JayWink Solutions, LLC (“JayWink,” “Consultant”) agrees to perform services for Client subject to the terms and conditions outlined below.
Consulting Engagement Agreement
Prior to a Consulting Engagement (“Engagement”), JayWink and Client shall cosign a Consulting Engagement Agreement (“Agreement,” “CEA”) that outlines responsibilities of each party specific to the Engagement. The CEA shall include, but not be limited to, the following information:
Statement of Work – A Statement of Work (“SOW”) describes the services to be rendered by Consultant, deliverables to be provided to Client, and related duties of both parties.
Engagement Schedule – An Engagement Schedule (“Schedule”) defines the anticipated timeline or duration of services and deliveries. For Engagements of indeterminate duration, a planned start date should be included, at a minimum. Modifications to the Schedule can be made formally (i.e. via change management procedures) or informally, as stipulated in the Agreement.
Payment Terms – Any deviation from Standard Payment Terms are to be clearly specified.
Penalties – If specific penalties are to be imposed for nonperformance (e.g. incomplete or insufficient deliverables), they must be defined in the Agreement. Definition of a penalty must include the nature of the penalty (e.g. invoice reduction, direct payment, loss of related work contract), the magnitude of the penalty (i.e. financial value, identification of related work to be lost), the deadline for imposition of the penalty, the method of evaluation of performance, and the minimum level of performance to be accepted.
Good Faith Statement – Consultant and Client shall agree to act in Good Faith throughout the Engagement and beyond. This includes, but is not limited to, respectful treatment of personnel, earnest discussions to make decisions or resolve disagreements, and ethical conduct in all matters.
Contact Information – To ensure timely and effective execution of the Agreement, the name, telephone number, email address, and mailing address of the following individuals should be included in the CEA:
Modification of the CEA can be achieved through addendum or a superseding document. Each addendum or revision must clearly state the date or conditions under which it becomes effective. For the sake of expediency, verbal or other informal agreements may be executed for a period not to exceed three (3) days. For such an agreement to remain in effect after this time, the CEA must be modified, as above, with effectivity matching that of the informal agreement. There shall be no repercussions for actions taken in good faith in response to the informal agreement, regardless of the formalization, or lack thereof, of said agreement.
Payment Terms
Consultant will invoice Client for Standard Engagements (up to 1 week in duration) per the Standard Fee Schedule. Payment is due, in full, at the conclusion of the Engagement. Each week of an Extended Engagement (greater than 1 week in duration) will be invoiced as a Standard Engagement.
Overdue payments will be assessed a late payment fee of 1.5% of the outstanding balance per day, compounded. Client’s account will be considered in default if full payment of invoice and accrued late fees has not been received by JayWink Solutions, LLC within 30 days of original due date. Expenses incurred for collection or other legal action taken as a result of Client’s nonpayment will be added to Client’s outstanding balance and will be immediately subject to late fee accruals.
Termination
The Engagement may be terminated by Client or Consultant; written notice of the intention to do so must be provided a minimum of seven (7) days in advance of termination date. The termination may be rescinded if, during the advance notice period, Client and Consultant craft a new Agreement or otherwise remedy the situation that prompted the termination notice. Conditions that may justify termination include:
Upon termination of Engagement, Consultant is released from liability for the Project, its outcomes, and consequences of the termination. This does not absolve either party of obligations related to financial commitments that remain valid, confidentiality, or other surviving terms of the Agreement.
Conflicts of Interest
Client and Consultant shall disclose, prior to Engagement or immediately upon discovery, any and all existing or potential conflicts of interest related to the proposed Project or Agreement. Minor conflicts may be managed with ongoing disclosures or other means, at the discretion of the aggrieved party. More significant conflicts may require termination of the Engagement, subject to the terms in the Termination section.
Confidentiality and Intellectual Property Rights
Client and Consultant shall maintain confidentiality of information shared in connection with Engagement. All information provided by either party shall be treated as confidential until such time that terms of Agreement explicitly permit otherwise.
