Terms & Conditions
STANDARD TERMS AND CONDITIONS
The Terms and Conditions identified below are the Standard Terms and Conditions (herein referred to as “Terms and Conditions”)
which are adopted as a supplement to the terms of the JPG Resources, LLC (“Consultant”) written proposal signed by Consultant and Client
(hereinafter the “Proposal”).
1. Payment. Unless modified by the Proposal, Client shall
pay the initial payment due prior to commencement of the Project as required
by the Proposal. Consultant shall invoice Client on a regular basis for its
services provided. Client shall pay the Fees invoiced by Consultant within
thirty (30) days of the date of Consultant’s invoice, or on dates as identified
in the Proposal. If engaged on a retainer basis, Client will pay the retainer
amount in a timely manner on or before the due date. All past due unpaid
Fees not subject to a good faith dispute may be subject to interest at the lower
of 18% per year simple interest or the maximum rate allowed by law. In the
event Consultant is required to engage legal counsel to collect its fees and
Consultant prevails, then Client agrees to pay to Consultant all court costs
and reasonable attorney fees incurred in collecting the amounts due. Any
conflict in payment terms in this paragraph and the Proposal shall be
controlled by the terms and conditions of the Proposal.
2. Expenses of Performance. Client agrees to reimburse
Consultant for all expenses reasonably incurred in the performance of the
Services. Expenses are charged in addition to the Consultant’s hourly rates.
Expenses may include travel, lodging, materials, shipping, analytical tests, or
other miscellaneous costs incurred by Consultant in providing the Services.
Expenses will be reimbursed within thirty (30) days of the date of submission
of the request for reimbursement by Consultant to Client. Any expenses over
$500 will be pre-approved by the Client prior to incurrence, unless otherwise
provided in the Proposal.
3. Term. The Initial Term of this Agreement shall commence
on the effective date of this Agreement and continue either for the time period
identified in the Proposal or so long as necessary to accomplish the tasks
described therein. If unspecified, then the Initial Term shall equal one (1) year.
Upon the expiration of the Initial Term, the parties may elect to extend the term
an additional period of time, which shall be established by the parties at that
time, upon terms and conditions mutually agreeable to the parties.
4. Prohibition Against Disclosure of Confidential
Information. [NOTE: IF THE CLIENT AND CONSULTANT HAVE ENTERED
INTO A NON-DISCLOSURE AGREEMENT, THEN THE TERMS OF THE NONDISCLOSURE
AGREEMENT WILL APPLY.] Consultant agrees to keep and
maintain Client’s Confidential Information strictly confidential and not use or
disclose Confidential Information for any other purposes, except as provided
herein. Such information is for utilization by Consultant only in the course of
its engagement and not for any other purpose. The term “Confidential
Information” does not include information in the public domain, information
obtained by Consultant from a third party who has no duty to Client to keep
the information confidential, or information in possession of Consultant prior
to execution of this Agreement or other agreement(s) with Client which
obligates Consultant to keep such information confidential. Consultant may
disclose the Confidential Information to its employees, agents and
representatives for the purpose of providing the Services to Client so long as
the person receiving the Confidential Information has agreed in writing to keep
such information strictly confidential. If the parties have entered into written
Non-Disclosure Agreement then the terms of that written Non-Disclosure
Agreement shall control in the event there is a conflict between this Agreement
and the Non-Disclosure Agreement.
5. Non-Solicitation of JPG Employees or Contractors. Client
agrees not, during the term of this Agreement, and for a period of two (2) years
subsequent to termination of the agreement for Services between Client and
Consultant, knowingly solicit for employment, employ or contract with any
person who is a current employee or independent contractor of Consultant to
perform similar services for Client in competition with Consultant, or has been
an employee or independent contractor of Consultant during the ninety (90) days
prior to the date of hire by Client, except upon written consent of Consultant.
Notwithstanding the foregoing, this provision shall not apply to any employee
or agent of the Consultant who contacts Client of his or her own volition or
responds to a general solicitation of employment.
6. Reporting. Consultant shall be responsible and report to a
corporate liaison identified by the Client in writing.
