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MASTER SERVICES AGREEMENT
This MASTER Services Agreement (this “Accordo”) is made and entered into as of the date purchased, (the “Data effettiva”), by and between Collateral Base, LLC, an Illinois limited liability company (“Consulente”), and any purchaser (“Cliente,” collectively with the Consultant referred to as the “Parties”).
Client desires Consultant to perform certain services from time to time relating to, among other things, cannabis or hemp consulting, all upon the terms and conditions set forth in this Agreement.
- The Parties desire for the Client to engage Consultant to perform the services described herein and for Consultant to provide the services on the terms and conditions contained in this Agreement; and
- The Parties desire to use Consultant’s independent skill and expertise pursuant to this Agreement as an independent contractor in order to assist in the licensing and operating procedures for the legal cannabis industry.
- The Parties intend to be bound by this Agreement for the Services and delivery of the Work Product made from Consultant’s Intellectual Property as set forth in the Statement of Work. The Client agrees and expressly understands any change therefrom is outside of the scope of the Statement of Work and subject to change orders as documented in future Statements of Work.
In consideration of the promises and mutual agreements contained in this Agreement, the parties agree as follows:
- Capitalized words used but not otherwise defined in this Agreement shall have the definitions given below:
"Affiliazione” means any individual or entity, whether now or hereafter existing, which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Client (including, without limitation, joint ventures, limited liability companies, and partnerships). As used in this definition, the term control shall mean ownership of 5% or more of the total combined voting power or value of all classes of shares or interests in the entity, or the power to direct the management and policies of the entity, by contract or otherwise.
"Informazioni confidenziali” means all information, including any Intellectual Property (as defined below) to the extent applicable, disclosed by one Party to the other Party pursuant to Services (as defined below) provided under this Agreement that is not generally known in the Client or Consultant’s trade or industry and shall include, without limitation, (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of the Parties or their subsidiaries or affiliates;(b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; (d) any information regarding the skills and compensation of employees, contractors or other agents of the Parties or their subsidiaries or affiliates; and (e) Consultant Deliverables and Work Product arising from the Statement(s) of Work. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Client or Consultant in the course of the performance of Services hereunder.
"Consultant Deliverables” has the meaning(s) set forth in the applicable Statement(s) of Work attached to and incorporated into this Agreement.
"Proprietà intellettuale” includes, without limitation, any Services, Work Product, Consultant Deliverables, inventions, technological innovations, discoveries, designs, formulas, know-how, processes, business methods, patents, trademarks, service marks, copyrights, computer software, ideas, creations, writings, illustrations, photographs, scientific and mathematical models, improvements to all such property, and all recorded material defining, describing, or illustrating all such property, whether in hard copy or electronic form.
"Licensed Purpose” has the meaning(s) set forth in the applicable Statement(s) of Work attached to and incorporated into this Agreement.
"Servizi” has the meaning(s) set forth in the applicable Statement(s) of Work attached to and incorporated into this Agreement.
“Work Product” has the meaning(s) set forth in the Scope of Services in the applicable Statement(s) of Work attached to and incorporated into this Agreement.
- Engagement of Services.
- Services and Statement(s) of Work. Consultant shall provide consulting services within Consultant’s areas of expertise, including but not limited to,. From time to time, Client and Consultant may enter into one or more written work orders substantially in the form of Allegato A that contain the terms (including specifications, responsibilities of the parties, and fees) for Services and items that Client desires Consultant to provide. Such work order will set forth, to the extent applicable, among other things, scope of Services, schedule for completion of Services, various project activities, and tasks to be performed by the Parties, Consultant Deliverables, and roles and responsibilities of the Parties. Upon acceptance of a work order by Consultant (in writing, by performance, or otherwise), such work order will be a “Dichiarazione di lavoro”. Each Statement of Work will become effective only when executed by Parties and will thereafter become a part of this Agreement as if fully set forth herein. If any provision of the applicable Statement of Work is inconsistent with this Agreement prior to such incorporation, the terms of the applicable Statement of Work will control, but only with respect to the Services to be performed under said Statement of Work. The manner and means that Consultant chooses to complete the Services are in Consultant’s sole discretion and control. In completing the Services, Consultant agrees to provide its own equipment, tools, and other materials at its own expense; however, Client will make its facilities and equipment available to Consultant when necessary.
