All Hands Outplacement Terms and Services
CULTIVATE TEAM, LLC
ALL HANDS OUTPLACEMENT PROGRAM
TERMS AND CONDITIONS
PLEASE REVIEW THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS CONTAIN A RELEASE AND WAIVER OF CLAIMS. THEY ALSO REQUIRE THAT DISPUTES BETWEEN THE PARTIES BE RESOLVED BY BINDING ARBITRATION AND CONTAIN A WAIVER OF TRIAL BY JURY. BY AGREEING TO THESE TERMS AND CONDITIONS, EMPLOYER IS EXPRESSLY ACKNOWLEDGING THAT IT HAS READ AND UNDERSTOOD ALL OF THE TERMS AND CONDITIONS AND HAS TAKEN THEM TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. PLEASE READ CAREFULLY BEFORE EXECUTING.
1. Binding Agreement. By agreeing to these Terms and Conditions and accessing the Services, as described below, these Terms and Conditions shall become a binding agreement (the “Agreement,” “Terms and Conditions”) between employer who has agreed to these Terms and Conditions and accesses the Services (the “Employer”), and Cultivate Team, LLC, a New York limited liability company, (“Cultivate”) (each of the Employer and Cultivate are a “Party” and, collectively, Employer and Cultivate are the “Parties”). Employer expressly understands that these Terms and Conditions may be updated periodically, and by continuing to access the Services, Employer agrees and shall adhere to the updated Terms and Conditions.
2. Services: Employer shall be provided with access to Cultivate’s outplacement services for employees that are separating from employment with Employer (“Employees”), which includes the services that are part of the program that the Employer agrees to by making payment, which may include, by way of example and not by limitation, Masterclasses, individualized coaching sessions for Employees, talent matchmaking, and Employee invitation to a Slack channel for real-time support (the “Services”). To participate in the Services, Employers must agree to these Terms and Conditions and have purchased a seat in the program for Services. Employees will be invited to enroll if they choose to opt in. To access the Services, Employees must opt-in by enrolling in the program for Services and agreeing to the respective terms and conditions for the Services, all of which are incorporated herein by reference.
3. Fee; Payment.
a. Fee. In consideration of the Services, Employer shall pay a fee in accordance with the fee or fee schedule quoted for the specific Services selected by the Employer on the payment page, which may vary depending on the number of seats purchased by Employer for the specific Service (the “Fee”).
b. Payment. Payment shall be due upon Employer’s agreement to these Terms and Conditions and shall be nonrefundable. All Fees are payable by Paypal or credit/debit card.
4. Term and Termination: This Agreement shall be effective as of the date of purchase by Employer (the “Effective Date”) and shall remain effective for eight (8) weeks from the Effective Date (the “Term”). Cultivate may terminate this Agreement at any time with or without cause or notice to the Employer. Cultivate shall provide notice to Employer in the event of immediate termination. In the event that this Agreement is terminated prior to the end of the Term, Employer shall not be entitled to and Cultivate shall not issue any refund (in part or in whole) for the remainder of the Term.
5. Parties Relationship. In agreeing to the Services, Employer understands that Cultivate will serve as an independent contractor, and is in no way Employer’s employee, agent or business partner. Nothing in this Agreement shall constitute a partnership, agency, joint venture or employer-employee relationship between Employer and Cultivate or authorize Employer to make any representation on behalf of or in any way to bind Cultivate to any obligation of any kind, express or implied, to any third party, or to incur any liability on behalf of Employer. Cultivate is retained solely for the purpose of providing the Services to Employer. Nothing in this Agreement shall prohibit Cultivate from furnishing the Services to others, at Cultivate’s sole discretion.
6. Intellectual Property. Cultivate shall retain all rights, title, ownership and interest to: (i) all presentations, manuals, photos, videos, content, or other materials developed and owned by or licensed to Cultivate used in the performance of the Services; (ii) all generic or proprietary information developed by Cultivate; (iii) all ideas, methodologies, processes or procedures used, created or developed by Cultivate in the conduct of Cultivate’s business; (iv) any work product, materials, or resources that may be develop specifically for Employer but not accepted or otherwise delivered to Employer; or (v) any work product, materials, or resources Employer does not pay for, even if such work product, materials, or resources were produced as part of Cultivate’s performance of the Services for Employer. By participating in the Services, Employer may have access to intellectual property owned by Cultivate as described in this Section 6. Employer shall treat knowledge of Cultivate’s intellectual property as Confidential Information (as described in Section 9 below) of Cultivate, respect it as such, and not disclose any of such Confidential Information to anyone outside of the Cultivate without prior written approval to do so by Cultivate.
