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Company and Advisor agree that all services performed by the Advisor are governed by the following terms: 

1. SERVICES.

1.1 Performance of Services. Advisor will perform the Advisory services (“Services”) described in detail in the Key Terms of Weekly Accounting, Inc. Financial Agreement (above) and in accordance with the terms and conditions of this Agreement and the Statement of Work.

1.2 Payment. Subject to the terms and conditions of this Agreement, for the performance of the Services, Company will pay Advisor fees calculated as set forth on the terms and in the manner set forth in the Key Terms , above. 

2. RELATIONSHIP OF PARTIES. 

2.1 Independent Contractor. Advisor is an independent contractor and nothing in this Agreement will be construed as establishing an employment or agency relationship between the Company and Advisor. Advisor has no authority to bind the Company by contract or otherwise. Advisor will perform Services under the general direction of the Company, but Advisor will determine, in Advisor’s sole discretion, the manner and means by which Services are accomplished, subject to the requirement that Advisor will at all times comply with applicable law.

2.2 Taxes and Employee Benefits. Advisor will report to all applicable government agencies as income all compensation received by Advisor pursuant to this Agreement. Advisor will be solely responsible for the payment of all withholding taxes, social security, workers’ compensation, unemployment and disability insurance or similar items required by any government agency. Advisor will not be entitled to any benefits paid or made available by Company to its employees, including, without limitation, any vacation or illness payments, or to participate in any plans, arrangements or distributions made by Company pertaining to any bonus, stock option, profit sharing, insurance or similar benefits unless otherwise noted in the key terms. Advisor will indemnify and hold Company harmless from and against all damages, liabilities, losses, penalties, fines, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or relating to any obligation imposed by law on Company to pay any withholding taxes, social security, unemployment or disability insurance or similar items in connection with compensation received by Advisor pursuant to this Agreement.

2.3 Liability Insurance. Advisor acknowledges that the Company will not carry any liability insurance on behalf of Advisor. Advisor will maintain in force adequate liability insurance to protect Advisor from claims of personal injury (or death) or tangible or intangible property damage (including loss of use) that arise out of any act or omission of Advisor.

3. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.

3.1 Disclosure of Work Product. Advisor will, as an integral part of the performance of Services, disclose in writing to Company all inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, data, processes, techniques, know-how, algorithms, specifications, biological or chemical specimens or samples, hardware, circuits, computer programs, databases, user interfaces, encoding techniques, and other materials and information of any kind that Advisor may create, make, conceive, develop, or reduce to practice, alone or jointly with others, in connection with performing Services, or that result from or that are related to such Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection. Collectively, the above-described disclosures shall be hereinafter referred to as  “Advisor Work Product”.

3.2 Ownership of Advisor Work Product. All Advisor Work Product will be the sole and exclusive property of Company, and the grant of a license to Advisor in relation to the Advisor Work Product, as set out in Section 3.3., does not convey any rights of ownership whatsoever to the Advisor.

3.3. Licensure of Advisor Work Product. Company hereby grants  a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to use Advisor Work Product for its own internal Company purposes   to Company for the term of this Agreement. 

4. CONFIDENTIAL INFORMATION. 

For purposes of this Agreement, “Confidential Information” means and will include:

• any information, materials or knowledge regarding Company and its business, including without limitation financial condition, products, programming techniques, customers, suppliers, technology or research and development that is disclosed to Advisor or to which Advisor has access in connection with performing Services; 

• the Advisor Work Product; and 

• the terms and conditions of this Agreement. 

Confidential Information will not include any information that: 

• is or becomes part of the public domain through no fault of either party; 

• was rightfully in either Party’s possession at the time of disclosure, without restriction as to use or disclosure; or 

• a Party rightfully receives from a third party who has the right to disclose it and who provides it without restriction as to its use or disclosure. 

Each of Advisor and Company agree to hold all Confidential Information belonging to the other party in strict confidence, not to use it in any way, commercially or otherwise, except pursuant to this Agreement, and not to disclose it to others. Advisor and Company further agree to take all actions reasonably necessary to protect the confidentiality of all Confidential Information of the other party.

5. WARRANTIES.

5.1 No Pre-existing Obligations. Advisor represents and warrants that Advisor has no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conflict or inconsistent with or that would hinder Advisor’s performance of its obligations under this Agreement.

5.2 Performance Standard. Advisor represents and warrants that the Services will be performed in a thorough and professional manner, consistent with high professional and industry standards by individuals with the requisite training, background, experience, technical knowledge and skills to perform the Services.

