EAGLE CENTER FOR LEADERSHIP CONSULTING SERVICES AGREEMENT
1. CONSULTING SERVICES.
1.1 Consulting Services. Subject to the terms of this Agreement, ECFL will provide Customer consulting services ("Consulting Services") as provided on the applicable order form signed by the parties ("Order Form "). Consulting Services includes but is not limited to Coaching and Seminars.
1.2 General Provisions. Consulting Services are only for Customer’s internal use and Customer may not use the Consulting Services to supply any consulting to any third party.
Customer will pay to ECFL the fees and other compensation set forth in each Order Form. Customer will also reimburse ECFL for all reasonable out-of-pocket travel, living and any other reimbursable items set forth in each Order Form. ECFL will invoice Customer for all fees, charges and reimbursable items payable to ECFL on a monthly basis as such payments are due. In addition, Customer agrees to pay amounts equal to any Federal, state or local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to this Agreement, any amounts payable by Customer to ECFL under this Agreement, or any Consulting Services provided by ECFL to Customer pursuant to this Agreement, exclusive of taxes based on ECFL’ net income. Customer will pay the invoiced amount in full within thirty (30) days of the date of each invoice, without deduction, setoff, defense or counterclaim for any reason. Customer will pay interest, at a rate equal to one percent (1%) per month on any undisputed amount that remains unpaid thirty (30) days after the date of the invoice, except that for Customers who are federal government entities, payment shall be made in accordance with the Prompt Payment Act (31 U.S.C. 3901) and applicable prompt payment regulations.
3.1 ECFL Proprietary Intellectual Property. Customer acknowledges that as part of performing the Consulting Services, ECFL personnel may utilize proprietary software, methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship or creative works, ideas, knowledge, data or other materials which have been originated or developed by the personnel of ECFL or its Affiliates or by third parties under contract to ECFL to develop same, or which have been purchased by, or licensed to, ECFL (collectively, “ECFL Proprietary Intellectual Property”).
ECFL Proprietary Intellectual Property includes, but is not limited to, any new or improved methodologies or tools developed by ECFL during the course of any project under this Agreement. Customer agrees that ECFL Proprietary Intellectual Property is the sole property of ECFL (or its licensor) and that ECFL (or its licensor) will at all times retain sole and exclusive title to and ownership thereof. Except as expressly provided above, nothing contained in this Agreement or otherwise will be construed to grant to Customer any right, title, license or other interest in, to or under any ECFL Proprietary Intellectual Property.
3.2 Ownership of Deliverables. Unless otherwise set forth in an Order Form, Customer acknowledges that it is not obtaining any intellectual property rights from ECFL under this Agreement. Customer acknowledges that in the course of performing its obligations under this Agreement, ECFL may create content or other works of authorship (collectively “Work Product”). Subject to Customer's rights in its Confidential Information, ECFL shall own all right, title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of Consulting Services (a “Deliverable”), ECFL retains all right, title and interest in such Deliverables and hereby grants to Customer a nonexclusive, worldwide right and license to use, execute, reproduce, display and perform of any such Deliverables
3.3 Residual Rights. Notwithstanding the above, Customer agrees that ECFL, its employees and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques or skills gained or learned during the course of any Consulting Services performed under this Agreement, subject to its obligations respecting Customer’s Confidential Information pursuant to Section 4.
4. CONFIDENTIAL INFORMATION.
The term “Confidential Information” will mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the efforts contemplated under this agreement, including (i) all trade secrets, (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any related information, and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, Customer and ECFL will each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement or any Order Form; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. Each party will disclose the Confidential Information of the other only to those of its employees and contractors having a need to know such Confidential Information and will take all reasonable precautions to ensure that such employees and contractors comply with the provisions of this section. The obligations of either party under this section will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the other party. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it; provided that the Receiving Party gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy, discloses only such Confidential Information as is required by the governmental entity, and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed.
5. Warrantee and Liability
5.1 Limited Warranty. With respect to any Consulting Services, ECFL warrants the following for a period of thirty (30) days following delivery of the performance of Consulting Services (the “Warranty Period”): the applicable Consulting Services rendered under this Agreement will be performed by qualified personnel; and the Consulting Services performed will substantially conform to any applicable requirements set forth in the Order Form.
