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ADVISA Services Agreement
This Services Agreement (the “Agreement”) entered into by ADVISA, Inc., an Indiana corporation (“ADVISA”), and the party signing this Agreement in order to engage ADVISA to provide the Services, as defined herein (the “Client”). This Agreement shall be effective as of the date on which Client enters into this Agreement (the “Effective Date”), either by clicking a box indicating acceptance of this Agreement after having had an opportunity to read and review the same, signing the signature page attached hereto, or by executing and submitting to ADVISA an order form for Services (an “Order Form”).
ADVISA is a Certified Partner of the Predictive Index® talent optimization software. As such, ADVISA provides a variety of Predictive Index workshops as well as other tools, programs, and services to help its clients build effective teams, leaders and cultures (the “Services”). By entering into this Agreement, Client represents and warrants to ADVISA that it is accepting the terms and conditions set forth herein and agrees that the Services will be performed in accordance with the following terms and conditions.
TERMS AND CONDITIONS
- ADVISA’s Services:
1.1 Services. In consideration of the Services and Client’s payment for and engagement with the Predictive Index® talent optimization software, Client retains ADVISA to provide, and ADVISA agrees to provide, the Services to the Client in accordance with each Order Form executed by and between ADVISA and Client, which each such Order Form constitutes a part of this Agreement and is incorporated herein. ADVISA shall be responsible for delivering and performing only the Services specifically identified in the Order Form. Any modification to the Services listed in the Order Form shall be made pursuant to the Change Order (as defined herein) process described in Section 1.3 of this Agreement.
1.2 Non-Exclusivity. The Services being provided by ADVISA are on a non-exclusive basis, and Client understands that ADVISA will provide the Services to additional ADVISA clients.
1.3 Change Orders. In the event Client or ADVISA desires to make any modifications to the Services set forth in any Order Form, ADVISA shall present a change order to Client for its approval and signature (“Change Order”). Any Change Order executed by the parties shall be a part of this Agreement and shall be incorporated herein.
- Client’s Responsibilities:
2.1 Obligations. Client shall perform all tasks assigned to Client as provided in this Agreement, and in Order Form and Change Order, including, but not limited to, the following (the “Client Obligations”):
- designate on the Order Form one (1) point of contact who shall be responsible for all correspondence between ADVISA and Client; and
- provide qualified and knowledgeable personnel capable of: (i) performing the duties required by Client under this Agreement; (ii) making timely decisions necessary to complete the Services; (iii) participating, as necessary, in the receipt of Services; and (iv) assisting, as reasonably requested by ADVISA, in rendering the Services.
2.2 Indemnity. Client shall defend, indemnify and hold harmless ADVISA from and against any Losses (as defined in Section 7.1 of this Agreement), including reasonable attorneys’ fees, arising out of or resulting from Client’s failure to satisfy any Client Obligation set forth in this Section 2.
- Fees & Payment:
3.1 Fees. There are no fees for entering into this agreement unless specific services and fees have been stated in the Order Form, in which such case, Client agrees to pay ADVISA for Services at the rate or rates set forth in the latest Order Form or Change Order entered into by Client and ADVISA (the “Fees”). If Client fails to pay any Fees when due, and such failure continues for thirty (30) days from the date on which such past due amount was originally due to ADVISA, ADVISA has the right, but not the obligation, to suspend performance of the Services, without incurring any obligation or liability to Client arising out of such suspension, until all past due amounts, including all interest accrued thereon, have been paid.
- 3.2 Taxes. Client shall pay, reimburse, and/or hold ADVISA harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, except for income taxes, which are levied or imposed by reason of the performance of the Services under this Agreement.
- Intellectual Property Rights: Who Owns What?
