TRUST SECURITY’S TERMS AND CONDITIONS
- PAYMENT TERMS.
- General Payment Terms.
- Fees for services are due upon issuance of the invoice. Client will notify Trust Security within 10 days of the invoice date of any disputed amounts contained on any invoice. Unless Trust Security is Notified, in writing, of a dispute within this time period, the charges will be deemed accurate and correct.
- A late fee of 6% of the balance due will accrue on any payment received 15 days after the invoice date.
- Client is in default if payment is not received within 15 days of the invoice date.
- If a payment is returned to Trust Security unpaid or if payment is otherwise dishonored, Client will be in immediate default of this Agreement and will pay a returned check charge of $150.00.
- If Client fails to make payment when due,
- General Payment Terms.
a. Client will pay interest at the rate of 1.5% per month,
b. Trust Security may suspend all Services if the account is more than 15 days past due. If Services are suspended, Services will not resume until all fees, including late fees and legal fees, if any, are paid in full; and
c. In the event, in Trust Security’s sole judgment, it becomes necessary or desirable to place Client’s account with an attorney for collection, Client will also pay all court, service and other costs and reasonable attorney’s fees. Trust Security is entitled to recover its reasonable costs of collection and legal fees even if suit is not filed.
B. Security for services. Trust Security requires that a current and valid credit card is on file for all Clients. The Credit Card Authorization set forth in Appendix I to the Agreement must be executed and returned to Trust Security before services commence.
The Deposit(s) referred to in the Agreement will be collectively referred to herein as the “Deposit.” Failure to post the Deposit as required will be an immediate and material breach of this Agreement and entitle Trust Security to cease all services without additional Notice. The Deposit is designed to be security for the final invoice. However, Trust Security reserves the right to apply the Deposit to any open invoice and ask for the replenishment of the Deposit or the posting of an additional Deposit. If the Deposit is not exhausted at the termination of the representation, then those funds will be returned to Client upon completion of the Services.
Trust Security is authorized to charge any fees due it to the credit card set forth on Appendix I. The credit card will be charged automatically if invoices are more than 15 days overdue. Client may call at any time before this deadline to have its credit card charged. Services may be put on hold or cancelled at Trust Security’s discretion for Client whose accounts are 15 days or more past-due or who do not have a valid credit card on file. Trust Security reserves the right to require payment in advance where Client has been delinquent in paying its invoices or Trust Security has had to auto-charge for its services twice in any 6-month period.
C. Expenses. Client will pay all expenses reasonably incurred by Trust Security in the course of performing services under this Agreement. Trust Security will obtain written approval, email approval being sufficient, from Client prior to incurring a reimbursable expense in excess of $250.00.
D. Increases to Hourly Rates.
- In General. This Agreement sets forth Trust Security’s present billable rates. Trust Security reserves the right to alter these rates upon 30 days’ written Notice to the Client prior to the date the new rates will take effect.
- Based on Changes to Minimum Wage or Overtime Laws. In the event that there is an increase in the minimum wage law of the Work Site or the salary requirements for overtime exemptions are increased under the Federal law or the state laws of the Worksite, then in that case the rates set forth herein will automatically and without further Notice increase to match the increase in the minimum wage rate or salary basis for the overtime exemption on the date those changes take effect. As an example, if the minimum wage is $10 per hour at time of contract, and that rate increases to $15 per hour on March 1, then on March 1 Trust Securities’ rates in this agreement will also automatically increase by $5 per hour.
- If Client does not wish to continue Services at the new rates, Client will provide written Notice of their intent to terminate Services without cause at least 14 days before the effective date of the rate change. Acceptance of Services after the effective date of the new rates will be deemed consent to those rates.
2. TERMINATION OF CONTRACT AND REMEDIES
A. On the Anniversary Date. Either party may terminate this Agreement by providing 15 business days’ written notice prior to the anniversary date that they will terminate the Services and the Agreement will not renew for another year.
