YOU HAVE BEEN DIRECTED TO THIS PAGE TO ACCEPT THE FOLLOWING TERMS AND CONDITIONS IN RELATION TO A PRODUCT OR SERVICE AGREEMENT THAT YOU ARE COMPLETING WITH ELLISON HELMSMAN INC.

REVIEW THE TERMS OF THE CONTRACT THOROUGHLY:

These terms and conditions are related to the service agreement contract for consulting services provided by Ellison Helmsman Inc. The terms and conditions are referenced and incorporated as a required step in an online digital form that requires an authorized digital signature. These terms and conditions are incorporated into the following specific online digital form: https://form.jotform.com/241676868364169

Throughout this contract "CONTRACTOR" will mean Ellison Helmsman Inc. and "CLIENT" will mean the person completing the form or the company on behalf of which the form is being completed.

WHEREAS, the parties desire to enter into an agreement for the furnishing of certain services known as business consulting by the Contractor to CLIENT. 

NOW THEREFORE, in consideration of the premises, the parties agree as follows:

SERVICES

CLIENT engages Contractor as an independent contractor to perform consulting services (the “Services”), for CLIENT and its clients as are mutually agreed upon by Contractor and CLIENT or others whom CLIENT may designate, at mutually convenient times and described in the section of this form called “Pricing and Scope of Services”.  Contractor agrees to perform the Services to the general satisfaction of CLIENT and that the services will be performed in a workmanlike manner, in accordance with industry standards and in compliance with all applicable laws. To the extent required by CLIENT, the Services shall be performed in association with and, as to the result but not the method or manner of performance, subject to the direction of CLIENT or others whom CLIENT may designate.

PERIOD OF PERFORMANCE AND SCHEDULE

A.   The term of this Contract is defined by the section of the form being completed by the client entitled "Pricing and Scope of Services" until termination by CLIENT or CONTRACTOR.

B.   To the extent that a schedule for performance is so set forth by CLIENT or its client, time is of the essence with respect to the Contractor's performance.

SUBCONTRACTS

The Contractor agrees that Consultant will provide the Services described herein. Contractor may not assign this Contract or subcontract any of the Services without the prior written consent of the CLIENT.  CLIENT may not re-assign this Contract without the written consent of the Contractor. Contractor may have its own employees provide some portion of the services described in the scope of services and the CLIENT consents to the use of employees in fulfillment of services provided to the extent that performance by Josh Henderson is necessary to fufill the specific services described.

TERMINATION

A.   CLIENT or Contractor may, for any reason or for its convenience, terminate performance hereunder, in whole or in part, upon fifteen (15) days written notice by either party. 

B.   In the event of such termination, the payment due to Contractor shall be that provided for in the pricing and scope of services section of this form up to and including the effective date of the termination and not previously paid, and this shall constitute CLIENT's only obligation to the Contractor by reason of such termination and to the extent of such term if the termination is partial as provided below.

C.   In the event of a partial termination, the Contractor, shall proceed with the performance of such part of the Services as is not terminated, and the amount payable under this Contract shall be reduced, as determined by CONTRACTOR, to reflect the performance to be continued.

PRICE AND PAYMENT

A.   For satisfactory performance of the Services by Contractor, the Contractor shall be paid at the rate described in section of the form being completed entitled "Pricing & Scope of Services”.

B.  Contractor will make available to client the means and process necessary to request progress reports at the client’s initiative.

C.   All taxes of every nature and kind, including, without limitation, franchise, net or gross income, license, occupation, or property taxes, shall be the responsibility of the Contractor, and CLIENT shall have no obligation to the Contractor therefor.  The Contractor shall report and pay, as an independent contractor, all taxes applicable to amounts received from CLIENT hereunder.

E.   The Contractor shall keep a record of services performed on behalf of CLIENT.  CLIENT shall have the right to examine and approve this record upon request. The Contractor shall preserve these records for two years from the date of the payment of the last invoice hereunder. CLIENT shall have the right to recover from Contractor any overbilling.

