Master Consulting Agreement
This Master Consulting Agreement (the “Agreement”) is made and entered on the date of the signed contract(the “Effective Date”) by and between Grace Solutions, LLC, a limited liability company organized and existing under the laws of the State of Indiana, hereinafter referred to as “Consultant,” whose address is 1 Lancer Way, Winona Lake, IN, 46590, and Client, whose address is listed on the signed contact, hereinafter referred to as “Customer,” in consideration of the rights and obligations of each of them hereinafter expressed.
WHEREAS, Consultant is in the business of providing certain business marketing and consulting services;
WHEREAS, Customer desires to engage Consultant, and Consultant desires to be engaged by Customer, to render such services upon the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises set forth below and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1.1 Description of Services. Consultant will perform the business consulting services specified in statements of work (each, a “Statement of Work”) to this Agreement (the “Services”). Each Statement of Work is hereby incorporated into this Agreement by this reference. A Statement of Work will be executed by the parties concurrently with the execution of this Agreement and is attached hereto as Statement of Work No. 1. Any additional Statement of Work shall be initially generated by Consultant and shall become effective when signed by both parties.
1.2 Statements of Work. Each Statement of Work should include the following: (a) the services, functions, equipment, software, facilities, personnel and other materials, documentation and resources to be provided by each party; (b) the requirements and specifications for any work product to be developed by Consultant and delivered to Customer (the “Deliverables”); (c) the estimated delivery dates for the Deliverables; and (d) the fees payable to Consultant for the Services and Deliverables along with a fee payment schedule.
1.3 Change Procedure. Unless otherwise stated in an applicable Statement of Work, changes to the parties’ respective obligations under a Statement of Work shall be made as set forth in this Section 1.3. Customer may request changes to a Statement of Work by providing Consultant with a written request for changes (a “Change Request”) that specifies the desired change with at least the same degree of specificity as that contained in the original Statement of Work. Following Consultant’s receipt of a Change Request, Consultant shall submit to Customer a written response which outlines the tasks to be performed by each party, schedule and cost changes, and any other items applicable to the Change Request (a “Change Response”). Consultant will charge Customer on a time and, if applicable, material basis, at Consultant’s then-current time and, if applicable, material rates, for the time spent by Consultant in analyzing Customer’s Change Request and preparing a Change Response. If, within five (5) days after Consultant’s delivery of such Change Response to Customer, Customer provides Consultant with written notice of acceptance of the Change Response, the Change Response will amend and become a part of the applicable Statement of Work. In the event of a conflict among the terms and conditions of the Change Response and the applicable Statement of Work, the terms and conditions of the Change Response shall govern and control. If Customer fails to provide Consultant with written notice of acceptance of the Change Response within said five (5) day period, the Change Response will be deemed rejected by Customer and the original Statement of Work shall remain in full force and effect.
2. Payment
2.1 Compensation. In consideration for the Services, Customer shall pay to Consultant fees based on the rates described in the applicable Statement(s) of Work, along with any material expenses incurred. Consultant shall invoice Customer monthly for Services. All such invoiced amounts become due and payable to Consultant upon Client’s receipt of such invoice. Amounts that are not paid within thirty (30) days following Customer’s receipt of such invoice will incur a late fee of one and one-half percent (1.5%) per month or the maximum allowed by law, whichever is less. Customer shall pay any amounts incurred by Consultant in the collection of past-due amounts owed, including, but not limited to, reasonable attorneys’ fees and costs.
2.2 Expenses. Customer shall pay Consultant’s expenses, as determined by Consultant in its reasonable business judgment, for performing the Services under this Agreement, including but not limited to travel and lodging expenses, long distance calls, and costs of materials and supplies. All such expenses shall be subject to a ten percent (10%) administrative surcharge. Consultant shall invoice Customer [weekly/monthly] for Services. All such invoiced amounts become due and payable to Consultant upon Client’s receipt of such invoice. Amounts that are not paid within thirty (30) days following Customer’s receipt of such invoice will incur a late fee of one and one-half percent (1.5%) per month or the maximum allowed by law, whichever is less. Customer shall pay any amounts incurred by Consultant in the collection of past-due amounts owed, including, but not limited to, reasonable attorneys’ fees and costs.
