By this Consulting Agreement (the “Agreement”) Fortress & Flourish, a Business Consulting Firm, (F&F) and Company (individually and collectively referred to herein as “Client”), agree as follows:

 

1. Effective Date.  This Agreement shall become effective upon receipt by F&F of a fully executed original of this Agreement, together with the initial deposit described below (if any) (the “Engagement Date”).  F&F shall have no obligation to perform any services on behalf of Client until the Engagement Date; provided, however, if F&F does elect to render services to Client prior to the Engagement Date, the terms of this agreement shall apply to all such services.

2. Initial Services.  Initially, the scope of services will relate solely to the following matter(s): GENERAL EMPLOYMENT.  Client is of the opinion that F&F has the necessary qualifications, experience and abilities to provide consulting services to Client.  F&F is agreeable to providing such consulting services to Client on the terms and conditions set out in this Agreement.

3. Additional Services.  Client may request F&F to provide services to Client in different or additional matters, although F&F shall be under no obligation to accept such additional engagements.  If F&F in its discretion, elects to undertake any such additional engagements, F&F may confirm such new assignment(s) in writing, including a description of the work to be performed and any special provisions that might apply with respect to that particular engagement including any additional deposit(s) that might be required.  Except as amended by such special provisions, all additional such engagements shall be subject to the general provisions of this agreement.

4. Obligations of F&F.  F&F shall strive to diligently and faithfully supply consulting services to Client with respect to all matters for which F&F has been retained.  In doing so, F&F shall fulfill its professional and ethical obligations to Client in accordance with the laws and regulations promulgated by the State of California, and the Courts of this State.  However, because the law is not certain and involves many intangibles, including the exercise of discretion, the resolution of conflicting viewpoints, and anticipation future events, F&F does not guarantee any particular result in a given matter.  Client acknowledges and agrees that any comments made by F&F about the potential outcome of a particular matter are mere expressions of opinion only.  F&F will advise Client and endeavor to help Client to understand F&F’s assessment of the benefits and risks inherent in a chosen course of action, but Client shall ultimately be responsible for its decision-making and for pursuing whichever course/s of action it deems to be appropriate in the circumstances. For the avoidance of doubt: F&F cannot and will not decide what benefits Client should pursue or what level of risk is appropriate for Client in a given situation.

 

F&F recognizes that clients are concerned with the extent and reasonableness of fees and costs.  Your promptness in making decisions, responding to requests for information, and providing additional documentation are important in completing your project within a reasonable period of time and at a reasonable cost.  In most matters, actual fees and costs incurred are subject to a variety of factors that are not necessarily in control of either F&F or Client.  For this reason, it is not possible to forecast with certainty the total amount of costs and expenses that may be incurred in order to complete the engagement.  However, F&F is able and willing to relate it’s best time estimates or to provide a written budget.

 

Billing, Fees and Costs.  

 

It is the standard policy of F&F to invoice clients monthly.  All invoices are due and payable upon receipt by Client.  Client should carefully review each statement and immediately notify F&F of any discrepancy.  Interest in the amount of five percent (5%) per month may be charged upon any balance that is not paid within thirty (30) days following the date of the invoice; however, the foregoing does not constitute an agreement to finance all or any portion of the amounts due from Client hereunder.

 

Fees for services performed by F&F are based upon retainers or hourly rates in effect at the time the work is performed.  Time is billed in increments of one-tenth (1/10) of an hour with a minimum entry of two-tenths (0.2) of an hour.  F&F will charge Client for all efforts undertaken on behalf of Client, which may include all manner of communications, meetings, and travel.  F&F’s current retainer and hourly rates are listed on the Scope of Work.  These rates may change periodically.  F&F will notify Client in the event of any such changes.

 

F&F will incur various costs and expenses in performing services on behalf of Client under this Agreement.  Client shall pay such costs and expenses in addition to the hourly fees.  The types of cost and expense items are identified on the attached Schedule, along with the basis upon which charges are calculated in each category.  It may also become necessary to hire contractors, consultants or investigators.  F&F will not hire such persons unless Client agrees to pay for their fees and charges.

 

1. Non-Exclusive Relationship.  Client fully understands that F&F will continue to conduct other business activities and not solely confine our efforts to the activities provided under this Agreement; provided however, F&F shall commit the resources and time necessary to successfully complete the Services.

2. Confidentiality.  F&F agrees to keep confidential all information learned about Client, including the terms and conditions of this Agreement and any other personal or financial information learned during the performance of its services, and shall not disclose such confidential information, except as may be necessary to perform services.

3. Notices.  All notices required or permitted hereunder shall be in writing and shall be deemed to be delivered when received by addressee via registered or certified United States Mail, overnight delivery service (such as Federal Express), messenger or personal delivery, addressed to the parties at the respective addresses set forth below or at such other addresses as may have been theretofore specified by written notice delivered in accordance herewith.