Confidential information requiring protection may be transferred verbally, visually, in document form (i.e. physical hardcopy), digitally (i.e. computer files, electronic communication, etc.), or in any other format currently available or conceived of in the future, or in any artifact, physical or otherwise.
Confidential information requiring protection may include business plans, marketing strategies, product design elements, process parameters, research and development (“R&D”) activities, customer data, cost structure, or any other operational data.
Either party may make use of confidential information in subsequent Engagements if in the best interest of the owner or disclosing party and in accordance with the Agreements. At the conclusion of Agreement (i.e. completion or termination), each party shall return or destroy, at owner’s discretion, all confidential information in all forms. Either party may request or be granted permission for limited disclosure for academic or marketing purposes.
Exemptions to the rules of confidentiality include:
Client and Consultant retain rights to Intellectual Property (“IP”) predating the Engagement. Rights to third-party IP used during Engagement remain with the original owners. Client and Consultant declare that such IP will be used only in accordance with owners’ rights and no claim of ownership will be made.
Consultant retains all rights to IP created in the provision of services. Consultant grants Client a royalty-free nonexclusive license to use IP included in deliverables for the purposes of continuing operations involved in the Project for the life of said operations, subject to limitations of disclosure.
Innovations and IP offered to Client, but declined, remain the exclusive property of Consultant. Consultant retains all rights to develop, market, license, sell, or otherwise disclose said IP; no license is granted to Client.
Publicity
Client grants Consultant right to identify Client in marketing or other communication. Consultant may use Client’s name, logo, facility photo, any publicly-distributed identifying artifact, or other approved artifact. If such artifacts are not readily available, Client agrees to provide artifact(s) for purposes of identification in marketing materials, including, but not limited to Consultant’s website, white papers, or journal or magazine articles. Confidentiality of Client’s sensitive information and IP shall be maintained at all times.
Client Responsibilities
To ensure a successful Engagement, Client pledges the following:
Consultant Responsibilities
To ensure a successful Engagement, Consultant pledges the following:
Assignment
Neither party may assign or otherwise transfer rights or responsibilities granted or created by Agreement without prior consent of all affected parties. Consultant reserves the right to subcontract portions of the Project in order to maintain performance to expectations and fulfill obligations imposed by Agreement. Accountability shall not be delegated to any subcontractor without consent of Client.
Force Majeure
Neither party shall be liable for failure to perform in accordance with Agreement if such failure is due to causes beyond that party’s control. Such causes may include acts of police or government authority, natural disaster, terrorism, or other unavoidable interruption or suspension of operations.
In the event of an unavoidable disruption, the affected party shall notify the other of the nature and extent of the disruption. Both parties shall make all practicable efforts to minimize the impact of the disruption on the Project and to develop a new course of action, Schedule, or other required modification to the Agreement. If an acceptable recovery solution cannot be found, termination of the Engagement may be initiated by either party, subject to the terms of Agreement.
Severability
Should any provision of these Terms & Conditions, Agreement, other arrangement, or communication between Client and Consultant be found invalid, unlawful, or unenforceable, such provision shall be stricken. The validity and enforceability of the remainder of the terms, Agreement, etc. shall be unaffected by the severance.
The severed portion may be modified to bring it in compliance with applicable law. Once ratified by both parties, the modified provision becomes a component of the Agreement and is henceforth binding on both parties.
Dispute Resolution, Governing Law, and Jurisdiction
In the event of a dispute between Client and Consultant, the parties commit to earnest negotiations and all reasonable efforts to resolve the matter. If such efforts are unsuccessful, either party may initiate an Alternative Dispute Resolution (“ADR”) process (i.e. binding or non-binding arbitration) by the American Arbitration Association (“AAA”) or other mutually agreed body.
While negotiation and arbitration are preferred to litigation, neither party waives its right to seek injunctive relief should it be deemed necessary.
The Agreement between Client and Consultant and all conduct related to same shall be interpreted and enforced in accordance with the laws of the State of South Carolina (“SC”), United States of America (“USA”). The parties to the dispute consent to the exclusive venue and jurisdiction of the State and Federal Courts of South Carolina, USA.
