1. Terms and Termination. The term of this Agreement shall commence on the Effective Date and will remain in effect until terminated in accordance with the provisions set forth below. a) Except as otherwise set forth herein, upon termination, Client shall not be obligated to Consultant, or its successors or assigns, for any payments other than for Services performed in accordance with this Agreement prior to the date of termination. b) If either Party fails to perform any of its material obligations hereunder and does not cure such failure within thirty (30) days after receipt of written notice of the non-defaulting Party, the non-defaulting Party may, in addition to any other rights it may have under this Agreement, terminate this Agreement. c) Absent a good faith dispute, if Client fails to make payment to Consultant pursuant to this Agreement when such payment is due and does not fully cure such failure with ten (10) business days after receipt of written notice thereof from Consultant, Consultant may, in addition to any other rights it may have under this Agreement, terminate this Agreement. d) After the Initial Term, either Party may terminate the Agreement for convenience upon sixty (60) days prior written notice to the other Party. e) Either Party may immediately terminate this Agreement by written notice to the other Party, if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, admits in writing its inability to pay its debts, files a 2 voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under any bankruptcy insolvency laws, whether domestic or foreign, or has wound-up or liquidated, voluntarily or otherwise. In the event that any of the above events occur with respect to a Party, such Party shall immediately notify the other Party of its occurrence. f) Consultant retains the right to terminate this Agreement immediately if Client is engaged in or asks Consultant to engage in or to ignore any illegal or unethical activity or Consultant dies or becomes disabled. For purposes of this Agreement disability shall be defined by the applicable policy of disability insurance or, in the absence of such insurance, Consultant’s management acting in good faith. g) Termination of this Agreement for any reason shall not affect the right of either Party to receive amounts to which such Party is entitled pursuant to this Agreement or the right of either Party to seek damages from the other Party with respect to the events giving rise to the termination of this Agreement.
  2. Scope of Services. While this agreement is in effect, Consultant will perform certain accounting, CFO, and consulting services as specified in Addendum A and as requested by Client (the “Services”). The Services provided by Consultant will not constitute an audit or review, or attestation engagement that is subject to the rules of the AICPA or other similar state or national professional bodies.
  3. Cooperation of Client. Client acknowledges that Consultant’s success in performing the services depends on the participation, cooperation, and support of Client’s management team. Client hereby agrees to cooperate with Consultant in their performance of the Services under this Agreement and shall not take any action that would impede Consultant’s ability to perform said Services.
  4. Independent Contractor. Pursuant to this Agreement, Consultant and Client intend to enter into an arms-length commercial relationship. The Parties confirm and agree that no employment relationship is intended, nor will be created by provision of Services contemplated by this Agreement. Consultant and its personnel or agents shall act solely as an independent contractor. Consultant, its personnel, or agents, shall under no circumstances be treated as or deemed to be employees of Client. a) Nothing in this Agreement shall be construed to create a partnership, agency, joint venture, or employer-employee relationship between the Parties. b) Consultant’s performance of Services under this Agreement is subject to Client’s approval. c) Consultant shall have no authority to represent or bind Client, except as specifically provided in this Agreement or indicated in Addendum A. d) Consultant shall be solely responsible for determining the methods, details, and means of performing the Services. e) Consultant will not be under the direct supervision or control of Client. 3 f) If Consultant provides chief financial officer (CFO) services to Client, Consultant will not serve as a permanent CFO, employee, manager or any other officer or director on behalf of Client. g) Consultant shall perform the Services under this Agreement in a timely manner, in accordance with applicable professional and industry standards. h) The quality of the Services provided by Consultant shall conform to accepted industry standards applicable for similar services. i) All Services provided by Consultant shall be in compliance with applicable local, state and federal laws, rules, regulations and requirements. j) The Parties understand that Client has no federal, state, or local obligations regarding employee liability or insurance to employees or agents of Consultant. k) Neither Consultant nor its employees or agents shall hold itself (or himself or herself, as the case may be) out or otherwise represent itself (or himself or herself, as the case may be) to any person or entity as anything other than an independent contractor. l) Unless otherwise set forth in a Statement of Work, neither Consultant nor its employees or agents shall be entitled to enter into any contract, agreement, arrangement, or association on behalf of Client. m) Consultant shall have the sole right and responsibility to supervise its employees or agents in the performance of the Services. n) Each Party shall comply with all state and federal laws, which relate to employment of its employees and of conduct of its business.
