These Terms and Conditions constitute a legal agreement that is made effective immediately by and between Darienzo Consulting, LLC (“Darienzo Consulting”) and the purchaser of Darienzo Consulting’s services and related deliverables (“Company”). The Terms and Conditions govern use of all services and delivery of all deliverables and are made part of each Statement of Work between the Company and Darienzo Consulting (each, an “SOW”). These Terms and Conditions and each SOW are collectively the “Agreement.”
In consideration of the mutual promises and covenants herein contained, Darienzo Consulting and Company agree as follows:
Services. Darienzo Consulting shall provide Services to Company as described in the SOW (the “Services”).
Terms of Payment. Unless otherwise specified in the SOW, payment to Darienzo Consulting is required in advance of Services. Upon confirmation of payment, Darienzo Consulting will contact Company to confirm mutually agreeable dates for provision of the Services and related deliverables.
Invoicing. Invoices are generated by Darienzo Consulting per the terms of the SOW.
Taxes. The Company shall be responsible for and will pay all sales, use, or other taxes, levied or imposed by reason of the Services performed, except withholding taxes and those taxes based on the net income or gross receipts of Darienzo Consulting.
Term & Termination. Unless another time period is specified in the SOW, this Agreement shall commence on the date Darienzo Consulting first begins providing Services and shall continue in full force and effect for twelve (12) months thereafter.
Confidentiality. For any Confidential Information disclosed by either Company or Darienzo Consulting to the other, the receiving party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The receiving party agrees not to disclose or use any Confidential Information for any purpose outside the scope of this Agreement. As used in these Terms and Conditions, “Confidential Information” means any non-public information of the disclosing party which is identified as confidential by such party in writing.
Intellectual Property; Ownership. Subject to Darienzo Consulting’s rights in and to all creative content, computer code, methodologies, and other information and/or materials created by Darienzo Consulting prior to or outside the scope of the SOW (“Darienzo Consulting Property”) and any designated third party right, title, and further subject to Company’s payment obligations as set forth herein or in the SOW, the Company shall own all right, title, and interest in an to all information and materials created by or on behalf of Darienzo Consulting for Company in connection with the rendition of the Deliverables (as defined in the SOW) on a “work for hire” basis (as such term is commonly understood in U.S. copyright law). Darienzo Consulting agrees to execute any and all documents that it deems reasonably necessary to effectuate this arrangement. Company represents and warrants that the information and materials provided by it to Darienzo Consulting hereunder do not violate the third-party rights of any person or entity in any way (including without limitation any intellectual property, privacy, defamation or publicity rights). Company agrees to indemnify, defend, and hold Darienzo Consulting and its equity owners, managers, officers, employees, agents, and permitted assigns, harmless from and against any and all third party claims, losses, liabilities, damages, expenses, and costs, including reasonable attorneys’ fees and court costs to the extent that Company breaches the foregoing representation and warranty.
Darienzo Consulting Promotional Rights. Notwithstanding anything set forth herein to the contrary, Company agrees that Darienzo Consulting shall have the right, without prior approval, to use any and all non-confidential Deliverables following their publication to promote Darienzo Consulting and to market Darienzo Consulting’s services to third parties, including submitting such Deliverables to industry award shows and posting them on Darienzo Consulting’s website.
Warranties; Disclaimer. During the term of the Agreement, Darienzo Consulting warrants that all Services will be rendered by Darienzo Consulting or one of its sub-contractors in a professional and workmanlike manner, exercising due skill and care as is customary within the technology industry. The Company represents and warrants that it will, and will cause each of its subsidiaries, if any, to comply with all applicable federal, state, and local laws, rules, and regulations applicable to it or its business. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SERVICES AND DELIVERABLES PROVIDED BY DARIENZO CONSULTING TO COMPANY ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DARIENZO CONSULTING SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED TO THE SERVICES OR DELIVERABLES PROVIDED BY DARIENZO CONSULTING TO COMPANY, FROM ANY CAUSE OR CAUSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DARIENZO CONSULTING’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES WITH RESPECT TO ANY ONE SOW SHALL NOT EXCEED THE TOTAL COMPENSATION PAID TO DARIENZO CONSULTING BY COMPANY FOR THE SERVICES SET FORTH IN SUCH SOW. THIS LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, CONTRIBUTION, TORT, OR OTHERWISE.
Independent Contractor. Both parties agree and acknowledge that Darienzo Consulting is an independent contractor in relation to Company, and shall not be considered an employee, agent, distributor or representative of Company, and shall not be eligible for any employee benefits of Company. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
Governing Law. This Agreement will be governed by, and construed in accordance with the laws of the State of Colorado and the federal laws of the United States without any reference to the conflict of law principles of any jurisdiction. The parties agree to exclusive jurisdiction of the state and federal courts located in the City and County of Denver, State of Colorado.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by e-mail, upon written confirmation of transmission (b) on the first business day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices shall be delivered to the address of the recipient party set forth in the applicable statement of work.
Assignment. The Company may not assign any of its rights or responsibilities under this Agreement without the written consent of Darienzo Consulting.
Amendment. This Agreement may be amended or modified only by a written instrument signed by the Company and Darienzo Consulting.
Entire Agreement. This Agreement is the exclusive statement between Darienzo Consulting and the Company with respect to the matters set forth herein and therein, and supersedes all prior agreements, negotiations, representations, and proposals, both written and oral. If any provision of this Agreement is held unenforceable or inoperative by any court of law, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of this Agreement.