Terms of Service
The Consultant is a marketing consulting service providing specialist strategic direction and tactical support focusing on small to medium sized companies. Services will be between you (the “Company”) and Custom Marketing (the “Consultant”). All Duties, Specifications, and Compensation will be provided to the Company in a separate document titled “EXHIBIT A.” This will be done at timing appropriate to finalize Agreement of Services and will require signatures of Both Company and Consultant. By entering into an agreement with Consultant, it is understood that Company has read these Terms of Service and agrees to the following:
The parties therefore agree as follows:
Engagement. The Company retains the Consultant to provide, and the Consultant shall provide, the services described in Exhibit A (the “Services”).
Company’s Obligations. The Company shall make timely payments of amounts earned by the Consultant under this agreement and notify the Consultant of any changes to its procedures affecting the Consultant’s obligations under this agreement at least 30 days before implementing those changes.
Terms and Conditions. As outlined in separate document Exhibit A.
Reimbursement. As outlined in separate document Exhibit A.
Taxes. The Consultant is solely responsible for the payment of all income, social security, employment-related, or other taxes incurred as a result of the performance of the Services by the Consultant under this agreement, and for all obligations, reports, and timely notifications relating to those taxes. The Company has no obligation to pay or withhold any sums for those taxes.
NATURE OF RELATIONSHIP
Independent Contractor Status.
The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party’s behalf, and neither party may take any action that creates the appearance of such authority.
The Consultant has the sole right to control and direct the means, details, manner, and method by which the Services will be performed, and the right to perform the Services at any time, place, or location. The Consultant or the Consultant’s associates shall perform the Services, and the Company is not required to hire, supervise, or pay any assistants to help the Consultant perform those Services.
USE OF TRADEMARKS.
The Consultant may use, reproduce, and distribute the Company’s service marks, trademarks, and trade names (if any) (collectively, the “Company Marks”) in connection with the performance of the Services. The Company will remain the sole owner of the Company Marks. The Consultant may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s interest in the Company Marks. The Consultant may not cause diminishment of value of the Company Marks through any act or representation. The consultant may however, for future business development purposes, share scope of project work (including logos, pictures, video, designs, quotes, case studies), never disclosing any Confidential Information as outlined below (5).
Confidentiality. During the Term, the Consultant may have access to or receive certain information of or about the Company that the Company designates as confidential or that, under the circumstances surrounding disclosure, ought to be treated as confidential by the Consultant (“Confidential Information”). Confidential Information includes information relating to the Company or its current or proposed business, financial statements, budgets and projections, customer identifying information, potential and intended customers, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media. The Consultant will treat the Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill its obligations in this agreement. In addition, the Consultant shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
Exceptions. The obligations and restrictions in subsection (a) do not apply to that part of the Confidential Information the Consultant demonstrates:
was or becomes generally publically available other than as a result of a disclosure by the Consultant in violation of this agreement;
was or becomes available to the Consultant on a non-confidential basis before its disclosure to the Consultant by the Company, but only if:
the source of such information is not bound by a confidentiality agreement with the Company or is not otherwise prohibited from transmitting the information to the Consultant by a contractual, legal, fiduciary, or other obligation; and
the Consultant provides the Company with written notice of its prior possession either (I) before the effective date of this agreement or (II) if the Consultant later becomes aware (through disclosure to the Consultant) of any aspect of the Confidential Information as to which the Consultant had prior possession, promptly on the Consultant so becoming aware;
is requested or legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar processes), or is required by a regulatory body, to be disclosed. However, the Consultant shall:
provide the Company with prompt notice of these requests or requirements before making a disclosure so that the Company may seek an appropriate protective order or other appropriate remedy; and
provide reasonable assistance to the Company in obtaining any protective order.
If a protective order or other remedy is not obtained or the Company grants a waiver under this agreement, the Consultant may furnish that portion (and only that portion) of the Confidential Information that, in the written opinion of counsel reasonably acceptable to the Company, the Consultant is legally compelled or otherwise required to disclose. However, the Consultant shall make reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any part of the Confidential Information disclosed in this way; or
was developed by the Consultant independently without breach of this agreement.
The Consultant shall report to the officer or employee as may be designated by the Company.
During the Term, the Consultant is free to engage in other independent contracting activities.
Of Company by Consultant. At all times after the effective date of this agreement, the Consultant shall indemnify the Company and its (collectively, the “Company Indemnitees”) from all damages, liabilities, expenses, claims, or judgments (including interest, penalties, reasonable attorneys’ fees, accounting fees, and expert witness fees) (collectively, the “Claims”) that any Company Indemnitee may incur and that arise from:
the Consultant’s gross negligence or willful misconduct arising from the Consultant’s carrying out of its obligations under this agreement;
the Consultant’s breach of any of its obligations or representations under this agreement; or
Of Consultant by Company. At all times after the effective date of this agreement, the Company shall indemnify the Consultant and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns (collectively, the “Consultant Indemnitees”) from all Claims that the Consultant Indemnitees may incur arising from:
the Company’s operation of its business;
the Company’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or
the Company’s breach of any of its obligations or representations under this agreement.
A party will be not be considered in breach or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party’s reasonable control (each a “Force Majeure Event”).
Choice of Law. The laws of the state of California govern this agreement (without giving effect to its conflicts of law principles).
Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in Los Angeles County, CA.
Attorneys’ Fees. If either party employs attorneys to enforce any rights arising out of or relating to this agreement, the losing party shall reimburse the prevailing party for its reasonable attorneys’ fees.
Arbitration. Any dispute or other disagreement arising from or out of this Agreement shall be submitted to arbitration under the rules of the American Arbitration Association and the decision of the arbiter(s) shall be enforceable in any court having jurisdiction thereof. Arbitration shall occur only in Los Angeles County, California
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties’ agreement about the subject matter of this agreement.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement’s construction or interpretation.
This agreement will become effective when all parties have signed Exhibit A. The date Exhibit A is signed by the last party to sign it (as indicated by the date associated with that party’s signature) will be deemed the date of this agreement.