General Terms and Conditions
Engagement Agreement for Products and Services
This Agreement for consulting services is between ("Client") and CV Enterprises, Inc. dba CompuVision and Vision Communications ("Consultant").
Client and Consultant agree as follows:
1. SERVICES AND PRODUCTS PROVIDED.
1.1 SERVICES. Consultant agrees to provide Client professional consulting services. Services might involve design, implementation, research, ongoing support, project management, and attendance at meetings. Services are categorized as either Projects, Ongoing Support, or may be handled by a separate Support Contract.
1.2 CONTROL OF SERVICES. Consultant shall determine the time, place, method, details, and means of performing the Services. Client agrees to furnish any facilities, personnel and equipment necessary to facilitate Consultant's providing the Services.
1.3. PRODUCTS. Consultant shall provide products as requested by the Client via a proposal process. The Client will be provided a proposal upon which they will review and approve as desired. Orders will be processed by Consultant upon authorized signature by Client on the proposal and provision of a 50 percent deposit, or for orders less than $500.00, by verbal request.
2. CONSULTANT PERSONNEL
2.1 CONSULTANT STAFF. Consultant will provide adequate staff to render the Services. In the event that any Consultant staff is found to be unacceptable to Client, Client shall notify Consultant of such fact and Consultant shall work with Client to resolve the problem and/or including the replacement of staff as deemed acceptable to Client.
2.2. INDEPENDENT CONTRACTOR. Consultant is an independent contractor. Neither Consultant nor Consultant's employees are, or shall be deemed for any purpose to be, employees of Client. Client shall not be responsible to Consultant, Consultant's employees or any governing body for any payroll-related taxes related to the performance of the Services.
3. PROJECT MANAGEMENT
3.1. CLIENT PROJECT MANAGER. Client shall designate a Client project manager for the Services (the "Client Project Manager") who shall act as a liaison between Client and Consultant. Client understands and agrees to pay for project management services as provided.
3.2. PROGRESS REPORTS AND MEETINGS. Consultant and Client Project Manager shall hold meetings and issue reports as the parties deem necessary to complete the services.
4. RECORDS
4.1. RECORDS. Consultant shall maintain complete and accurate accounting records, in a form in accordance with generally accepted accounting principles, to substantiate Consultant's charges and expenses hereunder and Consultant shall retain such records for a period of one (1) year from the date of final payment under any Schedule.
5. NON-HIRE.
5.1. NON-HIRE OF CONSULTANT EMPLOYEES. In consideration of this Agreement, Client understands and agrees that client will not in any way attempt to contract with any employee, or agent of Consultant for any services of any nature to be rendered to client on behalf of client at client’s direct or indirect request or for client’s benefit in any way independent of this Agreement while such employee or agent is an agent, consultant of, employee of, Consultant. and if employee consultant or agent ceases to be an employee, consultant or agent, not until the expiration of 24 months. A breach hereof is subject to immediate injunction against client and to equitable relief, including an injunction, because such a breach would cause irreparable harm for which there is no adequate remedy at law. Client agrees to compensate Consultant the amount equal to 1 (one) year of the employee’s compensation. Client further agrees that no bond or other security shall be required in obtaining such equitable relief and hereby consent to the issuance of such injunction and to the ordering of specific performance.
6. CONFIDENTIALITY AND PROPRIETARY RIGHTS
6.1. CONFIDENTIALITY. The parties acknowledge that Client and Consultant each own valuable trade secrets, and other confidential information. Such information may include software code, routines, data, know-how, designs, inventions and other tangible and intangible items. All such information owned by the parties is defined as "Confidential Information". This provision does not apply to Confidential Information that is 1) in the public domain through no fault of the receiving party, 2) was independently developed as shown by documentation, 3) is disclosed to others without similar restrictions, or 4) was already known by the receiving party.
6.2. NON-DISCLOSURE. The parties agree that they will not, at any time during or after the term of this Agreement, disclose any Confidential Information to any person, and that upon termination of this Agreement, each party will return any Confidential Information that belongs to the other party.
