BH Sky Associates, LLC General Terms & Conditions Of Service Agreement

This Agreement is entered into on the Effective Date (as defined below) by Client and BH Sky Associates, LLC (“Consultant”).

WHEREAS, Consultant is engaged in the business of providing government procurement and marketing consulting services and Client desires to obtain such consulting services; and

WHEREAS, Consultant and Client have agreed upon the scope of services to be provided by Consultant to Client (“Services”) and the cost of such Services as set forth in the Proposal.

NOW, THEREFORE, in consideration of the mutual promises hereinafter contained and for other good and valuable consideration, the parties hereby agree to the following terms and conditions:

                                I.            SCOPE OF AGREEMENT

Purpose.  The purpose of this Agreement is to set forth the terms, conditions and administrative procedures applicable to the Services to be provided by Consultant to Client pursuant to the Proposal.

                              II.            COMPENSATION AND PAYMENT

1.             Compensation for Services.  In return for the services rendered under this Agreement, Client shall compensate Consultant, at the rates set forth in the Proposal.  In the event Client fails to make payments of amounts due, Consultant has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement immediately, (2) withhold all files and documents and immediately cease the performance of any other services to be performed by Consultant to Client, (3) bring legal action, (4) file for mediation or arbitration.  In the event that Consultant must pursue any collection efforts for amounts due hereunder, including, but not limited to legal action, Consultant may recover all attorneys fees, costs of suit, interest on unpaid sums, and expenses incurred in recovering all amounts due hereunder.

Fees shall be prorated on a daily basis for the first month if Services are provided for a partial month.

In the event of the termination of this Agreement for convenience, or otherwise, by either party, Consultant shall be entitled to compensation at the rates set forth for all services rendered by Consultant prior to the Effective Date (as defined below) of such termination.

2.             Reimbursement of Expenses.  In addition to the fees set forth in the Proposal, Client agrees to reimburse Consultant for all fees and expenses incurred by Consultant on Client’s behalf, including, but not limited to costs incurred by Consultant for Bid Notice Service, Freedom of Information Act request charges, New Jersey Open Public Records Act request charges, shipping charges, costs to obtain bid documents, copies of military standards, use of BH Sky digital signature as means to submit General Services Administration (GSA) bid via eOffer, attendance at pre-bid conferences, travel, parking, mileage, courier fees, copy charges, and all other related charges expended on Client’s behalf.   Consultant will supply adequate substantiation of all expenses, including original receipts, where appropriate.

3.             Billing and Payment. Consultant will submit to Client invoices setting forth the applicable fees for Services provided by Consultant and expenses incurred by Consultant on Client’s behalf.  Fees shall be billed in advance and expenses shall be billed in arrears.  Client shall pay all amounts due within thirty (30) calendar days of receipt of invoice.  Payment can be made by check, Visa, MasterCard or American Express.  A service charge of $25.00 will be charged for all returned checks.  Payments not received on time are subject to a late charge of 5% per month.  Consultant will submit invoices to the Client  as set forth in the Pricing section of the Proposal.  Additional Services beyond those provided in the scope of services set forth in the Proposal will be subject to additional or adjusted fees each time they occur, unless and until this Agreement is revised.

4.             Binding Contract.  This Agreement shall not be binding until the proposal is signed by both parties, accompanied by the first month’s or initial fee and received by the Consultant.

Payment shall be due and owing upon thirty days of invoicing and is not contingent upon the success of any proposal.  Client is still responsible for payment for services rendered regardless of whether Client’s proposal is accepted by the Contracting Authority, deemed responsive or submitted in a timely manner by Client.  Consultant makes no warranties or representations as to the nature, number, quality or relevance of bidding opportunities delivered by the Bid Notice services during the contract term.  Payment for services rendered is due as agreed notwithstanding the ultimate number, quality, relevance or nature of bid opportunities provided.

                             III.            DESCRIPTION OF SERVICES

1.             Consultant shall, subject to the terms and conditions set forth herein, provide the Services as described in the Proposal.

