e-CRUE Consulting
Sub-Contractor Agreement
This Sub-Contractor Agreement ("Agreement") is entered into as of (Membership Date) between (Member Name), (hereinafter known as "Sub-Contractor") and E-CRUE Consulting, a pending Nevada corporation with its principal place of business in Mechanicsburg, Pennsylvania, (hereinafter known as "E-CRUE").
W I T N E S S E T H :
WHEREAS, E-CRUE and Sub-Contractor engage in mutual business relations with one another according to the terms and conditions set forth herein;
WHEREAS, E-CRUE will provide services to and for the benefit of Sub-Contractor and Sub-Contractor’s clients for implementation engagements;
WHEREAS, Sub-Contractor will provide services to and for the benefit of E-CRUE and E-CRUE’s clients for implementation engagements or similiar type work;
WHEREAS, E-CRUE and Sub-Contractor will each attempt to refer clients one to the other so long as each remains satisfied with the work product and services provided by the other;
NOW THEREFORE, for and in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged the parties, intending to be legally bound, agree as follows:
1. REQUEST FOR SERVICES
From time to time, Sub-Contractor will request the services of E-CRUE to perform certain services for clients of Sub-Contractor. If E-CRUE accepts the assignment and the client and E-CRUE are able to agree upon the compensation to be paid to E-CRUE for such services, then E-CRUE shall perform such services for the client directly or in its own name and not for and on behalf of Sub-Contractor depending what is agreed upon.
From time to time, E-CRUE will request the services of Sub-Contractor to perform certain services for clients of E-CRUE. If Sub-Contractor accepts the assignment and the client and Sub-Contractor are able to agree upon the compensation to be paid to Sub-Contractor for such services, then Sub-Contractor shall perform such services for the client directly on behalf of E-CRUE.
E-CRUE and Sub-Contractor shall document the referral of clients by providing a copy of the signed contract.
2. REFERRAL FEES
The party to whom a client has been referred shall pay to e-CRUE a client referral fee of 20% of the actual amount collected for professional fees for services only (i.e. does not include work related expenses or implementation costs) upon invoices to such client during the term of this Agreement which amount shall be paid minus referral fee within 30 days of receipt of payment from such client. Each party shall be entitled upon request to the other to obtain from the other party a summary of all payments received from such referred client which shall be sent by mail within 30 days of receipt of the request.
The party to whom a signed contract engagement has been referred shall pay a client referral fee of 10% of the actual amount collected for professional fees for services only (i.e. does not include work related expenses or implementation costs) upon invoices to such client during the term of this Agreement which amount shall be paid minus referral fee within 30 days of receipt of payment from such client. Each party shall be entitled upon request to the other to obtain from the other party a summary of all payments received from such referred client which shall be sent by mail within 30 days of receipt of the request.
3. INVOICE AND PAYMENT
For all work performed by E-CRUE for clients of Sub-Contractor, and by Sub-Contractor for clients of E-CRUE, E-CRUE shall invoice the Client for professional fees, work related expenses (described below) and implementation costs which amount shall be payable by the client within thirty (45) days of receipt of invoice from E-CRUE. Fees and expenses will not be reimbursed to the party performing the work until the billing party has received payment from the client for the said work. Work related expenses include, but are not limited to, air fare, hotel, meals, rental car, and business related telephone charges (“work related expenses”). A copy of each invoice sent to a client of the other party to this agreement shall also be sent to such other party.
4. NON-SOLICITATION & NON-COMPETE
Recognizing that Sub-Contractor and E-CRUE may disclose to one another the names of some of their respective clients (both corporate and individual), contact persons for those clients, or introduce representatives of those clients to employees of each other and the parties may introduce to one another prospective new customers and may also disclose other valuable intangible business information to one another, the parties each hereby agree that they will abide by the following conditions:
(A) Sub-Contractor and E-CRUE shall not, throughout the term of this agreement and for a period of six months from termination of this agreement, actively solicit, either directly or indirectly, any client of the other party to this Agreement with whom they have had contact as a result of the business relationship of the parties pursuant to this Agreement, without the express written consent of the other party. Indirect solicitation of a client shall include any written or verbal communication by one party to this Agreement (the first party) with representatives of the other party (the second party) which communications are intended to advise the other party of additional services and/or products which could be provided to a specific client by the first party.
