Consulting Services Agreement

pMD (the “Company”) providing services as pMarket, and the undersigned individual (the “Consultant”) enter into this consulting services agreement (the “Agreement”) as of today (the “Effective Date”). All references hereafter to “Party” shall refer to Consultant and/or Company individually, and all references to the “Parties” shall refer collectively to Consultant and Company. 

‍

The Parties agree as follows:

‍

1. Services.  Consultant will perform services as set forth in the instructions section of each claimed work assignment (the “Services”). The Parties agree that nothing in this Agreement obligates the Company to assign or make work available to Consultant, nor does any provision in this Agreement obligate Consultant to claim or accept any assignment. 

‍

2. Term.  This Agreement shall continue in effect until either Party terminates this Agreement in accordance with Section 15.     

‍

3. Right to Perform Services.  Consultant represents that Consultant has no other agreements, relationships, or commitments to any other person or entity that conflict with Consultant’s right to execute this Agreement or to perform Services hereunder. Consultant further agrees that Consultant will at all times in performing Services under this Agreement comply with all applicable laws and licensing requirements and will perform such Services in a manner that does not violate any contractual obligations Consultant owes to any other person or entity.

‍

4. Independent Contractor Status.  The Parties intend to establish through this Agreement and to thereafter maintain at all times during which Consultant performs Services pursuant to this Agreement an independent contractor relationship.  The Parties do not intend to create a relationship in which Consultant, or any employee or agent of Consultant, qualifies as an employee, agent, joint venture or partner of the Company.  Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Company and Consultant or any employee or agent of Consultant or for any other purpose.  Neither Consultant nor any employee or agent of Consultant will participate in any benefits provided by the Company, including but not limited to medical benefits, retirement plans, bonus, or similar benefits that the Company may provide its employees.  Consultant shall retain the right to contract to provide services for others during the terms of this Agreement.

‍

5. Compensation and Payment.  Consultant shall receive compensation for the Services as set forth in the applicable work assignment, less applicable platform fee(s). Compensation is earned on a per unit of approved work basis at the rate outlined on each claimed work assignment. All submitted work will go through an internal verification process. Only verified and approved work will result in compensation. Rates are subject to change and are available for review before the work assignment is claimed. Consultant shall receive pCredits (the Compensation) for verified Services as outlined in each claimed work assignment. Consultant can request a payout of their pCredit balance at any time through the pMarket platform.

‍

6. Expenses.  The Company shall not reimburse any expenses incurred by Consultant in connection with the performance of Services under this Agreement unless approved in writing by a Company authorized representative.

‍

7. Equipment & Supplies.  Except as otherwise specifically provided in the Consulting Services Agreement, Consultant will furnish all equipment, tools, supplies and materials used to provide the Services required by this Agreement. 

‍

8. Method of Performing Services.  Consultant will determine the method, details, and means of performing the Services consistent with the requirements set forth in the work assignment and the Company’s business needs. 

‍

9. Time Devoted to Work.  In performing the Services pursuant to this Agreement, Consultant shall retain complete discretion with respect to the hours and days on which Consultant performs such Services subject only to time limitations and deadlines set forth in the work assignment. 

‍

10. Place of Work.  Consultant shall perform the Services required by this Agreement at any place or location as Consultant shall determine inside of the United States and at which Consultant can effectively and efficiently perform the Services without risk of unauthorized disclosure of Confidential Information (defined in Paragraph 16). The Company will not provide an office or work location to Consultant or to any employee or agent of Consultant.

11. Professional & Business Licenses, Permits, and Certificates.  Consultant represents and warrants that Consultant and all employees, contract personnel, or agents of Consultant performing or assisting in the performance of the Services will comply with all federal, state, and local laws requiring licenses, business permits, and certificates required to carry out the services to be performed under this Agreement.

‍

12. Insurance.  Consultant acknowledges that as an independent contractor and not an employee of the Company, the Company will not maintain any workers’ compensation coverage for Consultant or any person Consultant employs or retains to assist in the provision of Services under this Agreement. Consultant shall at all times during the term of this Agreement maintain insurance in accordance with applicable laws for Consultant and for all persons employed by Consultant who assist in the performance of Services under this Agreement.

