Terms and Conditions
These Terms and Conditions (“Terms”) constitute the terms and conditions that govern the relationships between LUFT ADVISORY SERVICES (“LUFT”) and its clients (each a “Client”) who agree to receive professional business and consulting related services from LUFT by entering into a Services Agreement, or who may agree to receive professional placement services from LUFT by entering into a Placement Services Agreement (in either circumstance, a “Services Agreement”). These Terms of Condition are expressly incorporated into each Services Agreement. The professional services provided by LUFT under a Services Agreement may be generally defined hereinafter as the “Services.” All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Services Agreement. By signing a Services Agreement or otherwise receiving any Services from LUFT, Client agrees to be bound by these Terms of Condition.
1. Independent Contractor
In providing the Services, LUFT (and its representatives) will be acting as an independent contractor and not as an agent, partner, employee, or representative of Client. Nothing in the Services Agreement or these Terms of Condition shall be construed to create an employee/employer relationship, trustee, partnership, joint venture, agency, or fiduciary relationship between the parties.
2. Tax services and filings
Client acknowledges that it is solely responsible for the accuracy of any tax services or filings. Therefore, to the extent the Services involve preparation of any tax filings, Client agrees that its authorized representatives will review and approve such filings before signing and submitting such filings.
3. Capital Funding
In the event that Client requests LUFT to assist Client with any application for loans, grants, or other funding (“Capital Funding”), LUFT is entitled to rely on information provided by Client to complete the Capital Funding and shall not be held liable for any inaccuracies, misstatements, or mistakes on any Capital Funding. It is the sole responsibility of Client to ensure that the Capital Funding has correct and complete information. Further, LUFT does not and cannot guarantee that a Capital Funding will be accepted or that funding will be granted.
4. Confidentiality of Client Information
In connection with the provision of the Services, LUFT may require access to Client’s books, records, and other information regarding Client, which shall be provided by Client or Client’s designated third-party representatives (“Client Information”). Except as consented to in writing by Client or as required by applicable law or court order, LUFT will maintain the confidentiality of all Client Information and will use the Client Information for the sole purpose of providing the Services; provided, however, that no confidentiality obligations will apply to Client information that is publicly available or was rightfully obtained from a third party. Any work product created by LUFT in the course of providing the Services and paid for by Client will be the property of Client. In the event LUFT is deemed to have any right, title, or interest in any work product created for and paid by Client, LUFT shall waive such right in favor of Client, and shall take all reasonable action as requested by the client to secure Client’s ownership rights. LUFT agrees to control the use and disclosure of Client Information with diligence and care, and to treat Confidential Information with the same level of protection as it affords its own confidential information of a similar nature. LUFT may share Client Information with its agents and representatives who reasonably need to know such information for the purpose of performing LUFT’s obligations under the Services Agreement. This clause shall not prohibit our disclosure of Confidential Information, in confidence, to LUFT’s professional insurers or other advisers. For the purposes of marketing or selling our services LUFT may wish to disclose that LUFT has performed work (including the Services) for the Client, in which event LUFT may identify the Client by name and LUFT may indicate only the general nature or category of such work (or of the Services) and any details which have properly entered the public domain.
5. Reliance on Client Information
LUFT will rely on the Client Information provided by the Client in performing the Services and will not independently verify or audit Client Information. Accordingly, it is Client’s sole responsibility to ensure that Client Information is accurate and complete and to inform LUFT promptly of any suspected error. Services provided by LUFT are not intended to uncover inherent errors in Client Information; however, LUFT may notify Client if any such errors are discovered. LUFT shall not be liable, in any manner, to any third party or any governmental authority, and Client shall defend, indemnify, and hold LUFT harmless from and against any claims, damages, causes of action, or criminal fines or penalties relating to, arising out of, or concerning any errors or mistakes in any work product, or any other failure in the performance of the Services that relates to, arises out of, or is caused by Client’s failure to deliver accurate, complete, and timely Client Information to LUFT. The Client agrees to deliver all relevant Client Information to LUFT on a timely basis as requested by LUFT. To the extent LUFT does not receive necessary Client Information within the timeframes requested, which delays LUFT’s delivery or completion of the Services, Client will nonetheless remain responsible for the payment of all fees and expenses required under the Services Agreement arising out of the Services and any other fees or expenses that might develop in relation to these delays.
