AVENUE WEST, LLC
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is incorporated by reference to the attached Scope of Work(the “Scope of Work”) and are the only terms that govern the provision of services by Avenue West, LLC (the “Contractor”) to the customer ("Customer"and, together with the Contractor, the “Parties,” and each a “Party”) named in the attached Scope of Work.
WHEREAS, the Customer desires to retain the Contractor to perform certain services because of the Contractor’s experience and ability in this field; and
WHEREAS, the Customer and the Contractor desire to agree upon the terms of the Contractor’s engagement with the Customer.
1. Services; Standards of Performance.
(a) For the Term (defined below) of this Agreement, the Contractor shall provide the services described in the Scope of Work(the “Services”). All work p the Contractor pursuant to this Agreement shall be consistent with professional standards. Contractor’s performance of the Services shall at all times comply with all applicable federal, state, and local laws and regulations.
(b) If Customer has not provided feedback to Contractor on any designs shared in connection with the Services within thirty (30) days of Contractor sending such designs to Customer, then all ongoing Services shall cease, Contractor shall retain any deposits and fees paid by Customer, Customer shall immediately pay any fees owed in connection with the Services performed through such date, and Customer shall be required to pay an additional $350 fee to restart the Services in the future.
2. Independent Contractor Status and Tax Reporting Obligations.
(a) The relationship between the Contractor and the Customer shall be that of independent contractor and not that of agents or employer and employee. It is understood that the Contractor shall perform the Services according to the Contractor’s own methods.
(b) Contractor shall have the sole responsibility for the proper reporting and payment of any and all federal, state, and/or local taxes due on payments made to the Contractor by the Customer under this Agreement that are required to be made by Contractor.
3. Fees for Services
(a) Customer shall pay the Contractor for the Services according to the terms set forth in the Scope of Work. To be paid, the Contractor shall submit periodic invoices to the Customer for Services rendered.
(b) In the event the Contractor delivers additional services to the Customer after the completion of the Services (the “Additional Services”), the Contractor shall charge the rate set forth in the Scope of Work. Parties shall agree in writing as to the Additional Services to be completed. To be paid for completion of the Additional Services, the Contractor shall submit periodic invoices to the Customer for Additional Services rendered containing descriptions of the Additional Services performed.
(c) In the event Customer does not pay its invoice within thirty (30) days of receipt, Customer shall owe to the Contractor a late fee of 5% of the Fees (as defined in the Scope of Work) per thirty (30) day period in addition to the fees set forth in the Scope of Work. Customer shall also reimburse Contractor for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Contractor does not waive by the exercise of any rights hereunder), Contractor shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
4. Expenses. Customer shall reimburse the Contractor for all reasonable expenses associated with the Services, including travel and lodging expenses, within five (5) business days from the date the Customer receives the Contractor’s receipts and reasonable supporting documentation.
5. Indemnification. Customer hereby indemnifies and holds harmless the Contractor and its respective officers, directors, employees, agents, and representatives, if any, from and against any and all liabilities, losses, damages, penalties, claims, or causes of action and any expenses connected therewith, including reasonable attorneys’ fees, including those which directly or indirectly are based upon or arise out of (i)the breach by Contractor of any representation, warranty, covenant, term, or condition under this Agreement; (ii)the infringement of a third party’s intellectual property or; (iii)any loss or claim asserted against Contractor by a third party related to this Agreement not caused by Contractor’s willful misconduct or fraud.
6. Benefits. This Agreement is personal to the Contractor and the Contractor is not authorized to delegate any of the services to any subcontractors. Neither the Contractor nor the Contractor’s employees shall be considered an employee or agent of the Customer, regardless of their classification under common law principles. Customer shall have no obligation to treat the Contractor or the Contractor’s employees as an employee of the Customer for purposes of fringe or employee benefit participation, coverage, or entitlement. Specifically, the Customer shall have no obligation to provide the Contractor or the Contractor’s employees with any form of fringe or employee benefit, including without limitation, health, or other insurance coverage, retirement or 403(b) benefits, paid sick or vacation leave, other paid or unpaid leave, or other such benefits that may be available to employees of the Customer, and the Contractor hereby waives any right or entitlement thereto. In addition, should any of the Contractor’s employees become an employee of the Customer at any point subsequent to the termination of this Agreement, the time the former employee of the Contractor has worked under this Agreement shall not constitute service under the terms of any Customer employment policy, program, or benefit.
7. Term of Agreement. The initial term of this Agreement shall commence on the date set forth in the Scope of Work, and continue for the term set forth in the Scope of Work (the “Term”), unless either party shall terminate it pursuant to Section 8.
