EXHIBIT A
These General Terms of Service (“Terms of Service”) constitute the terms and conditions that govern the relationships between Now Capital Partners, LLC (“NCP”), and its clients (each a “Client”) who agree to receive advisory services (the “Services”) from NCP by entering into a Services Agreement. These Terms of Service are expressly incorporated into each Services Agreement. All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Services Agreement. By signing a Services Agreement or otherwise receiving any Services from NCP, Client agrees to be bound by these Terms of Service.
1. Relationship of the Parties. In providing the Services, NCP (and its representatives) will be acting as an independent contractor and not as an agent, partner, employee or representative of Client. Nothing in the Services Agreement or these Terms of Service shall be construed to create a partnership, joint venture, employment relationship, or fiduciary relationship between the parties.
2. Confidentiality of Client Information. In connection with the provision of the Services, NCP may require information regarding Client, which shall be provided by Client or Client’s designated third-party representatives (“Client Information”). Except as consented to in writing by Client or as required by applicable law or court order, NCP will maintain the confidentiality of all Client Information, and will use the Client Information for the sole purpose of providing the Services; provided, however, that no confidentiality obligations will apply to Client information that is publicly available or was rightfully obtained from a third party. Any work product created by NCP in the course of providing the Services and paid for by Client will be the property of Client. In the event NCP is deemed to have any right, title or interest to any work product created for and paid by Client, NCP shall waive such right in favor of Client, and shall take all reasonable action as requested by client to secure Client’s ownership rights. NCP agrees to control the use and disclosure of Client Information with diligence and care, and to treat the Confidential Information with the same level of protection as it affords its own confidential information of a similar nature. NCP may share Client Information with its agents and representatives who reasonably need to know such information for purposes of performing NCP’s obligations under the Services Agreement.
3. Reliance on Client Information. NCP will rely on the Client Information provided by Client in performing the Services and will not independently verify or audit Client Information. Accordingly, it is Client’s sole responsibility to ensure that Client Information is accurate and complete, and to inform NCP promptly of any suspected error. Services provided by NCP are not intended to uncover inherent errors in Client Information; however, NCP may notify Client if any such errors are discovered. NCP shall not be liable, in any manner, to any third party or any governmental authority, and Client shall defend, indemnify and hold NCP harmless from and against, any claims, damages, causes of action, or criminal fines or penalties relating to, arising out of, or concerning any errors or mistakes in any work product, or any other failure in the performance of the Services that relates to, arises out of, or is caused by Client’s failure to deliver accurate, complete, and timely Client Information to NCP. Client agrees to deliver all relevant Client Information to NCP on a timely basis as requested by NCP. To the extent NCP does not receive necessary Client Information within the timeframes requested, which delays NCP’s delivery or completion of the Services, Client will nonetheless remain responsible for the payment of all fees and expenses required under the Services Agreement arising out of the Services.
4. Default Interest Fees and Collection Costs. All fees and expenses required to be paid by Client to NCP arising out of the Services shall be due in accordance with the payment terms agreed upon in the Services Agreement. Any fees or expenses remaining unpaid more than ten (10) days of the date when due shall bear interest at the rate of 1.5% per month until fully paid. Further, Client understands and agrees that if Client fails to pay any outstanding invoices following written notice from NCP, NCP may: (i) assign the outstanding balance to a collections agency; (ii) report Client’s non-payment to the credit bureaus; and/or (iii) file a civil legal action to collect the amounts owing. Client agrees to pay all costs incurred by NCP in collecting any unpaid fees and expenses, including all collection agency fees and costs, all court costs, witness and expert witness fees, filing fees and reasonable attorneys’ fees; whether incurred prior to, during or subsequent to any mediation, arbitration, litigation, bankruptcy, receivership, liquidation, collection or appellate proceeding.
5. Termination of Services. Either party may terminate the Services Agreement (a) for any reason or no reason upon at least thirty (30) days prior written notice to the other party; (b) with cause following five(5) days prior written notice to the other party regarding the other party’s uncured material breach of any covenant, obligation, representation or warranty of the Services Agreement or these Terms of Service; or(c) with cause immediately in the event of any act of fraud, gross negligence, reckless or willful misconduct, felonious conduct, or in the event the other party is insolvent or files for bankruptcy. NCP also reserves the right to terminate the Services Agreement immediately in the event NCP discovers information regarding Client or its agents or representatives that is counter to NCP’s business or financial interests, reputation or goodwill, in NCP’s sole and absolute discretion. In the event of any termination, Client shall be responsible for all fees and costs incurred for NCP’s performance of the Services up to the date of termination. The confidentiality obligations of NCP set forth in Section 2 of these Terms of Service shall survive for a period of three (3) years after the termination of the Services Agreement or completion of the Services.
6. Return or Destruction of Client Information. Upon termination of this Agreement for any reason, NCP will promptly return, or, at the election of Client, destroy, all Client Information and other property of the Client, if any, then in NCP’s possession or control. Client acknowledges and understands that NCP’s policy is to delete, destroy or dispose of all communications and Client files and records (including but not limited to emails) that are non-essential for the on-going performance of Services after six (6) months of receipt or last use. NCP shall have no obligation to maintain records for Client other than what is necessary to perform the Services. Notwithstanding anything else herein to the contrary, NCP, at its sole discretion, may retain copies of its work product and supporting information for its records. Further, ifClient utilizes a storage system for storing its records and data, NCP shall not be the creator or controller of such system. Client may allow NCP access to such storage system for purposes of providing the Services, but access and authorization to access such storage system shall revert back fully and exclusively to Client upon completion of the Services or termination of the Services Agreement.