7. Intellectual Property Ownership. Client will own any and all
intellectual property rights to any deliverables and reports provided by
Consultant to Client in connection with the Services, unless otherwise agreed
in writing by the parties. Consultant will retain any and all rights to any
intellectual property which is the means and method of its delivery of the
Services described in the Proposal, and retains all rights to any intellectual
property developed by Consultant in the event of non- payment from the Client.
8. Termination.
a. Material Breach. Either party may terminate this Agreement in
the event of a material breach by the other of the terms of this Agreement or
the Proposal. Termination shall be effective fifteen (15) days after written
notice is given by the non-breaching party to the party in breach setting forth
the nature of the breach and the effective date of termination.
b. Effect of Termination. Regardless of the basis for termination,
Client agrees to pay Consultant for all Fees earned and Expenses incurred in
performance for Services provided prior to the effective date of termination
when due under this Agreement or within fourteen (14) days after the date of
termination, whichever is earlier.
9. Mutual Indemnification. Except as set forth in this
Agreement, Consultant agrees to indemnify and hold Client, its directors,
officers, employees and representatives harmless from any third party claim,
suit, or demand for damages and all resulting loss, cost, liability, damage and
expense (including reasonable attorneys’ fees) arising out of or in connection
with a negligent, or intentional or illegal act or omission of Consultant or any
of its personnel while performing services under this Agreement, without fault
attributable to Client. Client agrees to indemnify and hold Consultant harmless
from any third party claim, suit, or demand for damages and all resulting loss,
cost, liability, damage and expense (including reasonable attorneys’ fees)
arising out of or in connection with any third party claims related to any food
products manufactured or sold by Client, any recall of Client’s product, or any
assessment of penalties upon Client by a governmental entity, regardless of the
fault of Consultant.
10. Limitation of Liability. In no event shall Consultant be liable
to client for punitive, special, incidental or consequential damages of any kind
(including without limitation lost profits, business revenues or opportunities,
business interruption and the like) arising from or relating to the services
provided by Consultant, including all prior dealings and agreements, or the
conduct of business under or breach of this agreement or any purchase order,
or termination of business relations with each other, regardless of whether the
claim for such damages is based upon breach of warranty, breach of contract,
negligence, tort, strict liability, statute, regulation or any other cause of action,
even if the consultant has been advised by Client of the possibility of such
damages. Client hereby acknowledges and assumes sole risk for the success
of its products and profitability of its business enterprise.
11. Governing Law. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Michigan.
12. Performance; Limited Warranty; Compliance with Laws
and Regulations. Consultant agrees that the Services provided by the
Consultant, its employees and independent contractors will be performed in
a professional and workmanlike manner in accordance with prevailing
industry standards and that the performance of the Services will not conflict
with any duties owed to any third parties. Consultant is not assuming any
liability or responsibility for Client’s food product, or any ingredients
provided by a third party, complying with federal or state food quality laws
or regulations, which compliance shall be the sole liability and responsibility
of Client. Client assumes the risk of all labeling liability, contamination or
adulteration, including, but not limited to, any liability arising out of any
third-party claims, a recall of product, or monetary penalties assessed by a
government entity. Consultant does not guarantee the success of Client’s
enterprise, which risk of failure shall be assumed solely by Client. Consultant
disclaims any express or implied warranty that the deliverables do not
infringe upon a copyright or patent of a third party.
13. Nutritional Labeling Services (If Applicable). If the
Services provided by Consultant include nutritional labeling of Client’s
product then the preparation of a nutritional facts panel by Consultant as a
part of its Services is based solely upon information provided by Client and
not independently verified by Consultant. It is the sole responsibility of
Client to sample its product to perform any analysis, determine the variability
of its product(s) and the number of samples needed to provide accurate
nutrient data, and to perform any analysis which would be appropriate in
accordance with good manufacturing practices.
14. Services Provided Outside of Project Scope or Ad Hoc
Requests. Services provided either at the request of Client (or upon
agreement of Client and Consultant) outside the scope of the Project shall be
charged according to the Consultant’s current rates set forth in the most
recent Terms and Conditions. Consultant reserves the right to increase or
decrease rates at any time. Rates vary depending upon the Consultant’s
personnel utilized to perform the Services which are categorized as Top, Mid
and Standard Level.
