PROFESSIONAL SERVICES AGREEMENT
The Company is engaged in the business of providing management consulting services to nonprofit corporations, both directly and through the use of nonprofit virtual assistants (“NPVAs®”), in order to assist nonprofit corporations to become sustainable and to grow. The NPVAs® are specialized virtual assistants trained in nonprofit best practices. NPVAs® have the skill set and experience to support the operations of a nonprofit corporation, as well as the resources developed by a team of nonprofit professionals to keep the organizations focused on their mission. The Company’s NPVA® program has been designed by a team of nonprofit professionals who have been working in the field and understand the critical role that administrative support plays in a nonprofit corporation’s ability to maintain accurate constituent data, meeting/event management, organizational records, volunteer management and communications.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and each intending to be legally bound, the Company and the Client agree as follows:
Section 1: Relationship. The Company and the NPVAs® shall be independent contractors of the Client for all purposes. This Agreement is not intended to constitute, create, or be interpreted as a joint venture, partnership, agency, or formal business organization of any kind. The Company shall not hold itself out to anyone that it is a partner, joint venture partner, affiliate, or employee of the Client except that the Company and the NPVAs are entitled to claim that they are a “contractor” of the Client. No party to this Agreement shall be liable for any debts, accounts, obligations, or other liabilities of any other party, its agents, or employees, unless detailed in a separate written agreement. NPVA® does not have any authority to enter into agreements or contracts on behalf of the Company or the Client, and shall not represent that it possesses any such authority.
Section 2: Services to be Provided by the Company. The Company shall work with the Client to provide the Client with the services of an NPVA®. The NPVA® shall provide the Client with one or more of the following services, as requested from time to time by the Client:
Constituent Data Management (subject to the provisions of Section 9, below);
Meeting Management (Agendas, Materials, Notes, Scheduling);
Volunteer Support (Action Item Management);
Board and Committee Management;
Creating Basic Website and Email Content;
Event Planning and Support;
Fundraising Support (appeals, acknowledgement letters, web-based outreach); and
Additional services as agreed to by the Company and the Client from time to time.
Upon receiving a request for services, the NPVA® and the Client will clarify the assignment, if needed, prior to proceeding.
The Company reserves the right to make changes in NPVA® client assignments. In the event that an NPVA® needs to be replaced for any reason, the Company will promptly notify the Client of such change and provide the Client with the services of another certified NPVA®.
The Company will notify the Client regarding any task that the Company or the NPVA® believes is outside the scope of NPVA’s® abilities and work with the Client to determine whether and how to proceed.
Section 3: The Client’s Responsibilities. The Client shall:
Communicate with the NPVA® using the Company’s provided e-mail address or the NPVA's® provided phone number;
Give reasonably detailed instructions to allow the NPVA® to complete each task and/or ask any questions from the NPVA®; and
Communicate with the Company if there are any issues or feedback regarding the NPVA®.
Section 4: Payment for Services. The Client shall select an NPVA® Plan from the choices provided when signing up for NPVA® services which selected Plan is incorporated into this Agreement by reference and which establishes the number of hours of NPVA® time that will be provided each month. Payments will be made monthly through online credit card debits. The Client shall approve and pay for any extra expenses that may be needed for NPVA® to complete the Client’s tasks. There are no refunds for unused or non-rolled over hours.
Section 5: Term. The term of this Agreement shall begin on the date hereof and shall continue until terminated by either party on the (10) days’ prior written notice; provided, however, that the Company may terminate this Agreement without notice at any time for nonpayment of fees as provided by Section 4 of this Agreement. Upon the termination of this Agreement, each party will remain responsible for all liabilities and obligations incurred by such party prior to the termination of this Agreement.
Section 6: Trade Secrets and Confidential Information. During the term of this Agreement and at any time thereafter, neither party will, without the express written consent of the other party, directly or indirectly, communicate or divulge to, or use for their own benefit or the benefit of any other person, firm, association, corporation, partnership, limited liability company, or limited liability partnership, any of the other party’s trade secrets, proprietary data or information, documents, information technology, financial information, or any other l information designated by either party as confidential (collectively, “Confidential Information”), which Confidential Information was communicated to or otherwise learned, acquired, developed, or compiled by either party in the course of the relationship provided by this Agreement, except that either party may disclose such matters to the extent that disclosure is required by a court or other governmental agency of competent jurisdiction. As long as such matters remain Confidential Information, neither party will use such Confidential Information in any way or in any capacity other than in connection with the relationship provided by this Agreement or otherwise as approved in writing by the other party. Upon termination of this Agreement, each party shall return all Confidential Information to the other party, in whatever form or format such Confidential Information exists.
Section 7: Intellectual Property. The Client acknowledges that the Company has developed over time certain templates, “best practices” and related materials for use by the Company in connection with the services to be provided by the Company to the Client pursuant to this Agreement (collectively, “MTG IP”). The Client acknowledges that all such MTG IP is the property of the Company and shall remain the property of the Company throughout the term of this Agreement and thereafter. To the extent that any MTG IP is incorporated in, embedded in, or required to utilize any deliverable, the Company hereby grants to the Client a limited, non-exclusive, perpetual, fully paid-up, non-transferable right and license to use, execute, reproduce, display, perform, and maintain the MTG IP in the form included in the deliverables for the Client’s internal use alone (and not for resale or distribution to others).
