SPECIFIED DELIVERABLES AGREEMENT
This DGE SPECIFIED DELIVERABLES AGREEMENT (the “Agreement”) comprises a binding agreement by and between you (“Recipient”) and Dunn Growth Experts, LLC (“DGE”).
WHEREAS, DGE is in the business of providing revenue, enterprise value, go-to-market, management, strategy, and executive coaching consulting services solutions including, without limitation, (i) certain customized assessments and reports, such as the DGE Product Solution Assessment, and (ii) pre-paid consultation services offered either in conjunction with the procurement of such assessments and reports or separately (hereinafter “DGE Deliverables”); and
WHEREAS, Recipient desires to obtain certain DGE Deliverables from DGE pursuant to the terms and conditions of this Agreement;
NOW THEREFORE, for and in consideration of the premises and mutual covenants set forth herein and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, DGE and Recipient agree as follows:
1. DGE Deliverables. Recipient has tendered a request for DGE Deliverables through the DGE website found at www.dunngrowthexperts.com (the “Site”). Upon confirmation and acceptance by DGE of Recipient’s request for DGE Deliverables through issuance of a purchase order (the “Order”) and receipt of all payments specified in the Order, DGE shall provide Recipient with the DGE Deliverables in the manner and timetable outlined in the Order.
2. License Grant. Subject to the terms and conditions of this Agreement, DGE grants to Recipient a non-exclusive, limited, non-transferable, non-sublicensable license to use the DGE Deliverables for Recipient’s internal business purposes. The foregoing license shall be for an initial term of five (5) years from the date of the Order and shall continue thereafter for successive one-year terms unless and until terminated by DGE by providing at least thirty (30) days advance notice prior to the expiration of the then current term.
3. Reservation of Rights. The DGE Deliverables, and all content provided as part thereof, is either owned or used under license by DGE, and is protected by U.S. and international copyright, trademark and other intellectual property laws (“DGE-IP”). Any rights not expressly granted to Recipient in this Agreement are reserved by DGE and its licensors. DGE-IP may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of DGE and/or its licensors. Recipient must abide by all copyright notices, information, or restrictions contained in or attached to any DGE-IP. All trademarks and service marks adopted by DGE to identify DGE or the DGE Deliverables, or any components thereof, including, without limitation, the marks Dunn Growth Experts, DGE, the DGE logo and variations thereof, belong exclusively to DGE. Recipient shall have no rights in such marks except as specified in writing between the parties.
4. Payment. In exchange for the DGE Deliverables and the license granted herein, Recipient shall pay DGE the amounts specified in the Order. Except as otherwise set forth in the Order, all fees are due in advance. Recipient is responsible for any taxes, including personal property taxes or sales taxes, resulting from Recipient’s receipt of the DGE Deliverables.
5. Disclaimer of Warranties. THE DGE DELIVERABLES ARE PROVIDED “AS IS.” DGE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DGE DELIVERABLES INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY. DGE SHALL NOT BE LIABLE TO RECIPIENT OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, LOSS OF GOODWILL, EVEN IF DGE HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL DGE’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY RECIPIENT FOR THE DGE DELIVERABLES. RECIPIENT ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND AGREED TO BY THE PARTIES, AND THAT DGE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
7. Electronic Communications. Communications between Recipient and DGE shall use electronic means, whether through the Site or Site or via email. For contractual purposes, Recipient (a) consents to receive communications from DGE in an electronic form; and (b) agrees that all notices, disclosures, and other communications that DGE provides to Recipient electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
8. Confidentiality and Use of Anonymous Data. DGE will treat proprietary information disclosed by Recipient as confidential and will safeguard it in the same manner that Consultant treats its own proprietary information of like kind. DGE will only use such proprietary information solely in connection with providing the DGE Deliverables to Recipient, and will not disclose, distribute, or disseminate Recipient’s proprietary information to any third-party, unless DGE is required by law to do so. Recipient understands and agrees that DGE may collect and compile aggregated data and statistics from information supplied by Recipient, provided that such aggregated data and statistics do not specifically identify Recipient or Recipient’s proprietary information.
9. Force Majeure. In no event shall DGE be liable to Recipient, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond DGE’S reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
10. Assignment. Recipient may not assign any of Recipient’s rights or delegate any of Recipient’s obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of DGE. Any purported assignment or delegation in violation of this Paragraph 10 will be null and void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
11. Nature of Agreement. This Agreement constitutes the complete understanding of the parties as to the subject matter hereof. No modification or waiver of any provision shall be valid unless in writing and signed by both parties. If any provision of this Assignment shall be held to be void, invalid or unenforceable by a court of competent jurisdiction, or by any other legally constituted body having the jurisdiction to make such a determination, it shall not affect the validity or enforceability of any other provision of this Agreement.
12. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of North Carolina and the laws of the United States of America applicable to contracts made and to be fully performed therein, excluding Conflict of Law Principles. The parties irrevocably submit to the nonexclusive jurisdiction of the federal and state courts of the State of North Carolina, U.S.A.; provided, however, that (i) nothing herein shall preclude DGE from instituting proceedings against Recipient, or anyone acting by, through or under Recipient, in any place which may have jurisdiction for the purpose of protecting and enforcing DGE’s rights either hereunder or pursuant to any other agreements, documents, instruments or otherwise; and (ii) in no event may Recipient institute proceedings against DGE or anyone acting by, through or under DGE in any place other than in the State of North Carolina, United States of America.