Terms and Conditions

This letter agreement (this "Agreement") sets forth the terms under which Giving Tree Associates, Inc., an Illinois corporation ("GTA") has been engaged by the Client addressed in the electronic scope of work that accompanied this letter, to provide consulting services (the "Services") pertaining to the (the "Project") outlined in Schedule 1. We look forward to working with you.

Overview. Client engages GTA to provide the coaching and related Services described on Schedule 1. GTA will provide the Services for the Project in a professional manner in accordance with applicable industry standards and will use commercially reasonable efforts to deliver Services on a timely and efficient basis, provided that Client acknowledges that its cooperation and timely provision of information, assistance, facilities, materials, or other reasonable support is a necessary condition to GTA's successful performance of the Services.
Fee Structure and Payment. Client agrees to pay GTA the "Fees" and expenses described, upon the dates and other terms set forth herein and on Schedule 1. Payment to GTA is due within 30 days of the billing date. This Agreement controls in the event of a conflict with Schedule 1.
Subcontractors. GTA shall be free to involve Subcontractors, availing of specific expertise, in the performance of the Project, provided that GTA shall have these third parties enter into confidentiality obligations similar to the confidentiality obligations applicable to GTA. If requested by the Client, the Consultant shall identify these Subcontractors, specifying in each case their specific expertise.
Client Confidences. Client may from time to time disclose to GTA confidential information relating to its business and affairs, the Project, or the Services provided hereunder ("Confidential Information").
- GTA shall use commercially reasonable efforts (i) to avoid disclosure of the Client’s Confidential Information to any third party without the express written consent of the disclosing party, except that GTA may provide the Confidential Information to subcontractors to provide the Services so long as such subcontractor has agreed to confidentiality provisions substantially as protective as those herein, and (ii) not to use the Client’s Confidential Information other than as intended for the Project. GTA shall use at least the same degree of care to avoid disclosure of the Client’s Confidential Information as it uses with respect to its own Confidential Information and in no event less than a reasonable degree of care. Nothing shall prohibit GTA from using the general knowledge accrued in providing the services hereunder for any purpose in GTA 's sole discretion.
- The following materials are not Confidential Information: (i) information which at the time of disclosure is in the public domain or information which after disclosure becomes part of the public domain through no fault of GTA; (ii) information received from a third party who did not acquire it from the Client under an obligation of confidentiality; (iii) information independently developed by GTA without use of the Client’s Confidential Information; and (iv) information which is required to be disclosed by law, in which case GTA shall, if permissible under law, provide the Client with reasonable notice of the proposed disclosure so the Client may seek to maximize the protection of the Confidential Information from further disclosure.
Non-Solicitation. Neither Client nor GTA shall employ or seek to employ personnel (whether an employee or independent contractor) of the other during the Term of this Agreement or within the 18 month period following the termination of this Agreement.
Client Custom Materials. Subject to Client's complete compliance with this Agreement, Client shall own all documents and materials which are custom produced by GTA for Client and delivered to Client, which do not contain pre-existing templates or work product of GTA ("Client Custom Materials"), and GTA shall have a perpetual, royalty-free license to use the Client Custom Materials, excluding Client's Confidential Information, as templates for other clients of GTA and for GTA's other reasonable business purposes, provided that GTA shall not use or disclose any Confidential Information of Client in respect of such usage for template and other business purposes.
GTA Materials. GTA shall own and retain all rights to any (a) solicitation training materials and (b) documents and materials containing any pre-existing templates or work product owned (or licensed) by GTA prior to the Project, ("GTA Materials"). Subject to Client's complete compliance with this Agreement, Client shall have a perpetual, royalty-free license to use GTA Materials which GTA provides to Client for the Project solely for related internal purposes, provided that Client shall not disclose the GTA Materials to any third party (except those intended for public release and then solely to the extent so intended), publish the solicitation training materials, or use the solicitation training materials in any manner competitive with GTA.
Payments. Client will be billed monthly, in advance, for Fees and for expenses incurred. Payment to GTA is due within 30 days of the billing date. Amounts past due shall accrue interest at the lower of 15% per annum or the highest rate allowed by applicable law. GTA may suspend the Services or the Project if any payment is past due. Client shall be responsible for GTA's costs and expenses (including attorney's fees) of enforcing of its rights hereunder. Payments due for Services are not conditioned upon Client's collection of any amounts from any third party
Term. The term of this Agreement (the “Term”) shall commence, and GTA will commence performance of the Services, upon receipt of the signature of Client where indicated below (the “Effective Date”) and shall terminate as provided upon the later of the complete payment of all Fees and expenses owing by Client to GTA hereunder or final delivery by GTA of Services within the Project scope set forth on Schedule 1, unless terminated sooner as provided in this Section 8.
- (a) Either Party may terminate this Agreement and the Project "for convenience" upon 30 days prior written notice to the other, provided that if Client terminates for convenience, it shall be responsible (pay GTA) for any out of pocket costs or expenses, or other financial commitments, made by GTA in anticipation of the Project continuing upon its originally anticipated course. If GTA terminates for convenience, it shall refund a pro-rated amount of any prepaid Fees for Services not rendered and prepaid expenses to the extent not expended.
