Terms and Conditions
All the capitalized terms in Terms and Conditions (“Terms”) shall have the same meanings as set forth in the Service Agreement.
SPECIAL LICENSURE. Both Parties acknowledge and agree that the Services do not include, and Client shall not require Sourced. to provide, any services or perform any actions which Sourced. is not licensed to do, which include legal services or advice of any kind, tax or accounting services or advice, or any other services or actions which may require a special license that Sourced. does not possess. Sourced. specifically suggests that Client seek out the opinion of an attorney or tax advisor that may advise them on the legal and tax ramifications of Client’s business.
FORCE MAJEURE. Both Parties acknowledge and agree that Sourced. may be delayed for a number of reasons or causes beyond Sourced.’s control, including without limitation, inclement weather, site conditions, strikes, labor disputes or shortages, natural disasters, acts of war or protest, acts of God, unavailability or shortage of materials regardless of its source, shipping delays and stoppage, motor vehicle or mechanical failure, government orders and regulations, delays by any municipality or governing authority in granting licenses, permits, or issuing necessary documentations or approvals, the acts or interference by Client, the inactions of Client, the failure of Client to provide necessary information to Sourced., ransomware, spyware, sabotage, trespass, or internet or utility outages or failures. Accordingly, notwithstanding the foregoing or any other term or provision contained within the Service Agreement, Sourced. shall not be liable to Client for any loss, expense, damage, or delay resulting from or arising out of any delay or inability to perform under the Service Agreement relating to the events described in the Section or for any other reason outside the control of Sourced. In the event there is a delay or inability to perform under the Service Agreement, Sourced.’s date of completion in each Scope of Work shall be reasonably extended provided however that in no event shall the extension granted to Sourced. be less than the number of days and hours that Sourced. was so delayed.
INDEPENDENT CONTRACTOR STATUS. Both Parties acknowledge and agree that the relationship between Sourced. and Client is an independent contractor relationship. Nothing within the Service Agreement nor any action of either Party shall be deemed to constitute either Party being the other Party’s employee or agents nor shall the Service Agreement or any action of either Party be deemed to create any partnership, joint venture, association, or syndicate among or between any of the Parties, nor shall be deemed to confer on any Party any express or implied right, power, privilege, or authority, to enter into any Service Agreement or commitment, whether express or implied, or to incur any obligation or liability on behalf of the other Party. Accordingly, both Parties further acknowledge and agree that:
Provision of Services. Sourced. shall be solely responsible for determining the method, details, and means of performing the Services. Sourced. may at times and at Sourced.’s own expense employ or retain the services of such employees, subcontractors, partners, or agents as Sourced. deems necessary to perform the Services, and these persons or entities shall be known as “Sourced.’s Agents.” Sourced.’s Agents are not and shall under no circumstances be deemed the employees of Client, and Sourced. assumes responsibility for any Services provided by Sourced.’s Agents. Sourced. shall further advise Sourced.’s Agents of their status and of the Service Agreement between Client and Sourced.
No Authority to Bind the Client. Sourced. acknowledges and agrees that Sourced. and Sourced.’s Agents have no authority to enter into contracts on Client’s behalf or otherwise bind the Client without the prior consent of the Client and vice versa.
No Benefits. Sourced. acknowledges and agrees that Sourced. and Sourced.’s Agents are not entitled to any fringe benefit provided by Client to Client’s employees, which include any health benefits, 401(k), insurance, retirement compensation, pension, etc. To the extent Sourced. or any of Sourced.’s Agents would otherwise be eligible for said benefits, Sourced. hereby knowingly, intelligently, and expressly waives said benefits.
Tax Liability. Both Parties shall be responsible for their own tax liability regardless of when it accrued or accrues, if any, arising from the Service Agreement, the relationship described herein, and any tax liability arising from their business, and both Parties agree to indemnify and hold each other harmless for any claims, losses, suits, penalties, fines, assessments, or damages arising from the same.
Compliance with Laws. Both Parties acknowledge and agree that they are each responsible for ensuring their own compliance with all applicable laws, rules, and regulations, which include without limitation any worker’s compensation insurance coverage and any U.S. immigration requirements as it pertains to their business, employees, and agents, and both Parties acknowledge and agree to indemnify and hold each other harmless from and against any and all claims, losses, suits, damages, legal or otherwise, arising from the same. Moreover, both Parties covenant and agree to operate their own businesses in compliance with all applicable laws, rules, and regulations and agree to indemnify and hold each other harmless from and against any and all claims, losses, suits, penalties, fines, assessments, damages, legal or otherwise, arising from the same.