7. Employer Information. Any pre-existing or preparatory materials, including, without limitation, information related to Employer’s business, operations, employee records and data, lists, files, documents, technology assets, computer records, and constituent records, in any form whatsoever, whether written, electronic, or otherwise, delivered by Employer to Cultivate (collectively “Employer Information”) will remain the sole and exclusive property of Employer. Employer represents that the Employer Information does not and will not infringe or violate the intellectual property, privacy, or proprietary rights of any third party. Employer hereby grants to Cultivate a non-exclusive, royalty-free license to use, copy, modify, and create derivative works of Employer Information solely in connection with Cultivate’s performance of the Services. Cultivate may rely upon Employer Information as provided by Employer to Cultivate in connection with the performance of the Services and can assume the truthfulness of any Employer Information or statement made about the same by the Employer for any purpose, including for regulatory or other legal approval processes.
8. Confidentiality. Cultivate and Employer (either, when receiving Confidential Information, a “Receiving Party”) may have access to proprietary, private or otherwise confidential information (“Confidential Information”) of the other party (either, when disclosing Confidential Information, a “Disclosing Party”). Confidential Information shall mean all non-public information that constitutes, relates or refers to the business or operations of the Disclosing Party, including but not limited to any methodologies, formulae, systems, business plans and strategies, financial information, forecasts, books and records, operational information, contracts, the terms, and provisions of this Agreement, and all other information relating to Disclosing Party disclosed to Receiving Party, whether or not labeled as “Confidential” and regardless of the method of transmission or the media in which the same is stored or recorded. Confidential Information does not include any information, or any portion of any document based thereon, that: (i) was known to the Receiving Party at the time of its disclosure by the Disclosing Party; (ii) was or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (iii) has already been or is hereafter independently acquired or developed by the Receiving Party without violating this Agreement; or (iv) was or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not, to Receiving Party's knowledge, subject to a confidentiality obligation with respect to such information. Except as permitted herein, the Receiving Party will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Receiving Party, or divulge, disclose, or communicate in any manner any Confidential Information; however, the Receiving Party may disclose all or any part of the Confidential Information to its employees and agents on a need-to-know basis. If the Receiving Party is compelled to disclose all or any part of the Confidential Information in any judicial or administrative proceeding, it may do so without liability under this Agreement so long as it uses reasonable efforts to obtain assurances that confidential treatment will be accorded to such information and provides prior written notice to the Disclosing Party.
9. Representations and Warranties. Employer shall comply with all federal, state, and local laws, rules, regulations, and ordinances in connection with the access to the Services. Employer further represents and warrants that its access to the Services shall not violate any federal, state or local law, rule, regulation or ordinance, including, without limitation, laws governing the use and exchange of protected health information, privacy rules and regulations, and copyright and trademark rules and regulations. This provision shall survive termination of this Agreement.
10. Publicity. Cultivate hereby grants Employer a limited, revocable, royalty-free, non-exclusive license to use the Cultivate name and/or logo solely for use in connection with the Services, subject to the terms and conditions of this Agreement. Employer shall not issue any press releases related to the Services or this Agreement, or otherwise use Cultivate’s name or logo in a press release without express prior written approval from Cultivate (“Public Statements”). Among any other remedies available to it, Cultivate expressly reserves its right to terminate this Agreement immediately upon notification that any Public Statements have been distributed in violation of this provision, and obtain an injunction to enjoin any further dissemination of Public Statements in violation of this provision. This provision shall survive the termination of this Agreement.
Employer hereby grants to Cultivate a limited, revocable, royalty-free, non-exclusive license to use, without compensation or notification, its name and logo in materials, regardless of media form, in connection with its advertisement of the Services. Employer may revoke such license by submitting a written notice to Cultivate in accordance with this Agreement.
11. Indemnification. Each Party (when indemnifying the other Party, the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party and its affiliates (when indemnified by the other Party, collectively the “Indemnified Party”) from and against any demands, actions, suits, damages, settlements, costs, liabilities, losses, claim, and expenses, including reasonable attorneys' fees and costs, arising from or related to (i) Indemnifying Party's gross negligence or willful misconduct in performing Indemnifying Party's obligations under this Agreement; (ii) Indemnifying Party's material breach of any of its covenants, representations and warranties in this Agreement; and/or (iii) Indemnifying Party's violation of any federal, state, or local law, rule, regulation or ordinance, including without limitation rules and regulations associated with claims of defamation, or copyright or trademark rules or regulations, in performance of Indemnifying Party's rights or obligations under this Agreement.
