1. Consulting Services
- Subject to the terms and conditions set forth in this Agreement, Client hereby retains Freelancer as a freelancer and technical advisor to perform the consulting services specifically set out in the Statement of Work (the “Services”). Freelancer shall not submit a proposal in response to Client's project unless they possess a level of knowledge sufficient to troubleshoot and offer sound technical consulting services in the particular field. EXPERTS EXCHANGE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING FREELANCER'S FIELDS OF EXPERTISE, AND SHALL NOT BE LIABLE SHOULD FREELANCER FAIL TO POSSESS SUFFICIENT EXPERTISE TO PROVIDE THE SERVICES.
- Subject to the terms and conditions set forth in this Agreement, Freelancer agrees to render the Services during the term of this Agreement. Such Services shall be limited to those set forth in the Statement of Work. Freelancer shall render the Services hereunder at such times and places as shall be mutually agreed by Client and Freelancer.
- It is understood that the purpose of the Services is to provide a review of and consulting services relevant to certain Client matters, and that neither Freelancer nor Client will benefit if Freelancer provides inaccurate advice or commentary based on insufficient information. To that end, Client shall provide Freelancer, in advance of meetings where feasible, with accurate, unbiased and sufficient information for Freelancer to review the subject matter thereof, and shall promptly provide further information that Freelancer reasonably deems relevant to forming any pertinent conclusions and offering advice and solutions relevant to Client's technical questions/issues. It is expressly understood that Freelancer has no fiduciary obligation to Client, but instead a contractual one described by the terms of this Agreement; that Freelancer's role is to provide independent advice uninfluenced by commercial concerns; and that service as a Freelancer does not require Freelancer to be an advocate for Client or its products or services in any forum, public or private. Client expressly agrees that under no circumstances will this role be compromised or inaccurately represented.
2. Compensation and Refund Policy
- Compensation: In consideration of the services to be provided by Experts Exchange and Freelancer to Client hereunder, Client shall pay the amount set forth in the proposal, which is incorporated into this Agreement and which includes usage fees that are based on Client's membership type (the “Usage Fees”). The full amount of the proposal plus Usage Fees shall be paid by Client to Experts Exchange upon the commencement of this Agreement. A percentage of the proposal amount (“Facilitation Fees”) plus the Usage Fees (collectively, “Experts Exchange Fees”) shall be retained by Experts Exchange as consideration for facilitating the relationship between Freelancer and Client. After subtraction of all current Experts Exchange Fees which is outlined on http://support.experts-exchange.com/customer/portal/articles/2254644-gigs-pay-structure, the remainder of the proposal amount shall be due and payable to Freelancer as outlined in the Gigs Facilitation Agreement for Freelancer, subject to acceptance of Freelancer's Services by Client, which acceptance shall not be unreasonably withheld, conditioned or denied. Funds are held by Experts Exchange in operating accounts held by reputable financial institutions. Funds are not held separately and may be commingled with general operating funds. Client and Freelancer are not entitled to any interest or other earnings for these funds. Payment to Freelancer by Experts Exchange shall be facilitated by PayPal.
- Taxes: Freelancer shall have the responsibility to pay all income taxes due based on Freelancer's earnings for providing the Services, including those taxes specific to Freelancer's jurisdiction and residence. Freelancer is advised to seek advice from an independent Certified Public Accountant, at Freelancer's own expense, for more information on tax liabilities and obligations.
- Certification of Completion: Upon completion of the Services, Freelancer shall indicate that the Services are complete via clicking the “Submit for Review” button on Freelancer's Experts Exchange Projects page. Client shall have seven (7) days to provide the Freelancer with a certification of completion of the Services via clicking the “Complete” button or to communicate any necessary changes required to accept the Services as complete via clicking the “Incomplete” button, which shall nullify the complete indication which marks Services as not complete. Freelancer will be required to click the “Submit for Review” button upon responding to Client's communication. Client's failure to certify completion or communicate necessary changes within the 7-day timeframe may be deemed an acceptance and therefore the Freelancer will be paid the remainder of the Bid after subtraction of all current experts Exchange Fees as outlined above.
