CONSULTING SERVICES AND LICENSE AGREEMENT
This Consulting Services and License Agreement (“Agreement”) is effective as of the submission date (the “Effective Date”) by and between:
Lead Genie LLC (“Lead Genie”);
and
Submitee
each having an address as provided in the Notice section below, and each a “Party” and collectively the “Parties”.
Lead Genie provides tailored information to identify business prospects for companies, other entities, and individuals. The Company wishes to engage Lead Genie to provide such services under the terms and conditions of this Agreement.
In consideration of the mutual promises set forth in this Agreement, Lead Genie and the Company agree as follows:
ARTICLE 1
Services and License
1.1 Services.
(a) Lead Genie agrees to provide the Company with consulting services to identify potential business leads (each a “Lead” and collectively the “Leads”) for the Company (the “Services”). These business leads will be provided in electronic form in a written report that includes at least the business, entity, or individual name for each Lead, as well as at least one type of contact information for the Lead (e.g. an email address or telephone number) (each such report a “Lead Report”, and collectively the “Lead Reports.”). A Lead Report will be provided within the time frame specified in Section 1.3(a) (the “Initial Lead Report”) upon payment of the Initial Fee under Section 2.1(a).
(b) Absent an Update Request, Lead Genie has no obligation to provide any information to the Company other than the Initial Lead Report, as updated if required for Acceptance by the Company. However, Lead Genie may, in its sole discretion, also provide further written or oral information to the Company as part of the Services in the absence of an Update Request.
(c) Upon submission of a request in writing by the Company during the Term (a “Update Request”), Lead Genie agrees to provide the Company with further Services to update the Leads, including providing a report of such updates (a “Update Lead Report”). The Update Lead Report will include updated information as compared to the Initial Lead Report, the most recent Update Lead Report, of another prior, date-identified Update Lead Report. The Update Lead Reports will be provided as specified in Section 1.3(b).
(b) Lead Genie will use publicly available information concerning potential Leads to generate the Lead Reports. Lead Genie will have no obligation to use non-public information regarding any Lead in generating the Lead Reports, even if such non-public information is known or reasonably available to Lead Genie. Each Lead Report, however, will be considered Confidential Information (as defined below) of Lead Genie. To the extent Lead Genie might disclose both the Lead Report and the Company’s identity associated with the Lead Report to a third party, the Lead Report will also be considered Confidential Information of the Company.
(c) Lead Genie has the sole right to control and direct the means, manner, and method by which the Services required by this Agreement will be performed. Lead Genie will select the methodologies and process, days of work, and timing or order used in performing the Services. Neither Lead Genie for any Lead Genie employee will be required to devote full time to the performance of the Services required by this Agreement.
1.2 Intake Information.
(a) Prior to the commencement of any Services, the Company will complete a description of its business needs in the form set forth in Exhibit 1.2 (the “Intake Form”) and provide the Intake Form to Lead Genie in writing.
(b) At the time of any Update Request, the Company may update the Intake Form and provide the updated Intake Form to Lead Genie in writing, to be used in the generation of the subsequent Update Lead Report.
1.3 Timing.
(a) Unless otherwise agreed in writing by the Parties, Lead Genie will have no obligation to commence the Services or to provide an Initial Lead Report prior to receipt of the Intake Form. Upon receipt of the Intake Form Lead Genie will provide the Company with an estimated completion date by which the Lead Report will be prepared (“Initial Report Completion Date”). The Initial Report Completion Date will be reasonable in light of the scope of the Services, but will not be less than ten (10) business days or more than forty five (45) business days subsequent to the later of receipt of payment under Section 2.1(a).
(b) At the time of any Update Request, unless otherwise agreed to in writing by the Parties, Lead Genie will provide an Update Lead Report no more than ten (10 business days after receipt of the Update Request.
1.4 Ownership and License Lead Reports.
(a) Lead Genie has and retains all ownership interests in each Lead Report and in any methods or practices used to generate each Lead Report.
(b) Lead Genie grants to the Company and its Affiliates identified in Exhibit 1.4 (only if such Affiliates agree to be bound by this Agreement as if a Party and to the same extent as the Company) a limited, non-exclusive, royalty-free, perpetual, worldwide license to the Lead Reports for internal use in the generation of additional business by the Company and its Affiliates only. This license is irrevocable except in the case of the Company or its Affiliates disclosing any Lead Report or a substantial portion thereof to any third parties in a manner contrary to their obligations under Article 3, in which case the license is fully revocable by Lead Genie in Lead Genie’s sole discretion, with no obligation to refund to the Company any fees or other consideration provided to Lead Genie by the Company under this Agreement.
