1.1.     Client retains William J. Zelenske to provide the Services subject to the terms and conditions set forth in this Agreement. Client acknowledges that the successful and timely rendering of the Services will require the good faith cooperation of Customer. Customer shall fully cooperate with William J. Zelenske, including without limitation, by: (a) providing Consultant with all information as may be reasonably required by Consultant; and (b) making available to William J. Zelenske at least one employee, consultant or director of Customer, reasonably acceptable to William J. Zelenske, who shall have substantial relevant knowledge and experience to act as a Project Manager in connection with the rendering of the Services. All estimated dates specified in a Statement of Work shall be extended by delays caused by Customer, including without limitation, Customer's submission of Change Requests which impact William J. Zelenske’s normal schedule.

2.1.  Fees. If a Proposal/SOW specifies fees on a time and materials basis, Client will pay William J. Zelenske for the time expended in performing the Services based on the hourly rates and payment schedules set forth in the Proposal/SOW. Unless otherwise indicated, estimates of cost, time, and/or other items that may be included within a Proposal/SOW are provided solely as a general guideline for Client. William J. Zelenske will document and record all time spent in the performance of the Services to the reasonable satisfaction of Client. If the Proposal/SOW specifies fees on a fixed price basis, Client will pay William J. Zelenske the fixed fees set forth in the Proposal/SOW. Any changes requested by Client in the work agreed to in a fixed price Proposal/SOW or changes in delivery dates which cause William J. Zelenske to incur additional expense will be paid by Client.

2.2.  Expenses.

(a)  Travel time will be billed at the consultant’s hourly rate, up to eight (8) hours in one day, and expenses, including third party costs, will be billed to Client, and Client shall reimburse such expenses within thirty (30) days from date of such invoice.  

(b)  Client will reimburse William J. Zelenske for all reasonable travel expenses incurred by William J. Zelenske in rendering the Services as provided in William J. Zelenske’s travel policy then in effect, which is incorporated into this Agreement by reference.

(c)  Additional expenses which are: (1) not anticipated in the Proposal/SOW, (2) deemed necessary by William J. Zelenske and (3) incurred by William J. Zelenske in the performance of the Services, must be submitted in writing to and approved by Client prior to William J. Zelenske incurring said expenses from any third party or by William J. Zelenske itself. Said approval from Client will not be unreasonably withheld, conditioned or delayed.

2.3.  Invoicing and Payment.

(a)  William J. Zelenske will provide to Client an invoice for Services rendered and expenses incurred. All invoices will be sent by email to the billing contact identified by Client in the Proposal/SOW or otherwise provided by Client to William J. Zelenske from time to time.

(b)  Client must indicate upon signature of the Proposal/SOW if a purchase order is required. Purchase orders are for administrative purposes only; additional or different terms in any purchase order are void and are hereby rejected.

(c)  Client must indicate the format of invoice they require upon signature of the Proposal/SOW, if any, in order to expedite the billing process. If Client does not specify the detail required by their respective financial department, William J. Zelenske will send invoices in standard format in accordance with William J. Zelenske’s standard process.

(d)  We accept a variety of payment methods, including credit card, bank transfer, ACH, and if necessary, physical check.  Payment by check should be approved in advance.  Renewal payments, recurring retainer invoices or cloud subscriptions paid monthly must be paid via credit card. Payments for services provided under this agreement or any SOW, including one-off retainer payments, should be using the link included with the Proposal/SOW.  Payment can also be made by bank transfer. 

ACH Payment Information:

Beneficiary Name:   William J. Zelenske

Beneficiary Account:   488024719290

ACH Routing Number:   111000025

Domestic Wire Number:   026009593

International Wire Swift Code:   BOFAUS3N 


Receiving Bank Name:   Bank of America

Receiving Bank Address:   P.O. BOX 27025, Richmond, VA 23261-7025

 

(e)  Fees will be due and payable in accordance with the payment schedule set forth on the Proposal/SOW. If no payment schedule is set forth on the Proposal/SOW, fees will be due and payable on Client’s receipt of invoice. Expenses will be due and payable on Client’s receipt of invoice. All payments will be made in U.S. currency. Any sum not paid by Client within 30 days of when due will bear interest until paid at a rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less. If any amount is not paid when due hereunder, without prejudice to any other rights or remedies William J. Zelenske may have, William J. Zelenske will be entitled to (a) suspend the provision of Services until it has received payment in full for all outstanding amounts and (b) recover from Client the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and reasonable attorneys' fees). Notwithstanding anything to the contrary in this Agreement, all rights granted to Client under this Agreement with respect to Services provided under each Proposal/SOW are conditioned upon Client’s payment in full of all amounts due under the Proposal/SOW.

2.4.  Retainer

Customer will pay an advance payment of 50% of the estimate provided upon execution of this agreement or any Proposal/SOW. This retainer will be applied against fees, expenses, and any other charges. The retainer is received with the understanding that William J. Zelenske is expressly authorized to withdraw sums necessary to pay for Services and expenses as they are performed or incurred. Customer will be notified in writing of the amounts applied. If the charges for Services and expenses exceed the balance on deposit, the statement will show the excess due and payable. William J. Zelenske may require additional retainers to cover additional Services and expenses or to maintain the required as stated in the Proposal/SOW. When the Services are completed or the Agreement terminated, Customer will receive a final invoice. Any remaining balance after payment to William J. Zelenske’s final invoice will be returned to client. No interest will accrue or be owed on a Retainer on deposit.

