On-Demand SERVICE TERMS OF AGREEMENT
User agrees that the online session in Zoom, or other online portal, may be recorded to ensure User quality and satisfaction.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE WEB SERVICE PORTAL (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING THE SERVICES PORTAL YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
This Agreement (“Agreement”) is by and between ProsperSpark, LLC a Nebraska Limited Liability Corporation (“Service Provider”) and the User of the ProsperSpark, LLC “EXPERT HELP ON-DEMAND” website (“User”). Service Provider and Users are referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
WHEREAS Service Provider has the capability and capacity to provide certain Excel training services; and
WHEREAS User desires to retain Service Provider to provide the said services, and Service Provider is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and User agree as follows:
1. Services. Service Provider shall provide to User the services (the “Services”) set out in one or more statements of work to be issued by User and accepted by Service Provider (each, a “Statement of Work”). The initial accepted Statement of Work is attached hereto as Exhibit A. Each statement of work will be an individual session (“Session”). Additional Statements of Work for additional Sessions shall be deemed issued and accepted only if signed by the Service Provider Contract Manager and the User Contract Manager, appointed pursuant to 2.1(a) and 3.1, respectively.
2. Service Provider Obligations. Service Provider shall:
2.1 Designate employees or contractors that it determines, in its sole discretion, to perform the Services set out in each Statement of Work, (collectively, with the Service Provider Contract Manager, “Provider Representatives”).
2.2 Maintain complete and accurate records relating to the provision of the Services under this Agreement.
2.3 Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “User Contract Manager”), with such designation to remain in force unless and until a successor User Contract Manager is appointed. The User Contract Manager shall be the User unless otherwise notified.
2.4 Require that the User Contract Manager respond promptly to any reasonable requests from Service Provider for instructions, information, or approvals required by Service Provider to provide the Services.
2.5 Cooperate with Service Provider in its performance of the Services to enable Service Provider to provide the Services.
2.6 Take all steps necessary, including obtaining any required licenses or consents, to prevent User-caused delays in Service Provider’s provision of the Services.
3. Fees and Expenses.
3.1 In consideration of the provision of the Services by the Service Provider and the rights granted to User under this Agreement, User shall pay the fees set out in Service Provider’s current fee schedule. Payment to Service Provider of such fees and the reimbursement of expenses pursuant to this 4 shall constitute payment in full for the performance of the Services. All fees are due prior to the commencement of any Services and no refunds will be provided or offered.
3.2 User shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by User hereunder; and to the extent Service Provider is required to pay any such sales, use, excise, or other taxes or other duties or charges, User shall reimburse Service Provider in connection with its payment of fees and expenses as set forth in this 4. Notwithstanding the previous sentence, in no event shall User pay or be responsible for any taxes imposed on, or regarding, Service Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
3.3 Service Provider shall be entitled to suspend the provision of any Services if the User fails to pay any fees when due hereunder.
4. Limited Warranty and Limitation of Liability.
4.1 Service Provider warrants that it shall perform the Services:
a. In accordance with the terms and subject to the conditions set out in any respective Statement of Work and this Agreement.
b. Using personnel of industry standard skill, experience, and qualifications.
c. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
4.2 Service Provider’s sole and exclusive liability and User’s sole and exclusive remedy for breach of this warranty shall be as follows:
a. Service Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Service Provider cannot cure such breach within a reasonable time after User’ written notice of such breach, User may, at its option, terminate the Agreement by serving written notice of termination in accordance with 8.2.
b. In the event the Agreement is terminated pursuant to 5.2(a) above, Service Provider shall within thirty (30) days after the effective date of termination, refund to User any fees paid by the User as of the date of termination for the Service or Deliverables (as defined in 6 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
c. The foregoing remedy shall not be available unless User provides written notice of such breach within ten (10) days after acceptance of such Service or Deliverable by User.
4.3 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN 5.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
5. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within ninety (90) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 7 only, Receiving Party’s Group shall mean the Receiving Party’s affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
6. Term, Termination, and Survival.
6.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work unless sooner terminated pursuant to 8.2 or 8.3.
6.2 Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
a. Materially breaches this Agreement, and the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach, or such material breach is incapable of cure.
b. Becomes insolvent or admits its inability to pay its debts generally as they become due.
c. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within forty-five (45) days after filing.
d. Is dissolved or liquidated or takes any corporate action for such purpose.
e. Makes a general assignment for the benefit of creditors.
f. Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
6.3 Notwithstanding anything to the contrary in 8.2(a), Service Provider may terminate this Agreement before the expiration date of the Term on written notice if User fails to pay any amount when due hereunder: (a) and such failure continues for ten (10) days after User’s receipt of written notice of nonpayment; or (b) more than one (1) time in any monthly period.
6.4 The rights and obligations of the Parties set forth in this 8.4 and in Section 5, Section 6, Section 7, Section 9, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
7. Limitation of Liability.
7.1 IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO USER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.2 IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.
8. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
9. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices, if in writing, must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this 12.
|Notice to User:||Provided to mailing address and email used when registering for the Services.|
|Notice to Service Provider:||
18317 Meredith Ave,
Elkhorn, Nebraska, 68022
10. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to the court, and the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
12. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
13. Assignment. User shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this 16 shall be null and void. No assignment or delegation shall relieve the User of any of its obligations under this Agreement.
14. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
15. Relationship of the Parties. The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Service Provider shall be under its own control, User being interested only in the results thereof. The Service Provider shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the User the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16. No Third-Party Beneficiaries. Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
17. Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Nebraska, United States of America, without giving effect to the conflict of laws’ provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Nebraska.
18. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, in any forum other than District of Nebraska or the courts of the State of Nebraska sitting in Douglas County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in District of Nebraska or the courts of the State of Nebraska sitting in Douglas County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
19. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
20. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the User to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (h) other similar events beyond the reasonable control of the Impacted Party.
ADDITIONAL TERMS AND CONDITIONS
- User must be on engaged and on the entire call for on-demand session.
- All work will be done during of the session. Work outside the call is not permitted.
- All communication will occur during the on-demand session.
- All sales are final, no refunds.
- No credits given back if entire 30 minutes is not used.
- Each Session shall end before or at the 30 minute mark.
- No files should ever be exchanged – all work should be done via remote control of screen and/or coaching the User through it.
- Only advice is provided, no deliverables are provided.
- Service Provider is not liable for ANY issues that may arise due to our consultation. User is 100% responsible.
- We do not guarantee that the User’s request / issue / problem will be resolved within the 30 minute session or at all.
- Recordings of the call will not be provided to the User. Service Provider records sessions for quality assurance.
- No summaries of work completed will be provided to the User; all work occurs during the session.
- The functionality produced during the session may not be available on different operating systems (Windows 10, Windows 11, Mac, etc.) or different versions of Excel.
- Service Provider may limit the number of on-demand sessions that an individual or business may purchase.
- Service Provider reserves the right to alter our pricing at any time.
- Please visit our On-Demand Excel/VBA Support and Training page to see what topics/services are available with this service.
BY AGREEING TO THE TERMS AND CONDITIONS LISTED HERE, YOU AGREE TO THESE TERMS AND CONDITIONS FOR ALL PREVIOUS SESSIONS AND FUTURE SESSIONS.
INITIAL STATEMENT OF WORK
Service Provider will provide 30 minutes of consultation to the client. During this 30 minutes of consultation (“Session”), we will provide Microsoft Excel and Microsoft Excel VBA (Visual Basic for Applications) training, work, fixes, and/or answers to the User. Consultation for other software platforms or topics is NOT included.