F.    In the event that pricing has been determined on a subscription basis, the payment of monthly invoices is not subject to dispute on the grounds of the amount of work or services performed in the monthly subscription period. 

NO REFUND OF FEES PAID FOR SERVICE

Due to the potential life-time value to the client of the knowledge shared and the solutions provided by the contractor, refund of fees previously paid for services under this agreement are not permitted. Where the client feels that a refund is justified, the client is still permitted to submit a request for refund in writing by email to the notice email provided in this agreement. The request should include a specific amount requested and a detailed explanation of the client's perceived grounds justifying approval of the refund request. After receiving the request for refund, the contractor will send a request to schedule an in-person conference to review and approve or deny the request for refund. Requesting a refund in any other manner or failing to schedule or attend the in-person review is an immediate breach of this agreement and governed by the terms of this agreement related to breach of agreement. 

REPRESENTATIONS

The Contractor represents, warrants and covenants that the Contractor (A) is not restricted in any way, by agreement or otherwise, from entering into this Contract and performing the Services, (B) will, by entering into this Contract or providing the Services, not breach any agreement or other obligation to keep in confidence, or to refrain from using, the confidential, proprietary or trade secret information of a former employer, another client or any other person, and will not use any such information in connection with the Services, (C) will perform Services that will be the work product of the Contractor or its Consultant  which will constitute original work of the Contractor or its Consultant, and will not infringe any copyright, trade secret, contract or other intellectual property, proprietary or personal rights of any person, and will be free of any liens, encumbrances or other claims, (D) has not and will not enter into any agreement or assume any obligation which is inconsistent with Contractor’s obligations under this Contract.

CONFIDENTIALITY OF INFORMATION

A.   The Contractor recognizes that if CLIENT is completing this form on behalf of a business that CLIENT is in the business indicated on this form and related services to its clients and has, owns or licenses, and during the term of this Contract will have, own or license, confidential information, proprietary information, intellectual property and trade secrets (collectively "Confidential Information"), including, but not limited to client lists and contact information; employee lists, contact and personnel information; descriptions of services provided to clients; financial and operating data, reports, and information; procedural and personnel manuals; referral sources and marketing methods, strategies, and plans; client billing and payment information; computer program source codes, time recording and billing software; software purchased and licensed by third parties to CLIENT; information systems operating methodologies and network design; spreadsheets and forms created for CLIENT’s use; identification of and agreements with vendors, licensors or other persons, that are not generally known to the public; and summaries, reports and analyzes produced, prepared or made by or for CLIENT which contain or reflect the items or information hereof. For purposes of this Contract, Confidential Information does not include publicly known information or information, expertise, knowledge or training known or received by CLIENT prior to providing Services under this Contract or otherwise to CLIENT and its clients.

B.   The Contractor and its Consultant shall use best efforts to prevent the disclosure and the unauthorized reproduction, destruction or use of the Confidential Information, which efforts shall be no less than those used by the Contractor or its Consultant to protect the Contractor or its Consultant’s own confidential information.

C.   The restrictions set forth above shall apply, notwithstanding the expiration of the Term, Renewal Term or the termination of this Contract, until such time as (1) the Contractor or Consultant can establish that such information is known to the general public provided such knowledge is not due to acts or omissions of the Contractor or its Consultant, (2) with respect to a client or customer of CLIENT, the time that Contractor or Consultant is separately supplied with Confidential information by such client or customer, (3) upon Court Order, proper law enforcement request or as compelled by any ethical obligation governing certified public accountants.  If reasonably possible, Contractor shall provide CLIENT notice prior to making any disclosure under the foregoing exceptions.

D.   The foregoing notwithstanding, the parties to this Contract will abide by all instructions of a Client with respect to any proprietary or confidential information of a Client to the extent that the same are not inconsistent with any professional obligation established by rule, statute or licensing requirement. 