- Disputes: Freelancer and Client acknowledge and agree that in the event that a dispute arises between them related to this agreement they will resolve any differences amongst themselves. Experts Exchange will not provide any dispute resolution services.
- Refund Policy: PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS EXCEPT IN SPECIFIC CIRCUMSTANCES AS OUTLINED BELOW.
- Abandonment of Services by Freelancer: In the event that the Freelancer fails to complete the Services outlined the Agreement and fails to respond to inquiries concerning the Services in the Agreement, Freelancer acknowledges that they will not be entitled to any compensation outlined in the Agreement. Client will be entitled to a refund of their payment minus Usage Fees.
3. Limitation of Liability
In recognition of the relative risks and benefits of the Services to both the Client and the Freelancer, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of the Freelancer to the Client for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert witness fees and costs, so that the total aggregate liability of the Freelancer to the Client shall not exceed $100 or Freelancer’s proposal, whichever is greater. It is intended that this limitation apply to any and all liabilities or causes of action, however alleged or arising, unless otherwise prohibited by law.
To the maximum extent permitted by law, Client and Freelancer agree that Experts Exchange’s liability under this Agreement shall be limited to the amount of Experts Exchange Fees. This limitation shall apply regardless of the cause of action or legal theory pled or asserted.
IN NO EVENT WILL EXPERTS EXCHANGE BE LIABLE TO FREELANCER OR CLIENT FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THEIR USE OF, PARTICIPATION IN OR INABILITY TO USE, THE GIGS SERVICES. IN NO EVENT WILL EXPERTS EXCHANGE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO FREELANCER, CLIENT OR BOTH.
4. Independent Contractor Status
Freelancer and Client agree that this Agreement creates an independent contractor relationship, and not an employment relationship, between Freelancer and Client. Freelancer acknowledges and agrees that Client will not provide Freelancer with any employee benefits, including without limitation, any employee stock purchase plan, social security, unemployment, medical or pension payments, and that, as stated above, income tax withholding is Freelancer's responsibility. In addition, Freelancer and Client acknowledge that neither has, or shall be deemed to have, the authority to bind the other.
Freelancer and Client also acknowledge that Freelancer is not an employee of Experts Exchange for purposes of this Agreement, nor is Freelancer acting on behalf of or representing Experts Exchange in providing the Services. Experts Exchange is only acting as a passive facilitator of the relationship between Freelancer and Client, and makes no representations or warranties as to Freelancer's knowledge, expertise or fitness to provide the Services, or the result(s) of the Services received by Client. If Freelancer is otherwise employed by Experts Exchange, then work performed under this Agreement shall be done on Freelancer's own time and shall not be deemed work performed in the course of Freelancer's role as an employee of Experts Exchange. Opinions expressed and advice given by Freelancer are not endorsed by Experts Exchange, and Experts Exchange shall not be liable therefor.
Notwithstanding any other term of this Agreement, Client and Freelancer, as applicable, shall indemnify, defend and hold harmless Experts Exchange, its corporate affiliates, current or future directors, trustees, officers, employees, and agents and their respective successors, heirs and assigns (the “Indemnitees”), against any claim, liability, cost, damage, deficiency, loss, expense or obligation of any kind or nature (including without limitation, reasonable attorneys' fees and other costs and expenses of litigation) incurred by or imposed upon the Indemnitees or any one of them in connection with any claims, suits, actions, demands or judgments arising out of this Agreement (including, but not limited to, actions in the form of tort, warranty or strict liability).
