Consulting Services Agreement

This Consultant Services Agreement (this “Agreement”) is made and entered into by and between Mavenly, L.L.C., a Georgia limited liability company (“Mavenly”), and the Customer, as identified in the accompanying statement of work (the “Statement of Work”). This Agreement may refer to Mavenly or the Customer as a “Party,” or collectively as the “Parties.” This Agreement becomes binding on the Parties as of the Effective Date stated in the Statement of Work.

  1. Applicability.

  1. This Agreement and the accompanying Statement of Work (collectively, this “Agreement”) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between this Agreement and the Statement of Work, this Agreement shall govern, unless the Statement of Work expressly states that the terms and conditions of the Statement of Work will control.

  2. This Agreement prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for Statement of Work, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.

  1. Services.  Mavenly shall provide to Customer the services as described in the Statement of Work (the “Services”) in accordance with this Agreement. The initial accepted Statement of Work is attached hereto as Schedule A. Additional Statements of Work shall be deemed issued and accepted only if signed by Mavenly and Customer.

  2. Customer’s Obligations.  Customer shall:

  1. Cooperate with Mavenly in all matters relating to the Services and provide such access to Customer’s premises and other facilities as may reasonably be requested by Mavenly for the purposes of performing the Services;

  2. Respond promptly to any Mavenly request to provide direction, information, approvals, authorizations, decisions, records or other documents that are reasonably necessary for Mavenly to perform the Services in accordance with the requirements of this Agreement;

  3. Provide such materials or information as Mavenly may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects;

  4. Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and

  5. Follow all instructions and recommendations provided by Mavenly that are necessary for the satisfactory provision and completion of Services.

  1. Customer’s Acts or Omissions.  If Mavenly’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Mavenly shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

  2. Change Orders.  Customer may request Mavenly to perform services or provide materials which are not set forth in the Statement of Work. Mavenly agrees to perform such additional work so long as prior to the performance of such additional work, Customer shall authorize in writing the scope of such additional work and compensation payable to Mavenly for the full performance of said additional work. Mavenly may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Statement of Work. Mavenly may also, from time to time, change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, the fees, or any performance dates set forth in the Statement of Work.

  3. Fees and Expenses; Payment Agreement; Interest on Late Payments.  

  1. In consideration of the provision of the Services by Mavenly and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Statement of Work.

  2. Any work performed on additional tasks outside the scope of work described in the Statement of Work will be paid based on hourly rates of $200 per hour.

  3. Customer understands that the price quoted in the Statement of Work generally includes reimbursable expenses incurred by Mavenly, such as travel, courier expenses, copying, binding, and printing, unless stated otherwise. However, if Mavenly incurs expenses or other losses that it does not anticipate, such as travel cancellation fees resulting from Customer’s rescheduling or cancellation of a site visit, Mavenly has the right to seek additional reimbursement from Customer for such expenses. Likewise, if Mavenly purchases any specific items at the request of Customer, Customer agrees to promptly reimburse Mavenly for the cost of such items.

  4. All fees are due and payable no later than thirty (30) days from date of invoice. All past due amounts will incur an interest charge of 1.5% per month, being an annual percentage rate of 18%, or the maximum amount allowed by law, whichever is less. Should any payments owed by Customer be collected by or through an attorney, Customer also agrees to pay an additional 15% of the amount due and accrued interest, plus any other costs of such collection, including reasonable attorney’s fees.

  5. Customer agrees to notify Mavenly in writing or by email within five (5) days of receiving an invoice if Customer disputes any expense or fee entry on that invoice. In the absence of any such written objections within five (5) days, Customer will be deemed to have accepted and acknowledged the invoice as correct.

  1. Representations and Warranties.

  1. Mavenly warrants that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

  2. Mavenly shall not be liable for a breach of the warranty set forth in Section 7(a) unless Customer gives written notice of the defective Services, reasonably described, to Mavenly within five (5) days of the time when Customer discovers or ought to have discovered that the Services were defective.

  3. Subject to Section 7(b), Mavenly shall in its sole discretion either: (i) repair or re-perform such Services (or the defective part); or (ii) within 30 days credit or refund the price of such Services at the pro rata contract rate.

  4. THE REMEDIES SET FORTH IN SECTION 7(c) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND MAVENLY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 7(a).

