Moore Consulting Standard Contract

In consideration of the mutual covenants and representations contained in this Agreement, the parties hereby agree as follows.

Purpose. The purpose of this Agreement is to memorialize the intent of Client and Moore Consulting to enter into a relationship whereby Moore Consulting provides software development services to Client as an Independent Contractor.
Definitions. All initially capitalized terms shall have the meaning given to them in the Agreement or those Schedules and Exhibits, if any, attached hereto.
Scope of Work. The Work to be performed by Moore Consulting under this Agreement is described in Schedule B attached hereto, which may include explicit Milestones. A Milestone is a distinct set of completed tasks. Each invoice lists all tasks accomplished within the invoiced time, and is an implicit Milestone.
1. Acceptance of Work. Moore Consulting shall deliver certain portions of the Work in accordance with the schedule listed in Schedule B. Upon completion of each such Milestone, Client shall have fifteen (15) days to accept or reject such Milestone. In the event that Client does not notify Moore Consulting of its acceptance or rejection of a Milestone or Work within such fifteen (15) day period, Client is deemed to have accepted such Milestone or Work.
2. Changes/Modifications to Statement of Work. Moore Consulting shall make a good faith effort to incorporate any changes or modifications desired by Client to the original Statement of Work, attached as Schedule B. Client recognizes, however, that any changes or modifications to the Statement of Work causes Moore Consulting difficulties and delays. Therefore, Moore Consulting reserves the right, in its sole discretion, to refuse to incorporate such changes and modifications, or to charge Client at the rates attached in Schedule A for the time necessary to incorporate such changes and modifications.
Payment. In consideration for the Work described in Schedule B, Client shall pay to Moore Consulting an amount in U.S. funds equal to that described in Schedule A attached hereto. All such invoiced amounts become due and payable to the Moore Consulting address, listed above, on the date that is fifteen (15) days following the Client’s receipt of such invoice.
1. Taxes. All quoted prices and license fees are exclusive of taxes. Client shall be solely responsible for any sales, use and other similar taxes, duties, import levies, excise taxes, or similar charges assessed by any local state, or national governmental entity in connection with Moore Consulting’s provision of the Work described in Schedule B or Client’s use of any of the Work provided under this Agreement, with the exception of income and personal property taxes on Moore Consulting.
2. Late Payment. In the event that any installment due to Moore Consulting hereunder shall not be received by Moore Consulting or Moore Consulting’s designee within thirty (30) days after the date due, Client shall pay to Moore Consulting a late charge equal to five percent (5%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs that Moore Consulting will incur by reason of late payment by Client.
3. Interest on Past-Due Obligations. Any amount due to Moore Consulting not paid within sixty (60) days shall bear interest at the rate of ten percent (10%) per annum or the maximum rate then allowable by law, whichever is less, from the date due.
4. Expenses. Client agrees to reimburse Moore Consulting expenses, as determined by Moore Consulting in its reasonable business judgment for performing Work under this Agreement, including but not limited to reasonable travel expenses for travel necessitated by the Work undertaken as part of this Agreement. Client shall pay such expenses within fifteen (15) days of receiving an invoice from Moore Consulting. Notwithstanding the foregoing, Moore Consulting shall not bill to Client as expenses any costs associated with the normal cost of doing business, including, but not limited to, rent, utilities, or employee compensation.
Timing. Moore Consulting shall provide to Client, subject to events of Force Majeure as defined by Section 23, that Work as defined in Schedule B in accordance to the Milestones contained therein. Moore Consulting makes no guarantees as to the timing of the completion of any Milestone or the completed Work. Moore Consulting assumes no liability for its inability to provide a Milestone or the completed Work by a given date.
