The Way How LLC Client Agreement
This The Way How LLC Client Agreement (“Agreement”), is by and between The Way How LLC, a Texas limited liability company, with an address of 2501 E 11th St #1 Austin, Texas, 78702 (“The Way How”) and the CLIENT, (“Client” and together with The Way How, the “Parties”, and each a “Party”).
WHEREAS, The Way How has the capability and capacity to provide certain commercial and marketing training services; and
WHEREAS, Client desires to retain The Way How to provide said services, and The Way How is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, The Way How and Client agree as follows:
Services
The Way How shall provide to Client training in commercial marketing consulting services (“Services”), Hubspot Consulting and/or Artificial Intelligence Consulting, as mutually agreed upon and set forth in one or more Quotes (each a “Quote”).
Client’s Obligations
- Client warrants that it has the authority to enter into this Agreement.
- Client shall pay all fees as they come due under this Agreement.
Fees and Expenses
In consideration of the provision of the Services by the The Way How and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Unless otherwise provided in the applicable Statement of Work, said fees will be payable within FIVE (5) days of receipt by the Client of an invoice from The Way How. Client shall reimburse The Way How for all reasonable expenses incurred in accordance with the provision of the Services, within FIVE (5) days of receipt by the Client of an invoice from The Way How. The Fees are payable in US dollars by credit card, ACH, or other method accepted by The Way How. Payment to The Way How of such Fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Fees paid by Client are non-refundable, except as provided in this Agreement.
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; provided, that in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, The Way How's income, revenues, gross receipts, personnel, real or personal property, or other assets.
Term, Termination, and Survival
The term of this Agreement commences on the date the Client signs (the “Effective Date”) and continues thereafter until the end of the Services under the Statement of Work, otherwise, the Client may terminate this agreement by providing THIRTY (30) days written notice.
Either Party may terminate this Agreement at any time without cause, and no refunds shall be made for fees except as specifically provided for in this Agreement.
If either Party breaches this Agreement (the "Defaulting Party"), the other Party must provide the Defaulting Party with written Notice of such breach. If the Defaulting Party does not cure such breach within 30 days after receipt of such Notice, the other Party may terminate this Agreement by sending written Notice to the Defaulting Party.
Any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 7 hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or the Receiving Party's Group.
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 this Agreement or prepared by or on behalf of the The Way How in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the "Deliverables") except for any Confidential Information of Client or Client’s materials shall be owned by The Way How. The Way How hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
Confidentiality
From time to time during the Term of this Agreement, 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, whether designated as “confidential” or not ("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 Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential 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 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 use to 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 this Agreement; 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 Agreement.
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 Section 7, “Receiving Party's Group” shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
The rights and obligations of the Parties set forth in this Section 7, Section 6, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement, and with respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 7 hereof will survive such termination or expiration of this Agreement until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of the Receiving Party or the Receiving Party's Group.
Generality of Training
Client acknowledges that any business strategies, marketing tactics, business approaches, details, materials, supplies, procedures or methods of operation furnished or explained to Client in or through any Services provided under this Agreement, are merely general suggestions, guides or examples for Client’s consideration and do not constitute any plans, advice or recommendations tailored or customized for any specific purposes, needs or circumstances of Client. Client shall use Client’s own business judgment to structure and operate each of its businesses in any manner determined by Client.
Outcomes Not Guaranteed
The level of profit, revenue or income that may be generated by Client in its business ventures will greatly depend on factors beyond The Way How's influence or control, including, but not limited, to Client’s sales ability, aggressiveness, dedication and time devoted. Therefore, The Way How makes no guarantees, representations or warranties of any kind regarding return on investment, revenue, income, profitability or success of Client or any of Client’s ventures.
Waiver of Warranties
THE WAY HOW DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT: (A) THE SERVICES OF THE WAY HOW UNDER THIS AGREEMENT WILL BE PERFORMED ERROR-FREE; (B) THE INFORMATION AND MATERIALS PROVIDED BY THE WAY HOW WILL BE FREE FROM ERRORS AND OMISSIONS; OR (C) THE WAY HOW’S SERVICES UNDER THIS AGREEMENT WILL RESULT IN ANY PARTICULAR OUTCOME FOR CLIENT. THE WAY HOW’S SERVICES ARE BEING RENDERED TO CLIENT ON AN “AS IS” BASIS. TO THE EXTENT PERMITTED BY LAW, THE WAY HOW MAKES NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, OR WARRANTIES FOR MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE
THE WAY HOW ASSUMES NO RESPONSIBILITY FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR, ANY CONSEQUENCES RESULTING FROM THE DISTRIBUTION OR USE OF SERVICES UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL THE WAY HOW BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES. THE WAY HOW MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (B) WARRANTY OF TITLE; (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR ANY OTHER WARRANTY WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CLIENT TAKES FULL RESPONSIBILITY FOR ANY HARM OR DAMAGE CLIENT SUFFERS AS A RESULT OF THE USE OR NON-USE OF THE SERVICES PROVIDED.
