(1) TERMS OF USE and (2) CLIENT SERVICE AGREEMENT

 

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS WEBSITE. By using this website, you signify your consent to these terms of use. If you do not agree to these Terms of Use, please do not use the website.

Your access to and use of this website, as well as all related websites operated by [THE LEADING EDGE, INC.] (which includes [www.THELEADINGEDGE.LIFE], among others) (collectively the “Site”) is subject to the following terms and conditions (“Terms of Use”) and all applicable laws. By accessing and browsing the Site, you accept, without limitation or qualification, the Terms of Use and acknowledge that any other agreements between you and the Site are superseded and of no force or effect:

1. You agree that the Site itself, as well as all content, videos, training materials, products, services and/or other materials, made available on the Site by us or other third parties, as well as the look and feel of all of the foregoing, (collectively referred to as the “Content”) are maintained for your personal use and information by [THE LEADING EDGE, INC.], (the “Company”) and are the property of the Company and/or its third party providers. You agree that such Company Content shall include all proprietary videos, HTML/CSS, Javascript, graphics, voice, and sound recordings, artwork, photos, documents, and text as well as all other materials included in the Site, excluding only the materials you provide. Subject to your compliance with these Terms of Use, the Company hereby grants you a limited license, which is non-exclusive, non-transferable, and non-sublicensable, to access, view, and use the Site solely for your personal purposes. No Company Content may be copied, reproduced, republished, uploaded, posted, transmitted, distributed, used for public or commercial purposes, or downloaded in any way unless written permission is expressly granted by the Company. Modification of the Content or use of the Content for any other purpose is a violation of the copyright and other proprietary rights of the Company, as well as other authors who created the materials, and may be subject to monetary damages and penalties. You may not distribute, modify, transmit or use the content of the Site or any Content, including any and all software, tools, graphics and/or sound files, for public or commercial purposes without the express written permission of the Company.

2. All Content, such as text, data, graphics files, videos and sound files, and other materials contained in the Site, are copyrighted unless otherwise noted and are the property of the Company and/or a supplier to the Company. No such materials may be used except as provided in these Terms of Use.

3. All trade names, trademarks, and images and biographical information of people used in the Company Content and contained in the Site, including without limitation the name and trademark “[BRAIN SHIFT]”, are either the property of, or used with permission by, the Company. The use of Content by you is strictly prohibited unless specifically permitted by these Terms of Use. Any unauthorized use of Content may violate the copyright, trademark, and other proprietary rights of the Company and/or third parties, as well as the laws of privacy and publicity, and other regulations and statutes. Nothing contained in this Agreement or in the Site shall be construed as granting, by implication or otherwise, any license or right to use any Trademark or other proprietary information without the express written consent of the Company or third party owner. The Company respects the copyright, trademark and all other intellectual property rights of others. The Company has the right, but has no obligation, to remove content and accounts containing materials that it deems, in its sole discretion, to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Use. If you believe that your intellectual property rights are being violated and/or that any work belonging to you has been reproduced on the Site or in any Content in any way, you may notify Company at [[email protected]]. Please provide your name and contact information, the nature of your work and how it is being violated, all relevant copyright and/or trademark registration information, the location/URL of the violation, and any other information you believe is relevant.

4. While the Company uses reasonable efforts to include accurate and up-to-date information in the Site, the Company makes no warranties or representations as to its accuracy. The Company assumes no liability or responsibility for any errors or omissions in the content of the Site.

5. When you register with the Company and/or this Site, you expressly consent to receive any notices, announcements, agreements, disclosures, reports, documents, communications concerning new products or services, or other records or correspondence from the Company. You consent to receive notices electronically by way of transmitting the notice to you by email.

6. If you send comments or suggestions about the Site to the Company, including, but not limited to, notes, text, drawings, images, designs or computer programs, such submissions shall become, and shall remain, the sole property of the Company. No submission shall be subject to any obligation of confidence on the part of the Company. The Company shall exclusively own all rights to (including intellectual property rights thereto), and shall be entitled to unrestricted use, publication, and dissemination as to all such submissions for any purpose, commercial or otherwise without any acknowledgment or compensation to you.

7. The Company shall use commercially reasonable efforts to restrict unauthorized access to our data and files. However no system whether or not password protected can be entirely impenetrable. You acknowledge that it may be possible for an unauthorized third party to access, view, copy, modify, or distribute the data and files you store using the Site. Use of the Site is completely at your own risk.