- Change Orders. Client may, from time to time, request changes or additions to the Services, including to any Consultant Deliverable, performed or to be performed by Consultant under an existing Statement of Work. Upon any such request, if such a request is accepted by Consultant in his sole discretion, Consultant will provide Client with a written change order proposal for the additional Services, including any resulting change in the fees, scope of Services, schedule of Services and payment schedule, and responsibilities of the Parties. Any change order proposal shall be deemed a “Change Order” upon acceptance by the Parties and shall be attached to and incorporated into the applicable Statement of Work. Change Orders shall be effective only upon execution by both Parties and shall thereafter be attached to and incorporated into the applicable Statement of Work and this Agreement. If any provision of the applicable Change Order is inconsistent with the Statement of Work to which it refers or this Agreement prior to such incorporation, the terms of the applicable Change Order will control, but only with respect to the Services to be performed under said Change Order. Client acknowledges and agrees that the time in which Consultant is required to perform the Services may need to be extended as a result of a Change Order and that such extension shall not be attributed to Consultant and, to the extent any Statement of Work is impacted by a Change Order, the Parties will adjust the Statement of Work, including timelines to account for the increased time needed to perform the Services thereunder.
- Responsabilità del cliente. In connection with Consultant’s performance of the Services and the development of the Consultant Deliverables, Client shall perform certain tasks, provide certain information, and fulfill certain responsibilities as further set forth in the applicable Statement of Work, or as otherwise reasonably requested by Consultant from time to time (“Client Responsibilities”). Client acknowledges that it will provide Consultant reasonable access to Client’s subject matter resources as part of Consultant’s performance of the Services and creation of the Consultant Deliverables. Client understands that Consultant’s performance is dependent on the Client’s timely and effective performance of Client Responsibilities under this Agreement and each applicable Statement of Work. Consultant shall be excused from any failure or delay in performing the Services (including delivering any Consultant Deliverables) to the extent caused by the Client’s failure to timely fulfill Client Responsibilities. Client shall be responsible for (i) ensuring that the scope of Services and Consultant Deliverables meet Client’s requirements; (ii) ensuring Client’s compliance with all applicable federal, state and local laws and regulations, (iii)assigning a single point of contact for all inquiries during the performance of Services, (iv)providing clarification for all inquiries raised by Consultant within two (2) business days, (v)carrying out testing and providing feedback to Firm, and (vi) obtaining all necessary consents from third parties that are required for Consultant to use Client information, content or software in connection with Consultant’s performance of the Services under this Agreement or any applicable Statement of Work.
- Project Fees and Reimbursable Items. Client shall pay to Consultant fees and other compensation set forth in all applicable Statements of Work. Client will also reimburse Consultant for all reasonable out-of-pocket travel, living and other ancillary expenses paid or incurred by Consultant while away from the principal place(s) of the business of Consultant in connection with the Services and any other reimbursable items set forth in each Statement of Work. Consultant will have no obligation to perform any Services when any amount required to be paid by Client remains due and unpaid beyond the date such amount is due. Any suspension of Services by Consultant as a result of Client’s failure to make payment as required will extend the due dates of Consultant Deliverables and other Services to the extent impacted by such suspension or delay.
- Invoicing and Payments. Any and all fees and other compensation payable to Consultant as set forth in any applicable Statements of Work shall be due and payable as set forth therein. In addition, the Client will reimburse Firm, without deduction or setoff, for all fees, charges, travel, lodging and other out-of-pocket expenses incurred incident to its performance of Services, within five (5) days after submission of an invoice by Consultant to Client, which invoice will contain copies of all original receipts or similar documentation. In the event Consultant deems it necessary or advisable to employ third-party Firms or others in connection with the Services, it shall so notify Client, and upon Client’s approval, the Client shall pay the entire cost of such third-party. In the event Client fails to make a payment for more than thirty (30) days following the date of any invoice, Client will pay interest at a rate equal to the lesser of 1% per month (or part thereof) or the maximum legal rate permitted, on the amount shown on such invoice. The purposes of the collection of performance of this Agreement shall be business record and not to be considered a personal or private communication under any consumer eavesdropping protection act and Client agrees to have oral communications recorded and transcribed for use in enforcing the terms of this Agreement.