(B) Sub-Contractor and E-CRUE shall not, throughout the term of this agreement and for a period of 6 months from termination of this agreement, actively solicit, either directly or indirectly, any of the employees or subcontractors of the other party with whom they have had contact during the six months prior to termination of this Agreement, however this Agreement may terminate.
(C) Sub-Contractor and E-CRUE shall not disclose any information, which is provided to them by the other party to this Agreement, to any representative of any client, nor discuss the terms of this agreement with any third party, without the express written consent of the other party to this Agreement.
5. DISCLOSURE
Sub-Contractor and E-CRUE shall not disclose information concerning work under this Agreement to any third party, unless such disclosure is necessary for the performance of this Agreement. No news releases, public announcement, denial or confirmation of any part of the subject matter of this Agreement or any phase of any program hereunder shall be made without prior written consent of Sub-Contractor and E-CRUE. The restrictions of this paragraph shall continue in effect upon completion or termination of this Agreement for such period of time as may be mutually agreed upon in writing by the parties. In the absence of a written established period, no disclosure is authorized. Failure to comply with the provisions of this Clause may be cause for termination of this Agreement.
6. KEY PERSONNEL
(A) For purposes of this clause, "Key Personnel" is defined as those individuals who are mutually recognized by Sub-Contractor and E-CRUE as essential to the successful completion and execution of this Agreement.
(B) Personnel designated as "Key Personnel" shall be assigned to the extent necessary for the timely completion of the task to which assigned. Any substitution or reassignment involving E-CRUE's or Sub-Contractor’s "Key Personnel" assigned to this work shall be made only with persons of equal abilities and qualifications and is subject to prior approval of the other party, in writing. Sub-Contractor reserves the right to direct the removal of any individual assigned to a client of Sub-Contractor which has been referred to E-CRUE and E-CRUE reserves the right to direct the removal of any individual assigned to a client of E-CRUE which has been referred to Sub-Contractor. Key Personnel are to be indicated in each Letter of Engagement.
7. ASSIGNMENT AND SUBCONTRACTS
This Agreement is not assignable and shall not be assigned by either party without the prior written consent of the other party. Further, each party agrees to obtain the other party’s approval before subcontracting any portion of the work being done pursuant to a Letter of Engagement; provided, however, that this limitation shall not apply to the purchase of standard commercial supplies or raw materials.
8. TERM AND TERMINATION
The initial term of this Agreement shall be for one (1) year commencing on the date first set forth by memebership date. Thereafter, renewal of the term of this Agreement will be automatic for up to five successive one-year terms unless written notice of the termination is received by either party at least thirty (30) days prior to expiration or this Agreement is otherwise terminated pursuant to the terms of this Agreement. Either party may terminate this Agreement with or without cause upon thirty (30) days prior written notice without liability of any kind to the other party. Upon termination of this Agreement, each party shall immediately return to other party all materials supplied under this Agreement and E-CRUE and Sub-Contractor shall, within 45 days after termination, invoice all clients for all professional fees, work related expenses and implementation costs that have not previously been invoiced through the effective termination date.
9. INDEMNIFICATION
(A) E-CRUE shall indemnify and save Sub-Contractor harmless from and against any and all liability for injury to persons or property occasioned wholly or in part by an act or omission of E-CRUE, its lower-tier subcontractors, agents, or employees; provided, however, that E-CRUE shall not be liable for injury to persons or property caused by the sole negligence of Sub-Contractor, its agents and employees.
(B) Sub-Contractor shall indemnify and save E-CRUE harmless from and against any and all liability for injury to persons or property occasioned wholly or in part by an act or omission of Sub-Contractor, its lower-tier subcontractors, agents, or employees; provided, however, that Sub-Contractor shall not be liable for injury to persons or property caused by the sole negligence of E-CRUE, its agents and employees.
10. INFRINGEMENT INDEMNITY
(A) In lieu of any warranty by E-CRUE against infringement, statutory or otherwise, relating to work and/or product provided by E-CRUE pursuant to this Agreement, it is agreed that E-CRUE shall defend, at its expense, any suit against Sub-Contractor or its customers based on a claim that any item furnished to a client by E-CRUE or the normal use or sale thereof infringes any U.S. patent or copyright, and E-CRUE shall indemnify and hold harmless Sub-Contractor and shall pay all costs and damages finally awarded in any suit, provided that E-CRUE is notified in writing of the suit and given authority, information, and assistance at E-CRUE’s expense for the defense of same. If the use or sale of said item is enjoined as a result of such suit, E-CRUE, at no expense to Sub-Contractor, shall exercise its best efforts to (i) obtain for the affected client the right to use and/or sell said item or (ii) substitute an equivalent item reasonably acceptable to the affected client.