2.5.  Taxes

Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Client’s account, and Client hereby agrees to pay such taxes; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, William J. Zelenske’s or Consultant’s income, revenues, gross receipts, personnel or real or personal property or other assets.

3.1.  This Agreement will commence on the date it is executed and, subject to the termination provisions contained in this Section 3, will continue in effect until the completion of the Services under each Proposal/SOW or for an initial term of 1 year, whichever is shorter. If notice of termination has not been given by either party by the time of expiration of the current term of this agreement, this agreement shall be automatically renewed for one year. Either party may terminate this contract at any time with or without cause by giving the other party thirty (30) days written notice of termination.

3.2.  Either party may terminate any Proposal/SOW in effect with or without cause upon at least thirty (30) days written notice to the other party. For termination of any Proposal/SOWs in relation to Managed Services, at least ninety (90) days written notice must be provided to the other party.

3.3.  Sections 2, 3.3, and 4 through 12 of these terms and conditions will survive any termination of the Agreement. In the event of any termination of this Agreement or any Proposal/SOW, Client will pay William J. Zelenske for all work performed and, if applicable, expenses incurred, by William J. Zelenske to the effective date of termination and all non-cancellable expenses. If a terminated Proposal/SOW specifies fees on a fixed fee basis, the fees due will be calculated based on the pro-rata portion of the fixed fee for time expended by William J. Zelenske in performing the Services prior to the effective date of termination.

4.1.  Client Materials. All content and materials provided by Client to William J. Zelenske in connection with this Agreement (“Client Materials”) will remain the sole and exclusive property of Client.

4.2.  Deliverables. Upon payment in full of William J. Zelenske’s fees, if any, William J. Zelenske assigns to Client all right, title, and interest in and to any work product created by William J. Zelenske in the course of rendering the Services under this Agreement. For the avoidance of doubt, William J. Zelenske will retain all right, title, and interest in and to any pre-existing William J. Zelenske materials (including without limitation pre-existing William J. Zelenske training materials) provided by William J. Zelenske to Client in connection with the Services. If any such pre-existing materials are to be provided by William J. Zelenske in connection with the Services, a description of such materials, as well as a description of the scope of Client’s right to use such materials and the consideration payable by Client with respect thereto, will be set forth in the applicable Proposal/SOW.

4.3.  William J. Zelenske Know-How. Client acknowledges that prior to the commencement of the Services William J. Zelenske had acquired, conceived, developed or licensed, and in the course of rendering the Services William J. Zelenske will continue to acquire, conceive, develop or license, certain know-how relating to the type of Services to be performed for Client (collectively, “William J. Zelenske Know-How”). Client desires William J. Zelenske to apply the William J. Zelenske Know-How in connection with the Services hereunder and acknowledges that performance of the Services will enhance and expand the William J. Zelenske Know-How. Subject to the confidentiality provisions of this Agreement, nothing in this Agreement or any Proposal/SOW will impair William J. Zelenske’s right to use the William J. Zelenske Know-How for its own behalf or on behalf of others. William J. Zelenske retains the right to perform the same or similar type of services for third parties during the Term of this Agreement

5.1.  Warranty. We strive to provide great Services, but there are things we cannot guarantee. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED. THE SERVICES ARE PROVIDED “AS IS.” WE DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 

5.2.  No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC OR GENERAL PURPOSE AND THOSE ARISING BY STATUTE OR BY LAW, OR FROM A CAUSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. ALL SERVICES AND DELIVERABLES ARE PROVIDED "AS IS." 

This disclaimer and exclusion will apply even if the express warranty and limited remedy set forth above fails of its essential purpose.  Client’s sole and exclusive remedy for any breach, and Consultant's entire liability and customer's sole and exclusive remedy for any breach is, at our option, consultant's reperformance of the services or the termination of the applicable proposal/sow and return of the portion of the fees paid to William J. Zelenske by client for the non-conforming services. . Client must notify William J. Zelenske within (15) fifteen days of performance of the Services of any alleged breach of the foregoing warranty to be entitled to the foregoing remedy. Notwithstanding the foregoing, William J. Zelenske makes no representations or warranties with respect to third party products or services in connection with the Services.

6.1.    CLIENT AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND WILLIAM J. ZELENSKE, ZELUTION, AND ZELUTION’S DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY LOSS, COSTS (INCLUDING REASONABLE ATTORNEY'S FEES), DAMAGES, INJURY, LIABILITY, CLAIMS, DEMANDS, OR CAUSES OF ACTION ARISING OUT OF OR RESULTING FROM OR IN CONNECTION WITH ANY PROPOSE, STATEMENT OF WORK, OR THIS AGREEMENT.