6. Payment terms, Interest Fees, Collection Matters, Price Increases, and Deposits
All fees and expenses required to be paid by Client to LUFT arising out of the Services shall be due in accordance with the payment terms agreed upon in the Services Agreement. Any fees or expenses remaining unpaid more than ten (10) days from the date when due shall bear interest at the rate of 1.5% per month until fully paid. Further, Client understands and agrees that if Client fails to pay any outstanding invoices following written notice from LUFT, LUFT may: (i) assign the outstanding balance to a collections agency; (ii) report Client’s non-payment to the credit bureaus; and/or (iii) file a civil legal action to collect the amounts owing. Client agrees to pay all costs incurred by LUFT in collecting any unpaid fees and expenses, including all collection agency fees and costs, all court costs, witness and expert witness fees, filing fees, and reasonable attorneys’ fees; whether incurred prior to, during, or subsequent to any mediation, arbitration, litigation, bankruptcy, receivership, liquidation, collection, or appellate proceeding. The Standard Hourly Rates charged to Client by LUFT may automatically increase by up to ten (10%) on an annual basis. Notwithstanding the forgoing, LUFT reserves the right to increase the Standard Hourly Rates as needed to accommodate market conditions. To the extent that Client has any remaining balance in a deposit or prepaid account more than twelve months after the last invoice has been submitted by LUFT, Client agrees that such balance becomes non-refundable.
7. Termination of Services
Either party may terminate the Services Agreement (a) for any reason or no reason upon at least thirty (30) calendar days prior written notice to the other party; (b) with cause following five (5) workdays prior written notice to the other party regarding the other party’s uncured material breach of any covenant, obligation, representation, or warranty of the Services Agreement or these Terms of Condition; or (c) with cause immediately in the event of any act of fraud, gross negligence, reckless or willful misconduct, felonious conduct, unpaid LUFT invoices that are 90 days past due, or in the event the other party is insolvent or files for bankruptcy. LUFT also reserves the right to terminate the Services Agreement immediately in the event LUFT discovers information regarding Client or its agents or representatives that is counter to LUFT’s business or financial interests, reputation, or goodwill, in LUFT’s sole and absolute discretion. In the event of any termination, Client shall be responsible for all fees and costs incurred for LUFT’s performance of the Services up to and including the date of termination. The confidentiality obligations of LUFT set forth in Section 4 of these Terms of Condition shall survive for a period of three (3) years after the termination of the Services Agreement or completion of the Services.
8. Return or Destruction of Client Information
Upon termination of the Services Agreement for any reason, LUFT will promptly return or, at the election of the Client in writing, destroy all Client Information and other property of the Client, if any, then in LUFT’s possession or control. Client acknowledges and understands that LUFT’s policy is to delete, destroy, or dispose of all communications and Client files and records (including but not limited to emails) that are non-essential for the ongoing performance of Services after six (6) months of receipt or last use. Client is on notice to save all of its own work, data, and records on its own system in order to keep such documentation intact. LUFT shall have no obligation to maintain records for Client other than what is necessary to perform the Services. Notwithstanding anything else herein to the contrary, LUFT, at its sole discretion, may retain copies of its work product and supporting information for its records. Under no circumstances will LUFT be considered a “custodian of records” under the Rules and Regulations of the US Securities & Exchange Commission. Further, if Client utilizes a storage system for storing its records and data, LUFT shall not be the creator or controller of such a system. Client may allow LUFT access to such a storage system for purposes of providing the Services, but access and authorization to access such a storage system shall revert back fully and exclusively to Client upon completion of the Services or termination of the Services Agreement.
9. Indemnification by Client
Except to the extent caused by the gross negligence, fraud, or willful misconduct of LUFT, Client agrees to indemnify, defend, and hold LUFT harmless from and against all claims, damages, causes of action, fines, and penalties (collectively, “Claims”) from any third party or governmental entity relating to, concerning or arising out of: (i) the Services; (ii) third-party reliance upon LUFT’s work product, including but not limited to banks, leasing companies, financing companies, or taxing authorities; (iii) late or missed public entity filings or deadlines caused by past-due invoices, insufficient retainer balances, or any other cause of LUFT work stoppage permitted in the Services Agreement, these Terms of Condition, or applicable law; or (iv) any infringement of any intellectual property or trade secrets by reason of Client Information or work product based upon such Client Information. Client agrees to assume full financial responsibility for the payment of any loss, liability, or expense (including but not limited to reasonable attorneys’ fees) incurred by LUFT in connection with any such Claim and the defense or settlement of any such Claim. This Section shall survive the termination of the Services Agreement. LUFT may direct the defense and settlement of any such Claim with counsel of LUFT’s choosing, and Client will provide LUFT with reasonable assistance, as requested. LUFT shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
10. Indemnification by LUFT
Subject to Section 13 below, LUFT agrees to indemnify, defend, and hold Client harmless from and against all Claims from any third party or governmental entity relating to, concerning or arising out of (i) physical injury to or destruction of Client’s property during the performance of the Services by LUFT; (ii) gross negligence in LUFT’s work product; or (iii) any infringement of any intellectual property or trade secrets by LUFT during the course of performing the Services. Subject to Section 13 below, LUFT agrees to assume full financial responsibility for the payment of any loss, liability, or expense (including but not limited to reasonable attorneys’ fees) incurred by Client in connection with any such Claim and the defense or settlement of any such Claim. This Section shall survive the termination of the Services Agreement. Client may direct the defense and settlement of any such Claim with counsel of Client’s choosing, and LUFT will provide Client with reasonable assistance, as requested. Client shall not be liable for any settlement of an action effected without its written consent, which consent shall not be unreasonably withheld.
