Terms and Conditions
Services. Service Provider shall provide to Customer solely the services (the "Services") set out in the Statement of Work attached hereto as “Exhibit A.” Services outside the scope of the Statement of Work shall not be provided by Service Provider unless agreed to in writing by Service Provider after reasonable request by Customer. It is within Service Provider’s sole discretion to accept or deny any changes requested by Customer to the scope of Services set out in the Statement of Work under this Agreement.
Customer Obligations. Customer shall:
a. Cooperate with Service Provider in its performance of the Services as required to enable Service Provider to provide the Services;
b. Respond promptly to any Service Provider request to provide information, approvals, or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
c. If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
3. Fees and Expenses.
a. In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the Statement of Work. Unless otherwise provided in the Statement of Work, said fee will be payable within two (2) days of receipt by Customer of an invoice from Service Provider but in no event more than five (5) days of receipt by Customer of an invoice from Service Provider. Full payment due and owing under the Agreement to Service Provider for the entire Term must be paid unless this Agreement is terminated solely for reasons under Section 4(a).
b. Customer agrees that Service Provider has the right to charge a bank or payment card provided by Customer for the required amount on the due date of an invoice without any further notice or contact. Customer is to inform Service Provider immediately should there be any change in their payment details or should Customer wish to use an alternate card or means of payment. Customer is aware that Customer is responsible for any charges associated with Customer’s method of payment including, but not limited to bank processing fees, international charges, and currency conversion charges. No “charge back” or reversal of bank charges will be accepted by Service Provider.
c. All late payments shall bear interest at the lesser of (i) the rate of 5% per month and (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Service Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees and costs associated with use of a collection agency, both of which Service Provider may use to collect outstanding payments from Customer. In addition to all other remedies available under this Agreement or at law (which Service Provider does not waive by the exercise of any rights hereunder), Service Provider shall be entitled to suspend the provision of any Services if the Customer fails to pay any amounts when due hereunder and such failure continues for five (5) days following receipt by the Customer of an invoice from Service Provider.
4. Limited Warranty and Limitation of Liability.
a. Service Provider solely warrants that it shall perform the Services in accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement. For the avoidance of doubt, this Section 4(a) of the Agreement is not dependent on the subjective satisfaction of Customer. Any dissatisfaction with the Services arising from personal preferences, tastes, or subjective opinions shall not i. be grounds for termination of the Agreement; ii. constitute a breach of this Section 4(a); and iii. have any bearing on this Agreement as a whole, as the Service Provider cannot guarantee any specific results sought by Customer.
b. Service Provider's sole and exclusive liability and Customer's sole and exclusive remedy for breach of Section 4(a) warranty shall be as follows: Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Customer's written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 7.
c. In the event the Agreement is terminated pursuant to Section 4(b) above, Service Provider shall within thirty (30) days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination, less a deduction equal to the fees for receipt or use of such Service up to and including the date of termination on a pro-rated basis. Customer shall not be entitled to any refunds of any kind unless the Agreement is prematurely terminated for breach by Service Provider of Section 4(a) warranty AND Service Provider is unable to cure said breach within thirty (30) days.
SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 4(a), ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
5. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are available to Customer under this Agreement or prepared by or on behalf of the Service Provider in the course of performing the Services, (collectively, the "Deliverables") shall be owned by Service Provider.
6. Confidentiality.
a. Customer shall not replicate, share, distribute, or copy any content supplied under the Agreement through the Services and Deliverables, nor shall Customer replicate, share, distribute, or copy any property belonging to Service Provider including, but not limited to, website, copy, designs, content, workbooks, or marketing materials. Customer is not permitted to re-teach or re-use any content provided by Service Provider in his/her own program/service and doing so will be deemed a breach of this Agreement.
b. During the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party"), non-public, proprietary, and confidential information of Disclosing Party, whether marked or unmarked, ("Confidential Information"); provided, however, that Confidential Information does not include any information that:
i. is or becomes generally available to the general public other than as a result of Receiving Party's breach of this Section 6;
ii. is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
iii. was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or
iv. was or is independently developed by Receiving Party without using any Confidential Information.
