CONSULTING AGREEMENT (for Services)
Effective 12/16/2013 (“Effective Date”), Thought Merchants (“Consultant”) and A Client (“Client”), agree (this “Agreement”) as follows:
1. Services and Payment. Consultant agrees to undertake and complete the Services (as defined in Exhibit A) in accordance with and on the schedule specified in Exhibit A.
2. Ownership; Rights; Proprietary Information. Client shall own all right, title and interest to the work, 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 the Services (“Work Product”) completed during each Billing Period after invoice for that Billing Period is paid in full to the Consultant. All Work Product is a work made for hire to the extent allowed by law. In addition, if any Work Product 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 attorneysinfact 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. Consultant agrees that all Work Product and all other business, technical and financial information (including, without limitation, the identity of and information relating to customers or employees) Consultant develops, learns or obtains in connection with Services or that are received by or for Consultant in confidence, constitute “Proprietary Information.” Consultant will hold in confidence and not disclose or, except in performing the Services, use any Proprietary Information. However, Consultant shall not be obligated under this paragraph with respect to information Consultant can document is or becomes readily publicly available without restriction through no fault of Consultant. Upon termination and as otherwise requested by Client, Consultant will promptly return to Client all items and copies containing or embodying Proprietary Information, except that Consultant may keep its personal copies of its compensation records and this Agreement.
3. Warranty. Consultant warrants that the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Consultant may have to others. Consultant warrants that all deliverables, including Work Product, shall be original work of Consultant and/or its independent contractors. Contractor warrants and will ensure all third-party resources utilized in Work Product do not violate the rights of any third parties.
4. Termination. Either party may terminate the Agreement at any time through written request to the other party. The Client shall upon termination pay Consultant all unpaid amounts due for Services completed prior to notice of termination.
5. Relationship of the Parties. Each party shall be and act as an independent contractor and not a partner, joint venturer, or agent of the other, and shall not bind or attempt to bind the other to any contract. Consultant is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including, but not limited to, workers’ compensation insurance.
6. Notice. All notices under this Agreement shall be in writing.
7. Miscellaneous. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties.
8. Invoices. All invoices are payable within 15 days of receipt. A monthly service charge of 1.5% or the greatest amount allowed by state law, whichever is lower, is payable on all overdue undisputed balances. Payments will be credited first to late payment charges and next to the unpaid balance.. Consultant reserves the right to withhold delivery and any transfer of ownership of any current work to the extent Client’s applicable accounts are not current or applicable overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full for the applicable Work Product, which shall be inclusive of any and all outstanding Fees.
9. Designer Tools. “Designer Tools”means all design tools developed and/or utilized by Consultant in performing the Services (excluding Client’s pre-existing intellectual property), including without limitation such pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts relating to website design, architecture, layout, navigational and functional elements.
All Designer Tools are and shall remain the exclusive property of Consultant. Consultant hereby grants the Client a nonexclusive, nontransferable (other than the right to sublicense such uses to the extent necessary to accomplish the purpose set forth in this license grant), perpetual, worldwide license to use the Designer Tools solely to the extent necessary for Client to exploit and exercise all such technology and intellectual property rights in support of Client’s exercise or exploitation of the Services. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools comprising any software or technology of Consultant.
Subject to the representations and warranties of the Client in connection with the materials supplied by Client, Consultant represents and warrants that, to the best of Consultant’s knowledge, the Designer Tools do not infringe the rights of any third party, and use of same in connection with the Project will not violate the rights of any third parties except to the extent that such violations are caused by content provided by Client (which, for the sake of clarity, shall not include Work Product), or the modification of, or use of the Work Product in combination with third party materials or equipment outside the scope of the applicable specifications, by Client or third parties, solely to the extent such violation would not have occurred but for such modification.
Designer Tools does not include any Work Product as defined in Section 2 to which the Client shall own all right, title and interest.
Services & Fees
The Consultant will provide as required: user experience expertise, produce design deliverables such as wireframes, mock-ups, production level designs, and front-end HTML. In addition the Consultant will advise on project management, product development, and user research.
The term will continue until the Services are completed or the Agreement is terminated under Section 4, whichever occurs first.
Fee of $175 per hour.
The above fee shall be exclusive of travel time; payable semi-monthly (a “Billing Period”) in arrears 15 days after receipt of itemized invoice, with a cap of $8400 per Billing Period.
Limited to required, reasonable telephone expenses, coach class (or equivalent) transportation, lodging and meals, all of the foregoing that have been authorized in writing by the Client in advance; payable 15 days after receipt of itemized invoice.