Professional Services Agreement
This Professional Services Agreement (this "Agreement"), dated as of _________ (the "Effective Date"), is by and between JIMMY'S & SONS LLC (d/b/a Packachange.com), a Maryland Limited Liability Company (the "Customer") and [Service Provider], a [STATE OF ORGANIZATION] corporation (the "Service Provider").
ServicesService Provider shall provide to Customer the services (the "Services") set forth in Exhibit A. Service Provider shall provide the Services (a) in accordance with the terms and subject to the conditions set forth in this Agreement; (b) using personnel of required skill, experience, licenses, and qualifications; (c) in a timely, workmanlike, and professional manner; (d) in accordance with standards in Service Provider's field; and (e) to the reasonable satisfaction of Customer. Nothing in this Agreement shall prevent Customer from performing for itself or acquiring from other providers the same or similar services, nor prevent Service Provider from providing the same or similar services to other customers (subject to confidentiality and intellectual property obligations set forth below). Service Provider shall not subcontract the Services without Customer's prior written consent, which shall not be unreasonably withheld. Any changes to the scope of Services must be agreed by the parties in a written amendment in accordance with Section 12.7.
Quote and CommencementThis Agreement is for two distinct service each of which will require a separate contract.
- Estimate for Packaging Goods. This Agreement will serve as the contract for the estimate for made-to-order packaging. The estimate for packaging services requires a written estimate which will then be accepted or rejected after a full review by Customer. Rejection will be deemed effective when communicated to Service Provider.
- Acceptance of Estimate and Packaging Goods. A separate Addendum to this contract will be delivered to Service provider once the estimate has been accepted by Customer.
Customer's ObligationsCustomer shall (a) provide Service Provider with access to specifications, Customer documents, and other information as may reasonably be required by Service Provider for the purposes of performing the Services; (b) respond promptly to any Service Provider request for information or approvals that Service Provider requires to perform the Services.
Terms and Termination
Term:RenewalThis Agreement shall commence as of the Effective Date and shall continue thereafter until delivery of the Estimate for Packaging Goods, and, if accepted in accordance with Section 2.2, until the Packaging Goods are delivered to Customer or another agreed upon place of delivery.
Termination for ConvenienceCustomer, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause, by providing at least ten (10) days' prior written notice to Service Provider.
Termination for CauseEither party may terminate this Agreement, effective upon written notice to the other party (the "Defaulting Party"), if the Defaulting Party (a) [materially] breaches this Agreement, and such breach is incapable of cure, or with respect to a [material] breach capable of cure, the Defaulting Party does not cure such breach within [NUMBER] days after receipt of written notice of such breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding which is not dismissed or vacated within [NUMBER] days after filing; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; or (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
Effects of Termination or ExpirationUpon expiration or termination of this Agreement for any reason, (a) Service Provider shall: (i) deliver to Customer all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Service Provider in the course of performing the Services for which Customer has paid; (ii) return to Customer all Customer-owned property, equipment, or materials in its possession or control; (iii) remove any Service Provider-owned property, equipment, or materials located at Customer's locations; and (iv) provide reasonable cooperation and assistance to Customer, in transitioning the Services to an alternate service provider; and (b) each party shall return to the other party or destroy, at the other party's discretion, all documents and tangible materials (and any copies, physical or electronic) containing, reflecting, incorporating or based on the other party's Confidential Information and certify in writing that it has done so.
Fees and Expenses; Payment Terms
In GeneralIn consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees agreed to in the estimate once the Addendum is transmitted in accordance with Section 2.2.
- Estimate for Packaging Goods will be provided at no cost to Customer
- All non-public, confidential or proprietary information of either party ("Confidential Information"), including, but not limited to, information about such party's business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement[, and whether or not marked, designated, or otherwise identified as "confidential,"] is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party's breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party's disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.
Representations and Warranties
MutualEach party represents and warrants to the other party that: (a) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
Service ProviderService Provider represents and warrants to Customer that: (a) it shall perform the Services in a professional and workmanlike manner and that Service Provider will comply with all local, national, and international laws and regulations.
- EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT/SECTION 7, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, [AND] FITNESS FOR A PARTICULAR PURPOSE, [TITLE AND NON-INFRINGEMENT].
GeneralService Provider shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, affiliates, successors, and permitted assigns ("Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and costs, relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Service Provider's willful, fraudulent or grossly negligent acts or omissions; or (b) Service Provider's negligence, willful misconduct, or material breach of this Agreement, including but not limited to material breach of any representation or warranty made by Indemnifying Party in this Agreement.
Intellectual Property InfringementService Provider shall defend, indemnify, and hold harmless the Customer Indemnitees from and against all Losses awarded against a Customer Indemnitee in a final judgment based on a claim that any of the Services or Deliverables or Customer's receipt or use thereof infringes any Intellectual Property Right of a third party arising under the Laws of the United States; provided, however, that Service Provider shall have no obligations under this Section 8.2 with respect to claims to the extent arising out of (a) any instruction, information, designs, specifications, or other materials provided by Customer in writing to Service Provider; (b) Customer's use of the Deliverables in combination with any materials or equipment not supplied to Customer or specified by Service Provider in writing; or (c) any modifications or changes made to the Deliverables other than by Service Provider.
LIMITATION OF LIABILITYLIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT, INDEMNIFICATION OBLIGATIONS, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Force MajeureNo party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement [(except for any obligations to make payments to the other party hereunder)], when and to the extent such failure or delay is caused by or results from events outside of the party's reasonable control ("Force Majeure Events"), including but not limited to: (a) acts of God; (b) flood, fire, earthquake, [OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS EPIDEMICS,] or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; [(h) strikes, labor stoppages or slowdowns or other industrial disturbances;] [and] [(i) shortage of adequate power or transportation facilities]. The affected party shall resume performance under this Agreement as soon as reasonably practicable after the Force Majeure Event has been resolved or terminated.
Independent ContractorsThe parties are independent contractors, and nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.
No PublicityNeither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, or otherwise use the other party's trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
NoticeAll notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
Entire Agreement; Order of PrecedenceThis Agreement, together with all Schedules and Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule or Exhibit, then the terms of this Agreement shall control unless expressly set forth otherwise in the applicable Schedule or Exhibit.
AssignmentNeither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, including by operation of law, change of control, or merger, without the prior written consent of the other party[, which consent shall not be unreasonably withheld or delayed]. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
No Third-Party BeneficiariesThis Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
Amendment and Modification; WaiverThis Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No failure to exercise any rights, remedy, power or privilege ("Right(s)") arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any Right hereunder precludes any other or further exercise thereof or the exercise of any other Right.
SeverabilityNo invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of this Agreement or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.
Governing Law: Submission to JurisdictionThis Agreement shall be governed by and construed in accordance with the internal laws of the State of Maryland without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; and (b) waives any objection to such courts based on venue or inconvenience; and (c) waives any right to trial by jury. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Equitable Relief; Cumulative RemediesEach party acknowledges that a breach of Section 5 (Intellectual Property Rights; Ownership) or Section 6 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief. Except as expressly set forth in this Agreement, the right and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.
CounterpartsThis Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Anti-CircumventionService Provider agrees to work directly with Customer to compile estimates for packaging goods, and, if agreed to in accordance with Section 2.2, for manufacture and delivery of such good. Service Provider agrees that Service Provider will not directly contact customers, associates, or third-parties directly engaged in business will Customer and that Customer will be the sole point of contact for the Term of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
[SERVICE PROVIDER NAME]