TERMS AND CONDITIONS
Updated Jan 7, 2020
These Cultivate Advisors Terms and Conditions (“Terms & Conditions”) are between the Advisor (defined below) and the person/company/entity (“Company”) placing an order (“Order”) for business advising services from the Advisor. The Advisor and Company are collectively referred to herein as the “Parties”, and individually as a “Party”. These Terms & Conditions combined with the Order (collectively the “Agreement”) constitute an offer from the Advisor to the Company for business advising services. The offer is deemed accepted, and the Agreement deemed effective, upon the Advisor emailing a copy of the Order and Terms & Conditions to the Company (the “Effective Date”).
The “Advisor” is:
A. If the Company’s head office is in the United States of America or any other country other than Canada, HFI Consulting LLC (“CA”), an Illinois LLC d/b/a Cultivate Advisors; or
B. If the Company’s head office is in Canada, Cultivate Advisors Ltd. (“CAL”), a British Columbia, Canada, company d/b/a Cultivate Advisors.
1. SCOPE OF SERVICES – Advisor will provide business advising services such as business skill training, coaching and advising for the purpose of helping the Company grow their business as described in the Order. The Parties recognize that although the Company may have contracted with Advisor for a specific business goal (such as doubling sales, reducing overhead by 10% or increasing productivity of 50%) the Advisor does not guarantee the achievement of any particular business goal.
2. TERM OF THE AGREEMENT – The Term (defined below) will reflect either a flat fee or a monthly subscription model. Notwithstanding anything here to the contrary, the Advisor may cancel this Agreement or suspend services provided hereunder at any time with five (5) days’ prior written notice if the Company fails to make any payment, or portion thereof, on time. Further notwithstanding anything here to the contrary, either Party may terminate this Agreement upon the material breach of this Agreement by the other Party with thirty (30) days prior written notice to the other Party. All Termination notices sent hereunder by Company must be submitted via a termination request found in your account online at https://my.cultivateadvisors.com/my-account/subscriptions. If choosing to terminate prior to Original Term, Company is required to pay Cultivate Advisors fifty percent (50%) of remaining monies owed.
A. Term of a Flat Fee – The term of this Agreement (“Term”, and the first Term of this Agreement is the “Original Term”) for a flat fee Order will be six (6) months or the time it takes for the Advisor to complete its services as described in the Order, whichever comes first.
B. Term of a Monthly Subscription – The term of this Agreement for a monthly subscription Order will be for six (6) months (“Original Term”) unless otherwise reflected by the Order, commencing on the Effective Date. Upon expiration of the Original Term for a monthly subscription Order, this Agreement will automatically extend for period(s) of one month unless either Party sends to the other Party a termination notice thirty (30) days’ prior to cancellation of the Agreement.
3. PAYMENT – In consideration for the above-referenced services, during the Term Advisor will bill Company by invoice as outlined in the Order, as amended from time to time. All invoices are due within 15 days of being rendered. Payments for all invoices, including expenses provided for herein, will be automatically charged to the credit card of Company on file with Advisor. Advisor will email to Company a receipt for all fees and expenses charged to Company’s credit card under this Agreement on a monthly basis. Expenses which have been approved by Company which are not prepaid or billed in advance will be billed by Advisor one month in arrears.
A. Late Payments – All late payments shall accrue interest at fifteen percent (15.00%) interest per annum.
B. Expenses Incurred in Collections – The Company is responsible for and will indemnify Advisor for all costs and expenses of Advisor collecting any amounts owing to it by Company, including all court costs and attorney fees on a full indemnity basis.
C. Billing Disputes – Any dispute by Company of any invoice issued under this Agreement must be provided to Advisor in writing prior to the applicable invoice due date (except for invoices which are payable immediately and invoices payable by payment card with respect to which billing disputes must be received in writing within fifteen (15) days after the invoice date) or shall be deemed waived.
D. Order Amendments – From time to time, the Parties may agree to amending the applicable Order and the billing under this Agreement will be changed to reflect the terms of the amended Order which may, amongst other things, add or decrease the numbers of hours for a monthly subscription service.