  5. Payment. Rates charged for Services shall be set forth in Addendum A, attached hereto, unless otherwise set forth in a Statement of Work. Consultant will invoice Client the 1st of each month for Services to be performed during that month. Payments shall be made in full by Client via ACH within five (5) days following the date of invoice. Services will be deemed accepted upon completion of performance. a) In addition to the rate set out in Addendum A, Client shall directly reimburse Consultant for reasonable travel and out-of-pocket business expenses, including airfare to and from Phoenix, Arizona, and reasonable living expenses during the performance of the Services, if applicable. b) Client shall pay all amounts for the reimbursement of expenses to Consultant no later than Ten (10) days after receipt of a submission of an expense report from consultant. 4 c) All charges that are not set forth in this Agreement shall be approved in writing, signed by both Parties before Consultant’s inclusion of such charges on a billing invoice. d) All deductions by Client from payment of the amount on an invoice that are not set forth in this Agreement shall be approved in a signed writing by both Parties prior to Client’s deduction of such amount from the invoice. e) Each Party agrees to maintain records supporting the payments made hereunder for a period of two (2) years following the date that the payment is due. The relevant portion of such records and accounts will be available for inspection and audit by an independent certified public accountant selected by the auditing Party and acceptable to the other Party (but not more than once in any twelve (12) month period) during regular business hours, upon reasonable advance notice, and conducted in a manner that does not unreasonably interfere with the operation of the audited Party’s business. f) Except as provided herein, the auditing Party will bear the sole costs and expenses in connection with such audit. g) The audited Party, following the receipt of a final report from the auditor, will pay any underpayments discovered under any audit performed pursuant to this Section promptly. h) Any overpayments found by the auditor will be deducted from any following payments due until such overpayment is fully recouped therefrom. i) In the event that a discrepancy is found of greater than ten percent (10%) of revenue for the period that is being audited, then the audited Party will bear the reasonable costs of the audit.
  6. Confidential Data. During the performance of this Agreement, each Party may disclose to the other certain Confidential Information relating to the disclosing Party’s business and products, whether of a commercial or technical nature, including without limitation, information concerning pricing, products, trade secrets, marketing, customers, suppliers, financial information, and research and development (“Confidential Information”). This Confidential Information constitutes valuable, special, unique, and proprietary assets of the disclosing Party and shall remain confidential. a) Each of the Parties (the “Receiving Party”) agrees to maintain the confidentiality and shall require its directors, officers, employees, agents, representatives and advisors (“Affiliates”) to maintain the confidentiality of all Confidential Information concerning the other Party (the “Disclosing Party”) that may be made available or disclosed during the term of this Agreement; provided however, that Confidential Information shall not include any information that: (i) becomes generally available to the public other than as a result of a breach of this Agreement by the Receiving party or its Affiliates; (ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to the 5 Receiving Party by the Disclosing Party; (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party who the Receiving Party reasonably believes is not bound by a legal or contractual obligation not to disclose such Confidential information; or (iv) was known to the Receiving party or in the Receiving Party’s possession prior to the date such information was disclosed to the Receiving Party by the Disclosing Party. b) Without limiting the foregoing, the Parties shall utilize reasonable prudent procedures designed to prevent disclosure to others of the Confidential Information received from the Disclosing Party. c) Each of the Parties, in its capacity as a Receiving Party, agrees that it will not disclose the Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party, except for disclosures that (i) may be required by law, (ii) that may be required by the Receiving Party to enforce the rights of the Receiving Party under this Agreement, and (iii) to the Receiving Party’s Affiliates and other representatives and agents that the Receiving Party reasonably believes need to know such Confidential Information to perform obligations hereunder. d) Before any disclosure is made pursuant to a legal requirement, the Party with the disclosure requirement shall, if permitted by applicable laws or regulations, give advance written notice of such disclosure to the non-disclosing party so that such non-disclosing Party may seek a protective order against such disclosure. e) In the absence or unavailability of any such protective order, the Party with the disclosure requirement hereby agrees to take all reasonable and lawful actions to seek confidential treatment for such disclosure and, to the extent practicable, to minimize the extent of such disclosure. f) Upon the termination of this Agreement for any reason, the parties shall return to each other any Confidential Information of the other Party that is capable of return. g) The provisions of this section shall survive the termination of this Agreement for any reason. h) Each of the Parties, in its capacity as a Receiving Party shall be responsible for any breach of this section by its Affiliates, representatives and agents.