(B) In lieu of any warranty by Sub-Contractor against infringement, statutory or otherwise, relating to work and/or product provided by E-CRUE pursuant to this Agreement, it is agreed that Sub-Contractor shall defend, at its expense, any suit against E-CRUE or its customers based on a claim that any item furnished to a client by Sub-Contractor or the normal use or sale thereof infringes any U.S. patent or copyright, and Sub-Contractor shall indemnify and hold harmless E-CRUE and shall pay all costs and damages finally awarded in any suit, provided that Sub-Contractor is notified in writing of the suit and given authority, information, and assistance at Sub-Contractor’s expense for the defense of same. If the use or sale of said item is enjoined as a result of such suit, Sub-Contractor, at no expense to E-CRUE, shall exercise its best efforts to (i) obtain for the affected client the right to use and/or sell said item or (ii) substitute an equivalent item reasonably acceptable to the affected client.
11. PROPRIETARY INFORMATION
Each party acknowledges that it may be furnished with or may otherwise receive or have access to information or material which relates to past, present or future products, software, research development, inventions, processes, techniques, designs or technical information and data, marketing plans, and so on, (the "Proprietary Information"). Each party agrees to preserve and protect the confidentiality of the Proprietary Information and all of its physical forms, whether disclosed to the other party before this Agreement is signed or afterward. In addition, a party shall not disclose or disseminate the Proprietary Information for its own benefit or for the benefit of any third party. The previously stated obligations do not apply to any information which (1) is publicly known; (2) is given to a party by someone else who is not obligated to maintain confidentiality; or (3) a party had already developed prior to the day this Agreement is signed, as evidenced by documents. Neither party shall take or cause to be taken any physical forms of Proprietary Information (nor make copies of same) without the other party's written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party's request), a party shall return to the other party all copies of Proprietary Information in tangible form. Despite any other provisions of this Agreement, the requirements of this Section shall survive termination of this Agreement.
12. WAIVER, AMENDMENT, MODIFICATION
No waiver, amendment or modification, including those by custom, usage of trade, or course of dealing, of any provision of this Agreement will be effective unless in writing and signed by the party against whom such waiver, amendment or modification is sought to be enforced. No waiver by any party of any default in performance by the other party under this Agreement or of any breach or series of breaches by the other party of any of the terms or conditions of this Agreement shall constitute a waiver of any subsequent default in performance under this Agreement or any subsequent breach of any terms or conditions of that Agreement. Performance of any obligation required of a party under this agreement may be waived only by a written waiver signed by a duly authorized officer of the other party, that waiver shall be effective only with respect to the specific obligation described in that waiver.
13. SETTLEMENT OF DISPUTES
Sub-Contractor and E-CRUE both agree that any dispute, controversy, or claim arising out of or related to this Agreement, or the creation, validity, interpretation, breach, or termination of this Agreement will be submitted for resolution by arbitration according to the rules of the American Arbitration Association. Such arbitration shall be binding and final. In agreeing to arbitration, Sub-Contractor and E-CRUE acknowledge that in the event of a dispute, each is waiving the right to have the dispute decided in a court of law before a judge or jury and instead are accepting the use of binding arbitration for resolution of the dispute. Either party may demand arbitration in writing, serving on the other party a statement of the dispute, controversy, or claim, and the facts relating to it, in reasonable detail. All arbitration hearings shall be held within the home state and city of e-CRUE.
Each party shall pay their own expenses of arbitration and each party shall divide equally the costs of the arbitrator(s) and any arbitration hearing costs, unless the arbitrator(s) determine otherwise. Judgment upon any award may be entered in any court of competent jurisdiction. All notices from one party to the other relating to any arbitration under this agreement shall be in writing and shall be effective if given in accordance with Section 18 below.
Each party acknowledges and agrees that, if there is any breach of this Agreement, including, without limitation, unauthorized use or disclosure of Proprietary Information or other information of the other party, the non-breaching party will suffer irreparable injury that cannot be compensated by money damages and therefore will not have an adequate remedy at law. Accordingly, if either party institutes an action or proceeding to enforce the provisions of this Agreement, such party will be entitled to obtain such injunctive relief, specific performance, or other equitable remedy from the arbitrator as may be necessary or appropriate to prevent or curtail any such breach, threatened or actual. These will be in addition to and without prejudice to such other rights as such party may have in law or in equity.
