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”) unless otherwise agreed to by the parties in writing.
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 two 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.
c. In the event Client defaults on any payment required under the Service Agreement, Client will be responsible for any fees incurred by EGC in seeking collection of the payment, including, without limitation, collection agency fees, reasonable attorneys’ fees and costs.
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 is meant to supersede 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 in any period during which EGC performs Services for the Client or during which a 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 has no duty or obligation to maintain documents and records pertaining to the Services, except as specifically set forth in a Service Agreement or as required by applicable law. To the extent EGC has maintained documents and records pertaining to the Services, and such documents and records are requested by Client, EGC will cooperate with Client to make available those 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 services performed under this Section.
b. To the extent the Services provide for a Success Fee or other compensation that may become due following conclusion of the Services, EGC has the right during regular business hours and at reasonable intervals to audit Client’s books and records to assess Client’s compliance with the compensation provisions of the Service Agreement.
8. Certification Related to Outstanding Grants. Client agrees to promptly inform EGC upon the award of a grant or other funding that may result in payment to EGC pursuant to the Service Agreement and agrees to provide EGC a copy of any Notice of Award within ten (10) days of receipt. Client further will certify to EGC no less than biannually in writing the status of any grant submissions that may yield a Success Fee or other payment to EGC. Such certification will include for each grant submission, the current status of the grant submission, whether an award has been made, the date of the award, and the amount of the award, if any.
9. Cooperation and Disclosure. Client will provide such access to its information and property as may be reasonably required in order to permit EGC to perform its obligations hereunder. 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.
10. 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.
11. Accuracy of Information. Accuracy and full disclosure are of paramount importance when requesting funds from governmental entities, and Client represents and agrees that Client will provide complete and accurate information to EGC, including but not limited to any information that would have a material impact on the Services to be performed by EGC. 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.
12. No Solicitation. 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 or independent contractor 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 or independent contractor of EGC in a position or capacity in which such employee or independent contractor will be performing services for Client that are the same as, or substantially similar to, those services provided by that employee or independent contractor for Client on behalf of EGC; and (C) will not solicit, induce, or attempt to solicit or induce any EGC employee or any independent contractor (who is then engaged by EGC or was engaged by EGC in the prior six (6) months) to terminate his or her employment or engagement 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.
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 and judgments 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 THIS 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. EGC makes no representation or guarantee regarding the success or chances of the applications and proposals to be prepared, submitted and/or approved. Comments about the outcomes of any matters are expressions of opinions only. Accuracy and full disclosure are of paramount importance when requesting funds from governmental entities. Client represents and agrees it will provide complete and accurate information to EGC, including but not limited to any information that would have a material impact on performance of the Services.
b. EGC DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WIHTOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE EXCLUSIVE REMEDY FOR CLIENT FOR ANY BREACH OF THIS 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.
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 or 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. Prevailing Party. Should either party institute any action or proceeding in court to enforce any provision of the Agreement or for damages by reason of an alleged breach of any provision of the Agreement, the prevailing party will be entitled to recover from the other party the prevailing party’s costs, including without limitation such amount as the court may adjudge to be reasonable attorney’s fees for services rendered to the prevailing party in such action or proceeding. The term “prevailing party” will include, without limitation, any party who is made a defendant in litigation in which damages and/or other relief may be sought against such party and a final judgment or decree is entered in such litigation in favor of such party defendant.
20. 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.
21. 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.
22. 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, 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.
23. 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. These Terms and Conditions may be amended from time to time by mutual written agreement of the parties
24. The Terms and Conditions may not be amended orally or through course of performance.
25. 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.
26. Survival. These Terms and Conditions will survive in the event of termination of the Services and any Service Agreement between EGC and Client.