EMPLOYEE AND CLIENT RELATIONSHIPS

The Contractor acknowledges that CLIENT’s relationships with its clients, partners, employees and contractors are valuable business assets of CLIENT.  The Contractor agrees that, during the period of the Services and for one year thereafter, the Contractor, including its Consultant, employees or other agents, shall not, directly or indirectly (for the Consultant, a third party or otherwise) divert or attempt to divert from CLIENT any such client, partner, employee or contractor, through solicitation or otherwise.  This provision shall apply only to clients, partners, employees or contractors with whom Contractor or Consultant had contact by virtue of providing the Services or by virtue of this Contract. Further, in the event that circumstances arise where Contractor or Consultant desires to engage in the activity prohibited above after the one year restriction, CLIENT, Contractor and Consultant mutually agree that Contractor and Consultant will be obligated to seek written consent from CLIENT to engage in the previously prohibited activity and understand that Contractor or Consultant’s failure to do so could result in CLIENT’s claim for damages arising from Contractor’s or Consultant’s activity that deviates from this agreement.

RETURN OF PROPERTY

On termination of the Services, or at any other time at CLIENT’s request, the Contractor or its Consultant shall deliver immediately to CLIENT all tangible property belonging to CLIENT and all tangible material containing or constituting Confidential Information including any copies, whether prepared by the Consultant or others except that Contractor will retain such documentation that may be required to properly document work performed as required by any licensing or professional authority.

TERMINATION OF ACCESS POINTS

Upon termination of Services, it is the responsibility of the Client to cause any points of access provided to Contractor to be removed, changed, or updated to restrict Contractor from ongoing access. Contractor has no obligation to aid or assist the client in removing, changing, or updating points of access other than where the Contractor and not the client possesses the information necessary to remove, change, or update the point of access. For the purposes of this clause, points of access is intended to mean usernames, passwords, and other login information related to online accounts, cloud storage accounts, sharing of cloud-based information, social media platforms, or online platforms or accounts in any other form than as tangible material. 

COMPLIANCE WITH LAWS

The Contractor shall, at its own expense, comply with all laws, rules and regulations, and assume all liabilities or obligations imposed by such laws, rules and regulations, with respect to the Contractor’s performance hereunder.

INDEMNITY

To the extent not precluded by law, the Consultant shall indemnify and hold harmless CLIENT and its partners, agents, representatives and employees from and against any and all liability, damages, losses, claims, demands, judgments, costs and expenses of every nature and kind, by reason of injury to or death of any person or damage to or destruction of property, arising out of or incidental to or in any way resulting from the acts or omissions, whether negligent or otherwise, of the Consultant, and his or her employees, subcontractors, or agents, if any, in performance under this Contract. The Contractor and Consultant shall not be responsible for any such losses, liabilities, claims, judgments, costs, demands and expenses caused by the sole or concurrent negligence or willful misconduct of CLIENT, its partners, agents, representatives or employees. In the event a claim is filed against CLIENT for which the Consultant is to be responsible under this provision, CLIENT will promptly notify the Consultant of such claim.

To the extent not precluded by law, CLIENT shall indemnify and hold harmless Contractor and Consultant and their partners, agents, representatives and employees from and against any and all liability, damages, losses, claims, demands, judgments, costs and expenses of every nature and kind, by reason of injury to or death of any person or damage to or destruction of property, arising out of or incidental to or in any way resulting from the acts or omissions, whether negligent or otherwise, of CLIENT, and its employees, subcontractors, or agents, if any, in performance under this Contract.  CLIENT shall not be responsible for any such losses, liabilities, claims, judgments, costs, demands and expenses caused by the sole or concurrent negligence or willful misconduct of Contractor or Consultant, their partners, agents, representatives or employees.  In the event a claim is filed against Consultant or Contractor for which CLIENT is to be responsible under this provision, Contractor or Consultant will promptly notify CLIENT of such claim.

