1. Parties. For purposes of these terms and conditions, the “Company” shall mean the VitalSmarts entity identified on the Order Confirmation Form or Event Confirmation Form (collectively, and taken together with these terms and conditions, the “Confirmation Form”) executed by the parties, and the “Client” shall mean the client identified on the Confirmation Form executed by the parties.
2. Placing of Orders. The Confirmation Form details the Programs and Services (as defined below), if any, being purchased at the time the Confirmation Form is executed by the parties. All purchases are non-cancellable and non-refundable. Company will, as its sole remedy, replace defective product with conforming product provided returns are made within 10 business days of receipt. Fees for postponing or cancelling training class are set forth below. Client may place orders for additional Programs and Services during the Term of the Confirmation Form in writing (which may include email). Upon email confirmation of the order from Company, the order will be binding. Nothing herein shall obligate Client to place any such orders, or Company to accept such orders. Any orders for additional Programs and Services must be provided no fewer than thirty (30) days prior to the date of the relevant session or the date on which Materials (defined below) are required to arrive. Company may, in its discretion, accept orders fewer than 30 days in advance, but may charge a rush fee and/or additional shipping charges for expedited shipping. Company will quote rush fees to Client and will proceed with the order only if agreed to by Client in writing (email included) or by telephone.
3. Programs and Services. The capitalized terms “Programs” and “Services” mean, respectively, Company’s programs, deliverables, services (including delivery, consulting, and customization work) for which orders are placed by Client and accepted by Company as set forth on the Confirmation Form. Programs may include articles, participant materials, instructor materials and other materials (collectively, “Materials”), whether delivered in print or other tangible media or through electronic means.
4. Recording. Audio, digital and/or video recording by Client and/or any Client employee of any Company presentation or training is strictly prohibited, unless Company provides its express written consent in advance to such recording, in its sole discretion.
5. Intellectual Property and License Grant. Client acknowledges and agrees that as between Client and Company, Company and its licensors is/are, and remains, the owner(s) of all intellectual property rights in and to the Programs, Services, and Materials, whether or not protected by patents. Client acknowledges that certain materials associated with GTD® and Getting Things Done® are property of the David Allen Company, which licensed these to Company. Company acknowledges and agrees that Client will retain all its rights, title, and interest in and to Client’s products, trademarks, technology, inventions, techniques, data, designs, and other information, whether or not protected by patents. Company grants to Client a nonexclusive, nontransferable, limited license to use the Programs and Materials solely for Client’s internal use by employees of Client during the Term. Persons receiving the Materials pursuant to the foregoing license are referred to herein as “Participants.” Client will pay the applicable Program fees for each Participant (if included in the Confirmation Form). Participants are permitted to retain indefinitely for their personal reference the tangible Program materials. Client agrees to use any articles, program videos, wall charts, and other program materials and instructional aids only internally during the Term of this agreement. Neither Client nor its employees (nor contractors or consultants) shall have any right to copy, distribute, publicly display, license, sub-license, create derivative works from, or make any other use of any such property and materials.
7. Shipping and Payment. All orders are shipped F.O.B. shipping point, freight prepaid and added to Client’s invoice. Unless otherwise specified in the Confirmation Form, any and all payments are due thirty (30) days following receipt of invoice. If Client fails to provide written notice of a good faith dispute in advance of the payment due date, Client shall pay ﬁnance charges of 1.5% per month on all past due balances until paid, and Company will be entitled, in addition to any other available remedies, to suspend deliveries to Client. Client shall reimburse Company for all reasonable travel and lodging expenses (“Reimbursable Expenses“). Client may request pre-approval of Reimbursable Expenses by notifying Company in writing of such request prior to the Company incurring Reimbursable Expenses, in which case Company will obtain Client’s approval before incurring any Reimbursable Expenses. If Client refuses to approve Reimbursable Expenses reasonably required for Company to perform the services hereunder, Company shall be excused from such performance and any fees due in respect of such excused performance shall remain payable by Client. Reimbursable Expenses, and Materials fees may be invoiced separately from training/facilitation fees (invoiced upon delivery). Payments will be accepted via wire, ACH, check or credit card. If Client pays via credit card, Client shall pay Company a 3% processing fee in addition to the invoice amount. Client is responsible, without limitation, for all applicable shipping and handling charges, sales and/or withholding taxes. Company will add such charges and taxes to the invoice and Client will be responsible for payment of such taxes, unless Client provides to Company a valid exemption certificate or other document acceptable to the authority imposing the tax. Client is responsible for all duties and other government fees applicable to the purchase and import of Company products.
