CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the “Agreement”) is entered between AVBRITE LLC, an Arizona limited liability company (“AVBRITE”) and “Client”, as of the date last signed in the Services Proposal or "Statement of Work" (SOW) (the “Effective Date”). AVBRITE and Client shall be referred to as the “parties,” and each, a “party.”
In consideration of the mutual promises contained in this Agreement, the parties agree as follows:
1. PROFESSIONAL SERVICES
1.1. Scope. Client hereby engages AVBRITE to provide on-site or virtual aviation safety program training services, consulting services, business development, and/or recruiting services, as described in one or more statement or scope of work documents, each of which is incorporated herein by reference (each, referred to herein as a “SOW”). Before beginning services, Client and AVBRITE must sign a SOW, which will provide details of the specific services to be provided, as well as any terms and conditions which differ from or add to the general provisions of this Agreement, as mutually agreed upon (services provided by AVBRITE under this Agreement and described in each SOW are collectively referred to as the “Services”).
1.2. SOW Authorization and Modification. The SOW(s) are to be signed on behalf of Client exclusively by authorized individuals of Client. The parties may modify or change the scope by amending the relevant SOW in writing and agree and acknowledge that changes to a SOW may result in additional fees.
2. FEES AND PAYMENT
2.1. Fees for Services; Expenses. Client will pay AVBRITE the fees as set forth in each SOW, which may be on a month-to-month basis and/or a project fee with an hourly rate (the “Consulting Fees”). Unless otherwise specified in the applicable SOW, actual and reasonable expenses incurred by AVBRITE in connection with the Services will be charged to Client, so long as such expenses are approved in writing by Client. Additionally, AVBRITE may require that certain costs or expenses be paid up-front, as set forth in the applicable SOW. Travel expenses will be reimbursed by Client and approved in advance.
2.2. Invoicing and Payment. Unless otherwise stated in a SOW, AVBRITE will invoice Client for the Fee fifty percent (50%) of the project-based Consulting Fee upon commencement of the Services and fifty percent (50%) upon completion of the Services, with any hourly rate Services invoiced monthly in arrears. Invoiced fees are due and payable within thirty (30) days of receipt of the applicable invoice. Fees may be paid by automatic transfer, check, or direct deposit. All fees are exclusive of taxes and Client is responsible for payment of any applicable sales, use, or other taxes imposed on any amounts payable by Client related to the Services, if any, excluding taxes on Client’s income, revenues, or receipts. AVBRITE is an independent contractor and thus, Client will not withhold taxes.
3. CLIENT OBLIGATIONS
3.1. Client agrees to fulfill its responsibilities set forth in a SOW and to cooperate with AVBRITE as reasonably necessary for AVBRITE to perform the Services, which may include providing reasonable access to knowledgeable personnel, and facilities.
3.2. Client agrees that if it fails to fulfill its responsibilities, performance of the Services by AVBRITE may be delayed.
4. TERM AND TERMINATION
4.1. Term. The term of this Agreement commences on the Effective Date and remains in effect until the earlier of termination by either party as set forth in this Section 4 or the termination date set forth in the SOW, if any.
4.2. Termination.
4.2.1. Termination for any Reason. Either party may terminate this Agreement for any reason with fifteen (15) calendar days’ written notice to the other party.
4.2.2. Termination Upon Breach. In the event either party materially breaches any provision of this Agreement or a SOW, and fails to remedy such breach within five (5) business days of receipt of written notice from the non-breaching party, then the non-breaching party may immediately terminate this Agreement and/or the applicable SOW. AVBRITE may suspend performance under a SOW due to Client’s failure to fully pay the amount due, as set forth in the SOW, after five (5) business days’ prior written notice by AVBRITE to Client. Either party may terminate this Agreement and any SOW then in effect upon written notice to the other party in the event the other party (i) discontinues its business; (ii) files a petition for bankruptcy; (iii) becomes insolvent; or (iv) makes an assignment for the benefit of creditors.
4.2.3. Effect of Termination. In the event Client terminates this Agreement pursuant to this Section 4, Client shall pay AVBRITE for Services performed up to the date of termination of the SOW or this Agreement, and Client will not be entitled to a refund of its initial payment, if any, as set forth in the SOW; provided, that if Client terminates this Agreement pursuant to Section 4.2.2, Client shall be entitled to a refund of the fees paid for Services not performed as of the effective date of such termination. Termination of a SOW only will not have the effect of terminating this Agreement or other SOWs, if any. However, termination of this Agreement will terminate all SOWs, if any, between the parties. In the event of any termination of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive will survive the expiration or termination of this Agreement, including, but not limited to any payment obligation accrued by Client.
