THRIVE ADVISORS ASSESSMENT SERVICES TERMS & CONDITIONS
This Agreement (the “Agreement”), is entered into by and between Client, and Thrive Advisors, LLC, (“Consultant”). Client and Consultant, from time to time herein, shall collectively be referred to as “parties,” and individually, each a “party.”
- 1. PURPOSE OF AGREEMENT:
The purpose of this Agreement is to set forth the terms and conditions upon which Consultant will be engaged to perform certain management services (“Services”) for Client as more fully set forth below and on any Statement of Work (“Order Form”) which may be attached to this Agreement on the Effective Date and from time to time thereafter beginning with Exhibit A, attached hereto.
- 2. TERM:
2.1: TermUnless otherwise set forth in an Order Form the term of this Agreement shall be for a period of time beginning upon execution of an Order Form and lasting until the Assessment requested by Client as set forth in an Oder Form is delivered to Client. Effect of Expiration or Termination. Without prejudice to any other remedy for breach of this Agreement, upon the expiration or termination of this Agreement, no party shall be relieved of any liability arising out of any breach of this Agreement prior to expiration or termination, and no party will be released from the payment of any sum owed to another party for services rendered prior to such expiration or termination or the performance of any obligation for which payment has been received. Upon the expiration or termination of this Agreement, Consultant shall promptly transfer, assign, and make available to Client, all property and materials in Consultant’s possession or control belonging to and paid for by Client.
- 3. SERVICES:
Consultant will provide to Client the Services set forth in any Order Form. Each All conflicts between the terms of this Agreement and a Order Form shall be resolved by the Order Form unless explicitly stated otherwise in the Order Form. Unless otherwise defined in an Order Form, capitalized terms herein shall have the meaning ascribed to them in the Agreement.
- 4. PRICING AND INVOICING TERMS.:
4.1: General: Consultant will invoice Client, and Client will pay Consultant, for Services on invoices and / or as set forth on an Order Form. Payment is due in advance, upon receipt and prior to Assessmentdelivery.
4.2: Reimbursable Costs: Client shall reimburse Consultant for all reasonable, preapproved (in writing, email acceptable) costs incurred in connection with the Services rendered. Reimbursable costs include, but are not limited to, travel costs, the cost of subcontractors, materials costs, delivery costs and other similar expenses and costs that are attributable to any Services (the “Reimbursable Costs”). Travel costs include air, train or bus travel, lodging, meals and incidentals, any ground transportation associated with air travel, tools, and all other reasonable costs generally associated with air travel. All extraordinary travel expenses will not be incurred without Client’s approval. Together with any invoice containing Reimbursable Costs, Consultant will provide to Client documentation of Reimbursable Costs incurred.
4.3: Taxes: All amounts payable pursuant to this Agreement are exclusive of taxes. Accordingly, there will be added to any amount payable by Client the monetary sum equal to any and all then-applicable taxes, however designated, incurred as a result of or otherwise in connection with this Agreement or the Services, including without limitation state and local privilege, excise, sales or similar transactional, services, withholding, and use taxes and any taxes or other amounts in lieu thereof paid or payable by Client (other than taxes based on Consultant’s net income and employment taxes). If Client does not pay such taxes, Consultant may make such payments and Client will reimburse Consultant for those payments. Client will indemnify, defend, protect and hold Consultant harmless for, from and against any payments made by Client pursuant to this Section 4.5.
- REPRESENTATIONS AND WARRANTIES:
2.1 Mutual: Each party represents and warrants that:
2.1.1: it has the full power and authority to enter into this Agreement, carry out its obligations under this Agreement, and grant the rights and licenses it grants the other in this Agreement; and
2.1.2: its compliance with the terms and conditions of this Agreement will not violate any agreements it has with any third party.
2.2.2: During the Term of this Agreement, Consultant warrants that the Services will be performed by personnel possessing competency consistent with applicable industry standards. Consultant makes no other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, Consultant makes no guarantee as to the efficacy or value of Developed Technology or any Services performed.
- DISCLAIMER:
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE.
