Terms and Conditions

1. Services and Duties. 

The Client engages Executive Leadership Partners, LLC (“Consultant”) to perform the services as agreed in the applicable Proposal, written services agreement, or Statement of Work and in these Standard Terms and Conditions (“Terms”).  Each provision of services (the “Services”) by Consultant will be governed by these Terms.  Consultant agrees to perform the Services using commercially reasonable efforts and in a good, workmanlike, prompt and timely manner in accordance with these Terms.  At all times, the Client will use its best efforts to make available to Consultant, at the Client's expense, all materials of the Client and access to locations and property necessary for Consultant to provide the Services.

 

2. Invoices. 

Consultant will submit invoices as set forth in the applicable Engagement Letter. The Client will pay the amounts due within ten (10) days of receipt of each invoice for those Services unless otherwise specified in an Engagement Letter.  All amounts or charges will be made payable to Consultant pursuant to the payment instructions included in the invoice. 

 

3. Late Fees. 

Late payments of any amounts or charges of any kind or character by the Client will bear interest at the rate equal to the lesser of 1.5% per month from the due date or the maximum amount permitted by applicable law until the amount is paid.  If the Client fails to pay amounts or charges of any kind when due, Consultant may, at its option, cease performance of its obligations without default until such time as the amounts or charges are paid together with any interest or late charges or terminate the applicable Proposal, Statement of Work or written services agreement. If Consultant ceases performance of its obligations due to late payments by Client without terminating the applicable Proposal, Statement of Work or written services agreement, upon Client’s payment in full of all amounts due, including any late fees, Consultant shall resume performance of its obligations. 

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4. Expenses. 

Client will reimburse Consultant for all reasonable out-of-pocket expenses related the services, including but not limited to airfare, hotel, other forms of transportation, meals, postage, etc.  Consultant agrees that meal expenses will not exceed $100 per person per day while in the field performing the Services.   

 

5. Term and Termination. 

These Terms will be effective for the entire time period Consultant provides Services to Client.  Either party may terminate the Services, with or without cause, upon thirty (30) days prior written notice, unless otherwise provided in an applicable Proposal, Statement of Work or written services agreement.  Termination of the Services will not relieve a breaching party from any liability it may have for breach of these Terms or any fees for Services incurred prior to such termination.

 

6. Consultant's Warranties. 

​Consultant warrants that all Services performed will be performed consistent with generally prevailing professional or industry standards.  The Client must report any deficiencies in Consultant's Services to Consultant in writing within thirty (30) days of performance to receive warranty remedies.  The Client’s exclusive remedy for any breach of the above warranty will be the re-performance of Consultant's services.  THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND CONSULTANT HEREBY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THESE TERMS.

 

7. Property Ownership.

Client represents to Consultant that any information, data, text, graphics, photos, designs, trademarks or other materials or information furnished to Consultant for the completion of the Services are owned by the Client or that the Client has permission from the rightful owner to use.  Client will be responsible for obtaining permission, and for making payment of any special licensing or royalty fees, in connection with any such use.

 

8. Consultant's Materials. 

Consultant owns or holds a license to use and sublicense various materials and preexisting works in existence before the start date of the provision of the Services (“Consultant's Materials”). Consultant may, at its option, include Consultant's Materials in the work performed under these Terms.  Consultant retains all rights, title and interest, including all copyright, patent rights and trade secret rights in Consultant's Materials.  Subject to full payment of the consulting fees due under these Terms, Consultant grants the Client a nonexclusive worldwide license for its internal use a of Consultant's Materials solely for the purposes set forth in the applicable Proposal, Statement of Work, or written services agreement. The license will have a perpetual term and may not be transferred or assigned by the Client without the prior written consent of the Consultant.  The Client will only share the Consultant’s Materials with its shareholders, owners, directors, officers, employees, agents, rating agencies, attorneys and consultants provided that such parties are under a written obligation to keep any confidential information of Client contained in the Consultant’s Materials confidential.  The Client shall make no other commercial use of Consultant’s Materials without Consultant's prior written consent and will otherwise keep any Consultant’s Materials  confidential.  None of the Consultant’s Materials, even if included or incorporated in final reports or deliverables provided to Client will be deemed “works made for hire” or in any manner deemed the intellectual property of Client.