4.1 Intellectual Property. The parties acknowledge and agree that in the performance of services or work under this Agreement, ADVISA may use preexisting proprietary computer software, methodology, techniques, tools, algorithms, materials, products, ideas, skills, designs, know-how, works of authorship or other intellectual property owned by ADVISA, its licensors, or its third-party product providers (all of the foregoing being “ADVISA IP”). Client agrees that any and all ownership rights, intellectual property rights, and other proprietary rights to the ADVISA IP are the sole and exclusive property of ADVISA, or its licensor or third-party product providers (as applicable), free from any claim or retention of rights thereto on the part of Client except as set forth in this Agreement.
- Term and Termination: How Long We Get to Work Together.
5.1 Term. This Agreement shall be effective as of the Effective Date for a period of one year (the “Term”). Thereafter, this Agreement shall automatically renew for successive one year terms until terminated as provided in this Agreement (each such term being a “Renewal Term”). Client may notify ADVISA of its intention not to enter into the next Renewal Term by providing ADVISA with written notice of their intentions sixty (60) days prior to the expiration of the then-current Term or Renewal Term, as applicable. Without limiting any right or remedies under this Agreement or at law, either party may terminate this Agreement (i) immediately if the other party becomes insolvent or becomes the subject of a bankruptcy petition, or a receiver or trustee is appointed for the majority of its assets; or (ii) the other party breaches this Agreement and, following fifteen (15) days’ written notice, fails to cure such breach.
5.2 Effect of Termination. Client shall pay ADVISA for all Services rendered and work performed as part of each effective Order Form through the earlier of (a) the end of the Term or (b) through the effective date of termination. Within fifteen (15) days of the effective date of termination, ADVISA shall provide Client with an invoice for any accrued Fees, and Client shall pay such invoice within thirty (30) days of the date of such invoice.
- Representations and Warranties.
6.1 Client’s Representations. Client represents and warrants that:
- this Agreement has been duly and validly executed by Client and constitutes Client’s legal, valid, and binding obligation, enforceable against Client in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and principles relating to or affecting creditors’ rights generally or the effect of general principles of equity;
- the execution, delivery, and performance by Client of this Agreement and the consummation by Client of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provisions of law, rule, or regulation to which Client is subject, (ii) any order, judgment, or decree applicable to Client or binding upon Client’s assets or properties, (iii) any provision of Client’s bylaws, certificate of incorporation, articles of organization, operating agreement, or other such similar document, or (iv) any agreement or other instrument applicable to Client or binding upon Client’s assets or properties;
- Client will comply with all laws and regulations that are applicable to the business that Client transacts; and
- if ADVISA’s Services include consulting services, of any kind or nature, ADVISA shall have no liability for Client’s actions, regardless of whether such actions taken by Client were taken at the behest of such consulting services, if any.
6.2 Indemnity. Client shall defend, indemnify and hold harmless ADVISA from and against any claim, liability, damages, judgments and expenses, including reasonable attorneys’ fees, arising out of or resulting from any breach by Client of any representations or warranties set forth in Section 6.1.
7.1 Client Indemnification. Client shall indemnify, defend, and hold harmless ADVISA and its officers, directors, employees, agents, subcontractors, successors, and assigns (each, an “ADVISA Indemnitee”) from and against any and all losses, damages, liabilities, claims, actions, judgements, settlements, interest awards, penalties, fines, or expenses of any kind or nature (collectively, the “Losses”), incurred by any ADVISA Indemnitee in connection with any claim, action, cause of action, lawsuit, demand, arbitration, proceeding, litigation, or investigation of any kind or nature (an “Action”), by any third party, to the extent that such Losses are the direct or indirect result of any Action connected, in any way, to the Services being provided hereunder by ADVISA. This Section 7 shall in no way limit ADVISA’s rights to indemnification as set forth in Section 2.2 and Section 6.2 of this Agreement.
7.2 Indemnification Procedure. Client shall promptly notify ADVISA in writing of any Action for which any ADVISA Indemnitee is entitled to indemnification under this Section 7 of this Agreement, and Client shall cooperate with such ADVISA Indemnitee at Client’s sole cost and expense. Client shall, at Client’s sole cost and expense, take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to ADVISA to handle and defend the same; provided, however, that Client understands and acknowledges it shall not settle any Action on any terms or in any manner that have not been expressly approved in writing by ADVISA. Failure by ADVISA or any such ADVISA Indemnitee to perform any obligations under this Section 7 shall not relieve Client of its obligations under this Section 7.
