Consulting Agreement :
Release and Indemnification
CLIENT hereby releases and agrees to hold harmless, defend and indemnify Consultant, from any and all claims, actions, proceedings, suits, liabilities, damages (actual, consequential, or incidental), settlements, penalties, fines, costs or expenses (including without limitation, reasonable attorney’s fees and other litigation expenses) of every kind, whether known or unknown, incurred by CLIENT arising out of this Agreement.
Limitation of Liability
In no event shall Consultant be liable for indirect, special or consequential damage suffered by CLIENT in connection, directly or indirectly, with the action or inaction of Consultant under or in relation to this Agreement.
Liability for Data Loss
CLIENT understands that there are inherent risks in providing support to computer systems which include but are not limited to data loss, data corruption, or complete loss of files or directories. CLIENT agrees that Consultant will not be held liable for damages in the case of data loss.
Both CLIENT and Consultant agree that Consultant will act as an independent contractor in the performance of duties under this contract. Accordingly, Consultant shall be responsible for payment of all taxes including Federal and Provincial taxes arising out of Consultant’s activities in accordance with this contract. Nothing contained in this Agreement is intended to constitute the Parties as partners or joint venturers in the legal sense. Neither party intends that a partnership, joint venture or similar relationship be formed by this Agreement or any performance hereunder. Neither party shall have any express or implied right or authority to assume or create any obligations on behalf of, or in the name of, the other or to bind the other to any contract, agreement or undertaking with any third party.
Each party agrees that the Confidential Information of the other party will be held in confidence to the same extent and the same manner as each party protects its own Confidential Information, but each party agrees that in no event will less than reasonable care be used. Each party shall, however, be permitted to disclose relevant aspects of such Confidential Information to its officers or employees on a need-to- know basis, provided they have undertaken to protect the Confidential Information to the same extent as required under this Agreement. “Confidential Information” means each party’s trade secrets, financial information, formulas, specifications, programs, instructions, technical know-how, methods of operation, testing benchmarks, any other information identified by a party as Confidential Information, and any other information that should reasonably be understood to be confidential or proprietary. The confidential Information referred to in this Section shall not apply in the following cases: If it was already known to the other party, if it was disclosed- without obligation to keep the information confidential, if it was publicly known or became publicly known through no-fault of the receiving party, if it was independently developed by the receiving party without use of the other party’ Confidential Information, or if it is required to be disclosed by a court of competent jurisdiction and in that case, the disclosing party shall be granted a reasonable opportunity to obtain a protective order.
Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to agreements made regardless of the place of physical execution of the agreement within such state, without regard to its conflict of laws rules. CLIENT hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Orange County, California in respect of any dispute under this agreement.
The terms set forth in this Agreement are intended by the Parties as a final, complete and exclusive expression of their agreement with respect to the Services contemplated by this Agreement and may not be contradicted, explained or supplemented by evidence of any prior agreement, any contemporaneous oral agreement, or any consistent additional terms. There are no restriction, promises, representations, warranties, covenants, or undertakings, other than those expressly set forth or referred to herein. This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
Should any term or provision hereof be deemed invalid, void or unenforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect, and, if the subject term o provision is deemed to be invalid, void or unenforceable only with respect to a particular application, such term or provision shall remain in full force and effect with respect to all other applications.
All modifications to this Agreement must be in writing and signed by all Parties.
Consultant shall be excused from performance to the extent that performance is prevented, delayed, or obstructed by causes beyond Consultant’s reasonable control, including delays in performance by CLIENT, acts of Nature (fire, storm, floods, earthquakes, etc.) civil disturbances, disruption of telecommunications, power or essential services.
Neither of the parties may sell, transfer, assign or otherwise dispose of any of its rights or obligations under this Agreement to any person without the express written consent of the other party, except that Consultant may, at its sole discretion, hire or sub-contract out portions or all of the services to be provided hereunder.
CLIENT agrees, regardless of any statute or law to the contrary, that any claim or cause of action arising out of or relating to this Agreement must be filed within one (1) year after such claim of action arose or be forever barred. If any party brings an action arising out of this Agreement, the prevailing party shall be entitled to an award of reasonable attorney’s fees, and any court costs incurred in such action or proceeding, in addition to any other damages or relief awarded.
© 2019 Vake Computer Consulting