- Tasse. Client shall be responsible for any and all federal, state or local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to any amounts payable by Client to Consultant hereunder, this Agreement or any Services, exclusive of taxes based on Consultant’s net income or net worth. Consultant will invoice Client for any taxes payable by Client that are required to be collected by Consultant pursuant to any applicable law, rule, regulation or other requirements of law. Consultant is an independent contractor, therefore, Client will not withhold or pay those amounts an employer is typically required to withhold or pay in connection with wages paid to an employee, such as income tax, social security, Medicare, or disability.
- The purposes of the collection of performance of this Agreement shall be a business record and not to be considered a personal or private communication under any consumer eves-dropping protection act and Client agrees to have oral communications recorded and transcribed for use in enforcing the terms of this Agreement.
- Proprietà intellettuale.
- Ownership of Work Product. Consultant shall retain all right, title and interest now existing or that may exist in the future in and to any Consultant Deliverables, Work Product, or Intellectual Property of Consultant or any document, development, work product, know-how, design, processes, invention, technique, trade secret, or idea, and all intellectual property rights related thereto, that has previously been created by Consultant, is created by Consultant, to which Consultant contributes, or which relates to Consultant’s Services provided pursuant to this Agreement (collectively, the “Work Product”), including all copyrights, trademarks and other intellectual property rights (including but not limited to patent rights) relating thereto. Client agrees that any and all Work Product shall be and remain the property of Firm. Client agrees to execute, at Consultant’s request and expense, all documents and other instruments necessary or desirable to Consultant such ownership of Work Product. In the event that Client does not, for any reason, execute such documents within a reasonable time of Consultant’s request, the Client hereby irrevocably appoints Consultant as Client’s attorney-in-fact for the purpose of executing such documents on Client’s behalf, which appointment is coupled with an interest. Client shall not attempt to register any works created by Consultant pursuant to this Agreement at the U.S. Copyright Office, the U.S. Patent & Trademark Office, or any foreign copyright, patent, or trademark registry. Client retains no rights in the Work Product and agrees not to challenge Consultant’s ownership of the rights embodied in the Work Product. Client further agrees to assist Consultant in every proper way to enforce Consultant’s rights relating to the Work Product in any and all countries, including, but not limited to, executing, verifying and delivering such documents and perform such other acts (including appearing as a witness) as Consultant may reasonably request for use in obtaining, perfecting, evidencing, sustaining, and enforcing Consultant’s rights relating to the Work Product.
- Client’s Intellectual Property. Client (or its licensor) will at all times retain all rights, ownership, and interest in and to any pre-existing Intellectual Property utilized by Consultant in the performance of the Services which was or is originated, developed, purchased or licensed by the Client or its Affiliates, together with any and all additions, enhancements, improvements or other modifications thereto made by Client, its Affiliates or by any third party on behalf of Client and not in connection with this Agreement, and without regard to whether the same took place during or prior to the performance of the Services under this Agreement (collectively, “Client Intellectual Property”). Nothing contained in this Agreement or otherwise shall be construed to grant to Consultant any right, title, license or other interest in, to or under any Client Intellectual Property (whether by estoppel, implication or otherwise), except the right and license to modify and otherwise use such items for the performance of the Services hereunder.
- Subject to Section 4.3(b), Consultant hereby grants to Client a non-exclusive, perpetual, irrevocable, non-transferable and non-sublicensable right and license to use the Work Product, including without limitation, any reports, proposals, lists, technical materials, business or technical processes, provided by Consultant to Client in connection with the Services for the Licensed Purpose. Notwithstanding the foregoing, Client acknowledges that the license granted by Consultant in this Subsection 4.3(a) is transferable only to an Affiliate and only in connection with an assignment of this Agreement by Client in accordance with Section 16. For the avoidance of doubt, the license does not include the right to use, sell, or sub-license any Work Product comprising the license and may only be used, whether or not transferred, for the Licensed Purpose.