3. Confidentiality
3.1 A party disclosing Confidential Information shall herein be referred to as the “Disclosing Party,” and a party receiving Confidential Information hereunder shall herein be referred to as the “Receiving Party.”
3.2 Confidential Information. “Confidential Information” shall mean, without limitation, (i) any idea, proposal, plan, information, procedure, technique, formula, technology or method of operation, any written or oral information of a proprietary nature, and any intellectual property owned or licensed by a Disclosing Party or relating to a Disclosing Party’s or any of its principals’ or affiliates’ business, projects, operations, finances, activities or affairs, whether of a technical nature or not (including trade secrets, know-how, processes, and other technical or business information), and any proposed change thereto; (ii) any other information disclosed by a Disclosing Party and designated by a Disclosing Party as confidential; and (iii) the Deliverables (until paid for by Customer as provided hereunder), Consultant’s Information and Customer Content. By way of illustration, but not limitation, Confidential Information includes, without limitation, information regarding (i) all of the computer software and technologies, systems, structures, architectures, processes, formulae, compositions, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods, and information and databases developed, acquired, owned, produced or practiced at any time by a Disclosing Party or any affiliate thereof, software programs and documentation licensed by third parties to a Disclosing Party, and any other similar information or material; (ii) customer lists, telemarketing lists, vendor lists, employee personnel information and policies and procedures; (iii) a Disclosing Party ‘s products and services; (iv) business or financial information directly or indirectly related to a Disclosing Party’s companies and investments; and (v) other processes and procedures employed by a Disclosing Party.
3.3 Confidential Information shall not include information: (i) in the public domain (other than as a result of a breach of this Agreement); (ii) in a Disclosing Party’s possession prior to its receipt from Receiving Party pursuant to this Agreement; (iii) independently developed by a Receiving Party or known through a party other than Disclosing Party, which party has no duty of confidentiality to Disclosing Party, as demonstrated by written record; or (iv) disclosed pursuant to applicable law or regulation or by operation of law, provided that the Receiving Party may disclose only such information as is legally required, and provided further that the Receiving Party shall provide reasonable notice to the Disclosing Party of such requirement and a reasonable opportunity to object to such disclosure.
3.4 Obligations. Receiving Party agrees to hold all Confidential Information in strict confidence and shall not, without the express prior written permission of Disclosing Party: (i) disclose any Confidential Information to third parties or (ii) use the Confidential Information for any purpose other than to perform its obligations under this Agreement or for the purpose expressly set forth in the applicable Statement of Work. Without limiting the generality of the foregoing, Receiving Party shall be permitted to disclose Confidential Information only to its officers, employees and consultants who have an absolute need to know such Confidential Information and who are informed of and agree to be bound by the confidentiality obligations set forth herein; provided that Receiving Party will be liable for breach by any such person or entity. Receiving Party shall not make any copies of the Confidential Information except as necessary for the performance of its obligations under this Agreement and for its officers, employees, consultants, attorneys and accountants with a need to know. Any copies which are made shall be identified as belonging to Disclosing Party and marked “confidential,” “proprietary” or with a similar legend. Receiving Party shall use commercially reasonable efforts to assist Disclosing Party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, Receiving Party shall promptly advise Disclosing Party in the event that it learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Section 4, and shall cooperate in seeking injunctive relief against any such person.
4. Indemnification. Customer and Consultant hereby agree to indemnify, defend and hold harmless each other from and against any and all actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with: (a) the accuracy, validity or truthfulness of the Customer Content, in the case of the Customer, or Deliverables, in the case of the Consultant, and any representations made by the other party in any documents (including without limitation, any prospectus or business plan); (b) the other party’s failure to comply with any applicable law or regulation; (c) third party claims of infringement of any patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights alleged to have occurred with respect to Customer Content, in the case of the Customer, or Deliverables, in the case of the Consultant; (d) the death or bodily injury of any person, to the extent that such death or bodily injury was caused by the other party’s gross negligence or willful misconduct; (e) the damage, loss or destruction of real or tangible personal property, to the extent that such damage, loss or destruction was caused by the other party’s gross negligence or willful misconduct; and (f) any damages incurred directly or by virtue of a claim made by a third party, in either case, arising out of a breach of a party’s representations, warranties, covenants or duties arising out of, or in connection with, this Agreement.
