Terms and Conditions

Effective January 1, 2020

These FUNNEL CLARITY GENERAL TERMS AND CONDITIONS (the “General Terms”) are incorporated into all agreements for products or services provided by FUNNEL CLARITY, (“Funnel Clarity”). With respect to each such agreement and all products and services provided by Funnel Clarity, each Party agrees as follows:

DEFINITIONS

“Approved Statement of Work” means a Statement of Work that is approved and signed by an authorized agent of each party to the Statement of Work as set forth in Section 2.1.
“Business Day” means any weekday on which Funnel Clarity’s office in Washington, D.C. is open in the normal course of business.
“Client” means that any Party to an Approved Statement of Work other than Funnel Clarity.
“Customer” means any person or entity which, or for which, at any time during the term of an applicable approved Statement of Work or the 12 months immediately preceding any termination of an applicable Approved Statement of Work, whichever is shorter, (a) contracted for or received services from a Party, (b) received a bid or proposal by a Party for the provision of services by the Party, or (c) a Party was actively preparing a bid or proposal for the provision of services by the Party.
“Effective Date” means the date on which the last Party executes the applicable Approved Statement of Work.
“Insolvent” means that the sum of the debts and other probable Liabilities of Client exceed the present fair saleable value of Client’s assets.
“Intellectual Property Right” means any intellectual property right including, without limitation, any right, title, or interest in any patent, trademark, service, mark, trade dress, copyright, or trade secret, together with any and all goodwill relating thereto.
“Invoice” has the meaning attributed to it in Section 3.1.
“Liability” means any liability or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for taxes.
“Notice” has the meaning attributed to it in Section 11.
“ Party” means any party to an Approved Statement of Work.
“Protected Employee” means any person employed by a Party at any time during the term of an applicable Approved Statement of Work or the 12 months immediately preceding any termination of an applicable Approved Statement of Work, whichever is shorter.
“Protected Services” means services that are the same as or substantially similar to the Services provided by a Party at any time during the term of an applicable Approved Statement of Work or the 12 months immediately preceding any termination of an applicable Approved Statement of Work, whichever is shorter.
“Reasonable Efforts” means, with respect to a given obligation, the efforts that a reasonable person in the promisor’s position would use so as to perform that obligation as promptly as possible, except:

aking any action that would, individually or in the aggregate, cause the promisor to incur costs, or suffer any other detriment, out of reasonable proportion to the benefits to the promisor under the General Terms and applicable Service Agreement; changing its business strategy;
taking any action which would violate any applicable law, regulation, or order; or
taking any action that would imperil the promisor’s existence or solvency.

“Services” means the services described in an Approved Statement of Work.
“Statement of Work” means any document that describes products or services to be provided by Funnel Clarity to any other party.
“Terminating Party” has the meaning attributed to it in Section 11.
“Terminated Party” has the meaning attributed to it in Section 11.
“Online Platform” refers to any online link or application which provides access to Funnel Clarity’s intellectual property.

STATEMENTS OF WORK

“Once the Parties have fully agreed to the terms of a Statement of Work, each Party shall sign the Statement of Work, indicating its approval and deliver (by email or otherwise) a copy of the signed Statement of Work to the other Party. A Statement of Work may be signed in counterparts, all of which taken together shall constitute one and the same Approved Statement of Work, once signed by all Parties.
Funnel Clarity shall have no obligation to execute, act on, or meet the commitments defined in any Statement of Work until it becomes an Approved Statement of Work.
Funnel Clarity shall provide the Services to Client in accordance with the terms of these General Terms and the applicable Approved Statement of Work. In case of a conflict between any provision of these General Terms and any provision of an Approved Statement of Work, the provision of these General Terms will apply, unless expressly stated otherwise in the Approved Statement of Work.

