PLEASE READ AND ACKNOWLEDGE OUR TERMS OF SERVICE.
As part of your usage of our services through Profit Spear Consulting, LLC ("Profit Spear"), you must agree to the terms and conditions of this Agreement. Your full acceptance of this Agreement is required in order to be a client of Profit Spear in connection with its services. If you accept this Agreement, you are representing that you have the authority to accept it on behalf of the business entity with whom Profit Spear has or will have an account (the "Client").
1.Services. Profit Spear provides services to Client that are intended to provide certain activities, deliverables, general guidance and information, and do not constitute financial, investment, or legal advice. Profit Spear’s services may include, but are not limited to, accounting and bookkeeping, digital marketing, and financial consultancy/CFO services (the “Services”), as described in the proposal (the “Proposal”) that was sent to Client by email.
1.1. License. The resources and Services that Client may receive access to from Profit Spear under this Agreement is licensed on a non-exclusive and non-transferrable basis in a quantity and of the type as specified in the Proposal.
1.2. Disclaimer. It may be necessary for Client to separately purchase additional third-party applications or products that it chooses to use in connection with the Services. Client acknowledges that Profit Spear makes no representations or warranties and disclaims all liability as to the performance of any third-party applications or products. Profit Spear is not responsible for any disruption of its Services to Clients due to unforeseen changes in local, state, federal and international laws and regulations.
1.3. Profit Spear is an Independent Contractor. Profit Spear represents, acknowledges and agrees that they are an independent contractor and is not an employee of Client. No provision of this Agreement shall be deemed to create an employment relationship between Client and Profit Spear.
1.4. Use of Onshore and Offshore Resources. Profit Spear may utilize, as it deems necessary, contractors, affiliates and agents who may be both US based/onshore and foreign/offshore, to provide Services to its Clients.
2.Representations
2.1. Profit Spear represents that:
2.1.1. it has all legal rights and authority to enter into this Agreement, and by entering into this Agreement, Profit Spear will not be violating any third-party agreements that would otherwise prohibit it from fulfilling its obligations hereunder;
2.1.2. it will use commercially reasonable efforts to provide its services in a professional manner in compliance with all applicable laws; and2.1.3. it will comply with all laws, regulations, policies and procedures applicable to the operation of its business.
2.2. Client. Profit Spear depends on its clients to honor the commitments required under this Agreement and to operate in a professional manner. In furtherance of this expectation, Client makes the following representations and covenants:
2.2.1. Engagement. Client has all legal rights and authority to enter into this Agreement, and by entering into this Agreement, Client will not be violating any third-party agreements that would otherwise prohibit it from fulfilling its obligations hereunder. Client will provide only accurate, current and complete information on any forms, applications or other questionnaires provided by Profit Spear and shall keep all contact information current by updating Profit Spear of any changes.
2.2.2. License Use. Client will not use, or permit others to use, any products or services offered by Profit Spear in a manner or to an extent that exceeds Client's authorized use. Client will not modify, create derivative works from, or sublicense any software or products provided to it by Profit Spear, nor reverse engineer, decompile, disassemble, or otherwise attempt to derive any proprietary information from Profit Spear.
2.2.3. Compliance. Client will comply with all laws, regulations, policies and procedures of any government agency. Client will not use any products or services provided by Profit Spear or its third-party partners in any manner that could be deemed unlawful or potentially harmful. Client will not utilize any products or services provided by Profit Spear or its third-party partners in an illegal manner and will indemnify Profit Spear against any charges or claims brought against Client pursuant to Section 7 of this Agreement.
2.2.4. Records and Documentation. Client will provide all necessary records, information, and documentation to Profit Spear, its designated contractors or affiliates, as required to perform the Services. Profit Spear does not audit or verify any records, information, and documents provided by Client, and is not responsible for the authenticity or accuracy of any records or documents provided by Client.
2.2.5. System and Software Access. Client will provide access to all necessary software, accounts, and systems to Profit Spear, or its designated contractors or affiliates, as required to perform the Services. Profit Spear cannot be held responsible for the authenticity or accuracy of any records or documents made available to it through such tools, systems and software.
2.2.6. Post-Termination. Client agrees that they will not engage the services of any affiliate, contractor, former employee, or agent (either onshore or offshore) of Profit Spear who provided services of any type to Client for one (1) year after the termination of this Agreement without the written or electronic consent of Profit Spear.
3.Payment
3.1. Pricing and Payments. All products and services are sold by Profit Spear at the then-current price established at the time of purchase. Profit Spear reserves the right to revise any of the fees it charges in connection with its products and services upon notice to Client at any time during the Term. All payments must be made with one of the methods of payment as suggested in the client invoice.
