COACHING Terms & CONDITIONS
NOTICE: KRMOORE & ASSOCIATES, INC. does not require a signed Coaching Agreement and Conditions of Service. Your use of any services or resources provided by KRMOORE & ASSOCIATES, INC. denotes your complete agreement with and acceptance of these Coaching Terms and Conditions of Service.
KRMOORE & ASSOCIATES, INC.
COACHING TERMS AND CONDITIONS OF SERVICE
(Last Revised On: July 4, 2019)
KRMOORE & ASSOCIATES, INC. Terms and Conditions of Service constitutes a binding agreement (the “Agreement”) between you (the “Client”) and KRMOORE & ASSOCIATES, INC. a Texas S Corporation (the “Coach”), effective as of the date of first purchase of services by Client. Client and Coach are referred to herein individually as a “Party” and collectively as the “Parties.” By affirmatively accepting the terms and conditions of this Agreement at the time of agreement to purchase services from the Coach, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client accepts and agrees to the following:
1. This Agreement. Client acknowledges that it has read, understands, agrees with, and accepts all the Coaching Agreement and conditions contained in this Agreement. This Agreement is subject to change by Coach from time to time, in its sole discretion, with advance notice of any such changes given to Client. The most current version of this Agreement, which shall supersede all earlier versions, can be accessed through Coach’s website. Client acknowledges that it should review the Agreement regularly, to view terms and conditions and determine if there have been changes. Client’s continued use of Coach’s services constitutes acceptance of the most recent version of the Agreement.
(a) Provisions. Coach shall perform the Coaching Services purchased by Client with reasonable care and skill and otherwise in the manner customarily performed by service providers in the professional Coaching industry (individually and collectively, the “Services”). Coach may freely delegate any of the Services to Coach’s staff (“Coaches” or “Coaching Team”) at the Coach’s sole discretion.
(b) Security Measures. Coach shall use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Client’s data. These measures are designed to protect the integrity of Client’s data and guard against the unauthorized or unlawful access to, use, and processing of Client’s data.
3. Term: The term of this Agreement shall begin on the date of agreement to purchase Services by Client and shall continue until the expiration date, which, unless otherwise extended by agreement, is 180 days from the signed Coaching Agreement to purchase of Services, unless terminated by either Party within five (5) business days’ prior written notice to the other Party (the “Coaching Agreement”).
(a) Timing. Client shall pay Coach for all work delivery of the Services, in accordance with the Coaching Agreement. All pricing is exclusive of taxes, such as sales tax or Value Added Tax (VAT), if applicable. Upon renewal of any Coach Agreement, Client may be invoiced and/ or their credit card charged in advance, plus hours used in excess of the Coach Agreement. Regardless of currency, all invoices and payable charges for the Services originate from the State of Texas, County of Montgomery, and Coach is a resident of the State of Texas, County of Montgomery for tax purposes. If Client’s credit card is declined, the Services will be suspended until payment is made
(b) Travel. Coach accepts work on a virtual and in person basis. Requests for ‘in person’ work may be possible but cannot be guaranteed. If granted, all hours including travel time to and from the Coach’s work location, as well as all lodging and transportation costs including mileage, parking, meals, lodging and other travel related expenses hours are billable to Client. Contact the Coach to discuss specific requirements or requests.
(c) Refunds. Client will be charged all fees specified in the Coach Agreement without refund. Client may contact the Coach to discuss any changes.
5. Client Responsibilities.
(a) No Supervision of Coach. Client acknowledges and agrees that the Coach acts under its sole direction as a Contractor. If Client requires Coach to make decisions on its behalf about the way in which any work, actions, tasks, strategies, or other business-related functions are performed, Client does so on the basis that the Coach is acting on its behalf. Coach will perform her assigned tasks independently according to the ethics and standards of the International Coach Federation (ICF) Code of Conduct and in a manner that they deem appropriate and not subject to the control of the Client.
(b) Passwords. Should Client decide to give its Coach access to any of its business and/or personal accounts, Client does so entirely at its own risk, and Client acknowledges that it is solely and fully responsible for ensuring the security of its data. Client will be solely responsible for any loss, liability or violations that might occur as a result of such access.
