CONSULTING SERVICES AGREEMENT SELLING CARS THROUGH CONVERSATIONS
- 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’ online video training modules; (ii) quizzes; (iii) Learning Management System (“LMS”) access for managers and salespeople; (iv) LMS reporting; (v) manager and salesperson
- TERM. The Term of this Agreement shall be for a period of 3 months from the Effective Date (“Term”). The Agreement may be terminated by either Dealership or EDS at any time, with or without cause, upon thirty (30) days’ prior written notice to the other
- 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 the number of participants in the Dealership enrolled in the Program on a “one rooftop”
Dealership hereby consents to the automatic debit of the Program Fee for the Term pursuant to Exhibit “A”, attached hereto 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.
- 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
5. CONFIDENTIALITY / EDS INTELLECTUAL PROPERTY.
- Confidential Information / EDS Information. EDS expressly undertakes to retain in confidence all information and know-how transmitted to EDS by Dealership that Dealership 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 or confidential information or data relating to Dealership and its operations, employees, products or services, clients, customers or potential customers. Confidential Information includes: (i) all information of a business nature relating to Dealership’s assets, liabilities, credit programs, customers or other business affairs disclosed to EDS by Dealership or disclosed in connection with this Agreement, or known by EDS as a result of providing the Program. Dealership shall treat all designs, processes, drawings, plans, guidelines, diagrams, inventions and techniques provided by EDS confidential, including information and transmitted to by EDS to Dealership that EDS designates as proprietary and/or confidential or that which EDS has not disclosed to the public (“EDS Information”) as strictly confidential and will not use or disclose EDS Information exceptto its agents and
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.
- Protection of The parties 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 parties may disclose the other party’s Confidential Information or EDS Information to employees, consultants, or third parties on a need-to-know basis. EDS shall use the Confidential Information solely for purposes of carrying out its obligations under this Agreement and not for any other purpose, and EDS shall return all copies, notes, packages, diagrams, computer memory media and all other materials containing any portion of the Confidential Information to the Dealership upon its request. Dealership shall not sell, transfer orotherwise 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.
- 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 –
- The parties agree to indemnify and hold the other harmless from any and all actions, causes ofaction, claims, demands, costs, liabilities, expenses, infringement and damages (including without limitation reasonable
attorneys’ 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. EDS agrees to indemnify and defend Dealership from any Losses arising out of or in connection with its misuse or disclosure of Dealership Confidential Information or its employees or agents to whom EDS discloses Dealership Confidential Information. Dealership agrees to indemnify and defend EDS from any Losses arising out of or in connection with its misuse or disclosure of EDS Information or its employees or agents to whom Dealership discloses EDS Information.
- TERMINATION & CANCELLATION. Dealership shall provide advanced written notice to EDS of any election toterminate this Agreement prior to EDS granting access to Dealership of the Program, or pursuant to Paragraph 2 above, or shall otherwise pay to EDS all costs incurred by EDS up to and including the date such notice of termination is delivered to EDS, plus the total amount due for the Program Fee for the Term under this Agreement. Paragraphs 5, 6, and 8 of this Agreement shall survive
- Governing Law/Venue/ Attorneys’ Fees. This Agreement shall be governed by the laws of the State of Florida, and Dealership consents to jurisdiction and venue in the state and federal courts sitting in Miami-Dade County, Florida. 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’
- No Offer/ Entire Agreement/ Amendments. This Agreement does not constitute an offer by EDS and it shall not be effective until signed by both 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.
- This Agreement may not be assigned by either party without the non- assigning party’s prior written consent.
- Notices. All notices and requests in connection with this Agreement shall be deemed given as of the day they are received either electronically (e.g. fax, e-mail), by messenger, delivery service, or in the United States mails, postage prepaid, certified, or registered, return receipt
- Marketing/Client EDS may identify Dealership as a client in its marketing materials and client lists unless EDS receives a good faith objection to such use of its name.
- 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.
- 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
- 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
- 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
- Equal Weight. This Agreement shall not be construed more strongly against either party regardless of who ismore responsible for its
- 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 Such curtailment may commence as quickly as necessary to ensure full compliance with applicable law, regulation, regulatory mandate 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.
- Headings. The headings that appear in this Agreement are inserted for convenience only and do not limit or extend its
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective Date set forth above