RELATIONSHIPS WITH THIRD PARTY VENDORS, INDIVIDUALS, AND ENTITIES. In performing Services, there may be times where Sourced. may introduce Client to third party vendors, individuals, or entities that may be of additional service to the Client outside the scope of what Sourced. provides. To the fullest extent permitted by law, Client agrees to indemnify and hold harmless Sourced. and all of Sourced.’s Agents, officers, employees, heirs, and assigns from and against any and all claims, losses, suits, damages, legal or otherwise, arising out of or in any way connected with the actions or inactions of a third party vendor or any other individual or entity introduced to Client by Sourced.. Client understands and acknowledges that Sourced. cannot control nor does Sourced. assume the responsibility of the actions or inactions of any third-party vendor, person, or entity. Moreover, by introducing Client to any third-party vendor, person, or entity, Sourced. is not making any sort of representation or warranty about said third-party vendor, person, or entity, their fitness, or any service or product they may provide. Client acknowledges and agrees that Sourced. is merely facilitating an introduction between Client and any third-party vendor, person, or entity. Client acknowledges and agrees that Client is a sophisticated party and is able to independently evaluate the merit of any third-party vendor, person, or entity introduced to Client by Sourced. as well as their services and products, and any contract or relationship Client chooses to engage in with said third-party vendor, person, or entity is separate and apart from Client’s relationship with Sourced.. Therefore, Client assumes the risk of any and all damages that may arise from Client’s relationship with, service provided, or product purchased from any third-party vendor, person, or entity introduced to Client by Sourced. whether in the past, present, or future to the fullest extent permitted by law.
CONFIDENTIALITY.
Confidential Information. The Parties acknowledge that by reason of their relationship hereunder, each Party may disclose or provide access to the other certain Confidential Information. “Confidential Information” shall mean (a) information concerning a Party’s products, business, and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual Service Agreements, pricing, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered to a Party, whether in oral, tangible, electronic or other form; (b) the terms of any Service Agreement, including the Service Agreement, and the discussions, negotiations and proposals related to any Service Agreement; (c) information acquired during any tours of or while present at any Parties’ facilities; and (d) all other non-public information provided by any Party hereunder. All Confidential Information shall remain the exclusive property of the disclosing Party.
Use of Confidential Information; Standard of Care. The receiving Party shall maintain the disclosing Party’s Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors and representatives who (a) have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by the Service Agreement; (b) have been informed of the confidential nature of the Confidential information furnished by the disclosing Party and the receiving Party’s obligations with respect thereto; and (c) are bound by confidentiality obligations no less restrictive as the Service Agreement. The receiving Party shall at all times remain responsible for breaches of the Service Agreement arising from the acts of its employees, subcontractors and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Each Party shall only use the Confidential Information in furtherance of its performance of its obligations under the Service Agreement, and agrees not to use the other Party’s Confidential Information for any other purpose or for the benefit of themselves or any third party.
Exceptions; Required Disclosures. Confidential Information does not include information that: (a) was lawfully in the receiving Party’s possession before receipt from the disclosing Party, as established by evidence; (b) at or after the time of disclosure, becomes generally available to the public other than through any act or omission of the receiving Party; (c) is received by the receiving Party from a third party free to make such disclosure without, to the best of the receiving Party’s knowledge, breach of any legal or contractual obligation; (d) is independently developed by the receiving Party without use of the Confidential Information; or (e) is disclosed by receiving Party with the disclosing Party’s prior written approval. If the receiving Party is confronted with legal action to disclose Confidential Information received under the Service Agreement, it shall, unless prohibited by applicable law, provide prompt written notice to the disclosing Party to allow the disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and the receiving Party shall reasonably assist the disclosing Party in such efforts. If disclosure is nonetheless required, the receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
Unauthorized Use or Disclosure of Confidential Information; In the event the receiving Party discovers that any Confidential Information has been used, disseminated, or accessed in violation of the Service Agreement, it will immediately notify the disclosing Party, take all commercially reasonable actions available to minimize the impact of the use, dissemination, or publication, and take any and all necessary steps to prevent any further breach of the Service Agreement. Client acknowledges Sourced. provides services to a large and diverse group of businesses and individuals. It shall not be a violation or evidence of a violation of Sourced.’s confidentiality obligations merely because Sourced. provides services to companies in the same industry as Client.
