These Terms of Service (“Terms of Service”) constitute the terms and conditions that govern the relationships between C-Level Strategy, LLC’s operating subsidiary entities (“CLS”), and their clients (each a “Client”) who agree to receive professional finance and accounting consulting services from CLS by entering into a CLS Services Agreement, or who agree to receive professional placement services from CLS by entering into a CLS Placement Services Agreement (in either circumstance, a “Services Agreement”). These Terms of Service are expressly incorporated into each Services Agreement.
The professional services provided by CLS under a Services Agreement may be generally defined hereinafter as the “Services.” 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 CLS, Client agrees to be bound by these Terms of Service.
1. Relationship of the Parties. In providing the Services, CLS (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, CLS may require access to Client’s books, records, and other 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, CLS 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 CLS in the course of providing the Services and paid for by Client will be the property of Client. In the event CLS is deemed to have any right, title or interest to any work product created for and paid by Client, CLS shall waive such right in favor of Client, and shall take all reasonable action as requested by client to secure Client’s ownership rights. CLS 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. CLS may share Client Information with its agents and representatives who reasonably need to know such information for purposes of performing CLS’s obligations under the Services Agreement.
3. Reliance on Client Information. CLS 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 CLS promptly of any suspected error. Services provided by CLS are not intended to uncover inherent errors in Client Information; however, CLS may notify Client if any such errors are discovered. CLS shall not be liable, in any manner, to any third party or any governmental authority, and Client shall defend, indemnify and hold CLS 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 CLS. Client agrees to deliver all relevant Client Information to CLS on a timely basis as requested by CLS. To the extent CLS does not receive necessary Client Information within the timeframes requested, which delays CLS’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; Rate Increases. All fees and expenses required to be paid by Client to CLS 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 4 pay any outstanding invoices following written notice from CLS, CLS may: (i) assign the outstanding balance to a collections agency; (ii) report Client’s nonpayment 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 CLS 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. The Standard Hourly Rates charged to Client by CLS shall automatically increase by ten percent (10%) upon the one (1) year anniversary of the Effective Date of the Services Agreement.
5. Background Checks. As a matter of standard practice, CLS conducts background checks of its personnel, including the specific consultant(s) providing the Services to Client pursuant to the Services Agreement. To the extent that CLS is hiring a new consultant for purposes of providing the Services to Client, and Client has requested an expedited start date, CLS will run the background check in accordance with its standard practice and notify Client in the event that the new consultant does not meet CLS’s background check standards.
6. 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. CLS also reserves the right to terminate the Services Agreement immediately in the event CLS discovers information regarding Client or its agents or representatives that is counter to CLS’s business or financial interests, reputation or goodwill, in CLS’s sole and absolute discretion. In the event of any termination, Client shall be responsible for all fees and costs incurred for CLS’s performance of the Services up to the date of termination. The confidentiality obligations of CLS 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.
7. Return or Destruction of Client Information. Upon termination of the Services Agreement for any reason, CLS will promptly return, or, at the election of Client, destroy, all Client Information and other property of the Client, if any, then in CLS’s possession or control. Client acknowledges and understands that CLS’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. Client is on notice to save all of its own work, data and records on its own system in order to keep such documentation intact. CLS 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, CLS, at its sole discretion, may retain copies of its work product and supporting information for its records. Under no circumstances will CLS be considered a “custodian of records” under the Rules and Regulations of the US Securities & Exchange Commission. Further, if Client utilizes a storage system for storing its records and data, CLS shall not be the creator or controller of such system. Client may allow CLS 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.
