GENERAL TERMS & CONDITIONS
- “Agreement” shall mean these General Terms & Conditions and the Scope of Work (“SOW”) to which it they are attached. If there is a conflict between these General Terms & Conditions and the terms of the SOW, the SOW shall prevail.
- “Services” shall mean the services described in the attached SOW.
- “Work Product” shall mean any deliverables created by Kerry Barrett Consulting [KBC] for Client in connection with the Services.
II. THE SERVICES
- Provision of Services. Paradigm will provide to Client, and Client will receive from KBC, all upon the terms and conditions set forth in this Agreement, the Services. KBC will provide the Services to Client in accordance with the SOW.
- Cooperation. Client shall promptly provide any materials and information requested by KBC as needed to provide the Services, including, but not limited to logos, trademarks, business plans, contact lists, resources, marketing materials, competitive analysis, market research, analyst reports, selling tools presentations, site access, log-in credentials and passwords. If any part of the Services are delayed by any act or omission of Client, including but not limited to Client’s failure to make payments, the scheduled completion of the Services may be delayed, for which KBC will not be responsible.
- Subcontracting. KBC may, in its sole discretion, use one or more third party contractors to provide some portions of the Services and/or other services related to the operations of KBC’s business.
- Additional Services. Once the Services are complete, any additional services, will be provided only upon execution of a new SOW, which shall include the additional fees for such services. Any subsequent requests for website maintenance, edits, changes or updates shall be billed at KBC’s standard hourly rates.
- Approvals. KBC shall submit all Work Product to Client for review and approval. Client shall review the Work Product as expeditiously as possible and communicate any objections, corrections or approvals as soon as is reasonably practicable. KBC will not be responsible for project delays or expenses incurred as a result of approval delays on the part of Client or delays resulting from other vendors. In the event that Client fails to respond to communications from KBC for a period of thirty (30) days or more, KBC shall have the right to “suspended” all Services. In the event that Client wishes to reinstate the Services, Client shall, within thirty (30) days following a notice of suspension, pay all fees and expenses due to KBC through the date of suspension and provide all information required to complete the Services. In the event that Client fails to reinstate the Services within such thirty (30) day period, the Services shall be deemed “abandoned” and this Agreement shall be terminated. Following a termination for abandonment, all fees and expenses will become immediately due and payable. All previous monies paid by Client will be forfeited.
- Accuracy of Client Information, Review of Output. The performance of the Services by KBC shall be dependent on the timely completion of Client’s responsibilities and obligations under this Agreement. Client shall be responsible for the consequences of any instructions Client may give to KBC, provided KBC has followed such instructions. Client shall be responsible for the accuracy of all information provided to KBC. Client shall not act or rely upon any Services containing any error, omission, or discrepancy discovered by either party prior to taking such action until such error, omission or discrepancy has been corrected. KBC does not provide record keeping services. Client shall keep copies of all source documents of the information delivered to Paradigm or inputted by Client or on behalf of Client, including log-in and password information.
- Compliance with Laws. KBC is not a regulatory compliance firm and does not provide legal or regulatory advice. The Services are not intended (and should not be considered) to include legal or regulatory advice on any subject matter. Client should consult its legal counsel and other professional advisors to discuss how regulatory compliance matters including, without limitation, disclosures or other regulatory information, may relate to particular circumstances, such as when to include same, and in what form, in the Work Product.
ADDITIONALLY, KBC DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT ANY OF THE DELIVERABLES WILL COMPLY, MEET OR SATISFY ANY FEDERAL OR STATE LAWS, RULES, STANDARDS OR REGULATIONS, INCLUDING WITHOUT LIMITATION, WEBSITE ACCESSIBILITY LAWS, RULES, STANDARDS OR REGULATIONS RELATING TO THE AMERICANS WITH DISABILITIES ACT OF 1990, OR OTHERWISE.
Client shall not use the Services, other than for Client’s own legitimate and lawful business purposes and in a manner that complies with this Agreement and all applicable laws and regulations. Without limiting the generality of the foregoing, Client shall not use the Services to engage in fraudulent, deceptive or misleading activities or practices; infringement, misappropriation or violation of any intellectual property or other right of any person or entity; and/or violation of any applicable law or regulation. Changes in the performance of KBC’s obligations under this Agreement necessitated by KBC’s good faith interpretations of any applicable law and/or regulation shall not constitute a breach of this Agreement.