(c) Copyright. Copyright is the legal protection extended to authors or owners of original published and unpublished artistic and intellectual works. Should Client request that its Coach source content or materials relating to its business, Client acknowledges that it does do so at its own risk, and Client is solely responsible for its Coach’s work with respect to such sourcing, and ensuring that all appropriate permissions to use such content or images have been obtained. Should Client request the Coach to carry out any of these activities without the necessary permissions, Client will be solely responsible for any violations of copyright or proprietary information law, and may be subject to legal sanctions, including fines.
(d) Nature of Services. Client agrees to not use its Coach or any of its Services to engage in any illegal or immoral activity.
(e) Consumer Rights and Cancellation. If Client is purchasing the Services wholly or mainly for personal use (and not in relation to Client’s business), this Agreement is not intended to vary the rights of Client under any applicable consumer protection law.
6. Intellectual Property Rights.
(a) As between Client and Coach, all intellectual property rights and all other rights in the Services performed by Coach shall be owned by Coach. Subject to Section 6(c), Coach licenses all such rights to Client free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable Client to make use of the Services for its own internal business uses (including for the purposes of providing its work, goods and/or services to third parties). In no circumstances shall Client be entitled to resell or share the work product derived in the rendering of the Services to any third party without the prior written consent of Coach.
(b) Any Confidential Information of Client and any Client material shall remain in the ownership of Client. All Coach notes, materials and recordings of the Client and any coaching sessions shall remain in the ownership of the Coach. In specific and pre-authorized instances as stated in the Coaching Agreement, the Coach may share Client session recordings for Coach development and assessment purposes with the International Coaching Federation (ICF).
(c) Client acknowledges that, where Coach does not own any or all of any pre-existing materials comprised in any work related to the Services, Client’s use of rights in pre-existing materials is conditional on Client obtaining a written license (or sub-license) from the relevant licensor or licensors on such Coaching Agreement as will entitle Client to use the work.
7. Confidentiality. Each Party hereby acknowledges that during the Coaching Engagement, each Party may, from time to time, be supplied or work with certain information supplied by the other Party, all of which is confidential and of value to such Party (the “Confidential Information”). Each Party hereby agrees to the following in connection with the Confidential Information:
(a) Neither Party will disseminate or disclose to any third party, or use for such Party’s own benefit or for the benefit of any third party, any Confidential Information relating to the products, business or affairs of the other Party, however acquired during or by reason of this Agreement, such Confidential Information being deemed to include, without limitation, information in any format pertaining to copyrights, trademarks, trade names, service marks, trade dress, domain names, uniform resource locators (URLs), websites, advertising and strategic briefs, slide decks, ideas, concepts, products, improvements, inventions, proposed launches, discontinuance of existing products, product and consumer testing data, sales and market research; technology research & development, corporate strategic plans, budgets, profit & loss data, raw material costs, identity of suppliers, customer lists, customer information, formulae, processes, methods, and associations with other organizations.
(b) Each Party will treat Confidential Information received from the other Party with the same degree of care and security as such Party would use with respect to such Party’s own Confidential Information, but not less than a reasonable degree of care.
(c) Neither Party will use the Confidential Information for any purpose other than as it relates to the Services. If either Party is in any doubt as to whether a proposed use of the Confidential Information is appropriate, such Party will immediately (and before using the Confidential Information) seek written clarification from the other Party.
(d) Neither Party will copy, reproduce or store the Confidential Information without the other Party’s prior written consent whether electronically, on any external drive (including a USB thumb drive) or in the “cloud.” Each Party will take reasonable steps to secure physical and electronic access to the Confidential Information.
(e) Neither Party will assert any right, title or property interest in or to the Confidential Information of the other Party.
(f) Upon the expiration of the Coaching Agreement, and at such other times as either Party may request, each Party will return to the other Party all information, strategic briefs, reports, memos, presentations, letters, copies, manuals, drawings, discs, e-mails, CD-ROMs and all other materials relating to the other Party’s business, including all Confidential Information, in such Party’s work space, personal possession or control. In addition, upon the expiration of the Coaching Agreement, and at such other times as either Party may request, each Party will deliver to the other Party an executed certificate confirming that such Party has promptly returned to the other Party or shredded or destroyed all information, strategic briefs, notes, reports, memos, presentations, letters, copies, manuals, drawings, discs, e-mails, CD-ROMs and all other materials relating to the other Party’s business, including all Confidential Information, in such Party’s work space, personal possession or control.
(g) Confidential Information will not include, and the other Party shall have no obligation whatsoever under this Agreement with respect to, information that is or becomes (through no breach of this Agreement by the other Party) generally available to the public, or was in the other Party’s possession or known by the other Party prior to receipt from such Party as demonstrated by the other Party through written documentation (if available) or otherwise.