5. WORK PRODUCT AND PROPRIETARY INFORMATION
5.1. Work Product. Except as set forth below, any safety training materials or other deliverables created solely for Client by AVBRITE and specified under a SOW as Client “deliverables” or “work product” (the “Work Product”) is “work made for hire” pursuant to the United States Copyright Act (17 U.S.C. § 101, et seq.) and ownership vests immediately upon creation in Client. In the event any rights do not vest in Client, AVBRITE shall grant and assign to Client all such rights in such Work Product. Client may use the Work Product or any part of it as it sees fit.
5.2. Reserved Intellectual Property. Work Product does not include AVBRITE’s preexisting proprietary information and methodologies for delivery of the Services, document templates or safety training tools used by AVBRITE to deliver the Services, or its proprietary newsletter, including without limitation the content and name, logos, associated with AVBRITE (collectively, “Reserved Intellectual Property”). Nothing herein shall be interpreted to prevent AVBRITE from performing similar services for any other client. Unless otherwise set forth in a SOW, in the event any Reserved Intellectual Property is required to use the Work Product or receive benefit from the Services, AVBRITE grants to Client a perpetual, nonexclusive, royalty-free, limited license to use, execute, reproduce, display, perform, and distribute copies of the Reserved Intellectual Property solely for its internal business purposes.
5.3. Use of Trademarks. Client grants to AVBRITE a limited right to use any and all trademarks of Client if needed to perform the Services. AVBRITE acknowledges that such trademarks remain the proprietary property of Client and AVBRITE has no right to use any such trademark outside the scope of this Agreement.
6. CONFIDENTIALITY
6.1. Each party acknowledges that it will have access to certain confidential information of the other party, including the terms and conditions of this Agreement. “Confidential Information” includes all information identified by a party as confidential and information that would reasonably be considered confidential based on the nature of such information or context of disclosure, including but not limited to, a party’s information regarding its business, employees, financial condition, products, operation, or other financial and business matters. Each party’s Confidential Information will (i) remain the sole property of that party and (ii) be used by the other party only as described herein and may not be disclosed, provided or otherwise made available to any other third party except that such Confidential Information may be disclosed to the other party’s employees or agents who have a need to know in the scope of their work during the time they are performing services under this Agreement and are subject to confidentiality restrictions similar to those set forth herein. Confidential Information does not include (i) information that the recipient can establish was already known to the recipient at the time it was disclosed in connection with this Agreement, (ii) information that is developed independently by the recipient or received from another third party lawfully in possession of the information and having no duty to keep the information confidential, (iii) information that becomes publicly known other than by a breach of this Agreement, or (iv) information disclosed in accordance with a valid court order or other valid legal process. Each party agrees to hold the Confidential Information of each other party in strictest confidence and not to copy, reproduce, distribute, publish or disclose such Confidential Information to any person except as expressly permitted by this Agreement.
7. LIMITATION OF LIABILITY, INDEMNIFICATION
7.1. Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUES, OR SAVINGS, OR THE LOSS OR USE OF ANY DATA, EVEN IF THE PARTY HAS BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSBILITY OF SUCH DAMAGES. IN NO EVENT WILL AVBRITE’S AGGREGATE LIABILITY TO CLIENT OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE FEES PAYABLE UNDER THE SOW THAT GAVE RISE TO SUCH CLAIM. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. CLIENT EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE USE OF THE SERVICES IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGEMENT AND FURTHER THAT AVBRITE IS NOT LIABLE FOR ANY PHYSICAL INJURY OR DEATH, PROPERTY DAMAGE OR LOSS, OR ANY ACT OR OMISSION OF ANY INDIVIDUAL, INCLUDING PILOTS, WHETHER OR NOT SUCH INDIVIDUAL RECEIVED SAFETY TRAINING. THE LIMITATIONS SPECIFIED IN THIS SECTION 7.1 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7.2. Indemnification by Client. Client shall indemnify, defend, and hold harmless AVBRITE and its affiliates, officers, managers, members, employees, agents, successors, and assigns, from and against all third party claims, demands, liabilities, damages, and costs including, without limitation, reasonable attorneys’ fees and other costs of defense, arising from or relating to (a) Client’s breach of any of its material representations, warranties, or obligations under this Agreement; or (b) the use of the Work Product in the conduct of its business.
7.3. Indemnification by AVBRITE. AVBRITE shall indemnify, defend, and hold harmless Client and its affiliates, officers, directors, employees, agents, successors, and assigns, from and against all third party claims, demands, liabilities, damages, and costs including, without limitation, reasonable attorneys’ fees and other costs of defense, arising from or relating to AVBRITE’s breach of any of its material representations, warranties, or obligations under this Agreement.