4. COOPERATION – Both Parties shall cooperate fully with each other in the performance of their respective obligations under the Agreement including, without limitation, providing all necessary information, executing all documents and performing all actions reasonably required in connection with such performance. To that extent, the Company acknowledges that the ability of Advisor to successfully deliver consulting services is dependent on the Company’s compliance with Advisor’s reasonable requests for information, cooperation, and support.
5. SESSION LOCATION & SCHEDULING – All consulting services by Advisor under this Agreement will be performed at Advisor’s offices or by a video conferencing platform. If the Company requires Advisor to travel, then the Company shall reimburse the Advisor for travel time, expenses and lodging. Travel time will be billed at the hourly rate set forth on the Order or, if there is no hourly rate stated on the Order, then $250 per hour (in United States currency). Scheduled consulting sessions with Advisor must be attended or will be deemed forfeited. Any session forfeited by the Company will be billed as if such session took place, unless the Company provides to Advisor seven (7) days’ prior written notice of the need to reschedule a session. In the event that the Company provides such seven (7) days’ prior written notice then the Parties here will attempt to reschedule the session within the next thirty (30) calendar days. In the event such session cannot be rescheduled then the fees for such session, if any, will not be billed to the Customer.
6. INDEPENDENT CONTRACTOR – This Agreement shall not constitute an employer-employee relationship between Advisor and Company. It is the intention of the Parties that the Advisor shall be at all times an independent contractor of the Company and will not have authority to act as an agent of the Company.
7. NO HIRING OF ADVISORS – TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CUSTOMER AGREES NOT TO HIRE, OR TO CAUSE ANY THIRD PARTY TO HIRE, ANY EMPLOYEE OF THE ADVISOR FOR A PERIOD OF TWO (2) YEARS FROM THE EFFECTIVE DATE. THE PARTIES RECOGNIZE THAT (i) ADVISOR’S REPUTATION DEPENDS ON RETAINING QUALITY, TALENTED EMPLOYEES; (ii) THE LOSS OF ANY EMPLOYEE MAY ADVERSELY AFFECT PROJECTS THE ADVISOR HAS CONTRACTED FOR; AND (III) THE LOSSES TO ADVISOR’S BUSINESS AND REPUTATION WILL BE LARGE. CONSEQUENTLY, THE PARTIES AGREE THAT IF COMPANY BREACHES THIS SECTION BY HIRING AN EMPLOYEE OF ADVISOR THAT THE CUSTOMER SHALL PAY TO ADVISOR $100,000.00 PER EMPLOYEE SO HIRED, WHICH AMOUNT THE PARTIES AGREE IS A GENUINE AND REASONABLE PRE-ESTIMATE OF THE DAMAGES ADVISOR WILL SUFFER. IN THE EVENT THAT CUSTOMER HAS MADE ADVISOR’S SERVICES AVAILABLE TO ANY THIRD PARTY, SUCH THIRD PARTY SHALL BE DEEMED TO BE CUSTOMER FOR PURPOSES OF THIS SECTION AND ANY HIRING OF AN ADVISOR EMPLOYEE BY SUCH THIRD PARTY SHALL BE DEEMED TO BE HIRING OF SUCH EMPLOYEE DIRECTLY BY CUSTOMER.
8. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION – Both Parties acknowledge that it is their policy to maintain as secret and confidential all information heretofore or hereafter acquired, developed or used by each other in relation to their respective businesses (all such information, other than the specific exceptions described below in this paragraph, is hereinafter referred to as “Confidential Information”). The Parties recognize that, by performing the services under this Agreement, one Party may acquire Confidential Information of the other Party. All such Confidential Information is the property of the owning Party and the Parties agree that: (i) they shall never disseminate any Confidential Information obtained during the Term of this Agreement without the written consent of the other Party; (ii) they shall exercise all diligent precautions to protect the integrity of Confidential Information; and (iii) upon termination of this Agreement to return the Confidential Information of the other Party in its possession. The restrictions set forth in this paragraph shall not apply to any part of the Confidential Information which: (i) is, at the time it is received, a part of the public domain or thereafter becomes a part of the public domain through no violation of this Agreement; or (ii) was in the lawful possession of the recipient prior to its disclosure and was not then subject to any obligation of confidence under this Agreement.