 

9. Consultant and Client Not to Divulge Confidential Information. 

Consultant will use reasonable care to prevent the unauthorized use or dissemination of the Client’s confidential information.  Reasonable care means at least the same degree of care Consultant uses to protect its own confidential information from unauthorized disclosure.  Confidential information is limited to information clearly marked as confidential or disclosed orally and summarized and identified as confidential in a writing delivered to Consultant within fifteen (15) days of disclosure.  Notwithstanding the foregoing, confidential information does not include information that: (a) the Consultant knew before the Client disclosed it, (b) is or becomes public knowledge through no fault of Consultant, (c) Consultant obtains from sources other than the Client who owe no duty of confidentiality to the Client, or (d) Consultant independently develops.

 

Client will use reasonable care to prevent the unauthorized use or dissemination of the Consultant’s confidential information.  Reasonable care means at least the same degree of care Client uses to protect its own confidential information from unauthorized disclosure.  Confidential information is limited to information clearly marked as confidential or disclosed orally and summarized and identified as confidential in a writing delivered to Client within fifteen (15) days of disclosure.  Notwithstanding the foregoing, confidential information does not include information that: (a) the Client knew before the Consultant disclosed it, (b) is or becomes public knowledge through no fault of Client, (c) Client obtains from sources other than the Consultant who owe no duty of confidentiality to the Consultant, or (d) Client independently develops.

 

10. Consultant to Return Information. 

Upon the termination of the Consultant’s services with the Client, regardless of the date, cause, or manner of such termination, the Consultant will turn over and return to the Client all Client property whatsoever in or under the Consultant’s possession or control, including without limitation all confidential information and “trade secrets” as those terms are defined in these Terms and by North Carolina law.  The Client hereby agrees and permits Consultant to (i) retain copies of its final work product resulting from the Services provided according to its own record retention policies and (ii) use modified versions of said final work product as marketing materials for the Consultant, provided that Consultant redacts, marks out or removes any confidential information set forth in such final work product. 

 

11. HIPAA Compliance.

Consultant acknowledges that confidential information may include information which is, or may be, considered to be Protected Health Information ("PHI") under the Standards for Privacy of Individually Identifiable Health Information (the "Privacy Rule") and/or the standards for electronic transactions and/or other standards for security of certain electronically maintained or transferred health information as proposed and/or published and/or updated by the Department of Health and Human Services ("DHHS") under the Health Insurance Portability and Accountability Act of 1996, as amended from time to time and applicable regulations ( collectively "HIPAA").  Additionally, Consultant acknowledges that Consultant and Client is, or may be, "covered entities" within the meaning of HIPAA. In so far as HIPAA may be applicable to Consultant and/or Client pursuant to the relationship contemplated under these Terms, Consultant agrees, in so far as it is required to do so under HIPAA, it shall comply with the terms and provisions concerning HIPAA.

 

12. Independent Contractor. 

The relationship between the Client and the Consultant is intended to be that of principal and independent contractor.  The Consultant retains the sole right to control or direct the manner in which the Consultant's Services on behalf of the Client are to be performed in order to conform to these Terms and supplemental requirements, written or oral, provided by the Client.  The Consultant will be solely responsible for all costs for all benefits to Consultant’s employees, whether required by law or elective. 