12. Disclaimer of Warranties. Employer understands and agrees that Cultivate makes no guarantees regarding the results of the Services and the Services’ impact on Employer or Employee. Employer and Employee acknowledges that the Services and Work Product provided by Cultivate hereunder are provided “as is” and “where is,” without any warranty, representation, or condition of any kind whatsoever, and that Employer’s and Employee’s use of the Services is at Employer’s and Employee’s own risk. Cultivate does not make, and Employer and Employee are not receiving, any warranties, express, implied, or otherwise, with respect to the Services, including but not limited to, implied warranties and conditions of merchantability, fitness for a particular purpose, title or non-infringement. Cultivate shall not be held responsible for Services that may later be undesirable or cause inconvenience to Employer or Employee. Employer and Employee also understand and acknowledge that Cultivate will not be responsible for loss due to lateness, no shows, or other actions or inactions by Employer, Employee, or other third parties, neglect, human error, loss of materials, or equipment or other failures. This provision shall survive the termination of this Agreement.
13. Release and Waiver. Employer hereby RELEASES, WAIVES, DISCHARGES AND COVENANTS THAT IT SHALL NOT SUE CULTIVATE or its affiliates (collectively, the “Releasees”), from and for any liability resulting from any loss or damage, including loss of property, data, confidential information, business, personal injury, accident or illness (including death), and/or property loss, however caused, arising from, or in any way related to the Services. EMPLOYER UNDERSTANDS AND AGREES THAT THIS RELEASE AND WAIVER IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY LAW. EMPLOYER UNDERSTANDS AND AGREES THAT EMPLOYER HAS FORFEITED ITS RIGHTS TO SUE CULTIVATE, AND THAT THIS RELEASE OF LIABILITY IS VALID FOREVER. Employer agrees that if Employer asserts a claim contrary to what Employer has agreed to herein, it shall be liable for the expenses (including legal fees) incurred by Cultivate. In the event that any portion of this provision is found invalid, recourse against Cultivate shall under no circumstances include consequential, special or indirect damages, and the intent of the Parties is to re-draft this provision to be lawful or valid. This provision shall survive the termination of this Agreement.
14. Limitation of Liability. NEITHER CULTIVATE NOR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS,MEMBERS, EMPLOYEES OR AGENTS WILL HAVE ANY LIABILITY TO EMPLOYER OR ANY THIRD-PARTY FOR ANY PERSONAL INJURY, ACCIDENT, PROPERTY LOSS, LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THE SERVICES OR RELATED TO THIS AGREEMENT. THE TOTAL LIABILITY OF CULTIVATE TO EMPLOYER OR ANY THIRD-PARTY ARISING OUT OF THIS AGREEMENT OR USE OF SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED A TOTAL AMOUNT OF ONE THOUSAND DOLLARS ($1,000.00). IN NO EVENT WILL CULTIVATE OR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS, BE LIABLE FOR EMPLOYER’S OR EMPLOYEE’S PARTICIPATION IN THE SERVICES, OR ANY ACT OR OMISSION BY ANY OTHER THIRD PARTY. ANY DISPUTE BETWEEN EMPLOYER AND AN EMPLOYEE SHALL BE SOLELY BETWEEN THE EMPLOYER AND THE EMPLOYEE, AND CULTIVATE DISCLAIMS ANY LIABILITY IN CONNECTION WITH SUCH DISPUTES.
15. Non-Solicitation. During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement for any reason, whether voluntary or involuntary, Employer will not assist, solicit, coach, or encourage any personnel and associated persons of Cultivate to discontinue employment with Cultivate. This Section will survive the term and termination of this agreement.
16. Dispute Resolution. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The Parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the Parties are unable to agree to such a selection, each Party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place in New York, and shall apply the law of New York to the extent applicable. The arbitrator(s) shall not have the authority to award punitive damages. The decision rendered by the arbitrator(s) shall be final and binding on the Parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The arbitration shall be private and confidential and only the Parties, the witness then testifying and the attorneys may attend the hearing. EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTERS INVOLVING THE PARTIES HERETO. This provision shall survive termination of this Agreement.
