On Call Innovation™ Labor Services
This Consulting Agreement (the “Agreement”) is made as of the Effective Date set forth in the signature line below by and between the entity set forth in the signature line below (referred to as “Subscriber”) and Innovative NOI, Inc. a Delaware Corporation (referred to as “INOI”).
1. Engagement of Services. Subject to the terms of this Agreement, INOI will render labor services where the monthly time allotted shall be dictated by the subscription tier chosen by the On Call Innovation™ Subscriber, accepted by INOI (the “Services”). INOI will have exclusive control over the manner and means of performing the Services, including the choice of place and time. INOI will provide, at INOI’s own expense, a place of work and all equipment, tools and other materials necessary to complete the Services; however, to the extent necessary to facilitate performance of the Services, Subscriber may, in its discretion, make its equipment or facilities available to INOI at INOI’s request. While on the Subscriber’s premises, INOI agrees to comply with Subscriber’s then-current access rules and procedures, including those related to safety, security, and confidentiality. Should any credential be required at any time, INOI will be provided such credential by Subscriber on a case-by-case basis.
2.1 Initial Term. For the initial term as established in section 8, Subscriber will pay INOI the flat rate monthly fee set forth in the subscription tier chosen on a monthly basis for Services rendered pursuant to this Agreement as INOI’s sole compensation for such Services. Upon the termination of this Agreement for any reason as defined in section 8, unless the initial term has concluded, INOI will be paid 100% of fees related to the initial term for work which has or has not been completed, regardless of completion.
2.2 Billing Procedure. Subscriber agrees to pay the full monthly fee that is set forth in the subscription tier chosen. The monthly auto-payment can be made with a VISA, Mastercard, American Express, Discover, or JCB, Debit or Credit Card.
2.3 Delays. Delays resulting from the action or inaction of Subscriber may result in an adjustment in fees by INOI. In addition, INOI may suspend performance of Services and withhold delivery of Deliverables until payment in full of all amounts due. INOI shall not be made liable for any damages, losses, or liabilities that may arise out he INOI’s suspension of performance and/or withholding of Deliverables due to Subscribers non-payment.
2.4 Late Payment. Late payments shall accrue interest at the rate of 5% per month. INOI shall be entitles to all of its costs of collection of amounts outstanding hereunder including without limitation the fees of attorneys.
3. Ownership of Work Product. Subscriber agrees that any and all Work Product (as defined below) is the exclusive intellectual property of the INOI. INOI hereby unconditionally and irrevocably grants to Subscriber an exclusive, worldwide, fully paid and royalty-free, irrevocable, lifetime license, establishing the Subscribers right, title and interest worldwide in and to any deliverables specified in a Project Assignment (“Deliverables”), and to any ideas, concepts, processes, discoveries, developments, formulae, information, materials, improvements, designs, artwork, content, software programs, other copyrightable works, and any other work product created, conceived or developed by INOI (whether alone or jointly with others) for Subscriber during the term of this Agreement, including all copyrights, patents, trademarks, trade secrets, and other intellectual property rights therein the (“Work Product”). Subscriber retains no rights to assign the Work Product exterior to the Subscriber’s organization and agrees not to challenge the validity of INOI’s ownership of the Work Product. Subscriber unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against INOI or INOI’s customers.
4. Representations and Warranties. INOI represents and warrants that: (a) the Services shall be performed in a professional manner and in accordance with the industry, (b) Work Product will be an original work of INOI, (c) INOI has the right and unrestricted ability to assign the ownership of Work Product to Subscribers as set forth in Section 3 (including without limitation the right to assign the ownership of any Work Product created by INOI’s employees as defined in section 7), (d) neither the Work Product nor any element thereof will infringe upon or misappropriate any copyright, patent, trademark, trade secret, right of publicity or privacy, or any other proprietary right of any person, whether contractual, statutory or common law, (e) INOI will comply with all applicable federal, state, local and foreign laws governing self-employed individuals, including laws requiring the payment of taxes, such as income and employment taxes, and social security, disability, and other contributions. Subscriber agrees to indemnify and hold INOI harmless from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys’ fees) arising from or relating to the breach or alleged breach by Subscriber of the representations and warranties set forth in this Section 4.
5. Independent Contractor Relationship. INOI’s relationship with Subscriber is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between Subscriber and any of INOI’s industry experts, employees, or agents. Unless it is specifically required to complete the Services and is authorized by the Subscriber in advance, INOI is not authorized to make any representation, contract or commitment on behalf of Subscriber. INOI and INOI’s employees as defined in section 7, will not be entitled to any of the benefits that Subscriber may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Because INOI is an independent contractor, Subscriber will not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of INOI. INOI is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of Services and receipt of fees under this Agreement. No part of INOI’s compensation will be subject to withholding by Subscriber for the payment of any social security, federal, state or any other employee payroll taxes. Subscriber will regularly report amounts paid to INOI by filing Form 1099-MISC with the Internal Revenue Service as required by law.
