- Client has asked ESC to provide Service to Client on the terms and subject to the conditions set forth in this TOU.
- ESC has agreed to provide Services to Client on the terms and subject to the conditions set forth in this TOU.
- ESC may use subcontractors to provide Services to Client.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this TOU, intending to be legally bound, hereby agree as follows:
- Services. Through our Service ESC provides you with access to Leo Eisner’s expertise, experience, knowledge, and resources. These resources may include, but are not limited to, Test Houses, Standards Bodies & Committees, Regulators; Information on Standards, Regulatory Requirements and Publishers, ESC Subcontractors, etc.. The Service does allow Client to print out e-mails, reports, export data, and display this information but may only be used by employees of Client Company for Client division.
- Compensation. This Service as a paid service is purchased by Client in ½ hr blocks of Micro-consulting time. The initial 15 minutes of Client contact with Leo Eisner for any communications time and research time are at no charge after which every 30-minute block of consulting time must be paid for before work commences for the Client. If any consulting work, over the initial 15 minutes, is done to estimate the scope of the Micro-Consulting the Client will be advised and expected to pay for that consulting time before any additional work is commenced. If the consulting work takes any additional time over the total 30-minute block(s) purchased initially the Client must pay the additional ½ hr block(s) of time before the additional work can commence.
- Terms of Payment. Client shall pay for this Service by purchasing ½ hr block(s) of time with payment options detailed in the confirmation web page for Micro-Consulting services. Any form of payment made must be received and clear OnPoint Community Credit Union before work may commence.
- Consultant Status Under TOU. The parties agree that Consultant will at all times be acting as an independent contractor and not as an employee of Client under this TOU. Nothing in this TOU will be construed to create the relationship of employer-employee between Client and Consultant or any relationship or status other than Client and independent contractor. Since Consultant is an independent contractor, Client will not withhold or deduct any withholding taxes, insurance, social security payments or any other amount from the amount due from Client to Consultant.
- No Express or Implied Warranty. While Consultant will make every effort to diligently perform the Services, Client hereby acknowledges and agrees that Consultant has not made and will not make any express or implied representation or warranty concerning the Services performed by Consultant or the results thereof. Without limiting the generality of the foregoing, Client hereby acknowledges that Consultant has not made and will not make any of the following representations or warranties:
- (a) That a certification or test agency evaluation will result in approval of Client’s product(s) or Quality System.
- (b) As to the speed with which a certification or test agency will evaluate Client’s product(s) or Quality System.
- (c) That the certification or test agency tests of Client’s products will yield positive results.
- (d) As to the accuracy of the certification or test agency test reports of Client’s product(s) or Quality System.
Client hereby expressly waives the right to make any claim against Consultant with respect to any such representation or warranty, whether for direct, consequential or any other damages. The terms of this Section are non-revocable and shall survive any termination of this TOU.
- Indemnification. Client agrees to indemnify, defend and hold harmless Consultant against any and all loss, liability, expenses and costs (including attorneys’ fees, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Consultant in connection with any threatened, pending, completed or future action suit or proceeding to which Consultant is, or is threatened to be, made a party arising from or related to the Services that have been provided hereunder (the “Damages”), except for Damages resulting from or related to Consultant’s gross negligence or willful or intentional misconduct. Client understands that the Services provided hereunder are ‘as-is’ and include advice and other deliverables. As such, any decisions made by Client are made in the presence of information from multiple sources and are made by Client alone, and Client hereby waives all rights to seek redress from Consultant for any reason related to the content of the Services. The terms of this Section are non-revocable and shall survive any termination of this TOU.
- Arbitration Required/Mediation First Option. Any dispute or claim that arises out of or that relates to this TOU, or to the interpretation or breach thereof, or to the existence, scope, or validity of this TOU or the arbitration agreement, shall be resolved by arbitration in accordance with the then effective arbitration rules of Arbitration Service of Portland, Inc. or the American Arbitration Association, whichever organization is selected by the party who first initiates arbitration by filing a claim in accordance with the filing rules of the organization selected, and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The parties acknowledge that mediation usually helps parties to settle their dispute. Therefore, any party may propose mediation whenever appropriate through either of the organizations named above or any other mediation process or mediator as the parties may agree upon.
- Governing Law. Unless otherwise provided, the substantive law of the state of Oregon will govern the validity of this TOU, its interpretation and performance, and remedies for contract breach or any other claims related to this TOU.
- Assignment. The Client may not delegate, assign, sublet or transfer his duties, obligations or interests in this TOU without the written consent of Consultant.
- Enforceability. In the event that any section or part of this TOU shall be found by a court of competent jurisdiction to be void or unenforceable, such section or part shall be deemed to be surplusage and the remainder of the TOU shall remain in full force and effect.
- Advice of Counsel. CLIENT AND CONSULTANT EACH ACKNOWLEDGES THAT EACH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS TOU. THIS TOU SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.