III. FEES AND EXPENSES
- Fees. In consideration of the Services, Client hereby agrees to pay the fees as outlined in the SOW. All fees are non-refundable.
- Expenses. All reasonable in-house administrative costs are included in the fees outlined in the SOW. Client shall reimburse KBC for all third-party costs including, but not limited to: hosting fees, domain fees, photography, extensive photocopying, color copies, stock images, software, shipping costs, travel expenses, advertising costs. Any single expense in excess of $100.00 shall be pre-approved in writing by Client.
- Payment Terms. If the SOW requires a monthly retainer, Client hereby authorizes KBC to charge the retainer amount, via ACH transfer, on the 5 th day of each month during the term of this Agreement. If the SOW does not require a monthly retainer, all fees shall be invoiced on the 5th day of each month along with a summary of hours used in the prior month. An itemized statement of expenses, one-time fees and out of pocket fees will be invoiced on the 5th of each month for the prior month. Client shall pay all invoices within thirty (30) days from the date of each statement. Any payments received by Paradigm after thirty (30) days shall be subject to late penalty fees of 2% per month from the due date until the amount is received in full. Payment may be made via ACH payment, check or credit card. All credit card charges will be subject to a 3.5% processing fee.
IV. TERM AND TERMINATION.
- Term. This Agreement shall become effective upon execution of the SOW and shall expire upon the completion of the Services and payment of the fees in full.
- Termination. Notwithstanding the foregoing, Paradigm reserves the right, at KBC’s sole option, to immediately suspend its performance, in whole or in part, under this Agreement, or immediately terminate this Agreement, if KBC, in good faith and in its sole discretion, determines: (a) Client has failed to pay any fees due under this Agreement, to perform any other obligation, or upon a breach of this Agreement by Client; (b) the requirements of any law or regulation have not been met; (c) as a result of any new, or changes in existing, law or regulation that the requirements of any law or regulation will not be met; (d) Client becomes insolvent, files for bankruptcy, or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or makes an arrangement pursuant to any bankruptcy law, or if a receiver, liquidator, custodian, trustee or the like is appointed for its business; or (e) for any other reason, upon thirty (30) days’ written notice to Client.
Upon termination of this Agreement: (a) all rights (including any access and use rights) granted to Client by KBC under this Agreement or in connection with the terminated Services will be terminated; (b) all fees and expenses will become immediately due and payable to KBC; (c) KBC will cease all Services; and (d) all Work Product will be transferred to Client; provided that, in the event of an early termination, any additional out-of-pocket expenses incurred by KBC in transferring such Work Product shall be borne by Client.
Additionally, should Client choose to terminate this Agreement for any reason within sixty (60) days of signing this Agreement, KBC shall be entitled to a kill fee of 50% of the remaining hours of that were expected to complete the project plus full payment for services performed at KBC’s non-retainer hourly rate of $600.00 and expenses incurred through the effective date of termination. At no time shall KBC reimburse Client for any prepaid unused hours or any portion thereof.
With the exception of KBC’s obligation, if any, to provide Services under this Agreement, all provisions of this Agreement shall survive such termination of this Agreement. Any such termination shall not relieve Client of any fees, costs, or other payments due to KBC through the date of any such termination, nor affect any duties or obligations of either party that accrues prior to the effective date of any such termination.
- KBC Limited Warranty. Unless otherwise set forth in this Agreement, KBC makes no warranty or guaranty, except that KBC warrants that it: (a) will perform the Services in a good, diligent, timely, and professional manner, utilizing personnel with a level of skill commensurate with the Services to be performed; and (b) has the requisite power, capacity and authority to enter into this Agreement and to carry out KBC’s obligations hereunder. Client must report any breach in this limited warranty to KBC in writing within five (5) days of delivery of each Services’ final deliverable. For any breach of the above warranty in this Section, KBC will, at its option and at no cost to Client, provide remedial services necessary to enable the Services to conform to the warranty or, if such remedial services are unsuccessful, refund amounts paid solely in respect of the defective Services. Client will provide KBC with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. The remedies set out in this subsection are Client’s sole remedies for breach of the above warranty.
