1. Services. The Consultant shall provide to the Client the services (the “Services”) set out in one or more statements of work to be issued by the Consultant and accepted by the Client (each, a “Statement of Work”). The initial accepted Statement of Work is attached hereto as Exhibit A and incorporated herein by this reference. Additional Statements of Work shall be deemed issued and accepted only if signed by the Consultant and the Client.
2. Client Obligations. The Client shall: (i) designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Authorized Representative”); (ii) require that the Authorized Representative respond promptly to any reasonable requests from the Consultant for instructions, information, or approvals required by the Consultant to provide the Services; and (iii) cooperate with the Consultant in its performance of the Services and provide access to the Client’s business and personal information, as required to enable the Consultant to provide the Services.
3. Compensation. The Client shall pay the Consultant for the Services in accordance with the fee schedule set forth in the applicable Statement of Work. The Client shall pay all invoiced amounts due to the Consultant upon receipt of the Consultant’s invoice (the “Date of Receipt”). In the event payments are not received by the Consultant within five (5) days after the Date of Receipt, the Consultant may suspend performance of the Services until payment has been made in full.
4. Performance of Services and Partnered Affiliates. The Consultant agrees to perform the Services in a timely, professional, and workmanlike manner. The manner and means by which Consultant chooses to complete the Services are in the sole discretion and control of the Consultant. The Consultant is not a licensed or certified financial advisor, certified public accountant (CPA) or any other professional whatsoever requiring licensure or certification with a regulatory, administrative or government entity, or compliance with heightened standards of care, including but not limited to, that of a fiduciary or fiduciary relationship. In connection with the foregoing, the Consultant may, from time to time, engage certain partnered affiliates to provide professional services on an as-needed basis to perform the Services (“Partnered Affiliates”). The Client hereby acknowledges and agrees: (i) any engagement of such Partnered Affiliates shall be wholly separate from the Services provided by the Consultant in an applicable Statement of Work; (ii) to execute and be bound by additional documentation necessary to engage such Partnered Affiliates (“Additional Engagement Documentation”); (iii) to pay the fees and costs of Partnered Affiliates separately and directly to Partnered Affiliates, in accordance with the terms and conditions of applicable Additional Engagement Documentation.
5. Partnered Affiliates; Legal Services. The Consultant shall, as applicable, provide access to independent attorneys at the Client’s specific direction and subject to the scope of services outlined on any applicable Statement of Work. The Consultant is not a law firm or a substitute for an attorney or law firm. The Consultant cannot provide any kind of advice, explanation, opinion or recommendation about possible legal rights, remedies, defenses, options, selection of forms or legal strategies. Notwithstanding the following Section 6 and Section 7, communications between the Consultant and the Client are not protected by the attorney-client privilege.
6. Confidential Information. Client hereby acknowledges and agrees that it is necessary for the Client to provide the Consultant and its employees and Partnered Affiliates (collectively, the “Breadify Group”) with access to certain personal and business information of Client (including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, information pertaining to customers, pricing, marketing, financial statements, tax returns, birth dates, social security numbers, tax identification numbers, account or login information associated with online banking, brokerage or other financial accounts, and/or other personally identifiable information, in any form or media and whether or not marked, designated or otherwise identified as “confidential”) (collectively, the “Confidential Information”) in order for the Consultant and the Breadify Group to provide the Services. Confidential Information does not include information that is: (i) in the public domain; (ii) known to the Consultant at the time of disclosure; or (iii) rightfully obtained by the Consultant on a non-confidential basis from a third party. The Consultant shall only use the Confidential Information for the sole purpose of performing the Services hereunder, and shall use its reasonable best efforts to protect and safeguard the Confidential Information.
8. Term; Termination. The Term of this Agreement shall commence on the Effective Date and shall continue unless earlier terminated in accordance with either of the following: (i) the Consultant or the Client may terminate this Agreement at any time with or without cause upon giving the other party thirty (30) days' prior written notice of such termination; or (ii) either party may terminate this Agreement immediately if the other party breaches this Agreement and such breach is incapable of cure and the breaching party does not cure such breach within seven (7) days after receipt of the other party’s written notice of such breach. Subject to the terms and conditions of this Agreement and this Section 7, upon the termination or expiration of this Agreement, neither party shall have any liabilities or obligations to the other party, for compensation or damages of any kind, except with respect to any compensation that is due to the Consultant as of the effective date of termination. Refunds will be given in the Consultant’s sole reasonable discretion.
