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 management services, advisory services, training services, consulting services, safety management system implementation, safety culture survey services, and/or related professional services, as described inone or more statement or scope of work documents, each of which is incorporatedherein 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, the applicable tier or scope of engagement, 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. Email communications between authorized representatives may be used as the format for change requests, as further described in the applicable SOW.
1.3 Technology and Tools. In the performance of the Services, AVBRITE may utilize proprietary and third-party technology tools, including artificial intelligence (“AI”) platforms, data analysis tools, and automation systems, to enhance the quality, efficiency, and timeliness of deliverables. Client acknowledges and agrees that Client data, including but not limited to safety reports, operational narratives, and personnel information, may be processed through such tools in the course of delivering the Services. AVBRITE will take commercially reasonable measures to protect the confidentiality of Client data when using such tools and will not use Client data for any purpose other than the delivery of Services under this Agreement. AVBRITE maintains sole discretion over the selection and use of tools employed in the delivery of Services.
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 monthly retainer basis, a project fee, an hourly rate, or a combination thereof (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, the following billing terms apply: (a) for retainer-based services (Safety Management Services and Safety Advisor Services), Client will be invoiced on the first day of each month for current month services; (b) for project-based engagements, Client will be invoiced per the milestone schedule set forth in the applicable SOW, or if no milestone schedule is specified, fifty percent (50%) upon commencement and fifty percent (50%) upon completion; (c) for on-site consulting, fees will be invoiced after sessions are completed. At service initiation, Client will be invoiced for prorated days remaining in the current month. 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 AVBRITE’s income. AVBRITE is an independent contractor and Client will not withhold taxes.
2.3 Annual Rate Adjustment. Rates are subject to annual review and adjustment. AVBRITE will provide Client with thirty (30) days’ written notice of any rate adjustment. Rate adjustments will take effect at the beginning of the next billing cycle, following the notice period.
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, facilities, safety management systems, documentation, and relevant data.
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. Terminiation of Advisory Services. For Safety Advisor Service (SAS) engagements, either party may terminate this Agreement or the applicable SOW for any reason with fifteen (15) calendar days’ written notice to the other party.
4.2.2. Termination of Management Services. may terminate this Agreement or the applicable SOW for any reason with thirty (30) calendar days’ written notice to the other party. During the notice period, AVBRITE will continue to perform Services and will cooperate reasonably in the transition of safety management responsibilities.
4.2.3. 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.
4.2.4. 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, asset forth in the SOW; provided, that if Client terminates this Agreementpursuant to Section 4.2.3, 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. DATA HANDLING AND RETURN
5.1. Client Data. In the course of performing Services, AVBRITE may receive, access, or process data belonging to or relating to Client, including but not limited to safety reports, incident data, personnel information, operational documents, and records maintained within Client’s safety management system (“Client Data”). AVBRITE shall use Client Data solely for the purpose of performing the Services and shall not disclose Client Data to any third party except as required to perform the Services or as required by law.
5.2. Data Security. AVBRITE will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the confidentiality and security of Client Data in its possession or control.
5.3. Data Return and Deletion. Upon termination or expiration of this Agreement, and upon Client's written request, AVBRITE will return or make available to Client all Client Data in AVBRITE's possession within thirty (30) days. Where Client Data is embedded in or inseparable from AVBRITE's Reserved Intellectual Property (as defined in Section 6.2), including but not limited to proprietary scoring methodologies, analytical frameworks, and benchmarking structures, AVBRITE may elect to delete such data rather than return it. Following return or deletion, AVBRITE will delete all remaining copies of Client Data from its systems within a commercially reasonable timeframe, except to the extent retention is required by applicable law or regulation, or where Client Data is contained in archival backups that are automatically deleted in the ordinary course of business. For the avoidance of doubt, Client’s data maintained within Client’s own safety management system (e.g., safety software) remains Client’s property and is accessible to Client at all times regardless of the status of this Agreement.
6. WORK PRODUCT AND PROPRIETARY INFORMATION
6.1. Work Product. Except as set forth below, any safety manuals, emergency response plans, 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.
6.2. Reserved Intellectual Property. Work Product does not include AVBRITE’s preexisting proprietary information and methodologies for delivery of the Services, document templates, investigation frameworks, safety assessment tools, analytics methodologies, safety performance indicator frameworks, the Personalized Safety Intelligence Brief (including its format, methodology, curation process, and editorial content), training course content, or safety training tools used by AVBRITE to deliver the Services, or its proprietary names, logos, and branding associated with AVBRITE (collectively, “Reserved Intellectual Property”). For the avoidance of doubt, Reserved Intellectual Property includes any proprietary tools, AI-assisted workflows, templates, or processes developed by AVBRITE, whether before or during the term of this Agreement, that are used across multiple client engagements. 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.
6.3. 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.
7. CONFIDENTIALITY
7.1. 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, safety data, incident reports, safety management system data, 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.
8. NON-SOLICITATION
8.1. Non-Solicitation of Personnel. During the term of this Agreement and for a period of twelve (12) months following its termination, Client agrees not to directly or indirectly solicit, recruit, or hire any employee, subcontractor, or associate of AVBRITE who has been involved in the delivery of Services to Client, without the prior written consent of AVBRITE. This restriction does not apply to individuals who respond to general public job postings not specifically targeted at AVBRITE personnel.
9. LIMITATION OF LIABILITY, INDEMNIFICATION
9.1. 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 DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE 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 9.1 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.2. 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.
9.3. 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.
9.4. 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.
10. WARRANTY
10.1. Services Warranty. AVBRITE warrants that all Services hereunder will be performed in a professional and workmanlike manner consistent with applicable industry standards.
10.2. 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.
11. FORCE MAJUERE
11.1. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: natural disasters, acts of war or terrorism, epidemics or pandemics, government actions or orders, labor disputes, power failures, internet or telecommunications failures, or failures of third-party technology providers. The affected party shall promptly notify the other party in writing and shall use commercially reasonable efforts to mitigate the impact of the event and resume performance. If the force majeure event continues for more than sixty (60) days, either party may terminate the affected SOW upon written notice.
12. ADDITIONAL TERMS
12.1. 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.
12.2. 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.
12.3. 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.
12.4. 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.
12.5. 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.
12.6. 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.
12.7. 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.
12.8. 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. Without limitation, Sections 5, 6, 7, 8, 9, 10, and 12.5 shall survive termination.
12.9. 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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