Professional Services Agreement
This Professional Services Agreement (this “Agreement”), dated as of [DATE] (the “Effective Date”), is by and between Abbsolutely Organized, LLC, an Arizona limited liability company, with offices located at 13951 N. Scottsdale Road, Suite 132, Scottsdale, Arizona 85254 (the “Service Provider”) and [CUSTOMER NAME], with a mailing address of [ADDRESS] (the “Customer”).
Services. Service Provider shall provide to Customer the services (the “Services”) set forth in the statement of work (“Statement of Work”) attached hereto as Exhibit A and incorporated herein by reference. Service Provider shall provide the Services (a) in accordance with the terms and subject to the conditions set forth in this Agreement; (b) using personnel of required skill, experience, and qualifications; (c) in a timely, workmanlike, and professional manner; (d) in accordance with generally recognized industry standards in Service Provider’s field; and (e) to the reasonable satisfaction of Customer. Nothing in this Agreement shall prevent Service Provider from providing the same or similar services to other customers (subject to confidentiality and intellectual property obligations set forth below). Any changes to the scope of Services must be agreed by the parties in a written amendment in accordance with Section 11.6.
Customer’s Obligations. Customer, or the Decision Maker (defined below) shall (a) provide Service Provider with access to Customer’s premises, including access to restrooms as needed, and other facilities as may reasonably be required by Service Provider for the purposes of performing the Services; (b) be ready for scheduled meetings, with Customer being responsible for all Fees if Customer/Decision Maker is late by more than fifteen minutes, regardless of whether Services are actually provided; (c) not change the scope of the project from what was included in a Statement of Work without executing a Change Order; (d) ensure the premises is free of anything that could be deemed a concern to health or safety; (e) remove non-service animals from the premises; (f) be available not less than one (1) hour prior to project completion to understand where items are located and to finalize decision on items categorized for donations or disposal; (g) be solely responsible for any and all third parties present at the premises at the same time as Service Provider; (h) directly arrange and pay for any trash removal following completion of the Services; (i) provide Service Provider with a working/non-expired credit card upon execution of this Agreement; and (j) respond promptly to any Service Provider request for information or approvals that Service Provider requires to perform the Services. Only the individual identified on the Statement of Work as the “Decision Maker” shall be the individual to correspond with and provide direction to Service Provider. The Decision Maker shall review the design board provided as part of the Services within forty-eight (48) hours of receipt and will be charged an additional $175.00 if more than three (3) revisions are made to the original design board. Decision Maker will approve whether cricut or labelmaker labels are to be used during the design process with cricut pricing provided in the Statement of Work.
Term and Termination.
Term; Renewal. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services (the “Term”), unless sooner terminated pursuant to this Section 3.
Termination for Convenience. Customer, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause, by providing at least seven (7) days’ prior written notice to Service Provider.
Termination for Cause. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within a reasonable period of time. Notwithstanding the foregoing, in the event Service Provider is on the Customer’s premises and the Defaulting Party is Customer, one (1) hour verbal notice shall be deemed a reasonable period of time to cure and sufficient notice under this Section to allow Service Provider to terminate this Agreement.
Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason, Service Provider shall: (i) deliver to Customer all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Service Provider in the course of performing the Services for which Customer has paid; (ii) return to Customer all Customer-owned property, equipment, or materials in its possession or control for which Customer has paid; (iii) provide Customer the option to pay in full for any materials or products purchased by Service Provider on behalf of Customer to receive such materials or products, otherwise, Service Provider will not provide the same to Customer; and (iii) remove any Service Provider-owned property, equipment, or materials located at Customer’s locations.
Survival. The rights and obligations of the parties set forth in Section 3.4, Section 3.5, Section 5, Section 6, Section 7, Section 8, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
Fees and Expenses; Payment Terms.
In General. In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees (the “Fees”) set forth in an applicable Statement of Work and/or Change Order. The manner and time for payment is set forth in Section 4.2. In addition, Customer shall, within 10 days of invoice, reimburse Service Provider for all actual, documented, pre-approved and reasonable travel and out-of-pocket expenses incurred by Service Provider in performing the Services. Customer acknowledges and agrees: (i) all Fees associated with professional services included in a Statement of Work are non-refundable; (ii) Service Provider has the discretion, without Customer’s prior approval, to add up to three (3) hours per person (at the same rate for such time in the Statement of Work) working for Service Provider and materials/product not exceeding $________, to complete the project outlined in a Statement of Work (any time in excess of three (3) hours or materials/product in excess of $______ will require the approval of Customer).