9. USE OF COMMERCIAL ELECTRONIC MESSAGES FOR DELIVERY – Company gives consent to Advisor for Company to receive Commercial Electronic Messages (CEMs) such as emails for delivery of services. Additionally, Company gives consent to Advisor for Company to receive CEMs to keep Company apprised of developments and changes in business related matters, such as newsletters and other information or interest, as well as to invite Company to Advisor events. If you wish to withdraw your consent to receive CEMs please unsubscribe from Advisor emails.
10. NO LIABILITY AND INDEMNIFICATION – In the absence of willful misconduct on the part of Advisor, the Advisor (and its officers, directors, employees, stockholders or creditors) shall not be liable to the Company (or to any of its officers, directors, employees, stockholders or creditors) for any act or omission in the course of, or in connection with, the provision of advice, assistance or consulting services under this Agreement. Further, the Company agrees to and shall defend, indemnify and hold the Advisor harmless from and against any and all suits, claims, expenses and liability (including court costs and attorney’s fees on a full indemnity basis) which may result from any activities pursuant to or in connection with this Agreement, including without limitation, as described in the first sentence of this paragraph 10. For the sake of clarification, this indemnification shall include claims for indirect, incidental, consequential, special or punitive damages and lost profits.
11. FURTHER INDEMNIFICATION – The acts and statements made by a Party to any third parties are the sole responsibility of such Party who shall indemnify the other Party therefor under the terms of paragraph 10 with respect to all suits, claims, expenses and liability (including court costs and attorney’s fees on a full indemnity basis) which may result from such acts, statements and representations.
A. Benefit of Agreement – This Agreement shall inure to the benefit of and be binding upon the Parties hereto, and their respective legal representatives, administrators, executors, successors, subsidiaries and affiliates.
B. Insolvency – Either Party may declare this Agreement immediately terminated upon the occurrence of any of the following events: (i) the other Party becomes insolvent, makes an assignment for the benefit of its creditors or has a receiver appointed over it or its assets; (ii) if bankruptcy or insolvency proceedings are commenced against the other Party; or (iv) if the other Party is liquidated, dissolved or ceases operations.
C. Promotional Rights – Advisor may list the Company as one of its clients on its webpage or in any other marketing materials.
D. Governing Law if Advisor is CA – If the Advisor is CA, this Agreement shall be governed by the laws of the State of Illinois, without any application of the principles of conflicts of laws. Any dispute regarding this Agreement shall be resolved in State Circuit Court of Cook County. The prevailing Party to such litigation, as determined by the court, shall be entitled to recoup their attorneys’ fees and court costs from the non-prevailing Party on a full indemnity basis.
E. Governing Law if Advisor is CAL – If the Advisor is CAL, this Agreement shall be governed by the laws of British Columbia, and the laws of Canada applicable therein, without any application of the principles of conflicts of laws. Any dispute regarding this Agreement shall be resolved in the Supreme Court of British Columbia. The prevailing Party to such litigation, as determined by the court, shall be entitled to recoup their attorneys’ fees and court costs from the non-prevailing Party on a full indemnity basis.
F. Assignment – Neither Party may assign this Agreement with the written permission of the other Party.
G. Severability – In the event of the invalidity or unenforceability of any provision of this Agreement, such invalidity shall not affect the validity of the other provisions hereof.
H. Modification – This Agreement can be modified only in writing signed by both Parties hereto.
I. Continuing Effect – Sections 3, 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement for an indefinite period.
J. Entire Agreement – These Terms & Conditions together with the Order, constitute the entire agreement between the Parties and no promises, guarantees or inducements have been made regarding the provision of any services, other than as contained in these Terms & Conditions and the Order.