- 4. LIMITATION OF LIABILITY:
4.1: Limitation: UNDER NO CIRCUMSTANCE, WILL EITHER PARTY HEREUNDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCURRED OR SUFFERED BY THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF SUCH PARTY, OR AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE PAYMENT RECEIVED BY CONSULTANT FOR THE PARTICULAR SERVICE PROVIDED GIVING RISE TO THE CLAIM DURING THE 3 MONTHS PRIOR TO THE ASSERTION OF SUCH CLAIM, EXCEPT THAT NO LIMITATION SHALL APPLY TO PAYMENTS OWED FOR SERVICES AND DELIVERABLES PROVIDED UNDER THIS AGREEMENT OR ANY APPLICABLE ORDER FORM. THE LIMITATION OF LIABILITY SET FORTH HEREIN IS FOR ANY AND ALL MATTERS FOR WHICH CONSULTANT MAY OTHERWISE HAVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER THE CLAIM ARISES IN CONTRACT, TORT, STATUTE, OR OTHERWISE.
4.2: Remedy: Client’s exclusive remedy for any claim arising out of or relating to this Agreement will be for Consultant, upon receipt of written notice, either (i) to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which Consultant is at fault, or (ii) return to Client the fees paid by Client to Consultant for the particular service provided that gives rise to the claim, subject to the limitation contained in Section 8.1.
- NON-SOLICITATION:
5.1: Non-Solicitation Period:“Non-Solicitation Period” means a period of three (3) years following the termination of this Agreement, unless a court of competent jurisdiction determines that such period is unenforceable under applicable law because it is too long, in which case the Non-Solicitation Period shall be for the longest of the following periods that the court determines is reasonable under the circumstances.
5.2: Client Covenant: Client acknowledges the character of Consultant’s business and the substantial amount of time, money and effort that Consultant has spent and will spend in recruiting competent employees and contractors, and Client agrees that it will not, and will cause its employees and independent contractors not to, during the Term and the Non-Solicitation Period, alone or with others, directly or indirectly, solicit for engagement, hire, or engage, or assist any other entity or person in soliciting for engagement, hiring, or engagement any employee or contractor who is or who is hereafter engaged or engaged by Consultant without the prior written consent of Consultant. The Non-Solicitation Period shall be tolled while Client is in breach hereof.
5.3: Reasonableness: Each of Client and Consultant agrees that the restrictions contained in this Agreement are fair and reasonable and necessary for the protection of the legitimate business interests of Client and Consultant, and each of Client and Consultant intends that such restrictions be enforceable and enforced to their fullest extent.
5.4: Consultant Services for Others: In recognition of the fact that individuals that Consultant provides to Client under this Agreement may perform similar services from time to time for others, this Agreement shall not prevent Consultant from performing such similar services or restrict Consultant from using such individuals.
CONFIDENTIALITY5.5: “Confidential Information” means information that is provided by or on behalf of either party (the “Discloser”) to the other party (the “Recipient”), or to which a Recipient otherwise gains access, in the course of or incidental to the performance of this Agreement, which is of value to the Discloser, and is not generally known to others, including, without limitation, trade secrets, customer lists, customer information, employee lists, technology, processes, marketing techniques, price lists, pricing policies, business methods, contracts and contractual relations with the Discloser’s customers and suppliers, know-how, software, future and proposed products and services, financial information, business forecasts, sales and merchandising, and marketing plans and information. Confidential Information may be disclosed in written or other tangible form (including on magnetic media) or by oral, visual, or other means. The terms, conditions, and provisions of this Agreement shall be deemed by the parties to be Confidential Information of both parties.
5.6: The Recipient of Confidential Information shall use the Confidential Information only for the purposes of this Agreement or as otherwise expressly permitted by this Agreement. The Recipient of Confidential Information shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case, using no less than a reasonable degree of care.
5.7: Recipient may disclose Confidential Information received hereunder to (a) its affiliates, (b) Recipient’s employees and independent contractors, and (c) Recipient’s affiliate’s employees and independent contractors, and who in all of the foregoing cases have a need to know such information and are bound to protect the received Confidential Information from unauthorized use and disclosure under terms no less restrictive than those contained in this Agreement. Confidential Information shall not otherwise be disclosed by Recipient to any third party without the prior written consent of the Discloser.
