1. Consulting Services
ScaleUpOnDemand LLC (“ScaleUpOnDemand”) will provide consulting services ordered by Client under the terms and conditions of this Consulting Agreement (Agreement) and any relevant proposal or work order. Any changes to the Agreement shall be documented and approved by ScaleUpOnDemand and Client in writing and attached to the Agreement. Scheduled service dates will be agreed upon mutually, subject to availability of ScaleUpOnDemand personnel.
2. Status of Parties
ScaleUpOnDemand and its principals, employees, agents and subcontractors (collectively, “Consultants”) shall be, and at all times during this Agreement shall remain, an independent contractor vis-à-vis the Client. Consultants shall not have any rights to the Client’s usual employee fringe benefits, including, but not limited to, worker’s compensation benefits, and in no event is any contract of agency or employment intended. Except to the extent authorized by the Client’s Board of Directors, Consultants shall have no authority to bind, obligate or commit the Client by any agreement, promise or representation in any manner whatsoever.
3. Incidental Expenses
For any on-site services requested by Client, Client shall reimburse ScaleUpOnDemand for pre-approved actual, reasonable travel, lodging and out-of-pocket expenses incurred. Travel expenses shall be in accordance with ScaleUpOnDemand’s standard travel policy. Invoices shall reflect this policy. ScaleUpOnDemand’s standard travel policy shall be disclosed to the client upon request.
4. Fees, Invoicing and Payment
ScaleUpOnDemand LLC’s fees (hourly and fixed) are stated in the accompanying agreement, proposal or work order, and are subject to periodic adjustment (but in the case of hourly rates, not more often than once every twelve (12) months). Invoices will normally be issued on a monthly basis, unless otherwise provided. Fees for services shall be payable when invoiced, and shall be deemed overdue if they remain unpaid 15 days after the date of invoice, unless otherwise stated on the invoice. If Client’s procedures require that an invoice be submitted against a purchase order before payment can be made, Client will be responsible for issuing such purchase order 15 days before the payment due date. Payments are due regardless of any third party action or responsibilities.
Remit to Address: ScaleUpOnDemand LLC
Suite 231, 164 Market St.
Charleston, SC 29401
5. Term of Agreement
The term of this Agreement shall be in force for an initial term of 6 months (the “Initial Term”). Thereafter, this Agreement shall be automatically extended for additional extension terms of one (1) month each (the “Extension Terms”). The Initial Term, together with any Extension Terms, shall be the Term of this Agreement (the “Term”).
6. Client Obligations
As part of this engagement, you will furnish or make available any company information necessary in order for ScaleUpOnDemand to provide its services to Client hereunder and provide reasonable access to necessary personnel required to complete the engagement. Our fees are based on anticipated cooperation from your personnel and the assumption that unexpected circumstances will not be encountered during the engagement. Other resources, such as Internet access while present on Client premises and adequate workspace facilities, shall be as agreed in writing with Client. If significant unexpected circumstances occur, we will discuss it with you and arrive at a new fee estimate before we incur the additional costs.
7. Changes in Scope
Any changes in scope shall be mutually agreed upon in writing prior to commencement of the change. This includes any required changes in funding and schedule. ScaleUpOnDemand will provide an estimate for the change in a timely manner and the Client shall approve or disapprove this change in writing in a timely manner.
The fees quoted do not include taxes. If ScaleUpOnDemand is required to pay any federal, state, or local taxes based on the services provided under this Agreement, such taxes, except taxes based on ScaleUpOnDemand’s income, shall be billed to and paid by the Client.
9. Rights to Work Product
With the exception of all tools, business processes or work products brought into the engagement by ScaleUpOnDemand, all deliverables under this Agreement shall be considered works-made-for-hire (“Deliverables”) and all ownership rights relating to the Deliverables shall vest in Client. Nothing herein shall be construed to grant ScaleUpOnDemand any right or license to use the confidential, proprietary information of Client.
ScaleUpOnDemand warrants that its services hereunder will be of a professional quality, conforming to generally accepted industry standards and practices. Any modifications made to product or services provided by ScaleUpOnDemand that are not authorized and executed by ScaleUpOnDemand, or the original manufacturer, shall void the warranty.
11. Limitations on Warranty
The warranty above is exclusive and in lieu of all other warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. The stated warranty is valid for a period of thirty (30) days from the date of task completion or until the client acceptance document, if applicable, is executed, whichever occurs earlier. Should the client acceptance document not be executed within thirty (30) days of the completion, the task shall be deemed accepted.
12. Exclusive Remedy
For any breach of the above warranty, Client’s exclusive remedy, and ScaleUpOnDemand’s entire liability, shall be the re-performance of the services. In order to receive warranty remedies, deficiencies in the services must be reported to ScaleUpOnDemand in writing within 90 days of completion of those services. If ScaleUpOnDemand is unable to perform the services as warranted within 45 days after notification, Client shall be entitled to recover the fees paid to ScaleUpOnDemand for such deficient services.
