Effective August 15, 2022
These Terms and Conditions govern the Service Agreement entered into between Eva Garland Consulting, LLC (“EGC”) and the party executing the Service Agreement (hereinafter, the “Client”). These Terms and Conditions (as they may be amended from time to time) are fully incorporated into the Service Agreement as if fully set forth therein and, together with the Service Agreement, form a binding agreement (the “Agreement”) between EGC and Client. By signing the Service Agreement, Client agrees to be bound by and signifies its assent to and acceptance of these Terms and Conditions.
1. Scope. These Terms and Conditions shall govern EGC’s provision of services to Client pursuant to the Service Agreement agreed to by the parties. The parties agree that these Terms and Conditions will govern all services provided by EGC to Client (the “Services”) pursuant to the Service Agreement unless otherwise agreed to by the parties in a signed written amendment to the Service Agreement.
2. Services. EGC will perform Services as described in the Service Agreement (in consideration of and according to the fees and schedule set forth therein) for the benefit of Client. EGC has no obligation to commence performance of the Services, except as expressly provided for in the Service Agreement, until after receipt of any required upfront payment as described in the Service Agreement.
3. Payment Terms.
a. Client will pay EGC for performance of the Services as described in the Service Agreement. All payments are non-refundable, except as expressly stated in the Service Agreement.
b. Except as otherwise specifically provided in a Service Agreement, payment of EGC’s invoices shall be due within thirty (30) days after the date of the invoice. In the event that payment is not timely received, EGC reserves the right to immediately suspend or terminate the performance of Services. Payments due and unpaid under the Service Agreement bear interest from the date payment is due at the rate of 1.5 percent per month (or the maximum rate allowed by law, if lower); provided, however, that if Client pays the outstanding balance in full by no later than sixty (60) days after the date payment is due, EGC will not assess interest pursuant to this paragraph. In the event of an action for breach of contract, the amount awarded to EGC on the contract bears interest from the date of breach at the contract interest rate of 1.5% per month (or the maximum rate allowed by law, if lower), which contract interest rate will also apply after judgment. Accordingly, post-judgment interest will be at the contract interest rate rather than the legal rate in accordance with N.C.G.S. § 24-5.
c. In the event Client defaults on any payment required under the Service Agreement, Client will be responsible for any cost and fees incurred by EGC in seeking collection of the payment, including, without limitation, collection agency fees, and reasonable attorneys’ fees and costs.
d. In the event Client pays by check and the payment is refused by the payor bank or depository because of insufficient funds or because Client did not have an account at the bank or depository, Client agrees to pay EGC a processing fee in the amount of $35.00 and to reimburse EGC for any service charges and processing fees imposed on EGC by the bank or depository on account of the returned check. In addition, Client will remain responsible for paying EGC the principal amount of the check.
4. Conflicts. In the event of a conflict between the terms of these Terms and Conditions and the Service Agreement, the terms of these Terms and Conditions will prevail unless a provision of the Service Agreement expressly states that it supersedes the Terms and Conditions and identifies the provision of the Terms and Conditions that it supersedes.
5. Effective Date. These Terms and Conditions will be effective upon the parties entering into the Service Agreement and will remain in full force and effect thereafter, including without limitation in any period during which EGC performs Services for the Client or during which the Service Agreement is in effect.
6. No Obligation to Update. Except as specifically set forth in a Service Agreement, EGC will have no obligation, implied or otherwise, to update any deliverable provided to Client or to monitor the completed Services.
7. Access to Records; Audit and Recordkeeping.
a. Following termination of the Service Agreement, EGC will maintain Client documents and records pertaining to the Services to the extent expressly required to do so by a Service Agreement or as required by applicable law. To the extent EGC has maintained Client documents and records pertaining to the Services, and such documents and records are reasonably requested by Client, EGC will cooperate with Client to make available those Client documents and records to the extent reasonably possible; provided, that Client will compensate EGC for any expenses incurred in providing such documents and records and will also pay EGC on a per employee basis at the applicable employee’s then-current hourly rate for time spent responding to Client’s request, including time spent identifying, collecting, and producing such documents and records as described under this Section. Upon expiration of any required document retention period, Client acknowledges and agrees that EGC is free to destroy its records related to the engagement.
b. To the extent the Service Agreement provides for compensation that may become due following conclusion of the Services, EGC has the right at reasonable intervals to audit Client’s books and records to assess Client’s compliance with the compensation provisions of the Service Agreement.