8. Cancellation of Training or Other Event. If Client cancels an event, Client is responsible for all non-refundable travel costs incurred, regardless of cancellation date. If Client cancels an event with more than 30 days’ notice to Company, there is no cancellation fee and any fees previously paid will be credited to your next event or purchase (except non-refundable travel costs mentioned above). If Client cancels with fewer than 30 days’ notice to Company, Client is responsible for 100% of the fee for the event. Notice of cancellation must be in writing and will be deemed given when received by Company. Notice may be given via e-mail to email@example.com or overnight courier addressed to: (i) if the Company is VitalSmarts, L.C. – VitalSmarts, Attn: Customer Service, 282 River Bend Lane, Provo, UT 84604, USA or (ii) if the Company is VitalSmarts (UK) Limited – VitalSmarts (UK) Limited, Attn: Customer Services, 7 Bishopsgate, 2nd Floor, London EC2N 3AR, United Kingdom.
9. Warranty/Disclaimer. Company warrants that the Programs, Materials and Services: (a) when used in accordance with the terms and conditions of this Confirmation Form, will not infringe or otherwise violate any patents, copyrights, trademarks, trade secrets or other intellectual property rights of any third parties; and (b) will be free from material defects in materials and workmanship when delivered. As Client’s sole remedy for defective materials, Company will replace such materials upon their return to Company and will assume ground freight charges for their return for a period of sixty (60) days after receipt by Client. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE PROGRAMS AND SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
10. Indemnification. Company will indemnify Client and Client’s owners, directors, employees, agents and representatives (“Indemnified Parties”), from any and all third party claims and liabilities (including reasonable attorneys’ fees) which may arise from third party patent, trademark or copyright infringement claims arising in connection with such Indemnified Parties’ authorized use of the Programs and Services (“Claim”), except to the extent that such infringement is attributable to content provided by Client or an Indemnified Party. Company reserves the right to control the defense of any such litigation, including the employment of counsel and payment of all expenses, provided that Company may not settle any Claim against Client unless it unconditionally releases Client of all liability.
11. Audit. If Company has a reasonable basis for believing that Client has violated the terms of Section 5 (Intellectual Property and License Grant) or that Client has otherwise breached these Terms and Conditions, Company shall have the right, during the Term of the Confirmation Form and for 90 days thereafter, to audit Client’s Program use for the purpose of conﬁrming Client’s compliance with the foregoing License Grants.
12. Compliance with Laws. In performing this Confirmation Form, Client and Company agree to comply with all applicable laws and regulations including, but not limited, to all export control or other trade regulation. Specifically, with regard to export control, Client hereby acknowledges that all goods and services provided under this Confirmation Form are subject to U.S. export control laws and may not be provided directly or indirectly to any country to which export is prohibited by U.S. export control laws (currently Iran, Syria, North Korea or Cuba), or individuals or entities based or resident in these countries. Client acknowledges that if Company has reason to believe that U.S. export control laws may be or have been violated, Company may, in its sole discretion, suspend or terminate this Confirmation Form immediately upon written notice.
13. Limitation of Liability. TO THE EXTENT ALLOWED BY LAW, COMPANY’S LIABILITY TO CLIENT IN CONNECTION WITH THIS CONFIRMATION FORM OR ANY PROGRAMS OR SERVICES DELIVERED HEREUNDER SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY FOR PROGRAMS AND SERVICES DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM.
