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These Terms and Conditions (“Terms and Conditions”), shall be effective as of the “Effective Date” set forth in the “Proposal” (as hereinafter defined), by and between VorsightBP, LLC, d/b/a Funnel Clarity, a Delaware limited liability company, having its principal place of business at 251 Little Falls Drive, Wilmington, Delaware 19808 (the “Funnel Clarity”) and the “Client” as defined in the Proposal. Funnel Clarity and Client are sometimes referred to interchangeably and collectively herein, as context requires, as a “Party” or the “Parties”.
1. Services. Funnel Clarity shall provide to Client the services (the “Services”) set forth in any proposal or statement of work executed by the Parties (each, a “Proposal”). These Terms and Conditions apply to all Proposals between the Parties unless a Proposal expressly states otherwise. Any requested changes to the scope of work described in a Proposal may result in an equitable adjustment to the fees, schedule, or both.
2. Funnel Clarity Obligations. Funnel Clarity shall:
2.1 Designate employees that it determines, in its sole discretion, to be capable of filling the following positions:
(a) A primary contact to act as its authorized representative with respect to all matters pertaining to the Proposal (the “Funnel Clarity Contract Manager”).
(b) A number of employees that it deems sufficient to perform the Services set out in each Proposal, (collectively, with Funnel Clarity Contract Manager, “Provider Representatives”).
3. Client Obligations. Client shall:
3.1 Designate one of its employees to serve as its primary contact with respect to the Proposal and to act as its authorized representative with respect to matters pertaining to the Proposal (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed.
3.2 Require that the Client Contract Manager respond promptly to any reasonable requests from Funnel Clarity for instructions, information, or approvals required by Funnel Clarity to provide the Services.
3.3 Cooperate with Funnel Clarity in its performance of the Services and provide access to Client's premises, employees, contractors, and equipment as required to enable Funnel Clarity to provide the Services.
3.4 Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Funnel Clarity's provision of the Services.
4. Fees and Expenses.
4.1 In consideration of the provision of the Services by Funnel Clarity and the rights granted to Client under the Proposal and pursuant these Terms and Conditions, Client shall pay the fees set out in the applicable Proposal. Payment to Funnel Clarity of such fees and the reimbursement of expenses pursuant to this § 4 shall constitute payment in full for the performance of the Services. Unless otherwise provided in the applicable Proposal, said fee will be payable within ten (10) days of receipt by the Client of an invoice from Funnel Clarity.
4.2 Client shall reimburse Funnel Clarity for all reasonable expenses including travel expenses incurred pursuant to the Proposal, within ten (10) days of receipt by the Client of an invoice from Funnel Clarity accompanied by receipts or other reasonable supporting documentation. For clarity, travel expenses shall include all airline tickets (first class for domestic and business class for international), car rentals and milage used, hotel, food, etc. Standard federal government rates will apply for mileage and per diem limitations.
4.3 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; and to the extent Funnel Clarity is required to pay any such sales, use, excise, or other taxes or other duties or charges, Client shall reimburse Funnel Clarity in connection with its payment of fees and expenses as set forth in this § 4. Notwithstanding the previous sentence, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, Funnel Clarity's income, revenues, gross receipts, personnel, or real or personal property or other assets.
4.4 Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of 6% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Funnel Clarity for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under the Proposal, these Terms and Conditions or at law (which Funnel Clarity does not waive by the exercise of any rights hereunder), Funnel Clarity shall be entitled to suspend the provision of any Services if the Client fails to pay any amounts when due hereunder and such failure continues for ten (10) days following the due date.
5. Limited Warranty and Limitation of Liability.
5.1 Funnel Clarity warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set out in the respective Proposal and these Terms and Conditions.
(b) Using personnel of industry standard, skill, experience, and qualifications.
(c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
5.2 Funnel Clarity's sole and exclusive liability and Client's sole and exclusive remedy for breach of this warranty shall be as follows:
(a) Funnel Clarity shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Funnel Clarity cannot cure such breach within a reasonable time (but no more than thirty (30) days after Client's written notice of such breach, Client may, at its option, terminate the Proposal by serving written notice of termination in accordance with § 8.2.