6. Confidential Information. INOI agrees that during the term of this Agreement and thereafter it will not use or permit the use of Subscriber’s Confidential Information in any manner or for any purpose not expressly set forth in this Agreement, will hold such Confidential Information in confidence and protect it from unauthorized use and disclosure, and will not disclose such Confidential Information to any third parties except as set forth in Section 7 below. (“Confidential Information”) as used in this Agreement shall mean all information disclosed by Subscriber to INOI, whether during or before the term of this Agreement, that is not generally known in the Subscriber’s trade or industry and shall include, without limitation: (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of Subscriber or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; (d) existence of any business discussions, negotiations or agreements between the parties; and (e) any information regarding the skills and compensation of employees, contractors or other agents of Subscriber or its subsidiaries or affiliates. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Subscriber or INOI in the course of Subscriber’s business. Confidential Information does not include information that (x) is or becomes a part of the public domain through no act or omission of INOI, (y) is disclosed to INOI by a third party without restrictions on disclosure, or (z) was in INOI’s lawful possession prior to the disclosure and was not obtained by INOI either directly or indirectly from Subscriber. In addition, this section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that INOI shall first have given notice to Subscriber and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued. All Confidential Information furnished to INOI by Subscriber is the sole and exclusive property of Subscriber or its suppliers or customers. Upon request by Subscriber, INOI agrees to promptly deliver to Subscriber the original and any copies of the Confidential Information. Notwithstanding the foregoing nondisclosure obligations, pursuant to 18 U.S.C. Section 1833(b), INOI shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
7. INOI’s Employees, Industry Experts, and Agents. INOI will ensure that each of its employees, industry experts, and agents, who will have access to any Confidential Information or perform any Services has entered into a legally binding written agreement that is expressly for the benefit of Subscriber and protects Subscriber’s rights and interests to at least the same degree as Section 6. Subscriber waves the right to refuse or limit INOI’s use of any employee, industry expert. Subscriber agrees not to engage in any attempt whatsoever, to hire, or to engage as independent contractors, INOI’s employees, industry experts, or agents, for a period of 180 days following the termination of this Agreement as defined in Section 8, except as may be mutually agreed in advance.
8. Term and Termination.
8.1 Term. The initial term of this Agreement is twelve (12) months from the Effective Date set forth in the signature line below. Thereafter, this Agreement will automatically renew on a month-to-month term.
8.2 Termination. Subscriber or INOI may terminate this Agreement with or without cause at any time upon 15 days’ prior written notice to INOI or Subscriber. Should contract termination be initiated by Subscriber after the initial term has started with an executed contract, Subscriber will be fully responsible to compensate INOI for the initial term as defined in Section 2. Should contract termination be initiated by Subscriber after the initial term has concluded, Subscriber will not be responsible to compensate INOI in the next monthly billing cycle.
8.3 Survival. The rights and obligations contained in Sections 3 (“Ownership of Work Product”), 4 (“Representations and Warranties”), and 6 (“Confidential Information”) will survive any termination or expiration of this Agreement.
9. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set below or such other address as either party may specify in writing.
10. Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of Texas, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.
11. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
12. Waiver. The waiver by Subscriber or INOI 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 breaching party.
13. Injunctive Relief for Breach. INOI’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 Subscriber for which there will be no adequate remedy at law; and, in the event of such breach, Subscriber will be entitled to injunctive relief and/or a decree for specific performance up to, but not exceeding, a maximum of ten thousand dollars ($10,000)
14. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all services undertaken by INOI for Subscriber; provided, however, that in the event of any conflict between the terms of this Agreement and any Project Assignment, the terms of the applicable Project Assignment will control. This Agreement may only be changed or amended by mutual agreement of authorized representatives of the parties in writing. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Here’s How Recurring Payments Work:
You authorize regularly scheduled charges to your Debit or Credit Card. You will be charged each billing period for the total amount due for that period. A receipt will be emailed to you and the charge will appear on your bank or credit card statement. You agree that no prior notification will be provided to you for each scheduled payment.
I understand that this authorization will remain in effect until I cancel in writing, and I agree to notify Innovative NOI, Inc. in writing of any changes in my account information or termination of this authorization at least 15 days prior to the next billing date. If the above noted payment date falls on a weekend or holiday, I understand that the payment may be executed on the next business day. For debit card transactions involving my checking/savings account, I understand that because these are electronic transactions, these funds may be withdrawn from my account as soon as the above stated periodic transaction dates. In the case of a debit transaction being rejected for Non-Sufficient Funds (NSF) I understand that Innovative NOI, Inc. may at its discretion attempt to process the charge again within 30 days and agree to an additional $15 charge for each attempt returned NSF which will be initiated as a separate transaction from the authorized recurring payment. I acknowledge that the origination of debit transactions to my account must comply with the provisions of U.S. law. I certify that I am an authorized user of this credit card/debit account and will not dispute the scheduled transactions with my bank or credit card company; provided the transactions correspond to the terms indicated in this authorization form.