 

The Consultant will be solely responsible for making all federal, state and local tax deposits and such other contributions or payments as may be required by law of an independent contractor related to compensation the Consultant receives as a result of these Terms and Services provided to the Client, for paying all applicable federal, state and local income taxes, and for paying all federal, state and local sales, excise or other taxes, and will indemnify and hold the Client harmless from and against any and all liability relating thereto to any taxing authority.  The Client will not be liable or responsible for any withholding or payment applicable to unemployment insurance, FICA contributions, workmen's compensation or any other matter for the benefit of Consultant’s employees under any applicable law, statute, ordinance, rule or regulation that may apply to an employer-employee relationship. 

 

Nothing contained in these Terms will constitute or will be deemed to constitute a relationship of employer/employee, master/servant, partners or joint venturer between the Consultant and the Client, it being expressly understood and agreed that the only relationship between the Consultant and the Client created herein will be that of an independent contractor.

 

13. Limitation of Liability. 

In no event will Consultant be liable to the Client for lost profits or special, incidental or consequential damages (even if Consultant has been advised of the possibility of such damages).  Moreover, Consultant will have no liability to the Client for any claims arising from or related to the failure of any agent of the Client or the Client’s computer systems or of any third-party documents, systems or information used by either the Client or Consultant.  Consultant's total liability for any claim for damages, costs and expenses, regardless of cause, will not exceed the total amount of fees paid by the Client for the engagement in question.

 

14. No Disparagement. 

Consultant will not at any time, whether during the engagement of Consultant by the Client or thereafter, in any way or to any person or governmental or regulatory body or agency, make any denigrating or derogatory statements concerning the Client or any officer, director, employee, agent or representative or any product or service or procedure of the Client, whether or not such denigrating or derogatory statements will be true or are based on acts or omissions which are learned by Consultant from and after the date hereof or on acts or omissions which occur from and after the date hereof, or otherwise.  This Section does not apply to the extent that testimony is required by legal process, provided that Consultant provides immediate written notice of such proposed testimony to the Client as soon as Consultant is notified that such testimony is required.

 

The Client and its owners, directors, managers and officers will not at any time, whether during the engagement of the Consultant by the Client or thereafter, in any way or to any Person or governmental or regulatory body or agency, make any denigrating or derogatory statements concerning the Consultant, its employees, officers or owners, or any product or service or procedure of the Consultant, whether or not such denigrating or derogatory statements will be true or are based on acts or omissions which are learned by Client from and after the date hereof or on acts or omissions which occur from and after the date hereof, or otherwise.  This Section does not apply to the extent that testimony is required by legal process, provided that Client provides immediate written notice of such proposed testimony to the Consultant as soon as Client is notified that such testimony is required.

 

15. Indemnification. 

Client agrees to indemnify and hold harmless the Consultant and its employees, agents, managers, officers and members (each an “indemnified party”) from and against all claims, damages, losses, liabilities, costs and expenses (collectively, “Liabilities”) as the same are incurred (including, without limitation, any actual, legal or other expenses reasonably incurred in connection with investigating, preparing to defend or defending against any action, claim, suit or proceeding (including an investigation) commenced or threatened, or in appearing or preparing for appearance as a witness in any action, suit or proceeding (including any investigation or pretrial proceeding such as a deposition)) that arises out of or in connection with these Terms or the performance of any Services; provided, however, that this Section 15 will not apply to any Liabilities to the extent that such Liabilities have resulted solely from the bad faith, willful misconduct or gross negligence of any indemnified party.

 

16. Non-Hire.

Except as otherwise provided by law, Client will not, without the prior written consent of Consultant, directly solicit the employment of Consultant personnel or offer employment to individuals known by Client to be Consultant personnel during the Term of the Services and for a period of one (1) year following termination of the Services. Consultant will not, without the prior written consent of the Client, directly solicit the employment of Client personnel or offer employment to individuals known by Consultant to be Client personnel during the term of the Services and for a period of one (1) year following termination of the Services.  For the avoidance of doubt, neither party is prohibited from employing an individual who approaches it about employment opportunities or who applies for a position in response to a posting, employment advertisement or other general solicitation of employment, or whose resume is posted by the individual to an employment web site that is searchable by a party, whether during the Term or thereafter.