- (b) Either party may terminate this Agreement or suspend performance under it on notice to the other, if the other party breaches any material term of the Agreement and fails to cure such breach within 30 days after written notice from such party. If GTA terminates the Agreement under this clause (b) due to default by Client, Client will be deemed to have terminated the Project without providing the requisite 30 days notice. In such case, or if Client terminates the Agreement without providing the requisite notice, no prepaid amounts shall be refunded and Client will pay GTA (to the extent not prepaid), as liquidated damages and not as a penalty, an amount equal to the Fees which would have been payable had GTA provided Services upon the normal anticipated course of the Project for the 30 days following the effective date of termination (or, if shorter, the shortfall in the number of days of notice of termination from the requisite 30 days). Notwithstanding any such termination or cancellation, Client shall remain responsible for any expenses incurred by GTA due to any cancellation or termination (including amounts committed to be paid to third parties such as vendors or subcontractors), which amounts shall be due and payable immediately upon the effective date of such cancellation or termination.
- (c) Upon termination of the Agreement for any reason, GTA shall (subject to Client's complete compliance with this Agreement) promptly return to Client all materials provided by Client to GTA to perform the services for the Project as well as any materials in process, and Client shall promptly remit to GTA all unpaid monies due under the Agreement (including any amounts for services actually rendered and uninvoiced). Each party shall either return to the other or destroy all tangible embodiments of the Confidential Information of the other and in its possession.
- (d) Any term or provision which by its nature should survive the termination of this Agreement shall survive a termination.
Compliance with Laws. Client shall be solely responsible to assure its compliance with all applicable laws and regulations pertaining to the Project, including without limitation laws regulating spam and email campaigns, direct mail campaigns, telemarketing and do not call lists, door to door campaigns, charitable solicitations, privacy or data privacy, gambling and gaming, and non-profit/not-for-profit organizations.
No Assurances. Client acknowledges that GTA promises no specific successful outcome of any of the activities anticipated to be undertaken, and that the success of the Project is dependent upon a number of external factors such as Client's cooperation and diligent performance of its duties hereunder and the generosity of Client's donors.
Limitation of Damages. In no event will GTA be liable for any loss of or damage to revenues, profits or goodwill or other special, incidental, indirect or consequential damage of any kind resulting from its performance or failure to perform pursuant to the terms of this Agreement or from the provision of services pursuant hereto, including, without limitation, any interruption of business, even if GTA has been advised of the possibility of such damages. Without limitation of the foregoing, in no event shall GTA be liable hereunder for amounts in excess of the amounts that it is paid hereunder.
Notices. Any notices, requests or demands shall be in writing and delivered or mailed to the other party at: if to Client, to the addressee at the address on the first page of this Agreement, and if to GTA, at the address set forth on the GTA letterhead on the first page of this Agreement, attention: Amy Schiffman. Either party may change their notice address upon written notice.
Indemnification. Client agrees to indemnify, defend and hold harmless GTA from any third party claims, and any damages, liabilities, costs, and expenses arising therefrom (including reasonable attorneys fees and expenses) arising out of or related to (a) Client's violation of applicable law in undertaking the activities contemplated hereunder; (b) any event, or any liability or obligation to the facility or venue used for such event, at which any Project activities occur; (c) any obligations of Client to any vendor or other third party engaged by Client for any purpose, or (d) any untrue statement by Client to GTA of a material fact or (e) omission to state a material fact necessary in order to make a statement not misleading in light of the circumstances under which it was made, which statement or omission was passed through substantially as made to GTA to a third party who claims to have been so misled, except to the extent the same are caused by the gross negligence, recklessness or willful misconduct of GTA.
Relationship of the Parties. Each party is an independent contractor and the parties are not agents or legal representatives of each other and have no power to represent or legally obligate each other in any manner. GTA shall have the right to provide approvals to engaged vendors on behalf of Client so long as no material contractual obligations are created thereby (for example and without limitation, GTA may hire printers or approve printing proofs submitted by a printer or designer).
Total Understanding. This Agreement constitutes the full understanding of the parties with respect to the subject matter hereof and all prior agreements or statements are superseded hereby. This Agreement may only be amended, or any obligation hereunder waived, in a writing executed by GTA and Client expressly referencing such amendment or waiver. No course of dealing or other activity on the part of GTA, nor any act of reliance on Client part, shall be deemed to so bind GTA.
Assignment. Neither GTA nor Client may assign or delegate its rights or obligations pursuant to this Agreement without the prior written consent of the other. However, no consent is required for an assignment that occurs (a) to an entity in which the transferring party owns more than 50% of the assets, or (b) as part of a transfer of all or substantially all of the assets of the transferring party to any party. Any assignment or delegation in violation of this section shall be void.
ForceMajeure. Neither GTA nor Client will be responsible or liable in any way for failure or delay in carrying out the terms of this Agreement resulting from any cause or circumstance beyond its reasonable control, including fire, flood, other natural disasters, war, interruption of transit, accident, explosion, civil commotion, and acts of any governmental authority; provided, that the party so affected will give prompt notice thereof to the other. No such failure or delay will terminate this Agreement, and each party will complete its obligations hereunder as promptly as reasonably practicable following cessation of the cause or circumstances of such failure or delay.
Choice of Law and Jurisdiction. This Agreement and any matters relating thereto shall be governed, construed and interpreted in accordance with the laws of the State of Illinois without regard to the conflicts of laws provisions thereof. All actions concerning any dispute arising out of the Agreement must be brought in the state or federal courts with appropriate subject matter jurisdiction located in (or having jurisdiction over) Cook County, Illinois.