PRIMARY INSIGHT, LLC ON DEMAND SERVICES AGREEMENT
THIS AGREEMENT (the “Agreement”) is entered into as of date the User accepted the terms and conditions of this Agreement on the website of Primary Insight, LLC, a Delaware limited liability company with an address at 1115 Broadway, 12th Floor, NY, NY 10010(“Company”).
1. Terms of On Demand Services.
1.1. On Demand Services. Company shall provide Client with consultation sessions with one or more individuals who are members of its expert network (“Contributors”) subject to the terms and conditions set forth herein (the “On Demand Services”). These On Demand Services may include conference calls, participation in online discussion groups or other services that the Company may offer from time in its sole discretion. Once User has made a request, Company will attempt to locate one or more Contributors who are willing to participate in the session(s) and who has informed Company that he or she has the qualifications requested by Client, and will facilitate contact between the Client and Contributor to schedule the session(s). Company cannot guarantee that it will locate a suitable Contributor to meet Client’s needs. Company does not attend sessions, and generally will be unaware of what specific information is exchanged between Client and the Contributors. There is no monthly minimum or maximum usage requirement for the On Demand Services.
1.2. Disclosure. Company is not a broker-dealer or investment advisor, and the User should not view the information provided as investment judgment or financial, accounting, tax or legal advice by the Company, including, but not limited to, ratings or recommendations for any security, or advice as to the value of any security, or the advisability of investing in, purchasing, or selling any security. The information provided is not and should not be considered a recommendation or prediction. User agrees not to ask for investment judgment or financial, accounting, tax or legal advice. Company is not a member of or guaranteed by the Securities Investor Protection Corporation (“SIPC”).
1.3. Payment. There are no sign up or registration fees, and the User shall only be charged for On Demand Services provided. In exchange for the On Demand Services, Client agrees to pay Company $1,250.00 per credit, and each credit entitles the User to use the On Demand Services for sixty-five (65) minutes (the “Credit”). Should the use of the On Demand Service exceed sixty-five (65) minutes, the User shall be charged an additional credit of $1,250.00. There are no partial credits. Should the User use more than two Credits in a calendar month, any additional Credit charged during that calendar month shall be at the reduced rate of $1,100.00. Once the On Demand Services are scheduled by the User and Contributor, the Company shall submit a pending charge to or place a hold on funds with the financial institution of the User. After the User uses the On Demand Service and the number of Credits used is known, the financial institution of the User will be charged or payment withdrawn for the Credit(s) used for the scheduled On Demand Service.
1.4. Method of Payment. All payment for the Credits for the On Demand Services shall be made by either major credit card (i..e.,Visa, Master Card, Discover or American Express), or ACH authorization. All fees shall be paid in U.S. dollars, and charges do not include any applicable sales/use, value-added or other taxes, which shall be the sole responsibility of User. If the User utilizes the On Demand Services, but fails to make Payment for such On Demand Services, the unpaid amount shall accrue interest at 18%, or the legal amount permitted by law.
1.5. Cancellation Policy. Should a User request an On Demand Service, but then decide to cancel the On Demand Service, such cancellation shall be done by providing written notice to the Company prior to the schedule time for the On Demand Services. Should the User be located in Asia, the written cancellation notice must to provided to the Company twenty-four (24) hours in advance prior to the scheduled time for the On Demand Services.
2. Term; Termination. This Agreement shall commence on the date accepted by the User by registering through the website of the Company, and shall continue as long as the User continues to pay for the Credits and utilize the On Demand Services or until terminated by either party (the “Term”).
3.1. Company requires all Contributors to agree to certain terms and conditions (the “Contributor Agreement”). Company does not investigate the qualifications or backgrounds of Contributors or their conflicts of interest, obligations to third parties or compliance with securities laws, but relies upon the information provided by the Contributors, and User acknowledges and agrees that such information may be incorrect or inaccurate. Contributors are required to complete Company’s Compliance Tutorial prior to participating in projects. Contributors are independent contractors of Company, and Company will not be liable for any acts or omissions of Contributors. User shall be deemed to be a third party beneficiary of the Contributor Agreement, and shall have the full right to enforce the Contributor Agreement in the place of Company with respect to any claim it may have against any Contributor in connection with the On Demand Services.