Termination. This Agreement will terminate upon completion of all services required by the Schedule B, unless earlier terminated by either party's giving written notice of termination as provided below. This Agreement will terminate automatically in the event of bankruptcy or insolvency of either party. Upon five (5) days prior written notice, Moore Consulting may terminate this Agreement for any reason in its sole discretion. Likewise, upon five (5) days prior written notice, Client may terminate this Agreement for any reason in its sole discretion. Upon termination, Client shall pay any amounts due for time spent by Moore Consulting personnel on Client’s project, regardless of the cause of such termination. Upon termination of this Agreement for any reason, all property in the possession of either party properly belonging to the other shall be promptly returned.
Maintenance. After termination of this Agreement, Moore Consulting shall have no obligation to provide any other services to facilitate the operation of the software, including the correction any defects in the software, unless a separate, optional Maintenance agreement is created.
Licenses; Ownership. Moore Consulting shall have no rights in the Client’s Intellectual Property. Client shall have no rights in the Moore Consulting Intellectual Property. Intellectual Property means copyrights, patents, trademarks, trade secrets, inventions (whether patentable or not), and other proprietary rights. No licenses are granted by either party except for those expressly set forth in this Agreement. Upon its fulfillment of its obligations pursuant to Schedule A, Client shall have title to both the Source Code and Binary Code pursuant to the Scope of Work described in Schedule B. Furthermore, Moore Consulting agrees that all work product delivered under this Agreement and any elements thereof, created, performed, contributed or prepared by Moore Consulting pursuant to this Agreement, and any results or proceeds thereof, shall be the exclusive property of Client. Without reservation, limitation or condition, Moore Consulting hereby assigns, transfers and conveys to Client, exclusively and perpetually, all right, title and interest throughout the world which Moore Consulting has or may be deemed to have therein, including without limitation all copyrights, patents, rights of reproduction, and rights to ownership of any physical works of art embodied therein, and the right to secure registrations, renewals, reissues and extensions thereof.
Warranties and Representations. Each party hereby represents and warrants as follows:
1. Corporate Power. Such party is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof.
2. Due Authorization. Such party is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder.
3. Binding Agreement. This Agreement is a legal and valid obligation binding upon it and enforceable with its terms. The execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
4. No Infringement. Any and all information, data, logos, software or other material(s) provided by one party to the other for inclusion in any service or product do not, and will not, infringe any copyright, patent, trademark, service mark, trade secret or other proprietary right of any third party; and
5. Compliance With Law. Each party’s operations will be conducted in compliance with all applicable laws and regulations.
6. Limitation Of Warranty. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 9 ABOVE, EACH PARTY EXPRESSLY DISCLAIMS ANY FURTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
7. Continuous. The representations and warranties and covenants in this Section 9 are continuous in nature and shall be deemed to have been given by each party at execution of this Agreement and at each accepted Milestone of performance hereunder.
Limitation of Liability. BOTH PARTIES AGREE THAT NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF (OR KNOWS OR SHOULD KNOW OF) THE ONLY POSSIBILITY OF SUCH DAMAGES. In no event shall Moore Consulting's liability exceed the value of the fees paid to Moore Consulting under this Agreement. Likewise, in no event shall Client's liability exceed the value of the fees due to Moore Consulting under this Agreement.
Confidentiality. All work done and/or created as part of Moore Consulting's performance under this Agreement, and all proprietary information furnished to Moore Consulting in the course of Moore Consulting's performance under this Agreement, shall be subject to the Client's Intellectual Property & Confidentiality Agreement ("IPCA") executed by the parties and attached hereto as Exhibit A. In the event that any terms of the IPCA contradict any of the terms of this Agreement, the terms of the IPCA shall control.
Assignment. Neither Moore Consulting nor Client shall delegate its duties or assign its rights under the Agreement without the prior written consent of both parties. Any attempted assignment or delegation in contravention of the Agreement shall be null and void.
Default.
