CONSULTING / VENDOR SERVICES AGREEMENT
Agreement No.: ________
This Agreement by and between:
(circle one): proprietorship / corporation / partnership
ARTICLE 1 - Scope of Agreement
1. During the term of this Agreement, CLIENT or CLIENT’s affiliated companies may acquire services from RiskINFO by means of a Work Authorization subject to the terms and conditions of this Agreement.
ARTICLE 2 - Work Authorization
2.1 Each Work Authorization shall be issued in accordance with Article 3 of this Agreement. Each Work Authorization shall contain the following information:
a) a description of the services to be performed (including deliverables, if any);
b) the period of performance:
c) the place of performance:
d) the performance and delivery schedule:
e) the Work Authorization price, including billable labor rates and expenses:
f) for Time and Material Work Authorizations, labor categories and associated levels of effort, and a funding limitation in accordance with Article 4 of this Agreement.
g) for Firm Fixed Price Work Authorizations, the maximum payment obligation of CLIENT;
h) description of expenses to be reimbursed by CLIENT incurred by RiskINFO in
the performance of the Work Authorization services
i) such additional terms and conditions as may be agreed to by the parities.
2.2 All Work Authorizations shall be signed by a duly authorized representative of RiskINFO, and shall be subject to acceptance by an authorized representative of CLIENT. Nothing contained in this Agreement shall obligate CLIENT to accept any Work Authorization or pay for services provided or expenses incurred by RiskINFO in the absence of CLIENT’s prior acceptance of a Work Authorization in accordance with this paragraph.
2.3 All Work Authorization shall be subject to the terms and conditions of this Agreement. This Agreement and each individual Work Authorization comprise a contract between RiskINFO and CLIENT. In the event of a conflict between the terms of this Agreement and the terms of a Work Authorization, the terms of the Work Authorization shall govern.
2.4 The terms and conditions of any past document of RiskINFO, that are additional to or different from the terms or conditions of this Agreement and the relevant Work Authorization, shall be void.
ARTICLE 3 - Initiation of Work Authorizations
3. The following procedure shall be followed to initiate a Work Authorization under this Agreement:
a) RiskINFO shall prepare a Work Authorization in duplicate and submit the form together with any attachments to CLIENT and
b) CLIENT shall execute the Work Authorizations in the space provided and return one (1) fully executed copy to RiskINFO.
ARTICLE 4 - Work Authorization Funding Limitations
4.1 Time and Material
CLIENT shall pay RiskINFO only in accordance with the billable rates and expenses set forth in the Work Authorization, and shall not be liable for payments in excess of the funding limitations set forth in the Work Authorization. RiskINFO shall not be obligated to provide, and CLIENT shall not be obligated to pay for services beyond the period of performance in excess of the total funding limitation specified in a Time and Materials Work Authorization.
4.2 Firm Fixed Price
CLIENT shall not be obligated to pay RiskINFO for costs incurred by RiskINFO in excess of the Firm Fixed Price set forth in the Firm Fixed Price Work Authorization. RiskINFO shall be solely responsible for costs incurred by RiskINFO in excess of the Firm Fixed Price.
ARTICLE 5 - Changes
5. CLIENT or RiskINFO may request changes in the scope of work or deliverables specified in a Work Authorization. Upon agreement between the parties as to the change and associated price, CLIENT shall initiate an amendment to the existing Work Authorization in accordance with Article 3 of this Agreement. RiskINFO shall be solely responsible for any changed services performed in the absence of a duly executed amendment to the Work Authorization.
ARTICLE 6 - Terms and Termination
6.1 The term of this Agreement shall commence on the date this Agreement is accepted by CLIENT, and shall continue until terminated by either party upon written notice received by the other party not less than thirty (30) days prior to the intended date of termination. Unless termination is for reasons of material breach, termination of this Agreement by either party shall not be effective, with respect to any Work Authorization in process, until such Work Authorization expire or are expressly terminated in writing by CLIENT. CLIENT reserves the right to terminate any Work Authorization upon written notice received by the RiskINFO not less than five (5) working days prior to the intended date of termination.
