SERVICES. During the Term, Company shall provide such professional, consulting, advisory and/or other products and services agreed upon by the parties (“Services”), as described in the initial Scope of Work (or “SOW”) attached as Schedule A hereto, together with any schedules thereto, as may be modified in accordance with this Agreement, as well as any additional SOWs agreed to by the parties and incorporated herein.
FEES AND PAYMENTS. As compensation for the Services, Client shall pay Company, subject to the terms of this Agreement and any conditions set forth in the applicable SOW, the amount set forth in the applicable SOW (“Fees”). Client will reimburse Company for reasonable and actual out-of-pocket expenses, only if pre-approved by Client in writing. Except for such pre-approved expenses, Company shall bear all expenses incurred in performance of its obligations under this Agreement. Fees shall be paid to Company by Client as set forth in the SOW. Authorized expense reimbursements shall be paid within thirty (30) days after receipt of documentary support for any expenses incurred. Company shall be responsible for payment of any income and employment taxes relating to the Fees.
TERM AND TERMINATION. This Agreement shall commence on the Effective Date and continue until the earlier of (a) the end of the term, if any, set forth in the most current SOW (“Term”) or (b) termination by either party in accordance with this Agreement. Unless otherwise set forth in the SOW, this Agreement may be renewed by mutual written agreement of the parties. Either party may terminate the Agreement: (x) for a breach by the other party not cured within 30 days of notice by the non-breaching party; (y) immediately upon notice in the case of material breach that is not curable; or (x) immediately upon notice if the other party: (i) voluntarily commences or has instituted against it, and not dismissed within 60 days, bankruptcy or similar proceedings; (ii) makes an assignment of all or substantially all of its assets; (iii) generally fails to pay its debts when due; or (iv) dissolves or ceases to do business.
INTELLECTUAL PROPERTY. Each party shall retain all rights, title, and interest, in and to its patents, trademarks, logos, copyrights, trade secrets, and any other intellectual property, whether arising by operation of law, contract, license, or otherwise, together with all registrations, applications, renewals, extensions, continuations, divisions or reissuances thereof.
Definition. “Confidential Information” means all non-public written or oral information disclosed by one party (“Discloser”) to the other party (“Recipient”) identified as confidential at the time of disclosure, any information that derives from or reveals any Confidential Information, and any information that, based on its nature and the circumstances surroundings its disclosure, a reasonable person would consider confidential or proprietary.
Use and Care. With respect to each other’s Confidential Information, each party shall: (i) maintain its confidentiality in accordance with industry standards; (ii) use it solely in connection with this Agreement; (iii) limit access to those who require it to perform their obligations hereunder; and (iv) require that anyone with access is subject to confidentiality requirements no less restrictive than those contained herein.
Exceptions. Confidential Information does not include information that: (i) was already in Recipient’s possession when first disclosed by Discloser; (ii) was in the public domain when disclosed to Recipient or enters the public domain through no fault of Recipient; (iii) is made available by Discloser to a third party on an unrestricted, non-confidential basis; (iv) was lawfully obtained by Recipient from a third party not under confidentiality obligations to Discloser; (v) was independently developed by Recipient by persons without access to or use of Discloser’s Confidential Information or Intellectual Property; or (vi) is required by law to be disclosed, provided, to the extent legally permissible, Recipient notifies Discloser prior to such disclosure to enable Discloser to seek confidential treatment.
REPRESENTATIONS AND WARRANTIES.
Mutual Representations. Each party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; and (ii) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party, enforceable in accordance with its terms.
By Company. Company represents and warrants that: (i) it shall perform all Services in a professional, ethical, and timely manner consistent with industry standards; (ii) its performance of its obligations under this Agreement will not knowingly violate any other agreement between it any third party; (iii) it shall comply with all applicable laws, regulations and public policies, and refrain from taking any action which would cause Client to be in violation of any such laws or regulations; and (v) it shall avoid deceptive, misleading or unethical practices that could damage the reputation of Client. Any breach of any of these representations and warranties shall constitute a material breach of this Agreement and may result in immediate termination of this Agreement by Client.
Limitation of Liability. Except for confidentiality breaches and indemnification for third party claims, no party shall be liable for any indirect, incidental, special, consequential, punitive and/or exemplary damages of any kind arising out of or relating to this Agreement, including, but not limited to, lost profits or revenue, business interruption, or loss of business information, even if such party has been advised of the possibility of such damages.
INDEMNIFICATION. Each party (an “Indemnifier”) agrees to indemnify and defend the other party and its subsidiaries, affiliates and assigns, and its and theirs officers, directors, members, employees and agents (the “Indemnifieds”) from and against any and all losses, liabilities, damages, or costs (including reasonable attorneys’ fees) (“Losses”) incurred by the Indemnifieds resulting from a third party action, suit or proceeding (“Claim”) resulting from the Indemnifier’s: (a) gross negligence or willful misconduct; or (b) a material breach of any of its representations, warranties, and obligations.
NON-SOLICITATION. During the Term and for 12 months following termination of the Agreement, neither party, without the other party’s prior written consent, shall, directly or indirectly, for itself or any third party: (a) solicit or encourage any of the other party’s employees to leave their employment; (b) employ or contract with any of the other party’s employees; or (c) employ or contract with any person who was employed by the other party during the prior 12-month period. This does not prohibit hiring responders to general employment ads.
Independent Contractor. In providing Services, Company shall, at all times, be deemed an independent contractor and not an employee of Client. The selection of the details and means by which Company fulfills its obligations under this Agreement is the responsibility of Company and not of Client, which shall exercise no control in this regard. Company shall have no authority to act on behalf of or bind Client, except as expressly authorized by Client in writing. Company will indemnify, defend and hold harmless Client, its officers, directors, and employees, from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by a third party relating to any allegation that Company has acted as an agent, partner, or employee of Client.
Assignment. Company may not assign its rights or delegate its obligations under this Agreement without Client’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. Client may assign this Agreement to an affiliate or as a result of a change in control or sale of all or substantially all assets, upon written notice.
Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to the choice of law principles thereof. Each party hereby consents to the exclusive jurisdiction of the state and federal courts located in Fairfax County, Virginia, provided that either party may seek injunctive relief in any court of competent jurisdiction. The prevailing party shall be entitled to reasonable attorney fees. The parties waive any rights to trial-by-jury.
No Publicity. Unless required by applicable laws, neither party will, without the prior written approval of the other party, make any public statement, press release, presentation, or other announcement relating to the existence or terms of this Agreement.
Miscellaneous. This Agreement: (a) covers the parties’ entire agreement, and supersedes all prior discussions and writings between them, relating to its subject matter; (b) will be binding upon and inure to the benefit of the parties, their successors and permitted assigns; and (c) has no third party beneficiaries (other than the Indemnifieds with respect only to the provisions under the Section on Indemnification). If any provision in this Agreement is deemed invalid, illegal, or otherwise unenforceable, such provision shall be enforced, as nearly as possible, in accordance with the parties’ intent; the remainder shall remain in full force and effect. No failure or delay by a party in enforcing this Agreement shall be construed as a waiver of any of its rights under it. No party shall be deemed in default of this Agreement if the performance of its obligations is delayed or prevented by events beyond its reasonable control. Except as otherwise set forth herein, this Agreement may only be modified by mutual written agreement of the parties. Notices may be delivered electronically (or by mail or in person) and shall be deemed served when delivered to the address specified on the Cover Page; each party shall promptly inform the other of any changes to their contact information. This Agreement may be signed digitally and/or in counterparts, which together will constitute the whole Agreement.