3.2. Late Payments. A late payment charge of the lesser of 1½% per month or the highest rate allowed by applicable law may be applied to any outstanding balances until paid. Failed payments (e.g., insufficient funds, incorrect account numbers, etc.) are subject to a service fee of a minimum of $20 or the maximum amount permitted by law. Profit Spear shall also have the right to suspend the provision of services or products to Client in the event that any payment becomes overdue.
4.Disclaimers
4.1. ALL CONTENT, PRODUCTS, SERVICES AND SUPPORT ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, PROFIT SPEAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROFIT SPEAR DOES NOT WARRANT THAT THE CONTENT, PRODUCTS, SERVICES AND SUPPORT WILL BE UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY ORREPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE.
4.2. Data Breach. Profit Spear is not responsible for any loss caused due to any data breach or hacking of its servers. Client agrees to hold harmless Profit Spear for any claims arising as a result of an interception of Client's data by a third party while the data is being sent over interconnected local and wide-area networks.
4.3. Functionality. Profit Spear reserves the right to discontinue products or services that in Profit Spear 's judgment are no longer economically feasible or have become technologically out of date.
5.Protection of Proprietary Rights and Confidential Information
5.1. Proprietary Rights. All content, products, software, services and support are proprietary to Profit Spear and may include copyrighted works, trade secrets, or other materials created at great effort and expense. Client will not in any way contest the validity of the rights in or ownership of any of its products and services or documentation provided under this Agreement. Client will reproduce Profit Spear's copyright and proprietary rights legend on all copies of materials that Client is permitted to reproduce or distribute. Neither party will use the trade names, trademarks or service marks of the other party in any news release, publicity, advertising, or endorsement without the prior written approval of the other party. Client shall not disclose the negotiated pricing or terms of this Agreement, or of any sales order form, to any third party.
5.2. Confidential Information. Each party ("Recipient") will treat all information provided by the other party ("Discloser") that Discloser designates in writing to be confidential in the same manner as Recipient treats its own confidential information; provided that i) Recipient may share such information with its employees and third party service providers, with a need to know and/or in order to fulfill the obligations pursuant to this Agreement ("Representatives"), in furtherance of the provision of the products and services hereunder, that are subject to confidentiality obligations substantially as restrictive as those set forth in this Section and ii) Recipient assumes responsibility for such employee's and third party service provider's use of such information. Discloser represents and warrants that it has all necessary legal rights, title, consents and authority to disclose such confidential information to Recipient.Notwithstanding such confidential status, Client agrees that Profit Spear may, without identifying Client as the source of such information, use information provided by Client to create, update, merge, analyze, maintain or enhance its database of information, as permitted by law. Profit Spear will not transfer, disclose, sell or otherwise distribute such information in the form supplied by Client to any third party (other than Representatives) without Client’s consent, unless Profit Spear is required by law to do so. Confidential information shall not include information that (i) is or becomes a part of the public domain through no act or omission of Recipient; (ii) was in Recipient’s lawful possession prior to Discloser’s disclosure to Recipient; (iii) is lawfully disclosed to Recipient by a third-party with the right to disclose such information and without restriction on such disclosure; or (iv) is independently developed by Recipient without use of or reference to the confidential information.
6.Term and Termination
6.1. Term. The Term of this Agreement shall run from the date of Client's acceptance of this Agreement until the date of Termination pursuant to Section 6.3 of this Agreement.
6.2. Cancellation and Refund Policy. CLIENT UNDERSTANDS AND AGREES THAT PROFIT SPEAR SHALL HAVE INCURRED EXPENSES IN ANTICIPATION OF ITS PERFORMANCE UNDER ITS AGREEMENT WITH CLIENT. THE CLIENT INVOICE ISSUED BY PROFIT SPEAR, ALONG WITH THIS AGREEMENT, IS A BINDING CONTRACT AND COMMITMENT BY CLIENT TO PAY THE AMOUNT LISTED ON THE CLIENT INVOICE.
6.3. Termination.
6.3.1. In the event of material breach of Sections 2.2.1 through 2.2.5, Profit Spear may immediately terminate this Agreement or, in its sole discretion, Profit Spear may suspend Client's access to the products and/or services and notify Client. While Profit Spear will make good faith efforts to reactivate access to services upon Client remedying any suspension, Profit Spear makes no guarantees regarding the timing of reactivation. Client shall be required to cure any such breach within ten (10) business days. If Client fails to regain compliance within such time, Profit Spear may, in its sole discretion, terminate this Agreement for cause, in addition to any other rights or remedies Profit Spear may have. In the event of material breach of any other part of this Agreement by Client or Profit Spear, the non-breaching party may terminate this Agreement if such breach is not cured within thirty (30) days of written notice of breach.