‍

13. State and Federal Taxes.  Because this Agreement establishes an independent contractor relationship between the Company and Consultant, the Company will not withhold from any amounts payable to Consultant under this Agreement any state or federal taxes or other withholdings applicable to payment of wages to an employee. Consultant will at all times have full and sole responsibility for ensuring compliance with all federal, state, and local tax laws.  For clarification:

      a) The Company will not withhold FICA (Social Security) from Consultant’s payments;

      b) The Company will not make state or federal unemployment insurance contributions on Consultant’s behalf;

      c) The Company will not withhold state or federal income tax from payment to Consultant;

      d) The Company will not make disability insurance contributions on behalf of Consultant; and

      e) The Company will not obtain workers’ compensation insurance on behalf of Consultant.

14. Indemnification. Consultant shall indemnify, defend and hold the Company harmless from and against:  (a) any and all liability incurred by the Company arising out of the Consultant’s performance of Services under this Agreement or the performance of Services by any employee or agent of Consultant; (b) any and all liability incurred by the Company as a result of any breach of any term of this Agreement by Consultant; and (c) any and all costs and expenses, including reasonable legal expenses, incurred by or on behalf of Company in connection with the defense of such claims.

‍

15. Termination of Agreement. This Agreement is a flexible relationship and either Party may terminate the Agreement for any reason via email. The pAgent (Consultant) can request an account closure by delivering written notice to jobs@pMarket.love. The Company can terminate the consulting agreement via email for any reason or upon the occurrence of any of the following events:

      a) Bankruptcy or insolvency of either Party;

      b) Sale of the business of either Party;

      c) Death or disability of Consultant (“Disability” means any mental or physical incapacity of Consultant that prevents Consultant from performing the duties specified in this Agreement for thirty (30) days, whether or not consecutive, out of the term of this Agreement); or

      d) Theft, fraud embezzlement, dishonesty or other similar behavior by Consultant or any employee or agent of Consultant.

      e) Any habitual neglect of duty of Consultant in discharging any of his/her duties under this Agreement.

In the event of a material breach by either Party, the non-breaching Party may terminate by delivering written notice to the breaching Party via email.

‍

16. Confidential Information.

      a) Consultant acknowledges that in the course of Consultant’s engagement Consultant will have access to confidential and proprietary information, including information belonging to the Company or its customers.  Hereafter referred to in this Agreement as "Confidential Information” and shall include the following, whether in written documentation, electronic format, or orally disclosed/disseminated: 

            1) All protected health information (PHI) to which Consultant has access in the course of providing Services to the Company and as detailed in the Business Associate Agreement that Consultant has or will hereafter sign in connection with Consultant’s engagement by the Company. PHI includes any information in the medical record or designated record set that can be used to identify an individual, and that was created, used, or disclosed in the course of providing a health care service such as diagnosis or treatment.

            2) All information that has or could have commercial value or other utility in the business in which the Company or its customers engage or in which it/they contemplate(s) engaging; 

            3) Any compilation of information collected from various sources, book ideas or concepts, marketing strategy, or personnel data, that derives actual or potential independent economic value from not being generally known to the public and for which the Company undertakes reasonable efforts to limit its dissemination and maintain its secrecy;

            4) Any intellectual property, including without limitation, patents, copyrights, and trade secrets, technical information, research, development, procedures, algorithms, methods, formulations, processes, techniques, specifications, diagrams, samples, models, products, know-how, data, test results and evaluations, and other business, financial, and technical information;

            5) Information regarding customers and potential customers of Company, including customer lists, names, representatives, their needs or desires with respect to the types of products or services offered by Company, proposals, bids, contracts and their contents and parties, the type and quantity of products and services provided or sought to be provided to customers and potential customers of Company and other non-public information relating to customers and potential customers;

            6) Information regarding any of Company’s business partners and their services, including names, representatives, proposals, bids, contracts and their contents and parties, the type and quantity of products and services received by Company, and other non-public information relating to business partners; and

            7) Information regarding personnel, employee lists, compensation, and employee skills; provided, however, that nothing in this Agreement or any other agreement between Consultant and the Company will limit (i) Consultant’s right to discuss Consultant’s role or report possible violations of any law to any federal or state agency, including but not limited to the Equal Employment Opportunity Commission, the California Department of Fair Employment & Housing, the California Labor Commissioner, the United States Department of Labor, the National Labor Relations Board, the Securities and Exchange Commission, or any other federal, state or local agency, or (ii) to discuss the terms and conditions of engagement with others to the extent expressly permitted by Section 7 of the National Labor Relations Act, or to the extent that such disclosure is protected under the applicable provisions of law or regulation, including but not limited to “whistleblower” statutes or other similar provisions that protect such disclosure.