Precedence of Agreement
Any terms of Purchase Order, other request for service, or any communication between Client and Consultant in contradiction to the Consulting Engagement Agreement shall have no force or effect until modification of the Agreement incorporates such terms by ratification by both parties. In all instances of inconsistency, the CEA shall be the ruling document.
The Agreement, incorporated documents and addenda constitute the entire agreement between Client and Consultant and supersedes all previous agreements and understandings.
Survival of Terms
Obligations created by Agreement survive the conclusion of any Engagement and remain in effect indefinitely. Exceptions are created only by superseding Agreements or as required by law.
Consulting Engagement Agreement
Prior to a Consulting Engagement (“Engagement”), JayWink and Client shall cosign a Consulting Engagement Agreement (“Agreement,” “CEA”) that outlines responsibilities of each party specific to the Engagement. The CEA shall include, but not be limited to, the following information:
Statement of Work – A Statement of Work (“SOW”) describes the services to be rendered by Consultant, deliverables to be provided to Client, and related duties of both parties.
Engagement Schedule – An Engagement Schedule (“Schedule”) defines the anticipated timeline or duration of services and deliveries. For Engagements of indeterminate duration, a planned start date should be included, at a minimum. Modifications to the Schedule can be made formally (i.e. via change management procedures) or informally, as stipulated in the Agreement.
Payment Terms – Any deviation from Standard Payment Terms are to be clearly specified.
Penalties – If specific penalties are to be imposed for nonperformance (e.g. incomplete or insufficient deliverables), they must be defined in the Agreement. Definition of a penalty must include the nature of the penalty (e.g. invoice reduction, direct payment, loss of related work contract), the magnitude of the penalty (i.e. financial value, identification of related work to be lost), the deadline for imposition of the penalty, the method of evaluation of performance, and the minimum level of performance to be accepted.
Good Faith Statement – Consultant and Client shall agree to act in Good Faith throughout the Engagement and beyond. This includes, but is not limited to, respectful treatment of personnel, earnest discussions to make decisions or resolve disagreements, and ethical conduct in all matters.
Contact Information – To ensure timely and effective execution of the Agreement, the name, telephone number, email address, and mailing address of the following individuals should be included in the CEA:
- Responsible Manager – for delivery of project reports and decision-making.
- Account Manager – for delivery of invoices.
- Subject Matter Experts – for requests for specialized information.
- Other individuals – as required for project execution.
Modification of the CEA can be achieved through addendum or a superseding document. Each addendum or revision must clearly state the date or conditions under which it becomes effective. For the sake of expediency, verbal or other informal agreements may be executed for a period not to exceed three (3) days. For such an agreement to remain in effect after this time, the CEA must be modified, as above, with effectivity matching that of the informal agreement. There shall be no repercussions for actions taken in good faith in response to the informal agreement, regardless of the formalization, or lack thereof, of said agreement.
Payment Terms
Consultant will invoice Client for Standard Engagements (up to 1 week in duration) per the Standard Fee Schedule. Payment is due, in full, at the conclusion of the Engagement. Each week of an Extended Engagement (greater than 1 week in duration) will be invoiced as a Standard Engagement.
Overdue payments will be assessed a late payment fee of 1.5% of the outstanding balance per day, compounded. Client’s account will be considered in default if full payment of invoice and accrued late fees has not been received by JayWink Solutions, LLC within 30 days of original due date. Expenses incurred for collection or other legal action taken as a result of Client’s nonpayment will be added to Client’s outstanding balance and will be immediately subject to late fee accruals.
Termination
The Engagement may be terminated by Client or Consultant; written notice of the intention to do so must be provided a minimum of seven (7) days in advance of termination date. The termination may be rescinded if, during the advance notice period, Client and Consultant craft a new Agreement or otherwise remedy the situation that prompted the termination notice. Conditions that may justify termination include:
- Breach of terms of Agreement involving access, payment, Good Faith, or any other conduct.
