TERMS AND CONDITIONS

TERMS

By accepting this Agreement by (1) clicking a box indicating acceptance, (2) executing an order form referencing this agreement, or (3) using free services, the Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a Company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Terms and Conditions. If the individual accepting this
Agreement does not have such authority, or does not agree with these Terms and Conditions, such individual must not accept this Agreement and may not use the services.

This Agreement was last updated on September 22, 2022. It is effective between the Customer (the “Company”) and Imperian LLC, (the “Consultant”) as of the date of the Customer’s accepting this Agreement (the ”Effective Date”).

WHEREAS, the Company wishes to engage the Consultant as a contractor for the Company for the purpose of providing professional services (the “Services”) on the terms and conditions set forth below; and 


WHEREAS, the Consultant wishes to provide the Services in accordance with the terms of this Agreement; and 


WHEREAS, each Party is duly authorized and capable of entering into this Agreement. 


NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows: 

RESPONSIBILITIES

Of the Consultant. The Consultant agrees to do each of the following: 

  1. Devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner; in no event shall Consultant be bound to provide support for systems which fall outside this Agreement without a written request by Company containing the proposed change order, and a written acceptance of said proposed change order by Consultant. 

  2. Perform the Services in a safe, good, and efficient manner by fully trained, skilled, competent, and experienced personnel always using adequate equipment in good working order. 

  3. Communicate with the Company regarding progress the Consultant has made in performing the Services. 

  4. Provide services (including the Services) that are satisfactory and acceptable to the Company. 


Of the Company. The Company agrees to do each of the following: 

  1. Engage the Consultant as a contractor to perform the services as set forth in this agreement. 

  2. Provide relevant information to assist the Consultant with the performance of the Services. 

  3. Satisfy all of the Consultant’s reasonable requests for assistance in its performance of the Services. 

NATURE OF RELATIONSHIP

  1. Contractor Status. The Consultant agrees to perform the Services hereunder solely as a contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Consultant is and will remain a contractor in its relationship to the Company. The Company shall not withhold taxes with respect to the Consultant’s compensation hereunder. The Consultant shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party. 


  1. Indemnification of Company by Consultant. The Company has entered into this Agreement in reliance on information provided by the Consultant, including the Consultant’s express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If any regulatory body or court of competent jurisdiction finds that the Consultant is not an independent contractor and/or is not in compliance with applicable laws related to work as an independent contractor, based on the Consultant’s own actions, the Consultant shall assume full responsibility and liability for all taxes, assessments, and penalties imposed against the Consultant and/or the Company resulting from such contrary interpretation. 

CONFIDENTIAL INFORMATION

Confidential Information as used in this Agreement shall mean any and all technical and non-technical information including patent, copyright, trade secret, proprietary information, computer files, and Company information related to the past, current, future, and proposed services of the Company, and includes, without limitation, Company property, and Company information concerning customers, research, financial information, purchasing, business forecasts, sales, and merchandising, and marketing plans and information and all matters the Company identifies as confidential or proprietary. 

  1. Except as permitted in this section, the Consultant shall neither use nor disclose information deemed confidential and proprietary by the Company. The Consultant may use the Company’s confidential information solely to perform consulting services under this agreement for the benefit of the Company. The Consultant shall treat any and all documents, data, materials, and information as confidential and proprietary whether or not they are marked as Confidential. 

  2. The Consultant’s nondisclosure obligations with respect to any portion of the Confidential Information shall not apply to any such portion that the Consultant can demonstrate (a) was in the public domain at or subsequent to the time such portion was communicated to the Consultant by the Company; (b) was rightfully in the Consultant’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to the Consultant by the Company; or (c) was developed by the Consultant independently of and without reference to any information communicated to the Consultant by the Company. A disclosure of Confidential Information by the Consultant either (i) in response to a valid order by a court or other governmental body; (ii) otherwise required by law; or (iii) necessary to establish the rights of either party under this Agreement, shall not be considered a breach of this Agreement or a waiver of confidentiality for other purposes. 