9. Indemnification. The Client shall indemnify, defend, and hold harmless the Consultant and the Breadify Group from and against any and all losses, legal claims and demands, including reasonable attorney’s fees, which may arise from or relate to the Client’s breach of this Agreement or the Client’s negligent conduct or actions.
10. Completeness and Accuracy of Information. The Client hereby represents and warrants that any Confidential Information (or other information shared under this Agreement to enable the Consultant to provide the Services) is true, accurate, complete and correct, and contains no material deficiencies, misstatements or otherwise that would subject the Consultant to liability of any kind. In connection with the foregoing, any financial statements or documentation prepared by the Consultant shall be based solely upon information provided to the Consultant by the Client. Under no circumstances shall any aspect of the Services provided hereunder be considered an audit of the Client’s financial statements.
11. No Conflicts; Consents. In addition to the foregoing, the execution, delivery and performance by the Client of this Agreement (and any applicable Statements of Work) do not and will not: (i) conflict with or result in a violation or breach of, or default under, any provision of the Client’s incorporation or organizational documents; or (ii) conflict with or result in a violation or breach of any provision of any law or governmental order applicable to the Client. The Client further acknowledges and agrees no consent, approval, permit, governmental order, declaration or filing with, or notice to, any governmental authority is required by or with respect to the Client in connection with the execution and delivery of this Agreement and the Services provided hereunder.
12. Independent Contractor Status. The Consultant shall at all times be an independent contractor when acting under this Agreement. No provision of this Agreement shall be interpreted to conflict with the intent of the parties that the Consultant's legal status with respect to this Agreement and the Services provided hereunder is that of an independent contractor, and not as an employee, agent, partner, or joint venturer of the Client.
13. Amendments. This Agreement may be amended or modified from time to time by the Consultant, effective immediately upon written notice to the Client. The Statement of Work and/or the scope of Services provided pursuant to this Agreement may be modified only in writing signed by the Client and the Consultant, which may be in the form of e-mail so long as both the Consultant and the Client acknowledge in writing such e-mail(s) modifying, altering, changing or adding to the Statement of Work.
14. DISCLAIMER. CLIENT IS HEREBY ENCOURAGED TO CONSULT ITS OWN FINANCIAL, LEGAL, TAX AND ACCOUNTING ADVISORS PRIOR TO MAKING ANY DECISIONS. CLIENT ACKNOWLEDGES AND AGREES THIS AGREEMENT DOES NOT CREATE A FIDUCIARY RELATIONSHIP OF ANY KIND, AND THAT THE CONSULTANT IS NOT A FINANCIAL PROFESSIONAL OF ANY KIND REQUIRING LICENSURE OR CERTIFICATION WITH ANY APPLICABLE REGULATORY, GOVERNMENTAL, ADMINISTRATIVE OR OTHER ENTITY. ANY AND ALL COMMENTS, OPINIONS OR DIRECTIONS ISSUED BY THE CONSULTANT SHALL UNDER NO CIRCUMSTANCES BE CONSTRUED AS FINANCIAL, LEGAL OR TAX ADVICE AND ARE MERELY THE OPINIONS OF THE CONSULTANT.
15. Limitation of Liability. IN NO EVENT SHALL THE CONSULTANT BE LIABLE TO THE CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, 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 THE CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
17. Applicable Law and Choice of Forum. This Agreement will be governed by, and construed in accordance with, the laws of the State of Ohio, without regard to its conflicts of law principles. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Northern District of Ohio or, if such court does not have subject matter jurisdiction, the courts of the State of Ohio sitting in Cuyahoga County, and any appellate court from any thereof.
18. Use of Name or Likeness. The Client hereby grants the Company the revocable right to use the Client’s name and likeness solely for the purpose of promoting the Consultant’s brand and business (e.g. customer testimonials utilized on any technological or written medium) and for the Term of this Agreement. For purposes of clarity, the Client may revoke the foregoing right upon written notice to the Consultant.
19. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
20. Force Majeure. The Consultant shall not be liable or responsible to the Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the control of the Consultant including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, cyber-attack or hackers, revolution, insurrection, epidemic or pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.
21. Partial Invalidity. In the event that any provision of this Agreement may be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of the Agreement.
22. Captions and Section Numbers. The section or paragraph titles or captions contained in this Agreement are for convenience only and shall not be deemed to be part of the context of this Agreement.
23. Counterparts. This Agreement may be executed into any number of counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. Facsimile and electronically scanned signatures shall be deemed the same as originals and shall be valid and binding.