13. Termination of Agreement
Either party can terminate this Agreement for cause if either party considers the other party is not performing its obligations according to this Agreement and provides written notice to the other party of such non-performance. The party receiving such written notice will have fifteen (15) days from the date of notice receipt to correct the situation. If this situation is not corrected, the Agreement can be terminated immediately upon written notice. Client is obligated and agrees to pay for services provided through the date of termination and for any remaining hours guaranteed as part of the agreement.
After the Initial Term, either party may modify the commitments for particular resources or terminate this Agreement with written notice delivered to the other party, provided that modifications or terminations shall not be effective until the expiration of any then-existing Term (i.e., not less than sixty (60) days after the date of delivery of the written notice). Prior to the effective date of termination, the Client shall satisfy all outstanding invoices covering services to be delivered prior to termination.
14. ScaleUpOnDemand Consultants
ScaleUpOnDemand warrants that all Consultants sent to the Client facility will act in accordance with good business ethics and behaviors. Additionally, ScaleUpOnDemand will ensure that all Consultants assigned to the Client will be fully qualified to perform the task contracted for. If for any reason the Client feels that the ScaleUpOnDemand Consultant is not technically qualified, ScaleUpOnDemand will investigate the claim and provide substitute Consultant to the Client at no additional cost. If the Client requests a ScaleUpOnDemand Consultant be replaced for any reason other than job performance, a cost may be incurred. This cost will be mutually agreed to at the time.
If any of the Consultant’s resources accept an offer to be employed or contracted directly with the Client, the Client will remit to the Consultant a portion of each of those resource’s projected earnings. The amount owed the Consultant will equal 75% of each resource’s on-target earnings for twelve months following their start date with the Client, where on-target earnings is their annualized salary plus annualized commission. This amount will be remitted to the Consultant immediately upon hiring.
15. Force Majeure
Neither party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results from causes outside the reasonable control of the party. Such causes shall include, without limitation, Acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, civil commotions, or the like. Notwithstanding the above, strikes and labor disputes shall not constitute an excusable delay for either party under this Agreement.
16. Limitation of Liability
In no event shall either party be liable for any indirect, incidental, special or consequential damages, including loss of profits, revenues, data, or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party or any other person has been advised of the possibility of such damages. ScaleUpOnDemand’s liability for damages hereunder shall in no event exceed the amount of fees paid by Client under this Agreement for the relevant services.
Client shall indemnify and hold ScaleUpOnDemand harmless against any and all third party claims, costs, expenses, losses and liabilities claimed by third parties, arising out of the products or services referenced in this Agreement, except to the extent such claims, costs, expenses, losses, and liabilities are caused by or contributed to by ScaleUpOnDemand.
By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information.”) For purposes of this Agreement, “Confidential Information” may include, but is not limited to, information regarding proprietary products, potential product and/or service offerings, source code, documentation, customer names, customer data, business plans, financial analysis, future plans and pricing, the marketing or promotion of any product, and business policies and practices. The parties agree, both during the term of this Agreement and for a period of two years after termination, for any reason, of this Agreement and of all work orders hereunder, to hold each other’s Confidential Information in strict confidence. The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the performance of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed in violation of the provisions of this Agreement, except a disclosure pursuant to any judicial or government request or order.
19. Use of Names and Logos; Marketing
Each party grants to the other party a non-exclusive, worldwide, royalty-free license, without the right to sublicense, to use the other’s name and logo on its website and in its customer or vendor lists. Each party’s use of the other party’s name and logo shall be in compliance with the other party’s trademark usage guidelines, as amended from time to time. All uses of the other party’s name and logo shall inure to the benefit of the other party. Client also agrees to make itself available upon ScaleUpOnDemand LLC’s reasonable request to serve as a reference for media interviews and potential customers (i.e. phone reference calls, case studies, public relations announcements, etc.).
Any notice required or permitted to be given by one party to the other shall be deemed to be given when notice is mailed via certified mail with the United States Postal Service with sufficient postage prepaid, or by recognized courier service with verification of delivery, addressed to respective party to whom notice is intended at the address specified above in this Agreement.
21. Governing Law
This Agreement shall be governed by the laws of the State of South Carolina, without regard to its choice of laws rules. Any dispute arising out of or relating to this Agreement shall be determined by a federal or state court in Charleston County, State of South Carolina, and in no other forum. The parties hereby submit to the jurisdiction of such courts.
If any provision of this Agreement is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
23. Entire Agreement
This Agreement constitutes the complete agreement between the parties and supersedes all previous agreements or representations, written or oral, with respect to the services and developments described herein. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. This Agreement may be executed in counterparts. Facsimile transmissions of the signature page shall be binding upon the parties.