6.2 In addition to any other lawful remedy, either party may terminate this Agreement or any Work Authorization in the event of breach of a material term of this Agreement or any Work Authorization by the other party, which breach is not cured within thirty (30) days from receipt of written notice. The foregoing thirty (30) day cure period shall not apply in the event of breach of the Confidential and Proprietary Information, Rights in Data, Interests, or Title provision(s) contained in this Agreement or in a Work Authorization, which event shall entitle the non-breaching party to immediately terminate this Agreement and all Work Authorizations upon written notice to the breaching party.
6.3 Articles 9, 10, 11, 12, 13, 14, 15, 20 and 21 shall survive termination of this Agreement.
6.4 On the effective date of termination of a Work Authorization, RiskINFO shall return to CLIENT all CLIENT Confidential and Proprietary Information for which CLIENT has not granted to RiskINFO a separate, specific license for continued use, and CLIENT shall return to RiskINFO all RiskINFO Confidential and Proprietary Information for which RiskINFO has not granted to CLIENT a separate, specific license for continued use.
ARTICLE 7 - Taxes
7. In the event any taxes based upon this Agreement or any Work Authorization placed pursuant to this Agreement, other than corporate franchise taxes and taxes based on RiskINFO’s net income, are payable or paid by RiskINFO, such amount shall be added to the charges due RiskINFO and shall be paid by CLIENT to RiskINFO. However, CLIENT shall not be required to pay those taxes from which CLIENT is legally exempt.
ARTICLE 8 - Retainers, Invoices and Payment
8. Retainers are required on all Work Authorizations unless otherwise state in the Work Authorization. The Retainer is to be paid in an amount stated in the Work Authorization. Retainers are to be paid at time of issuance of Work Authorization(s). Time and Material Authorization, RiskINFO shall submit invoices semi-monthly (on the first and fifteenth of each month) for services rendered during the preceding period, unless otherwise stated in the Work Authorization. For Firm Fixed Price Work Authorizations, RiskINFO shall submit invoices in accordance with the payment schedule contained in the Work Authorization. Each invoice shall reference the applicable Work Authorization, and shall include supporting detail and documentation for all charges. All amounts are due and payable in U.S. dollars within ten calendar days from delivery to CLIENT of a proper invoice.
ARTICLE 9 - Audit
9. RiskINFO shall maintain, for a period of three (3) years from the date of the last invoice under each Work Authorization, time cards and expense reports provided by each employee or independent consultant performing services under this Agreement, and any other accounting records pertinent to the charges paid by CLIENT under Work Authorizations pursuant to this Agreement. CLIENT or CLIENT’s designated representative shall have the right to examine and audit, at its own expense, such time cards, expense reports and records, during normal business hours, upon thirty (30) business days notice to RiskINFO.
ARTICLE 10 - Rights in Data and Inventions
10. All services and work products performed pursuant to this Agreement, including but not limited to, computer programs, inventions, material able to be patented, trademarked or copyrighted, reports, documentation, designs, flow charts, and drawings, and any manifestations thereof ("Work Proceeds"), shall be deemed works made for hire as defined by the U.S. Copyright Act, Title 17, U.S. C. 101. CLIENT, upon payment of all amounts owed for Work Proceeds described in the Work Authorization, shall own full right, title and interest to said Work Proceeds, and may use such Work Proceeds for its own use with no obligation or accounting to RiskINFO except as agreed to in the Work Authorization.
Any RiskINFO-developed components, products, or other licensible property included in the work product performed pursuant to this Agreement shall be separately identified in the Proposal by RiskINFO. CLIENT shall have the right to use such components or products, subject to the Licensing Terms attendant to such products.
ARTICLE 11 - Confidential and Proprietary Information
11.1 The parties agree that during the terms of this Agreement, it may be necessary for the parties to exchange Confidential and Proprietary Information during the performance of a Work Authorization.
11.2 "Confidential Information" as used herein shall mean all technical and business information identified by the disclosing party as confidential prior to disclosure, except such information which:
a) is in the receiving party’s possession, without an obligation of confidentiality with respect thereto, prior to disclosure under this Agreement;
b) is or subsequently becomes part of the public domain through no act or omission of the receiving party;
c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto;
d) is disclosed to the receiving party by a third party having an obligation of confidentiality thereto, provided the receiving party did not have notice that such information was wrongfully disclosed by such third party; or
e) is independently developed by the receiving party.
The parties agree that CLIENT and RiskINFO client data and services constitute Confidential Information of CLIENT and RiskINFO respectively for the purposes of this Agreement. The disclosing party reserves all rights and interests in Confidential Information.
