Terms & Conditions
Last Revised: August 3rd, 2023
1. Services. Service Provider agrees to provide consulting and professional services as may be agreed upon by the Parties from time to time (the “Services”). The Services shall be performed by Service Provider on a time and materials basis. Services shall be set forth in a Statement of Work (“SOW”), which will be entered into from time to time and, upon execution by the Parties, will be incorporated and made part of this Agreement. Client. The first SOW is attached hereto as Exhibit A and incorporated and made part of this Agreement. In the event of a conflict between the terms of an SOW and the terms of this Agreement, the terms of this Agreement shall supersede and control as to such conflict. No obligation to either provide or pay for any Services shall be incurred by either Party until such time that an SOW has been executed by authorized representatives of both Parties.
2. Modification of Services. During the term of the Agreement either Party can request proposed changes to the Services. Any changes or modifications to the Services must be made pursuant to a change order or an amendment to an SOW signed by authorized representatives of both Parties. Neither Party shall have any obligation with respect to any changes to the Services until such time that an appropriate change order or amendment to the applicable SOW has been executed and delivered by both Parties.
3. Access; Cooperation of Client. Client agrees to comply with all reasonable requests of Service Provider and shall (a) provide Service Provider and Service Provider’s personnel with commercially reasonable access to its premises, facilities, equipment, computer systems, documents, books and records, etc., as may be reasonably necessary for the performance of the Services under this Agreement and any applicable SOW, and (b) reasonably cooperate with Service Provider and Service Provider’s personnel and provide all information and direction to Service Provider and Service Provider’s personnel as may be reasonably necessary for the performance of the Services under this Agreement and any applicable SOW.
4. Fees and Expenses.
(a) Fees. As full compensation for the Services, Client will compensate Service Provider for all fees (the "Fees") incurred in accordance with the terms of this Agreement and in any SOW entered into by the Parties (including without limitation and hourly rates set forth in such SOW. Fees are exclusive of taxes, levies, duties, governmental charges and expenses (with the exception of any Service Provider's income taxes), which amounts will be billed to and paid by Client.
(b) Expenses. Client shall pay Service Provider for the reasonable expenses including, but not limited to, out of pocket travel and living expenses, incurred by Service Provider and its personnel in connection with its performance of the Services (the “Expenses”).
(c) Billing and Payment. Service Provider shall prepare and submit invoices to the Client via mail or email for all Services performed and expenses incurred on a monthly basis. Client will pay invoices in U.S. dollars within fifteen (15) days of the date of Service Provider's invoice. Payments due hereunder must be made by wire transfer, certified check, bank check or such other method as may be agreed upon by the Service Provider. Client shall have no right of offset or withholding under this Agreement. Any amounts not paid by Client when due to Service Provider shall be subject to interest charges, from the date due until paid, at the rate of one and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If any amounts due to Service Provider from Client becomes past due for any reason, Service Provider may at its option and without further notice withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Service Provider's obligations under this Agreement.
(d) Compliance with Laws; Permits and Licenses. Both Parties agree, at their own expense, to operate in full compliance with all governmental laws, regulations and requirements applicable to the duties conducted hereunder. Each Party will obtain and maintain in force, at its own expense, all licenses, permits and approvals required for its performance under this Agreement, and will obtain all required inspections, authorizations and approvals prior to commencement of the Services.
5. Warranty and Limitation of Warranty. The Services to be performed hereunder are in the nature of professional services and advice. Service Provider does not warrant the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. Service Provider shall comply with all international, federal, state, county, and/or local government statutes, ordinances, regulations and laws applicable to performing the Services hereunder.
THE WARRANTY SET FORTH IN THIS SECTION 5. IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. SERVICE PROVIDER DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENT’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
6. Intellectual Property. This is not a work-for-hire agreement. The copyright in all deliverables created hereunder for Client shall belong to Service Provider. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of the Services hereunder are and shall remain the sole and absolute property of Service Provider, subject to a worldwide, non-exclusive license to Client for its internal use as intended under this Agreement. This Agreement does not grant Client any license to any of Service Provider’s products, which products must be licensed separately.
7. Confidential Information.
(a) Confidential Information. The Parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of or while present at a Party’s facilities; and (iv) all other non-public information provided by the Disclosing Party hereunder. In no event shall Service Provider’s use or disclosure of information regarding or relating to the development, improvement or use of any of Service Provider’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
(b) Use of Confidential Information; Standard of Care. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, service providers and representatives who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement. The Receiving Party shall at all times remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, Service Providers and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement, and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
(c) Exceptions. Confidential Information does not include information that: (i) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (ii) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the Receiving Party; (iii) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (iv) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (v) is disclosed by Receiving Party with Disclosing Party’s prior written approval.
(d) Required Disclosures. If the Receiving Party is confronted with legal action to disclose Confidential Information received under this Agreement, the Receiving Party shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and Receiving Party shall reasonably assist disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
(e) Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event the Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this Agreement, it will immediately notify the Disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication, and take any and all necessary steps to prevent any further breach of this Agreement. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
(f) Return of Confidential Information; Survival. Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement. Notwithstanding any expiration or termination of this Agreement, Receiving Party’s obligations to protect the Confidential Information pursuant to this Section 7 will survive for two (2) years after the expiration or earlier termination of this Agreement.