  7. Conflict of Interest. Consultant represents and warrants that it has no commitments or obligations to perform Services for others during the period of this Agreement that would materially interfere with the performance of Consultant’s obligations under this Agreement. Other than as prohibited by this paragraph, Consultant shall be free to provide Services to its other customers and clients.
  8. Compliance with Regulations and Policies. Consultant shall perform Services at Consultant’s premises or on-site at Client’s premises and shall be responsible for providing all equipment and supplies necessary to perform the Services. a) If the performance of the Services requires Consultant to be located at Client’s facilities, Consultant shall comply with all federal or state laws and regulatory requirements, all safety and health regulations, and all policies and procedures, including antiharassment policies prescribed by Client and provided to Consultant. b) Consultant remains responsible for ensuring that Consultant’s subcontractors, employees, or agents comply with such laws, regulations, and safety laws and 6 policies and procedures, and supervision of Consultant’s subcontractors, employees or agents remains Consultant’s responsibility. c) Consultant hereby certifies compliance with all federal, state and local employment laws and regulations, including, but not limited to, the Immigration Reform and Control Act (“IRCA”). d) Consultant specifically certifies that each of its subcontractors, employees or agents have completed an I-9 form as required by IRCA and that the completed forms are maintained in accordance with the provisions of IRCA. e) Each Party agrees to comply with the other Party’s then-current privacy policy provided by such Party, relating to any customer’s personally identifiable information so disclosed.
  9. Warranty and Warranty Disclaimer. Consultant represents and warrants that Services provided hereunder shall be performed in a professional, timely, and workmanlike manner, in accordance with industry standards, and substantially in accordance with Addendum A. a) As the sole and exclusive remedy for breach of the foregoing warranty, if Client experiences a problem with the Services and calls Consultant within seven (7) days of the date the Service was originally performed, Consultant will use commercially reasonable efforts to try to resolve the Client’s problem at no additional charge, but no refund will be provided. b) As set forth below, there are no other warranties for the Services. c) Client represents and warrants that it will obtain all required consents and authorizations to enable Consultant to access Client’s computers and perform Services. d) For any software provided by Consultant to Client for installation on Client’s computers, Client will require all end users of such software to agree to be bound by the terms and conditions of any applicable Consultant EULA or third-party end user license agreement.
  10. Indemnification. With respect to damages related to third parties, each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party (the “Indemnified Party”), its agents, employees, officers, directors and their respective successors and assigns from and against any and all liability, loss, damage, or expense, including reasonable legal fees and costs of defense, arising from any third party claim, demand, action or cause of action asserted against the Indemnified Party to the extent resulting from: (i) any breach of any representation, warrant or covenant by the Indemnifying Party; (ii) negligence or willful misconduct on the part of the Indemnifying Party, its employees, subcontractors, or agents; and/or (iii) the Indemnifying Party’s failure to comply with federal, state, local or other applicable law relating to its performance of Services or this Agreement (including, but not limited to, those laws set forth in section 8 above). The Indemnified Party shall notify the Indemnifying Party as soon as practicable of any circumstances or set of circumstances that might reasonably lead to the invocation of this paragraph. The Indemnifying Party will have sole control over the defense or settlement of such matters, and the Indemnified Party agrees to cooperate fully in such defense or settlement.
