Consulting Services Agreement
This Consulting Services Agreement (“Agreement”) is entered into by and between Collaborative Motion, (“Collaborative Motion”) and you, the individual and/or company seeking Services from Collaborative Motion (hereafter “You,” “Yourself,” and/or “Your”), effective as of the calendar date that You accept this Agreement by clicking through the applicable website button indicating your assent to this Agreement (the “Effective Date”). Collaborative Motion and You are hereafter individually referred to as a “Party” and collectively referred to as the “Parties.”
Please read the following carefully. This Agreement is a legally binding agreement by and between Collaborative Motion and You. By accepting this Agreement by means of a click-through, and/or scheduling an appointment, You signify that You have read, understand and agree to be bound by this Agreement, both on behalf of Yourself, and any applicable business through which you are directly employed that may be availing itself of the Services.
RECITALS
WHEREAS, Collaborative Motion provides services relating to holistic coaching, organization, training, mindfulness, massage, sexological bodywork, mental health well-being and yoga (the “Services”) to various individuals and/or companies;
WHEREAS, You desire to engage Collaborative Motion to provide certain Services pursuant to the terms and conditions of this Agreement; and
WHEREAS, Collaborative Motion desires, in turn, to provide such Services to You.
NOW, THEREFORE, in consideration of the mutual promises and the covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, Collaborative Motion and You hereby agree as follows:
1. Term. Unless otherwise terminated herein, this Agreement shall come into effect as of the Effective Date and shall remain in full force and effect until the last calendar date that You have scheduled a final appointment for the Services (the “Final Appointment Date”) and for three months following the Final Appointment Date (collectively, hereafter, the “Term”).
2. Termination.
2.1 Termination. Either Party may terminate this Agreement immediately in the event the other Party materially breaches any term or condition of this Agreement and fails to cure such breach within thirty (30) days after providing the other Party prior written notice of such breach. For clarity, failure by You to timely pay any and all owed Fees shall be deemed a breach of this Agreement. Additionally, You shall have the right, at any time during the Term, to terminate the Agreement for convenience by rendering thirty (30) days’ prior written notice to Collaborative Motion, but subject at all times to the terms and conditions of Section 3 below.
2.2 Effect of Termination. Upon termination or expiration of this Agreement, all Fees (as defined below) related to the Services rendered up to the date of such termination or expiration shall become immediately due and payable by You to Collaborative Motion. All provisions that by their nature should survive the expiration and/or termination of this Agreement shall survive.
3. Fees and Payment Terms.
3.1 Fees. Unless otherwise mutually agreed in writing, in consideration of the provision of the Services by Collaborative Motion, You agree to pay 100% in advance to Collaborative Motion the mutually agreed fees, costs, and expenses set forth in an invoice/ email/ payment request provided by Collaborative Motion via its booking system or the like to You prior to the commencement of the Services (collectively, the “Fees”).
3.2 The Parties agree that the provision of Fees shall be subject at all times the Cancelation Policy set forth here, the terms and conditions of which are hereby incorporated by reference in this Agreement.
4. Taxes.
4.1 All Fees and costs provided for in this Agreement are inclusive of any taxes, duties, VAT or similar charges imposed by any government.
4.2 If either Party is audited by a taxing authority or other governmental entity in connection with taxes under this Paragraph 4, the other Party shall reasonably cooperate with the Party being audited in order to respond to any audit inquiries in an appropriate and timely manner, so that the audit and any resulting controversy may be resolved expeditiously.
5. Intellectual Property Rights.
5.1 Definitions. For the purposes of this Agreement:
5.1.1 “Intellectual Property” shall mean all ideas, inventions (whether patentable or not and whether or not such inventions are described or claimed in any patent or patent application), discoveries, improvements, designs, technical or other information, and works subject to copyright, all as may be manifest in or result from specifications, manuals, reports, drawings, flow charts, diagrams, design or user documentation, notebooks, schematics, simulation data, procedures, processes, flows, presentations, video presentations, manuals or other tangible or intangible embodiments of information relating to the Services.
5.1.2 “Intellectual Property Rights” shall mean any and all worldwide rights existing now or in the future in and to the Intellectual Property, under patent law, trademark law, copyright law, moral rights law, trade secret law and any and all similar proprietary rights, however denominated, and any and all renewals, extensions and restorations thereof, now or hereafter in force and effect.