 

17. Non-Exclusive Relationship.

These Terms are non-exclusive. Each party will be free to enter into other similar agreements or arrangements with other third parties.

 

18. Compliance With Laws.

Each party will be responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and these Terms, and agrees to comply with all such laws, regulations and other legal requirements.

 

19.  Marketing.

The Client agrees and acknowledges that Consultant is permitted to publicly state that the Client is or was, as appropriate, a client of Consultant.  Otherwise, neither party will use the other’s name, customers, logo, or trademarks in any advertisement, news release or other public communication without the other party’s prior written consent.

 

20.  Press Release.

In the event that Consultant wishes to issue a press release announcing the existence of the relationship between the parties and the nature of the Services provided, Consultant will provide such press release to Client for Client’s written approval and consent. Such approval and consent will be in Client’s sole discretion. No other press releases that mention the other party will be issued without the other party’s prior written approval.

 

21. Attorney’s Fees. 

If any action at law or in equity is necessary to enforce or interpret these Terms, each party will be responsible for its own attorneys’ fees and costs.

 

22. Miscellaneous.  

These Terms will be binding upon and inure to the benefit of the parties hereto and the successors and assigns of the Consultant and the Client.  The benefits hereunder with respect to the rights of the Client to the services of the Consultant may be assigned by the Client to any firm or association acquiring all or substantially all of the assets or stock of the Client or to any other company into which the Client may be liquidated or with which the Client may be merged or consolidated.  No waiver by either party of any breach by the other party of any provision hereof will be deemed to be a waiver of any later breach thereof or as a waiver of any other provision of these Terms.  These Terms and the applicable Engagement Letter, Statement of Work, or written service agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and cancels all prior or contemporaneous oral or written agreements and undertakings between them with respect to the subject matter hereof.  These Terms may not be changed or modified orally but only by an instrument in writing signed by the parties hereto, which instrument states that it is an amendment to these Terms.  These Terms may be executed in duplicate counterparts, each of which will be deemed an original hereof.

 

If Consultant is delayed, hindered, or prevented from the performance of any act or obligation required under these Terms, by reason of governmental restrictions or any other reasons beyond its control (such as non-performance by Client’s client), the performance of such act or obligation will be excused without breach, liability, or damages for the period of delay. Additionally, the Consultant shall resume the performance of any such act or obligation as soon as is reasonable to in the Consultant's sole discretion.

 

Should any provision of these Terms or any part thereof be held invalid or unenforceable, the same will not affect or impair any other provision of these Terms or any part thereof, and the invalidity or unenforceability of any provision of these Terms will not have any effect on or impair the obligation of the Client or Consultant.  In the event that any provision of these Terms, any Section herein or any word, phrase, clause, sentence or other portion thereof (including, without limitation, the geographical and temporal restrictions contained herein) should be held to be unenforceable or invalid for any reason, such provision or portion thereof will be modified or deleted in such a manner as to make the provisions hereof, as modified, legal and enforceable to the fullest extent permitted under applicable law, and in lieu thereof, there will be substituted a provision as identical in nature as to such illegal, invalidated or unenforceable provision as possible while said substituted provision will remain legal, valid and enforceable.

 

These Terms will be deemed to have been made and entered into in the State of North Carolina, and the construction, validity, and enforceability of these Terms will be governed by the laws of the State of North Carolina without consideration given to its conflicts of law.  The parties hereto hereby consent to the jurisdiction and venue of the state court located in Mecklenburg County, North Carolina, for purposes of enforcing these Terms or resolving any disputes or disagreements arising out of these Terms.  Client hereby waives any objection that the Client may now or hereafter have that such action was brought in an inconvenient venue and agrees not to plead or claim the same. 

 

The following Sections will survive the termination or expiration of these Terms: 3, 6-11, 13-16 and 19-22, and any other provisions of these Terms that by reasonable interpretation are intended by the parties to survive the termination of these Terms.