- Consulting Services
- Subject to the terms and conditions set forth in this Agreement, Client hereby purchases from Experts Exchange a Live session with Consultant (“Session”), which is incorporated into this Agreement and made a part hereof by this reference (the “Services”). Consultant shall not accept a Session with Client unless he or she possesses a level of knowledge sufficient to troubleshoot and offer sound technical advice in the particular field. EXPERTS EXCHANGE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING CONSULTANT’S FIELDS OF EXPERTISE, AND SHALL NOT BE LIABLE SHOULD CONSULTANT FAIL TO POSSESS SUFFICIENT EXPERTISE TO PROVIDE THE SERVICES.
- Subject to the terms and conditions of this Agreement, Consultant agrees to render such Services during the Session. If the Session is terminated prior to its expiration, by Client clicking the “End” button, Consultant shall have no further obligations to Client unless another Session with Consultant is purchased. Consultant’s time commitment hereunder shall not exceed the amount of time purchased by Client.
- It is understood that the purpose of the Services is to troubleshoot and provide advice relevant to certain Client matters. It is expressly understood that Consultant has no fiduciary obligation to Client, but instead a contractual one described by the terms of this Agreement; that Consultant’s role is to provide independent advice uninfluenced by commercial concerns; and that service as a Consultant does not require Consultant 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.
- Compensation and Refund Policy
- Compensation: In consideration of the services to be provided by Experts Exchange and Consultant to Client hereunder, Client shall pay the current amount which is outlined on http://support.experts-exchange.com/customer/portal/articles/2257999, which is based on Client’s membership type and the length of the Session purchased, to Experts Exchange, a portion which will paid to Consultant as outlined in the Live Facilitation Agreement for Consultant and which is outlined on http://support.experts-exchange.com/customer/portal/articles/2257999. Funds are held by Experts Exchange in an operating accounts held by reputable financial institutions. Funds are not held separately and may be commingled with general operating funds. Client and Consultant are not entitled to any interest or other earnings for these funds. Payment to the Consultant by Experts Exchange shall be facilitated by PayPal.
- Consultant shall have the responsibility to pay all income taxes due based on Consultant’s earnings for providing the Services, including those taxes specific to Consultant’s jurisdiction and residence. Consultant is advised to seek advice from an independent Certified Public Accountant, at Consultant’s own expense, for more information on tax liabilities and obligations.
- Refund Policy: PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED SESSIONS.
- Disputes: Consultant 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.
- Limitation of Liability
In recognition of the relative risks and benefits of the Session to both the Client and the Consultant, the risks have been allocated such that the Client agrees, to the fullest extent permitted by law, to limit the liability of the Consultant 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 Consultant to the Client shall not exceed $15 or Consultant’s Fee for services rendered during the Session, 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 Consultant agree that Experts Exchange’s liability under this Agreement shall be limited to the Total Price less Consultant’s Fee. 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 CONSULTANT OR CLIENT FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THEIR USE OF, PARTICIPATION IN OR INABILITY TO USE, THE LIVE CHAT SERVICES OR THE SESSION. 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 CONSULTANT, CLIENT OR BOTH.
- Independent Contractor Status
Consultant and Client agree that this Agreement creates an independent contractor relationship, and not an employment relationship, between Consultant and Client. Consultant acknowledges and agrees that Client will not provide Consultant 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 Consultant’s responsibility. In addition, Consultant and Client acknowledge that neither has, or shall be deemed to have, the authority to bind the other.
Consultant and Client also acknowledge that Consultant is not an employee of Experts Exchange for purposes of this Agreement, nor is Consultant 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 Consultant and Client, and makes no representations or warranties as to Consultant’s knowledge, expertise or fitness to provide the Services, or the result(s) of the Services received by Client. If Consultant is otherwise employed by Experts Exchange, then work performed under this Agreement shall be done on Consultant’s own time and shall not be deemed work performed in the course of Consultant’s role as an Employee of Experts Exchange. Opinions expressed and advice given by Consultant are not endorsed by Experts Exchange, and Experts Exchange shall not be liable therefor.
Notwithstanding any other term of this Agreement, Client and Consultant 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).
