Statement of Terms and Conditions
BERT SPILKER & ASSOCIATES (BSA) agrees to provide professional services subject to the following terms and conditions:
Last update: January 2008
- EFFECTIVE DATE OF THESE TERMS & CONDITIONS: These Terms and Conditions shall become effective and binding upon the Client upon acceptance, which shall be evidenced by the Client's written or verbal statement to initiate the Services (as defined in separate correspondence).
The findings and recommendations of BSA reflect our professional judgment based on the information made available to us by the Client and obtained from other sources. We have relied upon and assumed the accuracy of all documents, results, data and other information submitted to us to perform the Services.
- CONFIDENTIALITY: All confidential information provided to BSA by the Client to perform the Services shall be retained in confidence by BSA except for: 1) public information; 2) information previously known; 3) information developed independently; 4) information disclosed by a third party or as required by law. BSA assumes no liability for the subsequent use or disclosure of confidential information made available either to us or others by third party sources (public or non-public) unless due solely to the fault of BSA.
- INDEMNIFICATION: It is understood that BSA is performing its services solely at the request, and with the guidance of the Client, and accordingly BSA takes no responsibility for the use which Client makes of BSA's work. Client hereby indemnifies BSA for and against any claim, loss, damage, harm or threats thereof (including reasonable attorneys' fees) which may result, in whole or in part, from the use by Client of the services or work performed by BSA for it. In no event shall reports or information furnished by BSA to the Client be furnished or sold to third parties without express written permission of BSA.
The Client shall hold BSA harmless from any and all liability, losses, damage cost or expense, including attorneys' fees arising from, in connection with, or relating to Services performed unless due solely to the negligence of BSA. Under all circumstances, in no event, shall BSA be liable for indirect, special, consequential, punitive, incidental, or exemplary damages, or for damages to the Client or others in excess of fees received by BSA for Services performed. BSA's liability for work under these Terms and Conditions shall be limited to monies paid to Client for work performed and shall in no event exceed the amounts paid to BSA by Client for the work which gave rise to such liability.
- INDEPENDENT CONTRACTORS: It is understood that the relationship between BSA and the Client is that of independent contractors, and neither BSA nor the client has the authority to bind one another in any contractual arrangement except as may be specifically authorized in writing between BSA and the Client.
- USE OF NAMES: BSA may list the Clients as a past Client on its website or in its promotional material after the current project is completed. No individual employed by the Client will be listed without express written consent from the Client.
- FEES: Fees are billed periodically and are calculated hourly, daily or on a project basis, together with expenses (see below). All fees and expenses not previously paid are due and payable upon receipt of each statement. Unless prior arrangements are made, the client agrees to pay the statement promptly and in full, understanding that if payment is not made in full within thirty (30 days) of the statement date, the Client's account shall be considered past due and an interest charge may be added to the outstanding balance in an amount equal to one percent (1%) per month. BSA retains the right to require advance payment under a separate retainer agreement for projects involving a major commitment of time and/or expenditures. BSA is retained to provide independent and objective professional judgment and recommendations; accordingly, a difference of opinion on a question of professional judgment shall not excuse a Client from fees and costs incurred in the collection of any outstanding accounts receivable.
- EXPENSES: Expenses incurred on behalf of the Client are payable in addition to Fees. Expenses include, but are not limited to messenger services, duplication service, secretarial services, postage, computer research, travel, telephone and all similar out-of-pocket expenses. BSA may engage the services of other professionals, contractors or other assistants with the Clients consent. These outside professionals are engaged to assist BSA and sometimes the Client to perform the Services. All fees, expenses, and related charges by such outside professionals are payable directly to BSA as expenses and are billed in addition to the fees of BSA.
- TRAVEL: Expenses include taxi/limo service to and from airports plus economy flights in the U.S. and Business Class flight outside North America. Fees for travel time are billed at usual rates unless other business can be conducted during travel time.
- STORAGE: Service related information and materials may, upon request, be held in storage by BSA for up to, but not longer than twelve (12) months after the completion of the assignment, although this period is subject to change at the discretion of BSA. Prior to disposal, BSA shall notify and provide the Client with the option of disposal, return or continued storage at the Client's sole expense. Reasonable storage charges may be assessed at the discretion of BSA for any unusually large or lengthy storage of Client's materials by BSA.
- LEGAL PROCEEDINGS: If BSA is requested by a Client, or if as a consequence of an assignment BSA is required by judicial or administrative process, to participate, appear, or testify in anticipation of or during legal or dispute resolution proceedings of any kind during the period BSA is providing Services or thereafter, BSA will reasonably comply with any such request or requirement based on advice of legal counsel. In the event that BSA does so participate in any manner, the Client shall pay to BSA all professional fees and other Fees of BSA in effect as well as the cost and expenses, including attorneys' fees, incurred in anticipation and resulting from such proceedings. These fees and expenses are in addition to any fees paid or owed for Services performed or to be performed.
- EQUAL OPPORTUNITY AND RELATED LAW: This Agreement is subject to all applicable federal and state equal opportunity laws and regulations. The Client shall be responsible for compliance with all other laws and governmental regulations affecting its business and the services conducted for its benefit.
- SOLICITATION OF BSA EMPLOYEES OR CONSULTANTS: BSA may employ a variety of employees and consultants acting as subcontractors, who may interact in various capacities directly with the Client while performing services for the Client. It is understood that during their work for the Client, and for a period of one year thereafter, the Client will not solicit any of these persons to work or consult for it directly other than via the auspices of BSA, unless a waiver in writing is given to the Client.
- TERMINATION: The Client may terminate services by BSA at any time upon thirty (30) days advance written notice to BSA. Upon receipt of such notice, the Client's papers and property in BSA's possession will be returned promptly after receipt of payment for outstanding fees and expenses. BSA's own files pertaining to the Client are his property and will be retained or disposed of at his discretion. BSA reserves the right to suspend or terminate the services or any assignment in process in the event any financial statement remains outstanding and unpaid for sixty (60) days. All Fees are agreed to be earned in full when services are performed without any discount or diminution. Discounted fees, as a result of a retainer, will be agreed to in a separate letter of agreement.