8. The Company will not intentionally disclose any personally identifying information about you to third parties, except where the Company, in good faith, believes such disclosure is necessary to comply with the law or enforce these Terms of Use. By using the Site, you signify your acceptance of the Company’s Privacy Policy, [www.theleadingedge.life/pages/privacy-policy]. If you do not agree with this Privacy Policy, in whole or part, please do not use this Site.

9. NEITHER THE COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR MAINTAINING THE SITE AND/OR ANY CONTENT ON THE SITE SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO OR USE OF THE SITE. WITHOUT LIMITING THE FOREGOING, ALL CONTENT ON THE SITE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THE SITE, THE RESULTS OF THE USE OF SUCH MATERIALS, THE SUITABILITY OF SUCH MATERIALS FOR ANY USER’S NEEDS OR THE LIKELIHOOD THAT THEIR USE WILL MEET ANY USER’S EXPECTATIONS, OR THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR CORRECTION. THE COMPANY LIKEWISE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR GUARANTEES THAT YOU WILL EARN ANY MONEY USING THE SITE OR THE COMPANY’S TECHNOLOGY OR SERVICES. YOU ACCEPT ALL RESPONSIBILITY FOR EVALUATING YOUR OWN EARNING POTENTIAL AS WELL AS EXECUTING YOUR OWN BUSINESS AND SERVICES. YOUR EARNING POTENTIAL IS ENTIRELY DEPENDENT ON YOUR OWN PRODUCTS, IDEAS, TECHNIQUES; YOUR EXECUTION OF YOUR BUSINESS PLAN; THE TIME YOU DEVOTE TO THE PROGRAM, IDEAS AND TECHNIQUES OFFERED AND UTILIZED; AS WELL AS YOUR FINANCES, YOUR KNOWLEDGE AND YOUR SKILL. SINCE THESE FACTORS DIFFER AMONG ALL INDIVIDUALS, THE COMPANY CANNOT AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR GUARANTEES REGARDING YOUR SUCCESS OR INCOME LEVEL. THE COMPANY DOES NOT WARRANT THAT USE OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE, THE CONTENT, AND/OR THE MATERIALS AVAILABLE ON THIS SITE ARE FREE FROM BUGS OR VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY FOR THE COST OF ALL NECESSARY REPAIRS OR CORRECTIONS. THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY PERFORMANCE OR SERVICE PROBLEMS CAUSED BY ANY THIRD PARTY WEBSITE OR THIRD PARTY SERVICE PROVIDER. ANY SUCH PROBLEM SHALL BE GOVERNED SOLELY BY THE AGREEMENT BETWEEN YOU AND THAT PROVIDER. Please note that the applicable jurisdiction may not allow the exclusion of implied warranties. Some of the above exclusions may thus not apply to you.

10. THE COMPANY SHALL NOT BE RESPONSIBLE FOR ANY PERFORMANCE OR SERVICE PROBLEMS CAUSED BY ANY THIRD PARTY WEBSITE OR THIRD PARTY SERVICE PROVIDER (including, for example, your web service provider service, Stripe payment services, your software and/or any updates or upgrades to that software). ANY SUCH PROBLEM SHALL BE GOVERNED SOLELY BY THE AGREEMENT BETWEEN YOU AND THAT PROVIDER. THE COMPANY RESERVES THE RIGHT TO DETERMINE, IN ITS SOLE DISCRETION, WHETHER THE COMPANY IS RESPONSIBLE FOR ANY SUCH MALFUNCTION OR DISRUPTION. THE COMPANY ALSO RESERVES THE RIGHT TO LIMIT YOUR USE OF THE SITE AND/OR THE CONTENT OR TO TERMINATE YOUR ACCOUNT SHOULD THE COMPANY DETERMINE THAT YOU HAVE VIOLATED THESE TERMS OF USE, OR THAT YOU HAVE VIOLATED ANY OTHER RULES OR CONDITIONS OF THE COMPANY. THE COMPANY RESERVES THE RIGHT TO REFUSE ACCESS TO THE SITE AND/OR THE COMPANY’S CONTENT, PRODUCTS AND/OR SERVICES TO ANYONE IN ITS SOLE DISCRETION. THE COMPANY RESERVES THE RIGHT TO DETERMINE, IN ITS SOLE DISCRETION, WHETHER THE COMPANY IS RESPONSIBLE FOR ANY SUCH MALFUNCTION OR DISRUPTION. THE COMPANY MAY, IN ITS SOLE DISCRETION, REFUND THE INITIAL FEE CHARGED FOR ANY USE OF THE SITE AND/OR ANY CONTENT OR A PRO-RATA PORTION THEREOF CONSISTENT WITH THE COMPANY’S REFUND POLICY. THE COMPANY SHALL REFUSE ANY REFUND THIRTY (30) DAYS AFTER YOUR PAYMENT FOR USE OF THE SITE AND/OR ANY CONTENT, EITHER PURSUANT TO THE COMPANY’S CUSTOMER LICENSE AGREEMENT OR OTHERWISE, REGARDLESS OF THE REASON FOR DISRUPTION.

11. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA, LOSS OF PROFITS, REVENUE OR GOODWILL, COST OF CAPITAL, COST OF REPLACEMENT SERVICES, OR CLAIMS FOR SERVICE INTERRUPTIONS OR TRANSMISSION PROBLEMS, OCCASIONED BY ANY DEFECT IN THE SITE, THE CONTENT, AND/OR RELATED MATERIALS, THE INABILITY TO USE SERVICES PROVIDED HEREUNDER OR ANY OTHER CAUSE WHATSOEVER WITH RESPECT THERETO, REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF THE COMPANY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

12. You agree to indemnify and hold the Company and each of its directors, officers employees, and agents, harmless from any and all liabilities, claims, damages and expenses, including reasonable attorney’s fees, arising out of or relating to (i) your breach of this Agreement, (ii) any violation by you of law or the rights of any third party, (iii) any materials, information, works and/or other content of whatever nature or media that you post or share on or through the Site, (iv) your use of the Site or any services that the Company may provide via the Site, and (v) your conduct in connection with the Site or the services or with other users of the Site or the services. The Company reserves the right to assume the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide the Company with such cooperation as is reasonably requested by the Company.

13. The provisions of these Terms of Use are for the benefit of the Company, its subsidiaries, affiliates and its third party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.

14. This agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You further submit to the exclusive jurisdiction of the state and federal courts sitting in Orange County, California. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

15. These Terms of Use may be revised from time to time by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the then current Terms of Use to which you are bound.

Last Updated: September, 2024

(2) CLIENT SERVICE AGREEMENT

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​THIS CLIENT SERVICES AGREEMENT (the “Agreement”) is made and entered into as of _, (the “Effective Date”), by and between THE LEADING EDGE, INC, (“TLE”), and ____, (“Client”) (TLE and Client, each a “Party,” and, collectively, the “Parties”).

WHEREAS, TLE is in the business of providing consulting and advisory services respecting; and

​WHEREAS, Client desires to engage TLE to provide certain services as also described in the Offer, provided to the Client as the online website Offer page (“the Offer) and in accordance with the payment terms set forth in the Offer (“Services”).

​NOW, THEREFORE, the Parties agree as follows:

1.         Engagement; Services. Client hereby engages TLE, and TLE accepts such engagement, to provide the Services in accordance with the terms of this Agreement, in reliance on the representations and warranties of Client, and with the understanding and expectation that Client and Client’s business activities do and shall comply in full with all applicable laws. To the extent any terms or provisions of the Offer conflict with the terms and provisions contained in the body of this Agreement, the terms and provisions set forth on the Offer shall govern and control. All Services are provided on a non-exclusive basis, and TLE at all times reserves the right to perform the same or similar services on behalf of others in TLE’s sole discretion.

 

2.         Client Responsibilities. As a material condition to receive and use TLE’s Services, Client expressly agrees on Client’s own behalf, and on behalf of the business(es) Client owns, operates, or otherwise supports, or for which Client works as an employee or contractor, to comply in full with Client’s obligations under this Agreement, including being present at and prepared for all meetings, calls, and classes, and following the instructions and guidance provided by TLE. Client shall, upon TLE’s reasonable request, provide TLE with all data, specifications, documents, information, and other materials pertaining to Client and relevant to the Services (the “Client Materials”).

 

3.         Fees; Payment Terms; Late Payments. As consideration for the Services, Client shall pay TLE the fees set forth in the Offer in accordance with the payment terms set forth in the Offer. The Client understands and agrees that by transacting the payment of the Offer, which requires acknowledgement of the terms of this Agreement, is therefore acknowledgement and agreement to all terms stated in this Agreement. If the Offer includes automated payments scheduled after the time of the initial payment, the Client automatically agrees to such scheduled payments by transacting the first payment.  If such scheduled payments are not collected at the time due, such as but not limited to Client’s credit card being declines, Client agrees to immediately remedy the declined payment within 48 hours of the scheduled payment. Any payments not timely received by TLE in accordance in the Offer will accrue interest at the lesser of five percent (5%) or the maximum rate of interest permitted under applicable law on the outstanding balance, per month, until all such amounts and applicable interest have been paid in full (“Late Payment Charge”). Client will not be assessed a Late Payment Charge on amounts disputed in good faith. Any acceptance by TLE of late or partial payments (even if marked “paid-in-full” or the like) will not be deemed a waiver of TLE’s right to recover unpaid amounts from Client.

