1. CEPHR Terms and Conditions Control the Agreement.
a. These terms and conditions are incorporated into and made a part of the agreement or proposal (“Agreement”) by CEPHR, LLC and any of its affiliates (“CEPHR”) to sell to the named Client the services (including, without limitation, any management, design, planning, training and delivery services (whether performed by CEPHR or a subcontractor)) referenced on the Statement of Work, Proposal, and/or invoice (“Services”). The Agreement expressly limits Client’s acceptance to these terms and conditions. Client may reject the Agreement by not ordering or receiving any Services. The Agreement does not constitute an acceptance by CEPHR of any offer or counteroffer of Client, and CEPHR hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders or other documents of Client that already have been or hereafter may be presented to CEPHR with respect to the Agreement.
b. If Client has submitted or will submit additional and/or different terms and conditions to CEPHR, or submit a counteroffer to CEPHR, CEPHR subsequent performance will not be construed as either acceptance of Client’s additional and/or different terms and conditions or Client’s counteroffer, nor will CEPHR’s subsequent performance be viewed as a willingness to accept any provision of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to any of the terms and conditions hereof.
c. This Agreement, all attached schedules, and all other agreements referred to herein or to be delivered by the Parties pursuant hereto, represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and merges all prior discussions between them and supersedes and replaces any and every other agreement or understanding which may have existed between the parties to the extent that any such agreement or understanding relates to providing Services to Client. Client hereby acknowledges that it has not reasonably relied on any other representation or statement that is not contained in the Statement of Work or made by a person or entity other than CEPHR, LLC. To the extent, if any, that the terms and conditions of Client’s orders or other correspondence are inconsistent with this Agreement, this Agreement shall control.
d. Each Change Order shall be numbered serially and executed by Tiffany Castagno, CEO, CEPHR, LLC and Client.
a. Unless otherwise agreed to by CEPHR in writing, CEPHR prices for the Services will be the prices stated on the Statement of Work, Proposal and/or invoice or CEPHR standard prices for such Services as of the date hereof; provided, however, that CEPHR may change the price for the Services in accordance with any change to its standard pricing for such Services prior to the date of performance of Services.
b. The prices of any and all Services shall be confidential, and Client shall not disclose such prices to any unrelated third party. CEPHR and Client acknowledge and agree that money damages for any and all breaches of Client’s obligation not to disclose the price of any Services is both incalculable and insufficient and that any such breach would irreparably harm CEPHR. Therefore, in the event of an actual or prospective breach of the obligation of Client not to disclose the prices of any Services, CEPHR shall be entitled to a permanent and/or a preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Agreement against Client in addition to any other remedies to which CEPHR may be entitled at law or in equity.
c. Any change to the agreed-to Statement of Work will be described in a written change order prepared by CEPHR which describes with reasonable specificity the proposed increase or decrease, if any, in the fees and the extension or contraction, if any, in the time schedule resulting from the implementation of the proposed change order, and any other material impact the proposed change order would have to the Statement of Work. No change order shall be effective unless agreed to in writing by CEPHR.
d. CEPHR will provide Client with invoices monthly, at the end of each month as Agreement is in force through the Statement of Work.
e. Client agrees to remit full payment to CEPHR within fifteen (15) days of receiving the receipt of the invoice.
f. In the event of a typographical error relating to price or quantity of an item described by CEPHR, CEPHR reserves the right to refuse to fill any order(s) that rely on such typographical error. All prices and services provided are subject to availability and limited quantities.
a. Client will designate one of its owners, employees or representatives to serve as its primary contact with respect to the Statement of Work and to act as its authorized representative with respect to matters pertaining to the Statement of Work (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed.
b. Any change in Board positions or leadership requires, within 5 days, confirmation or a new designation of the Client Contract Manager.
c. Client Contract Manager is required to respond promptly to any reasonable requests from CEPHR for instructions, information, or approvals required by CEPHR to provide the Services.
d. Client Contract Manager is required to cooperate with CEPHR in its performance of the Services and provide access to Client’s premises, employees, contractors, and equipment as required to enable CEPHR to provide the Services.
a. If Client makes, or allows any third party to make, materially available including, without limitation, text, names, graphics, designs, colors, logos, trademarks, files and any such material (“Submissions”), Client is entirely responsible for the content of, and any harm resulting from, such Submissions. By submitting any Submissions, Client represents and warrants that (i) Client has the full right and authority to submit such Submissions, and that no such Submissions are subject to any trademark, copyright or other proprietary right of a third party. By submitting Submissions, Client grants CEPHR a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Submissions.
b. Without limiting any of those representations or warranties, CEPHR has the right (though not the obligation) to, in CEPHR’s sole discretion to refuse any Submission that, in CEPHR’s reasonable opinion, violates any CEPHR policy or is in any way harmful or objectionable. CEPHR will have no obligation to provide a refund of any amounts previously paid.
