Date of Last Revision: August 10,2021
a. Scope and Term of Services. In order to receive ThinkThru’s services, ThinkThru requires all of its customers execute a Master Services Agreement (“MSA”). Unless otherwise specified in the MSA, effective and commencing on the date of execution of the MSA (the “Effective Date”), you(“the Company” or “Client”) and ThinkThru will enter into a specific engagement,the start and end dates of which shall be defined by the MSA (the “Consultation Period”). During the “Consultation Period”, Consultant will, as requested by the Company, perform services for the Company related to eLearning development,instructional design, and multimedia production for certification programs, or “Projects”, as follows (the “Services”):
i. Instructional Design. Consultant will assist the Company in the development of the Company’s instructional curriculum products for the Company’s use and/or assignment to its customers, partners, and internal Company employees, including (i)identifying and creating learning objectives for courses, (ii) creating courseoutlines and curriculum plans, (iii) working with subject matter experts toassemble the Company’s curriculum content, and (iv) formalizing deliveredmaterials into a final training product.
ii. Multimedia(Audio and Video) Production. Consultant will produce, edit, and/or developweb-based instructional multimedia content for the Company’s createdcurriculum, including (i) scripted production work for course materials, (ii)software walkthroughs supporting the Company’s Student Manuals or “ParticipantGuides,” and (iii) voice over narration used for professional learning andperformance improvement. Such content will be produced in accordance with thegoals and objectives defined by the Company.
iii. Scripting & Writing for E-Learning Courseware. In situations requiring training content to be scripted and delivered either on-camera or with voice over talent,Consultant will provide creative writing, scripting, and specific storydevelopment services to support eLearning projects. The Services provided underthis Section 1.a.iii will be based on the Company’s training and/or usermanuals, participant guides, or assistance from the Company’s subject matter experts.
iv. eLearning Design Services. Consultant will provide graphic design, illustration, andanimation services to support the development of the Company’s eLearningcontent and related materials.
v. Training Administration Services. Consultant may at the request of the Company provide monthly support and assist in the administration of educational content on Company’s Learning Management System (LMS).
b. Account Manager. Consultant will provide a dedicated account manager and eLearning consultant to assist the Company in navigating the training development landscape with the Company’s leadership and project stakeholders.
c. Best Efforts. Consultant agrees to use its best efforts in the performance of the Services and will perform the Services in a professional and timely manner.
d. Statements of Work. A description of theServices to be provided for each Project shall be set forth in one or more mutually agreed upon documents (each, a “Statement of Work” or “SOW”),each of which upon execution by Consultant and the Company shall become binding between the parties and made a part hereof. Each Statement of Work shall be subject to, and the obligations of the parties hereunder shall be performed in accordance with, the terms and conditions of this Agreement. Each Statement of Work shall (i) supplement and form a part of this Agreement, (ii) be read and construed as one with this Agreement, and (iii) be deemed incorporated by reference herein. In the event of any conflict between the terms of this Agreement and any Statement of Work, the terms of this Agreement shall govern and control unless such Statement of Work expressly indicates otherwise.
Each SOW will include (i) a description of the project; (ii) the estimated completion dates; (iii) the estimated Development Hours and Project Management Hours to be expended on the project; (iv)the fees associated with the Project, and (v) a signature by Company and Consultant’s authorized representatives.
e. Each SOW constitutes an estimation of effort by Consultant’s creative and development teams, and the Services provided may, if necessary, exceed the estimation provided in the SOW. The Company will provide to Consultant’s assigned representative written confirmation of receipt and acceptance of the Professional Services rendered upon completion of the project under the applicable SOW.
f. Additional Work. If the Company requests,ThinkThru may provide additional consulting services to the Company beyond the scope of the identified eLearning Services under the terms of one or more written Statements of Work (each a “SOW”), which will either be attached to and become part of the Agreement or incorporated into a Task Order as part of the Agreement. Each additional SOW will include (i) a description of the additional Services; (ii) the estimated completion dates; (iii) the fees, costs, and expenses payable to ThinkThru for the additional Services; (iv) the payment schedule; (v) a statement that the SOW is for work in addition to and beyond the scope of the originally identified eLearning Services; and (vi) a signature by the Company and ThinkThru’s authorized representatives.
g. Routine Development Planning & Prioritization. During the Consultation Period, all project stakeholders will set aside time to check-in and review the progress of the active SOWs, including any successes, identified challenges,and changes in priority. Should the Training Development Roadmap need to be reassessed and revised, Consultant shall make such revisions with the input and consent of the Company.
h. Suspension of Services. If any payment payable under this Agreement or any SOW is more than thirty (30) days past due,Consultant may cease providing any and all Services under this Agreement and the relevant SOW until such past due payment is received.
It is the express intention of the Parties to this Agreement that Consultant and its employees and contractors are independent contractors and not employees, agents, joint venturers or partners of the Company for any purposes whatsoever. Consultant is not entitled to any benefits that the Company may make available to its employees from time to time. Consultant shall be solely responsible for all of its state and federal income taxes,unemployment insurance, social security taxes, and for maintaining adequate workers’ compensation insurance coverage.
a. Performance of Services. Consultant shall have the right to control and determine the time, place, methods, manner, and means of performing the Services. In performing the Services, the amount of time devoted by Consultant on any given day will be entirely within Consultant’s control, and the Company will rely on Consultant to put in the amount of time necessary to fulfill the requirements of this Agreement. Consultant will provide all equipment and supplies required to perform the Services. Consultant is not required to attend regular meetings at the Company. However, upon reasonable notice and schedule availability, Consultant will meet with representatives of the Company at a mutually agreeable location.