1.5 Access to Lead Reports.
(a) Lead Genie may make the Lead Reports available to the Company via an access-restricted web or cloud service. The Company may be required to establish an account or employ another confidential login method to access the Lead Report. Access to the Lead Report in this manner will be subject to any additional terms and conditions specific to web or cloud service access that are provided to the Company when the account or login method are established, as may be updated from time to time (the “Access Terms and Conditions”). The Access Terms and Conditions are identified in Exhibit 1.5.
(b) Access to the Lead Reports in this manner will be for a duration of not less than one hundred eighty (180) days from the date such Lead Report was first provided to the Company, and Lead Genie will provide the Company with at least twenty (20) business days’ notice prior to the cessation of access to a Lead Report.
(c) If the Company determines that it would prefer to not access the Lead Reports in this manner, Lead Genie will provide the Company with the Lead Reports in an alternative electronic format that preserves confidentiality and as much functionality and data as reasonable as compared to a web or cloud-based form for an additional fee equal to five (5) percent of the Initial Fee or Update Fee, whichever is applicable to the affected Lead Report(s). In the even the Company choses an alternative electronic format for receipt of Lead Reports, the Company will be responsible for determining and complying with any third party terms and conditions applicable to such alternative electronic format.
1.6 Acceptance of Services and Lead Report. All Services, the Initial Lead Report, and any Update Lead Reports are subject to acceptance by the Company.
(a) If the Company does not request any specific modification of the Initial Lead Report within ten (10) business days of receipt of the Initial Lead Report, the Initial Lead Report and all associated Services will be deemed to have fulfilled Lead Genie’s obligations under Sections 1.1, 1.2, and 1.3 (“Acceptance”).
(b) If the Company does not request any specific modification of an Update Lead Report within five (5) business days of receipt of the Update Lead Report, the Update Lead Report and all associated Services will be deemed to have fulfilled the Acceptance conditions.
(c) All requests for modification of Lead Reports by the Company prior to Acceptance must be in writing and provided to Lead Genie in accordance with the Notices provision below or in another format identified in writing by Lead Genie as a suitable method of providing such requests.
1.7 Services to Third Parties. Lead Genie has the right to perform services for third parties during the term of this Agreement so long as Lead Genie performs the Services hereunder with not less than the level of diligence with which Lead Genie performs services for any other party.
1.8 Limitations on Delegation of the Services. The Services are to be performed by employees of Lead Genie. Lead Genie may not subcontract or engage consultants to perform the Services. Lead Genie may, however, enter into contractual relationships with third parties to allow the Company access to the Lead Reports pursuant to Section 1.5, provided that such third party contracts protect Confidential Information of the Company as required under Article 3.
ARTICLE 2
Fees and Payments
2.1 Service Fees.
(a) Within thirty (30) days of the Effective Date, the Company will pay to Lead Genie a fee of $150 for generation of and access to the Initial Lead Report, as well as associated Services, as described in Article 1 (the “Initial Fee”).
(b) Should the Company wish to receive an Update Lead Report, the Company will provide an Update Request and a fee of $50 (the “Update Fee”) to Lead Genie. Lead Genie may alter the Update Fee applicable to future Update Requests by providing written notice to the Company.
2.2 Taxes. Lead Genie is responsible for determining the applicability of any sales, use, excise, or similar taxes which may be applicable to the performance of any Services, the license of any Lead Reports, or otherwise applicable to any payments under Section 2.1, if any. Lead Genie will be fully responsible for payment of any such taxes, will clearly identify such taxes to the Company upon request, and will provide the Company with a certificate acceptable to the relevant taxing authorities exempting the Company from payment of these taxes or proof of payment of these taxes.
2.3 No employee relationship. The payment of any Initial Fee or Update Fee under the present Agreement will not establish an employee relationship between the Company and Lead Genie or any employees of Lead Genie, and no Lead Report produced under this Agreement or any methods of processes developed under this Agreement will be a work for hire or otherwise constitute intellectual property in which the Company has an ownership interest as an employer.
ARTICLE 3
Confidentiality
3.1 Confidential Information. Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. For purposes of this Agreement, “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing Party, including, the material terms of this Agreement, information about the Company, including information provided under Section 1.2 and the Lead Reports as noted in Section 1.1. “Confidential Information” will not include information (a) already lawfully known to or independently developed by the receiving Party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party.
3.2 Duty of Confidentiality.
(a) Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the term of this Agreement, and for a period of three (3) years following expiration or termination of this Agreement, to prevent the duplication or disclosure of Confidential Information of the other Party, other than by or to its employees or agents who must have access to such Confidential Information to perform such Party’s obligations hereunder, who will each agree to comply with this Section.