                            IV.            TERMS AND TERMINATION

1.             Term.  This Agreement shall be effective on the date the Client delivers the signed Agreement (“Effective Date”) and the initial fee is paid to Consultant, and shall remain in effect for a period of twelve months (365 days) commencing on Effective Date  unless terminated earlier as provided herein.  This Agreement shall automatically renew for six month terms, unless either party advises the other party in writing of the intention to terminate the Agreement thirty (30) days prior to the renewal date of the Agreement.

2.             Termination for Convenience.  This Agreement may be terminated by Client or Consultant at any time with or without cause and without further liability, except for work previously completed by Consultant and payment made by Client for same, upon thirty (30) calendar days prior written notice to the other party.

                           V.            LIMITATIONS ON LIABILITY

1.             CONSULTANT WILL USE GOOD FAITH EFFORTS TO PROVIDE ADVICE AND DELIVER THE FOLLOWING SERVICES AS SET FORTH IN THE PROPOSAL:

• • GSA PRE-AWARD SERVICES,
  • GSA POST AWARD CONTRACT MANAGEMENT SERVICES,
  • Bid Notice SERVICE,
  • OTHER SERVICES AS SET FORTH IN THE PROPOSAL.

CONSULTANT IS NOT RESPONSIBLE FOR ANY LOSSES, DAMAGES OR INJURY RESULTING FROM THE PREPARATION AND SUBMISSION OF DOCUMENTS AND/OR FOR THE AWARD OR DENIAL OF ANY CONTRACT.  CONSULTANT SHALL MAKE A GOOD FAITH EFFORT TO PERFORM SERVICES DESCRIBED IN THE PROPOSAL BUT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO ANY DESIRED OUTCOME OR LIKELIHOOD OF ANY DESIRED OUTCOME.  GOVERNMENT CONTRACTS ARE COMPETITIVE IN NATURE; THEREFORE CONSULTANT WILL NOT BE LIABLE IN THE CASE OF GOVERNMENT DENYING AWARD OF CONTRACT(S) TO CLIENT IN SPITE OF ALL EFFORTS MADE TO OBTAIN AWARD(S).  NO ADVICE, INSTRUCTIONS OR INFORMATION PROVIDED BY CONSULTANT TO CLIENT, WHETHER ORALLY OR IN WRITING SHALL CREATE ANY IMPLIED WARRANTY. CONSULTANT IS NOT RESPONSIBLE FOR COSTS INCURRED TO PREPARE GOVERNMENT CONTRACT DOCUMENTS.  CONSULTANT SHALL NOT BE RESPONSIBLE FOR NOR LIABLE TO CLIENT FOR THE CONTENT OF ANY BID PROPOSAL OR OTHER BID DOCUMENT.  IT IS THE CLIENT’S RESPONSIBILITY (NOT THE CONSULTANT’S) TO MEET ALL NECESSARY REQUIREMENTS AND COMPLY WITH ALL STATE AND FEDERAL LAWS, TERMS AND CONDITIONS AS DESCRIBED IN THE RELEVANT GOVERNMENT CONTRACT. 

IN PERFORMING THE SERVICES UNDER THIS AGREEMENT, CONSULTANT SHALL BE CONSIDERED AN INDEPENDENT CONTRACTOR AND NOT CLIENT’S EMPLOYEE.  CONSULTANT WILL BE INDEMNIFIED AND HELD HARMLESS BY CLIENT: (I) FOR VIOLATION OF ANY SPECIAL REQUIREMENTS OR ANY LAW OR GOVERNMENTAL REGULATION TO WHICH CLIENT MAY BE SUBJECT BUT WHICH WAS NOT DISCLOSED IN WRITING TO CONSULTANT BY CLIENT PRIOR TO THE EXECUTION OF THIS AGREEMENT;AND(II) FOR ALL LOSSES, DAMAGES, FEES AND EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES AND EXPENSES) INCURRED BY CONSULTANT AS A RESULT OF ITS PERFORMANCE OF ANY SERVICE UNDER THIS AGREEMENT OR OF ANY BREACH BY CLIENT OF ANY OF ITS COVENANTS UNDER THIS AGREEMENT (III)  FOR CLAIMS OR ACTIONS ARISING OUT OF THE PROVISION OF CLIENT SUPPLIED INFORMATION BY CONSULTANT TO OTHER SOURCES, INCLUDING ISSUES ARISING AS A RESULT OF THE ACCURACY OR TRUTHFULNESS OF CLIENT SUPPLIED INFORMATION.

