THIS SERVICE AGREEMENT (“Agreement“) is made and entered between you (“Client“) and KYLE ELLIOTT CONSULTING, LLC, (“Company“), each being referred to individually as a “Party,” and collectively as the “Parties” throughout this Agreement.
WHEREAS, Client seeks to retain Company for the purpose of Company providing career coaching, job search, and/or resume building consulting services (“Services”); and
WHEREAS, Company and Client wish to clarify and memorialize their understanding with respect to Company’s provision of Services, and the duties and obligations related thereto associated with each Party, subject to the terms and conditions set forth herein (“Purpose”).
NOW, THEREFORE, in consideration of the foregoing and mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Client hereby agree as follows:
TERMS AND CONDITIONS
- Adoption of Recitals. The above recitations are true and correct and are incorporated herein by this reference. The Parties hereby cancel and revoke all prior agreements between them related to the Purpose of this Agreement, whether oral or written.
Scope of Services; FAQ. Client hereby retains Company for the purpose of providing the Services set forth in Schedule A, attached hereto. Should Client require or request that Company perform additional and/or a la carte services in addition to the Services set forth in Schedule A, the Parties agree that: (i) Client shall pay for such additional and/or a la carte services pursuant to the set cost(s) (or pro rata portion thereof) as made known from Company to Client pursuant to Schedule A, or otherwise; or (ii) in the event such additional and/or a la carte services are not part of the Services for which Company has established set costs(s) and made known to Client, Company and Client shall negotiate in good faith with respect to the terms, conditions, and compensation for such additional and/or a la carte services. Any agreement for additional and/or a la carte services not initially contemplated via this Agreement shall be set forth in writing, signed by the Parties, and considered an addendum to this Agreement; provided, it is mutually understood that an upgrade by Client to any package already offered by Company shall not require an addendum and shall be effected pursuant to Company’s providing of such upgraded Services upon Client’s request.
Additional information regarding Company’s Services may be found at https://caffeinatedkyle.com/faq/ (“FAQ“). In the event of any conflict contained in this Agreement and Company’s FAQ, the terms and condition set forth in this Agreement shall control.
- Term; Termination.
- Term: The term of this Agreement shall commence on the Effective Date, and shall remain in full force and effect until Company’s completion of the Services contemplated by this Agreement (“Initial Term“), unless terminated by either Party, or extended, in accordance with the terms set forth in this Agreement.
- Cancellation: Either Party shall have the right to terminate this Agreement at any time, without cause, upon thirty (30) days’ advanced written notice to the other Party (“Cancellation Notice“).
- Renewal: This Agreement may be renewed at any time prior to the expiration of the Initial Term (or Term, as the case may be) by mutual written agreement signed by the Parties (“Renewal Term“). The Initial Term and Renewal Term shall be collectively referred to as the “Term” throughout this Agreement.
Compensation. Client shall pay for the Services immediately upon Client’s acceptance of this Agreement (“Compensation“). Company offers (i) three (3) various “Job Search” packages: (1) Tall; (2) Grande; and (3) Venti (each, a “Job Search Package“), and (ii) three (3) various “Coaching” packages: (1) Addshot; (2) Doppio; and (3) Gold (each, a “Coaching Package“), for the Services, and the prices of each are respectively set forth in Schedule A. Client shall select the Job Search Package and/or Coaching Package in accordance with Client’s execution of this Agreement.
Client shall prepay all Services provided pursuant to this Agreement prior to performance and/or completion thereof by Company, and in the event additional and/or a la carte services are required or requested by Client, or Client elects to upgrade Client’s package, Company shall invoice Client for all sums due in accordance therewith, which shall be paid by Client within thirty (30) days after receipt of such invoice from Company, or on the due date for payment specified in the invoice, if such date is earlier. Client acknowledges that Services, and any additional and/or a la carte services required or requested by Client, may be suspended or terminated on five (5) days notice if Client fails to pay any invoice when due.
In the event this Agreement is terminated pursuant to Section 3(b) above: (i) Client shall pay to Company all amounts due and payable to Company for Services (and any additional and/or a la carte services required or requested by Client) performed up to the cancellation date stated in such Cancellation Notice; and (ii) Client acknowledges that any and all compensation already paid to Company is non-refundable.
