1. Purchase of Materials.  Company hereby agrees to purchase from Crescendo those certain Materials as indicated within Exhibit A attached hereto and incorporated by reference.  The parties agree that the purchase price for such Materials shall be as indicated within Exhibit A.

 

2. Duties of Crescendo.  Company shall retain Crescendo to provide ancillary training services to Company relative to the Materials purchased by Company from Crescendo, but not as part of a specific fundraising campaign (“Services”).  

 

Company and Crescendo agree that at no time will Crescendo be asked by Company to assist with (a) soliciting donations for Company, or performing for Company any service in connection with which donations are solicited by Crescendo or by any compensated individual that Crescendo employs to solicit; or (b) planning, managing, advising, consulting, or preparing material for—or with respect to—Company’s solicitation of donations anywhere within the United States.

 

3. Compensation of Crescendo.  For Services rendered hereunder Company agrees to pay Crescendo compensation as specified within Exhibit A attached hereto and incorporated herein by reference.

4. Relationship of the Parties.  The parties agree that Crescendo’s relationship with Company shall be that of an “independent contractor”.  Nothing contained herein shall be construed to create an employer - employee relationship between Company and Crescendo.  Company shall not withhold, from sums becoming payable to the Crescendo hereunder, any amounts for State or Federal Income Tax, or for FICA (Social Security) Taxes, during the Term of this Agreement.  Crescendo shall be free to dispose of such portions of his/her entire time, energy and skill, as he/she is not obligated to devote to the Company hereunder, in such a manner as he/she deems advisable.  Crescendo is not required to establish hours of work or keep a certain number of hours of work.  The Crescendo shall not be considered as having an employee status or as being entitled to participate in any plans, arrangements or distributions by the Company pertaining to or in connection with any pension, stock, bonus, profit sharing, vacation, disability, retirement, insurance or other benefits extended to the Company’s employees.  

 

5. Income Tax Responsibility, Unemployment Insurance, Workers Compensation.  As an independent contractor, Crescendo shall be solely responsible for payment of all taxes on Crescendo’s income earned under this Agreement, including all Federal, State and local withholdings, Social Security and unemployment taxes and contributions.  Company will provide Crescendo with any applicable Form 1099 statement reflecting the payments made to Crescendo, as required by applicable Internal Revenue Service (“IRS”) regulations.  In the event that the IRS should determine that the Crescendo is, according to IRS guidelines, an employee subject to withholding and social security contributions, the Crescendo shall acknowledge, as Crescendo acknowledges herein, that all payments to Crescendo are gross payments and Crescendo is responsible for all income taxes and social security payments thereon.  

 

6. Limitations of Crescendo Authority.  Notwithstanding anything contained in this Agreement to the contrary, Crescendo shall have no power or authority, except as herein otherwise specifically provided, to bind or incur, any obligation for or impose any liability upon the Company.  No other or greater powers shall be implied from the grant or denial of powers specifically mentioned herein.  

 

7. Non-Exclusivity.  Crescendo and Company hereby agree and acknowledge that Crescendo may at any time, and from time to time, provide Services to other entities and/or individuals other than Company without restriction.

8. Notices.  Any notice required by this Agreement shall be given by delivery to Company or Crescendo, personally, or by mailing thereof by a certified or registered letter addressed to the Company or Crescendo at the address set forth above.

 

9. Termination. This Agreement shall continue in full force and effect until terminated by the occurrence of the first of the following contingencies:

 

a. At any time upon the mutual written agreement of both parties;

 

b. By either party upon thirty (30) days written notice to the other party; or

 

c. Immediately by Company if Crescendo is in default of this Agreement.

 

The right of termination shall be in addition to any other remedies available to the parties pursuant hereto or at law.

In the event that this Agreement is terminated by the Company prior to completion of the Services but where the Services have been partially performed, the Crescendo shall be entitled to any compensation earned but not paid at the time of such termination.

 

10. Confidentiality. At any time from and after the date hereof, Crescendo agrees that: 

 

(a) Crescendo will not disclose Confidential Information (as defined hereinbelow) to any person or entity without first obtaining the Company’s consent, and will take all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. Crescendo agrees to make every effort to ensure that persons working in any capacity for the Company, including, without limitation, employees, officers, directors, vendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors, contractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly “need to know” basis. This prohibition against Crescendo’s disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any similarity exists between Confidential Information and information independently developed by another person or entity. Crescendo understands that the existence of such a similarity does not excuse Crescendo from honoring Crescendo’s obligations under this Agreement.

 

(b) Crescendo will not use any Confidential Information for Crescendo’s personal benefit or for the benefit of any person or entity other than Company.  Crescendo will not use, copy or transfer Confidential Information other than as necessary in carrying out Crescendo’s duties on behalf of the Company, without first obtaining the Company’s written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer of Confidential Information. This prohibition against Crescendo’s use, copying, or transfer of Confidential Information includes, but is not limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any form) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon knowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly or indirectly circumvent or compete with the Company with regard to any Confidential Information.

