by the Client for use by the Contractor during the Term of this Agreement, nor for any material losses to the Client resulting from their use.
8. Liability. In no event shall the Contractor be liable for any damages arising from the use of the software developed under the terms of this Agreement
9. Relationship of the Parties.In providing Services under this agreement, it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The Contractor and the Company acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a a contract for services.
10. Assignment.This Agreement and the services contemplated hereunder are personal to the Contractor and the Contractor shall not have the right or ability to assign, transfer, or subcontract any obligations under this Agreement without the written consent of the Company.
11. Notice.All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, sent by confirmed telecopy or other electronic means, or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the Party to be noticed as set forth herein or such other address as such Party last provided to the other by written notice.
12. Indemnification.Except to the extent paid in settlement paid from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, stockholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, stockholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification shall survive the termination of this Agreement.
13. Modification of the Agreement. Any amendment or modification of this Agreement or additional obligation assumed by the either Party in connection with this Agreement will only be binding if evidenced in writing signed by each Party or an authorized representative of each Party.
14. Entire Agreement. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement except as expressly provided by this Agreement.
15. Enurement. This Agreement will enure to the benefit of and be binding on the Parties and their respective heirs, executors, administrators and permitted successors and assigns.
16. Titles/Headings. Headings are inserted for convenience of the Parties only and are not to be considered when interpreting this Agreement.
17. Gender. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
18. Governing Law. It is the intention of the Parties to this Agreement that this Agreement and the performance under this Agreement, and all suits and special proceedings under this Agreement, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the State of California, without regard to the jurisdiction in which any action or special proceeding may be instituted.
19. Severability. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
20. Waiver. The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
21. Additional Clauses.
21.1. The Client acknowledges and accepts that the Contractor may regularly provide primary delivery of Services outside of the hours of 8 AM to 7 PM Monday through Friday Pacific Time.