- Client agrees, on its own behalf and on behalf of its owners, officers, directors, employees and Affiliates, that the Confidential Information and Work Product provided by Consultant in the course of performing the Services shall be used by Client solely for the Licensed Purpose, and for no other purpose, including without limitation (i) providing services to any other entity or individual, including any Affiliate, except in connection with an assignment of this Agreement in accordance with Section 16, or (ii) using any such Confidential Information or Work Product in any external reports, except as necessary to accomplish the Licensed Purpose. Client shall not utilize the Work Product without any copyright notices or in any format other than the full and complete format in which Client received such Work Product from Firm, except in connection with the Licensed Purpose.
- Confidential Information.
- Each of the Parties hereto agrees to hold the other Party’s Confidential Information (as defined in this Agreement) in strict confidence and not to disclose such Confidential Information to any third parties. Each Party also agrees not to use any of the other Party’s Confidential Information for any purpose other than in conjunction with the performance of Services by Consultant and use of said Services by Client.
- Each Parties’ obligations set forth in this Section 5 shall not apply with respect to any portion of the Confidential Information that the other Party can document by competent proof that such portion: (i) is in the public domain through no fault of the other Party; (ii) has been rightfully independently communicated to the other Party free of any obligation of confidence; or (iii) was developed by the other Party independently of and without reference to any information communicated by one Party to the other Party. In addition, either Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law, provided such Party first provides advanced written notice of the same to the other Party. All Confidential Information furnished a Party is the sole and exclusive property of the disclosing Party or its suppliers or customers. Upon request by either disclosing Party, the receiving Party agrees to promptly deliver to the disclosing Party the original and any copies of such Confidential Information. At the disclosing Party’s option, the receiving Party shall provide written certification of its compliance with this Section 5.
- Notwithstanding anything contained in Section 4.1 or this Section 5 to the contrary, the Parties agree and acknowledge that Consultant provides advisory services to businesses which may compete with Client or are otherwise involved in a similar industry or line of business, and that Consultant’s expertise, knowledge, and know-how are evolving assets that shall in no way be compromised hereby. Client acknowledges and agrees that, unless explicitly set forth in a Statement of Work or subsequent agreement between the Parties: (i) the Consultant shall not be restricted in its ability to use Work Product, including without limitation, any concepts, processes, ideas and programs developed in connection with the Services, and any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the performance of Services, with third-party clients, and (ii) Consultant may represent, perform services for, or be employed by such other clients, persons, or companies as Consultant sees fit in its sole discretion.
- Subject to Section 4.3, upon any termination or expiration of this Agreement, each Party(i) shall immediately discontinue all use of the other Party’s Work Product or Confidential Information delivered under this Agreement; (ii) shall delete any such Work Product or Confidential Information of the other Party from such Party’s computer storage or any other media, including, but not limited to, online and off-line libraries; and (iii) shall return to the other Party, or, at the other Party’s option, destroy, all copies of such Work Product or Confidential Information then in such Party’s possession. In the event either Party terminates this Agreement, the Consultant will be entitled to payment for Services performed as of the date of termination and shall not receive any additional consulting fees or other compensation.
- Representations and Warranties.
- Consultant represents and warrants that: (a) Consultant has the full right and authority to enter into this Agreement and perform its obligations hereunder; (b) Consultant has the right and unrestricted ability to license the Work Product to Client as set forth in Section 4. (including the right to license any Work Product created by Consultant’s employees or contractors); (c) to Consultant’s actual knowledge, the Work Product will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law. Consultant agrees to indemnify Client from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by Consultant of the representations and warranties set forth in this Section 1.
- Client represents and warrants that: (a) Client has the full right and authority to enter into this Agreement and perform its obligations hereunder; and (b) neither Client nor any of Client’s owners, officers, directors, agents, employees, and affiliates, will infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law. Client agrees to indemnify Consultant from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by Client of the representations and warranties set forth in this Section 2.