5.3 Non-infringement. Advisor represents and warrants that the Advisor Work Product will not infringe, misappropriate or violate the rights of any third party, including, without limitation, any Intellectual Property Rights or any rights of privacy or rights of publicity, except to the extent any portion of the Advisor Work Product is created, developed or supplied by Company or by a third party on behalf of Company.

5.4 Non-Solicitation of Personnel. During the term of this Agreement and for a period of one (1) year thereafter, each respective Party agrees not to solicit directly or indirectly the services of any employee of the other  for the benefit of itself or any other person or entity.

 

6. Removed 

7. TERM AND TERMINATION.

7.1 Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement—which includes for all purposes any Key Terms preface or forward—will remain in force and effect for as long as Advisor is performing Services pursuant to the Statement of Work.

7.2 Termination for No Cause. Either party may terminate this Agreement (including the Statement of Work) within thirty (30) days following written notice thereof.

7.3 Termination for Cause. This Agreement may be terminated for cause by either Party, upon at least thirty (30) days written notice. For purposes of this Agreement, “Cause” includes any of the following events: 

• Advisor’s failure to perform duties as outlined in the Key Terms of Advisor Agreement; 

• fraud, misappropriation or embezzlement of funds or property by Advisor involving the Company; 

• Advisor’s commission in any jurisdiction of any crime which (1) constitutes a felony, or (2) constitutes a misdemeanor involving fraud or an act of moral turpitude that may result in serious harm to the Company or its business or reputation; 

• Advisor’s misconduct in, or neglect of, the performance of Advisor’s duties and responsibilities hereunder as determined by the Company; 

• any breach by Advisor of any agreement between Advisor and the Company, any breach of any material Company policy, or any refusal to follow any lawful instructions given to Advisor by the Company; or 

• Advisor’s failure to cooperate in good faith with a government or internal investigation of the Company or its directors, officers or employees, if the Company has requested Advisor’s cooperation.

7.4 Effect of Termination.

• Upon the expiration or termination of this Agreement for any reason, Advisor will promptly deliver to Company all Advisor Work Product, including all work in progress on any Advisor Work Product not previously delivered to Company, if any.  

• Upon the expiration or termination of this Agreement (except termination of this Agreement by Company pursuant to Section 7.3 for cause by Advisor), Company will pay Advisor any amounts that are due and payable under Section 1.2 for Services performed by Advisor prior to the effective date of expiration or termination.

• Upon the expiration or termination of this Agreement for any reason, Advisor will promptly notify Company of all Confidential Information in Advisor’s possession or control and will promptly deliver all such Confidential Information to Company, at Advisor’s expense and in accordance with Company’s instructions. Company will likewise deliver all Advisor Confidential information to Advisor.

7.5 Survival. The provisions of Sections 2.2, 3, 4, 5.3, 6, 7.4, 7.5, 8 and 9 will survive the expiration or termination of this Agreement.

8. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

9. GENERAL.

9.1 No Election of Remedies. Except as expressly set forth in this Agreement, the exercise by any Party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity.

9.2 Assignment. Advisor may not assign or transfer any of Advisor’s rights or delegate any of Advisor’s obligations under this Agreement, in whole or in part, without the Company’s express prior written consent. Any attempted assignment, transfer or delegation without such consent will be void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties permitted successors and assigns.

9.3 Equitable Remedies. Because the Services are personal and unique and because Advisor will have access to Confidential Information of Company, Company will have the right to enforce this Agreement and any of its provisions by injunction or other equitable relief, without having to post a bond or other consideration, in addition to all other remedies that Company may have for a breach of this Agreement.

9.4 Attorneys’ Fees. If any action is necessary to enforce the terms of this Agreement, the substantially prevailing party will be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.

9.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of law pertaining to conflict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the boundaries of the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

9.6 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

9.7 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices will be sent to the addresses set forth on the signature pages hereto or to such other addresses as may be specified by either party to the other in accordance with this Section 9.7.

9.8 Entire Agreement. This Agreement, together with any Statement of Work and Key Terms, constitutes the complete and exclusive understanding and agreement of the Parties with respect to the subject matter hereof and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. In the event of a conflict, the terms and conditions of the Statement of Work will take precedence over the terms and conditions of this Agreement. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.

9.9 Waiver. The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same other provisions hereof.

9.10 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.