Invoicing and Payment. Service Provider shall issue invoices to Customer at the following time: (a) simultaneous with the distribution of this Agreement, which invoice will consist of all professional services and fifty percent (50%) of the advertised retail cost of product/materials from the applicable third party retailer which is set forth in the Statement of Work; and (b) upon completion of the Services set forth in the Statement of Work and associated Change Orders, which invoice will consist of the remaining fifty percent (50%) of the advertised retail cost of product/materials from the applicable third party retailer set forth in the Statement of Work and any Fees under Section 4.1(ii) above. Each invoice shall include a detailed breakdown of reimbursable expenses incurred in connection with the applicable Services. Customer shall pay all amounts due to Service Provider within 10 days after Customer’s receipt of such invoice, with no right of setoff, with the requirement that the first invoice must be paid prior to the commencement of any Services. All payments hereunder shall be in US dollars and made by credit card or electronic check, a fee of three percent (3%) of the total amount to be paid applies when using a credit card for payment; electronic checks are accepted without this fee. If Customer fails to timely pay an invoice, Service Provider may (a) charge a late fee of $50.00 per day, from the date such payment was due until the date paid; (b) suspend performance for all Services until payment has been made in full, and (c) charge a credit card on file for the Customer for the amount due plus accrued late fees.
Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder except for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Confidential Information.
All non-public, confidential or proprietary information of either party (“Confidential Information”), including, but not limited to, information about such party’s business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement, and whether or not marked, designated, or otherwise identified as “confidential,” is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party’s disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.
The Receiving Party shall be responsible for any breach of this Section 5 caused by any of its employees, contractors, agents, or representatives. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each party’s obligations under this Section 5 will survive termination or expiration of this Agreement for a period of one (1) year, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
Representations and Warranties.
Mutual. Each party represents and warrants to the other party that: (a) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Service Provider. Service Provider represents and warrants to Customer that: (a) it shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and in compliance with all applicable laws, and shall devote adequate resources to meet its obligations under this Agreement; and (b) the Services and Deliverables shall conform in all material respects with the specifications and will be performed to Customer’s reasonable satisfaction.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 6, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnification. Each party (“Indemnifying Party”) shall indemnify, defend, and hold harmless the other party and its employees, agents, affiliates, successors, and permitted assigns (“Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs, awarded against Indemnified Party in a final non-appealable judgment (collectively, “Losses”), arising out of or resulting from any claim of a third party arising out of or occurring in connection with: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Indemnifying Party’s willful, fraudulent or grossly negligent acts or omissions; or (b) Indemnifying Party’s negligence, willful misconduct, or breach of this Agreement, including but not limited to breach of any representation or warranty made by Indemnifying Party in this Agreement.
LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT, INDEMNIFICATION OBLIGATIONS, OR LIABILITY FOR BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (A) ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) DIRECT DAMAGES OF MORE THAN THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER IN THE TWO (2) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Insurance. During the Term and for a period of one (1) year after expiration or termination of this Agreement for any reason, Service Provider shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers, that includes, but is not limited to: (a) Commercial General Liability with limits no less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate, including bodily injury and property damage and products and completed operations, which policy will include contractual liability coverage insuring the activities of Service Provider under this Agreement. Upon Customer’s request, Service Provider shall provide Customer with a certificate of insurance from Service Provider’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Customer as an additional insured. Except where prohibited by law, Service Provider shall require its insurer to waive all rights of subrogation against Customer’s insurers and Customer or the Indemnified Parties.
Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from events outside of the party’s reasonable control (“Force Majeure Events”), including but not limited to: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The affected party shall resume performance under this Agreement as soon as reasonably practicable after the Force Majeure Event has been resolved or terminated.
Miscellaneous.
Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.
Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
Entire Agreement; Order of Precedence. This Agreement, together with all Exhibits, Statement(s) of Work, Change Orders, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Statement of Work or Change Order, then the terms of this Agreement shall control unless expressly set forth otherwise in the applicable Statement of Work or Change Order.
Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Amendment and Modification; Waiver. This Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. Amendments, modification or supplements to this Agreement may be made by mutually signed change order (“Change Order”) associated with a specific Statement of Work. No failure to exercise any rights, remedy, power or privilege (“Right(s)”) arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any Right hereunder precludes any other or further exercise thereof or the exercise of any other Right.
Severability. No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of this Agreement or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.
Governing Law: Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the state or federal courts in Phoenix, Maricopa County, Arizona, and each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; (b) waives any objection to such courts based on venue or inconvenience; and (c) waives any right to trial by jury. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Equitable Relief; Cumulative Remedies. Each party acknowledges that a breach of Section 5 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.
Media Release. Customer hereby grants Company permission to use Customer’s likeness and premises in a photograph, video, or other digital media (“photo”) in any and all of its publications, including web-based publications, without payment or other consideration. Customer understands and agrees that all photos will become the property of Company and will not be returned. Retaining and using photos in compliance with this Section will not be a violation of any obligations outlined in Section 5.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.