1. Events of Default. Upon the occurrence of any of the following events of default, after giving notice to the defaulting party and following the completion of the applicable cure period set forth in Section 13(b), the non-defaulting party may declare the other party to be in breach of this Agreement and may exercise the remedies specified in Section 13(c):
  1. the failure of Client to pay all amounts due pursuant to Section 4;
  2. the admission in writing by either party of its inability to pay its debts as they mature, or the making by either party of an assignment for the benefit of its creditors;
  3. the party becomes insolvent as evidenced by the fact that the party is generally not paying its debts as they become due (unless such debts are the subject of a bona fide dispute) and/or the sum of such party's debts is greater than all of such party's property valued at fair market value; or
  4. the filing of a petition under any bankruptcy act, receivership statute or like law or statute, as they now exist or may be subsequently amended, by either party, or the filing of such a petition by any third party against either party, or the making of an application for a receiver by either party, where such petition or application is not dismissed or otherwise favorably resolved within sixty (60) days.
2. Cure Period. Upon receipt of a notice of default properly given pursuant to Section 13(a), the defaulting party will have a period of thirty (30) days in which to cure such default. If the non-defaulting party does not believe that the default has been cured within the cure period set forth in the preceding sentence, it shall so notify the defaulting party within ten days after the expiration of such care period and each party shall designate one representative with senior managerial responsibilities to meet and discuss in good faith to determine whether any adjustments or modifications can be made to this Agreement to allow the relationship to continue. If after thirty (30) days no progress is made in such discussions, the defaulting party shall have an additional thirty (30) days to cure such default (the "Second Cure Period"). If at the end of the Second Cure Period the default is still not cured, the non-defaulting party can avail itself of the remedies set forth in Section 13(c).
3. Remedies.
  1. If a party has failed to timely cure a default as provided in Sections 13(a)(i)-(iii), the other party shall have the right to (1) terminate this Agreement, and (2) collect damages from the party, subject to its duty to mitigate such damages. Following termination of this Agreement, the parties will have no further obligation to one another under this Agreement. A default under Section 13(a)(iv) by either party shall automatically terminate this Agreement.
  2. The rights and remedies of the defaulting party provided in this Section 13 are not exclusive and are in addition to any other rights and remedies provided by this Agreement.
Applicable Law; Jurisdiction; Venue. The Agreement shall be governed and construed in accordance with the laws of the State of Colorado. The parties agree that Boulder County in the State of Colorado shall be the proper venue for any action brought under the Agreement whether in state or federal court.
Legal Fees and Costs. In the event an action, including arbitration, if any, is brought to enforce any provision of, or to declare a breach of, the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal costs, including the attorneys' fees, incurred by the prevailing party. In the event of appeal to any higher court, the prevailing party shall in like manner be entitled to costs, including attorneys' fees, adjudged reasonable in such higher court.
Notices. All notices and demands under the Agreement shall be in writing and shall be served by personal delivery or by mail to the address of the receiving party as stated at the top of this agreement, or at such different address as may be designated by such party by written notice to the other party. All notices or demands by mail shall be by certified or registered mail, return receipt requested, and shall be deemed complete upon receipt. If receipt of such notice or demand is refused or a party has changed its address without informing the other, the notice shall be deemed to have been given and received upon the seventh (7th) day following the date upon which it is first postmarked by the postal service.
Section Headings. The section headings throughout the Agreement are for reference purposes only, and the words contained in the headings shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of the Agreement.
Nonwaiver. Any failure or delay by either party to exercise or partially exercise any right, power or privilege hereunder shall not be deemed a waiver of any of the rights, powers or privileges under the Agreement. The waiver by either party of a breach of any term, condition or provision of the Agreement shall not operate as, or be construed as, a waiver of any subsequent breach thereof.
Modifications, Amendments or Waivers. No modifications or amendments to the Agreement, and no waiver of any provisions hereof shall be valid unless in writing signed by duly authorized representatives of the parties.
Severability. If any term, provision or part of the Agreement is to any extent held invalid, void or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall not be impaired or affected thereby, and each term, provision, and part shall continue in full force and effect, and shall be valid and enforceable to the fullest extent permitted by law.