- EXCEPT AS SET FORTH IN SECTION 6.1, CONSULTANT MAKES NO REPRESENTATIONS OW WARRANTIES TO CLIENT, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY SERVICES OR CONSULTANT DELIVERABLES PROVIDED HEREUNDER OR PURSUANT TO ANY STATEMENT OF WORK, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED. FURTHERMORE, EXCEPT AS SET FORTH IN SECTION 6.1, CONSULTANT DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY GUARANTEE ABOUT THE SPECIFIC OUTCOMES OF THE SERVICES OR THE USE OF THE CONSULTANT DELIVERABLES. COMPANY, ON BEHALF OF ITSELF AND ITS AFFILIATES, ACKNOWLEDGES AND AGREES THAT CONSULTANT, IN ITS PERFORMANCE OF SERVICES, IS NOT ACTING, IN ANY CAPACITY, AS AN ATTORNEY OR OFFERING LEGAL ADVICE TO COMPANY AND THAT ALL SERVICES PERFORMED BY CONSULTANT ARE BASED SOLELY ON CONSULTANT’S GENERAL EXPERIENCE IN THE INDUSTRY.
- Independent Contractor Relationship; Tax Treatment.
7.1 Consultant is an independent contractor and not an employee of the Client. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. The manner and means by which Consultant chooses to complete the consulting services are in Consultant’s sole discretion and control. Consultant is not authorized to make any representation, contract, or commitment on behalf of Client or incur any liabilities or obligations of any kind in the name of or on behalf of the Client. Any persons employed by or subcontracting with Consultant to perform any part of Consultant’s obligations hereunder shall be under the sole control and direction of Firm. The Client shall have no right or authority with respect to the selection, control, direction, or compensation of such persons.
7.2 Consultant and Client agree that Client will treat Consultant as an independent contractor for purposes of all tax laws (local, state and federal) and file forms consistent with that status. Consultant will be solely responsible to pay any and all local, state, and/or federal income, social security and unemployment taxes for Consultant and its employees. Client will not withhold any taxes or prepare W-2 Forms for Firm, but will provide Consultant with a Form 1099, if required by law. No part of Consultant’s compensation will be subject to withholding by Client for the payment of any social security, federal, state or any other employee payroll taxes.
- The term of this Agreement shall commence as of the Effective Date and shall continue until the later of (i) the first anniversary of the Effective Date, or (ii) the expiration or earlier termination of any Statement of Work for which Services to be performed thereunder remain outstanding.
- Default & Termination. This Agreement may be terminated by either Party (the “Non-Defaulting Party”) if any of the following events occur by or with respect to the other Party (the “Defaulting Party”): (i) the Defaulting Party commits a material breach of any of its obligations hereunder and fails to cure such breach within the time period set forth in Section 8.3 hereof; or (ii) any insolvency or filing of a petition in bankruptcy by or against the Defaulting Party, any appointment of a receiver for the Defaulting Party, or any assignment for the benefit of the Defaulting Party’s creditors.
- Cure and Remedies. In the event either Party commits a material breach of any of its obligations hereunder, the Non-Defaulting Party will so notify the Defaulting Party in writing (and, in such notice, indicate the nature of the breach and the assertion of the Non-Defaulting Party’s right to terminate). The Defaulting Party will thereafter have thirty (30) days (or ten(10) days in the case of payment of monies due) following receipt of such notice to cure such breach or, if such breach cannot be reasonably cured in thirty (30) days, such longer period of time as may be reasonably necessary to effect such cure if the Defaulting Party furnishes to the Non-Defaulting Party within such thirty (30) day period a plan demonstrating that it is capable of curing the breach and thereafter diligently proceeds to prosecute such plan to completion. If such breach remains uncured after such a cure period, the Non-Defaulting Party may terminate this Agreement pursuant to Section 8.2 effective immediately upon delivery of further notice to such effect. Notwithstanding the foregoing, in the event Client fails to make payment of any monies due under this Agreement within ten (10) days following receipt of notice as provided above, the Consultant shall have the option, upon written notice of the same, to suspend the performance of any Services hereunder until such time as Consultant receives payment in full therefore. Consultant’s option to suspend the performance of Services shall not otherwise affect Consultant’s rights to thereafter terminate this Agreement in accordance with this Section 8.
- Effetto della risoluzione.
- In the event Consultant terminates this Agreement pursuant to this Section 8,Consultant will be entitled to payment for all Services rendered through the date of termination (including for work-in-progress), those costs reasonably incurred in anticipation of performance of the Services to the extent they cannot reasonably be eliminated, any other reasonable termination costs Consultant incurs in connection with canceling any secondary contracts it undertook in anticipation of performance of the Services and any other actual damages suffered by Firm.