‍

      b) The Confidential Information covered by this Agreement includes:

            1) Tangible information (such as written materials, models, and/or specimens) identified as being Confidential Information by an appropriate, conspicuous legend (such as “Confidential” or “Proprietary”);

            2) Information in oral or visual form identified as Confidential Information at the time of disclosure or confirmed in writing as Confidential Information within forty-five (45) days after the disclosure; and

            3) Information that, given the nature of the information or the circumstances surrounding its disclosure, a reasonable person would consider Confidential Information.

      c) Confidential Information does not include the following:

            1) Information publicly known or publicly available through no fault of Consultant;

            2) Information that Consultant learns about or receives from a third party not under an obligation of confidence to the Company and who has legitimate and lawful possession of the information;

            3) Information known to Consultant before receiving that information from the Company or in the course of Consultant’s engagement with the Company and for which written records exist proving the date(s) of such prior receipt or disclosure;

            4) Information independently developed by Consultant without using, relying on or in any way incorporating any Confidential Information as defined herein; 

            5) Information for which the Company has removed or released all confidentiality restrictions in a writing signed by the Company’s President;

            6) Information that pursuant to applicable law an employer may not deem confidential or of which applicable law prohibits an employer from restricting disclosure or dissemination.

17. Protection, Use and Non-Disclosure of Confidential Information.

      a) Consultant acknowledges that the Company and/or its customers would suffer potentially severe loss, damage or injury if Consultant used or disclosed Confidential Information for any purpose other than the Company's authorized business purposes.  Consultant agrees to keep secret and retain in strictest confidence all Confidential Information.  Consultant shall not at any time during or after Consultant’s engagement by the Company, except with the express prior written consent of the Company’s President, directly or indirectly disclose, communicate or divulge any Confidential Information to any person or entity, or use any Confidential Information, for Consultant’s benefit or any person or entity other than the Company and/or its customers.  Consultant agrees that these commitments and promise shall never expire.

      b) Consultant shall maintain in confidence all usernames, passwords, and log-in credentials provided by the Company and shall not disclose such information to any other person, allow any person to use such information, or enable any third party to access the Company’s databases or systems to any third party.

      c) Consultant shall not remove any Confidential Information from the Company’s databases without prior written permission from the Company’s President.  Consultant agrees to return all such material in Consultant's possession to the Company immediately upon request, and in any event immediately upon termination of engagement.  Consultant further agrees that following the termination of Consultant’s engagement with the Company, Consultant will undertake a diligent search to locate all Confidential Information in Consultant’s possession, including but not limited to the review of all files, folders, and emails on any device owned or used by Consultant or stored or located in any personal account (for example, documents, files, or folders stored on any cloud based account or attached to or retained in any personal email account).  Consultant will delete or destroy all Confidential Information that Consultant locates and shall thereafter make no further use, either directly or indirectly, of any such Confidential Information.

      d) Consultant shall sign and deliver to the Company (either during or after the engagement) such other documents as the Company considers necessary or desirable to evidence or effect the assignment of all rights of Consultant, if any, of all work product, designs or creations as set forth in this Agreement.

      e) Consultant will not disclose to the Company, or use, or induce the Company to use, any proprietary or confidential information or trade secrets of others.  Consultant represents and warrants that all works prepared, created or furnished by Consultant, or to which Consultant will contribute during the term of Consultant’s engagement with the Company, will be original and do not and shall not infringe or violate the rights of any other person or entity under any laws, including but not limited to any copyright, trademark, trade secret and/or patent laws, anywhere in the world. 

      f) Consultant shall, at Consultant’s expense, indemnify, defend and hold the Company, its employees, agents, representatives, and clients harmless from and against any and all losses, costs, expenses and fees (including attorneys' fees) arising from or in connection with any direct or third-party claim(s), action(s) or proceeding(s) which arise in connection with Consultant’s performance of the Consulting Services or an actual or threatened breach of Consultant 's obligations, representations or covenants set forth in this Agreement. Without in any way limiting the foregoing, Consultant understands and agrees that the Company shall have the right, but not the obligation, to retain counsel of its own choice in connection with any such third-party claim(s), action(s) or proceeding(s), and any such retention will not in any way alter or limit Consultant’s obligations under this Paragraph, including Consultant’s obligation to pay the attorneys’ fees and related costs the Company incurs in connection with such representation.