IN NO EVENT SHALL THE WAY HOW 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 THE WAY HOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
No Special Damages
NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSSES OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER, REGARDLESS OF WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN; PROVIDED, HOWEVER, THAT THIS SECTION WILL NOT APPLY TO ANY LIABILITY INCURRED BY THE WAY HOW ARISING FROM THIRD PARTY CLAIMS IN CONNECTION WITH AN ACT OR OMISSION OF CLIENT, ITS EMPLOYEES OR AGENTS
Limitation of Damages
IN NO EVENT WILL CLIENT’S CUMULATIVE LIABILITY TO THE WAY HOW FOR ALL LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES SUFFERED BY CLIENT ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AMOUNTS PAID BY CLIENT TO THE WAY HOW PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
No Liability for Claims Against Third Parties
IN THE EVENT THAT CLIENT HAS ANY CLAIM AGAINST, GRIEVANCE WITH, DISPUTE WITH OR CAUSE OF ACTION AGAINST ANY THIRD PARTY RELATED TO THE PURPOSE OF THIS AGREEMENT OR ANY ACTIVITIES PERFORMED IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT, LIMITATION, VENDORS AND CONTRACTORS HIRED, LISTED BY, REFERRED OR USED BY THE WAY HOW AS WELL AS LENDERS INTRODUCED BY THE WAY HOW), THE SOLE RECOURSE OF CLIENT SHALL BE LEGAL ACTION DIRECTLY AND SOLELY AGAINST SUCH THIRD PARTY, NOT LEGAL ACTION AGAINST THE WAY HOW. IN NO EVENT SHALL THE WAY HOW OR ITS AFFILIATES, EMPLOYEES, AGENTS, DIRECTORS OR EQUITY HOLDERS BE LIABLE TO CLIENT FOR ANY LIABILITIES, LOSSES, DAMAGES, COSTS, EXPENSES OR LOST OPPORTUNITIES SUFFERED BY CLIENT ARISING OUT OF OR RELATING TO ANY CLAIM, LEGAL ACTION, ACT, ERROR OR OMISSION OF ANY SUCH THIRD PARTY.
Indemnification
Client will defend, indemnify, and hold harmless, The Way How, and its officers, directors, managers, shareholders, members, partners, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all liabilities, losses, damages, deficiencies, claims, actions, judgments, settlements, interests, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney’s fees, which might be incurred by Indemnified Party (collectively, “Losses”) arising directly or indirectly from or in connection with Client’s participation in the Services, the Services provided by The Way How to Client, or use of The Way How’s Services by Client. If any action or proceeding is brought against The Way How by reason of any of the foregoing matters, Indemnified Party will notify Client and Client must defend such action or proceeding at Client’s expense by counsel reasonably satisfactory to The Way How; and The Way How shall cooperate with Client’s counsel and such defense.
Relationship of Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
Assignment
Client shall not assign any rights or delegate any obligations under this Agreement without the prior written consent of The Way How. Any attempted assignment in violation of this Agreement will be void. Without the consent of Client, The Way How may assign all or any part of its rights or obligations under this Agreement to any subsidiary, affiliate, successor in interest, or third party through merger, acquisition, contractual assignment or otherwise. This Agreement will be binding upon the heirs, successors, legal representatives and permitted successors and assigns of the Parties.
Severability
If any term or provision of this Agreement 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 this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Force Majeure
No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Member to make payments to The Way How 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, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS EPIDEMICS, 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 this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within ten (10) 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 fifteen (15) consecutive days following written notice given by it under this Section 22, the other Party may thereafter terminate this Agreement upon five (5) days' written notice.
Headings
The Section headings in this Agreement are for the convenience of the Parties, and in no way define, limit, or describe the scope or intent of this Agreement and are to be given no legal effect.
Notice
Unless otherwise agreed in writing by The Way How and Client, all notices (each, a “Notice”) under this Agreement shall be in writing and may be given by personal delivery, nationally recognized courier service, mail, e-mail or facsimile to the addresses provided in the signature block below. Notices shall be deemed to have been received upon the earlier of the following: (a) actual receipt; (b) delivery, if delivered personally or by a national recognized courier service; or (c) non-automated email reply to a notice sent via email. The Way How may use such mediums for any and all notices related to this Agreement.
Governing Law, Jurisdiction & Venue
This Agreement, and all related documents, including the attached Statement of Work, and all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statue, are governed by and construed in accordance with the laws of the State of Texas, excluding its conflict-of-law rules. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in any United States federal court or state court located in the state of Texas in the City of Austin and County of Travis, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
Counterparts & Copies
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic or digital transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Entire Agreement
This Agreement, including and together with any related exhibits, Statement(s) of Work, addendums, schedules, attachments, and appendices, constitutes the sole and entire agreement between the Parties related to the subject matter contained herein and supersedes all prior and contemporaneous understandings, negotiations, agreements, representations and warranties, both written and oral, regarding such subject matter.
Amendment
Neither of the Parties may alter, amend, nor modify this Agreement except by an instrument in writing signed by both Parties and by their duly authorized representatives.
No Waiver
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement 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.
Acknowledgement of Electronic Signature
The parties hereby agree that this Agreement may be executed with electronic signatures and shall be valid and binding on the parties when the CLIENT accepts and signs a services quote
Compensation and Affiliate Disclosure
In the performance of Services, The Way How may make recommendations regarding certain outside resources (“Resources”) from companies (“Companies”) that will cost Client additional money to use the Resources. The Way How has a revenue relationship with these Companies, better known as an affiliate relationship. By using any of the Resources and making a purchase, The Way How may be compensated for the sale (within the Company’s guidelines). The Way How only recommends Resources from Companies that The Way How or its affiliates, members, directors, employees, or contractors have found beneficial. The Way How does not receive compensation in the form of free promotional products for the mention of any Resource. The Way How will make an effort to present Client with an accurate portrayal of the potential of the Resources, but The Way How expressly disclaims any and all warranties associated with the Resources.