- In the event Client terminates this Agreement pursuant to this Section 8, Consultant will be entitled to payment for all accepted Consultant Deliverables and any other Services rendered through the date of termination, including any other reimbursable expenses incurred by Consultant through the date of termination. In addition, Consultant may recover its actual damages incurred through the date of termination. Upon payment, Client shall be entitled to retain all Consultant Deliverables delivered to or for the benefit of Client pursuant to this Agreement through the date of termination, whether in electronic or other forms, subject in all cases to Section 4.3 and excluding any and all Intellectual Property, Work Product, and Confidential Information of Consultant not subject to the license granted under Section 4.3.
- CONFESSION OF JUDGMENT. CLIENT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY-AT-LAW TO APPEAR FOR CLIENT IN ANY ACTION UPON OR IN CONNECTION WITH THIS AGREEMENT AT ANY TIME AFTER THE EVENT OF CONSULTANT TERMINATING THIS AGREEMENT PURSUANT TO SECTION 8, AS HEREIN PROVIDED, IN ANY COURT IN OR OF THE STATE OF ILLINOIS OR ELSEWHERE WITH JURISDICTION, AND WAIVE THE ISSUANCE AND SERVICE OF PROCESS WITH RESPECT THERETO, AND IRREVOCABLY AUTHORIZES AND EMPOWERS ANY SUCH ATTORNEY-AT-LAW TO CONFESS JUDGMENT IN FAVOR OF CONSULTANT AGAINST CLIENT IN THE AMOUNT DUE THEREON OR HEREON, PLUS INTEREST AS HEREIN PROVIDED, AND ALL COSTS OF COLLECTION, AND WAIVE AND RELEASE ALL ERRORS IN ANY SAID PROCEEDINGS AND JUDGMENTS AND ALL RIGHTS OF APPEAL FROM THE JUDGMENT RENDERED. THE CLIENT AGREES AND CONSENTS THAT THE ATTORNEY CONFESSING JUDGMENT ON BEHALF OF THE CLIENT HEREUNDER MAY ALSO BE COUNSEL TO THE CONSULTANT AND/OR THE CONSULTANT’S AFFILIATES, AND THE CLIENT HEREBY FURTHER WAIVES ANY CONFLICTS OF INTEREST WHICH MIGHT OTHERWISE ARISE AND CONSENTS TO THE CONSULTANT PAYING SUCH CONFESSING ATTORNEY A LEGAL FEE OR ALLOWING SUCH ATTORNEYS’ FEES TO BE PAID FROM PROCEEDS OF COLLECTION OF THIS AGREEMENT
- The rights and obligations contained in Sections 3-6, 8 and 9-19 will survive any termination or expiration of this Agreement. Unless expressly identified otherwise in this Agreement or a subsequent written agreement, the confidentiality and notice obligations contained in Section 5 will apply in perpetuity to the Parties and their respective owners, representatives, successors, and permitted assigns.
- Consultant shall indemnify, defend, and hold harmless the Client and its officers, directors, agents, owners, and employees, from and against any and all liability, claims, demands, damages, losses, causes of actions, costs and expenses, including attorney fees and costs, arising out of or in connection with (a) the operation of Consultant’s business, (b) Consultant’s use of the Consultant Deliverables, except for any claim by the Client that the Firm Deliverables infringes the intellectual property rights of a third party, (c) the negligence or misconduct of Firm, (d) any claims brought or liabilities imposed against Client by Consultant or any of its employees or by any other party (including private parties, governmental bodies and courts), for claims related to worker’s compensation, wage and hour laws, employment taxes, and benefits, and those matters relating to Consultant’s status as an independent contractor or the status of its personnel, or (e) any breach of this Agreement by Firm. Subject to Section 10, indemnification shall be for any and all losses and damages, including costs and attorneys’ fees. Notwithstanding the foregoing, the foregoing shall not apply with respect to any such liability, claims, demands, damages, losses, causes of action, costs and expenses to the extent caused by the gross negligence or willful misconduct of Client.