THE ABOVE WARRANTY IN THIS SECTION IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY OTHERWISE STATED HEREIN, ALL OF THE SERVICES PROVIDED ON AN ‘AS IS’ BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, KBC HEREBY SPECIFICALLY DISCLAIMS, WITH RESPECT TO THE SERVICES, ANY AND ALL (I) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND NON-INFRINGEMENT, (III) WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND/OR (IV) WARRANTIES THAT THE SERVICES OR WORK PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, AND/OR SECURE, INCLUDING THE SERVICES OF ANY THIRD PARTY HOSTING PROVIDER, DATA SECURITY SERVICE OR PRODUCT, OR ANY DATA BACKUP SERVICE OR PRODUCT.
- Client Warranties and Representations. Client warrants and represents that it: (a) has the requisite power, capacity and authority to enter into this Agreement and to carry out Client’s obligations; (b) shall not use the Services or Work Product in a manner that violates any law or governmental regulation; (c) has not and will not enter into any agreement or perform any act which might contravene the purposes and/or effects of this Agreement; (d) by providing non-public personal information to KBC, Client has the right, permission, and authority to provide such non-public personal information, and the submission of non-public personal information does not violate any law, regulation, and/or confidentiality agreements or obligations; and (e) by providing text, images, photographs, and content to KBC, Client has the right, permission, and authority to provide, and have used, such text, images, photographs, and content prior to incorporating the same into the Services or Work Product.
V. INTELLECTUAL PROPERTY
- Work Product. Upon KBC’s receipt of all monies owed by Client as set forth in the SOW and this Agreement, KBC shall assign to Client all worldwide right, title and interest in and to the Work Product. Any expenses related to such assignment shall be paid by Client. At the time of assignment, Client shall grant KBC a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, sub-license, distribute, link to, or display the Work Product.
- Limitations. Notwithstanding anything herein to the contrary, Client’s ownership of the Work Product shall be subject to: (a) the rights of third parties whose materials or services are contained in the deliverables with Client’s prior knowledge and approval (i.e., stock footage, photos, music, software, and the like), and/or used under a license or other permission granted to Paradigm and/or Client; and (b) the rights of KBC in and to any and all materials owned and/or developed by KBC prior to, or independent from, the Services, including without limitation, any and all methodologies, software, applications, writings, documents, processes or procedures used, created and/or developed by Paradigm (collectively, “KBC’s Materials”). KBC hereby grants Client a royalty-free, perpetual, worldwide license to use KBC’s Materials to the extent incorporated in, combined with, or otherwise necessary for the use of the Work Product.
- Clearance of Work Product. KBC shall have no obligation whatsoever to conduct any clearance searches or investigations of any kind prior to delivering any Work Product to Client. Client acknowledges and agrees that Client’s use and/or attempted registration of any Work Product before any Patent, Trademark or Copyright Office, or before any other government agency, office or otherwise, is at Client’s own discretion and risk, and that Client will be solely responsible for any liability, claims, alleged claims, law suits, filings, judgements, actions, damages, or otherwise, arising from Client’s use, misuse and/or attempted registration of any Work Product.
Client further acknowledges and agrees that Client is solely responsible, and will assume any and all costs, should Client or a third party on behalf of Client undertake the performance of any investigations or searches to clear the Work Product for (a) Client’s use in connection with its business, or otherwise; (b) Client’s attempted registration before any Patent, Trademark or Copyright Office, or before any other government agency, office or otherwise, whether in the United States, or in any other foreign country or territory; (c) assessing whether one or more of the deliverables infringe the intellectual property or other proprietary rights of a third party; or (d) compliance with any federal or state laws, rules, standards or regulations, including without limitation, The Americans With Disabilities Act of 1990, or otherwise.