7. Indemnification by Client. Except to the extent caused by the gross negligence, fraud or willful misconduct of NCP, Client agrees to indemnify, defend and hold NCP harmless from and against all claims, damages, causes of action, fines and penalties (collectively, “Claims”) from any third-party or governmental entity relating to, concerning or arising out of: (i) the Services or (ii) any infringement of any intellectual property or trade secrets by reason of Client Information or work product based upon such Client Information. Client agrees to assume full financial responsibility for the payment of any loss, liability or expense (including but not limited to reasonable attorneys’ fees) incurred by NCP in connection with any such Claim and the defense or settlement of any such Claim. This Section shall survive termination of the Services Agreement. NCP may direct the defense and settlement of any such Claim with counsel of NCP’s choosing, and Client will provide NCP with reasonable assistance, as requested. NCP shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
8. Indemnification by NCP. NCP agrees to indemnify, defend and hold Client harmless from and against all Claims from any third party or governmental entity relating to, concerning or arising out of (i) physical injury to or destruction of Client’s property during the performance of the Services by NCP; (ii) gross negligence in NCP’s work product; or (iii) any infringement of any intellectual property or trade secrets by NCP during the course of performing the Services. NCP agrees to assume full financial responsibility for the payment of any loss, liability or expense (including but not limited to reasonable attorneys’ fees) incurred by Client in connection with any such Claim and the defense or settlement of any such Claim. This Section shall survive termination of the Services Agreement. Client may direct the defense and settlement of any such Claim with counsel of Client’s choosing, and NCP will provide Client with reasonable assistance, as requested. Client shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
9. Miscellaneous Expenses. To the extent that Client requests that NCP provides any out-of-town work while providing the Services, then, in additional to reimbursing NCP all other relevant costs and expenses incurred in performing the Services, including costs of travel and lodging, Client shall pay to NCP a per diem of $50 per NCP consultant per day for meals. Moreover, to the extent that Client requests that NCP provide its consultants for such number of hours in a given day or week that will trigger over-time or double-time pay under applicable municipal, state or federal law, NCP shall pass on to Client, and Client hereby agrees to reimburse NCP for, all increased labor costs and expenses, including over-time and double-time pay.
10. Limited Warranty. NCP represents and warrants that it will perform the Services in a diligent, professional and competent manner in accordance with industry standards, utilizing personnel with a level of skill commensurate with the Services to be performed. NCP MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF ACCURACY, QUALITY, FREEDOM FROM ERROR, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NCP, ITS AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN.
11. Limitation of Liability. IN NO EVENT WILL NCP BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT NCP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. MOREOVER, NCP’S TOTAL LIABILITY UNDER THE SERVICES AGREEMENT AND THESE TERMS OF SERVICE SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO NCP PURSUANT TO THE SERVICES AGREEMENT.
12. Basis of the Bargain. The limited warranty and disclaimer, exclusive remedies, and damages cap set forth above are fundamental elements of the basis of the agreement between NCP and Client. NCP would not be able to provide the Services to Client on an economic basis without such limitations. Furthermore, the limitations or exclusions of warranties, remedies or liability contained in these Terms of Service shall apply only to the extent permissible under applicable law, which may vary from state to state.
13. Force Majeure. If the performance of the Services or any other obligation under the Services Agreement or these Terms of Service is prevented, restricted, or interfered with by causes beyond a party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrences, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock- outs, and/or work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such cause of nonperformance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.
14. Integration and Severability. The Services Agreement and these Terms of Service represent the complete and exclusive agreement between NCP and Client and supersedes all prior communications, whether written or oral, relating to the subject matter hereof. No amendment or modification to the Services Agreement shall be valid or binding upon the parties unless in writing and signed by each party. No course of conduct shall be deemed to constitute an amendment or modification, and no waiver shall be deemed a continuing waiver unless agreed to in writing by the party to be charged therewith. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. If any provision of the Services Agreement or these Terms of Service is determined by a court of competent jurisdiction to be invalid or incapable of being enforced, such provision shall be excluded to the extent of such invalidity or unenforceability. All other terms hereof and thereof shall remain in full force and effect.
15. Assignment. Neither party may assign or transfer any right or obligation in connection with the Services Agreement without the prior written consent of the other party; provided, however that, upon written notice to Client, NCP may assign the Services Agreement or transfer its rights and obligations hereunder to any affiliate that NCP controls, is controlled by, or is under common control with, or to a party that acquires all or substantially all of NCP’s assets.
16. Modifications. These Terms of Service may be amended and updated from time to time at the sole discretion of NCP. Modified versions of these Terms of Service will be considered effective as of the date and time posted to NCP’s website. Client’s continued use of the Services after such modifications are posted will signify Client’s continued acceptance of, and agreement to be bound by these Terms of Service, as modified.