B. Termination for Breach. Trust, in addition to any other rights set forth in this Agreement or at law or equity, has the right to immediately terminate this Agreement, or any SOW by giving written Notice to the Client, email notice being sufficient, upon the occurrence of the following events with respect to the Client:
- Failure to make payment when due;
- The filing for relief under Chapter 7 of the United States Bankruptcy Code, whether voluntary or involuntary, or the appointment of a receiver for the other party where the bankruptcy or receivership is not dismissed within 30 days or the matter is not converted to a case under Chapter 11 of the United States Bankruptcy Code or dismissed within 90 days of an involuntary bankruptcy filing;
- a material breach of this Contract by the Client; or
- breach of the confidentiality provisions.
C. Termination for Convenience. Either party may terminate this Agreement or any SOW at its option on 15 business days’ written notice to the other party. In the event of termination for convenience by the Client prior to the anniversary date, the Client remains liable for the entire balance due under the Agreement through the anniversary date, whether Trust continues to provide services to that date or not.
D. Payments. In the event of termination, the Client will pay all amounts outstanding to Trust Security, together with any reasonable and quantifiable additional costs associated with the termination of services, and any amounts due under Section 2(C) of the Terms, above. In the event a termination for breach is later determined to be improper by a court or arbitrator the termination will be deemed a termination for convenience and those terms will apply to the payments due.
3. NON-SOLICITATION/ NO HIRE PROVISION
A. The Client agrees that for the term of this Agreement and for a period of 18 months thereafter, the Client will not directly or indirectly solicit, recruit, retain, hire or otherwise employee or otherwise contract with any Trust Security employee, contactor or subcontractor who provided services under this Agreement (the “Trust Security Contacts“) in a position competitive with the services provided under the Agreement, without Trust Security’s permission or contracting through it. Failure to obtain permission or contract through Trust Security will be a circumvention by the Client. In the event of a Circumvention, the Client will pay Trust Security twice its total billings to Client for the immediately preceding 12 months, plus reasonable costs and legal fees, as liquidated damages.
B. Injunctive Relief. Client acknowledges that money damages may not be a sufficient remedy for breach of this Section 3, and in addition to all other remedies, Trust Security may seek (and may be entitled to) specific performance, injunctive or other equitable relief as a remedy.
C. This Section 3 does not limit or restrict any party hereto from: (1) contacting any person previously known to them prior to the date of this Agreement: or (2) continuing to do business with any business entity with whom a past or current business relationship exists or has existed.
D. The termination of this Agreement does not release Client from any obligations under this Section 3 of the Terms. IPPA
A. Trust Security will maintain as a minimum, the types, amounts and terms of insurance that are indicated below, in full force and effect during the Term of this Agreement:
- Worker’s Compensation at statutory limits,
- Commercial General Liability and Personal Injury at limits of $1 million per occurrence with a $2 million annual general aggregate on a per project basis, naming Client as additional insureds,
- Employer’s Liability at limits of $500,000 each accident,
- Professional Liability at a limit of $1 million per claim, and
- Umbrella Liability at a limit of $1 million in excess of primary limits above.
B. Trust Security will to notify the Client in writing of any claims, threatened or made or instituted against it related to this Agreement
5. OWNERSHIP OF INTELLECTUAL PROPERTY
A. Ownership and Assignment. Any inventions, discoveries, concepts or ideas, or expressions thereof, and all post orders, whether or not subject to patents, copyrights, trademarks or service mark protection, and whether or not reduced to practice, conceived, or developed by Trust Security, which relate to or result from the work, research, or investigation of Trust Security or which are suggested by or result from any task assigned to or performed by Trust Security for Client are the sole and exclusive property of Trust Security (the “IP Products“). The Client hereby assign Trust Security all rights, titles and interest in the IP Products and any inventions, discoveries, concepts, ideas or expressions thereof and the Client will perform all acts deemed necessary or desirable by Trust Security to permit and assist it, at Trust Security’s expense, in obtaining, maintaining, defending, and enforcing inventions, discoveries, concepts, ideas, or expressions thereof in any and all countries. The Client hereby irrevocably designates and appoints Trust Security and its duly authorized officers and agents, as Client’ agents and attorneys-in-fact to act for and to do all other lawfully permitted acts to further the above purposes with the same legal force and effect as if executed by Client.