8. Client’s Responsibilities.
a. Client will provide such access to its information and property as may be reasonably required to permit EGC to perform its obligations under the Agreement. Client acknowledges and agrees that EGC’s performance of the Services may be dependent on Client’s timely and effective satisfaction of Client’s responsibilities under the Agreement and timely decisions and approvals of Client in connection with the Services.
b. Client is responsible for all management responsibilities, and for overseeing any Services EGC provides by designating an individual who possesses suitable skill, knowledge, or experience. Client is responsible for evaluating the adequacy and results of the Services performed and accepting responsibility for the results of such Services. Client is also responsible for: the prevention and detection of fraud; ensuring Client complies with the laws and regulations applicable to its activities; the accuracy and completeness of the records, documents, explanations, and other information provided to EGC; and providing EGC with documentation and other related information that is relevant to the Services and additional information that may be requested for the purpose of performing the Services.
c. EGC has the right to withdraw from the engagement, in its discretion, if Client does not provide EGC with information requested in a timely manner, fails to cooperate with EGC’s reasonable requests, misrepresents any facts, or if there are other facts or circumstances that would impair an effective relationship or would render EGC’s continuing service unlawful, unethical, or unreasonably burdensome. EGC’s withdrawal will release EGC from any further obligation to perform the Services.
9. Client Property. Client hereby grants EGC a worldwide, non-exclusive, fully paid up license to use, copy, modify, enhance, and create derivative works of or otherwise use the property, documents and information of Client in any manner reasonably necessary to perform the Services. Client represents and warrants that it has all rights necessary to grant EGC the foregoing license.
10. Privacy. EGC remains committed to maintaining the confidentiality and security of Client information and maintains internal policies, procedures and safeguards to protect Client personal information.
11. Electronic communication. In the interest of facilitating the Services, EGC may communicate by electronic mail. Such communications may include information that is confidential to Client. EGC will make all reasonable efforts to keep such communications secure in accordance with its obligations under applicable laws and professional standards; however, Client recognizes and accepts EGC has no control over the unauthorized interception of these communications once they have been sent, and Client consents to EGC’s use of electronic mail.
12. No Solicitation. Client acknowledges that EGC recruits and trains employees to provide the Services and that this is a costly and time-consuming endeavor. In particular, EGC employees undergo extensive training at EGC, and EGC employees perform unique and highly specialized services. Client further acknowledges that EGC employees have access to and become familiar with training materials, processes, business methods, and other proprietary information developed by EGC at EGC’s time and expense, and that such information is valuable and unique and essential to EGC’s continued success and business goodwill. Accordingly, Client agrees that for the period during which EGC is performing Services for Client and for the one (1) year period immediately thereafter, Client: (A) will not employ or engage (as an employee, independent contractor or otherwise) any employee of EGC who performed services for Client on behalf of EGC in the prior twelve (12) month period; (B) will not employ or engage (as an employee, independent contractor or otherwise) any employee of EGC in a position or capacity in which such employee will be performing services for Client that are the same as, or substantially similar to, those services provided by that employee for Client on behalf of EGC in the prior twelve (12) month period; and (C) will not solicit, induce, or attempt to solicit or induce any employee of EGC to terminate his or her employment with EGC or to accept employment or engagement with any person or entity engaging in a competing business within any state in which EGC provides services. An employee of EGC for purposes of this Section 12 includes (a) any current employee of EGC, and (b) any former employee of EGC who was employed by EGC in the prior twelve (12) months. Client acknowledges that it would be difficult to ascertain the losses and replacement costs that EGC would sustain by a breach of this non-solicitation provision. Client therefore agrees that if Client, either during the period in which EGC is performing Services for Client or during the one (1) year period immediately thereafter, employs or engages an employee of EGC in violation of this Section, then Client will pay EGC as liquidated damages an amount equal to fifty percent (50%) of the employee’s most recent gross annualized salary with EGC. Client acknowledges and agrees that the amount of these liquidated damages is a reasonable estimate of the damage that would be caused by a breach. Payment of these liquidated damages will be made within fifteen (15) days of Client’s hire of the employee.