- Intellectual Property
- Consultant understands and acknowledges that Client will be providing access to proprietary and valuable information that Consultant might otherwise not receive (“Confidential Information”). In addition, Consultant and Client also understand that should Consultant, 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 Consultant may have pre-existing and on-going obligations to Consultant’s employer or other third parties. These obligations may include a duty on the part of Consultant to disclose and assign to Consultant’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 he enters 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 Consultant, Client therefore further acknowledges and agrees that in the event that any conflict should arise between the duties set forth in this Agreement and Consultant’s obligations to his/her employer or other third parties, Consultant shall notify Client, and Consultant and Client shall bargain in good faith in order to reach an agreement regarding the intellectual property.
- Consultant acknowledges that Client does not desire to acquire any trade secrets, know-how, confidential information, or other intellectual property that the Consultant may have acquired from or developed for any third party (“Third Party IP”). Client agrees that in the course of providing the Services, Consultant 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 Consultant has performed or currently performs consulting services, or (iii) any other person to whom the Consultant has a legal obligation regarding the use or disclosure of such intellectual property.
- Confidential Information
- Consultant and Client acknowledge that, in connection with Consultant’s Services, Client may disclose to Consultant confidential and proprietary information and trade secrets of Client, and that Consultant 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 Paragraph 6 (except Confidential Information created by Consultant) will be considered Client Confidential Information for purposes of this Agreement, unless the information is disclosed to Consultant by Client in writing and is clearly marked as confidential, or, where verbally disclosed to Consultant 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, Consultant hereby agrees that during the term of this Agreement and for a period of three (3) years thereafter: (i) Consultant 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) Consultant shall not use any such Client Confidential Information for any purposes other than consultation with Client. Notwithstanding the above, Client and Consultant acknowledge and agree that the obligations set out in this Paragraph 6 shall not apply to any portion of Client Confidential Information which:
- was at the time of disclosure to Consultant part of the public domain by publication or otherwise; or
- became part of the public domain after disclosure to Consultant by publication or otherwise, except by breach of this Agreement; or
- was already properly and lawfully in Consultant’s possession at the time it was received from Client; or
- was or is lawfully received by Consultant from a third party who was under no obligation of confidentiality with respect thereto; or
- was or is independently developed by Consultant 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 Consultant any information which is Client Confidential Information: (i) except to the extent necessary for Consultant to fulfill Consultant’s obligations to Client under this Agreement; or (ii) unless Consultant has agreed in writing to accept such disclosure. All other information and communications between Client and Consultant shall be deemed to be provided to Consultant by Client on a non-confidential basis. Client also agrees that Consultant may share the terms of this agreement on a confidential basis with its employers, legal and financial advisors, insurers and other third parties who have a legitimate need to know about them, and that Consultant may disclose the existence and general nature of his consulting arrangement with Client with his/her employer, colleagues and co-workers, and collaborators. Client further agrees that Consultant 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 Consultant’s compliance with Consultant’s obligations under this Agreement.
- Upon termination of the Agreement, or any other termination of Consultant’s services for Client, all records, drawings, notebooks and other documents pertaining to any Confidential Information of Client, whether prepared by Consultant or others, and any material, specimens, equipment, tools or other devices owned by Client then in Consultant’s possession, and all copies of any documents, shall be returned to Client, except Consultant 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).
- Term and Termination
- The term of this Agreement shall commence immediately upon acceptance of this Agreement and shall terminate at the conclusion of the Session, at which time Consultant or Client, as applicable, will be asked to re-accept this Agreement (and any modifications hereto that have occurred since the previous acceptance) in order to consider providing and/or receiving Live services, as applicable.
- Other Agreements
- Consultant 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 Consultant’s employer or with the permission of such third party.
- Client shall not use Consultant’s name or depiction, or the name, logos, trademarks, or depictions of Experts Exchange, or any officer, director, 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, Consultant, 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 Consultant’s role, Client may accurately state that Consultant is a consultant to Client.
- No alteration or modification of this Agreement shall be valid unless made in writing and executed by Consultant and Client and assented to by Experts Exchange.
- Consultant 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. Consultant and Client agree that they shall not intentionally and knowingly enter into any such agreement.
- Consultant 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 fees to Experts Exchange, including fees that would be due under any other agreements with Experts Exchange ("Circumvention Conduct"). Circumvention Conduct includes, but is not limited to, side agreements with Consultant to collaborate off of the Site or for Consultant to perform additional work that would normally be performed under a Gigs Service-Specific Agreement, during the term of this Agreement. Any Circumvention Conduct is grounds for cancellation of Consultant’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 attorney’s 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 firstname.lastname@example.org, and to Consultant 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.
- Consultant and Client acknowledge that the Services are personal in nature, and therefore expressly agree that neither may assign this Agreement without the written consent of the other.