TERMS AND CONDITIONS

These Terms and Conditions (the “Terms and Conditions”) are effective as of the Effective Date, between Customer, and Purdy Company, LLC, an Ohio limited liability company (“Purdy”), also individually referred to herein as a “Party” or collectively as the “Parties”. The Terms and Conditions will be binding upon Customer and Purdy upon the “Effective Date”, which shall be the date of the last signature on the applicable Statement of Work (“SOW”), as defined below. The Terms and Conditions (including all exhibits), and the applicable SOW, shall be collectively referred to as the “Agreement”.

 

                                                                    RECITALS:

 

  1. Customer owns and operates a business that provides the services described in the Statement of Work (“SOW”), as defined below (the “Business”);

 

  1. Purdy has knowledge and skills related to important aspects of the Business, and desires to render such consulting services, described more fully below, to Customer; and

 

  1. Pursuant to the SOW, Customer has engaged Purdy, on an independent basis, to provide consulting services as requested by Customer in the SOW, and Purdy has agreed to be engaged by Customer for the purpose of providing consulting services to Customer, and Customer and Purdy want to further agree to be bound by these Terms and Conditions.

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and covenants contained herein and/or in the SOW, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree to be bound by the Terms and Conditions below, as follows:

 

  1. Purpose of the Terms and Conditions. These Terms and Conditions shall act as a governing agreement for the Parties in connection with the Services, as defined below. The Services are described in the applicable SOW entered into by the Parties and are subject to the Terms and Conditions herein. Further, these Terms and Conditions (including all exhibits), and the applicable SOW, shall form a single agreement between the Parties. In the event a conflict arises between the terms of any Statement of Work and these Terms and Conditions, the Terms and Conditions shall control. The Parties agree that the sole purpose of any Statement of Work is limited to describing specific Services to be performed and/or provided for a particular project.

 

  1. Independent Contractor. Subject to the terms and conditions herein, Customer hereby agrees to engage Purdy, on an independent basis, to provide the Services to Customer during the Term, and Purdy hereby agrees to be engaged by Customer and will provide such Services to Customer as required herein. 

 

  1. Term of Agreement. The Agreement shall be for a term from the Effective Date until terminated as provided by Section 6 herein (the “Term”).

 

  1. Purdy’s Duties and Responsibilities. During the Term, Purdy shall perform and provide the consulting services to Customer’s Business (the “Services”), as described in the applicable SOW.

 

Purdy may render all Services personally through its owners, and/or through Purdy’s personnel, employees, independent consultants, and others, as Purdy deems appropriate.  Purdy shall render the Services at such location or locations as Customer may request in writing, and at such time(s) as Purdy considers appropriate.  Customer shall provide Purdy with access at all reasonable times to all relevant information, files, and background details to assist with the performance of the Services. Purdy shall, to the best of its ability, impart to Customer such knowledge, information, ideas, suggestions, and advice as Purdy may develop for furtherance of any Services required by the Agreement. Purdy shall devote a reasonable amount of time to providing Services under the Agreement as agreed upon by the Parties herein.

 

  1. Compensation. During the Term, Purdy shall be paid for Services performed as provided in the applicable SOW. All such compensation due to Purdy, whether during the Term or after its termination, shall be paid to Purdy as provided in such SOW.

 

            Customer further agrees to reimburse Purdy for reasonable expenses incurred as a result of rendering Services pursuant to these Terms and Conditions, provided however, that any such expenses shall be agreed upon between the Parties before Purdy incurs them, and Purdy will submit receipts to Customer substantiating such expenditures.

 

  1. Relationship, Obligations, Indemnity, and Limitation of Liability.

 

            5.1       Independent Contractor Relationship.  The Parties mutually agree that Purdy is an independent contractor, and that Purdy is not an employee of Customer.  Purdy agrees to keep accurate and complete accounts and records showing all actual costs, expenses, and other charges incurred under these Terms and Conditions.  The Terms and Conditions shall not be construed to form a partnership between the Parties and shall not be construed to create any form of employment relationship or any legal association that would impose liability upon one Party for the act (or failure to act) of the other Party.  It is also expressly understood that neither of the Parties has any authority to bind the other Party by contract or otherwise.

 

            5.2       Employment Taxes and Benefits.  Purdy agrees that it shall be responsible exclusively to file all returns and reports, withhold and/or pay all applicable federal, state, and local wage or employment related taxes, including but not limited to, income taxes, gross receipts taxes, taxes measured by gross income, sales taxes, Social Security taxes, and unemployment taxes for Purdy and its employees, if any.  Purdy agrees to indemnify and to hold Customer harmless from any obligation imposed by law upon Customer to withhold or pay any such taxes, premiums, or similar payments in connection with any payments made to Purdy by Customer pursuant to the Agreement.  Purdy shall not be entitled to participate in any of Customer’s plans, arrangements, or agreements maintained by Customer pertaining to any bonus, stock option, profit sharing, insurance, or similar benefits for the benefit of Customer or its employees.