 

(c) Crescendo will not make any written use of or reference to the Company’s name or trademarks (or any name under which the Company does business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business purposes and interests of Company or make any use of Company’s facilities for any activity unrelated to the express business purposes and interests of the Company, without the prior written consent of the Company, which consent may be withheld or granted in the Company’s sole and absolute discretion.

 

(d) In the event that Crescendo receives a subpoena or order of a court, or other body having jurisdiction over a matter, in which Crescendo is compelled to produce any information relevant to the Company, whether confidential or not, Crescendo will immediately provide the Company with written notice of this subpoena or order so that the Company may timely move to quash if appropriate.

 

(e) “Confidential Information” (for the purposes of this Confidentiality Agreement) means knowledge or information not generally known to the public or in the interpreting services industry (including information conceived, discovered or developed by Crescendo), that Crescendo learns of or possesses, related to the Company’s business, Company, Company’s business partners, Company’s business, or the business of Clients or Potential Clients (as defined hereinbelow).  Confidential Information shall not include information which is or becomes publicly known through no breach of this Confidentiality Agreement, or other act or omission of Crescendo.  The phrase “publicly known” shall mean readily accessible to the public in a written publication, and shall not include information which is only available by a substantial searching of the published literature, and information the substance of which must be pieced together from a number of different publications and sources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting such exclusion.

 

10.2. Reasonableness of Restrictions and Severability.  Crescendo represents and agrees that Crescendo has read this Agreement, and understands it.  Crescendo agrees that this Agreement does not prevent Crescendo from earning a living or pursuing a career.  Crescendo agrees that the restrictions contained in this Agreement are reasonable, proper, and necessitated by the Company’s legitimate business interests.  Crescendo represents and agrees that Crescendo is entering into this Confidentiality Agreement freely and with knowledge of its content and with the intent to be bound by this Agreement and the restrictions contained in it.

 

If the court declines to enforce this Confidentiality Agreement in the manner provided in this Section 10, Crescendo and the Company agree that this Confidentiality Agreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law and Crescendo agrees to be bound by the Agreement as modified.

 

Crescendo and the Company agree that the provisions of this Section 10 apply to Crescendo’s activities regardless of where they take place. If, however, after applying the provisions of this Section 10, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of reasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced, Crescendo and the Company agree that the geographic restriction shall be the entire State in which Company’s principal business location is located.

 

If any provision of this Agreement is declared by a court to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain in full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in this Agreement; provided, however, Crescendo and Company agree that the court shall read this Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to the maximum extent allowed by law.

 

10.3. Tolling.  The time period(s) for the restriction(s) set forth in this Section 9 shall be tolled during any breach by Crescendo of Crescendo’s obligations hereunder.

 

10.4. Remedies.  Crescendo acknowledges and agrees that the rights of the Company under this Section 10 are of a specialized and unique character and that immediate and irreparable damage will result to the Company if Crescendo fails or refuses to perform Crescendo’s obligations under this Section 10 and, notwithstanding any election by the Company to claim damages as a result of such failure or refusal, the Company, in addition to any other remedies and damages available, may seek an injunction in a court of competent jurisdiction to restrain any such failure or refusal by Crescendo to perform or comply with such obligations hereunder.  Crescendo agrees that if the Company is successful in whole or part in any legal or equitable action against Crescendo under this Section 9, the Company shall be entitled to payment of all costs, including reasonable attorneys fees, from Crescendo.

 

11. Modification.  This Agreement may be modified only by the written agreement of both parties.

 

12. Waiver.  No forbearance or neglect on the part of Company to enforce or insist upon any of the provisions of this Agreement shall be construed as a waiver of any its rights or privileges hereunder, unless, in each instance, a written memorandum expressing such waiver is executed and delivered to Crescendo by Company.

 

13. Survival of Terms.  The terms, provisions, representations contained in this Agreement shall survive delivery of the Services and termination of this Agreement hereunder unless otherwise specified.

 

14. Construction/Binding Effect/Governing Law.  This Agreement shall be binding upon the legal representatives, heirs, beneficiaries, successors or assigns of the parties hereto and shall be construed in accordance with and pursuant to the laws of the State of Minnesota.  Should any dispute arise with regard to this Agreement, any legal action shall be venued in the courts in the State of Minnesota.  Consultant shall comply with the laws of any jurisdiction under which it performs the Services hereunder.

15. Standard of Conduct.  Consultant agrees to perform the Services in accordance with the philosophies and mission statements of Company.  Consultant agrees to not disparage Company, its employees, consultants, agents or assigns to any third party.