AGREEMENT between the Ceterus customer (hereinafter referred to as “Client”) and Ceterus, Inc., 804 Meeting Street, Charleston, SC 29403, (hereinafter referred to as “Consultant”), a Delaware Corporation.
WHEREAS the Consultant has agreed to provide services set out in clause (2) hereof to Client AND the parties have agreed and do hereby agree that the terms of such agreement be put into writing NOW THEREFORE the parties agree to be bound by the following terms and conditions:
- The Term
This agreement will commence on the “Order Start Date” selected on the Order Form and continue on a month-to-month basis
- The Services
The specific services selected per the Order Form.
Nothing contained in this contract will be construed as or have the effect of constituting a relationship of employer and employee between the parties to this agreement.
- The Fee
The fee payable by Client to the Consultant for the Services is the “Monthly Total” as shown on the Order Form and is payable in U.S. currency on the first of each month prior to service.
Payments should be made on a recurring schedule via ACH payable to Ceterus, Inc. This recurring payment will cease upon termination of the agreement.
The Consultant warrants that she has the necessary expertise, skill, and experience to provide the Service and will provide unbiased and independent advice in respect of the Service. The Consultant warrants that she will comply with representations and descriptions in respect of the Service including, but not limited to capabilities, performance, completeness, accuracy, characteristics, and specification.
The Consultant warrants that the Services and any material or materials supplied or obtained by the Consultant in connection with this Agreement will not in any manner or way infringe or violate any third party proprietary rights including but not limited to any copyright, patent, trademark, trade name, registered design, trade secret, proprietary information, contractual, property, employment or non-disclosure rights.
The Consultant will maintain as confidential all information obtained under or in connection with this Agreement and will not divulge such information to any person without Client prior written consent.
This clause will not extend to information which was rightfully in the possession of the Consultant prior to the commencement of the negotiations that led to this Agreement, which was already in the public domain or becomes so at a future date (otherwise than as a result of a breach of this clause or any other confidentiality agreement.
The Consultant is an independent contractor and nothing in this Agreement will render it an agent or partner of Client. The Consultant will not hold herself out as such. The Consultant will not have any right or power to bind Client to any obligation.
The Consultant is retained or engaged by Client only for the purposes and to the extent set forth in this Agreement. The Consultant’s relation to Client will, during the period or periods of this Agreement, be that of an independent contractor and as such the Consultant will be free to dispose of such portion of its time, energy and skill when the Consultant is not obligated under this Agreement in such a manner as Consultant sees fit.
This Agreement will not establish a joint venture, agency or partnership between Client and the Consultant. The Consultant will not be considered under this Agreement or otherwise or in any way as having the status of employee or being entitled to participate in any plans, schemes, arrangements or distributions by Client pertaining to or in connection with any person, stock, bonus, profit sharing or other benefits provided ordinarily by Client to its employees.
The Consultant will be able to perform Services for any other person, firm or company, without restriction, at any point during this Agreement.
(a) This agreement may be terminated by Client by giving notice in writing of its intention to terminate. No cancellation fees are due at the time of notice of intent to terminate.
(b) This agreement may be terminated immediately by either party on giving notice in writing to the other, if the other party has a receiver or administrative receiver appointed or passes a resolution for winding up (otherwise than for a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect or if the other party becomes subject to an administration order or enters into a voluntary arrangement with its creditors or ceases or threatens to cease to carry on business.
(c) In the event that either party is in breach of this Agreement, and that such breach is rectifiable, that party will have the opportunity to rectify said breach within 14 days of the occurrence of the breach. If the party in breach fails to rectify the breach within 14 days the other party will be entitled to terminate this agreement immediately.
(d) Should the Consultant commit, in the sole opinion of Client, a gross breach of contract or be guilty of gross Misconduct, Client will be entitled to terminate this agreement immediately.
(e) In the event that the Consultant is absent during the Service and in the sole opinion of Client, that Consultant, has been or will be absent for a period of time unacceptable to Client, Client will be entitled to terminate this agreement immediately.
(f) Any termination of this agreement, however, occasioned will not affect any accrued rights or liabilities of the other party, nor will it affect the coming into force, or the continuance in force, of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
(g) Upon termination of this agreement, each party will promptly return to the other all materials, data and other property of the other held by it. The Consultant will ensure that all such property held in possession by it or any of its employees or subcontractors are promptly returned to Client provided however that if the contract terminates as a result of a breach or breaches by the Consultant, Client will be entitled to retain any such material, data or other property until Client has located a suitable and comparable replacement to perform the services performed by such material, data or other property.
- Absence and substitution
Where the Consultant is unable to perform the whole or any part of the project for whatever reason the Consultant will offer a substitute of equivalent expertise to work in the Consultant’s place. Client has the right on reasonable grounds to refuse to accept the proposed substitute Consultant and the right to review the Agreement and if appropriate, terminate the Agreement.
- Force Majeure
Notwithstanding anything else contained in this Agreement neither party will be liable for any delay in performing its obligations herein if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by an act or omission of the other party).
Subject to the party so delaying promptly notifying the other party in writing of the reason for the delay and the likely duration of the delay, the performance of such party’s obligations will be suspended during the period that the said circumstances persist, and such party will be granted an extension of a time period for performance of duties and obligations under this agreement equal to the period of the delay.
This to be the case except where said delay is caused by the act or omission of the other party, in which event the rights, remedies, and liabilities of the parties will be as conferred by the other clauses and terms of this Agreement and by law:
(a) any costs arising from such delay will be borne by the party incurring the same, and
(b) either party may if such delay continues for more than two (2) weeks terminate this Agreement on giving notice in writing to the other in which event neither party will be liable to the other by reason of such termination.
- Waiver of Remedies
No forbearance, indulgence or delay by either party in enforcing the provisions of this Agreement will prejudice or restrict the rights of that party, nor will any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy in the Agreement conferred upon or reserved for either party is exclusive of all other rights, power or remedy available to that party and each such right, power or remedy will be cumulative.
- Entire Agreement
This Agreement supersedes all prior arrangements, agreements, and understandings between the parties. No addition to or modification of any provision of this Agreement will be binding upon the parties unless made by written instrument and signed by an authorized representative of each of the parties.
Neither party will assign or transfer this Agreement or any of its rights or obligations herein, whether in whole or in part without the prior written consent of the other.
All notices that are required to be given under this agreement will be in writing and will be sent to the address of the appropriate party as set out in this Agreement or such alternative address in the United States as the recipient may designate by notice given in accordance with the provisions of this clause. Any such notice may be delivered personally, by first class prepaid letter, telex or facsimile transmission and will be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by telex or facsimile transmission when dispatched.
This Agreement will be governed by and construed in accordance with the Laws of the State of Delaware. Any dispute which may arise between the parties concerning this Agreement will be determined by the courts and the parties hereby submit to the exclusive jurisdiction of the courts for such purpose.