14. Confidential Information. Company and Client acknowledge that, subject to the exceptions set forth below, the following shall constitute “Conﬁdential Information”: (a) any information relating to this Confirmation Form; and (b) any other information that either party reasonably holds in conﬁdence or has received from a third party under an obligation of conﬁdentiality. The following information will not be considered Conﬁdential Information: (w) information that is already generally available to the public at the time of disclosure by the disclosing party; (x) information that hereafter becomes generally available to the public, through no fault of the receiving party; (y) information that is known by the receiving party prior to the disclosure; and (z) information that becomes known through a third party under no obligation not to disclose it. During the Term and for three years thereafter, each party agrees to maintain the other party’s Conﬁdential Information as strictly conﬁdential and not to, directly or indirectly, disclose or reveal it to any third party, or seek to use it for any purpose, except as contemplated in this Confirmation Form or as required by a court or governmental authority of competent jurisdiction, after ﬁrst notifying the disclosing party of such disclosure requirement.
15. Term and Termination. This Confirmation Form shall commence on the Start Date and end on the End Date (each as recorded on the Confirmation Form). This Confirmation Form may be terminated: (a) by written notice from either party in the event the other party materially defaults in the performance of its obligations hereunder, which default has not been substantially cured within 30 days after written notice has been given to the defaulting party specifying the default or (b) by Company immediately, in the event Client has breached the “License Grant” section of this Confirmation Form.
16. Governing Law. If the Company is VitalSmarts, L.C., then this Confirmation Form and all matters relating to this Confirmation Form will be governed by, and construed in accordance with, the laws of the State of Utah, excluding its conﬂicts of law rules. If the Company is VitalSmarts (UK) Limited, then this Confirmation Form and all matters relating to this Confirmation Form will be governed by, and construed in accordance with, the laws of England and Wales, excluding its conﬂicts of law rules.
17. Insurance. VitalSmarts agrees to maintain in full force and effect during the term of this Agreement, the following minimum insurance coverage: (a) Workers’ Compensation in accordance with the statutory Workers’ Compensation Laws for the state(s) in which the Services are being performed; (b) General Liability Insurance in the minimum amounts of $1,000,000 per occurrence and $2,000,000 aggregate; and (c) Automobile Liability Insurance to include non-owned and hired vehicles in the minimum amounts of $1,000,000 combined single limit per occurrence.
18. Miscellaneous. Company is an independent contractor to Client in respect of services provided under this Confirmation Form. Rights and obligations under this Confirmation Form that by their nature should survive will remain in eﬀect after termination or expiration of this Confirmation Form. Each party will be excused from performance hereunder (except for the payment of money due) for any period and to the extent that it is prevented from performing its obligations, in whole or in part, as a result of delays caused by an act of God, war, civil disturbance, terrorism or nonperformance by third party providers of goods or services, and such nonperformance shall not be a default hereunder or, except as provided in this Section, a ground for termination. No delay or omission by either party to exercise any right or power under this Confirmation Form will impair such right or power or be construed to be a waiver thereof. This Confirmation Form may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one instrument. Each party acknowledges that an original signature or a copy thereof transmitted by facsimile or by PDF, and/or by commercially-recognized electronic signature software program shall constitute an original signature. Company may, without consent of Client, assign, transfer, delegate or pledge this Confirmation Form and/or its rights and obligations hereunder to any third party in connection with any merger, spin-off, or sale of substantially all of the Company’s stock or assets. This Confirmation Form contains the entire agreement between the parties with respect to its subject matter and supersedes the terms and conditions of any agreement prior to the date hereof or any preprinted terms of a purchase order submitted at any time. This Confirmation Form may not be modiﬁed except by a writing signed by both parties.
19. Purchase Orders. These Terms and Conditions shall be the sole agreement between the parties, and any additional terms and conditions appearing on a purchase order are expressly disclaimed and shall not apply.
Version: These terms and conditions are valid for all orders completed on or after June 7, 2018.