INDEPENDENT CONTRACTOR STATUS

The Contractor shall at all times be deemed to be performing as an independent contractor and not as an agent or employee of CLIENT.  The acts and omissions of each party’s respective employees, agents, and contractors shall be deemed to be those of such party only and not of the other party. This Contract shall not be deemed to create any partnership, joint venture, agency or similar relationship between CLIENT and the Contractor.  Contractor and CLIENT agree and acknowledge that no fiduciary relationship or obligation will result from the provision of services under this agreement. Each party shall be solely responsible for the payment of compensation of its own employees, agents, and contractors performing in connection with this Contract.  Neither party shall be responsible for payment of workers’ compensation, disability benefits, unemployment insurance, and any other employee benefit, including, but not limited to, pension, 401(K), medical, dental, and life insurance, paid time off, and holidays, or for withholding income taxes and social security for any employee, agent or contractor of the other party.  If, contrary to the intent of the parties, it is determined that an employment relationship exists between the Contractor, including its employees, agents, and contractors, and CLIENT, the Contractor, for itself and on behalf of any and all individuals and entities under the direct or indirect control of the Contractor or its Consultant, hereby irrevocably waives the right to participate in and earn or become entitled to any and all employee benefits of CLIENT with respect to the performance of the Services hereunder.

DISPUTE RESOLUTION

Both the CLIENT and the CONTRACTOR specifically agree that litigation as a means of dispute resolution would cause unnecessary expense and delay. As such, both CLIENT and CONTRACTOR waive the right to file suit as a means of resolving any dispute related to this service agreement. Any dispute arising out of or related to this consulting agreement, including but not limited to any breach of this agreement, shall be resolved in accordance with the following procedure:

A.    Written Notice: Either party shall give written notice to the other party of the dispute. The notice shall include a brief description of the dispute and a request for resolution. Within 30 days of receipt of the notice, the parties shall meet in good faith to attempt to resolve the dispute.

B.    Mediation: If the dispute is not resolved within 30 days of the written notice, the parties shall attempt to resolve the dispute through mediation. To initiate mediation, the disputing party will send notice of request to mediate to:

Javier Lomeli
Brightview Coaching
info@brightviewcoaching.com

CLIENT and CONTRACTOR will equally split the mediation fee charged by Brightview Coaching for the mediation process. Both CLIENT and CONTRACTOR agree to provide timely responses to the mediator to facilitate the timeliest resolution of the dispute possible. 

C.    Binding Arbitration: If the dispute is not resolved through mediation, the parties shall submit the dispute to binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration shall take place in the city where the consulting services were performed, unless the parties agree otherwise. The decision of the arbitrator shall be final and binding on the parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with the arbitration.

This dispute resolution clause shall survive the termination or expiration of this consulting agreement. The parties acknowledge and agree that this dispute resolution clause constitutes a material term of this consulting agreement and that failure to comply with this clause shall constitute a material breach of this agreement.

NON-DISPARAGEMENT

The Client agrees not to make any disparaging remarks, comments, or statements, whether written or oral, to any third party, regarding the Consultant, the results achieved or the services rendered under this Agreement. This obligation shall survive the termination or expiration of this Agreement for a period of 12 months. The Consultant agrees to use reasonable efforts to prevent any disparaging remarks, comments, or statements by its employees, agents, or representatives about the Client.

The Client and the Consultant agree that any breach of this clause shall constitute a material breach of this Agreement, and that the non-breaching party shall be entitled to injunctive relief and damages, including reasonable attorneys' fees and costs, as a result of such breach.

This clause does not prohibit either party from providing truthful and accurate information in response to a subpoena, court order, or other legal process. This clause does not prevent either party from making remarks of any nature to a party with which the party has a contractual and confidential relationship including but not limited to attorneys, accountants, or other professionals who rely on complete information to provide the services they have been retained to provide.

The Client and the Consultant acknowledge and agree that this non-disparagement clause is a material term of this Agreement and that any failure to comply with this clause may cause irreparable harm to the non-breaching party, for which there is no adequate remedy at law. Therefore, the parties agree that the non-breaching party shall be entitled to seek injunctive relief and other equitable remedies in the event of any breach of this clause.