(h) Either Party may make disclosures required by valid order of any court or other authorized governmental entity, provided such Party promptly notifies the other Party and provides reasonable cooperation, at the other Party’s expense, with the other Party’s efforts, if any, to limit disclosure and to obtain confidential treatment or a protective order.
(i) Each Party agrees that such Party’s obligations under this Section 7 shall continue beyond the expiration of the Coaching Agreement and shall be binding upon such Party’s legal representatives, heirs, successors, assigns, subsidiaries and affiliates and shall inure to the benefit of the other Party, the other Party’s subsidiaries and affiliates and their legal representatives, heirs, successors and assigns.
8. Non-Solicitation; Liquidated Damages. To preserve its Good Will and expenditure in time and expense in securing and providing its Services and making a suitable Coach or Coaching Team available to Client, during the Coaching Agreement and this Agreement, and for a period of one (1) year following Coaching Agreement and of this Agreement for any reason, Client shall not, whether directly or indirectly, solicit, recruit, induce, attempt to recruit or induce, or encourage any of the Coaches or any of Coach’s other staff to leave KRMoore & Associates, Inc. in order to provide services directly to any other person, including Client and Client’s successors, assigns and affiliates. Client agrees that if Client breaches this Section 8, Coach will incur substantial economic damages and losses in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by Coach of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such breach, Client agrees that liquidated damages may be assessed and recovered by Coach as against Client in the event of such breach and without Coach being required to present any evidence of the amount or character of actual damages sustained by reason thereof; and Client shall be liable to Coach for payment of liquidated damages in the amount of US$25,000.00 with respect to the Coach or other staff that Client, directly or indirectly, solicits, recruits, induces, attempts to recruit or induce, or encourages to leave Coach in order to provide services directly to any other person, including Client and Client’s successors, assigns and affiliates. Such liquidated damages represent estimated actual damages to Coach arising from having to replace the Coaches or other staff so recruited and are not intended as a penalty. Client shall pay the liquidated damages to Coach within five (5) days of notice from Coach of the resignation of Coach or coaching staff member and whether or not Coach has exercised its right to the Coaching Agreement. This Section 8 shall survive the Coaching Agreement.
9. Independent Coach. This Agreement shall not render either Party an employee, partner, agent of, or joint venture with the other Party for any purpose. Coach retained by Client pursuant to this Agreement is and will remain an independent Coach and Contractor to Client. Client shall not be responsible for withholding taxes with respect to Coach’s compensation hereunder. Coach shall have no claim against Client hereunder or otherwise (whether for itself or any of its Coaches) for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
10. Warranties and Representations. Each Party hereby warrants and represents that such Party is free to enter into this Agreement, and that this Agreement does not violate any Coaching Agreement or other type agreement between such Party and any third party.
11. Coaching Agreement- Termination.
(a) Generally. Either Party may terminate the Coaching Agreement if:
(i) the other Party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice; or
(ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days or
(iii) Client or Coach are displeased with the relationship or Services.
(b) Effects of Coaching Agreement – Termination. If the Coaching Agreement terminates: (a) except as set forth in this Section 11, the rights and licenses granted by Coach to Client will cease immediately; (b) Coach may, at Client’s request allow Client to retrieve any of Client’s coaching reports or materials (except Coach’s notes, stakeholder feedback, and assessments which remain confidential to Coach); and
(c) after a commercially reasonable period of time, Coach may delete any data relating to Client’s account. Including this Section 11, the following sections will survive Coaching Agreement and these Agreements: 4 (Payment), 6 (Intellectual Property Rights), 7 (Confidentiality), 8 (Non-Solicitation; Liquidated Damages), 12 (Indemnity), 13 (Disclaimers), 14 (Limitation of Liability), 14 (Choice of Law; Arbitration), and 15 (Miscellaneous).
12. Indemnity. Client hereby agrees to release, indemnify, defend, and hold harmless both Coach and any Coaching staff, including Coach’s directors, officers, employees, coaching team and any other agents from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements, arising from or relating to any inaccuracy in or breach of any of the representations or warranties of Client contained in this Agreement or any document to be delivered hereunder, or any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Client or any document prepared by or action performed by a Coach pursuant to this Agreement unless caused by the gross negligence or willful misconduct of Coach or its coaching staff. Client further waives any claim that Coach or any of the Coaching Staff are acting in a training, counseling, consultative or therapeutic capacity.