B. License. Client has no right to reproduce, copy, copyright, trademark, register, patent, sell or hypothecate the IP Products. Trust Security grants Client, and they hereby accept, a royalty-free, fully paid, worldwide and nonexclusive license to the IP Products during the Term of this Agreement solely for the performance of the Services or the rendition of services under this Agreement and solely during the term of this Agreement.
C. Residual Knowledge. Trust Security will not be restricted in using any knowledge, ideas, skills, know-how, concepts or techniques related to the services provided that Trust Security does not infringe on any of Client’s intellectual property rights; and does not include any of Client’s proprietary information.
D. Use of Mark. Neither party may use the other party’s name, trademark, trade names or other proprietary identifying symbols without the prior written approval of the other party. Notwithstanding the previous sentence, Trust Security may use Client’s mark as part of Trust’s marketing and advertising to indicate Client is or was a client.
6. LIMITATION OF LIABILITY.
A. General Limitation. Trust Security’s liability arising out of or in any way related to this Agreement under any theory of law or equity, whether for breach of contract, tort or otherwise shall be limited to direct damages up to the lessor of: (a) the total fees paid to the Trust Security during the quarter preceding the incident which gave rise to the liability, or (b) the individual’s actual damages.
B. Special or Indirect Damages. TRUST SECURITY WILL NOT BE LIABLE FOR ANY INDRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT, including but not limited to lost profits, lost revenues, lost sales, failure to realize expected savings, loss of data, delays, non-delivery, misdeliveries, service interruptions, tax interest or tax penalties, damage due to lost reputation or other commercial or economic losses of any kind.
C. Damage to Property. Trust Security is not liable for any damage to personal property or other that may occur during the delivery of any Services unless the damage is caused solely and directly by Trust Security’s gross negligence.
7. INDEMNIFICATION. Client will indemnify the Trust Security or its employees or consultants and their officers, directors, agents and employees (collectively the “Indemnified Parties”) from any damage, cost or expense, including expert witness fees, attorney’s fees, and litigation fees, arising out of this Agreement or the Services (collectively the “Claim”), whether the Claim is asserted by a party or third-party arising out of or in connection with the Indemnified Parties’ actions or inactions, excluding those arising from the Indemnified Parties’ gross negligence, or resulting in death or bodily injury. The termination of this Agreement does not release Client from any obligations under this Section 7 of the Terms. IPPA
8. MEDIATION AND ARBITRATION OF DISPUTES OVER $25,000.
Any controversy or dispute arising out of or related to this Agreement more than $25,000 or that seeks non-monetary relief, is subject to mediation as a condition precedent to any further action. In the event mediation does not resolve the issue, the parties agreed to binding arbitration of the remaining issues.
Mediation or Arbitration proceedings may be initiated by any Party upon notice to the other Party and to the McCammon Group, or any successor thereto (“Association”), or any other comparable group upon which the Parties agree. Arbitration proceedings will be conducted by an arbitrator under the Commercial Arbitration Rules of the American Arbitration Association or other rules adopted by the Association. The Notice Of Arbitration must specify all alleged disputes or claims. The Arbitration will be conducted in the State of Maryland, Prince George’s County. The arbitrator will be selected from a list of arbitrators proposed by the Association or such other procedures as adopted by the Association or other arbitrator acceptable to all of the Parties and must be an attorney licensed to practice law. If the Parties fail to agree upon the selection of arbitrator within fifteen (15) days after delivery to each Party of the list as proposed by the Association, then at the request of any Party, the arbitrator will be selected at the discretion of the Association. The Parties will each initially bear their costs and expenses of the arbitration proceedings. Judgment on the award of the arbitrators may be entered in any court of competent jurisdiction, under Maryland law.
In the event of a breach or threatened breach by either party of any of the provisions of this Agreement, the parties hereby consent and agree that the non-breaching party shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against the breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. Such remedies shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief. Nothing in this Agreement or this Section 8, will be deemed to prohibit a party from filing suit in a Prince George’s County, Maryland Court to obtain injunctive relief, record the arbitration award as a judgment, and to pursue collection actions. The termination of this Agreement does not release either party from any obligations under this Section 8 of the Terms.