5.8: The restrictions herein on the use and disclosure of Confidential Information shall not apply to information that: (i) was publicly known at the time of Discloser’s communication thereof to Recipient or becomes publicly known through no fault of Recipient subsequent to the time of such communication; (ii) was in Recipient’s possession free of any obligation of confidence at the time of Discloser’s communication to Recipient; (iii) is developed by Recipient independently of and without reference to any of Discloser’s Confidential Information or other information that Discloser disclosed in confidence to any third party; (iv) is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; (v) is identified in writing by the Discloser as no longer proprietary or confidential.
5.9: In the event Recipient is required by law, regulation, or court order to disclose any of Discloser’s Confidential Information, Recipient will promptly notify Discloser in writing prior to making any such disclosure and shall reasonably cooperate in any efforts of Discloser to seek a protective order or other appropriate remedy from, the proper authority. If Discloser is not successful in precluding the requested disclosure, Recipient will furnish only that portion of the Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
5.10: All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage media) shall be and remain the property of Discloser or its licensors. All such information in any computer memory or data storage apparatus shall be erased or destroyed, and all such information in tangible form in the possession or under the control of the Recipient shall, at the discretion of the Discloser, either be destroyed or returned to the Discloser promptly upon the earlier of: (i) the written request of the Discloser or (ii) termination or expiration of this Agreement, and in either of such events and to the applicable extent shall not thereafter be retained in any form by or through Recipient unless otherwise expressly permitted hereunder.
5.11: The parties’ obligations and rights with regard to Confidential Information shall remain in effect for a period of five (5) years from the termination of this Agreement, except that the parties’ obligations with respect to trade secrets shall continue for so long as such Confidential Information remains a trade secret under applicable law.
5.12: The parties agree that any violation or threatened violation of this Section 10 could cause irreparable injury to Discloser, for which the Discloser may not have an adequate remedy at law, and that the Discloser shall be entitled, in addition to any other rights and remedies it may have, at law or in equity, to seek an injunction to restrain Recipient from violating or continuing to violate, such covenants and agreements.
GENERAL5.13: Governing Law, Venue and Construction. This Agreement will be interpreted and construed in accordance with the laws of the State of Texas, without regard to any conflict of laws principles. Except as set forth in Section 12 below, each party hereby irrevocably consents to the exclusive jurisdiction of the State and Federal courts sitting in Montgomery County, Texas, for the purpose of hearing and deciding any and all disputes, claims and controversies arising out of and relating to this Agreement The language of this Agreement shall be deemed to be the result of negotiation among the parties and their respective counsel and shall not be construed strictly for or against any party.
5.14: Severability: Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which remaining provisions shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances.
5.15: Amendments: No amendment or modification of this Agreement will be deemed effective unless made in writing signed by Client and Consultant.
5.16: No Waiver: No term or condition of this Agreement will be deemed to have been waived nor will there be any estoppel to enforce any provisions of this Agreement, except by a statement in writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any written waiver will not be deemed a continuing waiver unless specifically stated, will operate only as to the specific term or condition waived, and will not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.
5.17: Independent Contractor: The relationship of the parties to each other under this Agreement shall be that of independent contractors, and nothing contained herein shall be construed to constitute, create, or in any way be interpreted as, a joint venture, partnership, or business organization of any kind. Additionally, under no circumstances shall the employees, agents or subcontractors of Consultant be considered employees or agents of Client.
5.18 Notices: All notices or other communications hereunder shall be in writing, sent by courier or the fastest possible means, provided that recipient receives a manually signed copy and the transmission method is scheduled to deliver within 48 hours, and shall be deemed given when delivered to the address first set forth above or such other address as may be specified in a written notice in accordance with this Section 11.6.
5.19: Assignment: The Agreement is not assignable or transferable by Client without prior written consent of Consultant, which consent shall not be unreasonably withheld or delayed. This Agreement is not assignable or transferable by Consultant without the prior written consent of Client, which consent shall not be unreasonably withheld or delayed. Any attempted assignment or transfer in contravention hereof shall be null and void.
5.20: Section Headings: Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
5.21: Representations Counterparts: Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder. This Agreement may be executed in two or more counterparts, and it is not necessary that signatures of all parties appear on the same counterpart, but such counterparts together will constitute a single binding agreement between and among all parties hereto.