8. Indemnification by Client. Except to the extent caused by the gross negligence, fraud or willful misconduct of CLS, Client agrees to indemnify, defend and hold CLS 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; (ii) third-party reliance upon CLS’s work product, including but not limited to banks, leasing companies, financing companies or taxing authorities; (iii) late or missed public entity filings or deadlines caused by past-due invoices, insufficient retainer balances or any other cause of CLS work stoppage permitted in the Services Agreement, these Terms of Service, or applicable law; or (iv) 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 CLS in connection with any such 5 Claim and the defense or settlement of any such Claim. This Section shall survive termination of the Services Agreement. CLS may direct the defense and settlement of any such Claim with counsel of CLS’s choosing, and Client will provide CLS with reasonable assistance, as requested. CLS shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
9. Indemnification by CLS. Subject to Section 15 below, CLS 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 CLS; (ii) gross negligence in CLS’s work product; or (iii) any infringement of any intellectual property or trade secrets by CLS during the course of performing the Services. Subject to Section 15 below, CLS 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 CLS 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.
10. Miscellaneous Expenses. To the extent that Client requests that CLS provides any out-of-town work while providing the Services, then, in additional to reimbursing CLS all other relevant costs and expenses incurred in performing the Services, including costs of travel and lodging, Client shall pay to CLS a per diem of $50 per CLS consultant per day for meals. Moreover, to the extent that Client requests that CLS 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, CLS shall pass on to Client, and Client hereby agrees to reimburse CLS for, all increased labor costs and expenses, including over-time and double-time pay.
11. Limited Warranty. CLS 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. CLS 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 CLS, ITS AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN. CLS may, in the course of providing the Services, provide advice or opinions regarding the outcome of certain matters or predictions of future outcomes or performance. Although CLS will make reasonable efforts to ensure the accuracy of such advice or opinions, future outcomes or performance are naturally uncertain and therefore cannot be guaranteed.
12. Tax Filings. Client acknowledges that it is solely responsible for the accuracy of any tax filings. Therefore, to the extent the Services involve preparation of any tax filings, Client agrees that its authorized representatives will review and approve such filings before signing and submitting such filings.
13. Funding Applications. In the event that Client requests CLS to assist Client with any application for loans, grants or other funding (“Funding Application”), CLS is entitled to rely on information provided by Client to complete the Funding Application and shall not be held liable for any inaccuracies, misstatements or mistakes on any Funding Application. It is the sole responsibility of Client to ensure that the Funding Application has correct and complete information. Further, CLS does not and cannot guarantee that a Funding Application will be accepted or that funding will be granted.
14. Non-Solicitation. During the term of the Services Agreement, and for a period of one (1) year following termination thereof, Client shall not solicit for employment or hire, either directly or indirectly (as an employee, contractor or otherwise), any employee, former employee, agent, consultant, contractor, or other representative of CLS or its affiliates (“CLS Personnel”), unless Client pays to CLS a placement fee equal to one hundred percent 6 (100%) of the greater of: (i) the annual compensation CLS pays to such solicited CLS Personnel, or (ii) the annual compensation Client has offered to such solicited CLS Personnel. Client agrees that any attempt or actual hiring of such CLS Personnel without prior written approval from CLS will be a material breach of the Services Agreement, and that CLS will be entitled to an immediate injunction and all other remedies and legal damages afforded under the law.
15. Limitation of Liability. IN NO EVENT WILL CLS 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 CLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. MOREOVER, CLS’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 CLS PURSUANT TO THE SERVICES AGREEMENT.
16. 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 CLS and Client. CLS 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.
17. 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.
18. Integration and Severability. The Services Agreement and these Terms of Service represent the complete and exclusive agreement between CLS 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. 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.
19. 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, CLS may assign the Services Agreement or transfer its rights and obligations hereunder to any affiliate that CLS controls, is controlled by, or is under common control with, or to a party that acquires all or substantially all of CLS’s assets.
20. Arbitration. Any controversy or claim arising out of or relating to the Services Agreement or these Terms of Service, or the making, performance or interpretation thereof, other than a claim by CLS for injunctive or equitable relief, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall be held in Salt Lake County, Utah. Any judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy.
21. Legal Disputes. In the event of any legal dispute (including arbitration) regarding the interpretation or enforcement of the Services Agreement or these Terms of Service, the prevailing party in such dispute shall be entitled to recover from the other party its costs and expenses incurred in such dispute, including reasonable attorneys’ fees, court/arbitration costs, and expert witness fees, the amount of which shall be fixed by the court/arbitrator and made a part of any judgment rendered.