3.2. User agrees not to circumvent, avoid, bypass or obviate Company, directly or indirectly, to avoid payment of fees, commissions or other forms of compensation, in any transaction with any Contributor first encountered through an introduction from Company. User agrees not to knowingly solicit those Contributors, directly or indirectly for a project of a similar nature to that conducted through Company or to offer employment or consulting or services positions where such relationship would be on an ad hoc/as needed basis or projected to last less than forty (40) hours of work without the prior written permission of Company for a period of one (1) year from the end of the most recent session or introduction to such Contributor.
4.1. Because Company does not attend the sessions with Contributors, Company will be unaware of the information exchanged between User and Contributors.
Nevertheless, each party agrees that it may receive information that is non-public, proprietary and confidential in nature (“Confidential Information”), including without limitation, information concerning this Agreement, the Contributors and the sessions. Each party hereby agrees that it shall: (i) keep all Confidential Information confidential; (ii) not disclose any Confidential Information, or any part thereof, in any manner whatsoever without the disclosing party’s prior written consent, and (iii) not use any Confidential Information or any part thereof except for the purposes of providing or procuring the On Demand Services. Each party shall reveal Confidential Information only to its directors, officers, employees and representatives who need to know such information in connection with its obligations under this Agreement, who are informed by the receiving party of the confidential nature of such Confidential Information, and who are legally bound to treat the information as confidential. For the avoidance of doubt, Company will not be responsible for any Contributors’ breach of the confidentiality obligations that each Contributor is obligated to pursuant to the Contributor Agreement.
4.2. Nothing herein shall prevent the disclosure of information that (a) is or becomes publicly known without violation of this Agreement, (b) becomes available to the receiving party from a person who is not prohibited from disclosing such information, (c) is developed independently by the receiving party, or (d) is required to be disclosed by law or regulatory authority. In the event that the receiving party is required to disclose such information by order or regulation of a governmental agency or a court of competent jurisdiction, the receiving party agrees to provide prompt written notice to the disclosing party, to the extent reasonably practicable and permissible under the law, before such information is disclosed to allow the disclosing party a reasonable opportunity to seek appropriate relief from such disclosure.
4.3. Each party acknowledges that its disclosure or misappropriation of Confidential Information in violation of this Agreement would cause irreparable harm to the other party, the amount of which may be extremely difficult to estimate, thus making any remedy at law or in damages inadequate. In addition to any other remedy available at law or in equity, each party agrees that the other shall be entitled to obtain an order restraining any breach or threatened breach of the confidentiality obligations under this Agreement, without the need for the posting of any bond or proving any damages.
5. Trademarks. Each party agrees that it shall not use the name, logo, trademarks or service marks of the other without the prior written consent of the other party.
6. Representations and Warranties. Each party represents and warrants to the other: (i) that it has the power and authority to enter into this Agreement and perform its obligations hereunder; (ii) that it will abide by all relevant laws, rules and regulations in connection with the On Demand Services, including but not limited to all relevant securities laws, rules and regulations; (iii) its performance of its obligations hereunder is not and will not be in violation of any other contract, agreement or understanding to which it is a party. The warranties made above by Company are on behalf of itself only, not any Contributor, and any Contributor’s breach of the above warranties shall not be deemed to be a breach by Company. Company makes no representation or warranty regarding the accuracy or completeness of any information provided.
