CONSULTATION TERMS AND CONDITIONS FOR CONSULTANCY SERVICES
These General Terms and Conditions apply to all consultancy services provided by the Consultant, which are delivered entirely or partially to the Client.
DEFINITIONS: In these Consultation Terms and Conditions, these definitions are applicable: “Client” means the organization, persons or company with whom the Contract is entered into; “Consultant” means the service provider who is the user of these Terms and Conditions; “Confidential Information” means any information related to the Engagement; “Contract” means the agreement between the Client and the Consultant as defined in the scope of the Engagement and the services, as well as the fees for said services; “the Engagement” means the agreements reached between the Consultant and the Client; “Force Majeure” means any cause beyond the reasonable control of the affected party, including, but not limited to, any act of God, war, riots, acts of the public enemy, fires, strikes, labour disputes, accidents, or any act in consequence of compliance with any order of any government or governmental authority; “Project” means the services to be provided by the Consultant to the Client as specified in the Purchase Order; “Purchase Order” means the document outlining the services to be provided by the Consultant to the Client; “Subcontractor” means an affiliate or subsidiary of the Consultant, or an independent contractor, respectively, which is qualified to perform the applicable services as stipulated by the Contract.
Article 1 – SCOPE OF WORK
1.1 Services. The Client has engaged the Consultant to provide services in connection with oven building, use and/or maintenance. Consultant will lead the Client through their chosen consultation service as outline in the Purchase Order.
1.2 Time and Availability. Consultant shall have discretion in selecting the dates and times it performs such consulting services throughout the period of service giving due regard to the needs of the Client. If the Client deems it necessary for the Consultant to provide more services the Consultant is not obligated to undertake such work until the Consultant and Client have agreed on a rate of compensation.
1.3 Confidentiality. In order for Consultant to perform the consulting services, it may be necessary for the Client to provide Consultant with Confidential Information (as defined below) regarding the Client’s business and products. The Client will rely heavily upon the Consultant’s integrity and prudent judgment to use this information only in the best interests of the Client.
1.4 Client’s Obligation. The Client shall make available to the Consultant all information and documents that the Consultant deems necessary to be able to carry out the project correctly, in the specified form and manner. The Client shall also provide all cooperation required for the proper and timely performance of the project.
1.5 Standard of Conduct. In rendering consulting services under this Agreement, Consultant shall conform to high professional standards of work and business ethics. Consultant shall not use time, materials, or equipment of the Client without the prior written consent of the Client. In no event shall Consultant take any action or accept any assistance or engage in any activity that would result in any university, governmental body, research institute or other person, entity, or organization acquiring any rights of any nature in the results of work performed by or for the Client.
1.6 Outside Services. Consultant shall not use the service of any other person, entity, or organization in the performance of Consultant’s duties without the prior written consent of an officer of the Client. Should the Client consent to the use by Consultant of the services of any other person, entity, or organization, no information regarding the services to be performed under this Agreement shall be disclosed to that person, entity, or organization until such person, entity, or organization has executed an agreement to protect the confidentiality of the Client’s Confidential Information (as defined in Article 6) and the Client’s absolute and complete ownership of all right, title, and interest in the work performed under this Agreement.
1.7 Reports. Consultant shall periodically provide the Client with written reports of his or her observations and conclusions regarding the consulting services. Upon the termination of this Agreement, Consultant shall, upon the request of Client, prepare a final report of Consultant’s activities.
– RELEASE FROM LIABILITY IN CASE OF INJURY OR LOSS
2.1 Waiver Indemnity Agreement. The Client is aware and understands that building and operating ovens are inherently hazardous activities, and they are voluntarily participating in such activities, and being in the vicinity of such activities with full knowledge of the dangers involved and the Client assumes all the risk thereof of all persons involved.
2.2 Agreement Not to Sue. The Client agrees that they and all parties involved in this Project will not make a claim against, sue, demand compensation or indemnity from the Consultant, for any loss or damage arising or resulting from any bodily injury, disability, illness, disease, death, financial loss, property loss, damage or destruction, or other harm of whatever nature, whether foreseen or unforeseen, that may be sustained or suffered by the Client or any other persons as a direct or indirect consequence of the Clients participation, or the participation of any other person, in this project.
2.3 Release from Liability. The Client understands and acknowledge that this release is a release of legal liability. In the event of any litigation, this release may be raised as a defense and bar to, and as a waiver and release of, legal rights that might otherwise be asserted by the Client.
– INDEPENDENT CONTRACTOR
3.1 Independent Contractor. Consultant is an independent contractor and is not an employee, partner, or co-venturer of, or in any other service relationship with, the Client. The manner in which Consultant’s services are rendered shall be within Consultant’s sole control and discretion. Consultant is not authorized to speak for, represent, or obligate the Client in any manner without the prior express written authorization from the Client.
3.2 Taxes. Consultant shall be responsible for all taxes arising from compensation and other amounts paid under this Agreement, and shall be responsible for all payroll taxes and fringe benefits of Consultant’s employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Client on behalf of Consultant or his/her employees. Consultant understands that he/she is responsible to pay, according to law, Consultant’s taxes and Consultant shall, when requested by the Client, properly document to the Client that any and all federal and state taxes have been paid.
3.3 Benefits. Consultant and Consultant’s employees will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of the Client. No workers’ compensation insurance shall be obtained by Client covering Consultant or Consultant’s employees.