11. Miscellaneous Expenses
To the extent that Client requests that LUFT provides any out-of-town work while providing the Services, then, in addition to reimbursing LUFT all other relevant costs and expenses incurred in performing the Services, including costs of travel and lodging, Client shall pay to LUFT a per diem rate using the most current per diem rates established by the U.S. General Services Administration (GSA.gov) per LUFT consultant per day for meals and incidentals. Moreover, to the extent that Client requests that LUFT provide its consultants for such a number of hours in a given day or week that will trigger over-time or double-time pay under applicable municipal, state, or federal law, LUFT shall pass on to Client, and Client hereby agrees to reimburse LUFT for, all increased labor costs and expenses, including over-time and double-time pay.
12. Limited Warranty
LUFT represents and warrants that it will perform the Services in a diligent, professional, and competent manner in accordance with industry standards, utilizing personnel with a level of skill commensurate with the Services to be performed. LUFT MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF ACCURACY, QUALITY, FREEDOM FROM ERROR, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LUFT, ITS AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE LIMITED WARRANTY PROVIDED HEREIN. LUFT may, in the course of providing the Services, provide advice or opinions regarding the outcome of certain matters or predictions of future outcomes or performance. Although LUFT will make reasonable efforts to ensure the accuracy of such advice or opinions, future outcomes or performance are naturally uncertain and therefore cannot be guaranteed.
13. Limitation of Liability
IN NO EVENT WILL LUFT BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WHETHER OR NOT LUFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. MOREOVER, LUFT’S TOTAL LIABILITY UNDER THE SERVICES AGREEMENT AND THESE TERMS OF CONDITION SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO LUFT PURSUANT TO THE SERVICES AGREEMENT.
14. Force Majeure
Neither party shall be liable for any delay or failure in performance (except for payment obligations) due to any strikes, work stoppages, accidents, acts of war or terrorism, governmental actions, civil or military disturbances, pandemics, epidemics, contagious diseases, nuclear or natural catastrophes or acts of god, or other circumstances beyond its reasonable control.
15.Severability
The Services Agreement and these Terms of Condition represent the complete and exclusive agreement between LUFT and Client and supersede all prior communications, whether written or oral, relating to the subject matter hereof. No amendment or modification to the Services Agreement shall be valid or binding upon the parties unless in writing and signed by each party. No course of conduct shall be deemed to constitute an amendment or modification, and no waiver shall be deemed a continuing waiver unless agreed to in writing by the party to be charged therewith. If any term or provision of this Agreement is held to be illegal or in conflict with any federal, state or local law or regulation, the validity of the remainder of this Agreement will not be affected, and the rights and obligations of the parties will be construed and enforced as if this Agreement did not contain the particular term or provision held to be invalid.
16. Assignment
No Assignment. Neither party shall assign any rights, obligations or claims relating to this Agreement without the prior written consent of the other party, except LUFT may assign this Agreement to a successor in interest upon written notice in connection with a change of control or sale of all or substantially all of its assets.
17. Modifications
These Terms of Condition may be amended and updated from time to time at the sole discretion of LUFT. Modified versions of these Terms of Condition will be considered effective as of the date and time posted to LUFT’s website. Client’s continued use of the Services after such modifications are posted will signify Client’s continued acceptance of, and agreement to be bound by these Terms of Condition, as modified.
18. Dispute Resolution
(a) Mediation. Any controversy or claim arising out of or relating to the Services, related fees, or this Agreement shall first be submitted to mediation. A mediator will be selected by agreement of the parties, or if the parties cannot agree, a mediator acceptable to all parties will be appointed by the American Arbitration Association. The mediation will proceed in accordance with the customary practice of mediation and shall be concluded within sixty (60) days from receipt of written notice unless the parties agree otherwise. Any facts disclosed related to the mediation shall be kept confidential and each side shall pay its own costs of the mediation but will share equally the mediator’s expenses.