 

4.         Cancellation Policy; Refunds. Client the right to cancel and terminate this Agreement during the three (3) days following the first Offer payment by giving TLE written notice of termination no later than 5:00 p.m. P.T. on the third day following the first Offer payment date. In the event the Client timely exercises its termination right hereunder, TLE will promptly refund the Client the total cost paid for the Services, minus a restocking fee of 10%. Refunds are not provided under any other circumstances except as mutually agreed to by both parties and in writing and referenced in the Client Master Document or in connection with a Termination Event under Section 10 hereof. If Client commences a chargeback transaction (i.e., a reversal of a credit card payment to TLE or its designee) in connection with any payments under this Agreement, then Client understands that this is against the terms of this Agreement, and the amount of the chargeback shall be subject to a finance charge equal to one and one-half percent (1.5%) per month until paid in full by Client. In addition, TLE is entitled to reimbursement from Client of all damages and reasonable attorneys’ fees and costs incurred by TLE in connection with chargeback reversals and otherwise pursuing and collecting any and all sums owed by Client under this Agreement.

 

5.         Proprietary Materials. TLE at all times retains ownership of all rights in and to its proprietary materials, procedures, methods, techniques, data, information, and trade secrets, along with its trademarks, service marks, copyrights, and patentable subject matter (collectively, “TLE Proprietary Materials”), and nothing in this Agreement shall be construed to give Client any right or interest in or to TLE’s Proprietary Materials. Client (a) shall not copy, reproduce, publish, or disseminate any of the TLE Proprietary Materials in any manner without TLE’s prior written consent; (b) shall not remove or modify any copyright or trademark notices or logos from the TLE Proprietary Materials; and (c) shall not use any TLE Proprietary Materials other than for the purpose intended by TLE.

 

6.         Restrictive Covenants. (a) Confidentiality; Non-disclosure. In connection with the Services, Client may come into contact with, acquire, or learn certain Confidential Information related to TLE and/or TLE’s parent, subsidiary, or affiliated entities, or the officers, directors, shareholders, members, employees, contractors, investors, strategic partners, or clients of any or all of the foregoing (collectively, “Related Parties”). As used herein, “Confidential Information” includes nonpublic information in any form (whether or not explicitly indicated as confidential) of or pertaining to TLE and/or TLE’s Related Parties. This encompasses, but is not limited to, products and services (current and prospective); trade secrets; business and strategic plans (current and prospective); marketing information, materials, and plans; contracts (current and prospective); processes; know-how; concepts and ideas; specifications; designs; unpublished trademarks, service marks, and logos; unpublished original works of authorship; client/customer information and lists; research and development; business forecasts, reports, records, and plans; sales information; procurement procedures and requirements; financial information, data, and statements; accounting information; salaries; pricing; techniques; and software. Confidential Information also includes information which, to a reasonable person familiar with TLE's business and the industry in which it operates, is regarded as being of a confidential nature. However, Confidential Information does not include any information that: (a) Client can document has been in Client’s possession free of any obligation of confidence to TLE prior to the disclosure of such information by TLE; (b) At the time of disclosure by TLE is or thereafter becomes public information through no action or inaction of Client in violation of this Agreement; (c) Was independently created, developed, or acquired by Client without the use of or reference to TLE’s Confidential Information. Client shall keep all Confidential Information in strict confidence, refraining from any direct or indirect use for personal benefit or the benefit of any third party, and shall not disclose or divulge Confidential Information to any third party in any manner (e.g., via social media or otherwise) without TLE’s prior written consent, which may be withheld at TLE’s sole discretion. Client acknowledges that all Confidential Information is the exclusive property of TLE or its Related Parties, as applicable. Upon the conclusion of the Services or upon TLE’s demand at any time during the Term, Client shall promptly return to TLE all Confidential Information then in Client’s possession, including any copies thereof."