- Client shall indemnify, defend, and hold harmless Firm, and its officers, directors, agents, owners, and employees, from and against any and all liability, claims, demands, damages, losses, causes of actions, costs and expenses, including attorney fees and costs, arising out of or in connection with (a) the operation of Client’s business, (b) Client’s use of the Consultant Deliverables, except for any claim by the Client that the Consultant Deliverables infringes the intellectual property rights of a third party, (c) the negligence or misconduct of Client, (d) any breach of this Agreement by Client. Notwithstanding the foregoing, the foregoing shall not apply with respect to any such liability, claims, demands, damages, losses, causes of action, costs and expenses to the extent caused by the gross negligence or willful misconduct of Firm.
- A party seeking indemnification under this Section 9 must give the indemnifying party prompt written notice of the applicable claim or allegation and provide the indemnifying party with reasonable assistance in the defense or settlement thereof. The indemnifying party will have the right to control the defense and settlement of any allegation or claim for which it is required to indemnify the other party, provided that the indemnifying party will not agree to a settlement that (i) imposes un-indemnified liabilities or fault on the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, if any claim is brought by a governmental authority claiming a finding or admission of a violation of any law, then the indemnified party shall be entitled to contest, defend, control, compromise and settle such claim.
- Limitation of Liability; Waiver of Damages. In no event shall the liability of Consultant arising out of or in connection with this Agreement or the Services exceed, in the aggregate, the total fees paid by Client to Consultant in the previous twelve (12) months for the particular Services or Consultant Deliverable with respect to which such liability relates (or in the case of any liability not related to a particular portion of the Services, the total fees paid by Client to Consultant under the applicable Statement of Work in the previous twelve (12) months), whether such liability is based on an action in contract, warranty, strict liability or tort or otherwise. Consultant shall not be liable to Client or any Affiliate, or their respective owners, directors, officers, employees, agents or representatives, for any special, indirect, incidental, consequential, exemplary or punitive damages arising under or in connection with this Agreement, except to the extent paid to a third party (and not one of the aforementioned parties), even if Consultant has been advised of the possibility of such damages.
- During the term of this Agreement and for a period of one (1) year thereafter (“Restricted Period”), Client will not, and will cause their Affiliates not to (a)directly or indirectly induce or attempt to induce or otherwise counsel, advise, ask or encourage any individual who is at the time, or was at any time within the preceding six (6)months, employed by the Consultant or any of its Affiliates, to leave the employ of Consultant or its Affiliates or to accept employment with another employer or as an independent contractor or (b)offer employment to or retain the services of such individual, other than with the consent of Consultant. Section11.1 does not apply to an employee who becomes employed by the Client or an Affiliate of a Party as a result of a response by that employee to a public advertisement or normal recruitment procedures and not as a result of being approached or targeted by Client or an Affiliate thereof.
- If Client desires to offer employment to any employee of Consultant during the Restricted Period, the Client shall make such a request to Consultant in writing and shall offer to compensate Consultant no less than 30% of the first-year compensation package (including base and target bonus) for any such employee. Consultant shall then have a period of thirty (30) days to respond to Client to accept or decline such offers. In the event that Consultant does not respond to Client within such a thirty (30) day period, Consultant will be deemed to have declined such an offer.
- Successors and Assigns. Other than as permitted herein, Client shall not assign this Agreement or delegate any of its rights or obligations, in whole or in part, under this Agreement or any Statement of Work, by operation of law or otherwise, without the prior written consent of Consultant (which consent shall not be unreasonably withheld). As a condition to accepting any such assignment or delegation, Consultant may require a potential assignee and any Affiliates thereof to execute a nondisclosure agreement and/or a signature page to this Agreement. A valid assignee of Client authorized hereunder, including a valid assignee of a Statement of Work, shall be bound by the terms of this Agreement and shall have all of the rights and obligations of Client set forth in this Agreement; provided, that in no event shall the Consultant’s consent be construed as discharging or releasing Client in any way from the performance of its obligations under this Agreement or any other Statement(s) of Work to which Client is bound. Any attempted assignment in violation of this Section 12 shall be null and void and of no force or effect. Consultant may assign this Agreement without the consent of the Client in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each Party and the irrespective successors and permitted assigns.