7. WARRANTIES & DATA LOSS
7.1. CONSULTANT WARRANTIES. Consultant warrants that each of its employees assigned to perform services under this agreement shall have the proper skill, training and background to perform in a competent and professional manner. Client acknowledges that the services include unknown and unforeseen problems and Consultant shall attempt to solve such problems. Client acknowledges that Consultant does not warrant that there will be a satisfactory solution to all problems. CLIENT AGREES THAT CONSULTANT WARRANTS ITS SERVICES "AS IS" AND THAT CONSULTANT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. CLIENT AGREES THAT ITS EXCLUSIVE REMEDIES AND CONSULTANT. ENTIRE LIABILITY WITH RESPECT TO ANY SERVICES AND/OR PRODUCTS FURNISHED BY CONSULTANT. PURSUANT TO THIS AGREEMENT SHALL BE SET FORTH HEREIN. CLIENT FURTHER AGREES THAT IN NO EVENT SHALL CONSULTANT. BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGE EXPENSES, LOST PROFITS, LOST SAVINGS OR OTHER DAMAGES FROM PRODUCTS OR SERVICES PROVIDED, OR THE BREACH OR ANY EXPRESS OR IMPLIED WARRANTY, EVEN IF CONSULTANT. HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
Client acknowledges that the rates charged by Consultant would be substantially higher but for these limitations.
7.2. DATA LOSS. It is the responsibility of the client to have a current back-up copy of all data, and to provide for appropriate off-site data storage. Consultant. is not in any way responsible for any data loss the client may experience as a result of professional services performed by Consultant. Client may elect to have Consultant. recommend or perform data back up before any services are performed, but said service in no way passes the responsibility of said data integrity on to Consultant.
8. PAYMENT
8.1. PROJECTS. Projects are independently designed events that have been provided as a unique solution. Projects are bid separately and do not involve ongoing support. Projects require a 50 percent deposit and the balance is due within 30 days of the completion of each project.
8.2. PAYMENT TERMS. All invoices are due and payable within 30 days after receipt by Clients. Interest at the rate of 1.5% per month or a $25 rebilling fee (whichever is greater) will be charged on invoices not paid in full after 30 days after the invoice date. Any dispute regarding any invoice must be brought to CV Enterprises Inc.’s attention in writing within 10 days of receipt of said invoice. Pricing provided reflects cash and carry only. Additional charges will be incurred for credit card purchases. All payments due under this Agreement shall be made at CompuVision’s place of business in Santa Barbara, California.
8.4. PRODUCT RETURNS. Product returns are solely at the discretion of Consultant. If Consultant agrees to take product back, a restocking fee of 25% will be charged for product returned. This is based on Consultant obtaining return authorization from the distributor and/or manufacturer. No returns will be accepted after 14 days.
8.3. SHIPPING/HANDLING. Shipping and handling charges are not included in proposal and will be applied to invoice.
9. GENERAL
9.1. TERM AND TERMINATION. This Agreement shall commence when last signed by both parties and shall continue for a period of one year. The term of the contract will extend one additional year from the last date of the invoice of requested services or products. In the event of any material breach of this Agreement by either party, the other party may cancel this Agreement. In the event of termination, Client agrees to pay Consultant for all charges incurred by the Consultant up to the effective date of termination. In the event of such termination, all products that have been ordered by the Client will be provided to the Client and payment for said products will be due and payable immediately upon delivery.
9.2. ASSIGNMENT. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party. A sale of substantially all the assets of a party or a merger of a party does not constitute and assignment for purposes of this clause.
9.3. NOTICES. Any notices or communication under this Agreement shall be in writing and shall be by confirmed facsimile, overnight deliver or certified mail return receipt requested to the party receiving such communication at the address specified below:
9.4. GOVERNING LAW: VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of California. This Agreement shall be construed according to, and the rights of the parties shall be governed by, the law to the State of California. Any action to enforce or interpret this Agreement shall be brought in Santa Barbara County, California.
9.5. MODIFICATIONS. No changes or waivers to this Agreement shall be binding unless made in writing and duly signed by authorized agents of both parties.
9.6. COMPLETE AGREEMENT. This Agreement and each Exhibit attached hereto set forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by authorized agents of both parties.
9.7. DELAYS; FORCE MAJEURE. Consultant. shall not be liable for any delay in performance directly or indirectly resulting from acts of the Client, its agents, employees or subcontractors, or causes beyond the control of CV Enterprises, Inc. Causes beyond the control of Consultant. include, but are not limited to: acts of God, acts of public enemy; acts of the United States of the District of Columbia, any State of Territory of the United States or any of their political subdivisions; fire; flood; epidemics; quarantine restrictions; strikes; freight embargoes; unusually severe weather conditions; electrical outages; or default of Consultant’s subcontractors or supplies. Consultant bears no responsibility for delays due to product availability or shipping.
9.8. ATTORNEY’S FEES. If either party to this shall bring any action or proceeding against the other to enforce the terms hereof or to declare rights hereunder, the losing party shall pay to the prevailing party a reasonable sum for attorney’s fees and/or collection costs.