- Unsatisfactory performance, lack of commitment to the Project, or other unresolved threat to successful completion.
- Bankruptcy, freezing of assets, or other threat to financial or operational solvency.
Upon termination of Engagement, Consultant is released from liability for the Project, its outcomes, and consequences of the termination. This does not absolve either party of obligations related to financial commitments that remain valid, confidentiality, or other surviving terms of the Agreement.
Conflicts of Interest
Client and Consultant shall disclose, prior to Engagement or immediately upon discovery, any and all existing or potential conflicts of interest related to the proposed Project or Agreement. Minor conflicts may be managed with ongoing disclosures or other means, at the discretion of the aggrieved party. More significant conflicts may require termination of the Engagement, subject to the terms in the Termination section.
Confidentiality and Intellectual Property Rights
Client and Consultant shall maintain confidentiality of information shared in connection with Engagement. All information provided by either party shall be treated as confidential until such time that terms of Agreement explicitly permit otherwise.
Confidential information requiring protection may be transferred verbally, visually, in document form (i.e. physical hardcopy), digitally (i.e. computer files, electronic communication, etc.), or in any other format currently available or conceived of in the future, or in any artifact, physical or otherwise.
Confidential information requiring protection may include business plans, marketing strategies, product design elements, process parameters, research and development (“R&D”) activities, customer data, cost structure, or any other operational data.
Either party may make use of confidential information in subsequent Engagements if in the best interest of the owner or disclosing party and in accordance with the Agreements. At the conclusion of Agreement (i.e. completion or termination), each party shall return or destroy, at owner’s discretion, all confidential information in all forms. Either party may request or be granted permission for limited disclosure for academic or marketing purposes.
Exemptions to the rules of confidentiality include:
- Information possessed by the receiving party prior to Engagement, provided such knowledge was gained lawfully, without restriction to subsequent disclosure or violation of owner’s or disclosing party’s rights.
- Information lawfully received from a third party without restriction to subsequent disclosure or violation of owner’s or disclosing party’s rights.
- Information that is available to the public without restriction to subsequent disclosure or violation of owner’s or disclosing party’s rights.
- Information typically gained through other work, performed in a similar industry, trade, region, technology, etc. to that involved in the Engagement, without restriction to subsequent disclosure or violation of owner’s or disclosing party’s rights.
- Information independently developed without access to confidential information or violation of owner’s or disclosing party’s rights.
- Information that disclosing party has approved for subsequent disclosure, subject to any terms or limitations set by owner or disclosing party.
- Disclosure required to comply with orders from Federal, State, or local law enforcement or regulatory agencies with relevant jurisdiction.
Client and Consultant retain rights to Intellectual Property (“IP”) predating the Engagement. Rights to third-party IP used during Engagement remain with the original owners. Client and Consultant declare that such IP will be used only in accordance with owners’ rights and no claim of ownership will be made.
Consultant retains all rights to IP created in the provision of services. Consultant grants Client a royalty-free nonexclusive license to use IP included in deliverables for the purposes of continuing operations involved in the Project for the life of said operations, subject to limitations of disclosure.
Innovations and IP offered to Client, but declined, remain the exclusive property of Consultant. Consultant retains all rights to develop, market, license, sell, or otherwise disclose said IP; no license is granted to Client.
Publicity
Client grants Consultant right to identify Client in marketing or other communication. Consultant may use Client’s name, logo, facility photo, any publicly-distributed identifying artifact, or other approved artifact. If such artifacts are not readily available, Client agrees to provide artifact(s) for purposes of identification in marketing materials, including, but not limited to Consultant’s website, white papers, or journal or magazine articles. Confidentiality of Client’s sensitive information and IP shall be maintained at all times.
Client Responsibilities
To ensure a successful Engagement, Client pledges the following:
- Open communication with Consultant, ensuring timely information sharing, consistent productivity, performance to expectations, and Project success.
- Access to facilities, equipment, personnel, information, etc. required to adequately perform services set forth in Agreement.