Survival. The terms and conditions contained in the Agreement that by their sense and context are intended to survive the performance of the Agreement by the parties shall so survive the completion of the performance, cancellation or termination of the Agreement, including without limitation the confidentiality obligations described above.
Expiration or Termination of Applicable Exhibits. The expiration or termination of any Applicable Exhibit shall not affect the validity or enforceability of any other Exhibit or of this Agreement.
Force Majeure. Moore Consulting shall not be responsible for any failure to perform due to unforeseen circumstances or due to a cause beyond Moore Consulting's control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
Remedies. Except as otherwise provided for in the Agreement, no remedy conferred by any of the specific provisions of the Agreement or available to a party is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given under the Agreement and all Exhibits, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.
Independent Contractor Relationship. Nothing contained herein shall be construed to imply a joint venture, partnership, or employer and employee relationship between the parties. Neither party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other except as defined in the Agreement or as mutually agreed to under the terms of the Agreement. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Moore Consulting is solely responsible for determining the method and means by which Moore Consulting will accomplish the services and otherwise fulfill Moore Consulting's obligations hereunder. Moore Consulting will be solely responsible for the professional performance of the Services, and will receive no assistance, direction or control from Client except as specifically set forth in Schedule B.
Benefits of the Agreement. The terms of the Agreement are intended solely for the benefit of the parties to the Agreement. They are not intended to confer upon any third party the status of a third party beneficiary. Except as otherwise provided for by the Agreement, the terms of the Agreement shall inure to the benefit of, and be binding upon, the respective successors and assigns of the parties to the Agreement.
Binding Effect. Subject to the limitations herein before expressed, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns.
Dispute Resolution. In the event that a dispute shall arise between Moore Consulting and Client, in lieu of judicial resolution, the parties shall submit the matter to binding, expedited arbitration. The matter will be resolved by arbitration in the State of California, County of Santa Clara, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect on the date that notice of such election is given.
Compliance/Government Approvals. Each of Moore Consulting and Client will, at its own expense, obtain and arrange for the maintenance in full force and effect of all government approvals, consents, licenses, authorizations, declarations, filings and registrations as may be necessary or advisable for the performance by such party of all of the terms and conditions of the Agreement.
Other Relationships. Nothing contained herein limits in any way either party’s right to enter into any arrangement or agreement with any third party which may cover the same matters as set forth herein, provided that neither party will (i) use any element of the other party in connection with its relationship with any third party without the prior consent of the other party, or (ii) enter into any agreement or arrangement that causes such party to be incapable of performing its obligations hereunder. Moore Consulting shall not at any time provide any of Client’s code or any other Confidential Information to any third party without Client’s prior written consent.
No Solicitation. During the Term and for a period of six months following the end of the Term, (i) Moore Consulting shall not hire Client’s employees for permanent employment or to render services for Moore Consulting which are substantially similar to the employment and/or services being provided by such individuals to Client; (ii) Client shall not hire Moore Consulting’s employees for permanent employment with Client or to render services for Client which are substantially similar to the employment and/or services being provided by such individuals to Moore Consulting. In the event that either Moore Consulting or Client solicits the other party’s employees without prior written consent, the soliciting party shall pay an amount of Twenty Five Thousand Dollars ($25,000.00) to the other party.
Entire Agreement; Modification; No Offer. The parties hereto agree that this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. It shall not be modified except by a written agreement dated subsequent hereto signed on behalf of Moore Consulting and Client by their duly authorized representatives. Neither this Agreement nor any written or oral statements related hereto constitute an offer, and this Agreement shall not be legally binding until executed by both parties hereto.

Drafting Party; No Presumption. There shall be no presumption against any party on the ground that such party was responsible for the drafting of this Agreement or any part of it, and neither party shall contend that the other party was responsible for drafting the Agreement or any provision of it.

_____________________________________________________ for Moore Consulting	on __________________________________________________


_____________________________________________________ for Client	on __________________________________________________