The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy. For purposes of this Section 6 only, Receiving Party's Group shall mean the Receiving Party's affiliates, officers, directors, shareholders, partners, members, managers, attorneys, accountants, and financial advisors.
7. Term, Termination, and Survival.
a. This Agreement shall commence as of the Effective Date and shall continue thereafter for a period of one (1) year unless sooner terminated solely pursuant to Section[s] 4(a), 7(b), or 7(c).
b. A Party not in default under this Section 7(b) may terminate this Agreement, effective upon written notice to the other Party (the "Defaulting Party") if the Defaulting Party:
i. Becomes insolvent or admits its inability to pay its debts generally as they become due. This shall include Customer declarations that Customer cannot continue to pay amounts due and owing under the Agreement as well as any failure by Customer to pay amounts due and owing according to the terms of this Agreement lasting five days or longer from the date of Customer’s receipt of an invoice from Service Provider.
ii. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 business days after filing.
iii. Is dissolved or liquidated or takes any corporate action for such purpose.
iv. Makes a general assignment for the benefit of creditors.
v. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
c. Notwithstanding anything to the contrary in Section 7, Service Provider may terminate this Agreement before its expiration date immediately upon notice to Customer, with or without cause, which shall result in immediate termination of Customer’s access to any and all Service platforms of Service Provider. If the Agreement is terminated without cause by Service Provider, and Customer has paid to Service Provider amounts in advance of Services to be provided, Service Provider will reimburse Customer for fees and expenses not yet earned/incurred by Service Provider. For the avoidance of doubt, Customer shall not be entitled to reimbursement for fees and expenses already earned/incurred by Service Provider up to the date of termination without cause. Further, any termination of this Agreement by Service Provider shall not itself constitute a waiver of collection of outstanding fees and expenses owed by Customer to Service Provider on or before the date of termination.
d. The rights and obligations of the Parties set forth in this Section 7 and in Section[s] 5, 6, 8, 9, 10, 11, 12, 22 - 25, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
8. Limitation of Liability.
a. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SERVICE PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE STATEMENT OF WORK.
9. Non-Solicitation of Service Provider Employees. Customer understands and acknowledges that Service Provider has expended and continues to expend significant time and expense in recruiting and training its employees and that the loss of employees would cause significant and irreparable harm to Service Provider. Customer agrees and covenants not to directly or indirectly solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee of Service Provider or any employee who has been employed by Service Provider in the 12 months preceding the termination date of the Agreement (collectively, "Covered Employee"), or induce the termination of employment of any Covered Employee, immediately following the termination of the Agreement, regardless of the reason for the termination, whether voluntary or involuntary, for a period of two (2) years.
This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, Twitter, TikTok, and any other social media platform, whether or not in existence at the time of entering into this Agreement. However, it will not be deemed a violation of this Agreement if Customer merely updates Customer's LinkedIn profile or connects with a Covered Employee on Facebook, LinkedIn, or other social media platform without engaging in any other substantive communication, by social media or otherwise, that is prohibited by this non-solicitation provision.
10. Non Disparagement. Customer agrees and covenants that Customer will not at any time make, publish, or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning Service Provider or its businesses, or any of its employees, officers, existing and prospective customers, suppliers, investors, and other associated third parties, provided, however, that this Section 10 does not prohibit Customer from making or publishing truthful reviews or statements concerning Service Provider or its business on any third party review platform (e.g., Google, Yelp).
11. Indemnification. Customer shall indemnify, hold harmless, and defend Service Provider from and against all losses and liabilities, whether direct or indirect, that may arise from Customer’s breach of the terms and conditions of this Agreement. Customer’s breach of any obligations under this Agreement may result in irreparable and continuing damage to Service Provider, and in the event of such breach, Service Provider may be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including damages and compensation, where appropriate).