- Client’s Representations and Warranties. Client hereby represents and warrants to Company the following:
- Any and all personal and/or confidential information provided by Client shall be true, accurate, complete, and not misleading;
- Client acknowledges that Company: (i) provides the Services for advisory and/or guidance purposes only; (ii) encourages Client to obtain Client’s own legal, accounting, investment, and/or tax advice regarding the Services provided hereunder; and (ii) shall not be liable to Client should Client rely on the Services as legal, accounting, investment, or tax advice; and
- Client has the full power, ability, and authority to enter into this Agreement and perform each and every obligation hereunder.
- Indemnification. Client shall at all times defend, indemnify, and hold harmless Company, and Company’s officers, directors, shareholders, employees, attorneys, agents, affiliates, successors, and assigns, from and against any and all third party claims, damages, liabilities, costs, and expenses, including, without limitation, reasonable attorney’s fees and costs, arising out of or relating to: (i) Client’s breach of this Agreement; (ii) Company’s use of Client’s personal and/or confidential information in accordance with or in furtherance of the Services (and any additional services required or requested by Client); (iii) Client’s use of the Services in a manner not intended, directed, or advised by Client; and/or (iv) any materials that Client provides in furtherance of the Services provided pursuant to this Agreement.
Consulting / Guidance Purposes; No Guarantees. Client acknowledges that the Services provided by Company are guidance / advisory services only; in no event shall Company’s providing of Services be interpreted or construed as providing any guarantees or “definites” regarding such Services, and Client acknowledges that any and all acceptance of guidance and/or advice provided by Company shall be subject to Client’s sole and absolute discretion on a case by case basis. In no event shall it be construed that Company enticed or induced Client to act in a manner in which Client would not have done so absent the providing of such guidance or advice by Company. The Services are provided for consulting and guidance purposes only, and in no event shall the Services provided pursuant to this Agreement constitute legal, accounting, investment, or tax advice. It shall be the Client’s sole responsibility to evaluate and act upon the information provided by Company.
Client acknowledges that Company’s Services do not involve the diagnosis or treatment of mental disorders as defined by the American Psychiatric Association and that Company’s Services are not to be used as a substitute for counseling, psychotherapy, psychoanalysis, mental health care, substance abuse treatment, or any other form of professional advice by legal, medical or other qualified professionals. Client agrees that it shall be Client’s sole responsibility to seek such independent professional guidance as needed and to provide any and all necessary information deemed necessary relating thereto.
- Limitation of Liability.
- Client’s use of the Services is solely at Client’s own risk. The Services, including, without limitation, any materials or content provided in relation thereto, are provided “AS IS,” without warranty of any kind, either express or implied, including, without limitation, any warranty for information, data, availability, completeness, accuracy, usefulness, merchantability, or fitness for a particular use, and any and all other warranties are expressly disclaimed by Company to the fullest extent of the law. No information, whether oral or written, obtained from Client for or through use of the Services shall create any warranty not expressly made herein. Notwithstanding the foregoing, Company attempts to ensure that all information provided via the Services is correct and current, and Company reserves all right to change or edit any information provided via the Services. It shall be the Client’s sole responsibility to evaluate and act upon the information provided via the Services.
- IN NO EVENT SHALL COMPANY BE RESPONSIBLE TO CLIENT FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, BUSINESS, OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO CLIENT EXCEED THE AMOUNT OF MONIES THEN RECEIVED BY COMPANY FROM CLIENT PURSUANT TO THIS AGREEMENT.
Further Assurances; Client Delays. Client agrees to promptly execute and deliver all additional documents, materials, and data, and to do whatever else is reasonably necessary or required, in order for Company to provide the Services.
Client agrees to make reasonable efforts to be available by e-mail or telephone to answer any and all questions necessary to assist Company in the providing of the Services. Client understands that Client’s failure to be available for strategy session calls and/or to provide necessary information (questionnaires, supporting documents, etc.) to Company as requested may result in the delay of Company’s ability to provide the Services. If Client fails to comply with any of the procedures and processes necessary for Company’s provision of the Services, Company reserves the right to terminate this Agreement and/or assess a restart/reactivation fee imposed by Company for the continuation of the Services.