7. Disclaimers. COMPANY DISCLAIMS ALL IMPLIED OR EXPRESS WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SERVICE, THE SESSIONS, THE CONTRIBUTORS, ANY INFORMATION PROVIDED BY THE CONTRIBUTORS AND ANY OTHER ACTIVITIES CONDUCTED IN RELATION TO THIS AGREEMENT, ALL OF WHICH ARE PROVIDED “AS-IS”. WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED BY COURSE OF TRADE OR DEALING. IN NO EVENT WILL COMPANY BE LIABLE FOR THE ACTS OR OMISSIONS OF CONTRIBUTORS.
8. Indemnification. Each party shall defend, indemnify and hold the other, its affiliates and their respective employees, officers, directors, managers, members, licensees, successors and assigns harmless from and against any and all losses, damages, liabilities, cost and expenses, including legal expenses and reasonable attorneys’ fees, resulting from third party claims, actions, or proceedings arising out of any breach or alleged breach by the indemnifying party of any warranty, representation or agreement made by it in this Agreement. In claiming any indemnification hereunder, the indemnified party shall promptly provide the other party with written notice of any claim which the indemnified party believes falls within the scope of the foregoing indemnification. The indemnified party may, at its own expense, participate in the defense if it chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim. Any settlement that adversely impacts the indemnified party shall not be final without the indemnified party’s prior written consent.
9. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHATSOEVER INCLUDING BUT NOT LIMITED TO ANY LOSS, DAMAGE OR INJURY TO EARNINGS, PROFITS, GOODWILL OR BUSINESS DIRECTLY OR INDIRECTLY CAUSED BY THE ON DEMAND SERVICES, ANY INFORMATION PROVIDED BY THE CONTRIBUTORS OR ANY OTHER ACTIVITIES CONDUCTED IN RELATION TO THIS AGREEMENT, WHETHER ARISING OUT OF A BREACH OF THIS AGREEMENT OR OTHERWISE ON THE PART OF COMPANY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF COMPANY, IN THE AGGREGATE, EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO COMPANY HEREUNDER FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE SUCH CLAIM CAME INTO EXISTENCE.
10.1. Notices to each party shall be sent by email to the addresses provided by the parties with a copy by certified mail, return receipt requested, to the addresses above. Notice shall be deemed given three (3) days after the date of mailing.
10.2. The provisions of Sections 4 through 10 of this Agreement shall survive the termination or expiration of this Agreement according to their terms.
10.3. This Agreement represents the entire agreement of the parties, supersedes all other agreements concerning the subject matter hereof, and no other statement forms any part of the basis of this Agreement. This Agreement cannot be changed without the express written consent of the parties hereto. The unenforceability of any term of this Agreement shall not render unenforceable any other term.
10.4. Neither party may assign this Agreement without the prior written consent of the other party; however, Company may assign this Agreement without the prior written consent of User in the event of any sale, merger or change of control of Company or a sale of all or substantially all of its assets. This Agreement is binding upon and shall inure to the benefit of the respective successors and/or assigns of the parties hereto.
10.5. Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy. No waiver in any particular circumstance should be construed as a bar to a party’s refusal to waive other or subsequent defaults, breaches or events.
10.6. The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the parties under this Agreement shall be governed by the internal laws of the State of New York, without regard to conflicts of law rules. The parties hereto agree that the state and federal courts sitting in the County of New York, New York shall be the proper forums for any legal controversy arising out of or in connection with this Agreement, and the parties hereby irrevocably and unconditionally consent to the exclusive jurisdiction of such courts for such purposes and to venue therein. In addition, the parties hereby waive any right to assert that the County of New York is an inconvenient forum. The parties agree that service of process may be made on them in any manner available under any applicable law or intentional convention. In the event that any debt owed to the Company by the User is placed in the hands of any attorney for collection, the User agrees to pay all costs of collection, whether suit is brought or not, including, but not limited to, court costs, attorneys’ fees, and other disbursements.
10.7. There is no joint venture, partnership, agency or fiduciary relationship existing between the parties, and the parties do not intend to create any such relationship by this Agreement.
10.8. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth above.