  11. Limitation of Liability. Except for the Parties’ indemnification obligations in section 10 above or either Party’s willful or knowing breach of sections 6 or 8 above, in no event will either Party be liable to the other Party for any indirect, special, incidental or consequential damages, whether based on contract, tort, or any other legal theory, including without limitation, loss of data or its use, loss of profits, loss of business, or other economic damages, even if advised 7 of the possibility of such loss or damage, regardless of the form of action, other than an action for payment of amounts due under the Agreement, the Parties’ indemnification obligation in sections 6, 8, and 10 above, and either Party’s willful or knowing breach of any other section, the total liability of either party under this agreement shall not exceed two (2) months of Project Fees. a) Client acknowledges that any information, including any resources delivered through Consultant’s proprietary information and technology system, will be provided by Consultant as a tool to be used in conjunction with the Services provided by Consultant. b) Consultant makes no representations or warranty as to the accuracy or reliability of reports, projections, forecasts, or any other information derived from use of Consultant’s resources, and Consultant will not be liable for any claims of reliance on such reports, projections, forecasts, or information. c) Consultant will not be liable for any noncompliance of such reports, projections, forecasts, information, or services with federal, state, local laws, or regulations. d) Such reports projections, forecasts, or information or services are for the sole benefit of Client and not any unnamed third parties. e) Consultant assumes no responsibility or liability under this Agreement other than to render the Services as per Addendum A called for hereunder and will not be responsible for any action taken by Client in following or declining to follow any Consultant’s advice or recommendations. f) Except as set forth in this Agreement, Consultant disclaims all other warranties, either express or implied. g) As a condition for recovery of any liability, Client must give Consultant written notice of the alleged basis for liability within thirty (30) days of discovering the circumstances giving rise thereto, in order that Consultant will have the opportunity to investigate in a timely manner and, where possible, correct or rectify the alleged basis for liability. h) Any action for breach of this Agreement must be brought by either party within six months following termination or expiration of this Agreement. i) Consultant will not be liable for incidental, consequential, punitive, or special damages, including without limitation, any interruption of business or loss of business, profit, or goodwill.
  12. No Hire and Liquidated Damages. Client acknowledges that Consultant has gone to considerable time and expense in training, orienting, and equipping its subcontractors, agents and employees with knowledge and experience to perform their duties. 8 a) Consultant’s contractors, agents, and employees are privy to Consultant’s proprietary and confidential information, relating to the methods and manner in which Consultant does business, including but not limited to teaching techniques, processes, company policy and procedures, data, know-how, marketing plans, business plans, strategies, forecasts, financial information, projections, customer and supplier information and identities, materials, reports, specifications, and all other tangible and/or intangible material relating to the manner in which Consultant does business. b) Client acknowledges and agrees that in order to protect Consultant’s investment in its workforce, Client shall not within two (2) years after the initial referral and/or contact with the subcontractor, agent or employee of Consultant, without prior written consent of Consultant, retain any subcontractor, agent or employee of Consultant on a full-time, part-time, project-wise, or in any other capacity as an independent contractor, employee or consultant. c) If Client does so, Client agrees to pay Consultant a permanent placement fee of 40% of the gross monthly compensation of the subcontractor, agent, or employee of Consultant, for a period not to exceed one year. Such payments shall be made by Client on a monthly basis, with each installment paid within 10 business days of the conclusion of each calendar month. d) Consultant and Client agree that it would be extremely difficult or impossible to ascertain the actual amount in which Consultant would be damaged, and accordingly agrees that liquidated damages in the amount described above are reasonable.
  13. Amendment. The Parties may amend this Agreement only by written agreement signed by all of the Parties to this Agreement.
  14. Assignment. Neither Party shall assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Any attempt to assign this Agreement without prior consent shall be void. Client may assign its rights under this Agreement in connection with the sale of substantially all of its assets, or a merger, consolidation or other reorganization between Client and another entity.
  15. Attorney’s Fees and Costs. In the event of a breach by either party to this Agreement and commencement of a subsequent legal action in a designated court, or in the event legal counsel is consulted as a result of any such breach or in anticipation of such prospective legal action, the prevailing party in any such dispute shall be entitled to reimbursement of reasonable attorneys’ fees, court costs, and other expenses associated with said legal consultation or representation.
  16. Breaches of Agreement. Both Parties agree that if either Party breaches any term or condition of this Agreement, subject to the non-breaching Party’s termination rights under section 1, the remaining provisions, clauses, and or sections of this Agreement, or parts thereof, remain valid and in full force and effect.
  17. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument. The signatures of the parties need not appear on the same counterpart, and 9 delivery of an executed counterpart signature page by facsimile or other form of electronic transmission shall be as effective as executing and delivering this Agreement in the presence of the other Party to this Agreement.
  18. Descriptive Headings. The titles and captions preceding the text of the sections of this Agreement are inserted solely for convenient reference and neither constitutes a part of this Agreement nor affects its meaning, interpretation, or effect.
  19. Entire Agreement. This Agreement, including Addendum A, constitutes the entire agreement between the Parties. All prior negotiations, proposals, and agreements between the Parties concerning the subject matter contained in this Agreement, are canceled and superseded by this Agreement. Any changes to this Agreement must be agreed to by both Parties in writing.