c. CEPHR will be entitled to use, edit, reproduce, publish, translate, sublicense, copy and distribute, and/or incorporate into other works in any form, Submissions for any commercial or other purpose whatsoever without compensation or other accounting to Client or any other person sending the Submissions, and will not incur any liability as a result of any similarities that may appear in our future operations. Client will continue to be responsible for the substance of the Submissions including, without limitation, any indemnification obligations related to such Submissions. CEPHR is not required to treat any Submissions as confidential.
d. By commissioning CEPHR to design and create a plan for the services, Client entrusts CEPHR to utilize its skills and capabilities to use goods and services which will best showcase the Services as described in the Statement of Work.
a. All payments for Services must be made in United States currency unless specified in writing by CEPHR. Payments for Services will be made by such means as CEPHR may specify, such as by cash, check, credit card or wire transfer provided that CEPHR may refuse, in its sole discretion, payment by any means.
b. Services as requested by Client that require CEPHR provide services within 48-hours of the request will incur a Priority Fee at an additional rate, per hour, for any Services rendered during that 48-hour period.
c. CEPHR invoices for services on the last day of each month. Payment for Services in full, including any Priority Fee, is due within 15 days from the date of CEPHR invoice; provided, however, that CEPHR reserves the right, in its sole discretion, to require full payment in cash before performance of services.
d. CEPHR shall have the right to offset any and all amounts due and owing from CEPHR to Client under this Agreement, including, without limitation, any chargebacks or rebates, against any amounts due and owing from Client to CEPHR under this Agreement.
e. If Client defaults in payment, Client will be liable for all collection costs incurred by CEPHR including, without limitation, attorneys’ and collection agency fees, and all related disbursements.
f. If Client does not pay when payment is due, past due amounts are subject to service charges of one and a half percent (1.5%) per month or the maximum percentage rate permitted by law, whichever is less.
a. Client may cancel its order for Services, but only if notice is provided by Client in writing and CEPHR agrees to such cancellation in writing and only after Client pays reasonable charges for expenses already incurred and commitments made by CEPHR in connection with the placement of such order(s).
b. Retainers, Priority Fees, planning fees and any payment for Services are non-refundable.
c. CEPHR may cancel in whole or in part of Services under the Agreement at any time.
7. Disclaimer of Warranties.
a. CEPHR warrants that the Services will be performed in a professional manner conforming to generally accepted industry standards and practices.
b. Client agrees to CEPHR’s sole and exclusive obligation with respect to the Services covered by this limited warranty shall be, CEPHR’s sole discretion, to correct the nonconformity or to refund any fees related to the Services paid for the affected executive Consulting Services.
c. CEPHR HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, ANY WARRANTY OF GOOD TITLE, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS. CEPHR shall, however, if given prompt written notice by Client of any claim of alleged patent, trademark or copyright infringement, use its reasonable efforts to secure for Client such indemnity rights as the manufacturer may offer.
8. Exclusive Remedy.
a. Client’s EXCLUSIVE remedy against CEPHR arising out of, or in connection with, any Service provided hereunder is the re-performance of that Service or, at CEPHR sole election, a refund of the purchase price of the Service.
b. These remedies only will only be available to Client for 30-days after the Service is provided to Client, and CEPHR obligations under this Section will be void unless Client provides CEPHR with notice of the defect in the Service within 48 hours of discovery of the defect.
9. Limitation of Liability.
NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL: (A) CEPHR BE LIABLE TO CLIENT FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR COST OF REPLACEMENT SERVICES, OR ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT, THE SERVICES (EVEN IF CEPHR IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES); AND (B) CEPHR TOTAL LIABILITY RELATED TO ANY SERVICE EXCEED THE PURCHASE PRICE OF SUCH SERVICE DURING A 30-DAY PERIOD.
10. 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 Client under this Agreement or prepared by or on behalf of Client in the course of performing the Services, except for any Confidential Information of the Client or Client materials shall be owned by CEPHR. CEPHR hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Services.
11. Confidential Information.
All non-public, confidential, or proprietary information of Client, including, but not limited to, Intellectual Property, designs, plans, documents, data, business operations, customer information, financial information, business development, and pricing disclosed, information designated by Client, or otherwise identified as “confidential,” in connection with CEPHR is confidential, solely for the purpose of performing Consulting Services for Client, and may not be disclosed or copied unless authorized by Client in writing. Upon Client’s request, CEPHR shall promptly return all documents and other materials received from Client. This section shall not apply to information that is: (a) in the public domain; (b) known to CEPHR at the time of disclosure; or (c) rightfully obtained by CEPHR on a non-confidential basis from a third party. Client understands, acknowledges and consents to CEPHR’s Consultation with and sharing of confidential Client information with its Consultants, Employees, Contractors, Attorneys, Accountant, or Advisors to assist on an as-needed basis in Consulting, and for advice as needed to accomplish projects. Client may revoke any or all consents relating to the sharing of Client’s confidential information at any time, upon written notice to CEPHR.
