3xj Digital Solutions Inc.
Consulting Agreement
Whereas:
The Client wishes to retain the Consultant (3xj Digital Solutions Inc.) to provide computer programming and development services in connection with a software or web development project, (the "Project").
THEREFORE, in consideration of the respective covenants and agreements of the parties contained in this Agreement, the sum of one dollar paid by each party to the other, and other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by each of the parties), it is agreed as follows:
Definitions
1
In this Agreement, the following words and expressions shall have the meanings herein set forth unless inconsistent with the subject matter or contract:(a)
"Services" means the provision by the Consultant of computer software development services to the Client in relation to the Project and other services as may be agreed upon between the Consultant and the Client from time to time.(b)
"Consulting Fees" means the fees payable by the Client to the Consultant for provision of the Services, as set out in the project outline, quote, or work order.Performance of Services
2
The Services shall be provided by the Consultant at times and places mutually convenient to the Consultant and the Client. It is agreed and acknowledged that the Consultant provides services to other persons, firms and corporations and will continue to do so during the term of this Agreement.3
The Consultant shall perform the Services under this Agreement as and when requested by the Client and as need to complete its share of the Project on time. The Consultant shall not be subject to supervision by the Client or subject to the Client?s detailed orders or instructions. The amount of time spent servicing the Client?s needs shall be determined at the sole discretion of the Consultant in order for it to fulfill its role in the Project.Consulting Fees
4
Consulting Fees shall be paid in arrears on a net 15 days basis based upon invoices provided by the Consultant to the Client at the end of the project unless otherwise discussed. The Consultant shall be entitled to suspend delivery and performance of the Services if any invoice is not paid within the time frame set out above.5
In addition, the Client at times shall reimburse all the Consultants travel and other out of pocket expenses related to the Project and the Services, provided they are fully documented and are in accordance with the Client?s approved budget in that regard.Term and Termination
6
The Term of this Agreement shall commence on the date first set out on the project and shall expire on at the completion of the project. The Term may be abridged or extended from time to time with the mutual agreement of the Client and the Consultant.7
This Agreement may be terminated prior to expiry of the Term set out above:(a)
by the Client or the Consultant for convenience at any time on 2 weeks prior notice;(b)
by the Client or the Consultant if the other party defaults under the terms of this Agreement, provided such default has not been rectified after seven days written notice thereof by the party not in default; or(c)
notwithstanding paragraph (b) above, by the Consultant at any time and without prior notice if the Client fails to pay the Consultant as and when required under the terms of this Agreement.Independent Contractor Status
8
It is acknowledged by the parties hereto that the Consultant is being retained by the Client in the capacity of an independent contractor and not as an employee of the Client. The Consultant and the Client acknowledge and agree that this Agreement does not create a partnership or joint venture between them.9
The Consultant agrees that the Consultant and its employees, workmen, servants and agents are not employees of the Client and the Consultant agrees to indemnify and save the Client harmless from any claims made against the Client by or with respect to the Consultant?s employees, workmen, servants and agents.Confidentiality
10
The Consultant acknowledges that during the term of this Agreement and the provision of the Services, the Consultant will have access to and become acquainted with the Client?s non-public confidential and proprietary information, including but not limited to non-public information or plans regarding the Client?s customer relationships, personnel, or sales, marketing and financial operations and methods; trade secrets; formulas; devises, secret inventions; processes, and other compilations of information, records, and specifications which have not been disclosed to the general public, whether or not labeled "confidential" or words of similar import (collectively, the "Proprietary Information")."Proprietary Information" shall also include all of the foregoing with respect to each supplier and customer of the Client with which the Consultant comes in contact in the course of providing the Services.
Provided that Proprietary Information shall not include A. information made available to the general public; or B. information which is generally known in the owner?s industry; or C. information which fails to meet the following test: to be Proprietary Information it must be confidential business information which is not generally known in the owner?s industry, which has commercial value to the owner because it is not generally known in the owner?s industry, and which the owner takes reasonable steps to keep confidential.
The Consultant shall not, at any time, disclose disseminate, use for personal benefit (or the benefit of any business competing with the Client) or otherwise publish any of the Client?s Proprietary Information directly or indirectly, or use it in any way, either during the term of this Agreement or any other time thereafter, except as required in the course of the Consultant?s provision of the Services for the Client or as authorized in writing by the Client, as the case may be.
All files, records, documents, computer-recorded information, drawings, specifications, equipment and similar items relating to the Business or the Project, whether prepared by the Consultant or otherwise coming into the Consultant?s possession, shall remain the exclusive property of the Client. The Consultant, within reason, will protect such documents, and computer-recorded information through passwords and encryption.
Software Deliverables ? Disclaimers and Ownership Rights
11
The following provisions apply to any customization of computer software or any computer programming services forming part of the Services ("Deliverables"); unless the Consultant otherwise expressly agrees in writing:(a)
Although the Deliverables will be designed with great care in an effort to make them error-free, errors may exist in the Deliverables. The Consultant will provide fixes to recognized errors on a timely basis provided they are reported to the Consultant in writing within thirty days after delivery to you, but will have no other liability or responsibility of any kind whatsoever;(b)
The Consultant does not warrant that the Deliverables will meet the Client?s requirements, or that the operation of the Deliverables will be uninterrupted or error free, or that the Deliverables will operate on the Client?s hardware, or that the Deliverables are or can be made to be compatible with any Client hardware or software, or that the Deliverables will operate in or be or be made to be compatible with the Client?s technical environment, or that the Deliverables will not interfere with the performance or functionality of any of the Client?s other hardware or software;(c)
The Client must not use the Deliverables in any case where significant damage or injury to persons, property or business may happen if an error occurs. The Client expressly assume all risk for such use. The Consulting Fees do not include any assumption of risk by the Consultant for defects in the Deliverables.(d)
The Consultant makes no warranties, either expressed or implied, with respect to the Deliverables, or as to the quality, performance, merchantability or fitness for any particular purpose.(e)
The Consultant shall not be liable for any damages to the Client or any third party caused by use of or by the Consultant?s active or passive negligence with respect to the Deliverables.(f)
The Consultant makes no representations that the use of the Deliverables will not infringe any parent, trade secret, copyright or trademark.(g)
THE CONSULTANT SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR LOST INCOME OR PROFITS, OR ECONOMIC LOSSES, OR LOSS OF USE OR INTERRUPTION OF BUSINESS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, (INCLUDING, WITHOUT LIMITATION ACTION IN CONTRACT, WARRANTY, NEGLIGENCE OR PRODUCTS LIABILITY) RESULTING FROM ANY DEFECTS IN, OR USE OF, THE DELIVERABLES, EVEN IF THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.(h)
Notwithstanding anything in this Agreement to the contrary, it is acknowledged that a portion of the Deliverables may contain elements which are not of a unique application to the Client or which do not contain Client Confidential Information ("Generic Deliverables"). With respect to Generic Deliverables, it is agreed that:(i) The Consultant will retain absolute ownership of all Generic Deliverables without any obligation to account to the Client therefore;
(ii) The Consultant hereby grants the Client a non-exclusive, perpetual license to use the Generic Deliverables for its internal business purposes only, but not for re-sale or sub-licensing; and
General Provisions
12
The terms and conditions of this Agreement shall prevail notwithstanding any variance thereof purporting to be made by the terms and conditions of any purchase order or other document submitted by the Consultant in respect of the Services to be provided in connection with this Agreement.13
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and Country of Canada.