6.3.2. Except as prohibited by law, Profit Spear reserves the right to refuse or discontinue access to the products and services to any Client without cause and provide a full refund of any amounts paid by Client minus the value of any content, products and services utilized. Client acknowledges that Profit Spear must have this right in order to preserve the integrity of Profit Spear's reputation within the industry and fulfill any requirements to prevent and/or prohibit fraud. This section does not limit Profit Spear's right to discontinue programs, content, products and services without refund granted in other sections of this Agreement.
6.3.3. If, in the sole judgment of Profit Spear, a change in the competitive, legislative, or regulatory environment makes a current offering of Profit Spear no longer commercially feasible, profitable, or practical, Profit Spear reserves the right to terminate this Agreement.
6.3.4. Client agrees to hold harmless Profit Spear for any claim that may arise out of Profit Spear's termination of a Client's access to the content, products and/or services as permitted under this Agreement.
6.4. Effect of Termination. Termination of this Agreement for any reason will result in a termination/suspension of all licenses, services and outstanding orders. Client can ensure continuation in services by renewing this Agreement prior to the expiration of the Term. If, without Profit Spear's written permission or as permitted hereunder, Client continues to use the products and services after the applicable license has terminated, in addition to any other remedies available to Profit Spear for such breach of the Agreement, Client will be liable to Profit Spear for the undiscounted fees for such access in effect on the date of such termination or expiration.6.5. Survival. The provisions set forth in Sections 4.1, 4.2, 5.1, 5.2, 6.3, 6.4, 6.5, 7, 8 and 9 will survive the termination of this Agreement.
7.Limitation of Liability; Indemnification
7.1. PROFIT SPEAR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOST DATA, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT SUCH PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
7.2. PROFIT SPEAR'S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CLIENT HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LOSS, DAMAGE, INJURY, CLAIM, COST OR EXPENSE OCCURRED.
7.3. Notwithstanding anything to the contrary, the exclusions and limitations set forth in Section 7.1 and Section 7.2 above shall not apply with respect to Profit Spear's obligations under Section 7.4.
7.4. General Indemnification. During the Term and for two years thereafter, each Party (the "Indemnifying Party") will defend, indemnify and hold harmless the other Party, its officers, directors, employees, successors and assigns (collectively, the "Indemnified Parties"), in respect of any losses, damages, liabilities and expenses (including reasonable attorneys' fees) (collectively, "Damages") incurred or suffered by any of the Indemnified Parties with respect to claims instituted by any third party, including a federal or state government or agency (a "Third Party Claim") resulting from (a) any fraud or material misrepresentation of the Indemnifying Party, or (b) any material breach by the Indemnifying Party of any of its obligations, representations, covenants or other commitments pursuant to this Agreement. In connection with any Third Party Claim, the Indemnifying Party may defend the Indemnified Party against the Third Party Claim with counsel reasonably satisfactory to the Indemnified Party so long as (i) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third Party Claim and fulfill its indemnification obligations hereunder, (ii) the Third Party Claim involves only money damages and does not seek an injunction or other equitable relief, (iii) settlement of, or an adverse judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party, likely to establish a precedent adverse to the continuing business interests or the reputation of the Indemnified Party, (iv) no conflict of interest exists between the Indemnifying Party and the Indemnified Party, and (v) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently. In the event any of the conditions above is or becomes unsatisfied, however, (A) the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, the Indemnifying Party in connection therewith), (B) the Indemnifying Party will reimburse the Indemnified Party for the costs of defending against the Third Party Claim (including reasonable attorneys' fees and expenses), and (C) the Indemnifying Party will remain responsible for any Damages the Indemnified Party may suffer resulting from the Third Party Claim, to the fullest extent provided in this section. In any event, the Indemnified Party may retain separate co-counsel at its cost and participate in the defense of the Third-Party Claim and the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to any Third-Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed. This foregoing indemnification provision shall constitute the Indemnified Parties' sole and exclusive remedy, and the Indemnifying Party's sole and exclusive liability, for monetary damages in respect of the matters indemnified under this section.