4. Termination of Services.  Either Client or F&F may terminate the consultant-client relationship between the parties at any time for any reason.  Unless sooner terminated as set forth herein, the consultant-client relationship shall terminate upon conclusion of the matter(s) for which F&F has been engaged.  Upon any such termination, F&F will be entitled to receive payment for all work performed and Client shall be entitled to receive copies of all documents and files prepared by F&F for Client (provided that F&F may retain copies, made at F&F’s expense of all such documents).  In addition, upon termination (regardless of whether or not the same shall have occured before or after completion of the matter for which F&F is then engaged), F&F shall have no obligation to render any further services or provide additional advice.

5. Record Retention.  At the conclusion of this matter, F&F will return to Client any related valuable property Client has entrusted to F&F and dispose of any and all superfluous documents consistent with maintaining the confidentiality of the contents of those documents.  F&F will store the entire balance of the file, at F&F’s expense for at least two (2) years.  Following such two (2) year retention period, unless Client notifies F&F and picks up the file from F&F, the file and all documents therein, may be disposed of, at F&F’s expense, in a manner that is reasonably anticipated to maintain the confidentiality of the documents.

6. Indemnification.  To the fullest extent permitted by law, F&F shall indemnify, defend and hold harmless Client and its agents and representatives from and against any and all claims, damages, liabilities, losses and expenses, including, without limitation, reasonable attorneys’ fees and expenses, arising out of or resulting from any claims, damages, losses or expenses attributable to bodily injury, sickness, disease or death, or to injury or destruction of property, including the loss of use resulting therefrom, to the extent caused by (i) the negligent acts or omissions of F&F, its agents, or employees, or (ii) F&F’s breach of this Agreement. 

 

Insurance. 

At all times during the Term of this Agreement, Consultant shall maintain the following:

i. Professional Liability Insurance for protection from claims arising out of professional services/errors and omissions by or for F&F, and to cover indemnity.  Such insurance shall be in an amount of not less than $500,000 per claim and annual aggregate of $500,000 with a maximum $1,000 self insured retention, or deductible per claim.

ii. General Liability Insurance shall be in an amount of not less than $500,000 per claim and annual aggregate of $500,000 with a maximum $1,000 self insured retention, or deductible per claim.

 

1. Governing Law.  This Agreement shall be construed under and in accordance with the laws of the State of California and all obligations of the parties created hereunder are performable in the State of California.

2. Severability. If any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

3. Limit of Liability.  F&F’s total liability to Client for any claim or cause of action relating to or arising from this Agreement or from F&F’s performance of the Services shall not exceed the amount of the errors and omissions insurance required to be maintained by F&F hereunder. In the event that insurance is not applicable, F&F’s total liability to Client for any claim or cause of action relating to this agreement, or arising from F&F’s performance of services, shall not exceed F&F’s fees for the services being performed.

4. Mandatory Arbitration and Waiver or Right to Jury.  In the event a dispute arises concerning any aspect of the relationship between F&F and Client, including fee disputes or claims of negligence, the parties agree to follow this procedure: (1) discuss and attempt to negotiate a resolution of the matter; and (2) upon failure to resolve the issue according to step (1), submit the dispute to final and binding arbitration in Santa Cruz County under the Commercial Rules of the American Arbitration Association then in effect.  The parties agree that Expedited Procedures shall apply regardless of the amount of F&F’s claims, except the expedited procedures shall not apply to the extent Client asserts a counterclaim(s).

5. Electronic Communications.  You have authorized F&F to communicate with you via e-mail and other electronic means such as by fax.  You will be responsible for keeping such communications confidential.  You also acknowledge that communication by electronic means is subject to interception by others, as are mail and other forms of communication.  By authorizing us to communicate with you via electronic means, you are assuming any risks associated therewith.

6. Assent by Electronic Means or Electronic Signature.  The parties agree that they may be bound to the terms set forth in this Consulting Agreement through either physical or electronic signatures and that this agreement may be entered into by electronic means.  If Client affixes an electronic signature to this document and transmits it to Fortress and Flourish, Client agrees and represents that said electronic signature signifies assent to the terms of this Consulting Agreement and that said signature satisfies the requirements of both California law (including the Uniform Electronic Transactions Act, Civil Code section 1633.3(h), 1633.5, and 1633.7) as well as the Federal Electronic Signatures in Global and National Commerce Act (sometimes known as E-Sign).  Client further represents and agrees that if Client is a governmental agency and is employing an electronic signature, that signature complies with Governmental Code section 16.5 and any other laws or regulations relating to the validity of the signature and the entity’s authority to enter into this agreement by electronic means.  Further, Client understands and agrees that Fortress and Flourish may utilize electronic signature processes with respect to documents relating to its representation of Client.

 

EACH PARTY UNDERSTANDS AND ACKNOWLEDGES THAT BY ENTERING INTO THIS AGREEMENT, SUCH PARTY HAS SURRENDERED AND WAIVED THE RIGHT IT WOULD OTHERWISE POSSESS TO SUBMIT AND DISPUTE BETWEEN THE PARTIES FOR RESOLUTION BY COURT OR JURY, INCLUDING THE RIGHT OF APPEAL TO A HIGHER COURT.

 

By signing this Agreement, Client and F&F each acknowledge that such party has read, understood and agreed to the terms hereof, and that this document contains the entire agreement between Client and F&F with respect to the consulting services to be provided to Client by F&F.

​

Updated November 2023