Section 8: Covenant Not to Solicit. The Client hereby acknowledges the highly competitive nature of the Company’s business, that although the main purpose of this Agreement is to set forth the terms and conditions of the relationship between the parties, the provisions and restrictions contained in Sections 6 and 7 of this Agreement are necessary to protect the legitimate interests of the Company and are reasonable, that the Company has a legitimate interest in its relationship with its employees, independent contractors and NPVAs®, that the Company would not have entered into this Agreement or the relationship with the Client set forth herein in the absence of such provisions and restrictions, and that the enforcement of the provisions of this Agreement would not result in an uneconomic hardship upon the Client. Therefore, the Client covenants to the Company that, during the term of this Agreement and for a period of twenty-four (24) months after termination of this Agreement, the Client shall not, directly or indirectly, solicit, induce, or attempt to induce any of the Company’s employees, independent contractors, or NPVAs® to cease being employees, independent contractors, or NPVAs® of the Company or to become employees, independent contractors, or NPVAs® of the Client.
Section 9: Enforcement. Each party acknowledges that, as a consequence of the information to be disclosed to, and acquired by, it pursuant to this Agreement, such party will occupy a position of trust and confidence with respect to the other party’s affairs and services. Each party recognizes that immediate and irreparable damage will result to the other party if it breaches any of the terms and conditions of Sections 6 or 7 and each party specifically affirms that it will not do so. If either party does so breach any of such terms or conditions, the other party shall be entitled to preliminary and permanent injunctive relief against the other party without the necessity of proving actual damages or the posting or filing of any bond or other security, to restrain any breach or violation of the provisions of Sections 6 or 7. In the event that any court of competent jurisdiction shall determine that the scope or time applicable to any of the limitations of Sections 6 or 7 exceed the scope or time permitted by applicable law, then such limitations shall be reformed to the scope and time permitted by applicable law and enforced to such extent. The party that shall prevail in any action at law or in equity to enforce the provisions of Sections 6 or 7, shall be paid by the other party all costs and expenses, including reasonable attorneys’ fees, incurred by it in enforcing this Agreement.
Section 10: Nonpublic, Personal Financial Information. Client acknowledges that neither the Company nor any NPVA® will handle or access any of Client’s nonpublic, personal financial information and Client agrees that it will not ask either the Company or any NPVA® to do so.
Section 11: Disclaimer of Warranties. THE COMPANY’S SERVICES, INCLUDING ANY SERVICES PROVIDED BY AN NPVA®, ARE PROVIDED TO THE CLIENT ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NEITHER THE COMPANY NOR ANY NPVA® SHALL BE LIABLE TO CLIENT FOR ANY DATA BREACHES, SECURITY BREACHES OR OTHER CYBERATTACKS DIRECTLY OR INDIRECTLY RELATED TO ANY ACTION OR INACTION BY THE COMPANY OR ANY NPVA®.
Section 12: Limitation on Damages. EXCEPT FOR A BREACH BY THE CLIENT OF SECTION 4 (RELATING TO PAYMENT FOR SERVICES) OR A BREACH BY EITHER PARTY OF SECTIONS 6 OR 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND IN NO EVENT SHALL THE COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABIL ITY, EXCEED IN THE AGGREGATE, THE AGGREGATE AMOUNT PAID TO THE COMPANY UNDER SECTION 4 OF THIS AGREEMENT FOR THE PRECEDING THREE (3) MONTHS.
Section 13: Assignment. This Agreement may not be assigned by the Client without the prior written consent of the Company which consent may be given or withheld in the Company’s sole discretion. This Agreement may be assigned by the Company to another entity that provides management consulting services to nonprofit corporations without the prior written consent of the Client if such other entity acquires all of the equity ownership of the Company or substantially all of the Company’s assets.
Section 14: Notices. All notices or other communications hereunder shall be in writing and shall be deemed given if delivered personally, mailed by first class mail or sent by e-mail, addressed to the Company or the Client, as the case may be, at the address set forth below their respective signatures on the signature page hereof.
Section 15: Use of the Client’s Name. The Client acknowledges and agrees that the Company may include the Client’s name and website url in the Company’s client list on its website. In addition, the Company may mention the Client's name on social media for the purpose of identifying the Client as a customer of the Company.
Section 16: Waiver. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver.
Section 17: Entire Agreement, Amendment. This Agreement is intended by the parties to constitute and does constitute the entire agreement between the Company and the Client. This Agreement supersedes any and all prior agreements, understandings, negotiations, and discussions of the parties, whether oral or written. This Agreement may be amended, waived, discharged, or terminated only by an instrument in writing signed by the party against whom enforcement of the amendment, waiver, discharge, or termination is sought.
Section 18: Governing Law. This Agreement shall be governed by and construed in accordance with the domestic internal law of the Commonwealth of Massachusetts.
Section 19: Severability. No part of this Agreement will be affected if any other part of it is held invalid or unenforceable.
Section 20: Captions. The captions contained in this Agreement are for reference purposes only and are not part of this Agreement.
Section 21: Survival. Sections 6, 7, 8, 9, 10, 11 and 12 of this Agreement shall survive any termination of this Agreement.
Section 20: Counterparts. This Agreement may be executed in counterparts which when taken together shall constitute one agreement binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.