6. Intellectual Property
- Freelancer understands and acknowledges that Client will be providing access to proprietary and valuable information that Freelancer might otherwise not receive (“Confidential Information”). In addition, Freelancer and Client also understand that should Freelancer, in the course of providing Services, invent or participate in inventing modifications or improvements to Client's technology, Client reasonably seeks to secure such improvements for its own use and practice. At the same time, Client understands and acknowledges that Freelancer may have pre-existing and on-going obligations to Freelancer's employer or other third parties (including obligations under grants, contracts, collaborative agreements, or “participation agreements” assigning to Freelancer's employer all inventions within the scope of certain policies). These obligations include a duty on the part of Freelancer to disclose and assign to Freelancer's employer any inventions or other proprietary rights arising during the course of such employment and any overlapping consulting arrangements (including this Agreement), and an obligation to ensure that any consulting agreement they enter into is not in conflict with the employer's policies relating to inventions and intellectual property or in conflict with other commitments.
- In order to enter into this Agreement with Freelancer, Client therefore further acknowledges and agrees that in the event that any conflict should arise between the duties set forth in this Agreement and Freelancer's obligations to his/her employer or other third parties, Freelancer shall notify Client and Freelancer and Client shall bargain in good faith in order to reach an agreement regarding the intellectual property.
- Freelancer acknowledges that Client does not desire to acquire any trade secrets, know-how, confidential information, or other intellectual property that the Freelancer may have acquired from or developed for any third party (“Third Party IP”). Client agrees that in the course of providing the Services, Freelancer shall not be required to use or disclose any Third Party IP, including without limitation any intellectual property of (i) any former or current employer, (ii) any person for whom the Freelancer has performed or currently performs consulting services, or (iii) any other person to whom the Freelancer has a legal obligation regarding the use or disclosure of such intellectual property.
7. Confidential Information
- Freelancer and Client acknowledge that, in connection with Freelancer's Services, Client may disclose to Freelancer confidential and proprietary information and trade secrets of Client, and that Freelancer may also create such information within the scope and in the course of performing the Services (hereinafter, subject to the exceptions below, “Client Confidential Information”). Such information may take the form of, for example: data concerning scientific discoveries made by Client; Client's know-how; Client's manufacturing strategies and processes; Client's marketing plans; data from Client's evaluations of Beta testing or similar pilot programs; Client's past, present and future business plans; Client's strategy for or status of regulatory approval; or Client's forecasts of sales and sales data. Notwithstanding the above, Client acknowledges and agrees that none of the information described in this section 7 (except Confidential Information created by Freelancer) will be considered Client Confidential Information for purposes of this Agreement, unless the information is disclosed to Freelancer by Client in writing and is clearly marked as confidential, or, where verbally disclosed to Freelancer by Client, is followed within thirty (30) days of such verbal disclosure by a writing from Client confirming such disclosure and indicating that such disclosure is confidential.
- Subject to the terms and conditions of this Agreement, Freelancer hereby agrees that during the term of this Agreement and for a period of three (3) years thereafter: (i) Freelancer shall not publicly divulge, disseminate, publish or otherwise disclose any Client Confidential Information without Client's prior written consent, which consent shall not be unreasonably withheld; and (ii) Freelancer shall not use any such Client Confidential Information for any purposes other than consultation with Client. Notwithstanding the above, Client and Freelancer acknowledge and agree that the obligations set out in this section 7 shall not apply to any portion of Client Confidential Information which:
- was at the time of disclosure to Freelancer part of the public domain by publication or otherwise; or
- became part of the public domain after disclosure to Freelancer by publication or otherwise, except by breach of this Agreement; or
- was already properly and lawfully in Freelancer's possession at the time it was received from Client; or
- was or is lawfully received by Freelancer from a third party who was under no obligation of confidentiality with respect thereto; or
- was or is independently developed by Freelancer without reference to Client Confidential Information; or
- is required to be disclosed by law, regulation or judicial or administrative process.
