ePlaybooks Consulting Services Terms and Conditions

Terms and Conditions for Consulting Services

Consulting Services are between the company named in the Consulting Services Agreement “the Company” and DK Strategic Solutions, LLC DBA ePlaybooks (hereinafter “Consultant”). Company and Consultant may each be referred to as “Party” or collectively, the “Parties” in this Agreement.

1. SCOPE OF SERVICES

1.1 Consultant will provide Company with certain services mutually agreed upon and described in the Consulting Services Agreement (hereinafter “Agreement”).  In the event of any discrepancies between these terms and conditions and the Agreement, the Agreement governs. 

1.2 Company shall furnish Consultant with any and all instructions, explanations, information, specifications and documentation deemed necessary by Consultant in the performance of the services, and shall give Consultant prompt notice of any changes thereto.  Such instructions shall be in writing.  All oral instructions, to the extent permitted, shall be promptly confirmed in writing. Consultant shall be entitled to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by Company and shall have no duty or obligation to review the accuracy, validity or propriety of such instructions, explanations, information, specifications or documentation.

1.3 Company shall further ensure that inventory levels are maintained in accordance with what Consultant deems appropriate in order to service the account. Failure to maintain may result in items going out of stock and further action as outlined in section 3.4 below.

2. FEES, PAYMENTS AND INVOICING

2.1 Company is responsible for and agrees to pay Consultant the amount identified in the Consulting Services Agreement.  

2.2 Invoices shall be paid in United States dollars by the Company upon receipt.

3. TERM AND TERMINATION

3.1 Term.  This Agreement shall be effective as of the date signed by Company on signature page (hereinafter, “Effective Date”) and shall remain in full force and effect until completion of Services or termination pursuant to the terms set forth below.  

3.2 Termination for Convenience. Either Party may terminate this Agreement for convenience, without fault or liability, by giving thirty (30) days prior written notice to the other Party, provided, however, that: (a) there is no conflict with the term or completion of Services under any and all Agreements accepted prior to the delivery of such termination notice; (b) in the case of the Company, the termination shall be effective upon payment to Consultant of all fees for Services due under this Agreement.

3.3 Termination by Company.  In the event Consultant materially breaches this Agreement and fails to remedy such breach within thirty (30) days of the Company’s written notice thereof, the Company may terminate this Agreement by providing Consultant with written notice of such termination. In addition, the Company may immediately terminate this Agreement if Consultant (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding, or (c) is wound up or liquidated, voluntarily or otherwise. 

3.4 Termination by Consultant.  In the event the Company materially breaches this Agreement and fails to remedy such breach within thirty (30) days of Consultant’ written notice thereof, Consultant may terminate this Agreement immediately by providing the Company with written notice of such termination; provided, however, that Consultant may immediately terminate this Agreement for any failure to pay invoices, without provision of any notice other the subject invoice.  In addition, Consultant may immediately terminate this Agreement if Company (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding, or (c) is wound up or liquidated, voluntarily or otherwise.

3.5 Effect of Termination. Upon the termination or expiration of this Agreement for any reason, Consultant shall perform a final accounting, after which the Company shall pay any outstanding balance due Consultant within ten (10) days of the date such accounting is provided to the Company. Upon payment (if any is due), Consultant shall provide the Company with all reasonably necessary assistance to facilitate the orderly transition of the Services to the Company, if the Company desires such assistance, at the Company’s expense at standard market rates.

4. Confidentiality

4.1 “Confidential Information” means (a) any and all Company proprietary information in any form disclosed by the Company to Consultant during the term of this Agreement.  Confidential Information shall not include: (i) information already in the public domain, other than due to a disclosure by Consultant in violation of the confidentiality terms of this Agreement; (ii) information not subject to confidentiality terms, which was in the possession of Consultant prior to disclosure by Company; (iii) information received by Consultant from a third party not in violation of an obligation of confidentiality; (iv) information developed independently by Consultant without reference to any Confidential Information; (v) information which is the subject of any written consent of the Company authorizing disclosure; or (vi) information which is required to be disclosed by Consultant pursuant to applicable law or legal process, provided that Consultant shall notify the Company of the disclosure requirement so that the Company can take steps to prevent or limit its disclosure.

4.2 Consultant will not be given any right, title, or interest in any Confidential Information except as provided in this Agreement. Consultant agrees to (a) hold any Confidential Information in strict confidence and to use or disclose the Confidential Information only as is required for its performance under this Agreement; (b) disclose the Confidential Information to only those of its employees, agents or subcontractors who require such disclosure in order to perform under this Agreement; and (c) protect the Confidential Information that is in its possession or control using at least the same means it uses to protect its own confidential and proprietary information, but in any event, not less than reasonable means. 

