CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement (the “Agreement”) is made and entered into as of 2022 (the “Effective Date”) by and between (“Dealership”) and e-Dealer Solutions, Inc (“EDS”) with an address of 1975 19th Street, Suite 5077, Denver, CO 80202 for the Consulting Services of EDS with respect to the Program, “Level Up Program” (the “Program”). EDS and Dealership agree that they may be referred to individually as a “Party” and collectively as the “Parties”.
1. SERVICES. EDS shall provide Dealership with the Program which includes: (i) immediate access, twenty four (24) hours a day and seven (7) days a week, to EDS’ twenty-four (24) online video training modules; (ii) Learning Management System (“LMS”) access for salespeople; (iii) one-hour weekly training program each Tuesday at 12pm EST with Jen Suzuki via the ZOOM meeting platform (iv) debrief Zoom calls via private user groups on an ongoing basis; (v) a new sales tool texted to each participant weekly; and (vi) ability to join a new sales community application still in its beta stage and not available to anyone not participating in this program and the ability to win weekly prizes.
2. TERM. The Term of this Agreement shall be from the time this Agreement is signed until the end of the month after thirty days have passed from the Effective Date (“Term”). Any partial month during this time will be billed on a pro-rated basis. The Agreement will be automatically renewed for additional one-month periods unless it is terminated by either Dealership or EDS at any time, with or without cause, upon thirty (30) days’ prior written notice to the other Party with the termination being effective on the last day of the month following the end of the 30 days’ notice.
3. COMPENSATION. In consideration for the Program, Dealership shall pay EDS the following monthly fee per each month the Dealership is enrolled in the Program (“Program Fee”) during the Term. The Program Fee is based on a “one rooftop” basis. Dealership hereby consents to the automatic debit of the Program Fee for the Term pursuant to Exhibit “A”, attached here to and incorporated herein by this reference. The Program Fee shall be automatically deducted on a monthly basis and shall commence one (1) week from the Effective Date and continue on a monthly basis thereafter during the Term, unless terminated according to the provisions of Paragraph 2 above. The Program Fee is as follows:
- For one dealership: $1,499.00 per month
- For two dealerships: $1,449.00 per month for each dealership (discount of $50 per month per dealership)
- For three dealerships: $1,399.00 per month for each dealership (discount of $50 per month per dealership)
- For four dealerships: $1,349.00 per month for each dealership (discount of $50 per month per dealership)
For more than five dealerships, each dealership will receive a monthly discount of $200.00 off the monthly price.
4. USERS. Dealership agrees and acknowledges that it will only have employees and agents that are directly employed/contracted by Dealership use the Program or any portions thereof that are located at the location that the Dealership has contracted for. Dealership cannot allow employees and/or agents of other locations to use the Program or any portion thereof unless Dealership has paid for that location to also use the Program.
5. RELATIONSHIP BETWEEN PARTIES. This Agreement does not create an agency, employment, partnership, or joint venture relationship between the Parties. Each Party is independent of the other, and neither Party has authority to bind, enter into agreements, or incur obligations or liabilities on behalf of the other. EDS shall not be considered an employee of Dealership for any reason, including benefit programs, bonuses, income tax withholding, unemployment benefits, disability benefits, employment taxes or workman’s compensation insurance. Each Party shall be solely responsible for paying its own expenses, debts, accounts, obligations, liabilities, employee’s workers compensation, and taxes incurred in connection with this Agreement.
6. CONFIDENTIALITY INFORMATION.
5.1 Confidential Information. Each Party (the “Receiving Party”) expressly undertakes to retain in confidence all information and know-how transmitted to the other Party (the “Disclosing Party”) designates as proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of Confidential Information except under the terms and during the existence of this Agreement. Confidential Information means all proprietary, secret, confidential information or data relating to the Disclosing Party and its operations, employees, products or services, clients, customers, or potential customers. Confidential Information includes: (i) all information of a business nature relating to the Disclosing Party’s assets, liabilities, credit programs, customers or other business affairs disclosed to the Receiving Party. The Receiving Party shall treat all designs, processes, drawings, plans, guidelines, diagrams, inventions, and techniques provided by the Disclosing Party as confidential, including information and transmitted to by Disclosing Party to Receiving Party that the Disclosing Party designates as proprietary and/or confidential or that which the Disclosing Party has not disclosed to the public. Further, Dealership agrees all information disclosed by EDS as part of the Program is Confidential Information (also referred to specifically as “EDS Information”) and Dealership will not use or disclose EDS Information except to its agents and employees who are authorized to such information under this Agreement. Confidential Information and EDS Information shall not include any information that: (i) is or subsequently becomes publicly available without the receiving Party’s breach of any obligation owed to the disclosing Party; (ii) became known to the other Party from a source other than the disclosing Party and other than by a breach of an obligation of confidentiality owed to the other Party; or (iii) is independently developed by the receiving Party. The Party’s obligation under this Paragraph with respect to any particular information shall extend to the earlier of such time the information is publicly available through no fault of the receiving Party or three (3) years following termination of this Agreement.
