TRACK THAT ADVISOR MONTHLY SUBSCRIPTION
This CLIENT SERVICES AGREEMENT (this “Agreement”) is made as of the Effective Date (as set forth on the signature page below), by and between TRACK THAT ADVISOR, LLC, an Arizona limited liability company (“Consultant”), and the client set forth on the signature page hereto (“Client”). Consultant and Client are sometimes referred to herein together as the “Parties” and each, individually, as a “Party”.
1) Engagement. Client hereby engages Consultant to provide certain consulting services, and Consultant hereby accepts such engagement with Client, upon the terms and subject to the conditions set forth in this Agreement.
2) Services. Consultant will provide the consulting services described in Exhibit A attached hereto (the “Services”). Consultant may subcontract the provision of Services (or any portion thereof) in Consultant’s sole discretion. Consultant is not an accounting or law firm, and does not provide any tax, accounting, or legal advice.
3) Consideration.
a) Consulting Fees. In consideration for the Services, Client will pay to Consultant the fees set forth in Exhibit A hereto (the “Fees”), which Fees will be payable as set forth thereon. Client expressly acknowledges and agrees that all Fees paid to Consultant are non-refundable. Client will be solely responsible for, and will pay, any and all sales, use, gross receipt, goods and services, value-added, and personal property taxes, any other taxes and levies, and any interest and penalties related to the foregoing (other than taxes based on the income of Consultant) that are imposed by any governmental authority in connection with this Agreement and/or the provision of the Services.
4) Term and Termination.
a) Term. The term of Consultant’s engagement hereunder shall commence on the Effective Date, and shall automatically renew annual.
b) Termination.
i) For Convenience. Client may terminate this Agreement at any time during the Term by providing written notice to Consultant and paying to Consultant an early termination fee as set forth in Section 4(c)(ii) below. If Client chose to pay annual amount upfront, they will be refunded 50% of remaining contract.
ii) Payment Default. If Client fails to maintain automatic payments for subscription the Consultant may terminate this Agreement upon written notice to Client.
iii) Insolvency/Bankruptcy. If a Party shall: (A) admit in writing its inability to pay its debts as they mature; (B) make a general assignment for the benefit of creditors; (C) apply for or consent to the appointment of a receiver, trustee or liquidator of all or a substantial part of its assets; (D) file a petition or be the subject of an involuntary petition in bankruptcy or for reorganization or for an arrangement pursuant to a bankruptcy act or insolvency which petition is not dismissed within ninety (90) days from such filing; or (E) be adjudicated as bankrupt or insolvent, then the other Party may terminate this Agreement upon written notice to the first Party.
c) Effect of Termination.
i) Upon termination of this Agreement: (A) Consultant will immediately cease the provision of all Services then being provided to Client; (B) Consultant will return to Client all of Client’s data
ii) If Client terminates this Agreement pursuant to Section 4(b)(ii) above or Consultant terminates this Agreement pursuant to Section 4(b)(iii), 4(b)(iv) or 4(b)(v) above, then, within thirty (30) days after the Termination Date, Client will pay to Consultant (in addition to the Fees and Reimbursable Expenses payable pursuant to Section 4(c)(i) above) liquidated damages equal to seventy-five percent (75%) of the Fees payable by Client (pursuant to Exhibit A hereto (e.g., the monthly subscription fees prior to the Termination Date)) during the remainder of the Initial Term or Renewal Term then in effect; provided, that the Parties agree that the amount of such liquidated damages is reasonable in light of the actual and anticipated harm caused by such early termination and the difficulty of proving such loss, and that such liquidated damages do not constitute a penalty.
5) Representations and Warranties.
a) Each Party hereby represents and warrants to the other Party as follows: (i) such Party has the full legal right and power and all authority required to enter into and to perform according to the terms of this Agreement; (ii) this Agreement is duly and validly executed and delivered by such Party, and constitutes legal, valid, and binding obligations of such Party enforceable against such Party in accordance with its terms; and (iii) the execution, delivery and performance of this Agreement by such Party do not and will not (A) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement or other instrument or other understanding to which such Party is a party or by which any property or asset of such Party is bound or affected, or (B) result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which such Party is subject, or by which any property or asset of such Party is bound or affected.
b) Client represents and warrants to Consultant as follows: (i) Client will not take (or permit any Client Party (as defined below) to take) any action (including, without limitation, the use of any deliverables provided by Consultant) that would violate any intellectual property or other rights of any third party; and (ii) Client’s use of the Services and all deliverables provided by Consultant will comply with all applicable United States federal, state and local and foreign laws, statutes, ordinances, codes, rules, and regulations.
6) Independent Contractor. Consultant is an independent contractor and not an agent, employee, partner, joint venture partner, subsidiary or an affiliated entity of Client. Nothing contained in this Agreement is intended or is to be construed to imply a joint venture, employer and employee, or principal and agent relationship between the Parties. No party shall incur any debts or make any commitments on behalf of the other Party, except to and only to the extent, if at all, specifically provided in this Agreement.
