CLIENT Legal Policies
Last updated October 1, 2021.
OUR OBLIGATIONS AS SUPPLIER
The Supplier is required to take reasonable steps to place themselves in a position to guide and monitor the Client.
The Supplier must faithfully, efficiently, competently and diligently perform their duties and exercise such powers as are appropriate to the role of Supplier.
The Supplier must become familiar with the fundamentals of the business in which the Client is engaged and has an obligation to keep informed about the activities of the Client.
The Supplier will add value to the Client by:
– Signing nondisclosure and confidentiality documents as needed
– Bringing an independent and fresh perspective to decision-making
– Clearly define expectations, dependencies and deliverables required of the project team
– Meeting all deadlines agreed upon and immediately reporting any threats to our mutual progress
– Demonstrating relevant competency, experience and ethical behavior
– Challenging, questioning and monitoring the Client
– Supporting and mentoring the Client
YOUR OBLIGATIONS AS CLIENT
As part of our engagement, the Client will need to:
– Provide access to all key internal people critical to success of the project
– Provide access to all key external resources, including outside vendors and contractors, critical to success of the project
– Communicate in a timely and clear manner, respecting Supplier communication guidelines specified in the Proposal/SOW
– Provide reasonable notice and accommodation for access and schedule changes 48+ hours in advance of scheduled calls and meetings
– Accommodate required remote meeting, engagement, and collaboration due to the current COVID-19 pandemic, related travel, and personal contact constraints
– Provide personal contact numbers and addresses, weekly debrief meetings, and responding to inquiries and requests within 24 hours
– Honor the intellectual property and trademarked material Supplier provides for your use
– Be responsible for enforcing and executing any Quality Gate processes and signoffs
– Allow Supplier to use Client logo for marketing purposes
– Agree to provide two (2) testimonials (one 45 days from project start, and one after project completion), each from a different member of Client team
OUR MUTUAL RESPONSIBILITIES
Immediately informing the other of any new developments, which might materially affect the success of the project.
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Intellectual Property Rights
Last updated October 1, 2021.
Supplier agrees that any and all deliverables, plans, specifications, documentation, and other materials delivered to Customer under the Proposal/SOW, excluding all development ideas, concepts, know-how, techniques, inventions, or discoveries developed by Supplier, are and shall be the property of Client.
Supplier’s original Intellectual Property, including templates, worksheets, guides, walkthroughs, diagrams, inventions, videos, training, and frameworks outside of Client deliverables are and shall be the property of Supplier.
Assumptions & Exclusions
Last updated October 1, 2021.
Client agrees not to solicit, or make offers of employment to, or enter into consultant relationships with any ElleSpark employee involved, directly or indirectly, in the performance of growth hacking services hereunder for twelve (12) months after the date such employee ceases to perform services under these terms. Client shall not be prevented from hiring any employee who responds to a general hiring program conducted in the ordinary course of business and not specifically directed to such growth hacking employees.
Changes in scope are not allowed. Additional or different services requested by the client may be accommodated at an additional cost through a separate Statement of Work or a Project Change Order.
At the Proposal/SOW stage there will still be unknowns about Client’s state of business, business processes, cashflow, technology stack, and specific issues. The Proposal/SOW has been created with the information that we have today, and as such, will always be as comprehensive as we can make it without specific knowledge. The budget has been generated to cover such information that Supplier was not aware of at the time, however, there are elements of the proposal that appear with asterisks to indicate that there may be extra costs relating to these items when full discovery has been completed. The costs for these items will be scoped separately in addition to the items covered in the Proposal/SOW.
Terms & Conditions
Last updated October 1, 2021.
The Agreement, as varied from time to time in writing, applies to all sales of goods and the provision of all services by the Supplier to the Client pursuant to the Agreement.
• “Agreement” means the terms and conditions herein and the Proposal.
• “Supplier” means EllSpark LLC, DBA ElleSpark (EIN 17-6346295).
• “Client” means the person and/or business and/or company described within the Proposal.
• “Authorization” means the acceptance of the Proposal, making a payment or signing this Agreement.
• “Fees” means the amount contained in the Proposal.
• “Intellectual Property” means the intellectual property attaching to the Services including copyright, patents, trademarks, design rights, domain names whether registrable or not and whether registered or not.
• “Confidential Information” means all the information provided by one party to the other in connection with this Agreement where such information is identified as confidential or ought reasonably be considered to be confidential based on its context, nature or the manner of its disclosure, but excluding:
– information that is in the public domain other than by a breach of this Agreement; and
– information developed independently by a third party.
Without limiting the foregoing, Confidential Information includes the terms of this Agreement and the contents of the Proposal.
2. OFFER The Client engages the Supplier to provide the Services as defined in the Proposal or SOW. To accept the Supplier’s offer to provide the Services, the Client must execute the Proposal agreement or SOW, or pay either the agreed deposit or agree to a payment schedule (any of these acts, individually or combined is considered “Acceptance”). If Acceptance does not take place within 28 days from the date the Agreement is provided to the Client, then the Supplier’s offer to provide the Services will expire without further notice to the Client. The term of the Engagement/Project/SOW shall commence upon signature. Timeline will be provided by the Supplier and agreed to by the Client.
