Terms of Service
These Terms of Service (these “Terms”) govern the services to be provided by HFI Consulting LLC, an Illinois LLC d/b/a Performance Platform (“[Company]”) to the customer (“Customer”) identified in a proposal, order, statement of work, or similar document incorporating these Terms by reference (the “Order”). These Terms and the Order are collectively referred to as the “Agreement”. In the event of a conflict between these Terms and the terms of the Order, these Terms will control unless the conflicting term of the Order expressly states otherwise.
[Company] and Customer agree as follows:
- Services. [Company] will perform and provide those services set forth in an Order (“Services”). Services may include: (a) provision of access to [Company]’s proprietary software platform (“Platform”), (b) [Company]’s standard implementation and set-up services for the Platform, (c) technical support and software maintenance for the Platform (“Support Services”), and such other services as may be agreed upon by the parties, in each case, as expressly set forth in an Order.
- Cooperation. Customer shall provide [Company] with such resources, information, materials and assistance as [Company] may reasonably request in connection with [Company]’s performance of its obligations under this Agreement. Customer acknowledges and agrees that [Company]’s ability to successfully provide the Services in a timely manner is contingent upon its receipt from Customer of the information, resources, materials and assistance requested. [Company] shall have no liability for deficiencies in the Services resulting from the acts or omissions of Customer, its agents or employees.
- Platform; Content.
- License. Subject to the terms and conditions of this Agreement and the Order, [Company] grants to Customer and its authorized users (“Users”), during the applicable License Term (defined below), a non-exclusive, non-transferable, non-sublicensable right to: (a) remotely access and use the instance of the Platform configured for Customer (“Customer Platform”), and (b) access and use the content made available by Company through the Customer Platform (“Content”), in each case, solely for Customer’s or its Users own internal business purposes and strictly in accordance with this Agreement, including any limitations in the Order. [Company] will provide Customer with its standard Support Services for the Platform.
- Users. Customer shall be responsible for the acts and omissions of each of its Users. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the Content, and shall notify [Company] promptly of any such unauthorized use. [Company] reserves the right to terminate access to the Platform for any individual that [Company] reasonably determines has accessed or used the Platform or Content in violation of this Agreement.
- Restrictions. Except as expressly permitted in this Agreement or as otherwise authorized by [Company] in writing, Customer will not, and will not permit any User or other third party to (a) modify, adapt, alter, translate, or create derivative works from the Content or the Platform; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Platform or Content to any third party other than authorized Users; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Platform; (d) interfere in any manner with the operation of the Platform; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of [Company] or its licensors displayed in connection with the Platform or Content; or (f) otherwise use the Platform or Content except as expressly allowed under this Agreement.
- Security; Content Restrictions. [Company] cannot and does not guarantee the privacy or security of the Customer Platform or any Content. [Company] takes reasonable measures to prevent the unauthorized disclosure of, use of, or access to the Customer Platform, but does not guarantee that such measures will be effective. Accordingly, Customer is prohibited from collecting through or storing on the Customer Platform any information that is sensitive in nature, such as credit card numbers or financial account information, social security numbers, or protected health information. Customer is solely responsible for the privacy and security of Content on the Customer Platform.
- Fees and Payment.
- Fees. Customer will pay to [Company] the fees set forth in the applicable Order (“Fees”) in accordance with the Order. Unless otherwise set forth in the Order, all Fees payable in advance. Company may increase recurring fees for any Renewal License Term with at least ninety (90) days prior written notice. Customer shall reimburse [Company] for reasonable travel, lodging and meal expenses, and such other costs and expenses [Company] may incur in connection with the performance of Services (“Expenses”). [Company] will provide documentation related to expenses upon request.
- Payment Terms. [Company] may invoice Customer for Fees and/or Expenses pursuant to an Order and, unless otherwise specified in the Order, each invoice is due upon receipt. [Company] may bill Customer’s credit card or directly debit Customer’s bank account using the credit card or ACH information provided by Customer. Customer will provide [Company] with accurate and complete billing information including legal name, address, telephone number, and credit card or ACH billing information. If such information is false or fraudulent, [Company] reserves the right to terminate provision of the Services, in addition to seeking any other legal remedies. [Company] is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by [Company]. Each charge will be considered valid unless disputed in writing within thirty (30) days after the billing date. No adjustments will be made for disputed charges made more than thirty (30) days after the billing date. [Company] reserves the right to suspend the Services, along with Customer’s and Users’ access to the Platform and Content, if any Fees or Expenses are more than thirty (30) days overdue; there shall be no abatement of Fees during such period of suspension. All payments must be made in currency quoted in the Order. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus [Company]’s reasonable costs of collection. All Fee and Expenses due hereunder are exclusive of, and Customer shall pay, all sales, use, ad valorem, and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon [Company]’s net income.
- Term; Termination.
