These Standard Consulting Agreement (“Agreement”) terms govern all Consulting Work Agreement (“each a “CWA”) made by and between Hostel Management International, LLC, a CA limited liability company (“Consultant”) and the company named in the CWA (“Company”) and govern those services set forth in each CWA. Consultant and the Company are referred to collectively as the "Parties" and individually as a “Party”.
1. SERVICES.
1.1 Consultant shall provide to the Company the services described in detail in any CWA (the "Services").
1.2 The Parties are independent contractors and neither Party has any right to enter into contracts or bind the other Party in any way. The Company shall not control or direct the manner or means by which Consultant or Consultant’s employees or contractors perform the Services, including but not limited to, the time and place Consultant performs the Services. The Services performed are outside the usual course of the Company's business. Consultant is customarily engaged in an independently established trade, occupation, or business of the same nature as the Services performed.
1.3 Unless otherwise stated in the CWA, Consultant shall furnish, at their own expense, the materials, equipment, supplies, and other resources necessary to perform the Services. The Company shall provide Consultant with access to its premises, materials, information, and systems to the extent necessary for the performance of the Services.
2. TERM. The term of this Agreement shall coincide with any active CWA between the Parties or other Services being provided to Company by Consultant, and shall remain in effect for as long as there are active and ongoing Services, unless earlier terminated in accordance with Section 9 (the "Term"). The foregoing notwithstanding, those terms of this Agreement which are intended to survive termination shall survive.
3. FEES AND EXPENSES. Subject to the terms and conditions of this Agreement, for the performance of the Services, Company will pay Consultant fees calculated as set forth in the Consulting Work Agreement, on the terms and in the manner set forth in the Consulting Work Agreement. Company will reimburse Consultant for those expenses incurred by Consultant in connection with performing Services set forth in any Consulting Work Agreement, otherwise any expenses incurred by Consultant in performing the Services will be the sole responsibility of Consultant.
4. RELATIONSHIP OF THE PARTIES.
4.1 Independent Contractor. Consultant is an independent contractor and nothing in this Agreement will be construed as establishing an employment or agency relationship between Company and Consultant. Consultant has no authority to bind Company by contract or otherwise. Consultant will perform Services under the general direction of Company, but Consultant will determine, in Consultant’s sole discretion, the manner and means by which Services are accomplished, subject to the requirement that Consultant will at all times comply with applicable law.
4.2 Taxes and Employee Benefits. Without limiting Section 4.1, Consultant will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by the Company to its employees, and the Company will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers' compensation insurance on your behalf. Consultant shall be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by you in connection with the performance of the Services shall be Consultant’s employees or contractors, and Consultant shall be fully responsible for them and fully indemnify the Company against any claims made by or on behalf of any such employee or contractor.
4.3 Worker’s Compensation Insurance. Consultant acknowledges that Company will not carry any liability or worker’s compensation insurance on behalf of Consultant.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Ownership. Except as expressly specified herein, each Party retains all right, title and interest in its products and services including any intellectual property rights contained therein and any derivatives thereof (together, the “Party’s Property”). All use of the Party’s Property shall inure to the benefit of the Party, and the other Party shall not seek to register, record, obtain or attempt to pursue any intellectual property or other proprietary rights or protections in or to the Party’s Property. All rights in the Party’s Property which are not expressly granted herein are reserved.
Other Party Property. Neither Party shall assert any intellectual property rights with respect to the other party’s content, materials or technology or any element, adaptation, variation or name thereof. Neither Party shall have any right to remove, obscure or alter any notices of intellectual property rights or disclaimers appearing in or on any materials provided by the other Party.
Limited Grant of Rights. Each Party grants to the other a limited, non-exclusive, perpetual, royalty-free, license to use the Party’s Property in connection with or in the performance of the Services hereunder and warrants and represents to the other Party that it has the right to make such grant of rights.
New Works. In the event a Consulting Work Agreement contains a specific obligation as part of the Services for Consultant to create any new work(s) of authorship (each, a “Work”) for Company, the rights to such Work(s) shall be owned by Company. Upon receipt of full payment by Consultant, Consultant hereby irrevocably transfers and assigns to Company, and agrees to irrevocably transfer and assign to Company, all right, title and interest in and to the Work(s), including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights therein.
6. CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information” means and will include: (i) any information, materials or knowledge regarding Company and its business, financial condition, products, programming techniques, customers, suppliers, technology or research and development that is disclosed to Consultant or to which Consultant has access in connection with performing Services; (ii) the Consultant Work Product; and (iii) the terms and conditions of this Agreement. Confidential Information will not include any information that: (a) is or becomes part of the public domain through no fault of Consultant; (b) was rightfully in Consultant’s possession at the time of disclosure, without restriction as to use or disclosure; or (c) Consultant rightfully receives from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure. At all times, both during Consultant’s engagement by Company as an independent contractor and after its termination, and to the fullest extent permitted by law, Consultant agrees to hold all Confidential Information in strict confidence, not to use it in any way, commercially or otherwise, except in performing Services, and not to disclose it to others. Consultant further agrees to take all actions reasonably necessary to protect the confidentiality of all Confidential Information. Nothing in this Section 4 or otherwise in this Agreement shall limit or restrict in any way my immunity from liability for disclosing Company’s trade secrets as specifically permitted by 18 U.S. Code Section 1833.
7. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other Party, that:
(i) No Pre-existing Obligations. The Party 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 its performance of its obligations under this Agreement.
(ii) Non-infringement. The Party’s Property and/or any Work(s) 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.
(iii) Non-Solicitation of Personnel. During the term of this Agreement and for a period of one (1) year thereafter, a Party will not directly or indirectly solicit the services of any employee or consultant of the other Party for the Party’s own benefit or for the benefit of any other person or entity.
(iv) Authority. The Party has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; and
(v) Duly Executed. The execution of this Agreement by its representative, whose signature is set forth at the end of this Agreement, has been duly authorized.
8. INDEMNIFICATION.
8.1 Indemnification. Each Party will defend, indemnify and hold the other Party harmless from and against all claims, damages, liabilities, losses, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or resulting from: (i) any action by a third party against a Party that is based on a claim that a Party violated its warranties and representations made in this Agreement; (ii) any claim by a third party that the Party’s Property violates the rights, infringes or misappropriates such third party’s intellectual property rights; and (iii) any action by a third party against based on any act or omission by the Party and that results in: (x) personal injury (or death) or tangible or intangible property damage (including loss of use); or (y) the violation of any statute, ordinance, or regulation.
8.2 Procedure. The indemnified Party will: (i) provide the indemnifying Party with prompt written notice of any claim that would give rise to liability under this Agreement, provided that failure to give timely notice will not relieve the indemnifying Party of its obligations; (ii) make no admission of liability, agreement, or compromise in relation to the relevant claim without the prior written consent of the indemnified Party (such consent, with respect to making an agreement or compromise only, not to be unreasonably conditioned, withheld, or delayed); and (iii) use reasonable efforts to mitigate its loss. The indemnified Party will give control of the defense to the indemnifying Party. However, the indemnified Party will have the right to approve controlling counsel, appoint its own non-controlling counsel, provide reasonable assistance at the indemnifying Party’s expense, and give prior written consent to any settlement, whether or not such settlement requires the indemnified Party to admit liability, pay money, or take (or refrain from taking) any action. Neither Party will disclose terms of any settlement unless required to do so by judicial or other government order, and will not publicize, or permit any third party to publicize, any settlement, without the other Party’s prior written consent.
9. TERMINATION.
9.1 Termination for Breach. Either Party may terminate this Agreement (including the Consulting Work Agreement) if the other Party breaches any material term of this Agreement and fails to cure such breach within five (5) days following written notice thereof from the non-breaching Party.
9.2 Termination for Convenience. Either Party may terminate this Agreement (including the Consulting Work Agreement) at any time, for any reason or no reason, upon written notice to the other Party.
9.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason the Parties obligations under the Agreement shall cease and Company shall pay Consultant for any amounts owed, as invoiced, as of the date of termination. All terms of this Agreement which by the nature are intended to survive termination, shall thereafter survive.
10. LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS FOR BREACH OF CONFIDENTIALITY AND INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR SPECIAL DAMAGES) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATION MAY NOT APPLY IN ALL CIRCUMSTANCES. IN NO EVENT SHALL CONTRACTOR’S TOTAL LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID TO CONTRACTOR IN THE THREE MONTHS PRIOR TO THE DATE UPON WHICH THE EVENT GIVING RISE TO LIABILITY IS ALLEGED TO HAVE OCCURRED.
11. DISCLAIMER. EXCEPT AS SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED), INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. COMPANY ACKNOWLEDGES AND AGREES THAT THE SERVICES, INCLUDING ALL OF CONSULTANT’S ADVICE AND COUNSEL, ARE PROVIDED TO COMPANY HEREUNDER “AS IS” AND “AS AVAILABLE”.
12. INSURANCE. Each Party shall obtain and maintain appropriate insurance policies covering their duties and obligatiosn under this Agreement, including (where applicable): (a) "Commercial General Liability insurance, and (b) “Professional Liability” or “Errors and Omissions” insurance. Insurance obligations may be satisfied by any combination of primary liability and umbrella excess liability coverage that result in the same protection to. All of the foregoing insurance policies should have a retroactive date no later than the date that services commenced and coverage to continue for a period of not less than 2 years after all services are completed.
13. GENERAL.
13.2 Assignment. Neither Party may assign its rights, duties or obligations under this Agreement without the written consent of the other Party, except either Party may assign its rights in the event of a merger, sale or acquisition of a majority of its assets. 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.
13.2 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.
13.3 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 Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
13.4 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.
13.5 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 below.
13.6 Entire Agreement. This Agreement, together with the Consulting Work Agreement, 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 Consulting Work Agreement 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.
13.7 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.
13.8 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.
This version of the Standard Consulting Agreement Terms was published on January 22, 2022, and has not been amended.