This Membership Agreement (“Agreement”) is between DeWitt Consulting, LLC (“DeWitt”), and individuals registered in the DeWitt Executive Coaching Program (“Member(s)”). It sets forth the terms and conditions for the provision of membership services to be provided by DeWitt (“Services”).
Any membership privileges obtained through this membership agreement may be revoked or changed at any time with prior notice to the member(s).
At any point during this contract, the Member(s) may increase their membership level with prior written notice to DeWitt. If costs increases during membership change, the member(s) will be responsible for costs that occurred. Only one Membership Level will be active for each Member at any time and are non-transferrable.
Member(s) agree they meet all membership requirements and will notify DeWitt if any requirements are not met during the time of the agreement term.
This agreement shall remain in effect until one or more of the following occur:
- Member(s) fail to meet any requirements of membership.
- Agreement term lapses without further terms or agreements added.
- Company files for bankruptcy or ceases to do business.
All notices under this Agreement shall be in writing and sent by email to the other party. Notices shall be effective upon receipt. A party may change its email address by giving written notice to the other party in accordance with this Section.
The scope of services is defined by this Agreement. All requests for changes to the Agreement must be in writing and must set forth with specificity the requested changes. As soon as practicable, DeWitt shall advise of the cost and implications of the requested changes and any other necessary details to allow both parties to make an informed decision as to whether they will proceed with the requested changes. The parties shall agree in writing upon any requested changes prior to DeWitt commencing work.
The parties may not assign any rights or delegate any obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided (i) DeWitt may assign any rights or obligations under this Agreement to any of its affiliates and subsidiaries without the prior consent of Client and (ii) each party may assign its rights to a successor entity provided that upon the merger or consolidation of such party or the transfer of all or substantially all of its assets to a third-party, the surviving entity is controlled by the person(s) controlling such party prior to the date of such merger, consolidation or transaction. Any assignment in violation of this Agreement is void. This Agreement shall be binding upon the successors, legal representatives and permitted assigns of the parties.
(a) The parties agree to keep confidential and not to use or disclose to any third-parties any non-public business information of the other party learned or disclosed in connection with this Agreement, including the DeWitt Materials (“Confidential Information”). The obligations of the parties with respect to the Confidential Information shall terminate with respect to any particular portion of the Confidential Information if and when: (i) it is in the public domain at the time of its communication; (ii) it is developed independently by the receiving party without use the of any Confidential Information; (iii) it enters the public domain through no fault of the receiving party subsequent to the time of the disclosing party’s communication to the receiving party; (iv) it is in the receiving party’s possession free of any obligation of confidence at the time of the disclosing party’s communication; (v) it is communicated by the disclosing party to a third party free of any obligation of confidence; or (vi) the receiving party has the disclosing party’s written permission.
(b) Each party shall provide notice to the other of any demand made upon it under lawful process to disclose or provide any of the other party’s Confidential Information. The receiving party agrees to cooperate with the disclosing party, at the disclosing party’s expense, if the disclosing party elects to seek reasonable protective arrangements or oppose such disclosure. Any Confidential Information disclosed pursuant to such lawful process shall continue to be Confidential Information.
(c) In performing its obligations under this Agreement, both DeWitt and Client will comply with all applicable data privacy legislation. In the event that any personal data is exchanged under this Agreement, the parties shall treat such personal data in accordance with their respective privacy policies.
g. Intellectual Property
Client shall retain all right, title and interest in any proprietary materials supplied to DeWitt (“Client Materials”), and grants DeWitt all necessary rights and licenses for DeWitt to fulfill its obligations under this Agreement. Excluding any Client Materials, DeWitt shall retain sole and exclusive ownership of the Deliverable(s), DeWitt tools, methodologies, questionnaires, responses, and data generated in the course of performing the Services, together with all intellectual property rights therein (the “DeWitt Materials”). DeWitt grants Client a perpetual, non-exclusive, royalty-free license to use the Deliverables, subject to the limitations set forth in “Use of Deliverables”. DeWitt shall not be restricted in its use of ideas, concepts, know-how, data, and techniques acquired or learned in the course of performing the Services, provided that DeWitt shall not use or disclose any Client confidential information, as defined in “Confidentiality”.
h. Use of Deliverables
Subject to payment in full of the applicable fees, DeWitt grants to Client, for internal purposes only, a worldwide, royalty-free, perpetual license to use, reproduce, display, distribute copies of, and prepare derivative works of the Deliverables. Unless the Deliverable is identified in writing as intended for external distribution by Clients such as a Request for Proposal or similar document, Client shall not make the Deliverables available, in whole or in part, to anyone outside of Client, or quote excerpts from the Deliverables to the public. Notwithstanding the foregoing, Client may share the Deliverables with (i) its outside auditors and/or accountants, (ii) third parties who have signed appropriate confidentiality agreements with Client who are engaged by Client to review or implement suggestions or to further research the issues contained in the Deliverables, (iii) governmental or regulatory bodies as required by law, and (iv) with Client’s Affiliates provided that its Affiliates are made aware of the obligations under this Section, and that Client remains liable for the use made of the Deliverables by its Affiliates.
i. Limitation of Liability
Neither party shall be liable for any consequential, indirect, special or, incidental damages, including but not limited to, lost profits, business failure or loss of use, arising out of the use of the Deliverables or the Services, whether or not advised of the possibility of such damages. Except for liability for personal injury or death or for damage to property caused by the negligence or willful misconduct of a party or its employees, or a party’s breach of its confidentiality obligations under this Agreement, each party’s total liability arising out of this Agreement and the provision of the Services shall be limited to the fee paid by Client under the Agreement in which such liability arises. Unless otherwise prohibited by applicable law, and except for actions by DeWitt for payment, no action or proceeding arising out of this Agreement may be brought more than two years after the events giving rise thereto.
Client warrants that DeWitt’s use of any materials furnished by Client in connection with the Agreement shall not infringe any copyright, trademark, trade secret, or other rights of any third-party. DeWitt warrants that the Deliverables, in the form provided to Client, do not infringe any copyright, trademark, trade secret, or other rights of any third-party.
EXCEPT AS PROHIBITED BY APPLICABLE LAW OR OTHERWISE SET FORTH ABOVE, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND DEWITT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE INFORMATION IN THE DELIVERABLES HAS BEEN OBTAINED FROM SOURCES THAT DEWITT BELIEVES TO BE RELIABLE. ALL DELIVERABLES SPEAK AS OF THE DATE OF DELIVERY TO THE CLIENT. DEWITT HAS NO OBLIGATION TO ADVISE CLIENT OF ANY CHANGE IN THE INFORMATION OR VIEWS CONTAINED IN THE DELIVERABLES.
k. Effectiveness and Interpretation of Agreement
Any and all legal proceedings sustained from this agreement shall be set in the jurisdiction of California as agreed between parties. This membership agreement sets forth the entire understanding of the above mentioned agreement and unless otherwise stated is not inclusive of any oral or prior written agreements.
This Agreement may be modified or amended if and only if the amendment is made in writing and signed by both Parties.
If any provisions of this Agreement shall be held to be valid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.
If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
Except as otherwise provided in this Agreement, any dispute arising out of this Agreement shall be submitted to the American Arbitration Association for resolution. The arbitration shall be scheduled to take place in San Diego County, California, and all of the fees and costs of the arbitration shall be shared equally by the parties. Attorney fees may be awarded to the prevailing party at the discretion of the arbitrator, but the arbitrator shall have no power to alter or amend this Agreement or to award any relief inconsistent with the provisions herein or unavailable in a court of law.