- Disclaimer of All Warranties.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ADVISA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability.
IN NO EVENT SHALL ADVISA BE LIABLE TO CLIENT OR ANY THIRD PARTY, FOR AN SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE SERVICES, OR FOR ANY CLAIM BY ANY THIRD PARTY. ADVISA’S TOTAL LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY OF ANY CLAIM, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO ADVISA UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO EVENTS GIVING RISE TO THE CLAIM.
- Third Party Disclaimer.
ADVISA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD-PARTIES USED IN THE PROVISION OF SERVICES HEREUNDER.
The parties agree to hold each other’s proprietary or confidential information in strict confidence. The sole purpose of any disclosure of propriety or confidential information is to allow the parties to perform their obligations under this Agreement, and the parties hereto agree not to make any use outside the scope of this Agreement, of any kind or nature, of any proprietary or confidential information and agree not to disclose any proprietary or confidential information to any third party without the other party’s prior written consent. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief and/or other relief as specified in this Agreement or as otherwise available at law or in equity.
12.1 Force Majeure. Except with regard to Client’s payment obligations arising hereunder, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes (all such events being a “Force Majeure Event”). Notwithstanding the foregoing, Client hereby agrees that it shall not claim the novel Coronavirus (also known as “Covid-19”) as a Force Majeure Event. In the event that Client terminates this Agreement in light of complications caused by the novel Coronavirus, Client shall remain liable to ADVISA for any obligations owed to ADVISA under this Agreement unless, in such event, ADVISA waives, in writing, the obligations to which ADVISA is owed; and, in the event that ADVISA waives all such obligations, ADVISA shall also be released of all obligations owed to Client under this Agreement.
12.2 Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Indiana.
12.3 Independent Contractor Status. Client and ADVISA agree that ADVISA shall perform its duties under this Agreement as an independent contractor. Neither party to this Agreement is an agent, representative or employee of the other party, and this Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or impose any liability attributable to such a relationship.
12.4 Notices. Any written notice required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, electronic mail, or other guaranteed delivery to the other party at the address provided herein. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, (b) on the date sent by electronic mail if sent prior to 5:00 p.m. Eastern Time on a standard business day, and on the immediately following business day if sent thereafter, and (c) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
If to ADVISA:
210 N. Rangeline Rd.
Carmel, IN 46032
With a Copy to:
Wormser Legal LLC
6219 Guilford Ave.
Indianapolis, IN 46220
Attn: Barry Wormser
If to Client, to Client’s address listed on the Order Form.
12.5 Entire Agreement; Amendment. This Agreement and all exhibits, schedules, Order Form(s), and Change Order(s) constitute the entire agreement between the parties with regard to the subject matter hereof. This Agreement may be amended only by a written agreement signed by ADVISA and Client.
12.6 Disputes. Client and ADVISA agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. If any negotiation required by this Section 12.6 fails, then at the written request of either party, any controversy, dispute or claim arising out of or relating to this Agreement or any breach hereof shall be finally settled by arbitration by a single arbitrator in Carmel, Indiana pursuant to the Commercial Arbitration Rules then in effect of the American Arbitration Association. The arbitrator shall have no power to alter, amend, revoke or suspend any of the provisions of this Agreement. Except to the extent required by law, no party, arbitrator, representative, counsel or witness shall disclose or confirm to any person not present at the arbitration hearings any information about the hearings, including the names of the parties and arbitrators, the nature and amount of the claims, the financial condition of any party, the expected date of hearing or the award made.
12.7 Severability. In the event that a court or arbitrator finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
12.8 Survival. Sections 4 through and including Section 12 shall survive termination or expiration of this Agreement.
12.9 Counterparts. This Agreement may be executed in one or more counterparts, electronically or otherwise, each of which shall constitute an original but all together of which shall constitute but a single document.