 

(b) Non-competition: During the Term and for a period of twelve (12) months following the expiration or termination of this Agreement, Client shall not, without TLE 's prior written consent, directly or indirectly engage in any business or commercial venture that offers services similar to or competes with TLE's marketing and lead acquisition services, specifically targeting or soliciting TLE 's existing clients. This provision is designed to ensure the protection and security of TLE 's client relationships. Additionally, the Client agrees that any strategies or techniques employed by TLE shall not be used in a manner that seeks to 'poach' or unlawfully acquire clients from TLE.

(c )Non-solicitation: During the Term and for a period of twelve (12) months following the expiration or termination of this Agreement, Client shall not, without TLE 's prior written consent, directly or indirectly solicit or encourage any of TLE 's existing clients, vendors, contractors, sponsors, strategic partners (current and prospective), agents, representatives, or Related Parties to discontinue or modify their relationships with TLE or diminish their business dealings with TLE. This provision is in place to safeguard the trust and continuity of TLE 's client partnerships.

 

7.Representations and Warranties.

 

(a) Authority. Each Party hereby represents and warrants to the other Party that it has the absolute right, authority, and legal capacity to enter into and perform its duties and obligations under this Agreement; (b) its performance of this Agreement there are no bankruptcy or insolvency proceedings of any kind or nature now pending or threatened against it; and (d) to the best of its knowledge, there are no claims or litigation pending or threatened against it that would prevent or impair it from fulfilling its duties and obligations under this Agreement.

 

(b) Compliance – General Warranty. Client represents and warrants to TLE that, in connection with all of Client’s business activities as well as any Services that Client directs TLE to perform or TLE otherwise performs for Client, Client has obtained and implemented advice from competent legal counsel to comply with all applicable laws. Client acknowledges that TLE does not and Client represents and warrants to TLE that Client will not request, expect, or rely upon TLE to provide compliance advice, legal advice, or compliance with all applicable laws.

 

(c) Compliance with Advertising and Consumer Protection Laws. Client represents and warrants to TLE that, in connection with all of Client’s business activities as well as any Services that Client directs TLE to perform or TLE otherwise performs for Client, Client does and shall continue to comply strictly with all applicable laws, rules, and regulations regarding the marketing and sale of products to consumers, including without limitation, the Federal Trade Commission Act, the Food Drug and Cosmetic Act, the Americans with Disabilities Act, the Restore Online Shoppers Confidence Act, the Telemarketing Sales Rule, the Federal Trade Commission’s Endorsement and Testimonial Guides, the CAN-SPAM Act, the Telephone Consumer Protection Act, and any other federal, state, or local advertising or consumer protection laws, regulations, or standards.

 

(d) Compliance with Intellectual Property Laws. Client represents and warrants to TLE that, in connection with all of Client’s business activities as well as any Services that Client directs TLE to perform or TLE otherwise performs for Client, Client does and shall continue to comply strictly with all applicable laws, rules, and regulations regarding intellectual property, including without limitation the U.S. Copyright Act, the Patent Act, the Lanham act, the Defend Trade Secrets Act, state right of publicity law, and any other federal, state, or local intellectual property laws, regulations, or standards.

 

(e) Compliance with Data Security and Privacy Compliance Obligations. Client represents and warrants to TLE that, in connection with all of Client’s business activities as well as any Services that Client directs TLE to perform or TLE otherwise performs for Client, Client does and shall continue to comply strictly with all laws, rules, and regulations regarding data protection, including without limitation legal obligations such as CCPA, HIPAA, GDPR or their equivalents and industry self-regulatory obligations such as the IAB Transparency and Consent Framework or PCI-DSS.

 

(f) Miscellaneous. Client further represents and warrants to TLE that (i) all Client Materials are accurate, complete, and correct in all material respects; (ii) Client shall not use any advice, recommendations, instructions, methods, or ideas provided by TLE in connection with the Services in a manner inconsistent with their intended purpose; (iii) Client is not subject to any obligation or disability which will or might prevent Client from keeping and performing its duties and obligations under this Agreement; and (iv) Client has not made, and will not make hereafter, any agreement or commitment that conflicts with this Agreement.

 

8.         Indemnification

Client (the “Indemnitor”) shall indemnify, defend, and hold TLE and its officers, directors, shareholders, members, employees, agents, contractors, representatives, successors, and assigns of all of the foregoing (collectively, the “Indemnitees”), harmless from and against any and all third-party claims, causes of action, demands, threats, lawsuits, and proceedings (collectively, “Claims”), and all liabilities, judgments, losses, damages, costs, and expenses of any kind whatsoever, including reasonable outside attorneys’ fees and court costs (collectively, “Losses”), suffered or incurred by any of the Indemnitees at any time to the extent arising out of, relating to, or resulting from any inconsistency with, failure of, or breach or threatened breach by the Indemnitor of any representation, warranty, or covenant made or assumed by Client in this Agreement.