5.2. Remedies. ECFL does not warrant that any Consulting Services will be provided uninterrupted or error-free, provided that ECFL will remain obligated pursuant to this Section. In the event that any Consulting Services fail to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of Customer will be for ECFL, at its expense, to promptly use commercially reasonable efforts to cure or correct such failure. The foregoing warranty is expressly conditioned upon (i) Customer providing ECFL with prompt written notice of any claim thereunder prior to the expiration of the applicable Warranty Period, which notice must identify with particularity the non-conformity; (ii) Customer’s full cooperation with ECFL in all reasonable respects relating thereto, assisting ECFL to locate and reproduce the non-conformity; and (iii) with respect to any Deliverable, the absence of any alteration or other modification of such Deliverable by any person or entity other than ECFL.
5.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, ECFL DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, NON- INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
6.1 No Employee Relationship. ECFL' employees are not and will not be deemed to be employees of Customer. ECFL will be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation and any similar taxes associated with employment of ECFL' personnel. ECFL’ employees will not be entitled to any benefits paid or made available by Customer to its employees.
6.2 Subcontractors. ECFL may engage third parties to furnish services in connection with the Consulting Services; provided that such third parties have executed appropriate confidentiality agreements with ECFL. In addition, Consulting Services may be performed by Affiliates of ECFL. No engagement of a subcontractor will relieve ECFL from any of its obligations under this Agreement.
6.3 Non-Solicitation. During the Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, Customer shall not solicit nor approach in any way any of ECFL’ employees or contract staff (“Restricted Persons”) with a view to: (i) offering such Restricted Persons, employment; or (ii) soliciting services from them on their own account; or (iii) encouraging them to provide their services to a third party rather than ECFL; or (iv) offering to them the opportunity to perform services substantially similar to the Consulting Services. In the event of a breach of this Section resulting in Restricted Persons leaving the employment of ECFL and commencing employment (whether as an employee or contract staff) with the Customer then the Customer shall pay to ECFL by way of liquidated damages (which both parties hereby agree shall be a genuine pre-estimate of loss and not a penalty) a sum equal to 50% of the gross annual salary (including any benefits in kind, bonus payments, commissions and other emoluments) of the applicable Restricted Person as applied at the date he/she ceased to be employed by/contracted to ECFL.
WARRANTY AND LIABILITY.
7. TERM AND TERMINATION.
The term of this Agreement will commence on the Effective Date and will remain and continue in effect, unless sooner terminated as provided under this Agreement. This Agreement may be terminated in whole or in part by either party (the “Non-Breaching Party”) upon written notice to the other party if any of the following events occur by or with respect to such other party (the “Breaching Party”): (i) the Breaching Party commits a material breach of any of its obligations under this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of such breach or fails to reach an agreement with the Non-Breaching Party regarding the cure thereof; or (ii) any insolvency of the Breaching Party, any filing of a petition in bankruptcy by or against the Breaching Party, any appointment of a receiver for the Breaching Party, or any assignment for the benefit of the Breaching Party’s creditors. Upon termination, ECFL will be entitled to recover payment for all Consulting Services and related expenses rendered through the date of termination, including for work in progress. In the event of termination or upon expiration of this Agreement, Sections 2, 3, 4, 5 (subject to the expiration of any warranty period), 6, 7, 8 and 9 will survive and continue in full force and effect.
8. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCE WILL ECFL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF THE PARTY SUFFERING SUCH DAMAGES, OR AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ECFL’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that (i) either party may assign this Agreement or rights granted hereunder to an Affiliate without the consent of the other party and (ii) the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. Affiliate means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Consulting Services to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to affect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of ECFL and Customer and do not create any right in favor of any third party. This Agreement will be governed by the laws of the State of Alabama, without reference to the principles of conflicts of law. The parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any State having jurisdiction. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All Consulting Services are Commercial Items as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101. The parties will attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation in Alabama. Any litigation related to this Agreement shall be brought in the state or federal courts located in Alabama, and only in those courts and each party irrevocably waives any objections to such venue. All notices must be in writing and will be effective three (3) days after the date sent to the address shown above.