TERMS AND CONDITIONS
1. Applicability.
(a) These Consulting Terms and Conditions (the “Terms”) are the only terms that govern the provision of consulting services by Sustainable Investment Group, LLC, a Georgia limited liability company (“SIG”), and any Customers identified in a standard order confirmation (the “Order Confirmation”) issued by SIG.
(b) SIG’s quotation, order confirmation, invoice, and these Terms (collectively, this “Agreement”) comprise the enter agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of the Customer’s general terms and condition regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order for services does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
(c) Notwithstanding anything to the contrary contained in this Agreement, SIG may, from time to time, change the Services without the consent of Customer provided such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Order Confirmation.
2. Services. SIG shall provide to Customer the services (the “Services”) set out in one or more order confirmations to be issued by Customer and accepted by SIG (each, a “Order Confirmation”). Additional Order Confirmations shall be deemed issued and accepted only if signed by the SIG Contract Manager or other authorized representative and the Customer Contract Manager or other authorized representative, appointed pursuant to Section 3(a)i and Section 4(a), respectively.
3. SIG Obligations. SIG shall:
(a) Designate employees that it determines, in its sole discretion, to be capable of filling the following positions:
i. A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “SIG Contract Manager”).
ii. A number of employees that it deems sufficient to perform the Services set out in each Order Confirmation, (collectively, with the SIG Contract Manager, “Provider Representatives”).
(b) Make no changes in Provider Representatives except:
i. Following notice to Customer.
ii. Upon the resignation, termination, death or disability of an existing Provider Representative.
iii. At the reasonable request of Customer, in which case SIG shall use reasonable efforts to appoint a replacement at the earliest time it determines to be commercially viable.
(c) Maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by SIG in providing the Services. During the Term, upon Customer’s written request, SIG shall allow Customer or Customer’s representative to inspect and make copies of such records in connection with the provision of the Services; provided that Customer provides SIG with at least 5 business days advance written notice of the planned inspection any such inspection shall occur no more than once per year.
4. Customer’s Obligations. Customer shall:
(a) Designate an employee that it determines, in its sole discretion, to be capable of filling the position of a primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Customer Contract Manager”).
(b) Cooperate with SIG in all matters relating to the Services and provide such access to Customer’s premises and other facilities as may reasonably be requested by SIG for the purposes of performing the Services;
(c) Respond promptly to any SIG request to provide direction, information, approvals, authorizations, decisions, records or other documents that are reasonably necessary for SIG to perform the Services in accordance with the requirements of this Agreement;
(d) Provide such materials or information as SIG may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects;
(e) Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and
(f) Follow all instructions and recommendations provided by SIG that are necessary for the satisfactory provision and completion of Services.
5. Customer’s Acts or Omissions. If SIG’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, SIG shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders. Customer may request SIG to perform services or provide materials which are not set forth in the Order Confirmation. SIG agrees to perform such additional work so long as prior to the performance of such additional work, Customer shall authorize in writing the scope of such additional work and compensation payable to SIG for the full performance of said additional work. SIG may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Confirmation. SIG may also, from time to time, change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, the fees, or any performance dates set forth in the Order Confirmation.
7. Fees and Expenses; Payment Agreement; Interest on Late Payments.
(a) In consideration of the provision of the Services by SIG and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
(b) Any work performed on additional tasks outside the scope of work described in the Order Confirmation will be paid based on hourly rates of Principal ($225/hour), Commissioning Agent ($195/hour), Senior Sustainability Consultant ($180/hour), or Sustainability Analyst ($165/Hour).
(c) All fees charged by the U.S. Green Building Council (“USGBC”) and Green Business Certification Inc. (“GBCI”) will be paid by the Customer or project owner directly to the certifying organization.
(d) Customer understands that the price quoted in the Order Confirmation generally includes reimbursable expenses incurred by SIG, such as travel, GoToMeeting conferences, courier expenses, copying, binding, and printing, unless stated otherwise. However, if SIG incurs expenses or other losses that it does not anticipate, such as travel cancellation fees resulting from Customer’s rescheduling or cancellation of a site visit, SIG has the right to seek additional reimbursement from Customer for such expenses. Likewise, if SIG purchases any specific items at the request of Customer, such as renewable energy credits, Customer agrees to promptly reimburse SIG for the cost of such items.
(e) All fees are due and payable no later than thirty (30) days from date of invoice. All past due amounts will incur an interest charge of 1.5% per month, being an annual percentage rate of 18%, or the maximum amount allowed by law, whichever is less. Should any payments owed by Customer be collected by or through an attorney, Customer also agrees to pay an additional 15% of the amount due and accrued interest, plus any other costs of such collection, including reasonable attorney’s fees.
(f) SIG understands that certain circumstances may arise that may preclude Customer from paying SIG’s invoices within the time prescribed above, such as the existence of a pay-when-paid clause in Customer’s contract with the project owner. If Customer becomes aware of any such circumstances, Customer (a) shall inform SIG about such circumstances immediately upon becoming aware of the same, and (b) shall sign an agreement, in the form provided by SIG, setting forth any additional or replacement payment Agreement requested by SIG.
(g) Customer agrees to notify SIG in writing or by email within five (5) days of receiving an invoice if Customer disputes any expense or fee entry on that invoice. In the absence of any such written objections within five (5) days, Customer will be deemed to have accepted and acknowledged the invoice as correct.