VI. DATA SECURITY; BREACH NOTIFICATION.
- No KBC Warranty Regarding Data Security. While KBC takes commercially reasonable security measures to protect its information and the information of its client’s, there is no “perfect” security on the Internet, and no one can guarantee either 100 percent uptime, or complete protection from cyber-attacks. Client acknowledges that Client is solely responsible for maintaining the security and availability of Client’s data (including deployment of firewalls, intrusion prevention systems, and required systems or application patching, update or upgrades) and complying with any federal or state law or regulation to which Client is or may become subject. Paradigm does not warrant, represent, or guaranty that it has taken measures to maintain administrative, technical, or physical security safeguards designed to: (a) insure the security and confidentiality of non-public personal information; (b) protect against threats or hazards to the security or integrity of non-public personal information; (c) protect against unauthorized access or use of non-public personal information that could result in substantial harm or inconvenience; or (d) insure that any Service or Work Product is free from computer viruses or malicious code, at the time of delivery or the Services or Work Product or in the future.
- Notification. If KBC becomes aware of any unauthorized access that compromises the security, integrity or confidentiality of any non-public personal information, KBC will take appropriate actions to contain and mitigate such unauthorized access, as required by law. IN THE EVENT OF A SECURITY BREACH, CLIENT AGREES THAT CLIENT IS RESPONSIBLE, AT CLIENT’S SOLE COST AND EXPENSE, FOR ANY AND ALL COSTS RELATING TO COMPLIANCE WITH DATA BREACH LAWS, OR COSTS RELATING TO CUSTOMER AND/OR CONSUMER NOTIFICATION.
VII. LIMITATION OF LIABILITY
- Mitigation of Damages. KBC and Client will each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to this Agreement or Services.
- Limitation on Damages. KBC endeavors to provide the highest possible quality of service to its clients but cannot and does not assume liability for damages or losses resulting from Force Majeure Events (as defined below).
IN NO EVENT WILL KBC BE LIABLE PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, OR ITS SUBJECT MATTER, TO CLIENT, OR ANY THIRD PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, ENHANCED, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY INJURIES, HARM OR OTHER DAMAGES CLIENT MAY HAVE SUSTAINED IN CONNECTION WITH PARADIGM’S PROVISION OF THE SERVICES, AND IN NO EVENT SHALL PARADIGM BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY ACTION (WHETHER IN CONTRACT, TORT OR UNDER OTHER FORM OF LIABILITY) FOR DIRECT DAMAGES OR LOSS, HOWEVER ARISING OR CAUSED, FOR AN AMOUNT THAT EXCEEDS THE TOTAL PAID BY CLIENT FOR SERVICES PROVIDED FOR THE PRECEDING 12 MONTHS.
Notwithstanding any other term of this Agreement, CLIENT AGREES TO INDEMNIFY AND/OR HOLD HARMLESS KBC, ITS EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, AND AFFILIATES (COLLECTIVELY, THE “KBC INDEMNITEES”) FROM AND AGAINST ANY AND ALL LIABILITY (INCLUDING CLAIMS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, LIABILITIES, JUDGMENTS, AWARDS, DAMAGES, SETTLEMENTS, COSTS, EXPENSES, RECOVERIES, DEFICIENCIES, INTEREST, FINES, PENALTIES, INVESTIGATION COSTS, AND REASONABLE ATTORNEY’S FEES) RELATING TO: (A) USE OR MISUSE, STORAGE, ACCESS TO, OR HANDLING OF THE SERVICES, WORK PRODUCT, OR NON-PUBLIC PERSONAL INFORMATION BY CLIENT OR ANYONE ACTING UNDER ITS AUTHORITY OR ON ITS BEHALF; (B) VIOLATION BY CLIENT OR ANYONE ACTING UNDER ITS AUTHORITY OR ON ITS BEHALF, OR ANY APPLICABLE LAW OR REGULATION PERTAINING TO THE PRIVACY OR SECURITY OF NON-PUBLIC PERSONAL INFORMATION; (C) VIOLATION OF ANY APPLICABLE LAW OR REGULATION BY CLIENT OR ANYONE UNDER ITS AUTHORITY OR ON ITS BEHALF, OR AGREEMENT OR OBLIGATION TO A THIRD PARTY; (D) ANY BREACH OF THIS AGREEMENT OR ANY OBLIGATIONS, REPRESENTATIONS AND/OR WARRANTIES UNDER THIS AGREEMENT, BY CLIENT OR ANYONE ACTING UNDER ITS AUTHORITY OR ON ITS BEHALF.