17. Miscellaneous Provisions.
a. Survival; Third Party Rights; Severability. Provisions of this Agreement, which by their nature and terms extend beyond the termination of this Agreement shall continue in effect after termination of this Agreement, regardless of the reason, and whether such termination is voluntary or involuntary. Nothing contained in this Agreement shall be construed, nor is intended to give any rights or benefits to any person or entity, other than to Employer, Employee, and Cultivate. Employer acknowledges that the restrictions contained in this Agreement are fair and reasonable, and are reasonably required for the protection of Cultivate. If any provision of this Agreement (or portion thereof) is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision (or portion thereof) of this Agreement that can be given effect without the invalid provision. In such event, all Parties agree that the arbiter or court making such determination shall have the power to alter or amend such provision so that it shall be enforceable to the maximum extent permitted by law.
b. Waivers; Assignment; Modification. Failure or omission by Cultivate at any time to enforce or require strict or timely compliance with any provision of this Agreement shall not affect or impair that provision in any way or the rights of Cultivate to avail itself of remedies it may have in respect to any breach of that provision. Any waiver or consent given by Cultivate must be in writing and shall be effective only as to that instance and will not be construed as a bar to or waiver of any right on any other occasion. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by either Party without the prior written consent of the other Party; provided, however, that Cultivate may, without notice to Employer, (i) assign this Agreement to any entity that acquires all or substantially all of its assets or its business that is the subject hereof, or (ii) assign this Agreement to any entity that is owned by Cultivate. No oral statement shall in any manner modify or otherwise affect the terms and conditions set forth herein.
c. Notices. Except as otherwise specified herein, any notice required or permitted to be given under this Agreement shall be given by email, and shall be deemed to have been duly given upon receipt; or if the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in the email address for which no notice was given, then upon that rejection, refusal, or inability to deliver. For a notice to a party of be valid, it must be addressed as follows: if to Cultivate, to sarah@cultivateteam.org, and, if to Employer, to the email address entered by Employer upon agreement to these Terms and Conditions or last filed by Employer in writing with Cultivate in accordance with this provision.
d. Force Majeure. Cultivate shall not be liable to Employer under any circumstances for any damages, delay in performance or failure to perform by Cultivate if caused by any act or occurrence beyond its reasonable control, including but not limited to embargoes; changes in government regulations or requirements (executive, legislative, judicial, military or otherwise); acts of war, armed conflict, acts of terrorism, or threats thereof as substantiated by government warnings or advisory notices; strikes or labor disputes; civil disturbances; disease, pandemic, epidemic, or declared public health emergency; power failure, electrical surges or current fluctuations; disaster, fire, lightning, earthquake, flood, the elements or other forces of nature, including unseasonable extreme inclement weather; curtailment, delays, or failures of transportation services or systems; acts or omissions of telecommunications common carriers; or any other cause reasonably beyond the Parties’ control. If Cultivate’s performance is delayed by force majeure, the time for performance of the Services will be extended by the length of the delay or, at Cultivate’s option, terminated as provided herein.
e. Headings; Entire Agreement. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any provision thereof. Words of any gender used in this Agreement shall be held to include any other gender, and words in the singular shall be held to include the plural when the sense requires. This Agreement, including any payment page through which the Services are purchased, constitutes the entire agreement between the parties and supersedes all previous agreements on this matter. There are no other written or oral agreements, representations, or understandings with respect to the subject matter of this Agreement. As noted above, other terms and conditions governing use of Cultivate’s Services are incorporated herein by reference in Section 2.
EMPLOYER ACKNOWLEDGES THAT IT HAS THOROUGHLY READ THIS AGREEMENT AND FULLY UNDERSTAND ITS CONTENTS. BY SIGNING UP AND PAYING FOR THE SERVICES, EMPLOYER IS agreeing to these terms and conditions and WAIVING CERTAIN LEGAL RIGHTS, INCLUDING RIGHTS EMPLOYER MIGHT HAVE TO BRING A LEGAL ACTION OR ASSERT A CLAIM AGAINST CULTIVATE TEAM, LLC. EMPLOYER INTENDS FOR ITS consent to these terms and conditions TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF LIABILITY OF CULTIVATE TEAM, LLC TO THE GREATEST EXTENT PERMITTED BY LAW.
By the signing up and paying for the Services, Employer hereby confirms its agreement to abide by these Terms and Conditions.