(b) Arbitration. In the event mediation is not successfully resolved, then the parties agree that such dispute(s) or claim(s) shall be settled by binding arbitration. The provisions herein supersede any contrary arbitral rules that might otherwise apply. The arbitration proceeding shall take place in Charleston, South Carolina unless the parties mutually agree to a different location. The proceeding, including any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of these procedures, shall be governed by the provisions of the Federal Arbitration Act and will proceed in accordance with the then current Conflict Prevention & Resolution (“CPR”) or the similar rules of another arbitration association if one other than CPR is selected, except that pre-hearing discovery shall be limited as provided for herein or unless specifically authorized by the arbitrators. Any issue concerning the extent to which any dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of any of these procedures, shall be governed by the Federal Arbitration Act and resolved by the arbitrators.
i. To begin the arbitration process, a party shall provide written notice of the issues to be resolved by arbitration (the “Notice”) within fifteen (15) days of the parties’ agreement to terminate or waive mediation, and the other party shall respond within twenty-one (21) days and shall add any other issues to be resolved within the arbitration. The arbitrators shall only resolve those issues identified in the Notice, and issues that are not identified shall not be arbitrated nor brought to court.
ii. The arbitration shall be conducted by three (3) arbitrators. Each party shall select an arbitrator experienced in relevant subject matters within twenty-one (21) days of the Notice. The two (2) designated arbitrators shall then select a third neutral arbitrator within twenty-one (21) days of their selection. It is the parties’ intention that the two (2) arbitrators selected by the parties be “neutrals” who will not be informed as to which party selected them. If the two (2) arbitrators cannot agree on selection of a third arbitrator within twenty-one (21) days of their appointment, the governing arbitration agency shall request a list of arbitrators and select a third arbitrator under the agency’s rules within thirty (30) days. If both parties agree, the dispute may be heard by one (1) arbitrator selected within sixty (60) days following receipt of the Notice.
iii. The parties shall not be entitled to discovery except as it directly relates to the underlying Services that are at issue and shall submit a joint proposed schedule to the arbitrators within thirty (30) days of the arbitrators’ selection. Other than described herein, no other discovery is allowed except by the arbitrators and only for good cause shown.
iv. Except for impeachment-only information, each party must disclose within thirty (30) days after the selection of the arbitrators: (1) the names, addresses, telephone numbers, and email addresses of persons who have knowledge and/or discoverable information relating to the issues submitted for resolution; (2) its claims and defenses; and (3) a computation showing each element of claimed damages.
v. The parties shall be entitled to take (i) up to three (3) depositions and (ii) the depositions of any expert witness who will testify in the arbitration proceeding. No deposition shall exceed seven (7) hours. Each testifying expert shall provide the same materials required under Federal Rule of Civil Procedure 26(a)(2)(B). The parties must confer in good faith to resolve all discovery disputes. If they cannot resolve these themselves, the parties must attempt to do so in conference with the arbitrators. If the dispute is not resolved in conference, the arbitrators must promptly rule on the issues. Each side may file dispositive motions without obtaining leave from the arbitrators but must confer with the other side prior to filing any dispositive motions. All motions should be filed no later than sixty (60) days prior to the arbitration hearing, unless agreed otherwise by the parties or ordered by the arbitrators.
vi. The arbitrators shall have no authority to award non-monetary equitable relief or indirect, consequential, or punitive damages. The award of the arbitration shall be in writing and shall be accompanied by a well-reasoned opinion. The award issued by the arbitrators may be confirmed in a judgment by any federal or state court of competent jurisdiction. Each party shall be responsible for its own costs associated with the arbitration, except that the costs of the arbitrators shall be equally divided by each side involved in the arbitration. The arbitration proceeding and all information disclosed during the arbitration shall be maintained as confidential, except as required to confirm the award, or disclosed to professional or regulatory bodies, as required by law or a court of law, or in a related confidential mediation or arbitration. The parties agree that arbitration is the sole and exclusive remedy for disputes arising out of or related to this Agreement. If arbitration is initiated and the other party declines to participate and instead initiates litigation elsewhere, doing so will constitute a default judgment.
(c) Limitation on Period to File Claims. It is expressly agreed by each party that any action, regardless of form, arising out of the Services, whether it be in contract, tort, or otherwise, shall be deemed waived if a claim is asserted more than two (2) years from the earlier of the date that the applicable Services are completed.