- Force Majeure. Neither Party shall be liable for any failure to perform any of its obligations under this Agreement (except payment obligations) due to unforeseen circumstances or causes beyond the Party’s reasonable control, including, without limitation, acts of God, riots, fire, earthquake, labor strikes, technical failure or shutdown (i.e. hardware or software failure), or accident (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the time for performance of Services shall be extended for the period of time in which the Force Majeure Event was in existence; provided, however, in the event a Force Majeure Event remains in existence for a period of more than sixty (60) consecutive days, either Party may terminate this Agreement upon providing written notice to the other Party. In the event of termination hereunder, all monies then due and owed to Company shall become immediately payable to Company.
- Notices. Any notice, consent, or report required to be given under this Agreement shall be in writing and delivered to the other Party by: (i) postage prepaid, registered or certified mail (with receipt being deemed on the earlier of actual receipt or the third (3rd) day thereafter); (ii) by hand or personal delivery (with receipt being deemed upon delivery); (iii) by overnight delivery service (with receipt being deemed on the next business day); or (iv) by email (with receipt being deemed on the first business day on or after which the email is sent), at the address provided by either Party as set forth below, or such other address designated by a Party in accordance with this Section.
- Relationship of the Parties. The Parties agree that Company is retained solely as an independent contractor, and that nothing contained herein shall be construed or interpreted as creating an agency, joint venture, partnership, or employment relationship of any kind between the Parties. Pursuant thereto, Company shall have the absolute right to control the means, manner, and method by which Company provides the Services.
- Severability. If any part or portion of this Agreement is determined invalid or unenforceable, in whole or in part, by a court of competent jurisdiction, neither the validity of the remaining parts of such provision, nor the validity of any other provision contained in this Agreement, shall in any way be affected thereby.
- Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles thereof. Each Party agrees that binding arbitration before a single arbitrator shall resolve any dispute or controversy arising in connection with this Agreement. Any such arbitration shall be conducted in San Luis Obispo County, California. Judgment upon any award may be entered in any court of competent jurisdiction. The decision of the arbitrator shall be binding and conclusive upon the Parties. In the event of any legal action or proceeding brought for the enforcement of this Agreement or arbitration award, the prevailing party shall be entitled to recover reasonably incurred attorney’s fees and costs.
- Waiver. The waiver or delay by either Party to enforce any provision contained in this Agreement shall not operate or be construed as a waiver of any subsequent enforcement of the same or any other provision contained in this Agreement. All waivers shall be set forth in writing and signed by the Party granting such waiver.
- Assignment. This Agreement and Client’s duties and obligations hereunder may not be assigned or delegated by Client without the express written consent of Company, which may be withheld in Company’s sole discretion. The rights, duties, and obligations of Company hereunder may be assigned or delegated by Company, and shall inure to the benefit of and be binding upon any assignees or successor of Company’s rights, by reason of merger, consolidation, reorganization, or other similar transaction.
- No Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to confer upon or give to any person or entity, other than the Parties to this Agreement and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement. This Agreement, and all provisions and conditions contained herein, are intended to be, and shall be, for the sole and exclusive benefit of the Parties and their respective successors and permitted assigns.
- Counterparts. This Agreement, and any attachment, addendum, or amendments hereto, may be executed in several counterparts, each of which shall be deemed an original copy, and all of which together shall constitute one and the same instrument. Facsimile and other electronically transmitted signatures shall be binding upon receipt.
- Entire Agreement. This Agreement, and any attachments hereto, constitutes the entire and complete understanding between the Parties with regard to the Purpose of this Agreement and supersedes all prior negotiations, representations, guarantees, warranties, promises, statements, or agreements, whether oral or written, between the Parties as to the subject matter hereof. This Agreement may not be modified or amended unless via a separate writing signed by all Parties hereto.
- Joint Drafting. Each Party acknowledges they have participated in the drafting and negotiation of this Agreement, and have been afforded the opportunity to have legal counsel review this Agreement. As a result, there shall be no presumption against either Party on the ground that such Party was solely responsible for preparing this Agreement.
Additional information regarding Company’s Coaching Packages may be found at https://caffeinatedkyle.com/coaching/.
Additional information regarding Company’s Job Search Packages may be found at https://caffeinatedkyle.com/resume/.