3. SERVICES The Supplier will provide the chosen services to the specifications contained in the Proposal (herein referred to as “the Services”).
4. FEES The Client agrees to pay the Supplier the Fees for the Services as contained in the proposal based on payment terms described in the proposal. We invoice on net 7 terms. The Supplier may, at the cost of the Client, engage the services of a debt recovery agency or law firm to assist it with recovery of the Fees, if payment is more than 7 days late.
We assess a Success Fee every 30 days on Closed/Won revenue during the engagement, unless otherwise specified in the Proposal or SOW.
5. NOTICES All notices must be in writing and can be given by email.
A notice is deemed to be given and received:
• If delivered in accordance with clause 1, on the next Business Day after delivery;
• If sent in accordance with clause 2, on the next Business Day after sending.
6. BREACH & TERMINATION
The Client will be in breach of this Agreement upon:
• failing to pay the Fees in accordance with the Proposal or agreed payment schedule;
• contravening any obligations pursuant to the terms of this Agreement;
• failing to respond to the Supplier’s communication in a timely manner;
• failing to act in a professional manner;
• disparaging the Supplier on social media, forums, reviews or websites;
Termination: (COVID SAFE CLAUSE)
This provision allows either party to terminate the contract for any reason once the party desiring to end the contract sends a notice to the other party, and then allows 30 days to expire.
The Supplier agrees that both during and after his time with the Client and the Company, the Supplier will not use for the Supplier’s own, or for another’s benefit, or disclose or permit the disclosure of any confidential information relating to the Client or the Company,
The Supplier may:
• use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
• disclose the Confidential Information to its employees or advisers to the extent necessary for them to know the information for the purposes related to this Agreement but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
” Confidential Information” means any information, technical data or know-how relating to the Client’s ideas, products, software programs, print, technology, research, schematics, dashboards, computer programs and documentation, possible applications and configurations, relevant third party introductions, prospects, markets, market assessments, market roll-out schedules, business and financial data and plans, strategies, developments, inventions, processes, formulas, drawings, models or designs relating to such matters, whether patentable or not, and whether previously or subsequently disclosed to the Supplier, in whatever media.
The term “Confidential Information” shall also include:
(i) the fact that the Confidential Information has been made available to the Supplier or that this Agreement has been executed;
(ii) the fact that discussions are taking place concerning the Company;
(iii) any of the terms, conditions or other facts with respect to the Company or other related transactions, including the status thereof;
(iv) all notes, calculations, conclusions, reports or summaries or other material derived or produced partly or wholly from any Confidential Information and all computer records (including data, copies, models, reproductions and recordings) derived or produced wholly or partly from any of the Confidential Information (“Derived Information”); and (v) any information of a confidential nature disclosed by the Client to the Supplier prior to the date of this Agreement.
Confidential Information includes any portion of such information, technical data or know-how which:
(i) is in the possession of Supplier at the time of disclosure as shown by the Supplier’s pre-existing records; or
(ii) is approved for release by the Client in writing; or
(iii) is required to be disclosed by law, regulation, legal process or the rules of any relevant stock exchange in accordance with this Agreement; or
(iv) is strictly required in connection with legal proceedings or any dispute resolution relating to this Agreement.
The restriction shall cease to apply to any confidential information which may (other than by reason of the Supplier’s breach of these terms) become available to the public generally.
The Company is required and shall indemnify, to the fullest extent permitted by law, the Supplier against any and all losses, claims, damages, liabilities, expenses (including legal fees and expenses, which shall be advanced by the Company to the fullest extent permitted by law prior to a final and non-appealable determination that the Supplier is not entitled to be indemnified), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which the Supplier may be involved, or is threatened to be involved, as a party or otherwise, by reason of his status or former status as Senior Business Development Manager whether arising from acts or omissions, except to the extent such indemnification claim is finally determined by a court of competent jurisdiction to arise out of the Supplier’s bad faith, fraud or willful misconduct.
9. LIMITATION OF LIABILITY
The Supplier excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages or loss. To the full extent permitted by law, the Supplier excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement or the Proposal. If failure to supply is caused by matters beyond the Supplier’s reasonable control including (without limitation) acts of God, acts of any government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes, lockouts, inability to obtain necessary supplies and any other force majeure occurrence. This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations.
Each party warrants that:
• the execution and delivery of this Agreement has been properly authorized;
• it has full corporate power to execute, deliver and perform its obligations under this Agreement;
• this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;
• other than in relation to material included in the Services by the Client or any third party from time to time, any use of the Services by the Client in accordance with this Agreement will not infringe the right of any party and will not breach any applicable law.
In addition, the Client warrants that any material which the Client causes to be published, displayed or contained with the provided Services will not contain any illegal or unethical material and the copyright for all, text, images and materials used is owned by the Client.