Return of Confidential Information. The receiving Party shall promptly return or, at the disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or earlier termination of the Service Agreement. Client acknowledges that.
EQUITABLE RELIEF AND DAMAGES. Both Parties acknowledge, covenant, and agree that the restrictions set forth in the Confidentiality, Non-Solicitation, and Non-Recruitment provisions of these Terms and the Service Agreement are reasonable and reasonably necessary for the protection of Sourced.’s legitimate business interest in maintaining its relationship with Sourced.’s Agents and Sourced.’s provision of Services and shall not place an undue burden or restraint upon Client or Client’s signatory. If Client or Client’s signatory breaches this provision, Sourced. shall be damaged and monetary damages alone shall not fully compensate Sourced. for said breach. Accordingly, Sourced. shall be entitled to immediate injunctive relief, without the necessity of posting a bond, prohibiting any violation of the Service Agreement, and Sourced. shall also be permitted to pursue any and all other remedies available to it in law or in equity, including but not limited to compensatory damages, incidental damages, consequential damages, punitive damages, expenses and costs, reasonable attorneys’ fees, and any other remedies allowed by law. Notwithstanding the foregoing or any other term contained herein, in no event shall Sourced.’s damages be less than $25,0000 in addition to Sourced.’s reasonable attorneys’ fees, costs, and expenses in obtaining equitable relief or litigation. Both Parties and Client’s signatory acknowledge, covenant, and agree that said amount is not a penalty but rather is a reasonable estimate of damages in the event that Sourced.’s damages as a result of Client or Client’s signatory’s breach are difficult to discern or ascertain. In the event either Client or Client’s signatory breach the Service Agreement and damages are awarded as a consequence, both Client and Client’s signatory shall be jointly and severally liable for the same.
INDEMNIFICATION. Each Party shall indemnify, defend, and hold harmless the other party and all of its agents, officers, employees, heirs, and assigns from and against any and all third-party claims, losses, suits, damages, legal or otherwise, arising out of or in any way connected with its own actions or inactions or those of its agents and employees or work performed thereof. Indeed, to the fullest extent permitted by law, each Party assumes full liability for any and all damages, disease, or injury arising out of or in any way connected with its work by anyone directly or indirectly employed or retained by it or anyone performing acts on its behalf.
MISCELLANEOUS.
Notices. All notices, requests, and other communications required or permitted hereunder to Sourced. shall be in writing and shall be deemed delivered:
if sent by messenger, upon personal delivery;
if sent by email or facsimile, upon written confirmation of receipt by Sourced.;
if sent overnight courier with request for next business day delivery on the next business day after sending; or forty-eight (48) hours after deposit in a regularly maintained receptacle for the United States mail, registered or certified, return receipt requested, postage prepaid, addressed as follows:
Sourced Atlanta, LLC
Attention: Gabrielle Mills
22 Technology Parkway South Peachtree Corners, Georgia 30092
Provided however that Sourced. may change its address from time to time upon providing notice to Client. Sourced. shall send notices to the Client at the address provided by Client on intake. Communications addressed in accordance with this Section shall be “Notices” for purposes of the Service Agreement. In the event Client needs or desires to change its address to receive notices, it shall inform Sourced. in writing at least five (5) business days prior to the change.
Binding. The Service Agreement or other agreements between the Parties shall not be binding unless and until it has been signed by both the Client and a representative of Sourced. and has been approved by Sourced.’s management.
Exhibits. The Exhibits to the Service Agreement are hereby incorporated by reference as if set forth fully herein. Capitalized terms used within the Exhibits and not otherwise defined therein shall have the meanings for such terms as set forth in the Service Agreement. To the extent there is a conflict in the terms of the Service Agreement and the Exhibits, the terms of the Exhibits control as to those conflicting terms only.
Survival. The representations, warranties, indemnification rights, and those sections that would logically survive the termination or cancellation of the Service Agreement shall survive the execution of the Service Agreement, the performance of the obligations of Sourced. or Client hereunder, and the cancellation or termination of the Service Agreement.