5.22: Cooperation: Client will cooperate with Consultant in taking actions and executing documents, as appropriate, to achieve the objectives of this Agreement. Client agrees that Consultant’s performance is dependent on Client’s timely and effective cooperation with Consultant. Such cooperation is considered an Assumption underlying Consultant’s projections of costs and timing, and related quotes. Accordingly, Client acknowledges that any unreasonable delay by Client in excess of five (5) business days, will, at Consultant’s option, either (i) extend the applicable Consultant scheduled delivery deadline by the length of such delay or (ii) permit Consultant to invoice Client for additional charges incurred to meet the scheduled delivery deadline (e.g., Hourly Rates of employees not previously assigned in the Order Form).
5.23: Entire Agreement Survival: This Agreement, including any Exhibits and Schedules, states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof, and supersedes any and all prior understandings, representations, warranties, agreements or contracts (whether oral or written) between Client and Consultant respecting the subject matter hereof. This Agreement may only be amended by an agreement in writing executed by the parties hereto. Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12, as well as any other provisions who survival is necessary to give proper effect to their respective terms, shall survive the termination of this Agreement.
5.24: Force Majeure: Consultant shall not be responsible for delays or failures (including any delay by Consultant to make progress in the prosecution of any Services) if such delay arises out of causes beyond its control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, pandemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of subcontractors or third parties.
5.25: Conflict: In the case of any conflict between the terms of this Agreement and the terms of a Order Form, the terms of the Order Form shall control.
5.26: Publicity: Consultant may (i) issue a press release or other public announcement, whether written or oral, related to this Agreement, (ii) use Client's name, logo, or describe the service provider and customer relationship outlined in this Agreement in general marketing promotions, including but not limited to, testimonials, case studies, speaking abstracts, website copy, collateral, and solution descriptions. Client hereby grants Consultant a nonexclusive, worldwide, royalty-free license to use Client's name, logo, and describe the service provider and customer relationship on its website and in general marketing promotions as outlined above, and no prior consent of Client is required in such case. Consultant will not share any sensitive business data without Client's express permission.
5.27: No Third Party Beneficiaries: Nothing in this Agreement, express or implied, is intended to or will confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.28: Indemnification: In executing this Agreement, Client hereby agrees, except in cases of Consultant’s willful misconduct or gross negligence, to indemnify, defend, and hold Consultant, its officers, directors, principals, associates, affiliates, employees, agents and counsel, harmless against and from any and all losses, claims, damages, liabilities, joint and several,suffered, incurred by, or asserted against, Consultant, its officers, directors, principals, associates, affiliates, employees, agents, and counsel, including any amounts paid in settlement of any action, suit or proceeding brought under any statute, at common law, or otherwise, which arises in connection with the performance by Consultant of its responsibilities under this agreement. This agreement to indemnify shall survive, for a period of five (5) years, any termination or other cancellation of this Agreement.
- DISPUTE RESOLUTION
The parties deem it to be in their respective best interests to settle any dispute as expeditiously and economically as possible. Therefore, the parties expressly agree to submit any dispute between them arising out of or relating to this Agreement (“Dispute”) to Mediation (as defined below) and, if Mediation does not resolve the Dispute, the parties shall agree to submit their disputes to binding arbitration, as set forth below. The parties thus expressly waive any rights they may have to trial by jury with respect to such Dispute. The dispute resolution proceedings shall be conducted in Montgomery County, Texas in the English language. The parties agree to use the following procedure in good faith to resolve any Dispute.
6.1: A meeting (in person or by phone) shall be held among the parties within ten (10) business days after any party gives written notice of the Dispute to the other party (the “Dispute Notice”) attended by a representative of each party having decision-making authority regarding the Dispute (subject to board of directors or equivalent approval, if required), to attempt in good faith to negotiate a resolution of the Dispute.