(b) In the event the Proposal is terminated pursuant to § 5.2(a) above, Funnel Clarity shall within thirty (30) days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for the Service or “Deliverables” (as defined in § 6 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Client provides written notice of such breach within thirty (30) days after delivery of such Service or Deliverable to Client.
5.3 FUNNEL CLARITY MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN § 5.1, ABOVE. 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 the Proposal or prepared by or on behalf of Funnel Clarity in the course of performing the Services, including any items identified as such in the Proposal (collectively, the “Deliverables”) except for “Client Materials” (as hereinafter defined) shall be owned by Funnel Clarity. Funnel Clarity hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, 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. “Client Materials” as used herein shall mean all documents, data, information, content, specifications, software, technology, deliverables, inventions, know how, methodologies, trademarks, and other materials (whether in tangible or intangible form) that: (a) are owned, developed, or licensed by Client independently of any Proposal; (b) were in existence prior to the Effective Date; or (c) are created or acquired by Client outside of and not derived from Funnel Clarity’s performance of the Services. Notwithstanding anything herein to the contrary, Client Materials expressly exclude all Deliverables and any Funnel Clarity intellectual property, tools, methods, templates, or know-how.
7. Confidentiality. From time to time during the Term of the Proposal, 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 § 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-Party source that to the Receiving Party's knowledge, was not legally or contractually restricted from disclosing such 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 of the Disclosing Party's 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 the Proposal and 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 this the Proposal and 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. For purposes of this § 7 only, “Receiving Party's Group” shall mean the Receiving Party's employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, attorneys, accountants, and financial advisors.
Notwithstanding anything in these Terms and Conditions or the Proposal to the contrary, nothing in these Terms and Conditions shall prevent either Party from using any general methodologies or know-how contained in the unaided memory of such Party's personnel developed or disclosed under the Proposal, provided that in doing so it is not in breach of its obligations of confidentiality under this § 7 or using any Intellectual Property Rights as set forth in § 6.
8. Term, Termination, and Survival.
8.1 These Terms and Conditions shall commence as of the Effective Date set forth in the Proposal and shall continue thereafter until the completion of the Services under all Proposals or the “Term” as defined in the applicable Proposal, unless sooner terminated pursuant to § 8.2 or § 8.3.
8.2 Either Party may terminate the Proposal, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
(a) Materially breaches the Proposal or these Terms and Conditions, and the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach, or such material breach is incapable of cure.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty five (45) business days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) 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.
8.3 Notwithstanding anything to the contrary in § 8.2(a), Funnel Clarity may terminate the Proposal before the expiration date of the Term on written notice if Client fails to pay any amount when due under any Proposal (a) and such failure continues for ten (10) days after Client's receipt of written notice of nonpayment; or (b) more than one time in any calendar quarter.
8.4 The following provisions survive the expiration or termination of the Proposal and these Terms and Conditions: § 4 (Fees and Expenses), § 5 (Limited Warranty; Limitation of Liability), § 6 (Intellectual Property), § 7 (Confidentiality), § 8.4 (Effects of Termination), § 9 (Limitation of Liability), § 10 (Dispute Resolution), § 12 (Notices), § 15 (Assignment), § 17 (No Third-Party Beneficiaries), § 20 (Force Majeure), and any other provision that expressly states it survives or that by its nature must continue in effect after termination.
9. Limitation of Liability.
9.1 IN NO EVENT SHALL FUNNEL CLARITY 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, 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 FUNNEL CLARITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL FUNNEL CLARITY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PROPOSAL, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO FUNNEL CLARITY PURSUANT TO THE APPLICABLE PROPOSAL.
10. Entire Agreement. These Terms and Conditions, including and together with any related Proposals, statement of works, 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 these Terms and Conditions and the terms and conditions of any Proposal, the terms and conditions of these Terms and Conditions shall supersede and control.
11. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms and Conditions (each, a “Notice”) 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 § 12). 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). Except as otherwise provided in these Terms and Conditions, 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 § 12.