Governing Law & Venue. The Service Agreement and the relationship between the Parties will be construed, interpreted, and governed in accordance with the internal laws of the State of Georgia without giving effect to any other laws or rules that would conflict or cause the application of any other laws. In the event that there is any dispute arising from the Service Agreement or any Exhibit hereto, including all amendments or addendums to the same shall be, to the fullest extent permitted by law shall be brought in a court, whether State or Federal as the case may be, situated in or presiding over Georgia. Provided however that if for whatever reason a court situated in or presiding over Georgia may not lawfully hear or adjudicate the dispute, then said dispute may be brought in any court of competent jurisdiction.
Waiver. No waiver by any Party of any provision hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party will operate or be construed as a continuing waiver and no failure or delay in exercising any right, remedy, power or privilege shall preclude any further exercise of said right, remedy, power, or privilege. All rights, remedies, power, or privileges are cumulative and not exclusive of one another may be exercised concurrently or consecutively all at the sole and absolute discretion of the Party afforded such right.
Merger. The Service Agreement and all Exhibits hereto represent the final, entire, and integrated Service Agreement between the parties and supersedes all prior or contemporaneous Service Agreements, warranties, or representations whether express or implied or written or unwritten with respect to the subject matter hereof. Indeed, the Service Agreement hereby supersedes, repeals, and replaces any and all prior Service Agreements, oral or written, between the parties and between Parties or the Parties’ owners or officers with respect to the subject matter hereof, it being understood, covenanted, and agreed by the Parties that all prior Service Agreements, oral or written, including but not limited to the Original Service Agreement between the Parties are of no further force or effect. All transactions between the Parties shall be governed by the Service Agreement.
Modification. The Service Agreement may only be modified if done so in a writing signed by both Sourced. and Client, which is approved by Sourced.’s management.
Severability. If one or more of the provisions of the Service Agreement or any word, phrase, clause, sentence, or other portion thereof are held to be invalid, illegal, or unenforceable for any reason then it shall be severed from the Service Agreement and shall not affect the balance of the Service Agreement. Provided however that if an adjudicator of competent jurisdiction finds that it is invalid, illegal, or unenforceable but that by limiting said word, phrase, clause, sentence, or other portion it shall become valid, legal, and enforceable then it shall be deemed so limited and construed to the maximum extent permitted by law.
Headings. Headings herein are for convenience of the parties only and shall not be used in the interpretation of the Service Agreement.
Attorneys’ Fees & Costs of Collection. In the event that Sourced. should have to bring suit or seek equitable relief in connection with the Service Agreement or due to Client’s failure to pay amounts due under the Service Agreement or failure to abide by the terms contained within the Service Agreement, Client shall be responsible for Sourced.’s costs of collection and reasonable attorneys’ fees and expenses in connection with any future litigation, equitable proceeding, or arbitration. Should the matter not proceed to suit but Sourced. incurs cost in attempting to collect amounts due under the Service Agreement or otherwise enforcing the terms of the Service Agreement, Client shall pay all costs and expenses in connection with doing so including but not limited filing fees and reasonable fees payable to attorneys or to collection agencies.
Counterparts & Signatures. The Service Agreement may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one instrument. A Party’s signature sent by email or facsimile shall be deemed an original and binding signature. Moreover, an executed copy of the Service Agreement shall have the same force and effect for all purposes the same as the original.
Construction. No presumption or rule requiring that the terms of the Service Agreement must be construed against the party that drafted it or prepared it shall apply to the Service Agreement, any Exhibit, or any amendment, addendum, or other modification to the same.
No Third-Party Beneficiaries. There are no third-party beneficiaries to the Service Agreement.
Business Day. When the term business day is used within the Service Agreement, said term, whether or not capitalized, shall refer to Monday through Friday from nine o’clock am (9:00 am) to five o’clock pm (5:00 pm) Eastern time and excludes Saturdays, Sundays, any Federal Holiday, and any day in which the banks located in Georgia are authorized or required to close.
Electronic Delivery. The Parties agree that they may decide to deliver any documents related to the Service Agreement or any notices required by applicable law or the Parties’ corporate books or records by email or any other electronic means, and the Parties consent to (i) conduct business electronically, (ii) receive documents and notices by electronic delivery, (iii) sign documents electronically, and (iv) to participate through an online or electronic system established and maintained by the Parties or a third party designated by the Parties.
Satisfaction. By signing below, the parties represent, warrant, and agree that they have read the Service Agreement, understand its terms, and acknowledge the same shall be binding upon them.