(b) The Company acknowledges that any access to Lead Reports under Section 1.5 will require, at a minimum, a form of password protection. The Company further acknowledges that any downloaded or local copies of any Lead Report maintained by the Company will require a password to open the file or document containing any Lead Report, or a substantial portion thereof. Lead Genie has no duty to provide any Lead Report or to refund any associated fees in the even the Company refuses to comply with, at a minimum, the requirement or a password-protected login to a secure data repository and/or password protection of all files and documents containing a Lead Report or a substantial portion thereof.
(c) The Company acknowledges that no Lead Report, or a substantial portion thereof, may be provided by the Company to any third party, other than an Affiliate under Section 1.4. The Company may allow a third party to view a portion of a Lead Report under the control of the Company or may orally recite or describe a portion of a Lead Report to a third party solely for the purpose of informing the third party of the general nature and content of Lead Reports, and not to an extent that allows the third party to use the information contained in a Lead Report to identify business prospects for the third party.
3.3 Exceptions. Notwithstanding the foregoing, either Party may disclose Confidential Information without the consent of the other Party, to the extent such disclosure is required by law, rule, regulation or government or court order. In such event, the disclosing Party will provide, if reasonably possible, at least five (5) business days prior written notice of such proposed disclosure to the other Party. Further, in the event such disclosure is required of either Party under the laws, rules or regulations of the Securities and Exchange Commission or any other applicable governing body, such Party will (i) redact mutually agreed-upon portions of this Agreement to the fullest extent permitted under applicable laws, rules and regulations and (ii) submit a request to such governing body that such portions and other provisions of this Agreement receive confidential treatment under the laws, rules and regulations of the Securities and Exchange Commission or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body.
ARTICLE 4
Warranties and Liabilities
4.1 Lead Genie Representations and Warranties. Lead Genie represents and warrants that Lead Genie has the full corporate right, power, and authority to grant all licenses granted under this Agreement.
4.2 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power, and authority to enter into this Agreement, and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) SUCH PARTY ACKNOWLEDGES THAT THE OTHER PARTY MAKES NO REPRESENTATIONS, WARRANTIES OR AGREEMENTS RELATED TO THE SUBJECT MATTER HEREOF WHICH ARE NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
4.3 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR GRANTS ANY WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTY AS TO THE VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
4.4 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGE OF ANY KIND OR NATURE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT (INCLUDING, WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT), TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF ANY OTHER PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE IN ADVANCE.
4.5 Indemnification. Each Party shall defend, indemnify and hold harmless the other Party, its officers, directors, agents, affiliates, distributors, franchisees and employees from any and all loss and third party claims, demands, liabilities, costs or expenses, including without limitation reasonable attorneys’ fees and expenses resulting from the gross negligence or reckless conduct of the indemnifying Party.
ARTICLE 5
Term and Termination
5.1 Term. This Agreement will commence on the Effective Date and, unless terminated under the provisions of this Article 5, will continue for a term of the later of one (1) year after the Effective Date. The Company may renew the Agreement for an additional one (1) year by providing written notice to Lead Genie at least thirty (30) days prior to the expiration of the then-current Term.
5.2 Termination Upon Notice Without Penalty.
(a) Lead Genie may terminate this Agreement without penalty upon written notice to Company prior to receipt of the Initial Fee.
(b) Lead Genie may terminate this Agreement without penalty upon written notice to the Company after provision and Acceptance of the Initial Lead Report or the most recent Update Lead Report and prior to the receipt of a subsequent Update Request.
(c) The Company may terminate this Agreement without penalty upon written notice to Lead Genie prior to payment of the Initial Fee.
(d) The Company may terminate this Agreement without penalty upon written notice to Lead Genie subsequent to provision and Acceptance of the Initial Lead Report or the most recent Update Lead Report.
5.3 Termination Upon Notice With Penalty.
(a) Lead Genie may terminate this Agreement upon written notice to the Company at any time subsequent to receipt of the Initial Fee and prior to the provision of the Initial Lead Report upon return of the Initial Fee and payment of penalty equal to two percent (2%) of the Initial Fee.
(b) Lead Genie may terminate this Agreement upon written notice to the Company at any time subsequent to an Update Request and prior to the provision of the requested Update Lead Report upon return of the Update Fee and payment of a penalty equal to one percent (1%) of the Update Fee.
(c) The Company may terminate this Agreement upon written notice to Lead Genie at any time after commencement of the Services by Lead Genie, but prior to the provision of the Initial Lead Report to the Company, but will not be entitled to any refund of the Initial Fee.
