Products & Services Agreement
This Products, Services & Consulting Agreement, dated effective this date of your purchase 2017 (this “Agreement”), is made and entered into by and among You and/or Your Organization (the “Company”) and ProcedureSheets.com (the “Service Provider”).
SCOPE OF WORK
1.1 The Company has engaged Service Provider to provide products & services in connection with the Company’s internal and/or external operations. Such include those outlined in the a la carte product(s) and/or monthly package(s) of ProcedureSheets.com products & services chosen by the Company. Additional services may or may not include: creating process & procedure documentation, setup software technology integrations, deploy and provide training for software technology solutions and such other services as described in Exhibit A (collectively, the “consulting services”).
Company may employ the use of a representative from the Service Provider for in-person, phone, or Internet-based meetings and exchanges related to the servicing of the Company's account. Such meetings are subject to a $197.00 per hour consulting fee to the Company as solicited by the Company to the Service Provider, unless Company has purchased a base procedure writing package.
1.2 Confidentiality. In order for Service Provider to perform the consulting services, it may be necessary for the Company to provide Service Provider with Confidential Information (as defined below) regarding the Company’s business and products. The Company will rely heavily upon Service Provider’s integrity and prudent judgment to use this information only in the best interests of the Company.
1.3 Standard of Conduct. In rendering consulting services under this Agreement, Service Provider shall conform to high professional standards of work and business ethics. Service Provider shall not use time, materials, or equipment of the Company without the prior written consent of the Company. In no event shall Service Provider 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 Company.
1.4 Outside Services. Service Provider may use the service of another person, entity, or organization in the performance of Service Provider’s duties without the prior written consent of an officer of the Company. Should the Company consent to the use by Service Provider 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 Company’s Confidential Information (as defined in Article 5) and the Company’s absolute and complete ownership of all right, title, and interest in the work performed under this Agreement.
1.5 Reports. Service Provider shall regularly provide the Company with written and/or digitally stored reports of his or her observations and conclusions regarding the consulting services. Upon the termination of this Agreement, Service Provider shall, upon the request of Company, prepare a final report of Service Provider’s activities.
2.1 Independent Contractor. Service Provider is an independent contractor and is not an employee, partner, or co-venturer of, or in any other service relationship with, the Company. The manner in which Service Provider’s services are rendered shall be within Service Provider’s sole control and discretion. Service Provider is not authorized to speak for, represent, or obligate the Company in any manner without the prior express written authorization from an officer of the Company.
2.2 Taxes. Service Provider 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 Service Provider’s employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Company on behalf of Service Provider or his/her employees. Service Provider understands that he/she is responsible to pay, according to law, Service Provider’s taxes and Service Provider shall, when requested by the Company, properly document to the Company that any and all federal and state taxes have been paid.
2.3 Benefits. Service Provider and Service Provider’s employees will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of the Company. No workers' compensation insurance shall be obtained by Company covering Service Provider or Service Provider’s employees.
COMPENSATION FOR SERVICES
3.1 Compensation. The Company shall pay to Service Provider an amount equal to the published prices on ProcedureSheets.com of the a la carte product(s) and/or monthly package(s) selected by the Company during the time of purchase for services & products rendered to the Company under this Agreement and outlined in Article 1: Section 1.1.1 of Scope of Work. The compensation for a la carte products shall be paid at the time of purchase for the month the products & services will be provided. The compensation for monthly package purchases may be payable as an upfront, non-refundable 50% deposit with the remaining balance due on the first day following the completion of the contract and following the delivery of completed products and services as outlined in the respective monthly package(s) chosen by the Company. Otherwise, full payment of the invoice is due prior to project initiation. Such packages include:
- (1 Month) Base Procedure Writing Package
- (3 Month) Base Procedure Writing Package
- (6 Month) Base Procedure Writing Package
3.2 Reimbursement. The Company agrees to reimburse Service Provider for all actual reasonable and necessary expenditures, which are directly related to the consulting services. Service Provider will invoice Company separately for these expenditures as they are outlined in Exhibit B.
3.2.1 Exhibit B
Should Company choose to use a cloud-based, Internet-based workflow management software solution from which all products and/or services rendered by the Service Provider can and will be managed, any and all expenditures assessed either one-time or on a monthly recurring basis are subject to the terms of Section 3.2 above.