5. Term and Termination. The term of this Agreement (the “Term”) shall commence upon the Effective Date and shall continue in full effect until terminated by the parties. This Agreement shall be terminable at will by either party upon sixty (60) days’ notice to the other, provided however, that the terms and conditions of this Agreement will continue to govern any outstanding Statements of Work despite such termination. The specific term and termination rights for Statements of Work shall be set forth in each Statement of Work. The Agreement, and any or all outstanding Statements of Work may be terminated immediately by Consultant for “cause” upon an event of default. “Cause” is defined as (i) the failure of Customer to pay any amounts when due for Services that are undisputed (provided any disputes are reasonable and in good faith) or the failure to pay any amounts when due that Customer owes to Consultant under any other agreements, contracts, or other arrangements or otherwise, (ii) Any material failure by Customer to comply with or to perform any material nonpayment provision or condition of a this Agreement and the continuance of such failure for a period of thirty (30) days after notice thereof to such party or the failure by Customer to comply with or to perform any material nonpayment provision under any other agreement or understanding between Customer and Consultant; or (iii) Customer becomes insolvent, is unable to pay its debts when such debts become due, or is the subject of a petition in bankruptcy, whether voluntary or involuntary, or of any other proceeding under bankruptcy, insolvency or similar laws; or makes an assignment for the benefit of creditors; or is named in, or its property is subject to a suit for appointment of a receiver; or is dissolved or liquidated.
6. Independent Contractor. Consultant (including any and all Consultant employees, agents, consultants or subcontractors), in performance of this Agreement, is acting as an independent contractor and not as an employee or agent of Customer. Consultant shall have exclusive control of the manner and means of performing its obligations under this Agreement. Each party shall be solely responsible for the supervision, daily direction and control of its employees and payment of their salaries (including withholding of appropriate payroll taxes), workers’ compensation, disability, health insurance and other benefits. Nothing in this Agreement shall be construed as making either party the agent of the other party, as granting to the other party the right to enter into any contract on behalf of the other party, or as establishing a partnership, franchise or joint venture between the parties. Under no circumstances shall the employees of one party be deemed to be employees of the other party for any purpose.
7. Security Rules. Each party agrees to comply with the other party’s reasonable security rules and measures when on the other party’s premises and to instruct all of its personnel who enter upon the other party’s premises to comply with such security rules and measures. Each party agrees, at its own cost and expense, to provide the other party with sufficient work space and supplies solely for the purpose of each party’s performance of its obligations under this Agreement.
8. Force Majeure. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement or any Statement of Work (other than payment obligations) by reason of any Act of God, fire, natural disaster, accident, riot, act of government, strike or labor dispute, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause beyond the reasonable control of such party. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.
9. Governing Law; Entire Agreement. This Agreement and each Statement of Work shall be governed by and construed in accordance with the laws of the State of Indiana, without regard to its conflict of laws provisions. The exclusive jurisdiction and venue for all legal actions arising out of or related to this Agreement shall be in courts of competent subject matter jurisdiction located in the Kosciusko County, Indiana, and the parties hereby consent to the jurisdiction of such courts. This Agreement, together with any Statements of Work executed pursuant hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, proposals, understandings and representations, written or oral, with respect to the subject matter hereof. Neither this Agreement nor any Statement of Work may be modified or amended except in a writing signed by duly authorized representatives of each party. To the extent there is such a conflict between the terms and conditions of a Statement of Work and the terms and conditions of this Agreement, the terms and conditions of the Statement of Work shall govern and control unless otherwise specified in the Statement of Work.
CUSTOMER AND CONSULTANT EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10. Counterparts. This Agreement may be executed on separate counterparts, any one of which need not contain signatures of more than one party, but all of which when taken together shall constitute one and same agreement.
IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly executed by their respective duly authorized representatives as of the Effective Date of their specific contract.