- Notwithstanding any other term of this Agreement, Client agrees that it shall not disclose to Freelancer any information which is Client Confidential Information: (i) except to the extent necessary for Freelancer to fulfill Freelancer's obligations to Client under this Agreement; or (ii) unless Freelancer has agreed in writing to accept such disclosure. All other information and communications between Client and Freelancer shall be deemed to be provided to Freelancer by Client on a non-confidential basis. Client also agrees that Freelancer may share the terms of this agreement on a confidential basis with their employers, legal and financial advisors, insurers and other third parties who have a legitimate need to know about them, and that Freelancer may disclose the existence and general nature of this consulting arrangement with Client with their employer, colleagues and co-workers, and collaborators. Client further agrees that Freelancer shall not be liable to Client or to any third party claiming by or through Client for any unauthorized disclosure or use of Client Confidential Information which occurs despite Freelancer's compliance with Freelancer's obligations under this Agreement.
- Upon termination of the Agreement, or any other termination of Freelancer's services for Client, all records, drawings, notebooks and other documents pertaining to any Confidential Information of Client, whether prepared by Freelancer or others, and any material, specimens, equipment, tools or other devices owned by Client then in Freelancer's possession, and all copies of any documents, shall be returned to Client, except Freelancer may keep one copy of all documents for his or her files (which copy shall be subject to the confidentiality and non-use requirements set out in this Agreement).
8. Term and Termination
- The term of this Agreement shall commence on the date of acceptance of this Agreement and shall terminate at the end of the Project or Services, as applicable, unless sooner terminated as hereinafter provided, or unless extended by agreement of Freelancer and Client and the assent of Experts Exchange.
9. Other Agreements
- Freelancer shall use reasonable efforts not to use any facilities, funds, or equipment owned or administered by his/her employer or any other third party in the performance of the Services, except with the prior written consent of Client and in accordance with all applicable policies of Freelancer's employer or with the permission of such third party.
- Client shall not use Freelancer's name or depiction, or the name, logos, trademarks, or depictions of Experts Exchange, or any officer, director, employee, appointee or employee of either, or any adaptation thereof, in any promotional, advertising or marketing literature, or in any other way without the prior written consent of Experts Exchange, Freelancer, or the individual(s), as appropriate, provided however that in neutral circumstances that do not imply endorsement or advocacy, or otherwise misrepresent the terms of this Agreement or Freelancer's role, Client may accurately state that Freelancer is a consultant to Client.
- No alteration or modification of this Agreement shall be valid unless made in writing and executed by Freelancer and Client and assented to by Experts Exchange.
- Freelancer and Client mutually represent that to the best of their knowledge neither currently has any agreement with, or any other obligation to, any third party that conflicts with the terms of this Agreement. Freelancer and Client agree that they shall not intentionally and knowingly enter into any such agreement.
- Freelancer and Client each agree that they, and all of their affiliated companies, agents, employees, successors in interest or assigns, will not, during the term of this Agreement, engage in any efforts to circumvent payment of Experts Exchange Fees, including Facilitation Fees (“Circumvention Conduct”). Circumvention Conduct includes, but is not limited to, side agreements with Freelancer for additional work performed during the term of this Agreement. Any Circumvention Conduct is grounds for termination of Freelancer's and/or Client's membership(s) with Experts Exchange, as applicable, without refund.
- This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to the conflict of law principles thereof. Any claim, action, or suit between any party and Experts Exchange that arises out of or relates to performance of this Agreement shall be brought and conducted solely and exclusively in the State Courts in and for the State of California in San Luis Obispo County.
- If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
- Except as explicitly stated otherwise, all notices permitted or required under this Agreement shall be by email, to Experts Exchange at email@example.com, and to Freelancer and Client at the email addresses provided Experts Exchange during the registration process, or to such other address as either shall specify in writing as the address for notice. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Evidence of successful transmission shall be retained.
- Freelancer and Client acknowledge that the Services are personal in nature, and therefore, Freelancer and Client expressly agree that neither may assign this Agreement without the written consent of the other.
This agreement was last modified on June 13, 2016