INVOICING

Funnel Clarity shall issue invoices to Client as set forth in an Approved Statement of Work (each such invoice, an “Invoice”).
Client shall pay each Invoice in full upon receipt, unless a different payment period is prescribed in the applicable Approved Statement of Work.
Client shall pay all expenses incurred by Funnel Clarity in providing any Services under these General Terms or any Approved Statement of Work including, without limitation, all travel expenses in conformance with the Client’s Travel and Expense Policy. In addition, Funnel Clarity will follow any reasonable pre-approval process that the Client requests before incurring any such costs.
Use of any online platform which Funnel Clarity provides for training and/or for post-training activity requires payment prior to any participant gaining access. Prices to be established in agreement with Client.

CANCELLATION CLAUSE

Cancellation of program deliveries for training and/or scheduled consulting days that are to take place at a location assigned by Client that is outside of Funnel Clarity offices will require a fee equal to 100% of facilitation costs, 50% of total license fees, and/or 50% of daily consulting costs for the number of days Funnel Clarity personnel were scheduled to be on site, whichever is appropriate, whenever notice of cancellation occurs less than 15 business days prior to the first day such services are expected to begin delivery.
Notice of cancellation must be made via email or written notice. Voice mail notices will not be considered as official notice of cancellation.

NON-SOLICITATION

Non-Solicitation of Employees. During the term of any applicable Approved Statement of Work and for 12 months following the termination of such an Approved Statement of Work for any reason, each Party shall not, for itself or any other entity, indirectly or directly, hire, employ, or solicit for hire any Protected Employee to work in a position in which the Protected Employee provides services that are the same as or substantially similar to those that the Protected Employee provided to the other Party within the one year immediately preceding any termination of the Protected Employee’s employment with the other Party.
Liquidated Damages. The Parties hereby recognize and agree that the damages to a Party in the event of a breach of Section 5.1 of these General Terms are likely to be substantial but are influenced by so many varying factors that such damages are not at the time of entering into any applicable Approved Statement of Work readily susceptible to being ascertained, and at the time of any breach also are not likely to be readily ascertainable or determinable. It therefore is agreed that in the event of a breach of Section 5.1 of these General Terms, the non-breaching Party shall be entitled to recover from the breaching Party liquidated damages in the amount equal to 50% of the first year compensation that breaching party has offered to the newly hired employee, and will be subject to paying such liquidated damages for each occurrence of a breach. In the event of multiple breaches of these General Terms, such liquidated damages shall be deemed to be independent and all applicable liquidated damages shall be payable cumulatively. Each Party expressly waives any defense as to the validity of any liquidated damages stated in these General Terms as they may appear on the grounds that such liquidated damages are void as penalties or are not reasonably related to actual damages.

INTELLECTUAL PROPERTY RIGHTS.

Each Party retains all right, title, and interest in technology and all Intellectual Property Rights which each owned as of any Effective Date.
Client shall not make, or attempt to make, any adaptations, modifications, or variations of any material provided by Funnel Clarity.
Client shall not decode, disassemble, decompile, reverse translate, or reverse engineer or attempt to decode, disassemble, decompile, reverse translate, or reverse engineer any software provided by Funnel Clarity.
Client acknowledges that the intellectual property and specifically all expressions, marks, models and materials provided by Funnel Clarity are under copyright and may not therefore be copied, in whole or in part, nor will any derivative works be permitted without express written approval in each case by Funnel Clarity. At no time is the client nor any agent, employee, executive, shareholder, contractor, or any other person permitted to use Funnel Clarity materials for training, advising, demonstrating or teaching any person who has not been licensed by Funnel Clarity. Further, any person who wishes to be trained in whole or in part, using all or any part of this copyrighted material must pay a license fee to Funnel Clarity

PROPRIETARY INFORMATION.