5.2 Protection of Information. The Receiving Party shall take responsible security precautions, at least as great as the precautions it takes to protect its own confidential information, but not less than a reasonable degree of care, to keep confidential the Confidential Information and EDS Information. The Receiving Party may disclose the other Party’s Confidential Information or EDS Information to employees, consultants, or third parties on a need-to know basis. The Receiving Party shall use the Confidential Information solely for purposes of carrying out its obligations under this Agreement and not for any other purpose, and the Receiving Party shall return all copies, notes, packages, diagrams, computer memory media and all other materials containing any portion of the Confidential Information to the Disclosing Party upon its request. Dealership shall not sell, transfer, or otherwise convey to any person or entity the EDS Information unless the person or entity receiving the EDS Information is an affiliated entity which shares common ownership and management with Dealership.
5.3 Intellectual Property. Dealership hereby acknowledges that EDS owns all material, and all aspects of the Program, which constitutes copyrighted material. Infringement by Dealership of EDS’ copyrighted material shall result in an action for copyright infringement, actual damages, statutory damages up to One Hundred Fifty Thousand Dollars ($150,000), injunctive relief, costs and attorney’s fees, potential criminal infringement, and other relief available to EDS as set forth in 17 USC § 501 – 506.
7. INDEMNITIES. The Parties agree to indemnify and hold the other harmless from any and all actions, causes of action, claims, demands, costs, liabilities, expenses, infringement, and damages (including without limitation reasonable attorney fees) (“Losses”) arising out of or in connection with any claim arising from the negligence or willful misconduct of the other Party in connection with this Agreement, including, but not limited to any Losses arising out of or in connection with its misuse or disclosure of Confidential Information or a Receiving Party’s employees or agents of the Disclosing Party’s Confidential Information.
8. TERMINATION & CANCELLATION. Either Party may terminate this Agreement with thirty (30) days written notice to the other Party with the termination being effective on the last day of the month after the thirty-day notice period has passed. Paragraphs 5, 6, and 8 of this Agreement shall survive termination. Dealership agrees and acknowledges that it must notify EDS of termination of this Agreement to terminate the Agreement, non-use/non-participation in the Program by Dealership, its agents or its employees will not be seen as termination of this Agreement unless notification has been sent to EDS.
9. FORCE MAJEURE. The Parties agree and acknowledge that no Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) control, including, but not limited to, the following force majeure events (“Force Majeure Events”):(a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law, including government “shutdowns” or similar orders; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) failure of internet services and (j) shortage of adequate power or transportation facilities. The Impacted Party shall give Notice within 1 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 14 days following Notice given by it, the other Party may thereafter terminate this Agreement upon Notice. The Parties agree that due to the nature of the Services, if Jen Suzuki is ill or unable to perform services personally, she may at her sole discretion either provide a substitute party with qualifications to provide the services until she is able to resume services or may reschedule the services to a date when she is able to resume the services.
8.1 Governing Law/Venue/ Attorneys’ Fees. This Agreement shall be governed by the laws of the State of Colorado without regard to any conflict of law statutes, and Dealership consents to jurisdiction and venue in the state courts sitting in Denver, Colorado. If either EDS or Dealership employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its costs, including reasonable attorneys’ fees.
8.2 No Offer/ Entire Agreement/ Amendments. This Agreement does not constitute an offer by EDS and it shall not be effective until signed by both Parties. This Agreement constitutes the entire agreement between the Parties with respect to the Program, the Program Fee, the Term, and all other subject matter hereof and merges all prior and contemporaneous communications. It shall not be modified except by written agreement dated subsequent to the Effective Date and signed on behalf of EDS and Dealership by their respective duly authorized representatives.
8.3 Assignment. This Agreement may not be assigned by either Party without the non-assigning Party’s prior written consent.
8.4 Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are received either electronically only with a return receipt or acknowledgement of receipt, by messenger, delivery service, or in the United States mails, postage prepaid, certified, or registered, return receipt requested.
8.5 Marketing/Client Lists. EDS may identify Dealership as a client in its marketing materials and client lists unless Dealership receives a good faith objection to such use of its name.
8.6 Waiver. Neither Party shall, by the mere lapse of time, without giving notice or taking other action, be deemed to have waived any of its rights under this Agreement. No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of this Agreement.
8.7 Force Majeure. Neither Party shall be liable for any loss or damage due to causes beyond its control, including earthquake, war, fire, flood, power failure, telecommunication failure, acts of God or other catastrophes.
8.8 Authority. Each Party ,and each person signing on behalf of a Party, represents and warrants that they have the full legal capacity and authority to enter into and perform the obligations of this Agreement without any further approval.
8.9 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter of this Agreement, and all prior agreements, understandings and representations are canceled in their entirety.
8.10 Equal Weight. This Agreement shall not be construed more strongly against either Party regardless of who is more responsible for its preparation.
8.11 Conflict of Laws. If there is a conflict between a part of this Agreement and any present or future law, regulation or other regulatory mandate or requirement, the part of this Agreement that is affected shall be curtailed only to the extent necessary to bring it within the requirements of the law, regulation, regulatory mandate, or requirement. Such curtailment may commence as quickly as necessary to ensure full compliance with applicable law, regulation, regulatory man date or requirement. Furthermore, in that event, the Parties agree to negotiate in good faith to amend this Agreement in such a manner as will provide each Party with the same economic benefit while still complying with all applicable laws and regulations.
8.12 Headings. The headings that appear in this Agreement are inserted for convenience only and do not limit or extend its scope.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the Effective Date set forth above.