13. Non-Exclusivity. EGC will be free to represent or perform services for other persons or entities while performing Services for Client, and the parties agree that this relationship is non-exclusive. Nothing in the Agreement prevents or limits EGC from providing services to other clients, irrespective of the possible similarity of such services to those that might be provided to Client.
14. Indemnification. Client will defend, indemnify and hold harmless EGC and its officers, employees and agents from and against any and all claims, losses, suits, actions, debts, charges, causes of action, damages, expenses, fees (including reasonable attorneys’ fees), costs, judgments, and other liabilities directly or indirectly arising out of or resulting from (a) a breach by Client of any of the terms of the Agreement, (b) any willful or negligent act or omission by Client, or any of Client’s employees, agents, representatives, or affiliates, or (c) any violation of law, including violation or failure to comply with any applicable statute, rule, regulation, injunction, order, or decree by Client, or Client’s employees, agents, representatives or affiliates.
15. LIMITATION OF LIABILITY. EGC DISCLAIMS AND MAKES NO REPRESENTATIONS, GUARANTEES OR WARRANTIES WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT WITH RESPECT TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EGC, IN NO EVENT SHALL EGC BE LIABLE TO CLIENT UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, EITHER ARISING OUT OF OR IN ANY WAY RELATING TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHERMORE, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF EGC OR ANY OF EGC’S REPRESENTATIVES TO CLIENT (OR ANYONE CLAIMING BY OR THROUGH CLIENT) FOR ANY INJURIES, CLAIMS, LOSSES, EXPENSES, COSTS OR DAMAGES, OR ANY COMBINATION OF THE FOREGOING, INCLUDING ATTORNEYS’ FEES OR COSTS, RESULTING FROM ANY FORESEEABLE OR UNFORESEEABLE CAUSE OR CAUSES, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES RECEIVED BY EGC FROM CLIENT IN THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE CAUSING THE DAMAGES, LESS DAMAGES ALREADY PAID THEREUNDER, PROVIDED THAT THE FOREGOING WILL NOT AND DOES NOT LIMIT CLIENT’S OBLIGATION TO PAY FEES TO EGC PURSUANT TO THIS AGREEMENT. IT IS INTENDED THAT THIS LIMITATION OF LIABLITY AND DAMAGES APPLIES TO ANY AND ALL LIABILITY, DAMAGES, OR CAUSE OF ACTION HOWEVER ALLEGED OR ARISING, UNLESS OTHERWISE PROHIBITED BY LAW.
16. LIMITATION ON WARRANTIES AND ACTIONS.
a. EGC represents that it will perform the Services in good faith and in a professional manner. Nothing in the Agreement may be construed as a promise or guarantee of outcomes.
b. EXCEPT AS EXPRESSLY STATED HEREIN, SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHATSOVER, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EGC MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITION OF ANY SUCH SERVICES OR AS TO THE CONDITION OF ANY INFORMATION GENERATED UNDER THIS AGREEMENT OR THAT THE SERVICES PROVIDED WILL ACCOMPLISH THE INTENDED RESULTS. THE EXCLUSIVE REMEDY FOR CLIENT FOR ANY BREACH OF WARRANTY WILL BE FOR EGC, UPON RECEIPT OF WRITTEN NOTICE, TO USE DILIGENT EFFORTS TO CURE SUCH BREACH, OR FAILING ANY SUCH CURE IN A REASONABLE PERIOD OF TIME, TO RETURN THE FEES RECEIVED BY EGC FROM CLIENT WITH RESPECT TO THE SERVICES GIVING RISE TO SUCH BREACH, SUBJECT TO SECTION 15, ABOVE.