7.1.  For the purposes of this Agreement, a party’s "Confidential Information" means information of the party of a confidential nature, and includes, without limitation, information entrusted to the party by a third party in confidence and all data, information and materials that a recipient should reasonably understand to be confidential, given the manner or circumstances of its disclosure, irrespective of whether or not the specific designation “confidential” or any similar designation is used.

7.2.  The receiving party (a) will not disclose the disclosing party’s Confidential Information except as expressly set forth in Section 7.3, (b) will not use the disclosing party’s Confidential Information except for the purposes contemplated by this Agreement, (c) will use at least the same degree of care to safeguard the disclosing party’s Confidential Information that it uses to protect its own confidential and proprietary information, and in any event not less than a reasonable degree of care under the circumstances, and (d) will make copies of the disclosing party’s Confidential Information only as needed for such purpose, all of which will include any existing markings indicating that they are the disclosing party’s Confidential Information, or will have markings supplied by the disclosing party.

7.3.  The receiving party may disclose the disclosing party’s Confidential Information to the extent necessary to comply with applicable laws or regulations, or with a valid order of a court or other governmental body having jurisdiction over the party, but only to the extent and for the purposes of such required disclosure and provided that (a) the receiving party promptly notifies the disclosing party in order to provide the disclosing party the opportunity to seek a protective order, and (b) the receiving party takes all reasonable actions to obtain confidential treatment for such information and, if possible, to minimize the extent of such disclosure.

7.4.  Upon termination of this Agreement, and at any other time as may be requested by the disclosing party, each party will return to the other party any and all copies of the material containing the other party’s Confidential Information, or any portion thereof.

7.5.  The obligations of this Section 7 will not apply to any information which (a) is or becomes publicly available through no fault of the receiving party; (b) is already in the receiving party's possession without restriction on disclosure when disclosed by the disclosing party; (c) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (iv) is rightfully obtained by the receiving party from a third party without violating the rights of the disclosing party.

8.1.    During the term of this Agreement and for a period of one (1) year thereafter, Client will not hire, solicit for hire or engagement, or cause others to solicit for hire or engagement, directly or indirectly, as an employee or independent contractor, any employee or contractor of William J. Zelenske who is involved in the performance of Services under this Agreement, unless approved in writing by William J. Zelenske. The term “solicit for hire or engagement” specifically excludes any broad-based effort to attract applicants if not specifically targeted to or specifically designed to attract William J. Zelenske’s employees or contractors. Client recognizes that any actual or threatened breach of this Section may cause William J. Zelenske irreparable injury and that William J. Zelenske therefore will be entitled to injunctive relief, without the necessity of demonstrating actual monetary damage; provided, however, that it is understood and agreed that the seeking or obtaining of any such relief will not prevent the seeking or obtaining of any other relief, including the remedy of damages.

9.1.    William J. Zelenske may include Client’s name and general case study information within William J. Zelenske marketing material provided that such listing does not state or imply that Client endorses William J. Zelenske or its services. Any other use of Client’s name will be subject to Client’s prior written approval.

10.1.    IN NO EVENT WILL WILLIAM J. ZELENSKE, HIS SUPPLIERS OR HIS SUBCONTRACTORS BE LIABLE FOR (A) ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) LOSS OF USE, DATA, BUSINESS, PROFITS, OR ANY INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE; OR (C) ANY COSTS OR EXPENSES FOR THE PROCUREMENT OF SUBSTITUTE EQUIPMENT OR SERVICES, EVEN IF INFORMED OR WARNED OF THE POSSIBILITY OF SUCH DAMAGES. 

ALL LIABILITY OF WILLIAM J. ZELENSKE, HIS SUPPLIERS AND/OR SUBCONTRACTORS SHALL BE LIMITED TO $100, OR THE AMOUNTS PAID BY CLIENT TO WILLIAM J. ZELENSKE UNDER THE PROPOSAL/SOW GIVING RISE TO SUCH LIABILITY, WHICHEVER IS LESS.

11.1.    This Agreement (including without limitation these terms and conditions, any and all documents incorporated into these terms and conditions by reference, and each Proposal/SOW) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning its subject matter. No change, modification or waiver to this Agreement will be effective unless in writing and signed by both parties. Additional or different terms in any written communication from Client (such as in a purchase order) are void and are hereby rejected. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

12.1.    The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. In the event that any provision of this Agreement is determined by any court of competent jurisdiction to be unenforceable, including without limitation by reason of its being extended over too great a time, too large a geographic area or too great a range of activities, such provision will be deemed to be modified to permit its enforcement to the maximum extent permitted by law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, USA, without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement is in state courts located in Texas, USA, and both parties hereby consent to such jurisdiction and venue for this purpose. Headings are for convenience of reference only and will in no way affect interpretation of the Agreement. This Agreement is in the English language only, which language will be controlling in all respects, and all versions of this Agreement in any other language will be for accommodation only and will not be binding on the parties to this Agreement. All communications and notices made or given pursuant to this Agreement, and all documentation and support to be provided, unless otherwise noted, will be in the English language. This Agreement, or any Proposal, Estimate, or Statement of Work which incorporate by reference these terms and conditions, may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .PDF or .JPG format), and electronic signatures will be deemed to be original signatures.