ANDERSON ASSESSMENTS, LLC GENERAL TERMS AND CONDITIONS FOR SERVICES
ALL SERVICES PROVIDED BY ANDERSON ASSESSMENTS, LLC (“SERVICE PROVIDER”), TO SERVICE PROVIDER’S CLIENTS AND CUSTOMERS (“CLIENT”) ARE GOVERNED BY THE FOLLOWING GENERAL TERMS AND CONDITIONS FOR SERVICES.
1. Services.
(a) Service Provider will perform certain services and create and provide certain deliverables, as more particularly described in statements of work (each an “SOW” and collectively “SOW”s) which may be entered into from time to time by the parties and, upon execution, will be incorporated and made part of these General Terms and Conditions for Services (the "Services"). The SOWs, together with these terms and conditions for services, shall collectively be referred to herein as the "Agreement." The first SOW is attached hereto as Exhibit A. No obligation to provide any Services shall be incurred by Service Provider until such time that an SOW has been executed by authorized representatives of both parties and the Fees (hereinafter defined) have been paid in full to Service Provider.
(b) Service Provider may represent, perform services for, and contract with other additional clients, persons, or companies as Service Provider, in its discretion, deems fit.
2. Fees and Expenses.
(a) Fees. As consideration for Service Provider's rendition of the Services, Client agrees to pay Service Provider the fees set forth in the SOW (the "Fees"). The Fees are exclusive of taxes, levies, duties, governmental charges and expenses, which amounts will be billed to and paid by Client.
(b) Expenses. In addition to the Fees, Client agrees to reimburse Service Provider for all of Service Provider's travel and other expenses reasonably incurred by Service Provider in connection with its performance of the Services.
3. Billing and Payment. Service Provider shall issue invoices to Client pursuant to the timetable set forth in the SOW. Client shall pay invoices in U.S. dollars within thirty (30) days of the date of Service Provider's invoice. Payments must be made by bank wire transfer, credit card or debit card. Client shall have no right of offset or withholding under this Agreement. Any amounts not paid by Client when due shall be subject to interest charges, from the date due until paid in full, at the rate of ten percent (10%) compounding per week, or the maximum rate permitted by applicable law. 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 plus interest 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 hereunder or under any SOW.
4. Warranty. The Services to be performed hereunder are in the nature of security and risk management consulting. Service Provider does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Service Provider warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices, provided that Client has fulfilled all of its obligations under this Agreement including timely payment of Fees. Service Provider shall comply with all statutes, ordinances, regulations and laws of all international, federal, state, county, municipal or local governments applicable to performing the Services hereunder.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 4 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 ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. SUBJECT TO SECTION 20 HEREIN, CLIENT'S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF ANY AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
5. Ownership of Work Product. This is not a work-for-hire agreement. The copyright in all deliverables created under the Agreement for Client shall belong to the 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 limited, non-exclusive, non- transferable, non-sublicensable license to Client strictly for its internal use as intended under this Agreement and contingent upon full payment of all Fees due hereunder.
6. Confidentiality. The parties acknowledge that to perform the Services one party may disclose to the other confidential and/or sensitive information ("Confidential Information"). The party disclosing information is referred to as the "Disclosing Party" herein and the party receiving information as the "Receiving Party". Confidential Information shall mean all information disclosed by the Disclosing Party to the Receiving Party which is non-public and either proprietary or confidential in nature and related to the Disclosing Party's business or activities including, but not limited to, financial, legal, technical, marketing, sales and business information, which is: (a) marked as confidential at the time of disclosure; or (b) is unmarked (e.g., disclosed orally or visually) but is identified as confidential at the time of disclosure; or (c) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to its employees, subcontractors, consultants and representatives who have a need to know such information to perform the Agreement. The Receiving Party shall only use Confidential Information in furtherance of its performance of the Agreement, and not for any other purpose or for the benefit of any third party. Receiving Party's obligations to protect the Confidential Information will survive for three (3) years after the termination of this Agreement. These confidentiality obligations shall not apply to any information which: (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; or (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. In no event shall Service Provider's use or disclosure of information relating to the development, improvement or use of any of Service Provider's products be subject to any limitation or restriction. If the Receiving Party is confronted with legal action to disclose Confidential Information it 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. 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. All Confidential Information shall remain the property of the Disclosing Party. All copies of Confidential Information shall be returned to the Disclosing Party promptly upon the Disclosing Party's request or within ten (10) days of the expiration or termination of this Agreement.