6.2: If, within thirty (30) calendar days after the Dispute Notice, the parties have not succeeded in negotiating a written resolution of the Dispute, upon written request by any party to the other party all parties shall promptly negotiate in good faith to jointly appoint a mutually acceptable neutral person not affiliated with any of the parties (the “Neutral”). If all parties so agree in writing, a panel of two or more individuals (such panel also being referred to as the “Neutral”) may be selected by the parties. The parties shall seek assistance in such regard from the American Arbitration Association (the “AAA”) if they have been unable to agree upon such appointment within forty (40) days after the Dispute Notice. The fees and costs of the Neutral and of any such assistance shall be shared equally among the parties.
6.3: In consultation with the Neutral, the parties shall negotiate in good faith to select or devise a nonbinding alternative dispute resolution procedure (“Mediation”) by which they shall attempt to resolve the Dispute, and a time and place for the Mediation to be held, with the Neutral (at the written request of any party to each other party) making the decision as to the procedure if the parties have been unable to agree on any of such matters in writing within ten (10) days after selection of the Neutral.
6.4: The parties agree to participate in good faith in the Mediation to its conclusion; provided, however, that no party shall be obligated to continue to participate in the Mediation if the parties have not resolved the Dispute in writing within one hundred twenty (120) days after the Dispute Notice and any party shall have terminated the Mediation by delivery of written notice of termination to each other party following expiration of said 120-day period. Following any such termination notice after selection of the Neutral, and if any party so requests in writing to the Neutral (with a copy to each other party), then the Neutral shall make a recommended resolution of the Dispute in writing to each party, which recommendation shall not be binding upon the parties; provided, however, that the parties shall give good faith consideration to the settlement of the Dispute on the basis of such recommendation, and if the parties are unable to resolve the Dispute on the basis of such recommendation, then at the election of either party the Dispute shall be submitted to binding arbitration as provided below. In the event of binding arbitration, the party seeking further resolution shall pay the reasonable attorneys’ fees, costs and other expenses (including expert witness fees) of the other incurred in connection with the pursuit of (and defense against) such arbitration, if the result thereof is less favorable to the party pursuing the arbitration than the recommendation of the Neutral.
6.5: Subject to the foregoing, a party may seek binding arbitration of an unresolved Dispute in Montgomery County, , Texas in accordance with the Rules of the AAA governing commercial transactions. The arbitration will be conducted by a single arbitrator. If the parties fail to agree on the arbitrator within twenty (20) days, the office the AAA in Montgomery County, Texas shall make the necessary appointment of an arbitrator. In connection with any Arbitration, the parties shall be entitled to all discovery rights as provided for in the United States Federal Rules of Civil Procedure and each party shall be entitled to apply to any court of competent jurisdiction for an order enforcing any discovery request authorized under the Federal Rules of Civil Procedure. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE SUBJECT TO ARBITRATION PURSUANT TO THIS
SECTION 12After due consideration of all of the evidence submitted by the parties, in accordance with the applicable procedural rules governing the arbitration proceedings, the arbitrator shall issue its decision and award. The decision and award of the arbitrator in any arbitration proceeding shall (i) be in writing, stating the grounds for the decision in reasonable detail, specifying findings of fact and conclusions of law; (ii) be based solely on the terms and conditions of this Agreement, as interpreted under the laws of the state of Texas; and (iii) shall be final and binding upon the parties. Judgment upon such decision and award may be entered in any competent court or application may be made to any competent court for judicial acceptance of such decision and award and an order of enforcement.
6.6: At the reasonable request of either party, the mediator or arbitration tribunal shall adopt rules and procedures designed to expedite the dispute resolution process.
6.7: Notwithstanding anything herein to the contrary, nothing in this Section 12 shall preclude any party from seeking interim or provisional relief, in the form of a temporary restraining order, preliminary injunction, or other interim equitable relief concerning the Dispute, either prior to or during any of the negotiations or proceedings set forth in this Section 12, if deemed necessary by a party, in its discretion, to protect the interests of such party. Bringing or defending an action for such relief shall not constitute a waiver of the right or avoid the obligation to arbitrate contained in this Agreement. Further, this Section 12 shall be specifically enforceable.
6.8: Except as otherwise provided for in this Agreement, each party shall bear its own attorney’s fees, costs, and expenses arising out of any dispute regarding this Agreement, regardless of whether a party is declared to be a prevailing party or is otherwise entitled to an award of such fees, costs, and expenses under applicable law.