2.             IF CLIENT IS RECEIVING THE Bid Notice SERVICE FROM CONSULTANT, CONSULTANT DOES NOT GUARANTEE THE QUALITY, LEGALITY, TRUTH OR ACCURACY OF THE LISTINGS OFFERED.  CONSULTANT IS NOT RESPONSIBLE FOR BID OPPORTUNITIES NOT APPEARING.  CONSULTANT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF BID OPPORTUNITIES PRESENTED. 

3.             ONCE CONSULTANT HAS ADVISED CLIENT OF A BID OPPORTUNITY, IT IS CLIENT’S RESPONSIBILITY TO OBTAIN ALL SUBSEQUENT AMENDMENTS, ADDENDA, CLARIFICATIONS OR OTHER RELEVANT INFORMATION REGARDING THAT BIDDING OPPORTUNITY. 

4              CONSULTANT ASSUMES NO RESPONSIBILITY FOR CLIENTS’ OBLIGATION TO MAKE TIMELY RESPONSE TO BID SOLICITATIONS, REQUESTS TO NEGOTIATE, BEST AND FINAL OFFER REQUESTS, OR OTHER BID OR QUALIFICATION PROCESSES. 

5.             EXCEPT AS STATED ABOVE, CONSULTANT MAKES NO WARRANTIES, WHETHER WRITTEN, ORAL, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL CONSULTANT BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR LOSS OF USE) ARISING UNDER CONTRACT; TORT OR OTHERWISE, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAVE BEEN DISCLOSED IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN, AND IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE, THEN THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY IN FORESEEING POSSIBLE DAMAGES ALL LIABILITY TO CLIENT SHALL BE LIMITED TO THE FEES PAID TO CONSULTANT UNDER THIS AGREEMENT.

6.             CONSULTANT WILL EXERCISE REASONABLE EFFORTS TO MAINTAIN THE CONFIDENTIALITY OF CLIENT’S “CONFIDENTIAL INFORMATION” (AS DEFINED IN SECTION 6 OF THIS AGREEMENT) OR BID INFORMATION PRIOR TO SUBMISSION OF SAME TO THE BIDDING AUTHORITY, BUT CONSULTANT’S LIABILITY FOR BREACH OF CONFIDENTIALITY OR DISCLOSURE OF CONFIDENTIAL INFORMATION SHALL BE LIMITED AS SET FORTH IN PARAGRAPH 5 ABOVE.  BIDS AND PROPOSALS BECOME PUBLIC INFORMATION AFTER SUBMISSION UNLESS MARKED PROPRIETARY AND CONFIDENTIAL BY THE BIDDER AND ACCEPTED AS SUCH BY THE PUBLIC BODY.  CONSULTANT ASSUMES NO LIABILITY FOR THE DISCLOSURE OF CONFIDENTIAL INFORMATION IN CLIENT’S BID DOCUMENTS.  CLIENT ASSUMES RESPONSIBILITY FOR THE MARKING OF CLIENT’S DESIGNATED CONFIDENTIAL INFORMATION ON ALL BID MATERIALS.

7.             IT IS THE RESPONSIBILITY OF CLIENT TO PROVIDE ACCURATE AND CORRECT INFORMATION TO CONSULTANT.  CONSULTANT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF CLIENT’S INFORMATION.  IT IS CLIENT’S RESPONSIBILITY TO UPDATE CONSULTANT IF CLIENT INFORMATION CHANGES OR BECOMES INACCURATE.