(d) The Company may terminate this Agreement upon written notice to Lead Genie at any time after commencement of Services by Lead Genie in connection with a prior Update Request, but will not be entitled to any refund of the Update Fee for that Update Request, the Update Fee for any prior Update Request, or the Initial Fee.
(e) The Company may terminate this Agreement upon written notice to Lead Genie subsequent to providing an Update Request, but prior to payment of the relevant Update Fee, without obligation to subsequently pay the relevant Update Fee, but will not be entitled to any refund of the Update Fee for any prior Update Request, or the Initial Fee.
5.4 Termination for Breach. Either Party may terminate this Agreement at any time in the event of a material breach by the other Party which remains uncured after thirty (30) business days written notice thereof. The monetary penalties provided in this Section 5.4 are not liquidated damages, and do not relieve either Party of any obligations for further damages resulting from a material breach.
(a) In the event the Company terminates this Agreement due to material breach by Lead Genie, Lead Genie will refund the Initial Fee, plus an additional five percent (5%) of the Initial Fee, and the Update Fee for the outstanding Update Request to the Company. In such case of material breach by Lead Genie, the license to the Company under Section 1.4 will become irrevocable.
(b) In the event Lead Genie terminates this Agreement due to material breach by the Company, Lead Genie may retain the Initial Fee and all Update Fees, and the Company will pay an additional five percent (5%) of the Initial Fee and the Update Fee for any outstanding Update Request to Lead Genie. In such case of material breach by the Company, the license to the Company under Section 1.4 will be terminated immediately after expiration of the thirty (30) business days to cure.
5.5 Excuse. Neither Party shall be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such Party’s reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence.
5.6 Termination for Bankruptcy/Insolvency. Either Party may terminate this Agreement as if under Section 5.2 immediately following written notice to the other Party if the other Party (i) ceases to do business in the normal course, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (iv) makes an assignment for the benefit of creditors.
5.7 Surviving Sections. The following sections shall survive the termination of this Agreement: [to be filled in once template is complete].
ARTICLE 6
Dispute Resolution and Applicable Law
6.1 Applicable Law. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Montana except for its conflicts of laws principles. Each Party irrevocably consents to the jurisdictions of all federal and state courts in the State of Montana.
6.2 Dispute Resolution. If a dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in Gallatin County, State of Montana. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the Parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to a mutually agreed-upon arbitrator in Gallatin County, State of Montana. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to do so, including all courts specified in Section 6.1. Costs of arbitration, including attorney fees, will be allocated by the arbitrator.
ARTICLE 7
Miscellaneous
7.1 Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes delivery date if delivered personally to the Party to whom the notice is directed, by a commercial overnight carrier, with written verification of receipt, or if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available, or upon verified receipt of and email containing the notice. Notice may be given to each Party at the below addresses and email addresses:
Lead Genie
Submitee
In the event Lead Genie provides a web-based form or other communication portal that allows the Company to provide a specific form of notice clearly indicated by the form or portal, such as a box to check or date to fill in for a Subscription Request, the Company may provide the relevant notice to Lead Genie by fully and completely providing all information required by the form and following procedures outlined with the form for submission to Lead Genie.
7.2 Assignment. Neither Party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other Party, other than in connection with the sale or transfer of all the business, in the case of Lead Genie, or in connection with the sale or transfer of the business or the business unit to which this Agreement pertains, in the case of the Company. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective successors and assigns.
7.3 Independent Contractor; No Agency; No Third Party Beneficiaries. Lead Genie is an independent contractor. This Agreement shall not be interpreted or construed to create an employment relationship, an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. Nothing in this Agreement will be interpreted to create any third party beneficiary, including any affiliates of a Party.
7.4 Interpretation. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. All references to “includes” will be interpreted as no limiting. All references to “or” will be interpreted as and/or. All Exhibits form part of the Agreement.
7.5 Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
7.6 No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.
7.7 Entire Agreement. This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein. Neither Party shall be bound by, and each Party specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.
7.8 Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the Party subject to enforcement of such amendment.
7.9 Counterparts and Electronic Execution. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. This Agreement may be executed by verified electronic signature. This Agreement may further be executed by creation of a password-protected account by the Company, or upon selection by electronic means in a password-protected account of an option to be bound by this Agreement, in both instances after viewing the contents of this Agreement and being provided with notice that creating such an account or selecting such option constitutes execution of this Agreement.
THIS AGREEMENT IS EXECUTED by the authorized representatives of the Parties as of the Effective Date.