This Client Services Agreement (this “Agreement”) is entered into by and between Monday Wellness, LLC, a North Carolina limited liability company, located at 213 E Cabarrus St., Raleigh, North Carolina 27601 (“Company”), and the individual or entity accessing, enrolling in, or submitting payment for Confidence Cohorts (“Client”).
This Agreement is effective as of the date Client accepts these terms by checking the acknowledgment box and submitting payment (the “Effective Date”).
WHEREAS, Client desires to retain Company to provide certain services, and Company is willing to perform such services under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Client agree as follows:
1.1 Company shall provide to Client the services provided in Confidence Cohorts (the "Services") including but not limited to virtual group coaching, on-demand video modules, Confidence Fingerprint™ framework, live practice and implementation prompts, private community support, 1:1 coaching support. Company may provide additional tools, assessment and materials to support in measuring progress. Company shall have the right to subcontract any or all of the Services so long as such subcontractor undertakes confidentiality obligations substantially similar to those set forth herein. Client acknowledges that Company may provide services similar to the Services to a variety of people, companies, and organizations, including competitors of Client. Company shall be permitted to use artificial intelligence tools in connection with the performance of the Services.
1.2 The Services are provided for informational purposes only and are not intended to provide mental health diagnosis, counseling or treatment.
Client shall:
2.1 Respond promptly to any reasonable requests from Company for instructions, survey responses, data, information or approvals required by Company to provide the Services.
2.2 Cooperate with Company in its performance of the Services and provide access to Client's premises, employees, contractors and audio-visual equipment as required to enable Company to provide the Services.
2.3 Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Company's provision of the Services.
If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
4.1 In consideration of the provision of the Services by Company and the rights granted to Client under this Agreement, Client shall pay the fees set out in the applicable Invoice (“Fees”). Unless otherwise provided, Fees shall be payable within thirty (30) days of receipt by the Client of an invoice from Company. All Fees are non-refundable.
4.2 There will be a minimum of one (1) hour billed for requested Onsite Services, including for no-shows or late cancellations by Client.
4.3 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, Company's income, revenues, gross receipts, personnel, or real or personal property or other assets.
4.4. All late payments shall bear interest at the lesser of the rate of one-and-a-half percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Company for all reasonable costs incurred in collecting any late payments, including without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights hereunder), Company shall be entitled to suspend the provision of any Services if the Client fails to pay any Fees when due hereunder and such failure continues for seven (7) days following written notice thereof.
(a) In accordance with the terms and subject to the conditions set out in the respective Invoice and this Agreement.
(b) In a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
(a) Company shall use reasonable commercial efforts to promptly cure any such breach.
(b) If Company cannot cure such breach within a reasonable time after Client's written notice of such breach (but no less than 30 days), Client may, at its option, terminate the services by serving written notice of termination in accordance with Section 8.2.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are prepared by or on behalf of Company in the course of performing the Services, (collectively, the "Deliverables") shall remain the property of Company. Company shall own any Intellectual Property Rights in and to all materials that are owned by, created, developed, or prepared by Company prior to or independent of the provision of Services to Client (“Prior Materials”).
7.1 From time to time during the Term of this Agreement, either Party (as "Discloser") may disclose or make available to the other Party (as "Recipient"), non-public, proprietary and confidential information of Discloser ("Confidential Information"); provided, however, that Confidential Information does not include any information that:
(a) is or becomes generally available to the public other than as a result of Recipient’s breach of this Section 7;
(b) is or becomes available to the Recipient on a non-confidential basis from a third party source, provided that such third party was not prohibited from disclosing such Confidential Information;
(c) was in Recipient's possession prior to Discloser's disclosure hereunder; or
(d) was or is independently developed by Recipient without access to or use of the Confidential Information.
Recipient shall:
(x) protect and safeguard the confidentiality of Discloser's Confidential Information with at least the same degree of care as Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(y) not use the Discloser's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
(z) not disclose any such Confidential Information to any person or entity, except for Recipient’s employees and/or independent contractors who have a need-to-know such Confidential Information and are bound by substantially similar obligations of non-disclosure.
For the avoidance of doubt, the confidentiality obligations set forth in this Section 7 supersede and replace any prior non-disclosure agreement executed by the Parties. In the event any of the Confidential Information must be disclosed pursuant to judicial order or requirement of law, Recipient shall use commercially reasonable efforts to notify Discloser of such order or requirement.
7.2 Client shall not provide Company with access to personally identifiable information without Company’s prior written consent. Personal data that Company may have access to shall be treated in accordance with Company’s Privacy Policy, available upon request.
7.3 Company may use anonymized data for its business purposes, including to identify market trends and improve its services over time.
7.4 Company may use Client’s name and logo on its website and other marketing materials.
8.1 The term of this Agreement shall commence as of the Effective Date and shall continue for the duration of Services or until terminated by either Party for convenience with thirty (30) days’ prior written notice or pursuant to Section 8.2 (the “Term”). For the avoidance of doubt, Client will not be entitled to a refund for any previously paid Fees.
8.2 Either Party may terminate this Agreement, effective upon written notice to the other Party (the "Defaulting Party"), if the Defaulting Party:
(a) Materially breaches this Agreement, and the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach.
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due.
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing.
(d) Is dissolved or liquidated or takes any corporate action for such purpose.
(e) Makes a general assignment for the benefit of creditors.
(f) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
8.3 The rights and obligations of the Parties set forth in this Agreement which, by their nature, should survive termination of this Agreement, shall survive any such termination of this Agreement.
9.1 IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THE APPLICABLE INVOICE.
Company shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. Furthermore, Company shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances related to injury or illness of the individual performing the Services or any immediate family members (“Injury/Illness Event”). In the event of any such Injury/Illness Event, Company may suspend Services and Client may suspend payments for up to thirty (30) days (“Suspension Period”), during which time the parties shall discuss in good faith a plan for resuming Services and payment upon the end of such Suspension Period.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice") must be in writing and addressed to the other Party at its address set forth above (or to such other address that the receiving Party may designate from time to time in accordance with this Section 11). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only
(a) on receipt by the receiving Party; and
(b) if the Party giving the Notice has complied with the requirements of this Section 11.
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by both Parties.
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Neither Party shall assign, transfer, delegate or subcontract (except as permitted for Company in Section 1.1) any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section 15 shall be null and void. No assignment or delegation shall relieve the Party of any of its obligations under this Agreement.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of North Carolina, without giving effect to the conflict of laws provisions thereof. Any action or proceeding by either of the Parties to enforce this Agreement shall be brought only in any state or federal court located in the State of North Carolina, County of Wake. The Parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
This Agreement, including and together with any related invoices, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
By checking the acknowledgment box and submitting payment, Client acknowledges that they have read, understood, and agree to be bound by the terms of this Agreement. A copy of this Agreement will be made available to Client and stored in Client’s portal.