Terms and Conditions

These Terms and Conditions (“Agreement”), are entered into by and between Mazzards LLC, d/b/a MG Advisory, d/b/a Mazzards Group, with offices located at 1624 Market St. Denver, CO 80202 and client (“Client”) who is engaging Mazzards to provide certain outsourced/fractional services: Fractional Executive, Advisory, Consulting, Professional, Business (“Executive Services”).

1.0  Services  

Mazzards shall provide the Executive Services to Client as described in the invoice, or entered into from time to time, and are hereby incorporated into the terms and conditions of this Agreement. Each invoice shall provide a complete and accurate description of the Executive Services to be delivered to and/or performed by MG for Client under this Agreement. Any change request must be communicated in writing, after which Mazzards shall assess the impact of such requests upon all aspects, including but not limited to scheduling and cost. The Parties shall then be required to agree in writing to such changes and any costs impacts prior to engagement and booking.

2.0  Effective Date and Term of the Agreement.

This Agreement shall commence on the invoice Effective Date and shall remain in effect for as long as any retainer or credit is effective hereunder, until terminated by either Party upon either thirty (30) days’ prior written notice or upon terms as stipulated elsewhere in this Agreement, provided that this Agreement shall remain in effect with respect to any engagement that remains in effect as of such termination, until such services has been fully performed.

3.0 General Obligations of Mazzards under this Agreement.

3.1 Warranty of Executive Services. Mazzards warrants that the Executive Services provided under this Agreement shall be performed by qualified and experienced personnel and, will be of the kind and quality to meet the specifications and schedules described. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE EXECUTIVE SERVICES PROVIDED OR MATERIALS DELIVERED, AND MG SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED. .  CLIENT AGREES THAT FOR BREACH OF THE ABOVE WARRANTY, CLIENT’S SOLE AND EXCLUSIVE REMEDY SHALL BE THE RE-PERFORMANCE OF ITS EXECUTIVE SERVICES WITHIN THIRTY (30) DAYS OF NOTICE OF SUCH BREACH, AND IF MAZZARDS FAILS TO RE-PERFORM THE EXECUTIVE SERVICES AS WARRANTED, THEN MAZZARD’S LIABILITY SHALL BE LIMITED TO THE FEES PAID BY CLIENT TO MAZZARDS FOR SUCH EXECUTIVE SERVICES.

3.2 LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, OR LIABILITY FOR BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL MAZZARDS BE LIABLE UNDER THIS AGREEMENT TO CLIENT FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. MAZZARD’S LIABILITY IS LIMITED TO THE AMOUNTS SET FORTH IN SECTION 3.1 ABOVE.

3.3 Developed Work Products: Assignment of Rights, Title and Interest. Upon full payment by Client of amounts owed to Mazzards under any retainer, program or engagement, Mazzards shall assign to Client any and all rights, title and interest, including without limitation any copyright and other intellectual property rights, in all deliverable work product identified in and developed, including without limitation all tangible and intangible items or information incorporated therein, (“Deliverables”), but excluding all third party works and products incorporated or embedded in the Deliverables.  Any Deliverable that is a work of authorship in any form of expression including without limitation manuals and software, are works for hire and belong exclusively to Client. If, by operation of law, the ownership of works for hire does not automatically vest in Client, Mazzards will take steps necessary to assign ownership to Client.

3.4 Independently Developed or Acquired Technology, Information or Materials: Grant of License. To the extent any technology, information or materials developed or acquired by Mazzards independently of work performed under this Agreement are incorporated or embedded in Deliverables, and including all third party works and products for which MG has received the right to license (“Pre-Existing Technology”), Mazzards shall grant to Client a royalty-free, irrevocable, worldwide, nonexclusive, perpetual license, to use, disclose, reproduce, sublicense, modify, prepare derivative works from, perform and display such Pre-Existing Technology for the sole purpose of utilizing a Deliverable for the purpose for which it was delivered and for other internal purposes.

3.5 Mazzards shall invoice Client on such terms and schedules as shall be described in the estimate. Payment is a stated on the invoice. If Client fails to make timely payment on any invoice, Mazzards reserves the right to withhold providing Executive Services from Client until payment has been received.

3.6 Additional Expenses. Mazzards will invoice Client for all other direct, non-labor charges, if any, for reasonable expenses incurred by Mazzards and approved by Client. Such charges may include travel, lodging, automobile rental, meals and incidentals, computer time, copy charges, publications (printing, graphics), purchased hardware and software, shipping charges, and miscellaneous materials and services required to perform the Executive Services.

3.7 Client Property. Mazzards shall exercise all due care with regard to all Client property under the control of or being used by Mazzards or the Executive providing Executive Services to the Client (the “Executive”), and shall identify, maintain appropriate records, verify, protect and safeguard such property.  If any Client property is lost, damaged or otherwise found to be unsuitable for use while being used by or under the control of Mazzards or the Executive, Mazzards shall make an appropriate and timely report to the Client with regard to such property, and shall negotiate with Client, in good faith, an appropriate settlement relating thereto.