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(a)      The Indemnitees shall give written notice to the Indemnitor of the assertion of any occurrence, event, or fact that may give rise to a Claim. The Indemnitor shall have the right to select counsel and control the defense of any such Claim, subject to the right of the Indemnitee(s) to participate therein. The Indemnitor will not settle or resolve any Claim in a manner that imposes any liability or obligation on the Indemnitee(s) or affects the Indemnitee(s)’ rights in connection therewith without the advance written approval of the Indemnitee(s), which approval will not be unreasonably withheld, conditioned, or delayed. The Indemnitor shall reimburse the Indemnitee(s) on demand for any Losses arising at any time after the Effective Date for which the indemnification obligations stated herein apply.

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9.         Client’s Acknowledgement and Consent. By signing this Agreement, Client acknowledges and agrees (a) no specific results or goals have been promised or guaranteed by TLE or any of its personnel, and (b) Client has been given sufficient opportunity to ask questions of TLE and its personnel regarding this Agreement and the Services, and all such questions have been answered to Client’s satisfaction. Client hereby consents to being photographed and recorded (both audiovisual and audio-only recordings) (such photographs and recordings, collectively, “Recordings”) during and in connection with the Services, and Client hereby quitclaims and assigns to TLE and TLE’s successors and assigns all rights, title, and interests in and to any and all such Recordings made by or for TLE in connection with the Services. Client hereby consents and grants to TLE and TLE’s successors and assigns the royalty-free, perpetual right to include and use (a) the Recordings or any parts thereof, and (b) any quotes approved by Client (email or text messages will be sufficient for such approvals), in materials prepared by or for TLE for use in TLE’s various products and/or services, in all media. By signing this Agreement, Client, on behalf of himself/herself and Client’s family, heirs, executors, administrators, assignees, and legal representatives, hereby absolutely, irrevocably, and unconditionally releases, waives, discharges, holds harmless, and promises to indemnify and to not sue TLE and/or TLE’s parent, subsidiary, or affiliated entities, or any officers, directors, shareholders, members, employees, contractors, agents, representatives, insurers, successors, and assigns of any of the foregoing (collectively, the “Releasees”), from any and all claims, actions, causes of action, demands, and liabilities of any kind or nature, whatsoever, at law or in equity, whether known or unknown, which Client has or may in the future have against any of the Releasees for damage or losses on account of the Recordings and any use thereof, including claims involving rights of publicity and privacy, misappropriation, false light, infliction of emotional distress, defamation, and infringement of intellectual property. The foregoing release is intended to be as broad and comprehensive as permitted by applicable law.

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10.     Breach; Remedies. Neither Party will be deemed to be in breach of this Agreement unless such Party has been given notice of an alleged breach by the other Party, and the notified Party fails to cure such breach within ten (10) business days after receipt of such notice; provided, however, if the alleged breach involves a failure to pay sums owed under this Agreement, then the cure period shall be three (3) business days after receipt of such notice. TLE’s rights and remedies under this Agreement are cumulative, and TLE’s exercise of any right or remedy does not and will not preclude the exercise by TLE of its other rights or remedies that may now or subsequently exist at law or in equity. Without limiting the generality of the foregoing, Client agrees that a breach of Sections 5 or 6 hereof could cause irreparable harm to TLE, and, accordingly, TLE shall be entitled to seek immediate injunctive relief (without posting a bond) in addition to any and all other remedies to which TLE may be entitled under this Agreement, at law, or in equity to prevent or cure any breach or threatened breach thereof by Client without showing or proving actual damages sustained. Client hereby waives any right to rescind or terminate this Agreement other than in connection with a Termination Event. As used herein, “Termination Event” means (a) TLE becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, files a voluntary petition in bankruptcy, or becomes subject to any involuntary proceeding under any bankruptcy or insolvency law that is not dismissed within sixty (60) days after commencement of such proceeding; (b) Client delivers to TLE a written notice of termination which Client is entitled to give solely in the event TLE commits a material breach of this Agreement and fails to cure such breach in accordance with this Section; or (c) TLE terminates the Services, which TLE has the right to do for any reason or no reason in TLE’s sole and absolute discretion. Upon the occurrence of a bona fide Termination Event, the Services shall terminate, and Client shall return to TLE any TLE Proprietary Materials and/or Confidential Information in Client’s possession. Upon TLE’s receipt of any such TLE Proprietary Materials and Confidential Information, TLE shall issue a prorated refund to Client equal to the amount by which the total payments previously made by Client for the Services exceed the Prorated Cost. As used herein, “Prorated Cost” means the product of 1 minus a fraction (expressed as a percentage), the numerator of which is the number of days from the commencement of the Term to the effective date of termination, and the denominator of which is the total number of days in the Term, multiplied by the total cost of the Services as set forth in the Offer..

