TERMS AND CONDITIONS
Updated April 20, 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”) are deemed effective, upon the Advisor emailing a copy of the executed 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 may 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 “Services”). 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. In connection with the Services or on a stand-alone basis, Advisor may also provide certain advisory and training materials, documentation, and content, whether printed or available on the Advisor Platform (as defined below) or the Learning Center (as defined below), in written, audio or video-format (“Advisor Materials”).
2. ADVISOR PLATFORM AND THE LEARNING CENTER – Subject to the terms and conditions of this Agreement, if the Advisor has subscribed to access to Advisor’s proprietary online platform (“Advisor Platform”), and/or to the portion of the Advisor Platform that is Advisor’s proprietary learning management system (the “Learning Center”) pursuant to an Order, Advisor hereby grants to Company during the Term (as defined in the Order), a non-exclusive, non-sublicensable right to access the Advisor Platform and/or the Learning Center, as applicable, in order to access the Services and/or Advisor Materials to which Company has subscribed pursuant to the Order, for Company’s internal business purposes in accordance with the terms and conditions of this Agreement. Advisor reserves all rights in and to the Advisor Platform and the Learning Center not expressly granted to Company under this Agreement and the applicable Order.
A. Restrictions – Company shall not (a) reproduce, display, download, modify, create derivative works of or distribute the Advisor Platform or the Learning Center, or attempt to reverse engineer, decompile, disassemble or access the source code for the Advisor Platform or the Learning Center or any component thereof or (b) permit any party, other than the then-currently authorized Users (as defined below) to independently access the Advisor Platform or the Learning Center.
3. TERM OF THE AGREEMENT – The term of the Agreement shall be set forth in the applicable Order (“Term”), and varies for flat fee projects, monthly advising subscription services, content licenses and Learning Center subscriptions. General terms related to the foregoing are set forth below. Notwithstanding anything herein to the contrary, the Advisor may cancel this Agreement or suspend Services or access to the Advisor Platform, the Learning Center or the Advisor Materials at any time with five (5) days’ prior written notice if the Company fails to make any payment, or portion thereof, on time or breaches Section 6 of this Agreement. 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 Company’s account online at https://my.cultivateadvisors.com/my-account/subscriptions. If choosing to terminate prior to expiration of the Term, Company is required to pay Cultivate Advisors fifty percent (50%) of remaining monies that would have been owed for the duration of the Term had such Order not been terminated.
A. Flat Fee Projects: Services of Advisor for the Term as set forth in the applicable Order.
B. Monthly Advising Subscription Services: Services of Advisor as set forth in the applicable Order; full access to Advisor Platform; access to the Learning Center for one User; a minimum term of six (6) months; auto-renews upon expiration unless either Party sends the other Party a notice of non-renewal thirty (30) days prior to expiration.
C. Content License: access to certain Advisor Materials (as set forth in the applicable Order) through links or documents that may be embedded into Company’s internal platforms for the Term of the license; a minimum term of twelve (12) months.
D. Learning Center Subscription: access to the Learning Center only for the number of Users set forth in the applicable Order; a minimum term of twelve (12) months; auto-renews upon expiration unless either Party sends the other Party a notice of non-renewal thirty (30) days prior to expiration.
4. PAYMENT – In consideration for the Services and/or access to the Advisor Platform, the Learning Center, and Advisor Materials, as applicable, during the Term, Advisor will bill Company the fees 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.
5. 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 the Services is dependent on the Company’s compliance with Advisor’s reasonable requests for information, cooperation, and support.
6. SESSION LOCATION & SCHEDULING – All Services by Advisor under this Agreement will be performed at Advisor’s offices or by video conferencing through the Advisor Platform accessible through Company’s account. 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 Company.
7. ADVISOR MATERIALS – All intellectual property rights in and to the Advisor Materials are owned by Advisor, regardless of whether they are written, adapted or customized for a particular Company. If Company subscribes to a license to the Advisor Materials pursuant to the Order, Company is granted a non-exclusive, non-transferable, revocable license to use the Advisor Materials solely for internal business purposes, and only for those Users and/or others who are licensed to use the relevant Advisor Materials in accordance with Company’s subscription. Advisor reserves all rights in and to the Advisor Materials not expressly granted to Company under this Agreement.
A. Restrictions – Company acknowledges that it is a violation of this Agreement to copy or distribute Advisor Materials or passwords to Company’s account to and among persons not licensed to receive the foregoing pursuant to Company’s subscription. Advisor Materials may only be uploaded, downloaded, posted, displayed, shared or linked to as permitted by Company’s subscription. Company shall not, and shall not permit any third party to (i) copy, reproduce, modify, adapt, translate or otherwise create derivative works of the Advisor Material; (ii) record on video or audio tape, or relay by any device or other means, the Advisor Materials, (iii) attempt to reverse engineer, decompile, disassemble or access the source code for the Advisor Materials or any component thereof, (iv) rent, lease, sell, assign or otherwise transfer right in or to the Advisor Materials, or (v) remove any copyright or other notice of Advisors placed on the Advisor Materials.
8. USER CONTENT. Depending on Company’s subscription, the Advisor Platform and Learning Center may enable Company to share its own content, resources and branding (“Company Content”) with Advisor, Company’s employees, or other users. Company retains all intellectual property rights in, and is responsible for, all Company Content. Company agrees to comply with Advisor’s Acceptable Use Policy at https://my.cultivateadvisors.com/acceptable-use/ (the “AUP”), which is expressly incorporated into these Terms and Conditions. To the extent Company provides Company Content, Company grants to Advisor royalty-free, perpetual, sublicensable, transferable, non-exclusive, worldwide license to copy, distribute, modify, create derivative works of, publicly perform, publicly display, and otherwise use the Company Content in connection with this Agreement. Company 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 Advisor’s usage of the Company Content in connection with this Agreement. Advisor does not guarantee the storage or availability of the Company Content on the Advisor Platform and Learning Center. Advisor reserves the right to remove or modify Company Content for any reason, including Company Content that Advisor believes violates this Agreement or the AUP.
9. 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.
10. NO HIRING OF ADVISORS – TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY 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, ACTUAL DAMAGES MAYBE BE DIFFICULT TO PROVE, AMD THE PARTIES AGREE THAT THE COMPANY SHALL PAY TO ADVISOR, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, $100,000.00 PER EMPLOYEE SO HIRED, IN CANADIAN CURRENCY IF THE EMPLOYEE SO HIRED IS LOCATED IN CANADA AND IN UNITED STATES CURRENCY IF THE EMPLOYEE SO HIRED IS LOCATED IN THE UNITED STATES OR ANY OTHER COUNTRY, WHICH AMOUNT THE PARTIES AGREE IS A GENUINE AND REASONABLE PRE-ESTIMATE OF THE DAMAGES ADVISOR WILL SUFFER AND IS NOT A PENALTY UNDER THE CIRCUMSTANCES. IN THE EVENT THAT COMPANY HAS MADE ADVISOR’S SERVICES AVAILABLE TO ANY THIRD PARTY, SUCH THIRD PARTY SHALL BE DEEMED TO BE COMPANY 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 COMPANY.
11. 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”). Confidential Information of Advisor includes the Advisor Materials. 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.
12. 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.
13. 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 the Services or access to the Advisor Platform, the Learning Center or Advisor Materials, or the provision of any other 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.
14. 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, 4, 7, 8, and 10-15 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.