4.0 General Obligations of Client under this Agreement

4.1 Payment/Taxes/Disputes. Client shall pay all undisputed amounts invoiced by Mazzards when due. These terms supersede any/all previous oral and/or written instructions or agreements, including Client purchase orders.  In the event Client disputes any invoice, Client shall: (a) pay all undisputed portions as provided herein, and (b) notify Mazzards, in writing, within five (5) days of receipt of invoice of the amount disputed and the reasons for such dispute.  The Parties shall thereafter cooperate in good faith to resolve such dispute and make any adjustments mutually agreed upon. Client shall promptly pay Mazzards all amounts determined to be owed to MG by Client upon resolution of such dispute. The charges by Mazzards under this Agreement and the related services do not include taxes or duties.  If Mazzards is required to pay or collect any federal, state, local, value added, goods and services, or any other similar taxes or duties based on Executive Services provided under this Agreement, then such taxes and/or duties shall be invoiced to Client; this requirement, however, shall not apply to taxes based on Mazzards’s income. Client agrees that it shall reimburse Mazzards for any and all costs and expenses, including attorneys’ fees, incurred by Mazzards in connection with the collection by Mazzards of any amounts payable by Client hereunder which are not paid as and when due.

4.2 Cooperation. Client agrees that where participation by its own staff is necessary in Mazzards’ provision of the Executive Services, such staff shall possess the appropriate skill, experience and authority for the tasks assigned to them, and shall be available at such times as are agreed by the Parties. Client agrees to designate a member of its staff who shall have the authority to represent Client on all matters relating to the Executive Services.

4.3 Environment and Facilities. As applicable to the Executive Services rendered by MG, Client will provide the Executive with: a) a safe and suitable environment in which to perform the Executive Services, and b) use of data communications and telecommunication facilities as reasonably necessary to perform the Executive Services

5.0 Confidentiality.

In the course of performing the Executive Services, either Party (the “Disclosing Party”) may use and disclose to the other Party (the “Receiving Party”) software, other products, consulting methodologies, trade secrets and proprietary information of the Disclosing Party (“Proprietary Materials”) that may or may not be licensed under separate agreements. The Receiving Party agrees to safeguard and keep confidential the Proprietary Material, and to use such Proprietary Materials only internally in the course of the Receiving Party’s business.  The Receiving Party will limit the use of, and access to, the Proprietary Materials to the Receiving Party’s employees whose use of, or access to, the Proprietary Materials is necessary for the Receiving Party’s internal business use. The Receiving Party will have in effect, and will enforce, rules and policies designed to protect against unauthorized use or reproduction of the Proprietary Materials and other confidential information, including instruction of and written agreements with the Receiving Party’s employees and contractors to insure that they use and protect the Proprietary Materials in a manner which protects the Disclosing Party’s proprietary rights.  The Receiving Party shall not provide access to the Disclosing Party’s Proprietary Materials to any third party unless such third party has a “need to know” in connection with the performance of Executive Services hereunder and has signed a confidentiality agreement with the Disclosing Party.

6.0 Termination.

6.1 Insolvency, Bankruptcy. In the event of insolvency of either Party, the filing of a petition in bankruptcy by or against either Party (which has not been removed within 60 days from such filing), the appointment of a receiver, assignment for the benefit of creditors, or a Party’s failure to meet any of its responsibilities hereunder, the other Party may terminate this Agreement or any of the services, may refuse to provide or may suspend services hereunder, and may also exercise any or all other rights and remedies provided by law. In the event of Client’s failure to make any payment due hereunder, Mazzards may terminate this Agreement or any of the services, refuse to provide or suspend, and exercise any or all other rights and remedies provided by law.

6.2 By Client/For Cause. Client may immediately terminate for cause if Mazzards materially fails to comply with the terms of this Agreement and does not correct said failure within thirty (30) days of written notice from Client specifying the non-compliance. If terminated for cause by Client, Client shall not be obligated to make payment for any services completed after the effective date of termination.

6.3 By Client/No Cause. Client may terminate services other than for reasons of cause, upon thirty (30) days written notice in advance of the effective date of termination. In such event, Client shall pay to Mazzards all outstanding fees and expenses which are due up through the effective date of termination, as such fees and expenses.

6.4  By Mazzards. MG may terminate this Agreement immediately if Client fails to perform according to the terms of the Agreement, including the failure to pay charges when due. If Mazzards terminates this Agreement for any reason, Client shall pay to Mazzards all outstanding fees and expenses which are due up through the effective date of termination, as such fees and expenses.

7.0 Non-Solicitation.

No Solicitation. During any Business Engagement and for three (3) months from its effective start date, neither Party will solicit for employment any employee or contractor of the other which was directly involved in Business Services performed. Notwithstanding the forgoing, either party may, without violating this provision, conduct regular solicitation efforts such as newspaper advertisements, utilizing employment agencies, open houses, job fairs or other widely distributed announcements of job openings, where such solicitation efforts are not specifically directed towards persons working under this Agreement, and recruit, hire or otherwise employ or retain respondents to such permissible efforts.