Current hourly rates for Services charged outside Project scope
are: Top-Level: $400 per hour; Mid-Level: $250 per hour; Standard:
$175 per hour;
15. Notices. Any notice, election request or demand to be given by
any other party pursuant to the terms of this Agreement shall be in writing and
shall be delivered personally or sent by registered or certified mail, by
recognized courier or delivery service, with all postage or delivery charges prepaid,
addressed to the party at the address listed on the Proposal accepted by
Client. Any party may designate another or an additional address at any time
by giving written notice to the other party to this Agreement.
Notices to Consultant shall be sent to:
Jeffrey P. Grogg
JPG Resources, LLC
62 Michigan Ave E, Suite 210
Battle Creek, Michigan 49017
16. Independent Contractor. It is expressly understood and
agreed, at all times and for all purposes hereunder, that Consultant is an
independent contractor. The employees, servants, representatives and agents
of Consultant shall in no way be deemed to be and shall not hold themselves
out as employees, servants, or agents of Client and shall not be entitled to
any fringe benefits from Client, such as, but not limited to, health and
accident insurance, life insurance, longevity pay, economic increases, paid
sick or vacation leave and shall not be entitled to participate in any pension
or profit sharing plan established by Client. Consultant shall be responsible
for paying all salaries, wages, and other compensation due to its employees,
servants, representatives or agents, for services provided to Client under the
terms of this Agreement and, for the withholding and payment to the proper
government authority of all applicable taxes, including, but not limited to,
income and social security taxes. Consultant shall be responsible for providing
worker’s compensation insurance coverage, as may be required by law, and
payment of all unemployment taxes or liabilities, if any, for such employees,
representatives or agents. Consultant is retained and utilized by Client for the
purposes and to the extent set forth in this Agreement. Consultant is an
independent party, and its relationship to Client during the term of this
Agreement shall be that of an independent contractor. therefore, Consultant
and its employees, servants, agents and representatives shall be free to dispose
of such portions of their time, energy and skills not required in the performance
of this Agreement in such manner as they see fit.
17. Miscellaneous. additional Documents. The parties to this
Agreement agree to execute and deliver in a timely manner any and all other
documents and instruments, to make any other actions, reasonably required
in order to carry out the transactions contemplated by this Agreement.
Headings. The headings used in this Agreement are for convenience only
and are not to be used as the basis for the interpretation, construction,
expansion or limitation of any provision of this Agreement. Counterpart/
Electronic Execution. This Agreement may be executed in any number
of counterparts and on separate signature pages by Consultant and Client
which when taken together shall constitute a single binding agreement of the
parties hereto and any signature by a party is intended to be a valid and
enforceable signature of the party. Not Partners. The parties to this
Agreement are not, in any way or for any purpose, to be considered partners,
joint ventures or members of a joint enterprise. Integration. This Agreement,
and the Proposal accepted by Client, set forth the entire agreement of the
parties concerning the subject matter of this Agreement. All prior and
contemporaneous statements, representations, agreements or understandings
of the parties concerning this matter are superseded by this Agreement, and
no other statements, representations, agreements, understandings or
covenants not included in this Agreement shall be of any force or effect
whatsoever. Binding Effect. This Agreement, and all other instruments and
agreements executed and delivered pursuant to the terms of this Agreement,
shall inure to the benefit of, and be binding upon, the parties’ successors in
interest and assigns. Assignment. Neither party shall assign any rights or
delegate any duties under this Agreement without the written consent of the
other party. Consultant may utilize the services of third parties as
subcontractors to perform the duties described in this Agreement or the
Proposal without prior written consent of Client. Consultant will remain
responsible for the performance of any Services by subcontractors the same
as if those Services had been performed by Consultant’s employees.
Amendment. These Terms may be modified only by a writing executed by
the authorized representative of the parties. Force Majeure. No failure or
omission by either party to carry out or observe any of the terms and
conditions of this Agreement shall give rise to any claim against such party
or be deemed to be a breach of this Agreement if such failure or omission
arises from any cause reasonably beyond the control of that party whether
caused by acts of God (including pandemic), insurrection, civil disorder,
war, military operations, national or local emergency, orders, acts or
omissions of any government authority, industrial disputes, fire, lightening,
explosion, inclement weather, or other similar causes beyond the control of
either party
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