11. RESPONSIBILITIES OF THE CLIENT The Client acknowledges that if a debit is returned by his/her/its financial institution as unpaid, a failed payment fee is payable by the Client to the Supplier. The Client will also be responsible for any fees and charges applied by his/her/its financial institution for each unsuccessful debit attempt together with any collection fees, including but not limited to any debt recovery agency or law firm’s fee, as may be incurred by the Supplier. The Client authorizes the Supplier to attempt to re-process any unsuccessful payments after 3 business days. If the payment remains unsuccessful after 14 days, the
Client authorizes the Supplier to suspend all services, pending full payment. In the event of a failed payment, the Client agrees to pay the Supplier an administrative fee of $12 per failed transaction within 7 days of an invoice being provided.
12. ASSIGNMENT No party may assign or otherwise deal in any way with its rights under this Agreement without the prior written consent of the other party.
13. SEVERABILITY If a provision is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
14. ENTIRE AGREEMENT This Agreement and the Proposal together form the entire agreement between the parties about its subject matter and supersedes all other discussions, negotiations, representations, arrangements, warranties or agreements.
15. VARIATION This Agreement may only be amended or varied in writing signed by all the parties.
16. WAIVER Any rights under this Agreement may not be waived or varied except in writing signed by the party to be bound. Unless otherwise expressly stated in the Contract, no waiver or relaxation in whole or in part of any of the terms and conditions of the Agreement will be binding on the Supplier unless in writing and signed.
17. JURISDICTION The laws of Washington County, Oregon, United States govern this Agreement and each party submits to the exclusive jurisdiction of the courts of Washington County.
Last updated October 1, 2021.
All project deliverable Materials released for approval will be recorded and tracked by the Client project manager. All Materials will be submitted by Supplier to the Client project manager. Upon receipt of a deliverable Material, the Client Project Manager will coordinate the evaluation and approval of that deliverable Material within five (5) business days, unless another timeframe is agreed upon. Approvals via email are acceptable if they are explicit, as to which deliverable Material is being accepted. The acceptance or rejection of Materials will be based on the description and completion criteria herein.
A deliverable Material is acknowledged in one of the following ways:
1. Approved As-Is. Indicates the acceptance of the deliverable Material prior to the expiration of the deemed accepted date. The deliverable does not require any modifications.
2. Refused With Problem Report. If a deliverable Material is rejected, a detailed description of why it was rejected must be included on the form. If required, a meeting can be held to discuss the deliverable Material in detail. Every effort will be made to detail all errors and omissions in the first rejection.
In this case, the deliverable is not considered accepted until the errors and omissions have been corrected. Upon resolution of the problem, Supplier will submit a revised deliverable Material for approval.
The review period for modified Materials will depend upon the number of changes required. The process for review and approval of revised Materials will be the same as that for the original deliverable Material.
Unless previously agreed to during definition of Acceptance Criteria, one resubmitted, owner would be allowed to modify the deliverable and address the items that were specifically rejected. Any additional resubmittals will be evaluated to determine if the change and/or issue procedure should be invoked. A resubmitted deliverable due to an error or omission caused by Supplier will not cause the change procedure to be invoked unless there is a change in scope required.
3. Approved By Default. “Conditional” approvals are not allowed. In the event that a deliverable Material is not either accepted or rejected in the period specified above, an item will be added to the Issues Log, and the escalation procedure will begin.
Supplier will conduct a walkthrough meeting for each Deliverable Acceptance. The walkthrough meeting is held to:
1. Schedule dedicated time to review the Deliverable Acceptance.
2. Minimize uncertainty and ambiguity as to what the Deliverable Acceptance covers and does not cover.
3. Ensure timely approval.
A Final Acceptance of all deliverable Materials will be documented and delivered to Supplier at the completion of the project. This Final Acceptance means that all Materials as defined in the Statement of Work and amended through approved change requests are complete. Final Acceptance is required “prior” to software being promoted to production and going live.
Last updated October 1, 2021.
For every project we determine a set of success metrics we work towards. There will be joint accountabilities on both our parts to ensure they are met. The quality of our work is guaranteed. If we do not meet your objective within the scoped timeframe and that fault is ours, we refund your full fee.
Last updated July 17, 2021.
CONSULTING, ADVISORY, AND PROJECT SERVICES
Projects in this category as noncancelable for any reason. You may postpone or reschedule with our approval without penalty so long as you maintain the existing payment schedule as set forth in the Proposal/SOW. If an engagement is ended ahead of schedule, the monthly Success Fee (if part of the Proposal/SOW) will still be due until the original engagement end date.
DIGITAL PRODUCT SALES
Thank you for your purchase. We hope you are happy with your purchase.
Given the nature of digital content, we do not offer a refund or credit on a purchase if any of the following conditions exist:
1. You have changed your mind about an item
2. You bought the item by mistake
3. You do not have sufficient expertise to use the item
4. You can no longer access the item because it has been removed. We advise you to download items as soon as you buy them to avoid this situation.
If you would like to request a refund or credit please contact us at support AT ellespark.com. We will assess refund or credit requests on their merits, considering the digital nature of ElleSpark items and the type of item preview that was available before purchase.
If we decide to issue a refund or credit, this will generally be done using the same manner used to make the purchase. Any refund will be made in US dollars within ten (10) days of our notice of refund due.
If you have any questions concerning our return policy, please contact us at:
Hello AT ellespark.com
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