TERM AND TERMINATION
4.1 Term. This Agreement shall be effective as of the time of purchase of the Company and ending at the time purchased products and/or services are delivered to the Company as stated herein and/or as confirmed by the Company following its completion of a Services Rendered Completion Document as provided by the Service Provider. The Company and Service Provider may negotiate to extend the term of this Agreement (via a no obligation repurchase of same or different products and/or services from the Service Provider) and the terms and conditions under which the relationship shall continue or be reinstated.
4.2 Termination. The Company may terminate this Agreement for “Cause,” after giving Service Provider written notice of the reason. Cause means: (1) Service Provider 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 Company; (2) Service Provider has committed fraud, misappropriation, or embezzlement in connection with the Company’ s business; (3) Service Provider has been convicted of a felony; or (4) Service Provider’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 Company.
4.3 Responsibility upon Termination. Any equipment provided by the Company to the Service Provider in connection with or furtherance of Service Provider’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 Company.
4.4 Survival. The provisions of Articles 5, 6, 7, and 8 of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.
5.1 Obligation of Confidentiality. In performing consulting services under this Agreement, Service Provider may be exposed to and will be required to use certain “Confidential Information” (as hereinafter defined) of the Company. Service Provider agrees that Service Provider will not and Service Provider’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 Company, or disclose such Confidential Information without the written authorization of the President of the Company, either during or after the term of this Agreement, for as long as such information retains the characteristics of Confidential Information.
5.2 Definition. “Confidential Information” means information not generally known and proprietary to the Company or to a third party for whom the Company is performing work, including, without limitation, information concerning any patents or trade secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or material, research and development, proprietary software, analysis, techniques, materials, or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the business of the Company, any vendor names, customer and supplier lists, databases, management systems and sales and marketing plans of the Company, any confidential secret development or research work of the Company, or any other confidential information or proprietary aspects of the business of the Company. All information which Service Provider acquires or becomes acquainted with during the period of this Agreement, whether developed by Service Provider or by others, which Service Provider has a reasonable basis to believe to be Confidential Information, or which is treated by the Company as being Confidential Information, shall be presumed to be Confidential Information.
RIGHTS AND DATA
All drawings, models, designs, formulas, methods, documents, and tangible items prepared for and submitted to the Company by Service Provider in connection with the services rendered under this Agreement shall belong exclusively to the Company 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, Service Provider hereby assigns to the Company the ownership of copyright or mask work in the Deliverable Items, and the Company 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. Service Provider agrees to give the Company or its designees all assistance reasonably required to perfect such rights.
7.1 Non-Solicitation. Service Provider covenants and agrees that during the term of this Agreement, Service Provider 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 Company any employee or independent contractor employed by the Company while Service Provider is performing services for the Company.
RIGHT TO INJUNCTIVE RELIEF
Service Provider acknowledges that the terms of Articles 5, 6, and 7 of this Agreement are reasonably necessary to protect the legitimate interests of the Company, are reasonable in scope and duration, and are not unduly restrictive. Service Provider further acknowledges that a breach of any of the terms of Articles 5, 6, or 7 of this Agreement will render irreparable harm to the Company, and that a remedy at law for breach of the Agreement is inadequate, and that the Company 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. Service Provider acknowledges that an award of damages to the Company 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.
9.1 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.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of Oklahoma.
9.3 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.
9.4 Dispute Resolution. If there is any dispute or controversy between the parties arising out of or relating to this Agreement, the parties agree that such dispute or controversy will be arbitrated in accordance with proceedings under American Arbitration Association rules, and such arbitration will be the exclusive dispute resolution method under this Agreement. The decision and award determined by such arbitration will be final and binding upon both parties. All costs and expenses, including reasonable attorney’s fees and expert’s fees, of all parties incurred in any dispute that is determined and/or settled by arbitration pursuant to this Agreement will be borne by the party determined to be liable in respect of such dispute; provided, however, that if complete liability is not assessed against only one party, the parties will share the total costs in proportion to their respective amounts of liability so determined. Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement until the dispute is resolved.
9.5 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.
9.6 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.
9.7 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 Company without Service Provider’s consent in the event the Company 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.
9.8 No Conflict. Service Provider warrants that Service Provider has not previously assumed any obligations inconsistent with those undertaken by Service Provider under this Agreement.