REPRESENTATIONS AND WARRANTIES

The Parties each represent and warrant as follows: 

  1. Each Party has full power, authority, and right to perform its obligations under the Agreement. 

  2. This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies). 

  3. Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party. 


The Consultant hereby represents and warrants as follows: 

  1. The Consultant has the sole right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed. 

  2. The Consultant has the right to perform the Services required by this Agreement at any place or location, and at such times as the Consultant shall determine. 

  3. The Services shall be performed in accordance with standards prevailing in the Consultant’s industry; shall further be performed in accordance with and shall not violate any applicable laws, rules, or regulations; and the Consultant shall obtain all permits or permissions required to comply with such standards, laws, rules, or regulations. 

  4. The Services required by this Agreement shall be performed by the Consultant’s staff and may require outside contractors. The Company shall not be required to hire or supervise any assistants to help the Consultant perform such Services. 

  5. The Consultant is responsible for paying all ordinary and necessary expenses of its staff. 

  6. The Consultant is responsible for providing insurance coverage for itself and its staff. 

  7. The Consultant agrees to comply with all applicable health and safety protocols. The consultant will communicate to the Company if any hazardous conditions are found at the worksite. 

  8. The Consultant warrants that the work will be performed to the best of the ability and in accordance with reasonable and customary practices prevailing at the time for its business. No other warranties exist, expressed or implied. 


The Company hereby represents and warrants as follows: 

  1. The Company will make timely payments of amounts earned by the Consultant under this Agreement. Failure to meet payment terms may result in immediate agreement termination at Consultant’s sole option. 

  2. The Company shall notify the Consultant of any changes to its procedures affecting the Consultant’s obligations under this Agreement at least 30 days prior to implementing such changes. 

  3. The Company shall provide such other assistance to the Consultant as Consultant deems reasonable and appropriate. 

  4. The Company will be responsible for obtaining proper and adequate permissions for the Consultant to enter upon and operate within the lands and properties designated at the Consultant’s work area. 

  5. The Company agrees to remedy any conditions that the Consultant has brought to the Company’s attention that have the potential to create a hazard. 

  6. The Company agrees that the Consultant may utilize certain items of the Company’s equipment and may gain access to certain Company facilities. The Company retains title and ownership in all of Company’s equipment owned by the Company and utilized by the Consultant and must grant authority for the Consultant to access the Company’s facility. Facility access may be denied for any reason at any time, however if access to the facility is denied, the Company understands that the Consultant may be unable to perform their duties adequately and if such a situation should exist, the Consultant will be held harmless.  

  7. The Company acknowledges that the Consultant must have access to all systems and resources necessary to perform their duties under this agreement. Therefore, the Company must provide the Consultant with administrator level accounts on the Company’s systems. 



NO CONFLICT OF INTEREST; OTHER ACTIVITIES. 


The Company hereby warrants to the Consultant that to the best of its knowledge, it is not currently under an existing contract or other agreement that conflicts with or is in competition with this Agreement. During the Term (as defined below), the Company shall not enter contracts or accept obligations incompatible or in direct competition with the Consultant’s obligations or the scope of Services to be rendered for the Company pursuant to this Agreement. The Company also warrants that it will not attempt to affect the employment status of the Consultant’s staff. This includes, but is not limited to, attempts to hire or contract the Consultant’s staff, on behalf of the Company, individuals, or other entities. If the Company violates said provisions, the Consultant may choose to pursue legal penalties, as allowed by law 



TERM.


The term of this Agreement will commence on the Effective Date set forth above and will continue until terminated by either Party as provided in section nine of this Agreement. 

TERMINATION OF SERVICE AGREEMENT

Either Party may terminate this Agreement, with or without cause. 


Following the termination of this Agreement for any reason, the Company shall promptly pay the Consultant for services rendered before the effective date of the termination. The Consultant acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement.  

