Basic Terms and Conditions
These Basic Terms and Conditions are the “Basic Terms and Conditions” referenced in a proposal or other engagement letter (the “Proposal”) Sorghum & Rye Consulting (the “Company”) and the client referenced therein (the “Client”). In connection therewith, the parties agree as follows:
1. Definitions
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document and all Proposal document, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, writings and other financial content provided by Client for use in the preparation of and/or incorporation in the Services.
1.3 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.4 Services means all services and the work product to be provided to Client by Company as described and otherwise further defined in the Proposal.
2. Proposal
The terms of the Proposal shall be effective until the expiration date set forth therein. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. Fees and Charges
3.1 Fees. In consideration of the Services to be performed by Company, Client shall pay to Company fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. Client shall pay Company’s incidental and out-of- pocket expenses including but not limited to costs for standard international phone calls, postage, shipping, overnight courier, parking fees and tolls, and taxis at cost relating to the Service.
3.4 Invoices. All invoices are payable upon receipt. A monthly service charge of 1.50% (or, if lesser, the greatest amount allowed by state law) is payable on all balances overdue by 30 days or more. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Company reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.
4. Client Responsibilities
This will confirm that you have asked the Company to perform the Services. Client shall be fully responsible for any failure or dissatisfaction arising from any of the Services performed using materials or software not recommended by the Company. To the extent Company performs Services at the Client’s facilities or other Client premises, Client shall without any charge to Company provide all reasonable facilities and assistance for the safety and convenience of the Company’s employees and representatives. Upon request of Company, Client shall appoint one or more representatives to receive any and all services and deliverables performed by the Company in connection with the Services.
5. Confidential Information
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
6. 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. Neither Company nor Client has the authority to bind the other, to incur any liability or otherwise act on behalf of the other. Each party shall be solely responsible for payment of its employee’s salaries (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.
7. Warranties and Representations
Company hereby represents, warrants and covenants to Client that Company will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. Except for the express representations and warranties stated in this Agreement, Company makes no warranties whatsoever and Company explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project. Client hereby represents, warrants and covenants that the Client Content is true and correct in all material respects and that the Client will comply with all applicable laws, rules, regulations or judicial orders.
8. Indemnification/Liability
8.1 Company Indemnity. Company will indemnify, hold harmless and defend Client, its affiliates and their respective officers, directors, employees and agents, from and against all loss, expense, claim, liability, and defense costs, including reasonable attorneys’ fees, incurred in connection with any third party demands, assertions, claims suits, actions or proceedings: (i) alleging that the Services violate any applicable law, rule, regulation or judicial order, or (ii) arising from gross negligence or willful misconduct of the Company or its employees, subcontractors or agents in connection with the performance of the Services (in each case a “Claim”); except to the extent that a Claim arises from any Client Content or is caused by the acts or negligence of the Client. Client shall promptly notify Company in writing of any Claim and give complete control of the defense and settlement of the Claim to Company. Client shall fully cooperate with Company, its insurance company and its legal counsel in its defense of such Claim(s). This indemnity shall not cover any Claims in which Client fails to provide Company with prompt written notice, which lack of notice prejudices the defense of the Claim. The foregoing states the entire obligation of Company and exclusive remedy of Client with respect to Company’s indemnification obligations for the Services furnished pursuant to this Agreement.
8.2 Limitation of Liability. In no event shall Company be liable under this Agreement for any incidental, consequential, indirect, statutory, special, or punitive damages arising out of the use or performance of or loss of use of the equipment, lost profits, loss of time, inconvenience, loss of business opportunities, damage to goodwill or reputation, or loss of data, 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. Furthermore, in no event shall the Company's liability under this Agreement exceed the amount of Fees received by Client from the Company.
8.3 Client Indemnity. Client will indemnify, hold harmless and defend Company, its affiliates and their respective officers, directors, employees and agents, from and against all loss, expense, claim, liability, and defense costs, including reasonable attorneys’ fees, incurred in connection with any third party demands, assertions, claims suits, actions or proceedings due to a breach of any representation or warranty by the Client. Company shall fully cooperate with Client, its insurance company and its legal counsel in its defense of such Claim(s).
9. Term and Termination
9.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
9.2 This Agreement may be terminated at any time by either party, with or without reason, with or without cause, upon thirty days’ prior written notice to the other party. In addition, either party may terminate this Agreement effective immediately upon notice, if the other party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten days from receipt of written notice of such breach.
9.3 In the event of termination, Company shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Company as of the date of termination, whichever is greater; and Client shall pay all expenses, fees, out-of-pockets together with any additional costs incurred through and up to, the date of cancellation.
9.4 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
10. GENERAL
10.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.
10.2 Notices. Unless otherwise agreed to by the parties, all notices shall be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, or (iii) overnight mail, addressed to the party to be notified at the address set forth on the Proposal or to such other address as such party shall specify by like notice hereunder.
10.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, nothing herein shall prohibit Company from using independent contractors in order to perform the Services.
10.4 Force Majeure. Neither party shall be liable hereunder for any failure or delay in the performance of its obligations under the Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non-performing party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter. Each party may terminate this Agreement, at its option and without liability, if the other party is unable to perform under this Agreement, at its option and without liability, if the other party is unable to perform under this Agreement for a period of sixty days following the occurrence of a force majeure event.
10.5 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Georgia without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. Any controversy or claim arising out of or relating to this Agreement or the Services or the breach of this Agreement shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Such arbitration shall be administered in Fulton County, Georgia, and judgment on the award may be entered in any court having jurisdiction thereof. Each party hereby waives any claim that any legal proceeding (including any tort claim) has been brought in an inconvenient forum or that the venue of that proceeding is improper. The parties further agree, to the extent permitted by applicable law, to waive any right to trial by jury with respect to any claim, counterclaim or action arising from the terms of this Agreement.
10.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
10.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
10.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document and the Proposal. By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
10.9 Identification of Client for Marketing. Client agrees that Company may identify the Client as a client of the Company for marketing or other purposes.