8.Choice of Law; Disputes; Remedies
8.1. This Agreement is governed by and construed in accordance with the laws of the State of Minnesota without regard to choice of law provisions. All disputes arising out of or relating to this Agreement shall be instituted and prosecuted exclusively in a state or federal court located in Minnesota, with both parties specifically consenting to extraterritorial service of process for that purpose.
8.2. Client will pay all costs and expenses, including reasonable attorneys' fees, that Profit Spear incurs in any action to enforce Client's obligations, including payment obligations, under this Agreement.
8.3. Client agrees that, in the event Client breaches or threatens to breach any of Sections 2.2.1, 2.2.2, 2.2.3, 2.2.4, 2.2.5, or 5 of this Agreement, the damage or imminent damage to Profit Spear,its business and goodwill will be irreparable and extremely difficult to estimate, making any remedy at law or in damages inadequate. It is accordingly agreed that Profit Spear, in addition to any other remedy to which it may be entitled in law or equity, will be entitled to an injunction or injunctions to prevent breaches of the above referenced sections of this Agreement and to compel specific performance of this Agreement in accordance with its terms and conditions, without the need for proof of actual damages or the posting of a bond.
8.4. Profit Spear may refuse to renew Client's account in the event that Client materially breaches any obligation, representation or covenant provided herein.
9.Miscellaneous
9.1. Entire Agreement. This Agreement, the Proposal, the Privacy Policy, any orders, addenda, and schedules constitute the entire agreement between Profit Spear and Client regarding the matters herein. All prior agreements, both oral and written, between the parties on the matters contained in this Agreement are expressly cancelled and superseded by this Agreement. In no event shall any terms or conditions included by Client on any form or purchase order apply to the relationship between Profit Spear and Client hereunder, unless such terms are expressly agreed to by both parties in writing. Any amendments of or waivers relating to this Agreement or any order must be in writing signed by the party, or parties, to be charged therewith.
9.2. Affiliates. This Agreement will inure to the benefit of the parties, as well as their affiliates, subsidiaries, and respective successors and assigns. All obligations of "Client" shall include its parent companies, sister companies, and any respective subsidiaries, affiliates, directors, officers, employees, contractors, and agents, as well as the Client Affiliates, to the extent such entities are using the content, products or support provided hereunder, and Client is fully responsible for such entities' compliance with all terms and conditions contained within this Agreement as applicable to such person's activities and uses. This Agreement is not intended to, nor may be deemed to create any rights of enforcement in any person who is not a signatory to this Agreement.
9.3. Assignment. This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns, except that neither party may assign this Agreement without the prior written consent of the other party; however, Profit Spear may assign the Agreement to any of its affiliated companies or in connection with a merger or consolidation involving Profit Spear (so long as the assignment is to the newly merged or consolidated entity) or the sale of substantially all of Profit Spear's assets (so long as the assignment is to the acquirer of such assets).
9.4. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, the provision will be reformed and construed to be a valid, operative and enforceable provision while preserving its original intent. All of the terms in this Agreement are severable, and the invalidity of any part of this document does not render invalid the remainder.
9.5. Force Majeure. Profit Spear shall not be held liable for the failure to perform any obligation, or for the delay in performing any obligation, arising out of or connected with this Agreement if such failure or delay results from or is contributed to by any cause beyond its reasonable control including failures or delays caused by the act or omission of any governmental authority, pandemic, endemic, fire, flood, failures of third party suppliers, acts or omissions of carriers, transmitters, providers of telecommunications or Internet services, vandals, hackers or other event beyond its reasonable control.
9.6. Privacy Policy. Profit Spear’s Privacy Policy, which can be found on its website, describes Profit Spear’s collection, use, and protection of personal information. By executing this Agreement, Client agrees to the terms and conditions of the Privacy Policy.
9.7. No Construction against Drafter. Each of the parties hereto acknowledges that it has had the opportunity to be represented by independent counsel of its choice prior to entering into this Agreement. In construing this Agreement, no provision hereof shall be construed in favor of one party on the ground that such provision was drafted by the other.
9.8. Counterparts. This Agreement may be executed electronically (including by means of facsimile or click-through) and in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
9.9. Notices. Notices to Client will be delivered to the most current email address provided to Profit Spear by Client. If an urgent matter arises, Profit Spear retains the right to use the primary email address provided by Client. All notices to Profit Spear must be by email and sent to: Profit Spear Consulting, LLC Attn: Mr. Naveen Meagher Emailed to info@profitspear.com with a copy to: Andrew M. Ayers, P.C. Emailed to Ayers@AndrewMAyers.com Each party is responsible for giving the other party notice of a change of email address.
If you have any questions or comments about these Terms, please contact us at info@profitspear.com