9. ASSIGNMENT. Trust Security may assign or transfer any of its rights or obligations or delegate the performance of its duties under this Agreement in its sole and absolute discretion. Client, may not assign or transfer any of its rights or obligations under this Agreement without the express, prior written consent of Trust Security provided however, Client may transfer this Agreement to an affiliate of that party upon advance written Notice to Trust Security.
10. GENERAL PROVISIONS.
A. Entire Agreement. This Agreement, comprising the Agreement and Statement of Work and these Terms and Conditions, constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior oral and written understandings and agreements relating to such subject matter.
B. Contract Formation. This Agreement becomes binding on both parties when executed by the Client and accepted by Trust Security, either by execution of this Agreement or the provision of Services. In the event Trust Security commence Services based on the Client’s instructions prior to Client’s execution of the Agreement, the Client will be responsible for the Services at the rates and terms set forth in the Agreement and Terms.
C. Amendments. This Agreement may not be amended or terminated except by a writing executed by all of the parties hereto.
D. Provisions Subject to Applicable Law. All provisions of this Agreement will be applicable only to the extent that they do not violate any applicable law and are intended to be limited to the extent necessary so that they will not render this Agreement invalid, illegal or unenforceable under any applicable law.
E. Severability. If any provision of this Agreement or any application thereof will be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of other provisions of this Agreement or of any other application of such provision will in no way be affected thereby.
F. Waiver of Rights. No delay or failure by either party to exercise any right hereunder and no partial exercise of any such right will constitute a waiver of that or any other right unless otherwise expressly provided herein. Termination of this Agreement by either party is without prejudice to pursuit of any rights or remedies under this Agreement.
G. Counterparts. This Agreement may be executed in separate counterparts, each of which will be deemed an original but both of which taken together will constitute but one and the same instrument.
H. Governing Laws and Forum. This Agreement will be governed by, construed, and enforced in accordance with the laws of the State of Maryland regardless of the site of services. The parties hereto further agree that any action brought to enforce any right or obligation under this Agreement will be subject to the exclusive jurisdiction of the courts of Prince George’s County, Maryland.
I. Force Majeure. No party will be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (a) acts of God and natural disasters; (b) flood, fire, or explosion; (c) war, invasion, riot, or other civil unrest; (d) actions, embargoes, or blockades in effect on or after the date of this Agreement; (e) national or regional emergency; (f) strikes, labor stoppages, or slowdowns or other industrial disturbances; (g) compliance with any law or governmental order, rule, regulation, or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota, or other restriction or prohibition, or failing to grant a necessary license or consent; (h) shortage of adequate power or telecommunications or transportation facilities; (i) inability to secure labor; or (j) any other event that is beyond the reasonable control of such party (each of the foregoing, a “Force Majeure Event“). If Trust Security cannot provide Services due to a Force Majeure Event and it reasonably believes the Force Majeure Event will continue for at least 30 days, then Trust Security may cancel the Agreement without penalty to either party.
J. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
K. Cumulative Rights. The Parties’ rights under this Agreement are cumulative and will not be construed to limit other remedies unless those remedies are precluded as a matter of law.
L. Legal Fees and Costs. In addition to any remedies afforded by any other provision of this Agreement, the prevailing party in any dispute or litigation arising out of or related to this Agreement is entitled to recover its attorney’s fees and costs from the non-prevailing party, in addition to any other relief and/or damages. Any judgment or award will to the extent allowed by law contain a provision for the recovery of any subsequently incurred costs, expenses and actual attorney’s fees arising out of the collection of the judgment or award. The termination of this Agreement does not release Client from any obligations under this Section 11(L) of the Terms. IPPA
M. Joint Drafting. The Parties acknowledge that the terms of this Agreement arose from negotiations and discussions between the Parties, each of whom were or had the option to be represented by legal counsel. Accordingly, no claimed ambiguity in this Agreement shall be construed against either Party claimed to have drafted or proposed the language in question, and any court reviewing this Agreement shall treat its language as if it had been chosen by both Parties.
N. Captions and Headings. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
O. Execution in Counterpart. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.