1.1 We, Freeman and Clarke, Inc., (we) will provide the services of an experienced executive-level IT leader (IT Leader) (Services) to you, the firm or company identified on the first page (you) in accordance with these terms and conditions (this Contract).
1.2 The Services will:
(a) consist solely of advice provided to your management on matters such as setting objectives and strategies for the IT department; selecting and implementing suitable technology to streamline all internal operations and help optimize their strategic benefits; designing and customizing technologynological systems and platforms to improve customer experience and any other IT matters, including support from our wider team and other resources;
(b) not permit the signing of any document by us that would bind you or would appoint the IT Leader as your officer;
(c) not be construed to create any association, partnership, joint venture, employee, or agency relationship between us and you for any purpose;
(d) not include any functions or actions that might be interpreted as the IT Leader acting as your employee, officer, or director, or requiring the IT Leader to manage your staff;
(e) be provided by the agreed person or a substitute we select with suitable skills, experience and qualifications and in the manner determined by us and the IT Leader with your agreement;
(f) be provided at such times and locations agreed between you and the IT Leader from time to time.
1.3 This is not a contract of employment and therefore you are not obliged to offer us work and we are not obliged to accept or carry out any work offered. The IT Leader delivers the Services as an independent contractor, not as an employee.
2.1 Services start on a mutually agreed date and may terminate on a date agreed by both parties at the outset of the agreement or continue until termination of this Contract by either party giving 30 days’ written notice to the other.
2.2 You must sign this Contract before Services commence. If you make use of the Services without having signed this Contract, you are deemed to accept its terms.
3.1 You will pay us a fee equal to the monthly fee or the daily rate for each Business Day as is agreed in writing between us. Business Day means the provision of the Services by one of our IT Leaders to you for a minimum of 7 hours on any weekday (other than a public holiday). We are responsible for travel and meal expenses of the IT Leader at your premises unless otherwise agreed. You must pay us by the 15th day of the month following the invoice date. If payment is not received by the due date, interest on such unpaid amount shall accrue at the maximum rate permitted by law.
3.2 We will review the fee annually and give you 30 days’ written notice of any increase.
4.1 You are not permitted to circumvent us by doing business with an IT Leader we introduced to you in a manner that does not result in fees paid under this Agreement to us. In the event that, without our written consent, you hire directly onto your own payroll or engage as an independent contractor any IT Leader (who performed services for you in the past 12 months) at any time during the Term or from 9 months after the termination of Services, you shall notify us in writing and pay us a one-off conversion fee within ten (10) days of such hire or engagement of the greater of (a) $100,000 for each such IT Leader whom you have hired or engaged; or (b) the compensation package at the time of hire or engagement. The payment of the conversion fees is your sole liability and entire obligation with respect to your hire or engagement of the IT Leader.
5.1 Nothing in this Contract excludes or limits our liability for death or personal injury caused by our negligence or for fraud or fraudulent misrepresentation or for any matter which cannot be excluded or limited by law.
5.2 Subject to clause 5.1, our total liability in contract, tort (including negligence), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Services, is limited to the total amount paid by you to us for the Services or $100,000 (one hundred thousand dollars), whichever is greater.
5.3 Subject to clause 5.1, we shall not be liable to you for any (a) indirect or consequential loss or (b)(i) loss of reputation, (ii) pure economic loss, (iii) loss of profit, (iv) loss of business or turnover, (v) depletion of goodwill, (vi) loss of anticipated savings or (vii) wasted management time (in each case whether direct, indirect or consequential).
5.4 A person who is not a party to this Contract does not have any rights under or in connection with it.
6.1 We each agree to keep confidential all information obtained pursuant to this Contract, which is of a confidential nature or designated as such concerning the other’s business, affairs, clients, suppliers, consultants or otherwise and only to use or disclose it (i) on a need to know basis to its employees, consultants, auditors, other professional advisers and insurers or (ii) if required by law or regulations.
This Contract and all related documents and matters, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of New York, United States of America, without regard to conflicts of laws principles. Any legal proceeding relating to this Contract shall be instituted in the state or federal courts located in New York, NY. Each of the parties consents to personal jurisdiction of the State of New York for any such legal proceeding and irrevocably and unconditionally waives and agrees, to the fullest extent permitted by law, not to plead any objection that it may now or hereafter have to the laying of venue or the convenience of the forum of any such proceeding. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS CONTRACT OR THE SERVICES PROVIDED HEREUNDER.
1. Personal information may include any information concerning a natural person, such as such person’s name, number, personal mark, or other identifier and Private information may include a person’s social security number, driver’s license number, identification number, account number, credit or debit card number, user name or email address, or biometric information (collectively ” PI”). The applicable state laws may include New York’s SHIELD Act, General Business Law Section 899 aa and bb; New Jersey’s Identity Theft Prevention Act, § 56:8-161 et seq of Chapter 8 of Title 56 of the N.J. Rev. Stat.; the Massachusetts Data Security Regulation, 201 Mass. Code Regs. 17.01 to 17.05; and the California Consumer Privacy Act, Cal. Civ. Code § 1798.100, et seq.
2. We each agree not to Process in violation of law and to Process PI solely and exclusively for the purposes for which the PI, or access to it, is provided pursuant to this Contract, and not Process, or otherwise communicate or make PI available to anyone else without written consent. Process means create, collect, receive, store, access, use, sell, rent, transfer, distribute, dispose or disclose and Processing shall be interpreted accordingly.
3. Each of us represents and warrants that the Processing of PI, does and will comply with all applicable federal and state privacy and data protection laws, regulations and directives. Each of us shall (i) implement and maintain a written information security program including appropriate policies, procedures, and risk assessments that are reviewed at least annually (ii) implement administrative, physical, and technical safeguards to protect PI from unauthorized Processing, destruction, alteration, accidental loss, or damage that are no less rigorous than accepted industry practices (iii) ensure that all such safeguards, including the manner in which PI is Processed, comply with applicable data protection and privacy laws.
4. At either party’s written request at any time or upon the termination or expiration of this Contract for any reason, either of us shall, and shall instruct all persons to, promptly return to the other party, or securely dispose of, all copies, whether in written, electronic, or other form or media, of PI in its/their possession and certify in writing to the other that such PI has been returned or disposed of securely. Each party shall comply with all reasonable directions provided by the other party with respect to the return or disposal of PI.
5. If a PI security breach occurs (“Security Breach”), each party shall notify the other in writing, and at its own expense take reasonable steps to immediately contain and remedy any Security Breach and prevent any further Security Breach, including, but not limited to taking any and all action necessary to comply with applicable privacy rights, laws, regulations, and standards. Each party shall maintain and preserve all documents, records, and other data related to any Security Breach. Each party shall maintain complete and accurate records and information to demonstrate its compliance and allows the other to conduct a security audit no more than once annually on 30-days written notice.
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Co-Founder and Director