13. Disclaimers. THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, COACH AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS AND ANY OF THE COACHING TEAM TO BE PROVIDED HEREUNDER DO NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT, OR THE TEXAS DECEPTIVE TRADE PRACTICES ACT. CLIENT ACKNOWLEDGES THAT IT IS A LEGAL ENTITY WITH SUFFICIENT RESOURCES TO RETAIN COUNSEL, THAT COUNSEL HAS REVIEWED THESE COACHING AGREEMENTS OF SERVICE AND WAIVES ANY CLAIM UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE CODE. CLIENT IS RESPONSIBLE FOR USING THE SERVICES IN ACCORDANCE WITH THE COACHING AGREEMENT AND TERMS AND CONDITIONS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.
14. Limitation of Liability.
(a) Except as may be required by law where Client is a consumer, in the event of a breach of this Agreement by Coach, the remedies of Client will be limited to actual damages but will not exceed the greater of the amount paid by Client for the Services during the 12-month period immediately prior to the date in which those actual damages were incurred or US$1,000.
(b) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL EITHER CLIENT OR COACH (OR THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS OR COACH TEAM TO BE PROVIDED HEREUNDER) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(a) Choice of Law; Arbitration. The Parties agree that the laws of the State of Texas shall govern the validity of this Agreement, the construction of its Coaching Agreement and Agreements, and the interpretation of the rights and duties of the Parties hereunder. Any dispute, controversy or claim arising out of the Coaching Agreement and this Agreement or its interpretation shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s commercial arbitration rules then in effect. The number of arbitrators shall be one (1). The place of arbitration shall be in Montgomery County, Texas. The language used in the proceedings shall be English. The arbitration award shall be binding, and judgment upon the award may be entered in any court having competent jurisdiction thereof. Coach as Coach or its affiliates may then seek injunctive or other appropriate relief in any state or Federal Court in the State of Texas, and Client waives any objection to exclusive jurisdiction and venue in such courts. CLIENT ACKNOWLEDGES THAT IT IS WAIVING ITS RIGHT TO HAVE ITS DISPUTES HEARD IN A COURT OF LAW AND TO HAVE A TRIAL BY JURY IF THAT WOULD OTHERWISE HAVE BEEN AVAILABLE.
(b) Notices. Any and all notices, demands, or other communications required or desired to be given hereunder by either Party shall be in writing and shall be validly given or made to the other Party if personally served (by hand or by overnight courier), or if deposited in the mail, certified or registered, postage prepaid, return receipt requested and notices may also be given by e-mail or facsimile transmission, provided, however, that receipt of any such e-mail or facsimile transmission is established by a read receipt or answer back confirmation. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five (5) days after deposit thereof in the mail addressed to the Party to whom such notice, demand or other communication is to be given. If such notice is given by e-mail or facsimile transmission, notice shall be deemed given on the date such e-mail or facsimile was sent provided that receipt of such e-mail or facsimile transmission is sufficiently proven. Either Party may change its address for purposes of this paragraph by written notice given in the manner provided above.
(c) Publicity. Coach as KRMoore & Associates, Inc. may publicly identify Client as a customer and use Client’s logo on Coach’s website, in sales materials, and in print media in accordance with Client’s usage guidelines, all for the limited purpose of recognizing Client as a customer of Coach. In addition, Client agrees to review and approve any press release from Coach in a timely manner. Client will also support reasonable and periodic requests from Coach to respond to inquiries from prospective Coaching clients and other marketing opportunities. Coach agrees to coordinate and reasonably limit any such requests.
(d) Severability. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
(e) Waiver; Rights Cumulative. No waiver of any Coaching Agreement or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of Coach to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter. The rights and remedies of Coach herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
(f) Assignment. Client may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Coach. Coach may not assign this Agreement without providing notice to Client, except Coach may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
(g) Force Majeure. Except for payment obligations, neither Coach nor Client will be liable for inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
(h) No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this Section 15(h), Client’s customers are not third-party beneficiaries to Client’s rights under this Agreement.
(i) Entire Agreement. Any titles or headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. This Agreement constitutes the entire understanding and agreement of the Parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
(j) Authority. The Parties hereby represent that they have full power and authority to enter into and perform this Agreement and the Parties know of no contracts, agreements, promises or undertakings that would prevent the full execution and performance of this Agreement.