17. Independent Contractor Status. It is understood and agreed that EGC is and will remain an independent contractor in relation to Client during the period in which EGC is performing Services for Client, and that EGC will not be considered to be the agent, distributor, partner, fiduciary, joint venturer, co-owner or representative of Client. Neither EGC nor Client will act or represent itself, directly or by implication, in any such capacity or in any manner assume or create any obligation on behalf of, or in the name of, the other.
18. Waiver. No waiver of any provision of the Agreement (or any right or default hereunder) shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Any such waiver shall be effective only for the instance given, and shall not operate as a waiver with respect to any other rights or obligations under the Agreement or applicable law in connection with any other instances or circumstances.
19. Choice of Law. The Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without reference to its choice of law rules. Any claim or litigation brought under or relating to the Agreement shall be brought in a court of competent jurisdiction located in Wake County, North Carolina. Each party (i) consents to the personal jurisdiction of said courts, (ii) waives any venue or inconvenient forum defense to any proceeding maintained in such courts, and (iii) agrees not to bring any proceeding arising out of or relating to the Agreement or the relationship between the parties in any other court.
20. Severability. The provisions and clauses of the Agreement are separate and independent covenants, and the invalidity or unenforceability of one or more of the provisions or clauses hereof will not affect the validity or enforceability of the remaining provisions or clauses. Moreover, if one or more of the provisions contained in the Agreement will for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision or provisions will be revised or excised by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it then exists.
21. Force Majeure. Provided that such failure is cured as soon as is practicable after its occurrence, neither party to the Agreement shall be liable for its failure to perform under the Agreement due to circumstances beyond its reasonable control, including but not limited to strike, riot, war, fire, terrorist act, pandemic events, accident, lock-outs or power failure, not caused by the fault or neglect of such party, or compliance with any law, regulation or order, whether valid or invalid, of the United States of America or any other governmental body. In such event, the parties will meet promptly to determine an equitable solution to the effects of any such force majeure event, and the party affected by the force majeure event will use all reasonable efforts to minimize the loss or inconvenience suffered by the other party. Nothing in this Section relieves Client of its obligation to pay EGC in accordance with the Agreement.
22. Entire Agreement. The Agreement (which includes these Terms and Conditions together with the Service Agreement) and any non-disclosure agreement entered into by the parties, constitute the final and entire agreement between EGC and Client with respect to the Services and supersede any terms and conditions in any acknowledgement form or other document of Client as well as any prior discussions or understandings. No amendment, change or modification of the Agreement will be valid unless memorialized in a formal writing signed by the parties to the Agreement. These Terms and Conditions may not be amended orally or through course of performance.
23. Construction. The Agreement will be construed as if drafted jointly by each of the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any provision in the Agreement. All parties agree that the language of the Agreement will be construed as a whole according to its fair meaning and not strictly for or against any of the parties to the Agreement.
24. Benefit. The Agreement will be binding upon and will inure to the benefit of each of EGC and Client, and to their respective heirs, representatives, successors and assigns.
25. Survival. These Terms and Conditions will survive in the event of termination of the Services and any Service Agreement between EGC and Client.
26. Accounting Supplement.
a. Client understands and acknowledges that audit procedures may require review of documentation that supports expenses, and in performing the Services, EGC relies on Client’s representations that EGC has been correctly informed of all transactions and that Client understands and has complied with the documentation requirements for expenses. EGC recommends that Client should retain all documents, information and other data that form the basis of the Services performed by EGC. These may be necessary for a future audit or examination by governmental or regulatory agencies.
b. EGC’s Services cannot be relied upon to identify or disclose any misstatements, including those caused by fraud or error, or to identify or disclose any wrongdoing with Client’s business or noncompliance with laws and regulations. Client agrees and acknowledges that EGC does not review and is not in any way responsible for the accuracy, truthfulness and completeness of any documents or information submitted by Client in connection with the Services, and that the Services do not include EGC auditing the information Client provides. Client also understands and acknowledges EGC does not provide legal or tax advice or representation, and that Client should seek the counsel of a qualified attorney or tax advisor when necessary. No fiduciary relationship is created between Client and EGC. EGC will not express an opinion or a conclusion or provide any assurance on financial statements or reports.