- All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when personally delivered, or if sent by the United States certified mail, return receipt requested, postage prepaid, shall be deemed duly given on delivery by United States Postal Service, or if sent by electronic mail or receipted overnight, courier services shall be deemed duly given on the business day received if received prior to 5:00 pm local time or on the following business day if received after 5:00 pm local time or on a non-business day, addressed to the respective Parties hereto as follows:
To Firm: Collateral Base, LLC
Attn: Thomas Howard
316 SW Washington St. Suite 1A
Peoria, Illinois 61602 USA
E-mail: [email protected]
To Client: Client Name: _______________
Street Address: _______________
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Illinois, exclusive of its choice of law provisions. The Parties hereby irrevocably submit to the exclusive jurisdiction of any federal or state court located within the State of Illinois over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action, or proceeding related thereto may be heard and determined in such courts. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of a venue of any such dispute brought in such court or any defense of an inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may been forced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Each of the Parties hereby consents to process being served by any Party to this Agreement in any suit, action or proceeding by delivery of a copy thereof in accordance with the provisions of Section 13.
- Alternative Dispute Resolution. In the event a dispute shall arise between the Parties to this Agreement, except for non-payment by Client or misuse of the License granted in Section 4.3(b), the Parties agree to negotiate in good faith to resolve such dispute. In the event that negotiation fails, the Parties agree to participate in mediation in good faith. The parties agree to share equally in the costs of the mediation. The mediation will be conducted in a location mutually agreeable and by a mutually selected and agreeable mediator or arbitrator by the Parties, provided that if the Parties cannot agree, the confidential, binding, third party arbitration or mediation shall be conducted in Peoria, Illinois.
- WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO ATRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OFTHIS WAIVER, (III)EACH PARTY MAKES THIS WAIVER VOLUNTARILY,AND (IV) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
- Whenever possible, each provision of this Agreement and any Statement of Work shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement or any Statement of Work is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or Statement of Work, as the case may be..
- Amendment; Waiver. No modification, revision, supplementation, abrogation, termination, extension, waiver, or amendment to or of this Agreement, or any other agreement between the Parties, (including any attachments, exhibits or Statement(s) of Work) or any of its provisions, may be made, and any attempts shall not be binding, unless in writing and duly executed by the Parties (or by the waiving Party in the event of a waiver). A waiver by a Party of the performance of any covenant, agreement, obligation, condition, representation or warranty shall not be construed as a waiver of any other covenant, agreement, obligation, condition, representation or warranty, nor shall a delay on the part of any Party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof. A waiver by any Party of the performance of any act shall not constitute a waiver of the performance of any other actor an identical act required to be performed at a later time.
- Injunctive Relief for Breach. Notwithstanding anything to the contrary herein, but subject to Section 10, because each Party may have access to and become acquainted with the Confidential Information, Work Product, and employees of the other and because such Party may not have an adequate remedy at law in the event of a breach of this Agreement, each Party shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond, and without prejudice to any other rights and remedies that such Party may have for a breach of this Agreement.
- Attorney’s Fees. The prevailing Party in any litigation relating to the subject matter of this Agreement shall have the right to collect from the other Party its reasonable costs and necessary disbursements and attorney’s fees incurred in enforcing this Agreement. The prevailing Party shall pay to the other Party on demand any and all expenses, including, but not limited to, collection costs, all attorneys’ fees, and expenses, and all other expenses which may be expended by the prevailing Party to collect or enforce payment of any fees and costs due under this Agreement.
- Intero accordo. This Agreement and the Statement(s) of Work entered into in connection herewith constitute the entire understanding of the Parties relating to the subject matter and supersedes any previous oral or written communications, representations, understanding, or agreement between the Parties concerning such subject matter.
- Titoli. The headings of sections herein are included solely for the convenience of reference and shall not control the meaning or interpretation of any provision of this Agreement.
- Rules of Construction. Each of the Parties hereby agrees that it has carefully reviewed this Agreement and has had ample opportunity to seek legal advice and input. Consequently, the rule of construction that ambiguities and unclear phrases are construed against the drafting Party or in the light most favorable to the non-drafting Party shall not apply. Any matter set forth in a signed Statement of Work describing in reasonable detail the actions to be taken by Consultant will be deemed to have been approved by the Client in writing for all purposes of this Agreement.
In Witness Whereof, the parties have executed this Agreement effective as of the date first written above.