  20. Force Majeure. Neither Party will be responsible or liable in any way for its failure to perform or delay in performance of its obligations under this Agreement during any period in which performance is prevented or hindered by conditions beyond its reasonable control, including but not limited to acts of God, fire, flood, failure of public utilities, war, criminal activity, malicious acts, embargo, strikes, labor disturbances, explosions, riots, accidents to delivery vehicles, blackouts, failure of sources of supply or of materials, and laws, rules, regulations, and order of any governmental authority. a) Each party has an obligation to notify the other Party of its inability to perform within a reasonable time after the onset of such act or event. b) While such an inability to perform under this Agreement continues, the other Party shall be relieved from its corresponding obligations hereunder.
  21. Further Action. Each Party hereto agrees to take all further action, and to execute, acknowledge, and deliver any other documents, which may be reasonably necessary, appropriate, or desirable to carry out the provisions of this Agreement.
  22. Governing Law. This Agreement shall be interpreted in accordance with Arizona law. Each Party acknowledges that any actual or threatened breach of any Section of this Agreement may cause the other Party irreparable harm for which money damages may not be an adequate remedy, and that injunctive relief may be an appropriate remedy for such breach. a) The forum selected for any proceeding or suit related to a dispute between the Parties arising out of or relating to this Agreement or the transactions contemplated hereby shall be in a federal or state court of competent jurisdiction located in Maricopa County, Arizona (the “Designated Courts”). b) Each Party consents to the exclusive jurisdiction of the Designated Courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. c) Consultant hereby submits to personal jurisdiction of the Courts of the State of Arizona. d) Each Party agrees that the exclusive choice of forum set forth in this section does not prohibit the enforcement of any judgment obtained in the Designated Courts in any other appropriate forum. 10
  23. Integration. This Agreement constitutes the final agreement between the Parties. It is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. a) All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. b) The provisions of this Agreement may not be explained, supplemented, or qualified through evidence of trade usage or prior course of dealings. c) In entering into this Agreement, neither Party has relied upon any statement, representation, warrant, or agreement of the other party except for those expressly contained in this Agreement. d) There is no conditions precedent to the effectiveness of this Agreement other than those expressly stated in this Agreement.
  24. Invalid Provisions. If any of the provisions of this Agreement are held to be invalid, illegal, or unenforceable, the provisions shall remain in effect to the extent allowed by law and the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
  25. Notice. Any purchase orders, requests, notices, or other communication to a Party to this Agreement that is permitted or required hereunder may be delivered by hand, by facsimile or other form of written electronic transmission, by first class mail, postage prepaid, or by a nationally recognized overnight delivery service and shall be addressed by the sender to Consultant or Client at their respective addresses first listed above or to such other address as a Party may hereafter furnish to the other party in writing. Notices shall be effective on the third day after posting if sent by mail, on the next day after posting if sent by express courier, and on the day of dispatch if manually delivered with regular business hours or if transmitted within regular business hours by electronic communication methods.
  26. No Waiver. No waiver of any provision of this Agreement, and no consent to any departure by any Party from the terms and conditions of this Agreement, shall be effective unless such waiver or consent is given in writing by the Party against whom such waiver or consent is sought to be enforced (in which case the waiver or consent shall be effective only in the specific instance, and only for the specific purpose, for which it was given). a) No failure or delay by a party in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the Parties, shall operate as a waiver or estoppel of any right or remedy of such Party hereunder, or limit or prevent the subsequent enforcement of any provision of this Agreement by such Party. b) The failure of either Party to enforce at any time or for any period of time any of the provisions of this Agreement will not be construed to be a waiver of such provisions or of its right thereafter to enforce such provision and each and every provision thereafter.
  27. Severability. If a court of competent jurisdiction shall hold any provision of this Agreement invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force; such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement. 11
  28. Survivals. The provisions concerning payment of the Project Fees, reimbursement of costs and expenses, limitation of liability, confidentiality, and indemnity will survive the expiration or any termination of this Agreement.
  29. Authority. Each Party or individual executing this Agreement on behalf of an entity represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of the entity; the entity has all requisite power and authority to execute, deliver and perform under this Agreement; the execution, delivery and performance by the entity has been duly authorized by all necessary action, corporate or otherwise, on the party of the entity; the entity has obtained all consents, permits, approvals and authorizations required by applicable governmental authorities in connection with the performance of its obligations under this Agreement; and this Agreement is binding on the entity.