5.2 IP Ownership/ License Back.
5.2.1 You agree that Collaborative Motion owns all rights, titles and interests, including any and all Intellectual Property Rights in and to any all Services rendered under this Agreement (“Collaborative Motion IP”). To the extent, if any, that ownership in such Collaborative Motion IP does not automatically vest in Collaborative Motion, You hereby transfer and assign to Collaborative Motion all rights, title and interests which You may have or obtain in and to such Collaborative Motion IP, as well as any and all Intellectual Property Rights therein and thereto. For the avoidance of doubt, Collaborative Motion IP shall never include any of Your Personal Data (specifically including, without limitation any health-related information), ownership of which shall always remain with You. Notwithstanding the foregoing, you hereby grant Collaborative Motion the limited license right to use, access, and copy your Personal Data only for purposes of enabling Collaborative Motion to render the Services described herein.
5.2.2 During the Term of this Agreement, Collaborative Motion hereby grants You a non-exclusive, worldwide, royalty-free (i.e. paid-up), terminable, non-assignable and non-transferable license to use, access, and display the Collaborative Motion IP rendered under this Agreement to enable You to receive the Services only, and never for the purpose of marketing and/or commercializing the Collaborative Motion IP itself by You or anyone acting on Your behalf.
6. Confidentiality and Non-Disclosure.
6.1 The following shall govern the exchange of Confidential Information under this Agreement, and shall apply to Collaborative Motion and You, respectively:
6.2 For the purpose of this Agreement, “Confidential Information” shall mean any material or information (specifically including any of Your Personal Data), disclosed directly or indirectly by the disclosing party to the other party, in writing, orally or by inspection of tangible objects, and of a confidential nature relating to matters including but not limited to the financial, legal, health, and/or business concerns of the disclosing party. Confidential Information may also include information disclosed to disclosing party belonging to third parties. Confidential Information also includes (i) the existence of this Agreement, its terms and conditions and the fact that Confidential Information has been provided to the receiving party; and (ii) copies, insofar as they reflect, contain, are derived from or are developed on the basis of any such information as is specified in this clause.
6.3 Confidential Information shall not include information that the receiving party can establish to the disclosing party: (i) is in the public domain or becomes publicly known and available in the public domain after disclosure to the receiving party through no action or inaction of the receiving party; (ii) was lawfully in the possession of the receiving Party, without confidentiality restrictions, at the time of disclosure by the disclosing party; (iii) was developed independently by the receiving party without use or reference to the Confidential Information of the disclosing party, as shown by written records prepared contemporaneously with such independent development; or (iv) was received by the receiving party in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential.
6.4 The receiving party covenants to the disclosing party that it (i) shall treat all Confidential Information as private and confidential and shall safeguard it accordingly (including treating such Confidential Information with the same care as the receiving party treats its own confidential information, but in no event less than reasonable standard of care); (ii) shall use the Confidential Information only for and in connection with this Agreement.
6.5 The receiving party agrees not to disclose any Confidential Information of the disclosing party to third parties or to its employees or advisors, except to: (i) those employees and advisors of the receiving party who have executed a written non-use and non-disclosure agreement in content no less stringent than the provisions hereof and who are required to have access to such Confidential Information in accordance with this Agreement in order to render the Services; and (ii) certain certification bodies related to the provision of Services, and only then if the Confidential Information is anonymized and further provided that Collaborative Motion has entered into applicable written non-use and non-disclosure agreements with said certifying bodies that contain confidentiality provisions no less stringent than the provisions hereof.
6.6 For the avoidance of doubt, the terms and conditions of this Agreement and this Section 6 specifically apply to Collaborative Motion’s Privacy Policy, which can be found here , and the terms and conditions of which are hereby incorporated by reference. The obligations of confidentiality shall be deemed to continue in full force and effect during the Term of this Agreement and one (1) year thereafter.
7. WARRANTY.
7.1 Warranty. Collaborative Motion represents and warrants that it will use commercially reasonable efforts to perform the Services promptly, diligently, and in accordance with best business practices and to the highest professional standards for the Services which Collaborative Motion has been hired (with the level of skill, knowledge and judgment required or reasonably expected of providers of high-quality Services, and in accordance with all applicable laws, ordinances, codes). In the event of such material breach of the foregoing warranty, Collaborative Motion shall re-perform the applicable Services. If Collaborative Motion is unable to re-perform such Services, then Collaborative Motion will refund to You any pre-paid Fees paid by You to Collaborative Motion hereunder for such Services. THE FOREGOING REMEDY IS YOUR SOLE AND EXCLUSIVE REMEDY, AND COLLABORATIVE MOTION’S ENTIRE LIABILITY WITH RESPECT TO ANY BREACH OF THE FOREGOING LIMITED WARRANTY.