– COMPENSATION FOR CONSULTING SERVICES
4.1 Compensation. The Client shall pay the Consultant fees at the rate or amount specified in the Purchase or Contract.
4.2 Reimbursement. The Client agrees to reimburse Consultant for all actual reasonable and necessary expenditures, which are directly related to the consulting services. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), telephone calls, and postal expenditures. Expenses incurred by Consultant will be reimbursed by the Client within 15 days of Consultant’s proper written request for reimbursement.
– TERM AND TERMINATION
5.1 Term. This Agreement shall be effective as of the date of purchase and extend to the finish date of the Client’s Project, or the date agreed upon by the Consultant and Client. The Client and Consultant may negotiate to extend the term of this Agreement and the terms and conditions under which the relationship shall continue.
5.2 Termination. The Client may terminate this Agreement for “Cause,” after giving Consultant written notice of the reason. Cause means: (1) Consultant has breached the provisions of Article 5 or 7 of this Agreement in any respect, or materially breached any other provision of this Agreement and the breach continues for 30 days following receipt of a notice from the Client; (2) Consultant has committed fraud, misappropriation, or embezzlement in connection with the Client’ s business; (3) Consultant has been convicted of a felony; or (4) Consultant’s use of narcotics, liquor, or illicit drugs has a detrimental effect on the performance of his or her employment responsibilities, as determined by the Client.
5.3 Responsibility upon Termination. Any equipment provided by the Client to the Consultant in connection with or furtherance of Consultant’s services under this Agreement, including, but not limited to, computers, laptops, and personal management tools, shall, immediately upon the termination of this Agreement, be returned to the Client.
5.4 Survival. The provisions of Articles 2, 6, 7, 8, and 9 of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.
ARTICLE 6 –
6.1 Obligation of Confidentiality. In performing consulting services under this Agreement, Consultant may be exposed to and will be required to use certain “Confidential Information” (as hereinafter defined) of the Client. Consultant agrees that Consultant will not and Consultant’s employees, agents, or representatives will not use, directly or indirectly, such Confidential Information for the benefit of any person, entity, or organization other than the Client, or disclose such Confidential Information without the written authorization of the Client, either during or after the term of this Agreement, for as long as such information retains the characteristics of Confidential Information.
6.2 Property of the Client. Consultant agrees that all plans, manuals, and specific materials developed by the Consultant on behalf of the Client in connection with services rendered under this Agreement, are and shall remain the exclusive property of the Client. Promptly upon the expiration or termination of this Agreement, or upon the request of the Client, Consultant shall return to the Client all documents and tangible items, including samples, provided to Consultant or created by Consultant for use in connection with services to be rendered hereunder, including, without limitation, all Confidential Information, together with all copies and abstracts thereof.
ARTICLE 7 –
RIGHTS AND DATA
All drawings, models, designs, formulas, methods, documents, and tangible items prepared for and submitted to the Client by Consultant in connection with the services rendered under this Agreement shall belong exclusively to the Client and shall be deemed to be works made for hire (the “Deliverable Items”). To the extent that any of the Deliverable Items may not, by operation of law, be works made for hire, Consultant hereby assigns to the Client the ownership of copyright or mask work in the Deliverable Items, and the Client shall have the right to obtain and hold in its own name any trademark, copyright, or mask work registration, and any other registrations and similar protection which may be available in the Deliverable Items. Consultant agrees to give the Client or its designees all assistance reasonably required to perfect such rights.
– CONFLICT OF INTEREST AND NON-SOLICITATION
8.1 Conflict of Interest. Consultant covenants and agrees not to consult or provide any services in any manner or capacity to a direct competitor of the Client during the duration of this Agreement unless express written authorization to do so is given by the Client.
8.2 Non-Solicitation. Consultant covenants and agrees that during the term of this Agreement, Consultant will not, directly or indirectly, through an existing corporation, unincorporated business, affiliated party, successor employer, or otherwise, solicit, hire for employment or work with, on a part-time, consulting, advising, or any other basis, other than on behalf of the Client any employee or independent contractor employed by the Client while Consultant is performing services for the Client.
ARTICLE 9 – RIGHT TO INJUNCTIVE RELIEF
Consultant acknowledges that the terms of Articles 6, 7, and 8 of this Agreement are reasonably necessary to protect the legitimate interests of the Client, are reasonable in scope and duration, and are not unduly restrictive. Consultant further acknowledges that a breach of any of the terms of Articles 6, 7, or 8 of this Agreement will render irreparable harm to the Client, and that a remedy at law for breach of the Agreement is inadequate, and that the Client shall therefore be entitled to seek any and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy that may be available under any applicable law or agreement between the parties. Consultant acknowledges that an award of damages to the Client does not preclude a court from ordering injunctive relief. Both damages and injunctive relief shall be proper modes of relief and are not to be considered as alternative remedies.
ARTICLE 10 –
10.1 Construction of Terms. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
10.2 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of Vaud, Switzerland.
10.3 Complete Agreement. This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral.
10.4 Injunctive Relief for Breach. Consultant’s obligations under this Agreement are of a unique character that gives them particular value; breach of any of such obligations will result in irreparable and continuing damage to Client for which there will be no adequate remedy at law; and, in the event of such breach, Client will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
10.5 Modification. No modification, termination, or attempted waiver of this Agreement, or any provision thereof, shall be valid unless in writing signed by the party against whom the same is sought to be enforced.
10.6 Waiver of Breach. The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
10.7 Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that the Agreement shall be assignable by the Client without Consultant’s consent in the event the Client is acquired by or merged into another corporation or business entity. The benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors and assigns.
10.8 No Conflict. Consultant warrants that the Client has not previously assumed any obligations inconsistent with those undertaken by Consultant under this Agreement.
10.9 Force Majeure. neither Consultant or Client shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with a Force Majeure event.