Client will indemnify, defend and hold harmless CEPHR, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement, the Services (including, without limitation, Losses arising in connection with the performance of Services on Client’s premises by CEPHR employees, representatives, agents, or subcontractors), regardless of whether such Losses are suffered directly by Client or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not CEPHR or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Client need not indemnify CEPHR for CEPHR obligation, if any, to Client under the remedies described herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Client to pay any judgments against CEPHR or any other indemnified party resulting from any Claim, any court costs of CEPHR or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by CEPHR or any other indemnified party in CEPHR defense of any Claim. CEPHR will have the sole and exclusive right to conduct the defense of any Claim at Client’s sole and exclusive cost and expense. Client’s indemnification obligation does not depend on the truth or accuracy of any allegations made against CEPHR, Client or any third party.
During the term of this Agreement Client shall maintain insurance, in full force and effect that includes, but is not limited to, commercial general liability, and other applicable liability policies, each in a sum no less than $5 Million per occurrence with financially sound and reputable insurers. Upon CEPHR’ request, Client shall provide CEPHR with certificates of insurance from Client’s insurer(s) evidencing the insurance coverage. The certificates of insurance shall name CEPHR as an additional insured. Client shall provide CEPHR with 60 days’ advance written notice in the event of a cancellation or material change in any Client’s insurance policy. The Parties shall assess and adjust insurance needs and requirements every 6 months or as frequently as the Parties agree.
CEPHR shall have and retain all right, title, and interest in and to any and all trade secrets, methodologies, techniques, designs, molds, tools, samples, systems, know-how, expertise and other proprietary information that it may use pursuant to or in connection with any Services, and Client shall not obtain a license to, or any other property rights in, any such CEPHR property pursuant to or in connection with this Agreement; provided, however, that CEPHR reserves the right, in its sole discretion, to adjust the terms of ownership.
Client hereby warrants and represents that it will comply with any and all Laws with respect to the purchase, use, and operation of any and all Services. For purposes hereof, “Laws” means any national, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statutes, codes, ordinances, rules, regulations, requirements, standards, policies or guidances having the force of law, treaties, judgments or orders of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.
16. Interpretation of the Agreement.
None of CEPHR’s or Client’s members, shareholders, directors, officers, partners, managers, employees, agents or representatives have any authority to orally modify or alter in any way the terms and conditions of the Agreement. The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of CEPHR or by language included on the Statement of Work, Proposal and/or invoice. Regardless of how many times Client purchases, or has purchased services from CEPHR by whatever means, each time Client accepts the Agreement, Client and CEPHR enter into a separate agreement that will be interpreted without reference to any other agreement between Client and CEPHR, or what Client may claim to be a course of dealing or course of performance that has arisen between Client and CEPHR. No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain or serve to interpret any of the terms, conditions and limitations of the Agreement. The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Services hereunder, (except for any contemporaneous writing agreed to in writing by CEPHR expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters. Failure by CEPHR to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of CEPHR to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Client’s default under the Agreement will not constitute a waiver of that right or any other rights.
17. Force Majeure.
CEPHR will not be liable for its failure to perform under the Agreement (including, without limitation, the failure to perform any Services) due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, pandemic or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause beyond CEPHR reasonable control, including, without limitation, any delay caused by Client (each, a “Force Majeure Event”). If any Force Majeure Event prevents CEPHR performance of any of its obligations under the Agreement, CEPHR will have the right to (a) change, terminate or cancel the Agreement, or (b) omit during the period of the Force Majeure Event all or any portion of the quantity of the Services deliverable during that period. If CEPHR is unable to supply the total demands for any Services to be performed under the Agreement due to a Force Majeure Event, CEPHR will have the right to allocate its available supply among its customers in whatever manner CEPHR deems to be fair and equitable. In no event will CEPHR be obligated to purchase services or materials from other than its regular sources of supply in order to enable it to supply Services to Client under the Agreement. No change, cancellation or proration by CEPHR will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
18. Electronic Consent.
Client acknowledges that Clients electronic submissions constitute Client’s agreement and intent to be bound by this Agreements. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”), the Pennsylvania Electronic Transactions Act, or other similar statutes, CLIENT HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH CEPHR. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Client may obtain a copy of this Agreement by printing it now at no additional cost to Client or by contacting CEPHR.
19. Choice of Law; Choice of Venue.
The negotiation, execution, performance, termination, interpretation and construction of the Agreement will be governed by the law of the Commonwealth of Pennsylvania, except for Pennsylvania’s choice of law rules. If either CEPHR or Client brings a lawsuit or any other action arising out of the Agreement against the other party, such party must file its lawsuit or other action in a state or federal court located in Pittsburgh, Pennsylvania. CEPHR and Client expressly submit to the exclusive jurisdiction of those courts and consent to venue in those courts, and CEPHR and Client consent to extra-territorial service of process on CEPHR and Client. In the event of litigation pertaining to any matter covered by the Agreement, each of CEPHR and Client hereby agree to waive any right that it may have to a jury trial of any or all issues that may be raised in such litigation. Nothing contained in the Agreement will be construed to limit or waive any rights of CEPHR under applicable United States federal, state, or local laws. Any provision of the Agreement held to be invalid, illegal or unenforceable will be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof.
20. Binding Authority.
Any director, officer, employee, representative, or agent of Client signing or otherwise entering into this Agreement hereby represents and warrants that he or she is duly authorized to execute and enter into this Agreement on behalf of Client.