  1. Disclaimer of Warranties. MAVENLY MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 7(A), ABOVE. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE OR OTHERWISE ARE EXPRESSLY DISCLAIMED.

  2. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the  Mavenly in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the "Deliverables") shall be owned by  Mavenly.  Mavenly hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.

  3. Confidentiality. From time to time during the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public proprietary and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as "confidential," or if disclosed orally, is identified as confidential when disclosed and within 7 days thereafter, is summarized in writing and confirmed as confidential ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 10; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) 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; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

  4. Disclosure. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.

  5. Term, Termination and Survival.

  1. This Agreement will commence on the Effective Date and shall continue thereafter for the duration of the Services, unless sooner terminated pursuant to this Section. The Services shall be provided on the date set forth in the Statement of Work.  

  2. Either Party may terminate this Agreement by providing thirty (30) days’ advance written notice to the other Party, subject to the termination provisions set forth herein.

  3. Mavenly may terminate this Agreement with immediate effect upon written notice to the Customer if (i) the Customer fails to pay any amount when due hereunder and such failure continues for 14 days after the Customer's receipt of written notice of nonpayment; or (ii) Customer has not otherwise performed or complied with this Agreement, in whole or part.

  4. If the Customer cancels the Services within thirty (30) days of the date on which the Services are to be provided or after preparatory expenses, including travel arrangements, were made by Mavenly, Customer will immediately: (i) pay all outstanding balances for the services performed up to the date of termination; (ii) pay an early termination fee equal to fifty (50%) percent of the total amount of fees set forth in the applicable Statement of Work; and (iii) reimburse Mavenly for all preparatory expenses, provided such preparatory expenses are reasonably justified and documented.

  5. The rights and obligations of the parties set forth in this Section 12 and in Sections 9, 10, and 11, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

  1. Limitation of Liability.

  1. IN NO EVENT SHALL  MAVENLY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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  MAVENLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

  2. IN NO EVENT SHALL MAVENLY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO MAVENLY PURSUANT TO THIS AGREEMENT AND THE APPLICABLE STATEMENT OF WORK.

  1. Indemnification. Customer shall indemnify, hold harmless and defend Mavenly and its officers, directors, agents (including Sub-Agents), employees and affiliates (the “Indemnified Parties”) from and against any and all claims, demands, actions, costs, expenses, liabilities, judgments, causes of action, proceedings, suits, losses and damages of any nature, which are threatened or brought against, or are suffered or incurred by, the Indemnified Parties as a result of: (a) any breach by Customer or its officers, directors, affiliates, representatives, contractors, or employees (collectively, “Agents”) of any of the obligations, representations, warranties, covenants, or conditions contained in this Agreement; (b) any negligent, intentional, or intentionally wrongful act of Customer or its Agents; or (c) any violation of applicable laws or regulations by Customer or its Agents.

  2. Relationship of Parties. The relationship of the Parties is that of an independent contractor and shall not be deemed to create any joint venture, association, or partnership.

  3. 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.

  4. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 17.

Notice to Customer: [CUSTOMER ADDRESS]

Attention: [TITLE OF OFFICER TO RECEIVE NOTICES]

Notice to  Mavenly:

ATTN: Kate Gremillion

Mavenly, L.L.C.

151 Ted Turner Drive NW

Atlanta, GA 30303

  1. Including; Severability. Unless the context requires otherwise, the term “including” means “including but not limited to.” If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  2. Modification and Waiver.  This Agreement may not be modified except in a writing signed by the Parties. No waiver by Mavenly of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Mavenly. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

  3. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Mavenly. Any purported assignment or delegation in violation of this Section 20 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.

  4. 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.

  5. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

  6. Governing Law; Submission to Jurisdiction. Georgia law applies to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction. All disputes arising out of or in connection with this Agreement will be brought in the courts of Fulton County, Georgia or the U.S. District Court for the Northern District of Georgia, and the parties consent to the jurisdiction of such courts.

  7. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

  8. Force Majeure. The Mavenly shall not be liable or responsible to Customer, 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 reasonable control of Mavenly 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, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 14 days, Customer shall be entitled to give notice in writing to Mavenly to terminate this Agreement.

  9. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.

 

Name *
Name

Mavenly, LLC

Kate Gremillion

CEO, Mavenly Consulting