1.         PAYMENT FOR SERVICES.

 

            A.         Where expenses are separately billable, Alpha connecTel Technologies, LLC or connecTel, Inc. (“Consultant”) shall invoice Client on a monthly basis for all expenses incurred as a result of performing the Services.  If an expense is in excess of $250, Client may be asked to pay the vendor directly, and Client agrees that it will do so upon receipt of any such vendor’s bill.  Expenses to be paid by Client shall include reasonable out-of-pocket travel expenses incurred by a consultant (e.g., as round-trip airfare, car rental, lodging, meal, other expenses, etc.), applicable printing, copying, telephone, shipping, handling, taxes, and other fees and expenses.

 

            B.         The fees and expenses invoiced, unless disputed in good faith, shall be paid within 30 days of receipt of each invoice.  If only a portion of an invoice is disputed, the undisputed portion will be paid within 30 days of receipt of each invoice, with only the disputed portion withheld pending resolution of the dispute.  Any invoiced amounts as to which Consultant does not receive written notice of a dispute within 30 days after receipt of each invoice shall be deemed undisputed.  Any amount not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) compounded monthly, or the highest rate allowed by law, whichever is lower.  Disputed amounts later determined to be properly owed are subject to the one and one-half percent (1.5%) interest per month retroactive to 30 days after receipt of the original invoice.  Invoices properly disputed must be paid within 30 days after receipt of the corrected invoice.

 

 

2.         INDEPENDENT CONTRACTOR.

 

            A.         Consultant shall perform all Services as an independent contractor, and nothing contained herein shall be deemed to create any association, partnership, joint venture, or relationship of principal and agent or master and servant, or employer and employee between the parties hereto or any affiliates or subsidiaries thereof, or to provide either party with the right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party.

 

            B.         Consultant also agrees not to be treated, or seek to be treated, as an employee of Client for any purpose, including for the purposes of fringe benefits provided by Client, or for disability income, social security taxes and benefits, Federal unemployment compensation taxes, State unemployment insurance benefits and Federal income tax withholding at sources.  Consultant hereby represents that Consultant has and at all times will maintain timely payments of all taxes due to the Internal Revenue Service and all other government agencies, including withholding and all other taxes.

 

3.         COMPLIANCE WITH LAWS.

 

Consultant agrees to comply with all applicable federal, state, county and local laws, ordinances, regulations and codes in the performance of its obligations, including but not limited to the procurement of permits, licenses and certificates where required and payment of applicable taxes.

 

4.         COMPLIANCE WITH CLIENT PROCEDURES.

 

            Consultant agrees that, so long as Client notifies Consultant of the procedures, it will comply with all of Client's standard physical security procedures in place at Client's locations where Consultant is performing work.

           

5.         INDEMNIFICATION AND LIMITATION OF LIABILITIES.

 

Consultant shall indemnify and hold harmless the Client and its officers and employees from all claims, loss, damage, injury, liability, costs and expenses of whatsoever kind or nature (including attorneys’ fees) to the extent arising out of Consultant’s breach of contract or improper performance of contracted work, except to the extent that such claim, loss, damage, injury or liability is caused by an entity other than Consultant.

 

Client shall indemnify and hold harmless the Consultant and its officers and employees from all claims, loss, damage, injury, liability, costs and expenses of whatsoever kind or nature (including attorneys’ fees) to the extent arising out of the intentional or negligent acts of the Client or which are attributable to any obligation of the Client, except to the extent that such claim, loss, damage, injury or liability is caused by an entity other than Client.

 

Indemnitees provided hereunder are conditioned on the following requirements:  A party indemnified under these terms and conditions (“Indemnitee”) must to provide prompt written notice of any claim or proceeding subject to indemnity hereunder to the indemnifying party (“Indemnitor”).  The Indemnitee must give the Indemnitor the opportunity to select counsel, defend, negotiate, and settle any claims subject to indemnity and provide to the Indemnitor all information in its possession, custody, and control, and reasonable cooperation to enable the Indemnitor to carry on the defense of such claims subject to indemnity.  Further, the Indemnitee shall not be responsible for or bound by any settlement of any claims subject to indemnity by the Indemnitor without prior written consent of the Indemnitee, which shall not be unreasonably withheld.