 

            5.3       Indemnification.  Each Party agrees to indemnify and hold the other Party, including its owners, officers, agents, and employees, harmless from any and all third-party claims against such Party arising from the Party’s actions or failure to act under the Agreement.  Each Party further agrees to indemnify and to hold the other Party harmless from any injuries (including death) to persons or property caused by the intentional, negligent, or reckless acts or omissions of the Party, or any of its owners, officers, agents, and employees, under the Agreement.

 

            5.4       Professional Standards.  Purdy represents that the Services it performs pursuant to the SOW will be of the highest professional standards and quality and will comply with all applicable laws.

 

            5.5       Insurance.  Customer and Purdy shall have and keep in place during the Term insurance policy(ies) with commercially reasonable limits.

 

  • Exclusion of Liability. IN NO EVENT SHALL PURDY BE LIABLE TO CUSTOMER FOR DAMAGES OF ANY KIND OR NATURE IN CONNECTION WITH THE AGREEMENT AND/OR CUSTOMER’S ACTIONS OR OMMISSIONS CONCERNING THE SAME, INCLUDING BUT NOT LIMITED TO INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL

 

  1. Termination of Agreement. Either Party may terminate the Agreement with ten (10) days written notice to the other Party of such Party’s intent to terminate the Agreement.

 

  1. Reserved.

 

  1. Return of Records. Upon termination of the Agreement, Purdy shall deliver to Customer, as directed by Customer, all records and Customer property, including, without limitation, client records, keys, passwords, access codes, reports, data, memoranda, notes, models, and equipment of any nature that are in Purdy’s possession, or under Purdy’s control, or prepared or acquired in the course of Purdy’s relationship with Customer, whether hard copy, digital, electronic, or otherwise.  In addition, Purdy shall not take any such information or data, whether hard copy, digital, electronic, or otherwise, or reproductions of such information or data, which relates to the Business, its business activities, clients of Customer, or to parties in a contractual business relationship with Customer, unless otherwise agreed by Customer in a signed written agreement.

 

  1. Purdy’s Capacity. Purdy represents and warrants to Customer that Purdy has the capacity and right to enter into the Agreement and perform all Services under the SOW without any restriction whatsoever by any other agreement, document, or otherwise.

 

  1. Complete Agreement. These Terms and Conditions (including all exhibits), and the applicable SOW entered into by the Parties, contain the entire agreement between the Parties and supersedes any prior or contemporaneous discussions, negotiations, representations, or agreements between them relating to the Services rendered by Purdy pursuant to the Agreement. No additions or other changes to this Agreement shall be made or be binding on either Party unless made in writing and signed by each Party to the Agreement.

 

  1. Notices. Any notice required or permitted to be given under the Agreement shall be properly made if in writing and hand delivered or sent via email to the Party for whom intended at the address for such Party written below or at such address(es) as either Party may designate from time to time by giving notice to the other Party in the foregoing manner.

 

  1. Governing Law. All questions concerning the validity, intention, or meaning of this Agreement, or relating to the rights and obligations of the Parties with respect to the performance hereunder shall be construed and resolved under the laws of Ohio without regard to conflict or choice of law provisions.

 

  1. Severability. The intention of the Parties to the Agreement is to comply fully with all laws and public policies to the extent possible.  If any court of competent jurisdiction determines it is impossible to construe any provision of these Terms and Conditions (including all exhibits), and/or the applicable SOW consistently with any law or public policy, the Parties agree: (a) that such court shall have jurisdiction to reform the Agreement to the smallest degree possible with regard to such provisions so that it is enforceable to the maximum extent permitted by law; and (b) to abide by such court’s determination.  If such unenforceable provisions cannot be reformed, such provision shall be deemed severed from the Agreement, but every other provision of the Agreement shall remain in full force and effect.

 

  1. Non-waiver. No failure by any Party to insist upon strict compliance with any term of the Agreement, to exercise any option, enforce any right, or seek any remedy upon any default of any other Party shall affect, or constitute a waiver of, the first Party’s right to insist upon such strict compliance, exercise that option, enforce that right, or seek that remedy with respect to that default or any prior, contemporaneous, or subsequent default; nor shall any custom or practice of the Parties at variance with any provision of the Agreement affect, or constitute a waiver of, any Party’s right to demand strict compliance with all provisions of the Agreement.

 

  1. Captions and Recitals. The captions of the various sections of the Agreement are not part of the context of the Agreement but are only labels to assist in locating those sections and shall be disregarded when construing the Agreement.  The Recitals at the top of these Terms and Conditions are incorporated herein by this reference.

 

  1. Gender. The use of gender references in the Agreement is not meant to be a limitation, and the use of a particular gender shall be interpreted to include the other of the masculine, feminine, and neuter where the situation so demands.  Similarly, the use of the singular shall be interpreted to include the plural where the situation so demands, and vice versa.

 

  1. Attorney Fees. If it becomes necessary to bring suit to enforce any provision of the Agreement, the prevailing Party shall be entitled to recover, in addition to any other award, its reasonable costs incurred in connection therewith, including court costs, expert’s fees and attorney’s fees.