XI. Return of Records. Upon termination of this Agreement, the Business Consultant shall deliver all records, notes, and data of any nature that are in the Business Consultant's possession or under the Business Consultant's control and that are of the Client's property or relate to Client's business.
XII. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
XIII. Independent Contractor Status. The Business Consultant, under the code of the Internal Revenue (IRS), is an independent contractor and neither the Business Consultant's employees or contract personnel are, or shall be deemed, the Client's employees. In its capacity as an independent contractor, the Business Consultant agrees and represents:
a.) Business Consultant has the right to perform Services for others during the term of this Agreement;
b.) Business Consultant has the sole right to control and direct the means, manner, and method by which the Services required under this Agreement will be performed; Business Consultant shall select the routes taken, starting and ending times, days of work, and order the work that performed;
c.) Business Consultant has the right to hire assistant(s) as subcontractors or to use employees to provide the Services under this Agreement.
d.) Neither Business Consultant nor the Business Consultant's employees or personnel shall be required to wear any uniforms provided by the Client;
e.) The Services required by this Agreement shall be performed by the Business Consultant, Business Consultant's employees or personnel, and the Client will not hire, supervise, or pay assistants to help the Business Consultant;
f.) Neither the Business Consultant nor the Business Consultant's employees or personnel shall receive any training from the Client for the professional skills necessary to perform the Services required by this Agreement; and
g.) Neither the Business Consultant nor Business Consultant's employees or personnel shall be required by the Client to devote full-time to the performance of the Services required by this Agreement.
XIV. State and Federal Licenses. The Business Consultant represents and warrants that all employees and personnel associated shall comply with federal, state, and local laws requiring any required licenses, permits, and certificates necessary to perform the Services under this Agreement.
XV. Payment of Taxes. Under this Agreement, the Client shall not be responsible for:
a.) Withholding FICA, Medicare, Social Security, or any other Federal or State withholding taxes from the Business Consultant's payments to employees or personnel or make payments on behalf of the Business Consultant;
b.) Making Federal and/or State unemployment compensation contributions on the Business Consultant's behalf; and
c.) Making payments of taxes incurred while performing the Services under this Agreement, including all applicable income taxes.
XVI. Employees' Compensation. The Business Consultant shall be solely responsible for the following:
a.) Employee Benefits. The Business Consultant understands and agrees that they are solely responsible and shall be liable to all benefits that are provided to their employees, including, but not limited to, retirement plans, health insurance, vacation time-off, sick pay, personal leave, or any other benefit provided.
b.) Unemployment Compensation. The Business Consultant shall be solely responsible for the unemployment compensation payments on behalf of their employees and personnel.
XVII. Indemnification. Business Consultant shall release, defend, indemnify, and hold harmless Client and its officers, agents, and employees from all suits, actions, or claims of any character, name, or description including reasonable Business Consultant fees, brought on account of any injuries or damage, or loss (real or alleged) received or sustained by any person, persons, or property, arising out of services provided under this Agreement or Business Consultant's failure to perform or comply with any requirements of this Agreement including, but not limited to any claims for personal injury, property damage, or infringement of copyright, patent, or other proprietary rights. Client reserves the right to retain whatever funds which would be due to the Business Consultant under this Agreement until such suits, action or actions, claim or claims for injuries or damages as aforesaid shall have been settled and satisfactory evidence to that effect furnished.
XVIII. Confidentiality & Proprietary Information. The Business Consultant acknowledges that it will be necessary for the Client to disclose certain confidential and proprietary information to the Business Consultant in order for the Business Consultant to perform their duties under this Agreement. The Business Consultant acknowledges that disclosure to a third (3rd) party or misuse of this proprietary or confidential information would irreparably harm the Client. Accordingly, the Business Consultant will not disclose or use, either during or after the term of this Agreement, any proprietary or confidential information of the Client without the Client's prior written permission except to the extent necessary to perform the Services on the Client's behalf.
Proprietary or confidential information includes, but is not limited to:
a.) The written, printed, graphic, or electronically recorded materials furnished by Client for Business Consultant to use;
b.) Any written or tangible information stamped "confidential," "proprietary," or with a similar legend, or any information that Client makes reasonable efforts to maintain the secrecy of, business or marketing plans or strategies, customer lists, operating procedures, trade secrets, design formulas, know-how and processes, computer programs and inventories, discoveries and improvements of any kind, sales projections, and pricing information; and
c.) Information belonging to customers and suppliers of the Client about whom the Business Consultant gained knowledge as a result of the Business Consultant‘s Services to the Client.
Upon termination of the Business Consultant's Services to the Client, or at the Client's request, the Business Consultant shall deliver all materials to the Client in the Business Consultant's possession relating to the Client's business. The Business Consultant acknowledges any breach or threatened breach of confidentiality under this Agreement will result in irreparable harm to the Client for which damages would be an inadequate remedy. Therefore, the Client shall be entitled to equitable relief, including an injunction, in the event of such breach or threatened breach of confidentiality. Such equitable relief shall be in addition to the Client's rights and remedies otherwise available at law.
Furthermore, proprietary information, under this Agreement, shall include:
a.) The product of all work performed under this Agreement ("Work Product"), including without limitation all notes, reports, documentation, drawings, computer programs, inventions, creations, works, devices, models, works-in-progress and deliverables, will be the sole property of the Client, and Business Consultant hereby assigns to the Client all right, title, and interest therein, including, but not limited to, all audiovisual, literary, moral rights and other copyrights, patent rights, trade secret rights, and other proprietary rights therein. Business Consultant retains no right to use the Work Product and agrees not to challenge the validity of the Client's ownership in the Work Product;
b.) Business Consultant hereby assigns to the Client all right, title, and interest in any and all photographic images and videos or audio recordings made by the Client during Business Consultant's work for them, including, but not limited to, any royalties, proceeds, or other benefits derived from such photographs or recordings; and
c.) The Client will not be be entitled to use the Business Consultant's name and/or likeness in advertising and other materials.