11.3 "Proprietary Information" as referred to herein means the disclosing party’s software products, related documentation and training materials. The disclosing party reserves all rights and interests in Proprietary Information. The receiving party acknowledges that software products and related documentation constitute proprietary information, which include copyrighted and trade secret information of the disclosing party.
11.4 In consideration for the disclosure of Confidential or Proprietary Information by the disclosing party, the receiving party shall use reasonable means not less than those used to protect its own Confidential or Proprietary Information of a similar nature and value, to:
a) restrict use of, and access to, Confidential and Proprietary Information to employees and any other duly authorized agents need-to-know basis only;
b) take appropriate action, by instruction, agreement, or otherwise, to advise those employees who receive Confidential or Proprietary Information of its confidential and proprietary nature;
c) prevent disclosure or reproduction of, or access to, Confidential or Proprietary Information to, or by, any third party;
d) use Confidential or Proprietary Information only in accordance with the relevant Work Authorization unless permission has first been obtained from the disclosing party for such other use; and
e) reproduce the other party’s Confidential or Proprietary Information only as necessary for the receiving party’s authorized use in accordance with the relevant Work Authorization.
11.5 The Receiving party shall return all Confidential or Proprietary Information, including any sole or partial copies thereof; immediately upon written demand by the disclosing party.
11.6 Neither party shall have any obligation with respect to Confidential Information after the lapse of one (1) year from the date such Confidential Information is returned to the disclosing party.
ARTICLE 12 - Indemnification
12. CLIENT agrees to indemnify and hold harmless RiskINFO, and its subcontractors, from and against all claims, damages, expenses or liabilities to third parties resulting from RiskINFO’s use or distribution of information, representations, reports or data which has been approved in writing or furnished by CLIENT, to the extent that such material is used or distributed by RiskINFO and such claim or loss is not due to RiskINFO’s gross negligence. RiskINFO will be similarly indemnified by CLIENT against any claims made by third parties arising from claims unrelated to the services provided by RiskINFO under this Agreement (e.g., frivolous or attached third-party suits.) CLIENT must be informed in advance of any claim before legal fees or other costs are incurred, and will have the option to provide a defense to the claim or approve the action that RiskINFO proposes.
ARTICLE 13 - Force Majeure
13. Except for failure to perform the parties’ respective obligations in accordance with Articles 9, 10, 11, 12, 13, 14, 15, and 20, in the event either party is delayed or prevented from performing this Agreement due to any cause beyond its reasonable control, including but not limited to, strike, labor or civil unrest or dispute, embargo, blockade, work stoppage, delay, protest or acts of God, such delay shall be excused during the continuance of such delay, and the period of performance shall be extended to such extent as may be reasonable to perform after the cause of delay has been removed. In the event any such delay continued for a period of more than thirty (30) days, either party may terminate any Work Authorization under which performance is delayed upon written notice to the other party. In the event of any such termination, CLIENT shall pay RiskINFO for work performed through the effective date of termination.
ARTICLE 14 - Restriction on Employment
14. Throughout the term of this Agreement and for six (6) months after the expiration or termination of the last Work Authorization accepted by CLIENT pursuant to it, neither CLIENT nor RiskINFO will, without the prior written consent of the other party, solicit for hire or retention as an independent contractor, a person who, as an employee of the other party, performed work under any Work Authorization pursuant to this Agreement. For the purposes of this provision, "solicit" shall not be deemed to include advertisement in newspapers or trade publications.
ARTICLE 15 - Non-Competition
15. CLIENT and RiskINFO recognize that each has independently developed relationships with the CLIENT operations management customer base. CLIENT and RiskINFO recognizes that each regularly promotes its CLIENT related services through its own internally developed and maintained proprietary customer list. During the period of performance of a Work Authorization, RiskINFO will not directly or indirectly compete with CLIENT for any work which was performed under a Work Authorization or which is directly related to any Work Authorization executed by CLIENT and RiskINFO pursuant to this Agreement.
ARTICLE 16 - Clauses for Federal Government Contracts
16. If a Work Authorization is for services which shall be used for or in connection with the performance by CLIENT of any government prime contract or subcontract, special provisions shall apply to such Work Authorization as may be attached to and incorporated into the respective Work Authorization.