All information disclosed by one Party (the “Disclosing Party”) to another Party (the “Receiving Party”) is deemed to be confidential, restricted, and proprietary to the Disclosing Party (such information, “Proprietary Information”). Notwithstanding the foregoing, Proprietary Information does not include information that:

is published or otherwise in the public domain through no fault of the Receiving Party at the time such information was received by the Receiving Party;
prior to disclosure to the Receiving Party, is properly within the legitimate possession of the Receiving Party;
subsequent to disclosure to the Receiving Party, is lawfully received from a third party having rights in the information without restriction as to the third party’s right to disseminate the information and without notice of any restriction against its further disclosure;
is independently developed by the Receiving Party, by itself or through parties who have not had, either directly or indirectly, access to or knowledge of such Proprietary Information; or
is transmitted to the Receiving Party after the Disclosing Party has received written notice from the Receiving Party that it does not desire to receive further Proprietary Information.

Each Receiving Party shall:

use such Proprietary Information only for the purpose of performing under these General Terms;
not disclose any Proprietary Information to any third-party except as necessary or appropriate to accomplish the intent of, and in accordance with the terms of, these General Terms;
not reproduce any such Proprietary Information in any form except as necessary or appropriate to accomplish the intent of, and in accordance with the terms of, these General Terms;
use at least Reasonable Efforts to avoid disclosure or unauthorized use of such Proprietary Information and, in any event, exercise at least the same care to avoid disclosure or unauthorized use of such Proprietary Information as it exercises to protect its own similar confidential or proprietary information;
retain all such Proprietary Information in a secure place with access limited to only such of the Receiving Party’s employees or agents who need to know such information to accomplish the intent of these General Terms.

Notwithstanding any other provision of these General Terms, a Receiving Party may disclose Proprietary Information as necessary to comply with the order of a court of competent jurisdiction or other similar requirement of a governmental entity, provided that the Receiving Party promptly provides the Disclosing Party with Notice of such order or requirement.
Except as expressly set forth in these General Terms, no other rights or licenses to trademarks, inventions, copyrights, patents, or any other intellectual property rights are implied or granted herein.
All Proprietary Information (including all copies of such information) unless otherwise specified in writing, remains the property of the Disclosing Party, must be used by the Receiving Party only for the purpose for which it was intended, and must be returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon written request of the Disclosing Party, and, in any event, upon expiration or termination of these General Terms. At the written request of the Disclosing Party, the Receiving Party shall furnish a certificate of an officer of the Receiving Party certifying that Proprietary Information not returned to Disclosing Party has been destroyed.

PUBLIC RELATIONS AND ADVERTISING

Each Party shall consult with the other Party before making or authorizing any press release or other public statement relating to these General Terms or any applicable Statement of Work. Any press release or other public statement made or authorized by these General Terms or any applicable Statement of Work must not include any false representation.
Funnel Clarity may identify Client as a client or customer of Funnel Clarity in marketing, publicity, and advertising materials that generally describe the nature of the relationship between the Parties and the services provided by Funnel Clarity.

REPRESENTATIONS AND WARRANTIES

Funnel Clarity warrants that:

it has the power and authority to enter into and perform these General Terms and any applicable Approved Statement of Work; and
the services it provides hereunder will be provided with reasonable skill and care.

Client warrants that:

it has the power and authority to enter into and perform these General Terms and any applicable Approved Statement of Work;
no action, claim, or charge has been filed against Client, and no person has threatened to file any such action, claim, or charge, which may have any material adverse effect on the subject matter of these General Terms or any applicable Approved Statement of Work or on Client’s ability to perform
its obligations under these General Terms or any Approved Statement of Work;
client is not Insolvent and will not be rendered Insolvent by any of the transactions contemplated by these General Terms or any applicable Approved Statement of Work; immediately after giving effect to the consummation of the transactions contemplated by these General Terms and any applicable Approved Statement of Work, (i) Client will be able to pay its Liabilities as they become due in the usual course of its business, (ii) Client will not have unreasonably small capital with which to conduct its business, (iii) Client will have assets (calculated at fair market value) that exceed its Liabilities, and (iv) taking into account all pending litigation and all threatened litigation known to Client, final judgments against Client in actions for money damages are not reasonably anticipated to be rendered at a time when, or in amounts such that, Client will be unable to satisfy any such judgments promptly in accordance with their terms (taking into account the maximum probable amount of such judgments in any such actions and the earliest reasonable time at which such judgments might be rendered) as well as all other obligations of Client. The cash available to Client, after taking into account all other anticipated uses of the cash, will be sufficient to pay all such debts and judgments promptly in accordance with their terms.

Mutual warranty

Client shall defend, indemnify, and hold harmless Funnel Clarity, its officers, directors, employees, and agents, from and against any claims, actions or demands, including, without limitation, all reasonable attorney’s fees and costs, made by any third party due to or resulting from: (a) Client’s breach of these General Terms or any Approved Statement of Work to which it is a Party; (b) any breach of a representation or warranty ` made by Client in these General Terms or any Approved Statement of Work to which it is a Party; or (c) Client’s negligence or gross negligence.
Funnel Clarity shall defend, indemnify, and hold harmless Client, its officers, directors, employees, and agents, from and against any claims, actions or demands, including, without limitation, all reasonable attorney’s fees and costs, made by any third party due to or resulting from: (a) Funnel Clarity’s breach of these General Terms or any Approved Statement of Work to which Client is a Party; (b) any breach of a representation or warranty made by Funnel Clarity in these General Terms or any Approved Statement of Work to which Client is a Party; (c) Funnel Clarity’s negligence or gross negligence; or (d) a claim that any of the Services or Client’s receipt or use thereof infringes any patent, trademark, copyright or other intellectual property right of a third party

LIMITATION OF LIABILITY.

EXCEPT WITH REGARD TO ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ONE ANOTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, REMOTE, SPECULATIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION ARISING FROM ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THESE GENERAL TERMS
IN NO EVENT WILL EITHER PARTY’S ENTIRE LIABILITY UNDER THESE GENERAL TERMS AND ANY APPLICABLE APPROVED STATEMENT OF WORK EXCEED THE AMOUNT PAID TO FUNNEL CLARITY BY CLIENT PURSUANT TO THE APPLICABLE APPROVED STATEMENT OF WORK.

TERM; TERMINATION.

Unless otherwise terminated in accordance with the terms of these General Terms or the applicable Approved Statement of Work, each Approved Statement of Work will be effective from its Effective Date for a period of three years unless otherwise specified in the Approved Statement of Work.
The Parties may terminate an Approved Statement of Work as follows:

by the Parties’ mutual written consent;
by Funnel Clarity, immediately upon Notice to Client, if Client fails to pay any amount when due pursuant to these General Terms or the Approved Statement of Work and payment is not made within ten business days of Funnel Clarity notifying Client by Client, immediately upon Notice to Funnel Clarity if Funnel Clarity fails to perform satisfactorily;
by either Party (such Party, the “Terminating Party”), immediately upon Notice to the other Party (such Party, the “Terminated Party”), if:
1. the Terminated Party commits a material breach of these General Terms or the Approved Statement of Work which is not cured within ten Business Days after Notice from the Terminating Party to the Terminated Party of the breach;
2. any receiver, trustee, custodian, or similar official is appointed with respect to the Terminated Party or any of the Terminated Party’s property or assets;
3. the Terminated Party conveys any of its assets to a trustee, mortgagee, or liquidating agent;
4. the Terminated Party assigns any of its assets for the benefit of creditors; or
5. any proceeding is commenced by or against the Terminated Party which arises under any law of any jurisdiction relating to bankruptcy, insolvency, arrangement, or the adjustment of indebtedness

The rights, obligations, representations and warranties contained in the following sections of these Terms & Conditions will survive any termination or expiration of these General Terms or any applicable Statement of Work: 2.1 through 2.3; 4.1 and 4.2; 6.1 through 6.4; 7.1 through 7.5; 9.1 and 9.2; 10.2 and Sections 16 through 19
Each Party acknowledges and represents that these General Terms are executed without reliance upon any agreement, promise, statement or representation by or on behalf of any Party except as set forth in these General Terms or any applicable Approved Statement of Work, and each Party acknowledges that no other Party nor any agent or attorney of such Party has made any promises, representations or warranties whatsoever, whether expressed or implied, which are not contained in these General Terms or the General Terms, concerning the matters set forth in these General Terms and any applicable Approved Statement of Work. Each Party represents that the execution and delivery of these General Terms constitutes a legal, valid and binding obligation of such Party.
Each notice, demand, request, request for approval, consent, approval, disapproval, designation or other communication required or desired to be given or made under the General Terms or any Statement of Work (each, a “Notice”) must be in writing and will be effective and deemed to have been received:
1. when delivered in person;
2. when sent by fax or Email, with receipt acknowledged;
3. five (5) days after having been mailed by certified or registered United States mail, postage prepaid, return receipt requested; or
4. the next business day after having been sent by a nationally recognized overnight mail or courier service, receipt requested.

TIME IS OF THE ESSENCE

Time is of the essence in each Party’s performance of all obligations under these General Terms and any Approved Statement of Work.

GOVERNING LAW

These General Terms and all Approved Statements of Work are governed and must be construed by the laws of the State of New York, without regard to its conflict of law’s provisions.

CHOICE OF FORUM

Any Party commencing against the other Party any legal proceeding (including, without limitation, any tort claim) arising out of, relating to, or concerning these General Terms or any Approved Statement of Work shall bring that proceeding in the state or federal courts sitting in the Commonwealth of New York. Each Party hereby submits to the exclusive jurisdiction of those courts for the purposes of any such proceeding and waives any claim that any legal proceeding has been brought in an inconvenient forum or that the venue of that proceeding is improper.

ATTORNEY’S FEES AND COSTS

Should any Party breach these General Terms or any Approved Statement of Work (including, without limitation, the obligations set forth in Section 9.1 and 9.2 of these General Terms) or any warranty contained therein, the non-breaching Party shall be entitled to an award of its costs and reasonable attorneys’ fees expended in any action to seek injunctive or other relief from a court of competent jurisdiction based upon the terms of these General Terms or any Approved Statement of Work (including, without limitation, the obligations set forth in Section 9.1 and 9.2 of these General Terms) in any case in which it is the substantially prevailing party.

SEVERABILITY

If any provision of these General Terms or any Approved Statement of Work is invalidated by a court of competent jurisdiction, then all of the remaining provisions of these General Terms or the Approved Statement of Work will continue unabated and in full force and effect.

EXECUTION IN COUNTERPARTS; FACSIMILE OR EMAIL SIGNATURE

Each Approved Statement of Work may be executed in counterparts, all of which taken together shall constitute one and the same Approved Statement of Work. Each Approved Statement of Work may be executed by facsimile or email signature and any such facsimile or email signature shall be deemed an original.

NO THIRD-PARTY BENEFICIARIES.

These General Terms and the Approved Statements of Work are not intended to confer upon any person other than the Parties any rights or remedies whatsoever.

NO WAIVER; CUMULATIVE REMEDIES

No delay on the part of either Party or failure by that Party to exercise any power, right or remedy under these General Terms or any Approved Statement of Work shall operate as a waiver thereof, nor shall any single or partial exercise of any power, right or remedy or any abandonment or discontinuance of steps to enforce such right, power, or remedy preclude other or further exercises thereof, or the exercise of any other power, right or remedy. The rights and remedies in these General Terms and the applicable Approved Statements of Work are cumulative and not exclusive of any rights or remedies (including, without limitation, the right of specific performance) which either Party would otherwise have.

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Terms and Conditions

Effective January 1, 2020