 

11.     Force Majeure. TLE shall not be liable to Client for any loss or damage resulting from any delay or failure to perform any part of this Agreement and/or the Services if such delay or failure is caused in whole or in part by events, occurrences, or causes beyond the reasonable control of TLE, including, but not limited to: (a) fire, flood, earthquake, or other natural disaster; (b) war, riot, or order of governmental authority; (c) any order, regulation, ruling, or action of any labor union or association affecting TLE or the industry in which it is engaged (including, but not limited to, strikes, sympathy strikes, and lockouts); (d) any delay in the delivery of materials and supplies or the general unavailability of materials and supplies; (e) any casualty, accident, incapacity, illness, pandemic, epidemic, or widespread communicable disease (including COVID-19); and (f) any power failure, failure of computer systems or other equipment, or other Internet, network, or communications outages, interruptions, or disturbances. TLE will not be responsible for any delays in the Services where such delays are attributable to any failure of Client to timely perform Client’s obligations under this Agreement (e.g., attend scheduled calls, meetings, classes, follow through on TLE’s instructions, etc.)

 

12.     LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT PURSUANT TO ANY CLAIM IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL TLE’S AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIMS OR MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED AN AMOUNT EQUIVALENT TO TWENTY-FIVE PERCENT (25%) OF THE FEES PAID TO STA BY CLIENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ASSERTION OF THE CLAIM OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS LESS. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, IN THE EVENT CLIENT FAILS TO FILE OR COMMENCE AN ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES, SUCH CLAIM OR ACTION WILL BE PERMANENTLY BARRED.

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13.     WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND TLE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, REGARDING THE SERVICES. STA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT THE SERVICES WILL MEET CLIENT’S EXPECTATIONS, OBJECTIVES, OR OTHER DESIRED OUTCOMES. WHILE TLE IS CONFIDENT IN TLE’S METHODS, TECHNIQUES, AND RECOMMENDATIONS, TLE DOES NOT GUARANTEE, AND NOTHING HEREIN SHALL BE CONSTRUED AS A GUARANTEE BY TLE OR ANY OF ITS PERSONNEL OF ANY PARTICULAR RESULTS OR OUTCOMES IN CONNECTION WITH THE SERVICES. CLIENT HEREBY WAIVES, RELEASES, ACQUITS, DISCHARGES, AND HOLDS TLE AND THE OTHER RELEASEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS ALLEGING THE SERVICES FAILED TO MEET CLIENT’S REQUIREMENTS, EXPECTATIONS, OR OBJECTIVES. NEITHER TLE NOR ANY OF THE OTHER RELEASEES WILL BE LIABLE TO CLIENT FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY WHETHER IN CONNECTION WITH THE SERVICES OR OTHERWISE.

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14.     Independent contractors. The relationship between the Parties under this Agreement is that of independent contractors, and nothing in this Agreement will be construed to constitute either Party as an agent, employee, or representative of the other, or to define or create a joint venture or partnership between the Parties. Neither Party has the authority, either expressed or implied, to bind or obligate the other Party in any way. Each Party assumes complete responsibility for its own employees with regard to federal and state employer’s liability and compliance with federal, state, and local laws respecting income tax withholding, workers’ compensation, social security, and unemployment insurance.

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15.     Notices. Any notices required to be given by one Party to the other under this Agreement must be in writing and may be given via electronic mail transmission (email) to the recipient at its respective email address on the applicable Signature Page of this Agreement, provided the sending Party obtains proof of receipt of such communication (e.g., by so-called “read receipt” or return email or otherwise). Notices may also be delivered personally, or by certified mail (return receipt requested), or by a recognized overnight commercial carrier which provides proof of delivery (e.g., Federal Express), with all charges prepaid by the sender, to the recipient at the recipient’s address provided in this Agreement. The Parties may each change their respective email and mailing addresses for purposes of this Agreement by providing written notice of such change to the other Party in accordance with this Section. Each notice sent, delivered, or transmitted in a manner prescribed herein will be deemed sufficiently given, served, sent, received, or delivered for all purposes upon receipt by the recipient or at such time as delivery is refused by the addressee upon presentation.

