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Terms and Conditions

Terms and Conditions

  1. Services. Service Provider shall provide to Customer the services (the “Services“) set out in one or more statements of work to be issued by Customer and accepted by Service Provider (each, a “Proposal“). The Proposal may be amended from time to time by Service Provider and deemed issued and accepted only if signed by the Service Provider Contract Manager and the Customer Contract Manager, appointed pursuant to 2.1(a) and 3.1, respectively. The Proposal as subsequently amended by the Parties and these terms and conditions form the agreement between the parties (“Agreement”).
  2. Service Provider Obligations. Service Provider shall:
    1. Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:
      1. A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Service Provider Contract Manager“).
      2. A number of employees or contractors that it deems sufficient to perform the Services set out in each Proposal, (collectively, with the Service Provider Contract Manager, “Provider Representatives“).
    2. Make no changes in Provider Representatives except following notice to Customer.
  3. Customer Obligations. Customer shall:
    1. Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Customer Contract Manager“), with such designation to remain in force unless and until a successor Customer Contract Manager is appointed.
    2. Require that the Customer Contract Manager respond promptly to any reasonable requests from Service Provider for instructions, information, or approvals required by Service Provider to provide the Services.
    3. Cooperate with Service Provider in its performance of the Services and provide access to Customer’s premises, employees, contractors, and equipment as required to enable Service Provider to provide the Services.
    4. Take all steps necessary, including obtaining any required licenses or consents, to prevent Customer-caused delays in Service Provider’s provision of the Services.
  4. Fees and Expenses
    1. In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees included in Service Provider’s fee schedule as set forth in the Proposal and subsequently agreed upon between the Parties. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this 4 shall constitute payment in full for the performance of the Services. Unless otherwise provided in subsequent Additional Statement(s) of Work, said fee will be payable within ten (10) days of receipt by the Customer of an invoice from Service Provider.
    2. Customer shall reimburse Service Provider for all expenses incurred in accordance with the Proposal, within ten (10) days of receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation. 
    3. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
    4. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees and costs. In addition to all other remedies available under this Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due hereunder.
  5. Limited Warranty and Limitation of Liability.
    1. Service Provider warrants that it shall perform the Services: 
      1. Using personnel of commercially reasonable skill, experience, and qualifications. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THIS AGREEMENT DOES NOT ENCOMPASS THE RENDITION OF LEGAL SERVICES BY AN ATTORNEY OR INVESTMENT ADVISOR. SERVICES PROVIDED BY COTNEY CONSULTING GROUP, LLC, ITS EMPLOYEES, CONTRACTORS, AND AGENTS DO NOT CONSTITUTE LEGAL OR INVESTMENT ADVICE, ARE NOT INTENDED TO CONSTITUTE LEGAL OR INVESTMENT ADVICE, NOR SHOULD THEY BE RELIED UPON AS LEGAL OR INVESTMENT ADVICE BY CUSTOMER. It shall be Customer’s obligation to consult with legal counsel of Customer’s choosing to determine whether Customer’s practices comply with federal, state, and local laws.  
      2. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
      3. Service Provider does not warrant that any website, platform, or other system developed for Customer will operate uninterrupted or error free. SERVICE PROVIDER DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
      4. Customer understands that Service Provider may remotely access Customer’s website and Customer’s servers and Customer agrees that Service Provider shall have no liability for any loss or destruction of any of Customer’s files or data. Customer will be responsible to maintain all appropriate backups of Customer’s files and data stored on Customer’s servers.
      5. Service Provider makes no representations or warranties, and shall have no liability with respect to the accuracy, dependability, privacy, security, authenticity, or completeness of data transmitted over the internet, or any intrusion, virus, disruption, loss of communication, loss or corruption of data, or other error or event caused or permitted by or introduced through the internet or the servers upon which the Services are provided.
      6. In no event will Service Provider be liable to Customer or any third party for any lost profits or other incidental, indirect, consequential, or special damages arising out of or relating to (a) the Service provided to Customer, (b) the operation of or inability to operate of any website, platform, or system developed for Customer, or (c) Service Provider’s access to Customer’s website, platform, or services even if Service Provider has been advised of the possibility of such damages. Service Provider does not guarantee increased efficiency or increased revenue, nor does Service Provider make any performance guarantees of any kind as a result of its Services.
    2. Service Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
      1. Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with 8.2.   
      2. Termination of this Agreement shall not relieve Customer of the obligation to pay any outstanding fees owed to Service Provider for Services under this Agreement.
      3. The foregoing remedy shall not be available unless Customer provides written notice of such breach within five (5) days after delivery of such Service or Deliverable to Customer.
    3. SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
  6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, including any items identified as such in the Proposal (collectively, the “Deliverables“) except for any Confidential Information of Customer or customer materials shall be owned by Service Provider. Service Provider hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services. Provided, however, that Service Provider may revoke such license following Customer’s Breach of this Agreement which Customer fails to cure following ten (10) days written Notice by Service Provider. 
  7. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within ten (10) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information“); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. 

 If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors. 

  1. Term, Termination, and Survival.
    1. This Agreement shall commence as of the Effective Date and shall continue thereafter for a period of one (1) year or for the period of time specified in the Proposal whichever is lesser; provided, however, this Agreement shall automatically renew, unless either party provides written Notice to the other of its intent to terminate not less than thirty (30) days before the end of the then current term. Notwithstanding the forgoing, the Agreement  may be sooner terminated pursuant to 8.2 or 8.3.
    2. Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party“) if the Defaulting Party:
      1. Materially Breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) days after receipt of written notice of such breach.
      2. Becomes insolvent or admits its inability to pay its debts generally as they become due.
      3. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing.
      4. Is dissolved or liquidated or takes any corporate action for such purpose. 
      5. Makes a general assignment for the benefit of creditors.
      6. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Notwithstanding anything to the contrary in 8.2(a), Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; or (b) more than three (3) times in any twelve (12) month period;
    4. The rights and obligations of the Parties set forth in this 8.4 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
  2. Limitation of Liability.
    1. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 
    2. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 
  3. Entire Agreement. These terms and conditions, including and together with any related Proposal and subsequent amendments thereto, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Proposal, the terms and conditions of this Agreement shall supersede and control.
  4. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice“, and with the correlative meaning “Notify“) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this 12.

Notice to Customer:

Address: _______________________________________

_______________________________________________

 

Attention: ______________________________________

Optional Copy by Email:___________________________

Notice to Service Provider:

Cotney Consulting Group, LLC

Attention: John Kenney

3110 Cherry Palm Drive, Suite 290

Tampa, FL 33619

 

Optional Copy by Email: jkenney@cotneycl.com

  1. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  2. Amendments. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each Party. 
  3. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  4. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this 16 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person without Customer’s consent.
  5. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. 
  6. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services.  Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services.  The Services must meet the Customer’s reasonable final approval and shall be subject to the Customer’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  7. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  8. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Florida
  9. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than Hillsborough County, FL. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
  10. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
  11. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in 12, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
  12. Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, pandemic, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.

 

 

CUSTOMER: ________________

 

By: _________________________

Name:

Title:

 

COTNEY CONSULTING GROUP, LLC

 

By: __________________________

Name:

Title:
















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