Notice to Client: Client’s address as indicated in the Proposal
Notice to Funnel Clarity:
VorsightBP, LLC, d/b/a Funnel Clarity
Attn: Tom Snyder
251 Little Falls Drive,
Wilmington, Delaware 19808
12. Severability. If any term or provision of these Terms and Conditions 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 these Terms and Conditions or the Proposal or invalidate or render unenforceable such term or provision in any other jurisdiction.
13. Amendments. No amendment to or modification of the Proposal or these Terms and Conditions shall be effective unless it is in writing, identified as an amendment to the Proposal or these Terms and Conditions and signed by an authorized representative of each Party.
14. Waiver. No waiver by any Party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in the Proposal and signed by the Party so waiving. Except as otherwise set forth in these Terms and Conditions, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms and Conditions 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.
15. Assignment. Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under the Proposal and these Terms and Condition without the prior written consent of Funnel Clarity. Any purported assignment or delegation in violation of this § 16 shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under the Proposal or these Terms and Condition. Funnel Clarity 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 Funnel Clarity's assets without Client's consent.
16. Successors and Assigns. These Terms and Condition and the Proposal are binding on and inures to the benefit of the Parties to the Proposal their respective permitted successors and permitted assigns.
17. 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 Funnel Clarity shall be under its own control, Client being interested only in the results thereof. Funnel Clarity shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this these Terms of Conditions or this Proposal shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Upon Client’s acceptance of the Services or Deliverables, such acceptance shall be deemed final and conclusive, and the Services shall be considered fully and satisfactorily complete. Nothing contained in the Proposal or these Terms and Conditions 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.
18. No Third-Party Beneficiaries. The Proposal and these Terms and Conditions benefits solely the Parties to the Proposal and their respective permitted successors and assigns and nothing in the Proposal or these Terms and Conditions, 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 the Proposal or these Terms and Conditions.
19. Controlling Law; Arbitration.
19.1 All disputes arising out of the Proposal and these Terms and Conditions shall be resolved by binding arbitration pursuant to the rules of the American Arbitration Association then pertaining. Arbitration proceedings shall be held in the State of Delaware and governed by the laws of the State of Delaware, without any defrence to conflict of laws.
19.2 The Parties may, if they are able to do so, agree upon one arbitrator; otherwise, there shall be three (3) arbitrators selected to resolve disputes pursuant to this § 20, one named in writing by each Party within 15 days after notice of arbitration is served, upon one Party by the other Party and a third arbitrator selected by the two arbitrators selected by the Parties within 15 days thereafter.
19.3 If the two arbitrators cannot select a third arbitrator within such fifteen (15) days, the Parties may request that the American Arbitration Association select such third arbitrator. If one Party does not choose an arbitrator within fifteen (15) days, the other Party shall request that the American Arbitration Association name such other arbitrator. No one shall serve as arbitrator who is in any way financially interested in the Proposal or in the affairs of either Party.
19.4 Each Party shall pay its own expenses of arbitration and one half of the expenses of the arbitrators. If any position by either Party hereunder, or any defense or objection thereto, is deemed by the arbitrators to have been unreasonable, the arbitrators shall assess, as part of their award against the unreasonable Party or reduce the award to the unreasonable Party, all or part of the arbitration expenses (including reasonable attorneys’ fees) of the other Party and of the arbitrators.
19.5 The decision of the arbitrators shall be final and binding and enforceable by any court having competent jurisdiction.
20. Counterparts. The Proposal with these Terms and Conditions may be executed in counterparts, each of which is deemed an original, and which together shall be deemed to be one and the same
21. Force Majeure. Excepting payment obligations under this Agreement, no Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached the Proposal or these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these the Proposal or these Terms and Conditions (except for any obligations of the Client to make payments to Funnel Clarity hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party's (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, 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) embargoes or blockades in effect on or after the date of the Proposal; and (f) national or regional emergency.
The Impacted Party shall give notice within sixty (60) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this § 22, the other Party may thereafter terminate the Proposal upon 10 days' written notice.
22. Mutual Understanding; Incorporation in Proposal. Each Party’s execution of the Proposal shall reflect the Parties understanding and acceptance of these Terms and Conditions and its incorporation in the Proposal.