12. Testimonials.
a. Customer understands that he or she is not required to give any testimony and understands that the choice to do so is freely up to Customer. There will be no ramifications or change in the relationship between Service Provider and Customer if Customer does not provide a testimonial.
b. Should Customer provide a testimonial, Customer irrevocably and perpetually grants Service Provider, the unrestricted right, power, and authority to reproduce, publish, print, distribute, transmit, copy in whole or in part, in any medium known or later discovered, including but not limited to by means of digital transmission through the media, the following: (i) photographs submitted by Customer to Service Provider for purposes of a testimonial; and (ii) verbal or written testimonials about the experience of the Services provided by Service Provider, including video/audio recordings.
c. Customer acknowledges and agrees that Service Provider may use and exploit the testimonial photographs, audio, and transcripts in any manner, without restriction of any kind. Customer hereby indemnifies and holds Service Provider harmless from and against all claims, suits, threats, demands, liabilities, actions and causes of action, in any way related to the testimonial photographs, audio, and transcripts Service Provider used and exploitation of the testimonial photographs, audio, and transcripts, including but not limited to actions based upon invasion of privacy, violation of moral rights, defamation, false light, and all other potential legal theories of any nature or type, under any state, federal or local common law, statutory law, rule, regulation or court order, whether now known and available or whether later developed, discovered or created.
13. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, and schedules constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of the Statement of Work, the terms and conditions of this Agreement shall supersede and control.
14. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid), or by email. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 13.
Notice to Customer:
Form.Address
Form.Email
Notice to Service Provider:
1103 Alexis Ct., #107
Mansfield TX, 76063
Attention: Stella Odogwu, President
Email: stella@intelle.us
15. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16. Amendments. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
17. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Assignment. Customer shall not assign, transfer, or delegate any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 16 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under this Agreement. Service Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Service Provider's assets without Customer's consent.
19. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
20. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, Customer being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Customer understands that the Services provided by Service Provider are not therapy services and that Service Provider is not a therapist. Customer further understands the relationship between Service Provider and Customer is not a substitute for legal, medical, or financial advice.
21. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
22. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Texas, United States of America (including its statutes of limitations and APPLICABLE JURISDICTION CHOICE OF LAW STATUTE(S)), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
23. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than a state or federal court located in Tarrant County, Texas. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of Texas sitting in Tarrant County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
24. Waiver of Jury Trial. Each Party acknowledges that any controversy that may arise under this Agreement, including exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
25. Dispute Resolution. In order to facilitate an efficient and economical resolution of any disputed matter arising under this Agreement, if the Parties fail to informally negotiate with each other in good faith in an effort to resolve any dispute related to this Agreement, the Parties shall first submit a disputed matter under this Agreement to mediation before pursuit of litigation. Submission to mediation may be made by either Party by written notification to the other Party. A mediator shall be selected by agreement of the Parties within five days of notification of the need for mediation. Together with the mediator, the Parties shall agree on a mutually convenient time for the mediation.
If the Parties are not able to agree on a mediator, either Party may apply to the Bexar County Texas District Judge who coordinates mediation to pick a mediator from his or her Approved List of Mediators. Together with the mediator selected, the Parties shall promptly designate a mutually convenient time and place for the mediation, which shall take place within forty-five (45) days after selecting the mediator. If the Parties do not agree promptly, then the mediator shall determine the time and place.
The Parties will use their best efforts to resolve such dispute by first mediating the dispute in good faith, and costs of mediation shall be assumed equally amongst the Parties, but if mediation fails after the use of, at minimum, a full day mediation session, either Party may then pursue litigation.
26. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
27. Force Majeure. Service Provider shall not be liable or responsible to Customer, 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, when and to the extent such failure or delay is caused by or results from acts beyond Service Provider’s reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) telecommunication breakdowns, power outages or shortages, or cybersecurity attacks that penetrate commercially reasonable data privacy/cybersecurity protocols.
Service Provider shall give notice within three (3) days of the Force Majeure Event to Customer, stating the period of time the occurrence is expected to continue. Service Provider shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Service Provider shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that Service Provider’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 24, the Customer may thereafter terminate this Agreement upon ten (10) days' written notice.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.