 

EXCEPT WITH RESPECT TO FEES AND EXPENSES DUE UNDER SECTION 1, A BREACH OF SECTION 6, OR INDEMNIFICATION OBLIGATIONS, OR EITHER PARTY’S WILLFUL MISCONDUCT, (i) CONSULTANT’S LIABILITY TO CLIENT, INCLUDING ALL LIABILITIES ARISING OUT OF OR RELATED TO ANY AGREEMENT FROM ANY CAUSE OR CAUSES, AND REGARDLESS OF THE LEGAL THEORY, INCLUDING BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR STATUTORY LIABILITY, SHALL NOT IN THE AGGREGATE EXCEED THE AMOUNTS PAID TO CONSULTANT BY CLIENT, AND (ii) IN NO EVENT SHALL CONSULTANT OR CLIENT BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO LOST PROFITS AND GOODWILL, LOSS OF USE OF DATA, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, AND EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

6.         PROPRIETARY INFORMATION.

 

Consultant hereby agrees that all knowledge and information that it learns or gains from Client or its subsidiaries in the course of its engagement hereunder, which knowledge and/or information (whether presently existing or hereafter developed) is not publicly known and which was not known by Consultant without restriction prior to this engagement or any previous engagement or employment by Client, regardless of the form in which such information may be contained or communicated (including, but not limited to, documents, drawings, tangible items, and photographs), is the exclusive, confidential and proprietary information of Client or its subsidiaries.

 

7.         REPRESENTATIONS AND WARRANTIES.

 

            A.         Consultant represents and warrants that the Services performed shall be performed in a professional manner by individuals well qualified to perform such work, and agrees to provide Client, on request, with information concerning the individuals’ experience which affirms these qualifications.

 

            B.         Consultant hereby represents and warrants that the Services and any information, material, products, designs, specifications or instructions provided by Consultant, or the use of any of the foregoing, do not infringe any patent, utility model, industrial design, copyright, trade secret, trademark or any other third party intellectual property right or right of confidentiality in any country where Consultant performs Services or delivers Inventions.

 

8.         NONSOLICITATION.

 

During and for a period of two years following provision of services, Consultant and Client will not, without prior written consent of the other party, knowingly hire or attempt to hire any employee of the other party or its subsidiaries or affiliates, who were involved in the performance of services hereunder.

 

9.         GENERAL PROVISIONS.

 

            A.         Waiver. 

 

Failure by either party at any time to enforce any obligation by the other party, to claim a breach of any term or to exercise any power hereunder will not be construed as a waiver of any right, power or obligation, will not affect any subsequent breach, and will not prejudice either party as regards any subsequent action.

 

            B.         Severability. 

 

If any term or provision of these terms and conditions should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of these terms and conditions shall remain unimpaired and in full force and effect.      

                       

            C.         Assignment. 

 

Neither party may assign any rights or obligations without the prior consent of the other; provided, however, that Client may assign any rights or obligations to a subsidiary or affiliate or to any third party assuming all or part of the business function of the Client unit which will receive the Services and provided hereunder upon notice to Consultant.

 

            D.         Modification. 

 

No modification, waiver or amendment of any term or condition shall be effective unless and until it shall be reduced to writing and signed by all parties or their legal representatives.     

 

            E.         Governing Law. 

 

This contractual relationship shall be governed by and construed and enforced in accordance with the substantive laws of the Commonwealth of Pennsylvania. The Parties consent to jurisdiction and venue in the state and federal courts in Allegheny County, Pennsylvania. In the event a dispute arises regarding the services, the prevailing party shall be entitled to its reasonable attorney’s fees and expenses incurred in any litigation in addition to any other relief to which it is entitled.

 

            I.          Inconsistent prior terms. 

 

These terms and conditions supersede any inconsistent prior oral and written and all contemporaneous oral negotiations, commitments and understandings of the parties.

 

            J.          Notices

 

Any written notice hereunder shall become effective as of the date of mailing by registered or certified mail.