18. Exceptions and Immunity for Disclosures.  Consultant understands and acknowledges that nothing in this Agreement prohibits or in any way restricts Consultant’s right to report or disclose information about unlawful acts, including the right to report possible violations of law to a governmental agency or entity or to communicate with such agencies or entities, to respond to a subpoena, to testify truthfully under oath, or to participate in any action or proceeding initiated by any governmental agency or entity and Consultant may do so without providing notice to the Company.  Consultant acknowledges that through this paragraph the Company has provided notice of the following immunity that exists under the federal Defend Trade Secrets Act of 2016 as set forth at 18 U.S.C. section 1833:  “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.”

‍

19. Non-Disparagement.  Consultant agrees that Consultant will not disparage or impugn the Company in any form, manner, or media, including but not limited to oral or written statements, social media, or any other form of electronic communication.

20. Notices.  Any notice, demand, request, consent, approval, or other communication that either Party desires or must provide to the other Party or to any other person shall be in writing and emailed to jobs@pMarket.love.  A Party shall email such notice as follows:

Notice to Consultant:

      a) Company may give notice, including notice of any modifications or amendments to this contract, by means of a general notice on the Service or electronic mail to your e-mail address on record in your pMarket account.

      b) Notice to Company:

          Jobs@pMarket.love

‍

Notices shall be deemed communicated upon acceptance of notice on the Service, or within three (3) business days from the time of inbox receipt.

21. Assignment.  This Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without limitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets.  Consultant may not assign this Agreement to any person or entity.

22. No Waiver.  No waiver by either Party of any breach or default of any of the covenants or agreements herein contained shall qualify as or effect a waiver as to any subsequent or similar breach or default unless in writing, signed by the Party or Parties against whom enforcement of the wavier is sought.

23. Arbitration of Disputes.  The Parties agree to resolve by arbitration any dispute, claim or controversy arising out of or relating to the Company’s retention of Consultant, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate.  The arbitration shall take place in Santa Barbara, California before a single arbitrator.  The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.  The Parties shall each pay one half of the arbitration costs, including but not limited to the arbitrator fees and JAMS administrative costs, subject to recover as a prevailing party as provided in this Agreement.  Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude either Party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

24. Prevailing Party’s Fees.  In any dispute between the Parties resulting in arbitration or litigation, the Party substantially prevailing shall recover from the other Party all reasonable fees, costs and expenses including, without limitation, attorneys’ fees, arbitrator costs, filing fees, and other costs/expenses.  Any award, judgment or order entered in such action shall specifically provide for the recovery of attorneys’ fees and costs incurred in enforcing such award or judgment and an award of prejudgment interest from the date of the breach at the maximum rate allowed by law.  The term “prevailing Party” shall mean the Party determined in the proceeding to have prevailed or who prevails by dismissal, demurrer, default, judgment or otherwise.

25. Entire Agreement.  This Agreement along with each work assignment pursuant to which Consultant provides Services comprise the entire agreement between the Company and Consultant.  The Parties may not modify, alter, or amend the Agreement in any manner other than in a written agreement signed by both Parties. This Agreement supersedes and replaces all communication, discussions, representations and agreements made by the Parties prior to execution of this Agreement.  Each Party has had the option to have this Agreement reviewed by independent legal counsel and the Parties agree that neither Party shall qualify as the drafting party for the purpose of construing the Agreement or any provision in the Agreement against the drafting party for purposes of contract interpretation or for any other purpose. 

26. Severability.  The provisions of this Agreement are severable, and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or parts thereof shall nevertheless be binding and enforceable.  If any provision of this Agreement is deemed unenforceable, the Company and Consultant agree that an arbitrator or a court of competent jurisdiction shall reform such provision to the extent necessary to render it enforceable to the maximum extent permitted by law.  

27. Choice of Law.  The laws of the State of California shall govern this Agreement State of California without regard to conflict of law principles. The rule of construction requiring that any ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.

The Consultant hereby accepts and agrees to the terms set forth in this Agreement and executes this Agreement by checking the terms acceptance box and entering Consultant’s name where indicated. Consultant acknowledges that Consultant has read and understands this Agreement in its entirety.