7) Indemnification. Client shall defend, indemnify and hold harmless Consultant and its affiliates, members, managers, officers, directors, employees, insurers, counsel, representatives, and agents (each an “Indemnitee”) from and against any and all claims (including, without limitation, any investigation, action or other proceeding, whether instituted by a third party against an Indemnitee or by an Indemnitee for the purpose of enforcing its rights hereunder), damages, losses, liabilities, costs and expenses (including, without limitation, attorneys' fees and court costs) that constitute, or arise out of or in connection with (a) any breach by Client of its representations, warranties, agreements and covenants set forth in this Agreement; (b) any use by Client or any Client Party (as defined below) of the Services and any deliverables provided by Consultant hereunder; and (c) any product, service or marketing/business development campaign or program that any Client Party develops, creates, uses, offers for sale and/or sells which incorporates any portion of the Services and any deliverables provided by Consultant hereunder.
As used herein, “Client Party” means Client and all of its past, present and future parent corporations, subsidiaries, affiliates, equity holders, directors, officers, managers, employees, customers, licensees, representatives, and agents.
8) Intellectual Property; Confidentiality. Client expressly acknowledges and agrees that, as between the Parties, Consultant is the sole and exclusive owner of all rights, intellectual and otherwise, to (i) all of Consultant’s Intellectual Property in existence prior to the Effective Date; and (ii) all Intellectual Property made, conceived, developed, discovered or reduced to practice, or caused to be made, conceived, developed, discovered, or reduced to practice, by Consultant, alone or in conjunction with others, after the Effective Date. “Intellectual Property” includes the customized Excel templates created by Consultant for Client hereunder.
a) As used herein, “Intellectual Property” means any and all Inventions, patents, patentable subject matter (irrespective of whether a patent application has been filed), Works of Authorship, trade secrets, trademarks, mask works, copyrights, and any other intellectual property; “Inventions” means any and all discoveries, improvements, ideas, concepts, creative works, and designs, whether or not in writing or reduced to practice, and whether or not they are patentable, including, but not limited to, processes, methods, formulas, and techniques and know-how; and “Works of Authorship” means those works fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, whether or not they are copyrightable.
b) During the Term of this Agreement and at all times thereafter, Client will keep confidential and not disclose, divulge, provide or make accessible to any third party any Confidential Information. Promptly after the expiration or termination of this Agreement or upon request by Consultant at any time, Client shall return to Consultant, or confirm in writing the destruction of, any of the Confidential Information which is in tangible form and which is then in Client’s possession.
c) As used herein, “Confidential Information” means all information concerning or related to the business, operations, financial condition or prospects of Consultant (whether prepared by Consultant, its affiliates or advisors, or otherwise, and regardless of the form in which such information appears and whether or not such information has been reduced to a tangible form), and shall specifically include (without limitation): (i) all information regarding the members, managers, officers, employees, customers, suppliers, distributors, sales representatives and licensees of Consultant, in each case whether past, present or prospective; (ii) all Intellectual Property, software, inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how of Consultant; and (iii) all financial statements, audit reports, budgets and business plans or forecasts of Consultant. The term “Confidential Information” does not include information that is or becomes generally available to the public other than as a result of an unauthorized disclosure by Client
d) Client may not copy, duplicate, distribute, republish, or incorporate the Deliverables or allow others to copy, duplicate, distribute, republish or incorporate or use the Deliverables.
9) Warranty; Disclaimers. CONSULTANT MAKES NO WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT OR
MARKET ACCEPTANCE, OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO ANY SERVICES AND DELIVERABLES PROVIDED TO CLIENT PURSUANT TO THIS AGREEMENT. CLIENT ACKNOWLEDGES AND AGREES THAT CONSULTANT HAS NOT PROVIDED ANY GUARANTEE OF SUCCESS OR OF SPECIFIC RESULTS IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES OR USE OF THE DELIVERABLES, AND HAS NOT PROVIDED ANY REPRESENTATIONS OR WARRANTIES REGARDING THE OUTCOME FROM SUCH SERVICES OR DELIVERABLES.
10) Limitation of Liability.
a) UNDER NO CIRCUMSTANCES WILL CONSULTANT BE LIABLE TO CLIENT, ANY CLIENT PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH CLAIM IS BASED (WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY), EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHICH INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, SAVINGS OR REVENUE, OR THE CLAIMS OF THIRD PARTIES).
b) CLIENT EXPRESSLY AGREES THAT CLIENT’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR CONSULTANT’S PERFORMANCE OR THE FAILURE OF SUCH PERFORMANCE HEREUNDER, OR FOR ANY BREACH BY CONSULTANT HEREOF, WILL BE TO TERMINATE THIS AGREEMENT
PURSUANT TO SECTION 4(b)(iii) ABOVE. CLIENT ACCEPTS THE RESTRICTIONS ON CLIENT’S RIGHT TO RECOVER ADDITIONAL DAMAGES AS PART OF CLIENT’S BARGAIN WITH CONSULTANT, AND CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT, WITHOUT SUCH RESTRICTIONS, THE FEES WOULD BE HIGHER.