- Term; Termination. The initial term of this Agreement will begin on the date of the initial Order and will continue for so long as any Order remains effective (the “Term”). Each Order for access to the Platform will set forth the initial period the period during which Customer may access and use the Platform (the “Initial License Term”). Unless otherwise provided in the Order, the License Term will automatically renew for additional periods of one (1) year (each a “Renewal License Term”), unless a party provides notice of non-renewal at least sixty (60) days prior to the expiration of the then-current License Term. The Initial License Term and each Renewal License Term are referred to as the “License Term.” Either party may terminate this Agreement and any Order if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.
- Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) any amounts owed to [Company] under this Agreement before such termination or expiration will be immediately due and payable, and (b) all rights granted by [Company] to Customer in or to the Platform and Content will cease, and Customer must immediately discontinue use of the Platform and Content. In addition, upon termination, each party must return to the other party or destroy all copies of the other’s Confidential Information in that party’s possession or control. Sections 2.3, 3, 4.2, 5.2, 6, 7, 8, 9, and 10 together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
- Warranty; Disclaimer.
- Performance. [Company] warrants that the Customer Platform, when used as permitted by [Company], will operate as described in the Order in all material respects. [Company] does not warrant Customer’s use of the Customer Platform will be error-free or uninterrupted. For any breach of this warranty, [Company] will, at its own expense and as its sole obligation and Customer’s sole remedy, use commercially reasonable efforts to correct any reproducible error in the Customer Platform reported to [Company] by Customer in writing during the License Term. Customer and its Users are solely responsible for, at their own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for to connect to and access the Customer Platform.
- Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, [COMPANY] DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PLATFORM, CONTENT, AND SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- Protection. “Confidential Information” means the terms and conditions of this Agreement and all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
- Exceptions. Confidential Information does not include information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Injunctive Relief. Each party acknowledges that a breach or threatened breach of this Section 6 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 6 by the other party or any of its employees or agents.
- Proprietary Rights.
- Platform and Content. The Platform and Content (including any updates or enhancements thereto) and all worldwide intellectual property rights therein, are the exclusive property of [Company] and its licensors. All rights in and to the Platform and Content not expressly granted to Customer in this Agreement are reserved by [Company]. Except as expressly provided herein, [Company] shall retain all right, title, and interest in and to any intellectual property rights developed by, or on behalf of, [Company] in the course of performing its obligations under this Agreement.
- Custom Content. Notwithstanding the foregoing, if an Order provides that [Company] will develop custom content specifically and exclusively for Customer (“Custom Content”), then subject to Customer’s payment of all applicable Fees, [Company] assigns to Customer all of its right, title, and interest in and to such Custom Content and such Customer Content will not be “Content” under this Agreement.
- Customer Materials. In connection with the Services, [Company] may require access to certain content, information, data, brand elements, and other Customer owned or Customer provided materials (“Customer Materials”). Customer represents and warrants that it has the right to provide such Customer Materials to [Company] and to permit [Company] to use such Customer Materials as provided in this Agreement. Customer retains ownership of all Customer Materials. Customer hereby grants to [Company] during the Term, a limited, non-exclusive, license to use the Customer Materials for the purpose of performing the Services under this Agreement.
- Indemnification. Customer is solely responsible for its, and its Users, access to and use of the Platform and Content. Customer will indemnify, defend, and hold [Company], its affiliates, and their respective officers, directors, employees, members, and contractors harmless from and against any claim, action, demand, cost, damages (including costs of settlement), expense (including attorney’s fees), fines, penalties, and other losses suffered by any such [Company] indemnitee that arising from or in any way connected with: (a) Customer’s breach of this Agreement, (b) the Customer Materials, or (c) Customer’s or its Users’ access to or use of the Platform and Content.
- Limitation of Liability. IN NO EVENT WILL [COMPANY] BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. [COMPANY]’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO [COMPANY] HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
- Relationship of Parties. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
- Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without [Company]’s prior written consent, which consent shall not be unreasonably withheld. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void. Except as otherwise expressly provided in this Agreement, this Agreement inures to the benefit of and binds the parties and such parties’ permitted successors, assignees, and other legal representatives.
- Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.
- Notices. All notices, consents, and approvals under this Agreement may be delivered by [Company] to Customer to the email address or location provided by Customer in the Order. All notices, consents, and approvals under this Agreement must be delivered by Customer to [Company] to [email protected]. Either party may change its email address for notice by giving notice of the new email address to the other party.
- Governing Law and Venue. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions. Any action arising in connection with this Agreement shall be resolved exclusively by the State and Federal courts for Chicago, Illinois. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Waivers; Severability. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- Modifications. These Terms may be updated from time to time. Notwithstanding any such update, the terms in place as of the date of an applicable Order shall continue to govern the provision of Services under the applicable Order unless otherwise agreed by the parties in writing.
- Entire Agreement. This Agreement and the applicable Order constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral regarding such subject matter.