7.4. The party seeking indemnification (“Indemnitee”) shall provide the other party (“Indemnifying Party”) prompt written notice of any knowledge it may have of such an infringement or other indemnity claim, and the Indemnitee shall reasonably cooperate in the defense and settlement of any such claim. The Indemnifying Party may control the defense, negotiation and settlement of any such claim and the Indemnifying Party shall pay all damages and costs awarded by a court of competent jurisdiction against Indemnitee arising out of such claim or the amount of any settlement to which the Indemnifying Party may agree.
8. WARRANTY
8.1. Services Warranty. AVBRITE warrants that all Services hereunder will be performed in a professional and workmanlike manner.
8.2. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WORK PRODUCT AND SERVICES ARE PROVIDED “AS-IS” AND AVBRITE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF, ANY SERVICE, OR OTHER WORK PRODUCT PROVIDED UNDER ANY SOW. CLIENT AND ITS EMPLOYEES, CONTRACTORS, AND AGENTS ARE RESPONSIBLE FOR THEIR ACTS AND OMISSIONS WHILE IN FLIGHT OR OTHERWISE PERFORMING DUTIES ON BEHALF OF CLIENT.
9. ADDITIONAL TERMS
9.1. Publicity. Client hereby agrees that AVBRITE may include Client’s name in its published client lists, may publish pre-approved, Client-provided testimonials, and may issue general public announcements that name Client, solely for marketing purposes.
9.2. Representations and Warranties. Each party represents and warrants to the other party that it has full right, power, and authority to enter into this Agreement and perform its obligations hereunder and that this Agreement, once executed, constitutes the valid and binding obligation of each party.
9.3. Relationship between the Parties. The parties are acting hereunder as independent contractors. AVBRITE will not be considered or deemed to be an agent, employee, joint venture or partner of Client. Neither Client nor AVBRITE has the right, and will not seek the right, to exercise any control over the other party.
9.4. Notices. All notices to be given by the parties to this Agreement will be in writing and will be deemed to be properly given when personally delivered to the specified address and left with a responsible person or when sent by e-mail followed by registered or certified mail or by an overnight delivery service providing a receipt of delivery addressed to the parties at their respective addresses herein below given, or to such other address as either party will have notified the other, in like manner, to be its proper business address.
9.5. Jurisdiction and Venue; Choice of Law. The parties mutually acknowledge and agree that this Agreement will be construed and enforced in accordance with the laws of the state of Arizona without regard to any conflict-of-law provisions, and the parties agree that in any dispute exclusive jurisdiction and venue will be in the state of Arizona.
9.6. Negotiation and Escalation; Mediation. If any controversy or claim arises relating to this Agreement, the parties will first attempt in good faith to negotiate a solution to their differences. If negotiation does not result in a resolution within thirty (30) days of when one party first notifies the other of the controversy or claim, then prior to initiating any legal proceeding, the parties agree, understand, and acknowledge that (i) the parties must first participate in mediation with an experienced third-party mediator mutually agreeable to the parties; (ii) the party desiring to initiate such action or proceeding must put the other party on written notice of the dispute and the nature of such dispute; and (iii) the parties agree to share equally in the costs of the mediation. If mediation does not result in a resolution of the dispute, either Party may elect to pursue other legal proceedings.
9.7. Assignment. Neither party may assign or transfer this Agreement or any of its obligations hereunder without prior written consent of the other party. This Agreement will be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns. Any assignment or assumption in violation of this Section 9.7 is null and void.
9.8. Survival of Terms. Any terms of this Agreement, which by their nature are intended to extend beyond this Agreement’s expiration or termination, will remain in effect until fulfilled and will apply to respective permitted successors and assignees.
9.9. Miscellaneous. This Agreement and all executed SOWs constitute the complete integrated agreement between the parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded and canceled in their entirety. In the event of a conflict between the terms of this Agreement and SOW(s) the order of precedence (with the first being the controlling) will be as follows: (i) SOW(s) (the most recent SOW having higher precedence, and so forth) and (ii) this Agreement. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding on either party unless mutually assented to in writing by authorized representatives of both parties. No waiver of any of the provisions of this Agreement will be deemed or will constitute a waiver of any other provision of this Agreement, whether or not similar, nor will such waiver constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by either party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter. If any provision of this Agreement is adjudged by a court to be invalid, void or unenforceable, the parties agree that the remaining provisions of this Agreement will not be affected, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of the parties, and that this Agreement will in any event otherwise remain valid and enforceable. This Agreement may be signed in digital counterparts.
AVBRITE and Client have executed this Agreement as of the Effective Date.
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