Innormax, LLC – Consulting Services Agreement
Consulting Services Agreement
This Consulting Services Agreement is entered into between the Client and Innormax, LLC.
ConsultingServices. Innormax, LLC agrees to provide the consulting services to Customer as set forth herein. The Consulting Services will be performed as outlined in Exhibit A – Statement of Work.
Payment for Consulting Services.The Consulting Services are being provided to Customer on a time and materials basis. Customer agrees to pay Innormax, LLC a consulting fee based on the payment schedule outlined in Exhibit A – Statement of Work. Travel costs are to be reimbursed at actual cost.
Term.The term of this Agreement is from the earlier of the date this agreement is signed or the date that work has begun for Customer until the earlier of (a) completion of the Consulting Services, (b) termination of contract as pursuant to the conditions outlined in “Termination for Convenience” and “Termination for Cause”.
Termination for Convenience. Customer may terminate this Agreement at any time upon ten (10) days’ written notice to Innormax, LLC and upon payment to Innormax, LLC of all Consulting Fees and Expenses through the date of termination.
Termination for Cause. Either party shall have the right, in addition and without prejudice to any other rights or remedies, to terminate this Agreement as follows: by Innormax, LLC, upon ten (10) days’ written notice, if Customer fails to pay the amounts due to Innormax, LLC pursuant to Invoices; by either party for any material breach of this Agreement that is not cured within seven (7) days of receipt by the party in default of a notice specifying the breach and requiring its cure; or by either party, effective immediately upon written notice if (a) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy, (b) a proceeding is commenced by or against the other party for relief under the bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or (c) the other party is adjudged bankrupt.
Obligations on Termination. Upon termination of this Agreement, the parties shall have no further obligations pursuant to the terms of this Agreement except that Sections “Invoices”, “Termination for Convenience”, “Termination for Cause”, “Obligations on Termination”, “Ownership”, “Rights in Data”, “Assignments of Rights”, and “Confidentiality” shall survive termination.
Ownership. Customer and Innormax, LLC agree that the Work Product and any and all related copyrights, trademarks, patents, trade secrets, Confidential Information, and any other proprietary rights are the property of Innormax, LLC except as provided in the Termination Sections of this Agreement, Customer does not have any right, ownership, or title in the Work Product or any related copyrights, trademarks, patents, trade secrets, Confidential Information, or any other proprietary rights.
Assignment of Rights. Innormax, LLC specifically agrees that all copyrights and other proprietary rights in computer programs, files, documentation, reports, notes, and related materials that are paid for by Customer or developed by Consultant in connection with this Agreement are owned by Innormax, LLC, and Innormax, LLC assigns to Customer unlimited, perpetual, royalty-free license to use or modify the work product insofar as usage is limited to the operations of the business for which the work product is developed. The right to resell or redistribute the work product is strictly prohibited.
Rights in Data.Notwithstanding the provisions of the Ownership section above, it is understood and agreed that Innormax, LLC may use its proprietary intellectual property in providing the Consulting Services and in the course of providing Consulting Services may develop computer software. If Innormax, LLC uses any of its proprietary intellectual property and in the course of providing the Consulting Services Innormax, LLC develops any additional software, Customer agrees that this proprietary software, including any conversion programs or interface programs used or developed during the course of providing the Consulting Services may be used by Innormax, LLC in providing consulting services to future customers of Innormax, LLC. Customer shall not acquire any proprietary rights to such intellectual property by virtue of this Agreement. Additionally, any Confidential Information and data that is the property of Customer shall remain the property of Customer and shall not be transferred to Innormax, LLC
Confidentiality. Each party acknowledges that it may receive confidential information and trade secrets from the other party while carrying out the actions outlined in this Agreement. Confidential Information includes all information one party receives from the other party, except anything designated as not confidential. During the period this Agreement is in effect, and at all times afterwards, each party, and its employees, contractors, consultants and agents, will (a) safeguard the other party’s Confidential Information with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of this information; (c) not use such information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish or otherwise make available this information to any third party without the prior written consent of the disclosing party.
Limitations on Confidentiality Restrictions. “Confidentiality” above does not apply to any information that (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order); (e) is disclosed by the receiving party with the disclosing party’s approval; and (f) is independently developed by the receiving party without any use of confidential information. With regard to subparagraph (d) above, the receiving party will use all reasonable efforts to give the disclosing party ten (10) days’ prior written notice of any disclosure of information under this Agreement.