8. Clarifications from GBCI. Prerequisites and credits may require clarifications that are requested by the GBCI. For the clarification process, SIG will collect the additional information requested by the GBCI. SIG will respond to any clarifications request from the certifying agency, but may require cooperation from the Customer to satisfy the request appropriately. Customer understands that requests for clarifications are outside of SIG’s control. If there are more than nominal clarification requests, or if an unusual amount of time is spent responding to clarification requests, then SIG reserves the right to charge additional hourly fees for the time spent on such clarifications. SIG will provide one (1) electronic PDF close-out file for the Owner upon completion of the LEED process.
9. Limited Warranty and Limitation of Liability.
(a) SIG warrants that it shall perform the Services:
i. In accordance with the terms and subject to the conditions set out in the respective Order Confirmation and this Agreement.
ii. Using personnel of skill, experience and qualifications.
iii. In a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
(b) SIG’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
i. SIG shall use reasonable commercial efforts to promptly cure any such breach; provided, that if SIG cannot cure such breach within a reasonable time (but no more than 30 days) 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 Section 14(b).
ii. In the event the Agreement is terminated pursuant to Section 14, SIG shall within 30 days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Service or Deliverables (as defined in Section 10 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
iii. The foregoing remedy shall not be available unless Customer provides written notice of such breach within 7 days after acceptance of such Service or Deliverable to Customer.
(c) SIG MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 8(A), ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
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 Customer under this Agreement or prepared by or on behalf of the SIG in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables”) shall be owned by SIG. SIG hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, 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.
11. 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 7 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 Section 11; (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 Representatives 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.
12. Disclosure. 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.
13. Exclusivity. If the Order Confirmation indicates that the Services (or any part thereof) are to be provided exclusively by SIG, the following provision shall apply. For the duration of this Agreement, Customer shall retain only SIG, and no other SIGs, to provide the type of services described in the Order Confirmation, including periodic Energy Star certification services. If Customer retains another SIG to perform such services without SIG’s express written consent, then Customer agrees to pay SIG the same amount as would be due to SIG if SIG had performed all such services.
14. Term, Termination and Survival.
(a) The Services will be provided on a subscription basis, a project basis, or as a combination of both, as set forth in the Order Confirmation. Unless otherwise stated in the Order Confirmation, “Subscription-Based” Services are those that the Customer agrees to be performed periodically under a single agreement, such as monthly energy consumption reports or annual Energy Star certification. “Project-Based” Services are those that are part of a specific, unique project or that the Customer does not wish to be performed on a periodic or regular basis.
(b) For Subscription-Based Services, this Agreement will commence on the Effective Date and continue for an initial period of not less than one year (the “Initial Term”), as specified in the Order Confirmation. After the Initial Term, this Agreement shall renew automatically for another term of equal length, unless a different renewal term is agreed to by both Parties. The original contract price may be adjusted annually by no more than five percent (5%) to reflect an increase of pricing for goods and services.
(c) For Project-Based Services, this Agreement will commence on the Effective Date and will terminate on the date that the project is complete, unless terminated sooner in accordance with this Agreement.
(d) Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting party”), if the Defaulting party:
i. 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 30 days after receipt of written notice of such breach.
ii. Becomes insolvent or admits its inability to pay its debts generally as they become due.
iii. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 business days after filing.
iv. Is dissolved or liquidated or takes any corporate action for such purpose.
v. Makes a general assignment for the benefit of creditors.
vi. 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.
(e) SIG may terminate this Agreement before the expiration date of the Term on written notice if the Customer fails to pay any amount when due hereunder: (a) and such failure continues for 14 days after the Customer’s receipt of written notice of nonpayment; or (b) more than 2 times in any 6-month period;
(f) If the Customer cancels the Services after preparatory expenses were made by the SIG, a Customer shall reimburse those expenses within 7 days after receiving a notice. The expenses shall be reimbursed when reasonably justified and documented. The reimbursement shall consist of an actual price and
(g) The rights and obligations of the parties set forth in Section 14(f) and in Section 7, 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.
15. Limitation of Liability.
(a) IN NO EVENT SHALL SIG BE LIABLE TO CUSTOMER OR TO ANY THIRD party FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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 SIG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SIG’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 TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SIG PURSUANT TO THIS AGREEMENT IN THE 6-MONTH PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
16. Indemnification. To the fullest extent permitted by law, Customer shall indemnify, defend and hold harmless SIG and its officers, directors, shareholders, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers) resulting from any claim of a third party or SIG arising out of or occurring in connection with (a) Customer’s use of the Services or Deliverables, (b) Customer’s breach of this Agreement, or (c) Customer’s negligence, willful misconduct or breach of this Agreement. Customer shall not enter into any settlement without SIG’s or Indemnified party’s prior written consent. This indemnification provision shall not apply to claims resulting directly from SIG’s gross negligence or SIG’s breach of this Agreement.
17. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes 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.
18. 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 Section 18.
Notice to Customer:
As set forth in the Order Confirmation.
Notice to SIG:
Sustainable Investment Group, LLC
ATTN: Charlie Cichetti
5607 Glenridge Dr.
Suite 250
Atlanta, GA 30342
19. 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.
20. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party.
21. 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.
22. 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 SIG. Any purported assignment or delegation in violation of this Section 22 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
23. 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.
24. 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.
25. Choice of Law and Forum. Georgia law applies to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction. All disputes arising out of or in connection with this Agreement will be brought in the courts of Fulton County, Georgia or the U.S. District Court for the Northern District of Georgia, and the parties consent to the jurisdiction of such courts.
26. 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.
27. 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.
28. Force Majeure. The SIG 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 SIG including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, 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 14 days, Customer shall be entitled to give notice in writing to SIG to terminate this Agreement.