ARTICLE 17 - Inspection and Acceptance - Customer Satisfaction Guarantee
17. All services and deliverables under a Work Authorization shall be subject to inspection and acceptance by CLIENT within five (5) business days of delivery by RiskINFO. Any inspection by CLIENT shall be performed in such a manner as not to unduly delay the work. CLIENT will notify RiskINFO, in writing, of any non-compliance with the specifications of the Work Authorization, and RiskINFO shall have ten (10) business days to correct the reported non-compliance and to resubmit the item to CLIENT.
ARTICLE 18 - Subcontracts and Assignments
18. Neither RiskINFO and CLIENT may assign its rights or delegate its duties described in this Agreement without prior written approval. RiskINFO and CLIENT shall remain responsible for the performance of delegated duties.
ARTICLE 19 - Independent Contractor
19. CLIENT and RiskINFO each agree that the other party is, and shall remain, an independent contractor. Nothing is this Agreement shall be construed to create or imply that either party is an employee of the other party. At no time shall either party make any commitments or incur any expenses for, or in the name of, the other party without the prior approval of the other party and RiskINFO’s personnel or agents are not, nor shall they be deemed to be at any time during the term of the Agreement, employees of CLIENT. RiskINFO will be solely responsible for payment of all compensation owed to RiskINFO personnel and agents, as well as for payment of employment related taxes and worker’s compensation insurance.
ARTICLE 20 - Warranties
20. RiskINFO warrants that:
a) its consulting services will be of the professional quality and will conform to generally accepted consulting standards;
b) its personnel shall be competent and qualified to perform the tasks to which they are assigned; and
c) will make best effort to perform all duties specified in Work Authorizations
ARTICLE 21 - Limitation of Liability
21.1 CLIENT’s liability for payment and direct damages, regardless of the form of action, shall not exceed the funding limitation for the applicable services specified in the Work Authorization which gave rise to the claim.
21.2 The limitations of liability stated in Paragraph 21.1 shall not apply to personal injury or damage to CLIENT or RiskINFO’s real or tangible personal property directly caused by CLIENT’s or RiskINFO’s negligence. "Tangible personal property" includes computer software, computer data or data files.
21.3 IN NO EVENT SHALL CLIENT OR RiskINFO BE RESPONSIBLE FOR ANY LOST PROFITS, LOST SAVINGS, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES.
ARTICLE 22 - Governing Law
22. This Agreement shall be governed and construed in accordance with the laws of the State of California.
ARTICLE 23 - Venue
23. The parties agree that the most appropriate forum for the resolution of any disputes arising under this Agreement is binding arbitration.
ARTICLE 24 - Notices
CLIENT: (name of organization) RiskINFO: Name: Allen Monroe Position: President Address: 234 West Baltimore Avenue Larkspur, CA 94939
ARTICLE 25 - Compliance With Laws and Plant Rules
25. Each party agrees to comply with the provisions of applicable Federal, State, and Count, and local laws, ordinances, regulation and codes in the performance of its duties under this Agreement, including the Fair Labor Standards Act and the Occupational Safety and Health Act. While on the other party’s premises, each shall comply with the other party’s then-current reasonable plant rules and regulations.
ARTICLE 26 - General
26.1 RiskINFO agrees not to use, in advertising, publicity or otherwise, any trademark of CLIENT without prior written permission.
26.2 This Agreement may not be waived, altered, or modified except by a written agreement signed by CLIENT and RiskINFO and accepted by an authorized representative of CLIENT and RiskINFO.
26. No delay or failure of either party in exercising any right and no partial or single exercise of any right shall be deemed to constitute a waiver of that right or any other rights under this Agreement. No action arising out of this Agreement, regardless of form, may be brought by either party more than one year after the cause of action has accrued.
26.4 The captions used in this Agreement are for convenience only and are not intended to have nay legal effect.
26.5 If any provision, or portion thereof, of this Agreement is invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted.
The parties have read this Agreement and agree to be bound by all its terms. The parties agree that there are no conditions precedent. The parties further agree that this Agreement, Schedule I hereto and the Work Authorization(s) constitute the complete and exclusive statement of the agreement between them and supersede all proposals, oral or written, all other communications between them relating to the terms and conditions of this Agreement and the Work Authorization(s).
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