8. Termination. Either Party may terminate this Agreement for any reason, at any time, by giving the other party thirty (30) days’ prior written notice of such termination. Such written notice shall be hand delivered or sent by registered or certified mail, return receipt requested, or by electronic mail, to the address set forth in the Scope of Work or to such other address of which either Party has given the other written notice. Upon termination of this Agreement, the Customer must(i) pay all fees and expenses due under this Agreement through the effective date of termination date and (ii) indemnify the Contractor pursuant to Section 5.
9. Confidential Information.
(a) From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,”or if disclosed orally, is identified as confidential when disclosed and within three (3) business days thereafter is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however,that Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 9; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (iv) was or is independently developed by Receiving Party without using any Confidential Information.
(b) The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s officers, directors, employees, agents, and representatives, if any, who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
(c) If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
(d) Contractor shall not use Confidential Information for the Contractor’s own benefit or purposes or for the benefit or purposes of any person or entity other than the Customer.
10. Cancellation Policy. Customer shall be required to pay the full amount of all Fees owed in connection with any pre-scheduled Services, including but not limited to photography sessions, if Customer cancels such Service within48 hours of the commencement of such Service. An additional Fee shall be assessed in Contractor’s sole discretion if such canceled Service is rescheduled at any point after Customer’s cancellation.
11. Intellectual Property.
(a) All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Contractor in the course of performing the Services, including any items identified as such in the Scope of Work(collectively, the “Deliverables”), shall be owned by Customer. Notwithstanding the foregoing, Contractor shall own all Intellectual Property Rights in its Confidential Information and Background Technology. As used herein, the term “Background Technology” means all any ideas, concepts, information, materials, processes, data, programs, know-how, improvements, discoveries, developments, designs, other copyrightable works, custom fonts, and techniques and all Intellectual Property Rights developed by Contractor other than such Intellectual Property Rights and Deliverables developed exclusively for the Customer hereunder.
(b) Customer hereby grants Contractor a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to for Contractor to perform the Services and market its services in Contractor’s discretion.
12. Limitation of Liability.
(a) In no event shall the Contractor be liable to the Customer or to any third party for any loss of use, revenue, or profit, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not the Contractor has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
(b) In no event shall the Contractor’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the aggregate amounts paid to the Contractor pursuant to this Agreement.
13. Return of Customer Property. Upon termination of the Contractor’s engagement with the Customer, the Contractor acknowledges that all records, memoranda, notes, compositions, writings, diaries, drawings, devices, data, and any other items that disclose, embody, or contain Work Product, Intellectual Property Rights, and/or Confidential Information, in the Contractor’s possession shall be promptly returned to the Customer. The Contractor will destroy all information relating to the Customer’s business contained in electronic files located on any equipment to which the Contractor will continue to have access (for example, a home computer).
14. No Prior Restrictions. Contractor represents and warrants that the Contractor is not under any legal restraint or restriction that would prevent, restrict, or make unlawful the Contractor’s performance of the services under this Agreement or the Contractor’s entry into this Agreement.
15. Non-Exclusivity. This Agreement is non-exclusive and the Contractor has no obligation to refrain from rendering services to any other entity, except to the extent that such services would violate the confidentiality covenants of this Agreement and/or would create a conflict of interest with the Services.
16. Assignment. Neither Party shall not have the right to assign this Agreement or any obligation hereunder without the written consent of the other Party.
17. Force Majeure. Contractor shall not be liable or responsible to the Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Contractor including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
18. Miscellaneous.
(a) This Agreement and any Statements of Work executed by the Parties constitute the entire agreement between the Parties with respect to the Services and supersede any prior or contemporaneous written or oral agreements between the Parties. In the event of any conflict between this Agreement and any Statements of Work between the Parties, this Agreement shall govern. Each of the Parties agrees and acknowledges that in deciding to enter into this Agreement, the Party is not relying on any statements, representations, or promises other than those contained in this Agreement. This Agreement may be amended only by a written document signed by the Parties.
(b) This Agreement shall be deemed to be made in, and in all respects to be interpreted, construed, and governed by and in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law under Delaware law. The Parties shall submit to the jurisdiction and venue of the state and federal courts located in Delaware in the event that there is any claim or breach of this Agreement.
(c) Either Party’s delay or failure to exercise any right under this Agreement shall not modify or impair such right or be construed as a waiver under this Agreement.
(d) Captions are inserted for convenience, do not constitute a part of this Agreement, and shall not be admissible for the purposes of proving the intent of the Parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original. Signature pages sent by facsimile or email transmission shall constitute enforceable execution of this Agreement.
(e) Should any provision of this Agreement be declared and/or determined by any court to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected.
(f) This Agreement shall inure to the benefit of and be binding upon the Parties and their respective executors, administrators, personal representatives, heirs, predecessors, successors, assigns (to the extent assignable), directors, agents, employees, trustees, and affiliates forever.