- Safe working conditions, instructions, and special personal protective equipment (“PPE”) required for Consultant and subcontractors to perform services safely.
- Timely decisions on matters that influence the satisfactory provision of services or otherwise impact the Project.
- Acceptance of deliverables without undue delay or discord.
- Reasonable accommodation to allow correction of any defect in deliverables.
- Payment of accrued fees and expenses without undue delay or discord.
Consultant Responsibilities
To ensure a successful Engagement, Consultant pledges the following:
- Services will be rendered in a professional and workmanlike manner.
- Open communication with Client, ensuring timely information sharing, consistent productivity, performance to expectations, and Project success.
- To maintain Independent Contractor (“Contractor”) status and make no claim of employment, joint venture, or other legal entanglement with Client beyond the scope of Agreement. Consultant retains the right and obligation to direct and supervise the provision of services required by Agreement. Consultant shall make no claim of eligibility for participation in any benefits plan (e.g. insurance, bonus, 401(k), etc.) Client may offer its employees.
- Consultant has the authority and capacity to enter Agreement and is not prohibited from doing so by any other legal obligation.
- No obligation beyond the Project will be created without Client’s consent.
- Consultant shall comply with all Federal, State, and local laws of the Client’s jurisdiction in provision of services at Client’s facility.
Assignment
Neither party may assign or otherwise transfer rights or responsibilities granted or created by Agreement without prior consent of all affected parties. Consultant reserves the right to subcontract portions of the Project in order to maintain performance to expectations and fulfill obligations imposed by Agreement. Accountability shall not be delegated to any subcontractor without consent of Client.
Force Majeure
Neither party shall be liable for failure to perform in accordance with Agreement if such failure is due to causes beyond that party’s control. Such causes may include acts of police or government authority, natural disaster, terrorism, or other unavoidable interruption or suspension of operations.
In the event of an unavoidable disruption, the affected party shall notify the other of the nature and extent of the disruption. Both parties shall make all practicable efforts to minimize the impact of the disruption on the Project and to develop a new course of action, Schedule, or other required modification to the Agreement. If an acceptable recovery solution cannot be found, termination of the Engagement may be initiated by either party, subject to the terms of Agreement.
Severability
Should any provision of these Terms & Conditions, Agreement, other arrangement, or communication between Client and Consultant be found invalid, unlawful, or unenforceable, such provision shall be stricken. The validity and enforceability of the remainder of the terms, Agreement, etc. shall be unaffected by the severance.
The severed portion may be modified to bring it in compliance with applicable law. Once ratified by both parties, the modified provision becomes a component of the Agreement and is henceforth binding on both parties.
Dispute Resolution, Governing Law, and Jurisdiction
In the event of a dispute between Client and Consultant, the parties commit to earnest negotiations and all reasonable efforts to resolve the matter. If such efforts are unsuccessful, either party may initiate an Alternative Dispute Resolution (“ADR”) process (i.e. binding or non-binding arbitration) by the American Arbitration Association (“AAA”) or other mutually agreed body.
While negotiation and arbitration are preferred to litigation, neither party waives its right to seek injunctive relief should it be deemed necessary.
The Agreement between Client and Consultant and all conduct related to same shall be interpreted and enforced in accordance with the laws of the State of South Carolina (“SC”), United States of America (“USA”). The parties to the dispute consent to the exclusive venue and jurisdiction of the State and Federal Courts of South Carolina, USA.
Precedence of Agreement
Any terms of Purchase Order, other request for service, or any communication between Client and Consultant in contradiction to the Consulting Engagement Agreement shall have no force or effect until modification of the Agreement incorporates such terms by ratification by both parties. In all instances of inconsistency, the CEA shall be the ruling document.
The Agreement, incorporated documents and addenda constitute the entire agreement between Client and Consultant and supersedes all previous agreements and understandings.
Survival of Terms
Obligations created by Agreement survive the conclusion of any Engagement and remain in effect indefinitely. Exceptions are created only by superseding Agreements or as required by law.