LIMITATIONS OF TECHNOLOGY

  1. The Company acknowledges that technologies are not universally compatible, and that there may be services or devices that the Consultant may be unable to monitor, manage, or patch. The Consultant agrees to inform the Company when such situation exists. The Company agrees to correct situation if applicable, and to hold the Consultant harmless in any case. 

  2. Because there are risks associated with applying and failing to apply patches, the Consultant constantly reviews and updates our best practices based on the relative threats to patch delivery timing. Every effort is made to balance the reduction of vulnerabilities with the slight destabilization risk associated with applying new patches to otherwise stable systems. Patch definitions and antivirus definitions are distributed by their respective software vendors, and as such, the Consultant has no direct control over the effectiveness or lack thereof of the software being applied. The Consultant shall not be held responsible for interruptions in service due to patches released by software vendors. 

INDEMNIFICATION

  1. Of Company by Consultant. The Consultant shall indemnify and hold harmless the Company and its officers, members, managers, and employees, from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur. Indemnification applies for claims arising out of the work, except to the extent caused by the fault, negligence or willful misconduct of the Company arising from or connected with Consultant’s carrying out of its duties under this Agreement, or (ii) the Consultant’s breach of any of its obligations, agreements, or duties under this Agreement. 


  1. Of Consultant by Company. The Company shall indemnify and hold harmless the Consultant and its officers, members, managers, and employees from and against any and all Claims that it may suffer from or incur and that arise or result directly from (i) the Company’s operation of its business, (ii) the Company’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party, or (iii) the Company’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of the Consultant. 

  1. Neither Party shall be liable to the other whether under contract, statute, tort (including negligence) or otherwise, for any indirect, exemplary, unforeseeable, loss of profits, loss of use, punitive or consequential, incidental or special damages arising out of or related to the performance of this agreement even if that Party is notified in advance of such possibility, regardless of the form of the claim or action. 

FORCE MAJEURE

A Party shall not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable: 


  1. notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and 

  1. use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder. 

USE OF TRADEMARKS

The Consultant recognizes the Company’s right, title, and interest in and to all service marks, trademarks, and trade names used by the Company and agrees not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s right, title, and interest therein, nor shall the Consultant cause diminishment of value of said trademarks or trade names through any act or representation. The Consultant shall not apply for, acquire, or claim any right, title, or interest in or to any such service marks, trademarks, or trade names, or others that may be confusingly similar to any of them, through advertising or otherwise.

MODIFICATION

No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.

ASSIGNMENT

No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.

SUCCESSORS AND ASSIGNS

All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.

NON-SOLICITATION AND NON-HIRE

Both the Consultant and the Company agree not to solicit, hire, or otherwise employ or engage in any manner whatsoever, directly or indirectly, during the term of this Agreement and for a period of one year thereafter, any I.T. professional who is or was the other Party’s employee or subcontractor, without the express written consent of the other Party. If the Company violates said provisions, the Consultant may choose to pursue legal penalties, as allowed by law.

NO IMPLIED WAIVER

The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.

GOVERNING LAW

This Agreement shall be governed by the laws of the state of Louisiana. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled. All parties agree that the exclusive venue to enforce this agreement will be Lafayette Parish.

ATTORNEY FEES

Should Consultant engage the services of an attorney to enforce any term(s) of this Agreement, Company shall be liable for all attorney’s fees and costs incurred, including but not limited to costs of alternative methods of dispute resolution which may be incurred by Consultant, at Consultant’s sole option.

COUNTERPARTS / ELECTRONIC SIGNATURES

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of e-mail, or other electronic medium shall have the same force and effect as an original signature.

SEVERABILITY

Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.

ENTIRE AGREEMENT

This Agreement constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.

HEADINGS

Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

RECORDINGS

The Consultant reserves the right to record all meetings that occur between a representative from the Company and the Consultant. These recordings will be used for reference purposes only. All information contained in the recordings will be kept strictly confidential.