This Consulting Agreement (“Agreement”) is entered into on the signed date (“Effective Date”), by and between GIFTY International (DBA GIFTY Solutions) (“Consultant”) and your company (“Company”).
In consideration for my continued relationship as a consultant (“Services”), I agree as follows:
1. Services and Payment. Consultant agrees to undertake the agreed upon services – as mentioned in the contract.
Company will pay Consultant the required amount each month.
If applicable, calls will be tracked via a Call tracking application.
2. Warranty. Consultant warrants that: (i) 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; (ii) all work under this Agreement shall be Consultant’s original work and none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Consultant); (iii) Consultant has the full right to provide the Company with the assignments and rights provided for herein; (iv) Consultant shall comply with all applicable laws and Company safety rules in the course of performing the Services and (v) if Consultant’s work requires a license, Consultant has obtained that license and the license is in full force and effect.
Termination: If either party materially breaches a material provision of this Agreement, the other party may terminate this Agreement with written notice of 30 days.
4. Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Agreement 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 nor 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. Consultant agrees to indemnify, defend and save Company harmless from any and all claims and threatened claims by any third party, including employees of either party, arising out of, under or in connection with.
5. Assignment. This Agreement and the services contemplated hereunder are personal to Consultant and Consultant shall not have the right or ability to assign, transfer, or subcontract any obligations under this Agreement without the written consent of Company. Any attempt to do so shall be void.
6. Notice. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, sent by confirmed telecopy or other electronic means, or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice.
7. Confidentiality. Contractor acknowledges that it will be necessary for Company to disclose certain confidential and proprietary information to Contractor in order for Contractor to perform duties under this Agreement. Contractor acknowledges that disclosure to a third party or misuse of this proprietary or confidential information would harm Company.
Contractor will not disclose or use, either during or after the term of this Agreement, any proprietary or confidential information of Company without Company’s prior written permission except to the extent necessary to perform services on Company’s behalf.
Proprietary or confidential information includes:
- Any materials regardless of form furnished by Company for Contractor to use
- Any information stamped “confidential,” “proprietary,” or with a similar legend, or any information that Company makes reasonable efforts to maintain secret
- Business or marketing plans or strategies, customer lists, operating procedures, trade secrets, design formulas, know-how and processes, computer programs and inventories, discoveries, and improvements of any kind, sales projections, and pricing information
- Information belonging to customers and suppliers of Company
Upon termination of Contractor’s services to Company, or at Company’s request, Contractor shall deliver to Company all materials in Contractor’s possession relating to Company’s business.
8. Proprietary Information. All work performed under this Agreement (“Work Product”), including without limitation all notes, reports, documentation, drawings, computer programs, inventions, creations, works, devices, models, work-in-progress and deliverables will be the sole property of the Company, and Contractor hereby assigns to the Company all right, title and interest therein, including but not limited to all audiovisual, literary, moral rights and other copyrights, patent rights, trade secret rights and other proprietary rights therein. Contractor retains no right to use the Work Product and agree not to challenge the validity of the Company’s ownership in the Work Product.
Contractor hereby assigns to the Company all right, title, and interest in any and all photographic images and videos or audio recordings made by the Company during Contractor’s work for them, including, but not limited to, any royalties, proceeds, or other benefits derived from such photographs or recordings.
The strategy and technologies used to attain the work of this project all belongs to the Contractor.
A. Exclusive Agreement. This Agreement constitutes the sole agreement between the parties and supersedes all oral negotiations and prior writings with respect to the Services. Any subsequent changes to the term of this Agreement may be amended or waived only with the written consent of the Company.
B. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight or sent by email or fax, or forty-eight hours after being sent by mail as certified or registered with postage prepaid, addressed to the party to be notified at such party’s address or email as set forth on the signature page.
C. Choice of Law / Dispute Resolution. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Nevada. The prevailing party in any proceeding to resolve a dispute pertaining to matters covered under this Agreement shall be entitled to receive reasonable fees by the opposing party.
Any disputes concerning this Agreement will be submitted to binding arbitration in accordance with the rules of the American Arbitration Association.
D. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the remainder of the Agreement shall be unaffected.