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16.     Press Releases. Each Party has the right to announce the existence of this Agreement by means of a press release or otherwise, provided any such communication does not constitute a breach of Section 6(a) hereof. Client hereby grants TLE a limited, non-exclusive, royalty-free, perpetual license to use Client’s trademarks, service marks, and logos for the noncommercial purpose of marketing TLE’s services to prospective clients, employees, and Clients.
17.     Assignment; Subcontractors. This Agreement shall not be assigned by either Party without the prior written consent of the other Party (which shall not be unreasonably withheld); provided, however, this Agreement may be assigned without the other Party’s consent to an affiliate or to an acquirer in connection with a merger, consolidation, or sale of all or substantially all of such Party’s equity or assets. Any attempted assignment not in accordance with this Section is void. Subject to the foregoing, this Agreement shall bind and inure solely to the benefit of the Parties and their respective successors and permitted assigns. Notwithstanding anything to the contrary contained in this Agreement, TLE may, in its sole discretion, use subcontractors to perform some or all of the Services. Any such subcontractors will work under TLE’s direct supervision.

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18.     Attorneys’ Fees. If any legal action or proceeding is commenced by a Party to enforce or interpret this Agreement, then the prevailing Party on such claim shall be entitled to reimbursement from the other Party of its reasonable outside attorneys’ fees and costs incurred in connection therewith (including the costs of collecting any judgment), in addition to any other relief to which the prevailing Party may be entitled.​

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19.     Survival. The provisions of Sections 3-20 (inclusive) of this Agreement (including all subsections thereof), along with any other provisions of this Agreement that survive expiration or termination according to their express terms or which may reasonably be interpreted or construed as surviving expiration or termination, will survive any expiration or termination of this Agreement.​

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20.     Miscellaneous. This Agreement (including payment terms of the Offer) contains the entire and integrated understanding and agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any prior oral or written understandings or agreements between the Parties with respect to the subject matter hereof. Neither TLE nor any of its officers, directors, shareholders, members, employees, contractors, agents, or representatives have made any representations or promises with respect to TLE, the Services, or this Agreement other than those specifically contained in this Agreement. No change, modification, or waiver of this Agreement or any parts hereof will be binding upon the Parties unless made by a written instrument signed by both Parties. A waiver by either Party of any provision of this Agreement will not be deemed a waiver of such provision or any other provision of this Agreement with respect to any future instance or occurrence. In no event will preprinted terms and conditions on any Client document (e.g., P.O., confirmations, acceptances) modify or add to the terms of this Agreement. Each Party agrees to perform any further acts and to execute and deliver any additional documents or instruments that may be requested by the other Party and are reasonably necessary to give effect to this Agreement and the intents and purposes hereof. If any part of this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction, then such determination will not affect the validity or enforceability of the remainder of this Agreement. The laws of the State of Delaware (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement, including its validity, interpretation, construction, performance, and enforcement. Any dispute arising out of or relating to this Agreement shall be resolved exclusively in the state or federal courts located in Maricopa County, Arizona (including any courts of appeal respectively therefrom). Each Party hereby waives and agrees not to assert in any action or proceeding arising out of or relating to this Agreement that such Party is not subject personally to the jurisdiction of the above-named courts, that the action or proceeding is brought in an inconvenient forum, that the venue of the action or proceeding is improper, or that this Agreement may not be enforced in or by such courts. This Agreement may be executed in counterparts, either manually or by so-called “electronic signature,” both of which will be deemed an original, and all such counterparts, together, will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail, any platform complying with the U.S. E-SIGN Act of 2000 (e.g., www.docusign.com), or other similar transmission method, and any counterpart so delivered shall be deemed duly and validly delivered and effective for all purposes.

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Client acknowledges and agrees Client has carefully read this Agreement and understands the terms, consequences, and binding effect hereof, and is executing this Agreement voluntarily. Client has been given the right and opportunity to be represented by legal counsel of Client’s choosing in connection with the negotiation and execution of this Agreement. This Agreement will not be binding upon either Party unless and until this Agreement is executed by both TLE and Client.

 

 

Last Updated: September, 2024