4.3 Notwithstanding the foregoing, Consultant may make disclosures required by court order provided it uses diligent efforts to timely inform the Company of the potential disclosures in order to permit the Company to limit disclosure and to obtain confidential treatment or a protective order. Consultant shall be responsible for any breaches of this Section by its officers, employees, agents or subcontractors. Consultant, upon the request of the Company or, at the latest, upon completion of its performance under this Agreement, will either certify the destruction of the Confidential Information in its possession or return such Confidential Information in its entirety to the Company, at the Company’s discretion, subject to any applicable record keeping laws or regulations. Consultant shall not make any public announcement of this Agreement or the relationship contemplated hereunder without the prior written approval of the Company; provided, however, that Consultant may use the Company’s logo or other branding on its website to demonstrate representative Companies.

5. REPRESENTATIONS AND WARRANTIES

5.1 Mutual Representations and Warranties. Each Party represents and warrants to the other that: (a) it is a corporation or other business enterprise, duly organized, validly existing and in good standing under the laws of the state, province or country in which it was organized; (b) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (c) the execution and performance of this Agreement does not violate any applicable law or regulation or the terms of any security agreement, license, or any other contract or written instrument to which it is a party; (d) it shall comply with all applicable international, federal, state and local laws, rules and regulations in its performance under this Agreement; (e) it is not involved in any way in any threatened or existing administrative, civil or criminal proceeding that is reasonably likely to have a materially adverse effect on its ability to perform its obligations under this Agreement; and (f) it will notify of the other Party of any change in its ability to make the foregoing representations.

5.2 Consultant Representations and Warranties. Consultant represents and warrants to the Company that each of Consultant’ employees, contractors or agents assigned to perform Services under this Agreement shall have the proper skill, training and background so as to be able to perform in a competent and professional manner and that all work will be so performed in accordance with this Agreement.

5.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT ARISE BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.

6. GENERAL PROVISIONS

6.1 Entire Agreement. This Agreement (including any and all SOWs outstanding from time to time) constitutes the entire agreement between the Parties. None of the terms of this Agreement shall be deemed waived by either Party or amended or supplemented unless such waiver, amendment or supplement is specified in a written amendment to this Agreement that is signed by both Parties.

6.2 Severability. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the remaining provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision had been omitted. No usage of trade or industry course of dealing shall be relevant to explain or supplement any term expressed in this Agreement.

6.3 Assignment. Except as otherwise stated in the Agreement, neither Party may assign this Agreement to a third party without the previous written consent of the other Party.

6.4 Notices.  All notices, requests, demands and other communications hereunder shall be deemed to have been duly given if the same shall be in writing and shall be delivered personally, emailed or sent by registered or certified mail, postage prepaid and addressed as set forth in the signature line of this Agreement to the attention of the person executing this Agreement on behalf of the receiving Party. Either Party may change the address or designated person for receiving notices by providing notice in accordance with this Section.

6.5 Counterparts.  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.

6.6 Independent Contractors. Consultant shall for all purposes be deemed to be an independent contractor and shall, except as otherwise expressly authorized in this Agreement, have no authority to act for or represent Company in any way. Nothing herein shall be construed to constitute Consultant as the agent or employee of Company or Company as the agent or employee of Consultant, and neither party shall make any representation to the contrary. 

6.7 Project Staffing. Consultant shall provide reasonably adequate staff to successfully complete the Services within the time frame provided in each SOW.  Consultant can, as it deems necessary, employ contractors in order to complete the Services. 

6.8 No Partnership or Joint Venture. Nothing contained herein shall be construed as to constitute a partnership or joint venture between the parties hereto or authorize either party to represent the other or to contract any liability whatsoever on behalf of the other party.

6.9 No Third Party Beneficiaries. Except as expressly stated herein, this Agreement is not intended to benefit, and shall not convey any rights to persons other than the parties hereto.

7. GOVERNING LAW AND LIMITATION OF LIABILITY

7.1 Governing Law. The validity and construction of this Agreement shall be governed by, subject to and construed in accordance with the laws of the State of California in the United States. The Parties consent to the personal and exclusive jurisdiction of the state and federal courts located in Los Angeles County, California. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The prevailing party in any dispute shall be entitled to reasonable attorney’s fees and expenses.

7.2 Force Majeure. Neither Party shall be responsible or considered in breach of this Agreement for any delay or failure in the performance of any obligation of this Agreement to the extent that such failure or delay is caused by acts of God, fires, explosions, labor disputes, accidents, civil disturbances, material shortages or other similar causes beyond its reasonable control (each, a “Force Majeure Event”), even if such delay or failure is foreseeable. Provided, however, that if either Party cannot perform its obligations hereunder due to a Force Majeure Event for a period exceeding thirty (30) days, the performing Party shall have the right and option to terminate this Agreement immediately upon written notice to the non-performing Party. The definition of Force Majeure Event in this clause shall prevail over any other definition of force majeure under applicable law.

7.3 Limitation. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF PROFITS, OR LOSS OF REVENUE), REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY OR BASIS FOR SUCH CLAIM. IN NO EVENT WILL THE AMOUNT EITHER PARTY MAY RECOVER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT INVOICED BY CONSULTANT TO COMPANY PURSUANT TO THIS AGREEMENT IN THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD.