Personal Services Agreement

Adventure3, Inc.

Professional Services Agreement

  This Professional Services Agreement is effective as of the date signed by the last party (the “Effective Date”) and is between an Illinois limited liability company with a principal place of business at: 300 W. Joliet St., Ottawa, IL 61350 (“AMS”) and (“Client”) with its principal place of business, as stated in the signature portion of this Agreement (hereinafter, collectively “Parties”). The Client desires AMS to perform certain professional services (the “Services”) for Client, from time to time, pursuant to one or more Statements of Work. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. AMS shall provide qualified employees and independent contractors who possess the skills and qualifications to successfully perform the Services. As specified in any quote, also called a Statement of Work (“SOW”), AMS shall provide such additional Services to Client as described in one or more additional SOW(s); such additional SOW(s) will become part of this Agreement, incorporated by reference, upon signing of such SOW(s) by AMS and Client.
  2. This Agreement shall commence on the Effective Date and will continue in effect for twelve (12) months or until terminated pursuant to Section 5, below.
  3. Client agrees all payments are non-refundable and cancellation or termination, at any time, will require full payment of all amounts due and owing for the contracted Services for the term of the Agreement. Client shall pay AMS the fees set forth in the numbered SOW(s) and on the terms set forth therein.

All invoices shall be delivered to the Client, who shall notify AMS, in writing, of any discrepancies in the invoices within 5 days from the date of receipt thereof. Client shall effect payment for invoices issued in accordance with established terms and the applicable Statement of Work, immediately upon receipt. AMS accepts Payment electronically via credit card, ACH, or by mailing a corporate check to AMS address specified in Section 9. Past due payments shall bear interest at the rate of 1.5% per month from the due date. AMS shall pay all taxes on its income and employment taxes for its personnel. The Parties hereby acknowledge that the fees and prices specified in the applicable SOW(s) are exclusive of sales and use taxes, VAT and such other similar taxes. Where applicable, AMS shall specify such taxes on its invoice as a separate line item, which is in addition to the applicable rates/prices. Client shall pay any sales, use, and value added taxes.

  1. Client Obligations. In addition to any obligations set forth in a SOW, Client shall: (a) timely provide Client Materials necessary for AMS’s performance of Services; (b) ensure that Client stakeholders are available and responsive over the course of the project. If Client becomes unresponsive to communication for a period of 15 days, their Services will be paused or terminated, subject to the terms of project reinstatement outlined in Section 8 of this Agreement; (c) ensure that all Client feedback and approvals are provided through the designated single point of contact; (d) provide any access necessary for AMS to perform Services; and (e) Client is solely responsible for obtaining and maintaining all necessary licenses and consents for Client Materials, Direct Marketing Contacts, email lists, and compliance with all applicable laws in relation to the Services, the use of Client Materials, and the use of the Client equipment in all cases before the date on which the Services are scheduled to commence; (f) Client shall ensure and hereby warrants and represents that it is entitled to transfer the Customer Data to AMS so that AMS may, on behalf of Client, lawfully process and transfer the Personal Data in accordance with this Agreement; and (g) Client shall ensure that its customers, prospects, employees, contractors, or other individuals whom Client wishes to provide AMS Personal Data to process, have been informed of, and have given their valid consent to, such use, processing, and transfer as required by all applicable data protection laws.
  2. Should Client default in the performance of this Agreement or materially breach any of its obligations under this Agreement, AMS may terminate this Agreement if the Client fails to cure the breach within 15 days after having received written notice by AMS of the breach or default.
  3. Effect of Termination. Upon termination of this Agreement and after receipt of full payment, AMS shall deliver the Work Product in whatever stage of completion to Client. Upon termination of this Agreement, AMS shall promptly destroy or return all such materials to Client, at Client’s written instruction and expense. Sections pertaining to Confidential Information, Data Protection, Promotional Rights, Non-Solicitation, Warranties, Limitation of Liability, and Dispute Resolution shall survive Termination and remain in full force and effect.
  4. Acceptance and Rejection. Software or other Deliverables created in the provision of Services pursuant to this Agreement and applicable SOW’s or Change Orders will be accepted (a) when Customer provides AMS with written notice of acceptance or (b) ten (10) Business Days after delivery (“Acceptance Period”), if Client has not first provided AMS with written notice of rejection. Client may reject a Deliverable only in the event that it materially deviates from Specifications listed in the applicable SOW and only via written notice to AMS setting forth the reason for the rejection and nature of such deviation (hereinafter “Rejection”). In the event of such rejection, Client and AMS shall mutually agree, in writing, to: (a) extend the time for AMS to provide a revised Deliverable for acceptance in accordance with this Section; or (b) change the Specifications in accordance with Section 9. After redelivery pursuant to the previous sentence, the Parties shall again follow the acceptance procedures set forth in this Section. This Section, in conjunction with Customer’s right to terminate for material breach, sets forth Client’s only remedy and AMS’s only liability for failure of Deliverables.

If Client notifies AMS of rejection of the Deliverable after the Acceptance Period and such notice creates a need for stoppage of work or to pause the project, the Client acknowledges that AMS may submit a Change Order in accordance with Section 4, which may affect project costs and timelines.

  1. Project Reinstatement. If Client elects to pause a project or the project paused due to breach of Client’s obligations outlined in Section 4, the party pausing the project shall provide written notice to the other party. Within 90 days of written notice that a project has been paused, Client may reinstate the project within scope of the approved Statement of Work to active status for a minimum reinstatement fee of $450.00. 90 days after written notice that a project has been paused AMS may, in its sole discretion, quote a reinstatement fee or state actions necessary for the Parties to continue working together. The Schedule to reinstate the project will be determined by Adventure Marketing Solutions and will start upon receipt of the reinstatement fee.
  2. Project Changes. If Client wishes to initiate changes to the Specifications in an associated SOW, they shall submit a written request to AMS to do so. The request will set forth the nature of Client’s proposed changes to the Specifications. AMS shall complete and return to Client a written document; either a a) (“Change Order”) for a smaller project change or b) subsequent SOW for a larger project change / Supplemental Project Phase setting forth: (a) a written description of changes to the Specifications, (b) any changes to the Schedule, (c) any changes or additions to the Deliverables and (d) any changes or additions to the fees. Change Orders or SOW’s will be binding only if and when signed by both P Any and all Change Orders or subsequent SOW’s will be governed by the terms and conditions set forth in this Agreement, and are hereby incorporated by reference. Any additional Deliverables or changes to the Work Product described in the Change Order will be subject to the acceptance provisions as described in Section 7.
  3. Confidential Information. “Confidential Information” refers to the following items one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within five (5) Business Days; and (c) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential including, but not limited to, AMS’s Tools, email marketing lists, Client’s Customers’ Personal Data and proprietary information. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser’s valuable trade secrets.
    • Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the Professional Services (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 3; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
  1. Ownership. Effective upon receipt of full payment and subject to Subsection 11(a) below, AMS agrees to assign all AMS’s ownership, right, title, and interest in and to any and all copyrights in the website design, content, and Deliverables listed in SOW(s).
  1. Promotional Rights. Upon Client’s publication of any Deliverable, AMS may publicize depictions of the Deliverables, including any Client Materials, and link to any online content containing the Deliverables, and describe its role in creating of the Deliverables. AMS may (a) publicize the fact that Client is AMS’s client; (b) describe the nature of its work for the Client; and (c) subject to any reasonable restrictions imposed by Client, utilize Client’s trade name(s) and trademark(s) in connection with its publicity.

13.               WARRANTIES.

DISCLAIMER OF WARRANTY. EXCEPT AS PROVIDED IN THIS SECTION, EACH PARTY’S PERFORMANCE UNDER THIS AGREEMENT IS PROVIDED “AS IS” AND WITHOUT OTHER WARRANTY INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

14.               Indemnification.

  1. LIMITATION OF LIABILITY. AMS’ MAXIMUM LIABILITY IN ANY ACTION RELATING TO THE SUBJECT OF THIS AGREEMENT IS LIMITED TO THE TOTAL FEES PAYABLE BY CLIENT IN THE MONTH PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS. THIS LIMITATION DOES NOT APPLY TO DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL WRONGDOING, THE CONVERSION FEE, OR TO ATTORNEY’S FEES AND COSTS PAYABLE PURSUANT TO SECTION 16. NEITHER PARTY IS LIABLE FOR ANY CLAIM FOR LOST PROFITS OR SIMILAR DAMAGES, EVEN IF FORESEEABLE AND REGARDLESS OF THE FORM OF ACTION.

 

  1. Assignment and Subcontracting. Neither party shall assign nor transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party. No assignment shall relieve Client of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. Notwithstanding the foregoing, AMS may in its sole discretion use any employee, subcontractor, or consultant (“Agent”) to complete the Work Product, provided however, AMS shall (1) maintain all responsibility for the quality of such Work Product, and (2) require each such Agent to be bound by the terms of this Agreement to the same extent as if they were a party hereto.
  2. Non-Solicitation. During the term of this agreement and for a period of three (3) years following Termination, Client agrees not to hire or cause anyone to hire any employee or contractor of AMS. The Parties agree that damages resulting from a breach of this Section would be difficult to quantify, but that a reasonable estimate of such damages is 50% of the total compensation paid to the subject employee’s annual salary (the “Conversion Fee”). As liquidated damages for breach of this provision, the Client shall pay the Conversion Fee to AMS.
  3. Legal Notice. Any notice or other communication under this Agreement given by either Party to the other shall be deemed properly given when in writing and;

Notices shall be delivered to the following:

Adventure3, Inc.

Name – Title – Address – 300 W. Joliet Street, Ottawa, IL 61350 E-mail – accounting@ams-7.com

Name – Title – Address E-mail – Any change in address shall be communicated, in writing, to the other party within 30 days.

  1. Definitions. The following terms have the meanings given:

“AMS Tools” means AMS’s intellectual property (including its designs, methods, software code, and trade secrets) that either pre-exist this Agreement or are developed by AMS for purposes other than in providing Services for Client under this Agreement. AMS Tools includes any improvements that are not uniquely applicable to the Deliverables. “Client Materials” means all documents, information, designs, data, specifications, graphics, logos, trademarks, written content, images, videos and other materials provided by or on behalf of Client to be used by AMS in connection with the preparation of, or incorporated into, the Deliverables. “Deliverables” means the final versions of materials produced and delivered by AMS pursuant to this Agreement. Deliverables may include Client Materials, AMS Tools, Third-Party Materials, and Work Product. “Documentation” means all manuals, instructions, specifications, and other documents and materials, in any medium, that describe the functionality, components, features, or requirements of the Project, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof. These may fall into three (3) categories, (i) Open Source Software documentation, (ii) other Third-Party Materials that is being integrated by AMS, (iii) customized Documentation requested by the Client in an applicable SOW. “Open Source Software” means any Third-Party, Open Source, community software or other free code, libraries of any type, including, without limitation, any code that is made generally available on the Internet without charge (such as, for example purposes only, any code licensed under any version of GNU, GPL, or LGPL licenses), and any derivative works to the same that require as a condition of use, modification and/or distribution of such code, that the code or other software combined and/or distributed with it be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.   “Specifications” are functional or technical specifications for Services described in a SOW, Change Order, or that have been otherwise agreed to in writing by the Parties. “Statement(s) of Work” is any quote or document attached hereto or otherwise numbered and incorporated by reference which provides a detailed overview of a project in all its dimensions, including but not limited to (scope of Services, schedule, payments, Specifications, Client Materials, Third-Party Materials, etc.) “Third-Party Materials” means materials belonging to third parties that are incorporated into the Deliverables, including, but not limited to: open source software, fonts, licensed images, or proprietary software incorporated into the Deliverables at Client’s election or instruction. “Work Product” means the materials prepared for Client by AMS in the course of performing the Services pursuant to this Agreement.

  1. Relationship of the Parties. The parties to this Agreement are independent contractors, and no partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.
  2. The failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or supplementation of any provision of this Agreement will be effective only if it is in writing and signed by both parties.
  3. This Agreement may be amended, modified, or supplemented only by written agreement, signed by both Parties. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

  1. Exclusive Dispute Resolution Mechanism. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), under the provisions of Sections 23 through 26. The procedures set forth in Sections 23 through 26 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and Sections 23 through 26 are express conditions precedent to litigation of the Dispute.
  2. A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including not fewer than two (2) negotiation sessions attended by the Executive for AMS and by the Executive for the Client. In the event that such Dispute is not resolved on an informal basis within ten (10) Business Days after one party delivers the Dispute Notice to the other party, whether the negotiation sessions take place or not, either party may initiate mediation under Section 21.
  3. Subject to Section 20, the Parties may, at any time after the Escalation to Mediation Date, submit the Dispute to any mutually agreed to mediation service for mediation by providing to the mediation service a joint, written request for mediation, setting forth the subject of the dispute and the relief requested. The Parties shall cooperate with one another in selecting a mediation service, and shall cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The Parties covenant that they will use commercially reasonable efforts in participating in the mediation. The parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the Parties.

The Parties further agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts, and attorneys, and by the mediator and any employees of the mediation service, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any litigation, arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

  1. Litigation as Final Resort. If the Parties cannot resolve any Dispute for any reason, including, but not limited to, the failure of either party to agree to agree to any settlement proposed by the mediator, within 45 days after the Escalation to Mediation Date, either party may file suit in an Illinois court of competent jurisdiction in accordance with the provisions of Governing Law; Jurisdiction and Venue outlined in Section 27, below.
  2. Governing Law; Jurisdiction; Venue. Illinois law governs this Agreement, exclusive of its conflict of laws principles. The state courts of LaSalle County and federal courts of Winnebago County, Illinois are the exclusive venue for resolving any disputes under this agreement. The Parties consent to the personal and exclusive jurisdiction of such courts, and waive defenses concerning venue and convenience of forum.
  3. Reasonable Collection, Attorney’s Fees, and Costs. In the event of any controversy concerning or related to this Agreement or the performance of this Agreement, either party shall be entitled to recover its reasonable expenses (including reasonable collection or attorney’s fees) incurred in resolving such controversy, in addition to any other relief that may be available. The prevailing party is entitled to recover its reasonable attorney’s fees, expert’s fees, and costs.
  4. Force Majeure. Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
  5. This Agreement. This Agreement (including all SOW’s, policies, terms of service, and agreements incorporated by reference) is the entire agreement of the Parties. All prior and contemporaneous agreements, whether written or oral, are superseded. This Agreement may be signed in counterparts. Each counterpart constitutes an original and all together constitute a single agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission and shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. If any term of this Agreement is determined to be invalid, illegal, or unenforceable, the remainder of this Agreement will not be affected. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement to effectuate the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. The Parties acknowledge that this Agreement is the result of negotiations between the Parties and will not be construed in favor of or against either party by reason of authorship.
IN WITNESS THEREOF, the Parties hereto have fully read, understand, and agree to the terms of this Agreement.

Adventure3, Inc.                                                                 CLIENT   By: