Standard Terms and Conditions
Published January 13, 2020
Client and Company, as defined in the preceding Client Confirmation Form, agree that the following terms and conditions shall apply to the services ordered by Client on the Client Confirmation Form and thereafter provided by Company.
- Programs and Services - The capitalized terms “Programs” and “Services” mean, respectively, Company’s programs, deliverables, services (including research, drafting, delivery, consulting, and customization work) for which orders are placed by Client and accepted by Company during the Term. Programs may include articles, white papers, participant materials, facilitator materials and other materials (collectively, “Materials”), whether delivered in print or other tangible media or through electronic means. If the box labeled “Check box if Client may request orders via e-mail or telephone” is checked, Client may request orders via phone or email. Company shall email Client an acknowledgment of this order. Upon email confirmation of the order by Client, the order shall be binding and subject to the terms and conditions of the Client Confirmation Form.
- Intellectual Property and License Grant - Client acknowledges and agrees that Company is, and remains, the owner of all intellectual property rights in and to the Programs, Services, and Materials whether or not protected by patents. 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 in this Agreement as “Participants.” Client will pay the applicable Program fee(s) for each Participant (if included in the Client Confirmation Form. Participants are permitted to retain indefinitely for their personal reference the tangible Program materials. Client agrees to use any white Papers, Articles, Program videos, wall charts and other Program materials and facilitation aids only internally during any term specified in the Client Confirmation Form.
- Audit - If Company has a reasonable basis for believing that Client has violated the terms of Section 2 (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 CCF and for 90 days thereafter, to audit Client’s Program use for the purpose of confirming Client’s compliance with the foregoing License Grants.
- Payment - Unless otherwise stated on the CCF, Client agrees to pay all amounts due hereunder within thirty (30) days of the invoice date. 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 all deliveries to Client under this Agreement. For Clients purchasing FlexPass or FlexPass Plus, the fee paid is non-refundable and non-cancellable regardless of any early termination of this CCF; Client will not be entitled to any refund or credit for any services or courses not scheduled or used during the Term. Client shall reimburse Company for all reasonable travel and lodging expenses ("Reimbursable Expenses"). 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.
- Cancellation/Rescheduling - If Client cancels an engagement between thirty (30) and fifteen (15) business days with written notice, Client will pay a fee equal to fifty percent (50%) of the total scheduled engagement price. If Client cancels an engagement with fewer than fifteen (15) days written notice, Client will pay one hundred percent (100%) of the total scheduled engagement price. If no written notice is provided, Client will be liable for all quoted fees and costs of the engagement. In addition, Client will also be obligated to pay any non-cancellable travel expenses and shipping and handling costs for any materials shipped prior to cancellation. If Client reschedules an engagement between thirty (30) and fifteen (15) business days with written notice, Client will pay a reschedule fee of twenty-five percent (25%) of the total scheduled engagement price. If Client reschedules an engagement with fewer than fifteen (15) days written notice, Client will pay a fee of fifty percent (50%) of the total scheduled engagement price. If Client reschedules an engagement with fewer than fifteen (15) days written notice, but reschedules within thirty (30) business days of the original class, Client will pay a fee of twenty-five percent (25%) of the total scheduled engagement price. In addition, Client will also be obligated to pay any non-cancellable travel expenses and shipping and handling costs for any materials shipped prior to cancellation.
- Returns - Client can only return Materials if such Materials are defective.
- Shipping - All orders are shipped F.O.B. shipping point, freight prepaid and added to Client's invoice. Shipments will be made by surface delivery unless otherwise requested by Client agrees that Company is not responsible for delays in shipment time.
- Warranty/Disclaimers - Company warrants that the Programs and Services: (a) when used in accordance with the terms and conditions of this Agreement, 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.
- Compliance with Laws - Each party represents and warrants that it: (a) will comply with all applicable legal and regulatory requirements in connection with this Agreement, which include: (i) information privacy and data protection laws and regulations relating to the protection, disclosure and use of individuals' personal data (such as the General Data Protection Regulation (GDPR) if applicable) and other laws and regulations that mandate the protection of personal data; (ii) anti-bribery, anti-corruption, anti-money laundering laws and regulations; and (iii) international trade sanctions, embargoes, or export bans of the US, EU, UK, UN and any other governmental or supranational body with jurisdiction over this Agreement or either party (“Sanctions”); (b) is not a subject of Sanctions; (c) is not owned or controlled by any person or entity subject to Sanctions; and (d) is not located or organized in, or owned or controlled by persons or entities in a jurisdiction subject to Sanctions (including Cuba, Iran, North Korea, Syria, and the Crimea Region of the Ukraine) (“Sanctioned Jurisdiction”).
- Client further represents and warrants that it will not transfer, provide access, or use the Services or work product (including tools and intellectual property) to or for the benefit of any Specially Designated National and Blocked Person (as designated by the U.S. Department of the Treasury’s Office of Foreign Assets Control), to or in any Sanctioned Jurisdiction, or to any other party if such transfer, access, or use would constitute a violation of Sanctions.
- Any breach of this section is a material breach of this Agreement and grounds for immediate termination by the non-breaching party.
- Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement requires Company, or its parent, affiliates or subsidiaries to do any act or refrain from doing any act which would result in Company, or its parent, affiliates or subsidiaries violating (or becoming subject to any penalty under) any laws to which it is subject.
- Limitation of Liability - TO THE EXTENT ALLOWED BY LAW, COMPANY’S LIABILITY TO CLIENT IN CONNECTION WITH THIS AGREEMENT 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.
- 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 Agreement; 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 Agreement or as required by a court or governmental authority of competent jurisdiction, after first notifying the disclosing party of such disclosure requirement.
- Term and Termination - This Agreement shall commence on the Start Date and end on the End Date (each as recorded on the Client Confirmation Form). This Agreement 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 thirty (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 Agreement.
- Governing Law -
- If the Company is TwentyEighty Strategy Execution, Inc., then this CCF and all matters relating to this CCF will be governed by, and construed in accordance with, the laws of the State of Delaware, excluding its conflicts of law rules.
- If the Company is TwentyEighty Strategy Execution (UK) Limited, then this CCF and all matters relating to this CCF will be governed by, and construed in accordance with, the laws of England and Wales, excluding its conflicts of law rules.
- If the Company is TwentyEighty Strategy Execution GmbH, then this CCF and all matters relating to this CCF will be governed by, and construed in accordance with, the laws of Germany, excluding its conflicts of law rules.
- If the Company is ESI Performance Improvement Private Limited, then this CCF and all matters relating to this CCF shall be governed by, and construed in accordance with, the laws of India, excluding its conflicts of law rules.
- If the Company is TwentyEighty Strategy Execution (UK) LTD. DUBAI BRANCH, then this CCF and all matters relating to this CCF will be governed by, and construed in accordance with, the laws of Dubai, excluding its conflicts of law rules.
- If the Company is TwentyEighty Strategy Execution Sweden (filial), then this CCF and all matters relating to this CCF will be governed by, and construed in accordance with, the laws of Sweden, excluding its conflicts of law rules.
Miscellaneous - The parties are independent contractors. Rights and obligations under this Agreement which by their nature should survive will remain in effect after termination or expiration of this Agreement. 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 Agreement will impair such right or power or be construed to be a waiver thereof. This Agreement 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. Company may, without consent of Client, assign, transfer, delegate or pledge this Agreement 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 Agreement 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 issued by Client at any time, or terms and conditions included in Client’s vendor set up process, which will be without force or effect, even if Company signs the purchase order or acknowledges such terms to be set up as a vendor in Client’s systems and whether such signature or acknowledgement occurs prior to or after the execution of this Agreement. This Agreement may not be modified except by written amendment signed by both parties.