IX. ADDITIONAL PROVISIONS
- Amendment. This Agreement may not be modified, supplemented or amended, except by a writing signed by the authorized representatives of KBC and Client. Notwithstanding the foregoing, the Parties recognize that (a) KBC’s original cost and time estimates may be too low due to unforeseen events, or to factors unknown to KBC when this Agreement was made; (b) Client may desire a mid-project change in KBC’s services that would add time and cost to the project and possibly inconvenience KBC; or (c) other provisions of this Agreement may be difficult to carry out due to unforeseen circumstances. If any intended changes or any other events beyond the Parties’ control require adjustments to this Agreement, the parties shall make a good faith effort to agree on all necessary particulars. Such agreements shall be put in writing, signed by the parties and added to this Agreement.
- Assignment. Neither this Agreement, nor any of the rights or obligations under this Agreement, may be assigned by either party without the prior written consent of the other party (which consent shall not be unreasonably withheld), except that either Party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets (without necessity of such consent). This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
- Entire Agreement. This Agreement represents and constitutes the entire agreement and understanding by and between KBC and Client with respect to its subject matter and merges and supersedes all prior discussions, agreements and understandings of every kind and nature between the parties, and no party will be bound by any representation, warranty, covenant, term or condition other than as expressly stated in this Agreement.
- No Third Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. Client agrees that KBC’s obligations in this Agreement are to Client only, and KBC has no obligation to any third party (including, without limitation, Client’s personnel, directors, officers, employees and any administrative authorities).
- Force Majeure. Any party to this Agreement will be excused from performance of its obligations under this Agreement, except for Client’s obligation to pay fees to KBC for the Services already rendered, for any period of time that the party is prevented from performing its obligations under this Agreement due to a cause or event that is beyond the reasonable control of KBC and could not reasonably have been foreseen or avoided, including, without limitation, third-party network or system outage, hacking, cyberattack virus attack, criminal attack or other form of sabotage, act of God, act of government, strike, lockouts, riot, insurrection, civil commotion, war, terrorist attack, earthquake, civil disobedience, court order, pandemic, labor dispute or disturbances, governmental regulation, computer intrusion, or communication or utility failure (“Force Majeure Events”).
- Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of any Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were valid.
- Notices. All notices required to be sent or given under this Agreement will be sent in writing and will be deemed duly given and effective (a) immediately if delivered in person, or (b) upon confirmation of signature recording delivery if sent via a recognized overnight courier service with signature notification requested, in each case at the address shown on the signature page (or any other address given in writing).
- Severability. If any provision of this Agreement is finally determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality or enforceability of the remainder of this Agreement will not in any way be affected or impaired and such court shall have the authority to modify such invalid, illegal or unenforceable provision to the extent necessary to render such provision valid, legal or enforceable, preserving the intent of the parties to the furthest extent permissible.
- Use of Client’s Name. Client acknowledges and agrees that KBC may mention and use Client’s name and corporate logo in sales, marketing, advertising and promotional materials (including, without limitation, sales/marketing pitches and presentations, and client/customer lists) for the purpose of identifying Client as a customer of KBC.
- Governing Law; Venue; Arbitration. The parties agree that this Agreement shall be analyzed, interpreted, construed, and enforced in accordance with the laws of the State of New Jersey. Any dispute between the parties related to this Agreement shall be resolved by binding arbitration under the auspices of the American Arbitration Association and the rules promulgated by that body and before a single arbitrator chosen by Paradigm, in its sole discretion. The arbitration shall be conducted in Morris County, New Jersey, and judgment of the arbitration award may be entered into any court having jurisdiction thereof.
- Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
- Relationship of the Parties. The relationship of the Parties hereunder is that of independent contractors. Nothing in this Agreement shall be deemed or construed to constitute an agency, partnership or joint venture between the Parties. None of KBC’s employees, agents, vendors, or subcontractors will be considered employees, agents or subcontractors of Client. Unless expressly stated in this Agreement, none of KBC, its employees, agents, vendors, or its subcontractors may enter into contracts on behalf of, bind, or otherwise obligate Client in any manner whatsoever.
- Counterparts. This Agreement may be signed in two or more counterparts by original, .pdf (or similar format for scanned copies of documents) or facsimile signature, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile) shall be considered an original.