Nondisclosure Agreements. Each party agrees to execute a reasonable nondisclosure agreement if asked to do so by the other party.
Warranties.
Innormax, LLC warrants as follows:
Non-infringement. Innormax, LLC warrants that the Consulting Services and the Work Product, to the extent created by Innormax, LLC, will not violate or in any way infringe upon the rights of third parties, including property, contractual, employment, trade secrets, proprietary information and nondisclosure rights, or any trademark, copyright or patent rights.
Customer warrants as follows:
Ownership/Right to Use. Customer warrants that it owns or has the right to use by any and all licenses the computer software program(s) that is the subject of Innormax, LLC’ services. Customer warrants that it has obtained and paid for all the necessary user fees and source code licenses for the computer software programs for which Innormax, LLC is being hired to configure, customize or otherwise modify.
Disclaimer. The warranties set forth in “warranties” above, are in lieu of, and this agreement expressly excludes, all other warranties, expressed or implied, oral or written, including and without limitation, (a) any warranty that the software is error-free, will operate without interruption, or is compatible with all equipment and software configurations; (b) any and all warranties of merchantability; and (c) any and all warranties of fitness for a particular purpose.
Limitation of Liability. Innormax, LLC is not liable for any indirect, incidental, special, or consequential damages, including the loss of profits, revenue, data, or use or cost of procurement of substitute goods incurred by Customer or any third party, whether in an action in contract or tort or based on a warranty, even if Innormax, LLC or any other person has been advised of the possibility of such damages. Innormax, LLC’ liability for damages under this agreement shall not exceed the amounts actually paid by CUSTOMER to Innormax, LLC for the consulting services provided under the terms of this agreement.
Indemnification by Innormax, LLC. Innormax, LLC indemnifies and agrees to hold Customer harmless from any loss, claim, or damage (including attorneys’ fees) to third persons or property which arise out of this Agreement, the Work Product, or the Consulting Services to the extent that the loss, claim, or damage is caused by Innormax, LLC’ breach of any term of this Agreement or the intentional act of Innormax, LLC. This indemnity survives termination of this Agreement.
Indemnification by Customer. Customer indemnifies and agrees to hold Innormax, LLC harmless from any loss, claim or damage (including attorneys’ fees) arising out of claims by third parties related to the computer programs and the modification, customization and/or other enhancement of the same by any other purported owner of the same.
Nonexclusivity. Customer acknowledges that Innormax, LLC may in the future be performing similar consulting services for businesses other than Customer including, without limitation, competitors of Customer and/or other computer software companies. Nothing in this Agreement shall be construed so as to prohibit Innormax, LLC from performing those consulting services.
Independent Contractor. Innormax, LLC and its employees are, and at all times will be considered, independent contractors. Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither party has the authority to enter into any contracts on behalf of the other party or otherwise act on behalf of the other party.
Assignment. Neither party may assign or transfer its rights or delegate its obligations under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement.
Entire Agreement. This Agreement, along with the Exhibits attached and incorporated in this Agreement, constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written statements, agreements, understandings, or arrangements between the parties with respect to the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party to this Agreement.
Notices. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, email, hand delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service and addressed as follows:
Force Majeure. Neither party shall be liable to the other for its failure to perform any of its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond its reasonable control, provided that the party experiencing the delay promptly notifies the other of the delay.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California as applied to agreements made between residents of California for performance entirely within California.
Severability. In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, that provision shall be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
Waiver. The failure of either party to enforce any provisions of this Agreement is not and shall not be considered a waiver of the provisions or of the right of that party to subsequently enforce that, or any other, provision of this Agreement.
Arbitration. In the event of any dispute between the parties arising out of this Agreement, the dispute shall be resolved by arbitration under the Commercial Rules of Arbitration of the American Arbitration Association by an arbitrator at a location in Orange County, California mutually agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual representative and the two party representatives shall, between themselves, choose an arbitrator.
Attorney Fees. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its attorney fees and costs.
Exhibit A – Additional Terms
a) Assist Customer with their SAP Business One implementation. This may include, but is not limited to, configuration, training, documentation, report writing, and general support.
b) Expenses will be billed at actual. Mileage will be billed at the current published IRS rate.
c) Customer will be invoiced monthly due NET 7.
d) Delinquent accounts are subject to a late payment penalty equal to 1.5% per month on the delinquent balance.
e) Standard maximum service credit limit is $10,000 for outstanding invoices. Any deviation must be agreed in writing.
Last Updated: August 23, 2023.