7. Indemnification. To the fullest extent permitted by applicable law, Client agrees to indemnify, defend, and hold harmless Service Provider, and its affiliates, managers, members, officers, directors, employees, and agents from and against any and all claims, liabilities, losses, damages, costs, and expenses, including reasonable
attorneys' fees and court costs, arising out of or in connection with Client's use of the Services, Client’s breach of this Agreement, or any negligent or wrongful act or omission by Client or its employees, agents, or contractors. This indemnification obligation shall survive the termination or expiration of this Agreement for the maximum term permitted by applicable law.
8. Limitation of Liability; Actions. 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 OR EXPIRATION 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.
9. Cooperation of Client. Client agrees to comply with all reasonable requests of Service Provider and shall provide Service Provider's personnel with access to all documents and facilities as may be reasonably necessary for the performance of the Services. Client agrees to furnish without charge adequate space at Client's premises for use by Service Provider's personnel while performing the Services as reasonably requested by Service Provider.
10. Term and Termination:
(a) Term: This Agreement shall commence upon full execution hereof by the parties payment of the Fees and all other amounts owed hereunder to Service Provider and thereafter shall remain in effect until terminated by either party as more fully set forth herein.
(b) 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, ten (10) 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.
(c) Termination Without Cause: This Agreement may be terminated by Service Provider, for any reason with or without cause, upon thirty (30) days' prior written notice to the Client. Client may only terminate this Agreement in accordance with Section 10(b) for material breach.
(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's Confidential Information in its possession at the time of termination. Upon the termination, Client shall promptly return to Service Provider any equipment, materials or other property of the Service Provider which are in Client's possession or control.
11. Non-Solicitation. During the term of this Agreement and for three (3) years following the expiration or termination date of the Agreement, Client agrees not directly or indirectly solicit or induce any person who performs Services hereunder on behalf of Service Provider to leave the employ of Service Provider.
12. 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. 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.
13. 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, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, quarantines, 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 fifteen (15) business days of its occurrence, which notice shall include a description of the force majeure event and an estimate of the length of time such event will delay or prevent performance hereunder.
14. Partial Invalidity. In the event that any part or portion of this Agreement is deemed to be invalid, illegal, or otherwise unenforceable: (1) the parties shall use all reasonable efforts to negotiate in good faith to amend the term to eliminate any such invalidity, illegality, or unenforceability to the extent practically possible, taking into full account their original intent when entering into this Agreement; and (2) the remaining provisions of the Agreement shall continue in full force and effect.
15. Publicity: Subject to the confidentiality provisions set forth herein, Service Provider shall be free to disclose to the public that Client is a client of Service Provider, and may use Client's name to make such statement.
16. Assignment. Client may not assign, delegate or otherwise transfer this Agreement or it obligations hereunder, in whole or in part, without the prior written consent of Service Provider, with such consent not to be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this section shall be null and void. No permitted assignment or delegation will relieve Client of its obligations under this Agreement, and as such, Client shall remain primarily liable in connection therewith. Service Provider shall be entitled to assign or otherwise transfer this Agreement, in whole or in part, without the prior consent of Client.
17. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the address set forth in the applicable SOW or as otherwise designated by a party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (1) upon receipt by the receiving party; and (2) if the party giving the notice has complied with the requirements of this section.
18. Survival. Following the termination of this Agreement, any provision set forth herein which, by its very nature, is intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting ownership of work product, confidentiality, indemnification, limitation of liability, non- solicitation, accrued payment obligations, and governing law and venue.
19. Waiver. 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 or any other provision of this Agreement thereafter.
20. Arbitration. Any dispute, controversy or claim arising out of or related in any manner to this Agreement which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall take place in-person (not by electronic means) before a panel of one arbitrator sitting in Kittitas County, Washington State. The language of the arbitration shall be English. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Washington. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award consequential, indirect, incidental, special, exemplary, punitive or specific performance. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement, except that a party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction if in its reasonable judgment such action is necessary to avoid irreparable harm.
21. Attorneys' Fees. If either party incurs any legal fees associated with the enforcement of this Agreement or any rights hereunder, the prevailing party shall be entitled to recover its reasonable outside attorney's fees and any court, arbitration, mediation, or other reasonable litigation expenses from the other party.
22. 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.
23. Counterparts. This Agreement 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.
25. Entire Agreement; Modification. The Agreement (along with any attachments incorporated herein) sets forth the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or communications between the parties, whether written, oral, electronic, or otherwise, relating hereto. No change, modification, amendment, or addition of or to this Agreement shall be valid unless in writing and signed by authorized representatives of the parties. Each party hereto certifies to have received ample time to review this Agreement with independent legal advice regarding this Agreement and their respective rights and obligations set forth herein. The parties acknowledge and agree that they are not relying upon any representations or statements made by the other party or the other party's employees, agents, representatives or attorneys regarding this Agreement, except to the extent such representations are expressly set forth in this Agreement.