14. NOTICES
All notices, demands or consents required or permitted under this agreement shall be in writing and shall be delivered or mailed certified return receipt requested to the respective parties at the addresses set forth above or at such other address as such party shall specify to the other party in writing. Any notice required or permitted to be given by the provisions of this Agreement shall be conclusively deemed to have been received on the day it is delivered to that party by U.S. Mail with Acknowledgment of Receipt or by any commercial courier providing equivalent acknowledgment of receipt.
15. DEFAULT
(A) Sub-Contractor may, by written notice of default to E-CRUE, immediately terminate the whole or any part of this Agreement in any one of the following circumstances: (i) if E-CRUE fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; or (ii) if E-CRUE fails to perform any of the other provisions of this Agreement in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of 10 days (or such longer period as Sub-Contractor may authorize in writing) after receipt of notice from Sub-Contractor specifying such failure; or (iii) E-CRUE becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due.
(B) E-CRUE may, by written notice of default to Sub-Contractor, immediately terminate the whole or any part of this Agreement in any one of the following circumstances: (i) if Sub-Contractor fails to make delivery of the supplies or to perform the services within the time specified herein or any extension thereof; or (ii) if Sub-Contractor fails to perform any of the other provisions of this Agreement in accordance with its terms, and in either of these two circumstances does not cure such failure within a period of 10 days (or such longer period as E-CRUE may authorize in writing) after receipt of notice from Sub-Contractor specifying such failure; or (iii) Sub-Contractor becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due.
(C) E-CRUE and Sub-Contractor shall continue performance of this Agreement to the extent not terminated. The parties shall have no obligation to E-CRUE with respect to the terminated part of this Agreement except as herein provided.
(D) E-CRUE shall not be liable for damages resulting from default due to causes beyond E-CRUE's control and without E-CRUE's fault or negligence, provided, however, that if E-CRUE's default is caused by the default of a subcontractor or supplier, such default must arise out of causes beyond the control of both E-CRUE and subcontractor or supplier, and without the fault or negligence of either of them and, provided further, the supplies or services to be furnished by the subcontractor or supplier were not obtainable from other sources.
(E) Sub-Contractor shall not be liable for damages resulting from default due to causes beyond Sub-Contractor's control and without Sub-Contractor's fault or negligence, provided, however, that if Sub-Contractor's default is caused by the default of a subcontractor or supplier, such default must arise out of causes beyond the control of both Sub-Contractor and subcontractor or supplier, and without the fault or negligence of either of them and, provided further, the supplies or services to be furnished by the subcontractor or supplier were not obtainable from other sources.
16. INSURANCE
Throughout the performance of its obligations under this Agreement, E-CRUE and Sub-Contractor shall maintain, at their expense, a policy or policies of insurance for each type of coverage and with the minimum limits stated below:
(A) Commercial general liability insurance, including contractual coverage, insuring against liability arising out of bodily injury or property damage caused by Sub-Contractor or E-CRUE. Such insurance shall provide coverage to a limit of not less than $1,000,000.00.
(B) Comprehensive automobile liability insurance covering liability arising out of or based upon the use of any owned, hired or non-owned automobile or other automotive equipment. Such insurance shall provide to a limit of not less than $1,000,000.00.
$100,000 for bodily injury by accident
$500,000 for bodily injury by disease policy limit
$100,000 for bodily injury by disease by employee
arising out of the operation the parties. Such insurance shall provide coverage in an amount of $1,000,000.00.
Both parties will provide proof of coverage in the form of a certificate of insurance, naming one party as the certificate holder and the other party as an additional insured.
17. FORCE MAJEURE
Neither party will be deemed in default of this Agreement to the extent that performance of its obligations, or attempts to cure any breach, are delayed or prevented by reason of circumstance beyond its reasonable control, including without limitation fire, natural disaster, earthquake, accident or other acts of God ("Force Majeure"), provided that the party seeking to delay its performance gives the other written notice of any such Force Majeure within fifteen (15) days after the discovery of the Force Majeure, and further provided that such party uses its good faith efforts to cure the Force Majeure. If there is a Force Majeure, the time for performance or cure will be extended for a period equal to the duration of the Force Majeure. This Article shall not be applicable to any payment obligations of either party.