1. For purposes of this Agreement, “Confidential Information” shall mean any and all non-public information regardless of form, including, without limitation, technical, developmental, marketing, sales, operating, performance, cost, know-how, business plans, business methods, process information, database information, software licenses, applications, written code, logs, and graphical art disclosed to the Recipient. For convenience, the Disclosing Party may, but is not required to, mark written Confidential Information with the legend “Confidential” or an equivalent designation. For oral disclosures to constitute “Confidential Information,” such disclosures must be identified at the time as confidential or proprietary and the disclosing party must provide a written summary of the Confidential Information within thirty (30) days following initial disclosure.
2. All Confidential Information disclosed to the Recipient will be used solely for the Business Purpose and for no other purpose whatsoever. The Recipient agrees to keep the Disclosing Party’s Confidential Information confidential and to protect the confidentiality of such Confidential Information with the same degree of care with which it protects the confidentiality of its own confidential information, but in no event with less than a reasonable degree of care. Recipient may disclose Confidential Information only to its employees, agents, consultants and contractors on a need-to-know basis, and only if such employees, agents, consultants and contractors have executed appropriate written agreements with Recipient sufficient to enable Recipient to enforce all the provisions of this Agreement. Recipient himself also only agrees to access confidential information on a need to access basis, limited to emergencies or serious problem resolution. Recipient shall not make any copies of Disclosing Party’s Confidential Information except as needed for the Business Purpose. At the request of Disclosing Party, Recipient shall return to Disclosing Party all Confidential Information of Disclosing Party (including any copies thereof) or certify the destruction thereof. Each party shall notify the other upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other party.
3. All right title and interest in and to the Confidential Information shall remain with Disclosing Party or its licensors. Nothing in this Agreement is intended to grant any rights to Recipient under any patents, copyrights, trademarks, or trade secrets of Disclosing Party. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. THE DISCLOSING PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
4. The obligations and limitations set forth herein regarding Confidential Information shall not apply to information which is: (a) at any time in the public domain, other than by a breach on the part of the Recipient; or (b) at any time rightfully received from a third party which had the right to and transmits it to the Recipient without any obligation of confidentiality.
5. In the event that the Recipient shall breach this Agreement, or in the event that a breach appears to be imminent, the Disclosing Party shall be entitled to all legal and equitable remedies afforded it by law, and in addition may recover all reasonable costs and attorneys’ fees incurred in seeking such remedies. If the Confidential Information is sought by any third party, including by way of subpoena or other court process, the Recipient shall inform the Disclosing Party of the request in sufficient time to permit the Disclosing Party to object to and, if necessary, seek court intervention to prevent the disclosure.
6. The validity, construction and enforceability of this Agreement shall be governed in all respects by the laws of the State of Nevada. This Agreement may not be amended except in writing signed by a duly authorized representative of the respective Parties. This Agreement shall control in the event of a conflict with any other agreement between the Parties with respect to the subject matter hereof.
Release from Liability for Services
You or your company does hereby waive and release, indemnify, and forever discharges GIFTY International (“Company”), and its agents, employees, officers, directors, affiliates, successors, members, and assigns, of and from any and all claims, demands, debts, contracts, expenses, causes of action, lawsuits, damages and liabilities, of every kind and nature, whether known or unknown, in law or equity, that I ever had or may have, arising from or in any way related to the services (“Services”) being provided to me by Company provided that this waiver of liability does not apply to any acts of gross negligence, or intentional, willful or wanton misconduct.
By this Waiver, I assume any risk, and take full responsibility and waive any claims of personal injury, death or damage to personal property associated with such Services, including but not limited to temporary or permanent damage to my hair, unsatisfactory results from said Service being provided to me, and personal property damage.
The provision of this Waiver and Release will continue in full force and effect even after termination of the Services being provided to me, whether by agreement, by operation of law, or otherwise.
I have read, understand and fully agree to the terms of this Waiver and Release. I understand and confirm that by signing this Waiver and Release, I have given up considerable future legal rights. I have signed this Agreement freely, voluntarily, under no duress or threat of duress, without inducement, promise or guarantee being communicated to me. My signature is proof of my intention to execute a complete and unconditional Waiver and Release of all liability to the full extent of the law.