                            VI.            CONFIDENTIAL INFORMATION

1.             For purposes of this Agreement the term “Confidential Information” shall mean confidential, proprietary, or trade secret information, including, but not limited to, information concerning current, future, or proposed products, processes or materials, ideas or concepts, or business clients or relationships, or other technical or commercial information disclosed by Client to Consultant or by Consultant to Client and identified by Client or Consultant to the other party as confidential.

2.             Client and Consultant agree that: (i) they will not disclose or communicate the other party’s Confidential Information to any third party and shall use their best efforts (including using the same safeguards used to protect the party’s own confidential information) to prevent inadvertent disclosure or communication of Confidential Information to a third party; and (ii) they will not use at any time, either during or after this relationship, any Confidential Information of the other party except as expressly permitted by the other party.  The confidentiality and nonuse obligations of this Agreement shall terminate with respect to any specific item of Confidential Information five (5) years after disclosure thereof.  The obligations of confidentiality and nonuse shall survive termination of this Agreement for any purpose and/or by any party.

3.  The duty of confidentiality provided for in this agreement shall not apply to disclosure of Confidential Information that: (i) was previously known to the non-disclosing party; (ii) that is publicly available, except by disclosure in violation of this agreement; (iii) that is disclosed to the non-disclosing party by a third party which is not under an obligation of confidentiality to the disclosing party; or (iv) which is required by law to be disclosed and provided that the party required to disclose Confidential Information has given the owner of the Confidential Information prior written notice of the obligation for disclosure to allow the owner sufficient time to seek a protective order.

4. The parties agree that upon termination of the business relationship with each other for any reason, or upon request, they will promptly deliver to each other originals and copies of all documents or things in any media which contain Confidential Information of the other party.

                          VII.            GENERAL TERMS

1.             Conflicts of Interest.  The parties acknowledge and understand that Consultant’s business is in the representation of State and Local and Federal contractors or members of the general public with the same or similar service requirements and business needs as those to be provided under this Agreement.  Such other customers of Consultant may or may not be competitors of Client.  So long as Consultant’s representation of such other customers does not create an actual conflict of interest in Consultant’s ability to effectively represent one or the other, Consultant shall have no duty to refrain from providing similar services to other customers.   Consultant shall promptly provide written notice to Client whenever it has a reasonable basis to believe that its activities under this engagement will create such a conflict of interest.  Client shall immediately provide written notice to Consultant if it has reason to believe that Consultant’s representation of another customer presents a conflict of interest for Consultant.  Either party may terminate the Agreement in writing following the provision of the notice described above regarding the existence of a conflict, if the conflict of interest issue is not resolved to such party’s satisfaction within five business days. 

2              Force Majeure:  Neither party shall be liable for delays in performance or nonperformance in whole or in part due to any causes that are beyond its reasonable control and not due to its acts or omissions, such as acts of God, fire, strikes, embargo, acts of government, or other similar causes.  In such event, the party delayed shall promptly give notice to the other party.  The party affected by the other party’s delay may elect to: (a) suspend performance and extend the time for performance for the duration of the event, or (b) cancel all or any part of the unperformed part of this Agreement or any Proposal by written notice to the other party.

3.             Amendments:  No modification, alteration or amendment of this Agreement shall be binding upon the parties unless contained in a writing signed by a duly authorized agent for each respective party and specifically referring hereto.

4.             Governing Law and Jurisdiction:  The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey.  All actions under this Agreement shall be brought in a court of competent subject matter jurisdiction in the State of New Jersey and both parties agree to accept the personal jurisdiction of such court.

5.             Entire Agreement:  This Agreement, together with any documents attached hereto, constitutes the entire agreement of the parties with respect to its subject matter and merges into and supersedes all prior discussions and writings with respect thereto.