18. CUMULATIVE RIGHTS
Any specific right or remedy provided in this Agreement shall not be exclusive but shall be cumulative upon all other rights and remedies set forth in this section and allowed under applicable law.
19. COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which will be deemed an original, but all of which shall constitute one and the same instrument.
20. ATTORNEY FEES
If either party is required to retain the services of any attorney to enforce or otherwise arbitrate or defend any matter or claim arising out of or in connection with this Agreement, then the prevailing party shall be entitled to recover from the other party, in addition to any other relief awarded or granted, its reasonable costs and expenses (including attorneys' fees) incurred in the proceeding.
21. SEVERABILITY
If any provision of this Agreement is found invalid or unenforceable under judicial decree or decision, the remainder shall remain valid and enforceable according to its terms. Without limiting the previous, it is expressly understood and agreed that each and every provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that if any remedy under this agreement is determined to have failed of its essential purpose, all other limitations of liability and exclusion of damages set forth in this section shall remain in full force and effect.
22. ENTIRE AGREEMENT
The parties acknowledge that this Agreement expresses their entire understanding
and Agreement, and that there have been no warranties, representations, covenants or understandings made by either party to the other except such as are expressly set forth in this section. The parties further acknowledge that this Agreement supersedes, terminates and otherwise renders null and void any and all prior Agreements or contracts, whether written or oral, entered into between E-CRUE and Sub-Contractor with respect to the matters expressly set forth in this Agreement.
23. INTELLECTUAL PROPERTY RIGHTS
(A) E-CRUE shall own all right, title, and interest in and to all tangible and intangible results and items arising in the course of performing or constituting the results of the work performed under this Agreement and which have been developed by E-CRUE, including without limitation all inventions, know-how, documentation, software and data (the “Technology”), and all intellectual property rights therein, including without limitation all current and future worldwide patents and other patent rights, copyrights, trade secrets, and all applications and registrations with respect to and of the foregoing: provided however, that E-CRUE hereby grants to the particular client of Sub-Contractor for whom E-CRUE provided services and as a result thereof developed Technology, a non-transferable, non-assignable and non-exclusive license to use the Technology which may be used only by such client.
(B) Sub-Contractor shall own all right, title, and interest in and to all tangible and intangible results and items arising in the course of performing or constituting the results of the work performed under this Agreement and which have been developed by Sub-Contractor, including without limitation all inventions, know-how, documentation, software and data (the “Technology”), and all intellectual property rights therein, including without limitation all current and future worldwide patents and other patent rights, copyrights, trade secrets, and all applications and registrations with respect to and of the foregoing: provided however, that Sub-Contractor hereby grants to the particular client of E-CRUE for whom Sub-Contractor provided services and as a result thereof developed Technology, a non-transferable, non-assignable and non-exclusive license to use the Technology which may be used only by such client.
24. INDEPENDENT CONTRACTOR
Nothing in this Agreement will be deemed to place the parties in the relationship of employer/employee, partners, or joint venturers. Neither party shall have any right to obligate or bind the other in any manner. Each party agrees and acknowledges that it shall not hold itself out as an authorized agent with the power to bind the other party in any manner. Each party will be responsible for any withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, and other similar taxes or charges with respect to its activities in relation to performance of its obligations under this agreement.
25. GOVERNING LAW AND COMPLIANCE
This Agreement shall be governed by the laws of the State of Pennsylvania. Both parties agree to comply with all applicable federal, state, and local laws and regulations in performing their duties.
26. CAPTIONS AND HEADINGS
Captions and section headings used in this Agreement are for convenience only and are not a part of this Agreement and shall not be used in construing it.
THIS AGREEMENT IS SUBJECT TO CHANGE AT ANY TIME. IT IS THE RESPONSIBILITY OF THE MEMBER TO PERIODICALLY REVIEW SAID AGREEMENT. MONTHLY SUBMISSION OF MEMBER FEES OR CONTINIOUS FREE MEMBERSHIP CONFIRMS THAT MEMBER HAS AGREED TO THESE TERMS AND CONDITIONS.
IN WITNESS WHEREOF, the parties hereby execute this Agreement by their duly authorized and elected officers or partners as of the date first written above.
Sub-Contractor: E-CRUE
By: ________________________ By:_________e-CRUE___________________
(Name) _____________________
Electronic signature accepted. Agreement in force upon membership.