7.2 Limitations. Collaborative Motion will have no obligations under Paragraph 7.1 (Limited Warranty) if the breach of warranty is caused by misinformation or incomplete or false materials provided by You in the course of using the Services.
8. LIMITATION OF LIABILITY/ DISCLAIMER.
8.1 While we hope the Collaborative Motion’s Services are beneficial to you, you understand, agree and acknowledge that they may not be the appropriate solution for everyone’s needs and that they may not be appropriate for every particular situation and/or may not be a complete substitute for alternate care in every particular situation.
8.2 IF YOU ARE THINKING ABOUT SUICIDE, HAVE ANXIETY, CLINICAL DEPRESSION OR IF YOU ARE CONSIDERING HARMING YOURSELF OR OTHERS OR IF YOU FEEL THAT ANY OTHER PERSON MAY BE IN ANY DANGER OR IF YOU HAVE ANY MEDICAL EMERGENCY, YOU MUST IMMEDIATELY CALL THE APPLICABLE EMERGENCY SERVICE NUMBER AND NOTIFY THE RELEVANT MEDICAL AUTHORITIES. SEEK IMMEDIATE IN PERSON ASSISTANCE. THE SERVICES ARE NOT DESIGNED FOR USE IN ANY OF THE AFOREMENTIONED CASES AND COLLABORATIVE MOTION CANNOT PROVIDE THE ASSISTANCE REQUIRED IN ANY OF THE AFOREMENTIONED CASES.
8.3 THE SERVICES ARE NOT INTENDED FOR THE PROVISION OF CLINICAL MEDICAL DIAGNOSIS AND YOU SHOULD NOT USE THE SERVICES IF YOU NEED ANY OFFICIAL DOCUMENTATION OR APPROVALS FOR PURPOSES SUCH AS, BUT NOT LIMITED TO, COURT-ORDERED COUNSELING OR MEDICAL CONDITION CERTIFICATION. THE SERVICES ARE ALSO NOT INTENDED FOR ANY INFORMATION REGARDING WHICH DRUGS OR MEDICAL TREATMENT MAY BE APPROPRIATE FOR YOU.
8.4 DO NOT DISREGARD, AVOID, OR DELAY IN OBTAINING IN-PERSON CARE FROM YOUR DOCTOR OR OTHER QUALIFIED MEDICAL PROFESSIONAL IRRESPECTIVE OF ANY INFORMATION OR ADVICE YOU RECEIVED THROUGH COLLABORATIVE MOTIONS’ SERVICES.
8.5 YOU HEREBY RELEASE US AND AGREE TO HOLD COLLABORATIVE MOTION HARMLESS FROM ANY AND ALL CAUSES OF ACTION AND CLAIMS OF ANY NATURE RESULTING FROM THE COLLABORATIVE MOTION SERVICES, INCLUDING (WITHOUT LIMITATION) ANY ACT, OMISSION, OPINION, RESPONSE, ADVICE, SUGGESTION, INFORMATION AND/OR SERVICE OF COLLABORATIVE MOTION AND/OR ANY OTHER CONTENT OR INFORMATION ACCESSIBLE THROUGH COLLABORATIVE MOTION.
8.6 YOU UNDERSTAND, AGREE AND ACKNOWLEDGE THAT THE SERVICES AND ANY RELATED RENDERED ADVICE OR SUGGESTIONS BY COLLABORATIVE MOTION ARE PROVIDED "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, NON-INFRINGEMENT, SECURITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. THE USE OF THE SERVICES ARE AT YOUR OWN RISK. TO THE FULLEST EXTENT OF THE LAW, COLLABORATIVE MOTION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. MOREOVER, TO THE EXTENT THAT YOU AVAIL YOURSELF OF ANY YOGA SERVICES OR MASSAGE SERVICES, YOU AGREE, ACKNOWLEDGE AND UNDERSTAND THAT YOGA AND MASSAGE ARE INHERENTLY PHYSICAL ACTIVITIES, AND THAT YOU ASSUME ANY AND ALL RISKS OF PARTICIPATING IN SAID YOGA OR MASSAGE SERVICES AND COLLABORATIVE MOTION SHALL HAVE NO LIABILITY WHATSOEVER TO YOU FOR ANY AND ALL INJURIES THAT COULD OCCUR WHILE YOU PARTICIPATE IN ANY YOGA SESSIONS OR THE LIKE.
