Terms and Conditions

PHILANTHROPY EXPERT TERMS AND CONDITIONS

1. SERVICES. Philanthropy Expert (PE) shall provide to Client the services (the “Services”) set out in one or more Scope of Works or Project Objectives. The initial accepted Scope of Work is outlined above. Additional Scopes of Work shall be deemed issued and accepted only if signed by both Parties.
2. CLIENT PARTICIPATION. To facilitate PE’s provision of the Services, Client will designate one of its employees or agents to serve as its primary contact with respect to this engagement and to act as its authorized representative with respect to matters pertaining to the Services contemplated by these Terms and Conditions and the Scopes of Work (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed. Many of the Services cannot be timely provided without certain information from the Client. Accordingly, Client agrees to require that the Client Contract Manager respond promptly to any reasonable requests from PE for instructions, information, or approvals required by PE to provide the Services. Additionally, Client will cooperate with PE in its performance of the Services and provide access to Client’s premises, employees, contractors, and equipment to the extent necessary to enable PE to provide the Services. Client will take all steps reasonably necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in PE’s provision of the Services.
3. FEES AND EXPENSES. In consideration of the provision of the Services by PE and the rights granted to Client under these Terms and Conditions, Client shall pay the fees and costs set out in the applicable Scope of Work. Payment to PE of such fees and the reimbursement of expenses pursuant to this Section shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Scope of Work, said fee will be payable upon receipt by the Client of an invoice from PE but in no event more than thirty (30) days after receipt of the invoice. Invoices that remain unpaid after thirty (30) days will be charged an interest rate of eighteen percent (18%) per annum or the highest rate permissible under applicable law, whichever is lower. Client shall reimburse PE for all reasonable expenses within thirty (30) days of receipt by the Client of an invoice from PE accompanied by any required supporting documentation. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, PE’s income, revenues, gross receipts, personnel, or real or personal property or other assets. Reasonable and actual travel expenses, including but not limited to expenditures for hotels, coach air or rail fare, taxis, car rentals, parking and toll fees, telephone and meals will be reimbursed by the Client. Should travel to or from the North American continent be required, Business Class travel is an authorized expense to be reimbursed by the Client.
4. PHILANTHROPY EXPERT WARRANTY, INDEMNIFICATION, HOLD HARMLESS. PE prepares evaluations and forecasts, recommends acceptable plans, procedures and processes, and compiles reports, data and information, which are based upon data available at the time, experience, and subjective analysis. Implementation is the sole responsibility of the Client. The Client agrees to hold PE harmless for shortcomings, inefficiencies or errors in the Services or Deliverables. Client will defend, indemnify and hold PE and its directors, employees, owners, and agents, harmless against all liabilities, damages, costs, fees and expenses, including reasonable attorney’s fees incurred in connection with claims, demands, suits, or proceedings, including claims of intellectual property infringement (“Claims”) made or brought against PE by any third party relating to implementation of the Services or the Deliverables except where such harm is determined to have been caused by PE’s gross negligence or willful misconduct. PE warrants that it shall perform the Services: (a) In accordance with the terms and subject to the conditions set out in the respective Scope of Work and these Terms and Conditions. (b) Using personnel of commercially reasonable skill, experience, and qualifications. (c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
5. WARRANTY. PE makes no warranties except for that provided in section 4. All other warranties, express and implied are expressly disclaimed.
6. 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 delivered to Client under these Terms and Conditions or prepared by or on behalf of the PE in the course of performing the Services, including any items identified as such in the Scope of Work (collectively, the “Deliverables”) except for any Confidential Information of Client or client materials shall be owned by PE. PE hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
7. CONFIDENTIALITY. From time to time during the Term of these Terms and Conditions, 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 that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within thirty (30) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) 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; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) 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 these Terms and Conditions; 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 these Terms and Conditions. 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.
8. TERM, TERMINATION, AND SURVIVAL. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Scopes of Work, unless sooner terminated pursuant to this Section 8. Either Party may terminate this Agreement by providing the other Party with 30 days’ written notice. The rights and obligations of the parties set forth in this Section 8, 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. Upon receipt of termination notice, PE agrees to make good faith efforts to cease new work, shall complete in-progress work to a logical summary point in its sole discretion, summarize the work, and shall deliver that final work product if any to Client. Client agrees to compensate PE for all “wrap-up” work and expenses incurred after termination notice within the 30-day notice period in accordance with the agreed upon daily rate or, if there is no daily rate, the rate set by PE in its reasonable discretion.
9. LIMITATION OF LIABILITY. In no event shall PE be liable to client or to any third party for any loss of use, revenue or profit or loss of data or diminution in value, 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 PE has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall PE’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 the aggregate amounts paid or payable to be pursuant to the applicable scope of work in the year preceding the event giving rise to the claim.
10. ENTIRE AGREEMENT. This Agreement, including and together with any related Scopes of Work, exhibits, schedules, attachments and appendices, 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 any Scope of Work, the terms and conditions of this Agreement shall supersede and control.
11. 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.
12. NO DIRECT HIRE POLICY. The Parties agree that they will not by any means directly or indirectly hire each other’s employees during the Term or until twelve (12) months after completion of all Scopes of Work. Violation of this provision will entitle the injured Party to liquidated damages equal to twelve (12) months consulting fees or twelve (12) months’ salary for the individual in question. However, the forgoing restrictions shall not include individuals who respond to an ad or general solicitation or where agreement of both organizations regarding the hiring of an employee or contractor in writing.
13. NO CONFLICT. Client represents and warrants that the performance of the Services and all the terms of this Agreement does not and will not breach any agreement between it and any other party, person, or entity.
14. AMENDMENT, WAIVER. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. 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. Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of PE. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement. PE 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 PE’s assets without Client’s consent. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
15. 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 PE shall be under its own control, Client being interested only in the results thereof. PE 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 Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. The Services must meet the Client’s final approval and shall be subject to the Client’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion. 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.
16. PUBLICITY. Unless otherwise stated in the Scope of Work, either Party may include the other’s name and logo client and vendor lists and otherwise publicize the existence of this relationship.
17. 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.
18. VENUE AND FORUM. This Agreement and all related documents 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 Colorado 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 Colorado. 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 in any forum other than the courts of the State of Colorado sitting in Denver city and county, and any appellate court from any thereof. 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 Colorado sitting in Denver. 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.
19. WAIVER OF JURY TRIAL. Each party acknowledges that any controversy that may arise under these terms and conditions, including scopes of work, project objectives, attachments and appendices attached to these term and conditions, 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 these terms and conditions, including any scopes of work, project objectives, attachments and appendices attached to these term and conditions, or the transactions contemplated hereby.
20. COUNTERPARTS AND DEFINITIONS. By executing a Scope of Work, the Parties are agreeing to be governed to these Terms and Conditions. Scopes of Work 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 and a signed copy of these Terms and Conditions delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of these Terms and Conditions. Capitalized terms in these Terms and Conditions without definition shall have the meanings assigned to them in the Scope of Work and vice versa.
21. FORCE MAJEURE. PE shall not be liable or responsible to Client, nor be deemed to have defaulted or breached these Terms and Conditions, for any failure or delay in fulfilling or performing the Services or any term of these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of PE including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (the “Force Majeure Event”). The suspension of PE’s obligations hereunder shall only last so long as the Force Majeure Event makes performance impossible or impractical. If the Force Majeure Event continues for a continuous period more than thirty (30) days, Client shall be entitled to give notice in writing to PE to terminate these Terms and Conditions.