8. Non-Solicitation. During the Term, and for a period of twelve (12) months thereafter, Client will not, directly or indirectly, solicit, hire or offer employment to, enter into an independent contractor relationship with or otherwise directly or indirectly use the services of, on a fulltime, part-time or temporary basis, any employee or contractor of Service Provider who provided any of the Services to Client pursuant to this Agreement or an SOW. Client expressly agrees that Service Provider, in addition to any and all other rights or remedies that Service Provider shall possess, shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of this Section 8 by Client, without the necessity of posting any bond. Client’s obligation under this Section 8 shall survive the termination of this Agreement.
9. Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all third party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of the Indemnifying Party’s (a) gross negligence or willful misconduct or (b) its material breach of any of the terms of this Agreement. The Indemnifying Party’s liability under this Section 9 shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement of the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s). This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.
THIS SECTION 9 STATES THE ENTIRE OBLIGATION AND THE EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
10. Limitation of Liability; Actions. EXCEPT FOR SERVICE PROVIDER’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7 AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE UNDER THIS AGREEMENT TO CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SERVICE PROVIDER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
11. Term. This Agreement shall have an initial term beginning on the Effective Date and ending upon the completion of the Services (the “Initial Term”), unless earlier terminated in accordance with the provisions in Section 12. Thereafter, the Agreement shall be automatically renewed for additional one (1) month terms (each a “Renewal Term”), unless not less than thirty (30) days prior to the end of the Initial Term or any Renewal Term, either Party notifies the other of its intent not to renew the Agreement. The Initial Term and Renewal Terms, if any, are collectively referred to herein as the “Term”.
12. Termination.
(a) Termination for Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) in the event of a monetary breach, five (5) calendar days following written notice thereof; and (ii) in the event of a non-monetary breach after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
(b) Termination for Bankruptcy, Insolvency or Financial Insecurity. Either Party may terminate this Agreement immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365).
(c) Termination for Convenience. Service Provider may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice.
(d) Obligations upon Termination. Termination of this Agreement for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Client shall pay Service Provider for all Services rendered prior to the effective date of termination. Upon termination each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination. Upon the termination of the Agreement, Client shall promptly return to Service Provider any equipment, materials or other property of Service Provider relating to the terminated Services which are in Client’s possession or control.
13. Relationship of the Parties. The relationship of the Parties hereto is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
14. Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this Agreement, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence.
15. Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Georgia, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court serving Fulton County, Georgia. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
16. Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
17. Collection Expenses. If Service Provider incurs any costs, expenses, or fees, including reasonable attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due it under this Agreement, Client agrees to reimburse Service Provider for all such costs, expenses and fees.
18. Assignment; No Third Party Beneficiaries. Neither Party may assign this Agreement, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the Parties. There are no third party beneficiaries to this Agreement.
19. Severability. If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
20. Headings; Construction. The headings/captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
21. Survival. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement (including without limitation, Sections 4, 5, 6, 7, 8, 9, 10, 12(d), 13, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28 and this Section 21), shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.
22. Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
23. Counterparts. This Agreement and any SOW may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
24. Authorized Signatories. It is agreed and warranted by the Parties that the individuals singing this Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
25. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (a) if delivered personally or actually received, as of the date actually received, (b) if delivered by certified mail, return receipt requested, the actual date of receipt evidenced by the written receipt, (c) if delivered by a nationally recognized overnight delivery service, the actual date of receipt evidenced by the written receipt, or (d) if sent via facsimile, electronic mail in portable document format (.pdf) or similar electronic transmission with a hard copy to follow by first class mail or overnight delivery, only when the recipient, by return facsimile, electronic mail or similar electronic transmission, or notice delivered by other method provided for in this Section 25, acknowledges having received that facsimile, electronic mail or similar electronic transmission (with an automatically generated receipt or similar notice not constituting an acknowledgement of an email receipt for purposes of this Section 25). Such notices shall be sent to the applicable Party at the address specified below such Party’s signature to this Agreement (or such other address as it may from time to time designate in writing to the other Party).
26. No Waiver and Amendment. This Agreement (along with any applicable SOW) may be amended or modified only by a written agreement executed by both Parties. Any condition or performance due pursuant to the terms of this Agreement may be waived only by a written instrument specifically identifying the condition or performance which is waived, such waiver shall be executed by all Parties for whom such condition or performance would constitute any benefit, and such written waiver shall be delivered by such waiving Party to all other Parties so as to effect notice of the same in accordance with the notice provisions of this Agreement. No waiver or failure to insist upon strict compliance with any obligations, covenant, agreement or condition shall operate as a waiver of or estoppel with respect to any subsequent condition or performance due.
27. Entire Agreement. This Agreement (along with any applicable SOW) constitutes the entire integrated understanding and agreement between the Parties with respect to the Products and/or the subject matter hereof, and each Party hereby acknowledges and agrees that such Party has not relied on (and the other Party has not made) any statement, agreement, covenant, representation or warranty, express or implied, written or oral, other than those specifically set forth in this Agreement (or an applicable SOW). Every applicable SOW, and every exhibit, schedule and other appendix attached to this Agreement and referred to herein, is hereby incorporated in this Agreement by reference as though fully stated herein. The preamble and recitals of this Agreement are acknowledged by each Party to be true and correct and are incorporated into and made a substantive part of this Agreement by reference as if set forth herein. This Agreement (along with any applicable SOW) supersedes any and all prior and/or contemporaneous negotiations, proposals, correspondences, representations, understanding or agreements, whether written or oral, express or implied, regarding the Products and/or the subject matter hereof.
28. Further Actions. Each Party agrees to perform any further acts and execute and deliver any further documents reasonably necessary to carry out the provisions of this Agreement.