8.7 YOU UNDERSTAND, AGREE AND ACKNOWLEDGE THAT COLLABORATIVE MOTION SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM OR ELATED TO THE PROVISION OF THE SERVICES HEREUNDER.
8.8 YOU UNDERSTAND, AGREE AND ACKNOWLEDGE THAT COLLABORATIVE MOTION’S AGGREGATE CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU IN THE 3 MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM. IN THE INSTANCE THAT YOU HAVE NOT PAID ANY FEES TO COLLABORATIVE MOTION BECAUSE YOU HAVE RECEIVED CERTAIN SERVICES FROM COLLABORATIVE MOTION ON A PRO-BONO OR TRIAL BASIS, COLLABORATIVE MOTION’S AGGREGATE CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE SERVICES SHALL NOT EXCEED ONE HUNDRED EUROS (€100.00).
8.9 Applicability. THE LIMITATIONS SET FORTH IN THIS PARAGRAPH 8 (LIMITATIONS OF LIABILITY) (I) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (II) SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND (III) ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
8.10 This section 8 shall survive the termination or expiration of this Agreement.
9. Additional Terms and Conditions.
9.1 Force Majeure. Neither Party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause(s) both unforeseen and beyond its reasonable control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion, civil unrest or industrial dispute of a third Party (“Force Majeure Event”). Subject to the Party so delaying reasonably promptly notifying the other Party in writing of the reason for delay and likely duration of delay, the performance of delaying Party’s obligations, to the extent affected by the delay, shall be suspended during the period that the cause persists. Each Party shall use reasonable endeavors to avoid the effect of that cause provided that if performance is not resumed within thirty (30) days of that notice, the non-delaying Party affected by the delay shall be entitled to terminate this Agreement. Neither Party shall have any liability to the other Party in respect of the termination of this Agreement resulting from of a Force Majeure Event
9.2 Validity. If any provision (or partial provision) of this Agreement is found or held to be invalid, unlawful or unenforceable, the remaining provisions will continue in full force and effect.
9.3 Waiver. A waiver by either Party of a breach of any term or condition of this Agreement in any one instance shall be in writing and shall not be deemed as a continuing waiver or a waiver of any other or subsequent breach unless the written notice so provides.
9.4 No Assignment. You shall not assign, cede, delegate or transfer any of its rights or obligations under this Agreement without Collaborative Motion’s prior written consent.
9.5 No Partnership. The relationship of Collaborative Motion and You established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
9.6 Governing Law and Venue.
9.6.1 This Agreement shall be governed in all respects by the laws of the Netherlands without regard to conflicts of law principles. Any such proceedings shall be conducted in the English language and shall be conducted in Haarlem, the Netherlands and the Parties hereby submit to the personal jurisdiction therein and thereto.
9.6.2 The prevailing party in any dispute arising under this Agreement will be entitled to recover all of its costs and expenses from the other party, including reasonably attorneys’ and experts’ fees and costs.
9.6.3 This Agreement is not intended to, nor shall it create any rights, entitlements, claims or benefits enforceable by any person who is not party to it. Accordingly, no person shall derive any benefit or have any right, entitlement or claim in relation to this Agreement by virtue of the Contracts (Rights of Third Parties) Act 1999. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement.
9.7 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties concerning the subject matter herein and supersedes any previous written or oral agreements between them relating to such subject matter. Any modification to this Agreement’s shall be in a signed writing by both Parties.
9.8 Appendices. Any appendices (e.g. appendices, schedules, exhibits, attachments, etc) attached to this Agreement shall be incorporated by reference into this Agreement and constitute an integral part of this Agreement.
9.9 Notices. The Parties choose their respective addresses as first set forth hereon as the addresses at which they will accept service of all documents and notices relating to this Agreement. Any notice to be given by one Party to the other Party pursuant to this Agreement shall be given in writing in the English language by email, prepaid registered post, facsimile or shall be delivered by hand. The Parties agree to promptly give each other notice of any address change.