10) Force Majeure. Except as otherwise expressly provided in this Agreement, Consultant shall not be liable to Client for any delay in or failure of its performance under this Agreement resulting from any act of God, fire, flood, explosion or other natural disaster, actions or impositions by Federal, state, local or foreign authorities, strike, labor dispute, vandalism, riot, commotion, act of public enemies, blockage or embargo or any other cause beyond the reasonable control of Consultant (“Force Majeure”).
11) Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed given (a) when delivered personally (including by recognized national courier), (b) when receipt is confirmed if sent by facsimile or email, or (c) five (5) days after deposited in the U.S. mail, first class mail, registered or certified, with postage prepaid, and addressed to the Parties at the addresses set forth on the signature page hereof or such other address as a Party may request by notifying the other Party in writing.
12) Consent to Jurisdiction. Each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Phoenix, Arizona for the purposes of any action or proceeding arising out of or relating to this Agreement. Each Party hereby consents to such jurisdiction and agrees that venue shall lie in the state or federal courts in Phoenix, Arizona with respect to any claim or cause of action arising under or relating to this Agreement. Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
13) Miscellaneous. This Agreement: (a) may be amended only by a writing signed by both of the Parties hereto; (b) may be executed in several counterparts (including by facsimile or .pdf delivered via email), each of which is deemed an original but all of which constitute one and the same instrument; (c) may not be assigned, pledged or otherwise transferred by Client, whether by operation of law or otherwise, without the prior written consent of Consultant; (d) contains the entire agreement of the Parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions; (e) is governed by, and will be construed and enforced in accordance with, the laws of the State of Arizona, without giving effect to any conflict of laws rules; and (f) is binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns. The waiver by a Party of any breach or violation of any provision of this Agreement will not operate as, or be construed to be, a waiver of any subsequent breach or violation hereof. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. The provisions of Sections 3, 4(c), 5-10, and 12-14 hereof and Section 2 of Exhibit A attached hereto will survive any termination of this Agreement.
14) Aggregate Data: Several times a year, your company’s data will be pooled in order to glean national averages and a report to Advisors Excel. Your identity will not be compromised in any way. Should you choose to opt out, please check this box here:
EXHIBIT A
Track That Advisor Monthly Subscription
1. Subscription: Consultant will provide Client with standard tracking templates, team training, and data analytics. Profile coaching calls available upon request for an additional fee to overview the following categories of Business Profitability Profile including analysis of in-house financials, advertising markets, appointment tracking and new client sources. Such subscription will provide the following:
a. Initial call. Phone call between Consultant and Client to discuss Client’s historic practices and needs, and Consultant’s offerings and initial suggestions.
b. On-Boarding Training. On Board Training will commence on agreed upon on-board date.
Upon commencement of team training, Consultant will provide Client with (i) access to Excel/Google Drive templates in each of the following areas: Marketing, Appointment Metrics, New Business Trackers and customized Business Profitability Profile tracker.
2. Monthly Maintenance:
Clients have access to our support team on an on-going basis for any issues that arise or changes that need to be made in the trackers. Additionally, the Track That Advisor team will have monthly communication with client (via email or phone).
3. Fees: In consideration for the subscription, Client will pay to Consultant the following Fees:
a. Initial call. There is no charge for the initial fact-finding phone call.
b. On-Boarding. A one-time fee of $1,500 which is payable in advance prior to the onboarding/team training date. On Board fees are non-refundable
c. Monthly Subscription. A monthly fee of $600, payable in advance, by prescheduled automatic payments which will automatically renew until notice has been given to Track That Advisor that services are no longer rendered. If a full year payment using marketing credits is made, any cancellation will not result in a refund.
d. Data Review. A Profile coaching call may be requested at any time (up to 4 per year). These presentations will highlight marketing, appointment, return on investment and production metrics. These reviews are available for an additional fee paid in advance upon scheduling.
4. 90-Day Free Look. If at the end of a 90-day period, either party feels this agreement will not work, it may be terminated without any additional fees/dues. If Client chose to pay annual amount upfront, they will be refunded 50% of remaining contract.
Google Sheet Privacy and Security
Track That Advisor Monthly Subscription
We understand that our company trackers are hosted on Google Sheets and a Google Drive, which may not be 100% secure. It is our responsibility to share specific emails of individuals that may have permissions to access, view, or edit each tracker.
Track That Advisor LLC is not responsible for any breech of privacy within the Google Trackers and therefore, does not recommend the trackers host any personal or confidential client or company information.
In addition, please be advised that if your team shares a Gmail account to access the tracker sheets, personal passwords should not be saved on other websites as this may lead to other team members potentially accessing sites with saved passwords. Track That Advisor is not responsible for the access of any personal information housed on other websites.
Google Sheets Add-on
The Track That Advisor Google Sheets add-on is for use with the proprietary Track That Advisor trackers only, which are issued to active Track That Advisor clients.
The add-on cannot and should not be used on any different type of spreadsheet, as it will not be functional. Additionally, a firm must be a current Track that Advisor client in good standing with their payments to access the service.