The Client and the Consultant further agree that this non-disparagement clause is reasonable and necessary to protect the goodwill and reputation of both parties, and that it is not intended to prevent either party from providing honest and constructive feedback in a professional manner.

ACTION UPON BREACH OF AGREEMENT

Where either the contractor or client breaches the agreement, the non-breaching party will notify the breaching party of their breach in writing by email to the email address provided in this agreement. The non-breaching party has 30 days from the date of actual notice of breach to notify the breaching party. After notice of breach, the party in alleged breach will schedule an in-person review with the notifying party. At the time of the in-person review, a decision will be made to terminate the agreement, enforce performance, perform alternate service, amend the agreement, or pursue alternative dispute resolution. Any modifications or amendment to the original service agreement must be in writing and signed by CLIENT.

 APPLICABLE LAW

This contract shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of Texas. 

CHOICE OF LAW AND VENUE

This agreement shall be deemed to have been made in the State of Texas and the validity of this agreement, its construction, interpretation and enforcement, and the rights of the parties hereunder. The parties agree that all actions or proceedings arising in connection with this agreement may be tried and litigated in the jurisdiction agreeable to the parties and where there is no agreement by the parties shall be tried and litigated in the state and federal courts located the county wherein the Client’s principal place of business is registered. Consultant waives any right it may have to assert the doctrine of forum non conveniens or to object to such venue and hereby consents to any court-ordered relief. 

ENTIRE AGREEMENT

Except as herein expressly provided, this Contract constitutes the entire understanding between the parties hereto with respect to the subject matter hereof and shall supersede all previous negotiations, commitments, understandings and agreements.

NOTICES

A.   All notices or requests required to be given under this Contract and all other communications related to this Contract shall be in writing and shall be deemed to have been duly given if personally delivered, sent by overnight courier or mailed, first class, by registered or certified mail return receipt requested, addressed as follows, and shall be effective when received.

Notice by email to Ellison Helmsman Inc. is by email to: info@ellisonhelmsman.com

Notice by regular mail to Ellison Helmsman Inc. is by mail to:

Ellison Helmsman Inc.
1116 Santa Fe Street
Corpus Christi, Texas 78404

Notices by email or mail to Client are to the addresses provided in the form on which these terms and conditions are referenced. 

B.   Either party may change such address, designation, or title of the individuals by written notice issued and delivered as above.

MODIFICATIONS

Except as expressly provided herein, no modifications to this Contract shall be valid unless made in writing and signed by a duly authorized representative of CLIENT and Contractor, and by Consultant and neither the acquiescence in any performance at variance to the provisions of this Contract nor the failure to exercise any right or enforce any obligation hereunder shall be deemed a modification of this Contract. 

SOLE RESPONSIBILITY OF CLIENT

CLIENT AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES UNDERSTAND AND HAVE HAD THE OPPORTUNITY TO REVIEW THIS CONSULTING SERVICES AGREEMENT AND UNDERSTAND THAT THE CLIENT THROUGH ITS AGENTS, EMPLOYEES AND REPRESENTATIVE RETAIN THE SOLE ABILITY TO AUTHORIZE, IMPLEMENT, AND USE THE RECOMMENDATIONS OF CONTRACTOR AND ITS EMPLOYEE, CONSULTANT. IT IS FURTHER UNDERSTOOD THAT NEITHER THE CONTRACTOR NOR CONSULTANT OFFER LEGAL ADVICE AND THAT ANY RECOMMENDATIONS SHOULD BE REVIEWED BY THE CLIENT’S OWN LEGAL COUNSEL. CLIENT UNDERSTANDS THAT ENTERING THIS AGREEMENT IS NOT CONTINGENT UPON THEIR ELECTION TO HAVE ANY INFORMATION, ADVICE, RECOMMENDATIONS PROVIDED BY CONTRACTOR OR CONSULTANT REVIEWED BY AN ATTORNEY.