8.0 Independent Contractor Relationship.

In performing this Agreement, Mazzards is acting as an independent contractor and not as an employee or agent of Client. Each Party agrees that there is no relationship of agency, partnership, joint venture, employment between the Parties, and that each has no authority hereunder to assume or create any obligation or responsibility, expressed or implied, on behalf of or in the name of the other Party.

9.0 General

9.1 Assignment of Rights and Interests. No Party shall transfer or assign any or all of its rights or interests under this agreement or delegate any of its obligations without prior written consent of the other Party; provided, however, that MG may transfer or assign its rights or interests, or delegate its obligations, under this agreement to any of MG’s other divisions, business units, subsidiaries or affiliates without the prior written consent of Client.

9.2 Limitations. Except for liability infringement as may be described elsewhere in this Agreement, the entire liability of MG to the Client, whether in contract, tort, strict liability, or otherwise, with respect to any services shall not exceed the amount paid by Client under the relevant services which gave rise to the liability.

9.3 Force Majeure. Neither Party shall be liable to the other for any loss, injury, delay or damage whatsoever suffered or incurred by the other Party due to causes beyond such Party’s control, including but not limited to, acts of God, strikes or other labor disturbances or third parties, war, sabotage, epidemic or pandemic; government regulations issued in response to any of the foregoing, and any other cause or causes, whether similar or dissimilar to those herein specified, which cannot be controlled by such Party. Notwithstanding the foregoing, the provisions of this Section 9 shall at no time operate to excuse Client from any payment obligations required by the terms of this Agreement when the same are due.

9.4 Governing Law, Jurisdiction, Survivability. This Agreement shall be construed in accordance with the internal laws of the State of Colorado (irrespective of its choice of law principles). If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, the remaining provisions of this Agreement shall survive and remain in full force, and the remainder of this Agreement and the application of such provision to other persons or circumstances shall be interpreted so as to best effect the intent of the Parties. Any legal suit, action or proceeding arising out of or based upon this agreement shall be instituted solely in the federal and state of Colorado courts located in the city and county of Denver, Colorado and each party irrevocably submits to the personal jurisdiction of such courts in any such suit, action or proceeding. service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

9.5 Waiver of Jury Trial. Each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this agreement, the other transaction documents or the contemplated transactions. Each party to this agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this agreement by, among other things, the mutual waivers and certifications in this section 9.5.

9.6 Waiver and Time Limitations for Actions. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for indemnification, or breach of either Party’s intellectual property or confidentiality rights, no action, regardless of form, arising out of this Agreement may be brought by either Party more than two years after the cause of action has been discovered.

9.7 Costs Relating to Breach or Default. In the event of any breach of, or default under, this Agreement, the non-breaching or non-defaulting Party, as applicable, shall be entitled to recover from the other Party all of its Losses (as defined below) resulting from such beach of, or default under, this Agreement by the other Party. For purposes herein, “Losses” means loses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however, that “Losses” shall not include (i) punitive damages, except in the case of fraud or to the extent actually awarded to a governmental authority or other third party or (ii) lost profits or consequential damages, in any case.

9.8 Indemnification. Each Party shall, at its own expense, indemnify, defend, and hold harmless the other Party, and such Party’s employees, directors, officers, members, managers, representatives, and agents (collectively referred to as the “Indemnified Parties”) against any Losses, including Losses related to any other proceeding brought by a third party against the Indemnified Parties (collectively referred to as “Claims”), to the extent that such Claim is based on or arises from the breach of any representation, warranty, covenant or agreement of the indemnifying Party contained in this Agreement or arising out of or related to any damage to tangible property, personal injury or death caused by such Party’s negligence or willful misconduct. In addition, Client shall indemnify, defend, and hold harmless the Mazzards Indemnified Parties against any Claim that the Client infringed any Intellectual Property right of any third Party, or any right of publicity or privacy, or is libelous or defamatory. The indemnifying Party will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the Indemnified Parties in connection with or arising from or attributable to any such Claim. The indemnifying Party’s obligations under this Section shall be subject to reasonably prompt notice of any such Claim and permitting the indemnifying Party, through its counsel, to answer and defend such Claim. The Indemnified Parties, at their own expense, shall have the right to employ separate counsel and participate in the defense thereof. In no event may either Party enter into any third-party agreements that would in any manner affect the rights of, or bind, the other Party in any manner to such third party, without the prior written consent of the other Party.

9.9 Public Disclosures. All media releases, public announcements, and public disclosures by either Party relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party, shall be coordinated with and approved by the other Party prior to release. Notwithstanding the foregoing. Mazzards may list Client as a client of Mazzards and describe in general terms the Executive Services provided under this Agreement in proposals, web sites, case studies, and other marketing materials, and MG may disclose to testimonials and references provided by Client.

9.10 Entire Agreement; Amendments; Headings. This Agreement constitutes the complete and exclusive statement of the Parties’ agreement about the Executive Services to be performed, and supersedes all prior communications relating to the subject matter. Additional or conflicting terms on any future Client purchasing documents are hereby rejected, unless the Parties mutually agree upon such additional or conflicting terms in writing.  This Agreement can be modified only in writing signed by an authorized signatory of each of the Parties. The section titles contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.