b. Final Results. In the performance of the Services, Consultant has the authority to control and direct the performance of the details of the Services, the Company being interested only in the results obtained. However, the Services contemplated by this Agreement must meet the Company’s standards and approval and are subject to the Company’s general right of inspection and supervision to secure their satisfactory completion.
c. Non-Exclusivity. Consultant retains the right to contract with other individuals or entities for its consulting services without restriction. This includes, but is not limited to, the Services identified in this Agreement that Consultant will provide for Company. Likewise, Company retains a reciprocal right to contract with other individuals or entities for consulting services without restriction.
d. Scope of Authority. Except as provided in this Agreement, Consultant is not authorized to transact business, incur obligations, sell goods, receive payments, solicit orders, or assign or create any obligation of any kind, express or implied, on behalf of the Company or any of the Company's related or affiliated entities, or to bind in any way whatsoever, or to make any promise, warranty, or representation on behalf of the Company or any of the Company's related or affiliated entities with respect to any matter, except as expressly authorized in a writing signed by an authorized representative of the Company. The Parties shall not use the other party’s trade names, trademarks, service names, or service marks without the prior written approval of the other party.
e. Federal Tax Return Filing. Consultant agrees to report income received from the Company for consulting services under this Agreement consistent with the reporting requirements of an independent contractor. The Company may file a Form 1099 to report the fees paid to Consultant.
f. Right to Use Services. The Services ofConsultant (as opposed to the final deliverable products provided by Consultant) provided under this Agreement are for the Company only. The Company shall not resell, sublicense, transfer, or otherwise permit the Services of Contractor to be used for the benefit of entities or individuals other than the Customer or to sell Customer’s services (as opposed to its final deliverable products provided to the Company) to any other individual or entity.
g. Right to Use Final Products. The Consultant shall be able to use the final product in its likeness and image as an in-house marketing tool for future Customers. The Consultant shall be able to display the final product in their portfolio, unless otherwise provided for in the SOW.
a. Consultant acknowledges that during its engagement with the Company it will have access to confidential and proprietary information, including information concerning activities of the Company and any of its subsidiaries and affiliated companies now or in the future(collectively, the “Group.”), information provided to the Company from its clients, and that it will have access to technology of the Company, Group's product and/or services (actual or planned), research and development, patents,copyrights, customers, suppliers (including customers and/or suppliers lists),partners, marketing plans, strategies, forecasts, trade secrets, methods, test results, formulas, processes, data, know-how, improvements, inventions, techniques,technical or financial information of the Group. Such information in any form or media, whether documentary, written, oral or computer generated, shall be deemed to be and referred to herein as "Proprietary Information".
b. Accordingly, during the Consultation Period or at any time after termination or expiration thereof or of this Agreement, subject to the limitations in Section 7 below, Consultant shall not use, copy, divulge,communicate, or disclose to any person or entity, without the prior consent of the Company, any Proprietary Information, whether oral or in writing or in any other form. In addition, Consultant shall not permit any unauthorized person access to any Proprietary Information, except as expressly authorized or directed by the Company in writing.
c. Proprietary Information shall be deemed to include any and all proprietary information disclosed by or on behalf of the Company irrespective of form, but excluding information that has become a part of the public domain by the Company or otherwise reached the public domain by lawful means.
d. Consultant agrees that all tapes, charts, formula,specifications, lists, disks, manuals, files and other documents made by,compiled by, or received from Company, and all copies thereof, concerning any Proprietary Information and/or phase of the Company's business and/or its trade secrets,shall be the Company’s sole property and all originals or copies thereof shall be delivered by Consultant to the Company upon termination or expiration of this Agreement for any reason whatsoever, or at any earlier or other time atthe request of the Company, without Consultant retaining copies thereof. Company Proprietary Information or its business or trade secrets contained in memoranda, books, notes, records, or other devices shall be deleted or destroyed upon termination of this Agreement.
e. Consultant will notify and disclose to the Company,or any persons designated by it, all information, improvements, inventions,formula, processes, techniques, know-how and data, whether or not patentable,made or conceived or reduced to practice or learned by Consultant, either alone or jointly with others, during the Consultation Period (including after hours,on weekends or during vacation time) with respect to Company's business as a result of the work performed by Consultant for the benefit of Company or that was developed using the Company’s Proprietary Information (all such information, improvements, inventions, formulae, processes, techniques, know-how, and data are referred to as the "Inventions" or "Invention")immediately upon discovery, receipt or invention as applicable.
i. Inventions that are developed without the use of any Company Proprietary Information and in no way rely on Company ProprietaryInformation, that are discovered or received by Consultant in the course of its provision of services to other parties, or Inventions discovered by Consultant or its employees, contractor, agents, representatives, or assigns that are not the result of work performed for the benefit of the Company are explicitly excluded from the definition of Invention or Inventions throughout thisAgreement (“Excluded Inventions”).
ii. This Section 3.e. is not applicable to situations in which the required disclosures would cause Consultant to breachany agreement with any other party, or violate any state or federal law,regulation, or court order.
iii. The Excluded Inventions referenced in the foregoing Sections 3.e.i. and 3.e.ii. are explicitly excluded from the definition of Invention or Inventions throughout the remainder of this Agreement.
iv. For the removal of all doubt, nothing in this Agreement shall require Consultant to disclose any Excluded Inventions.
The Proprietary Information and Inventions shall not include Consultant’s internal notes, communications, drafts, tracking spreadsheets, partial or unedited video footage, photos, software project files or any other incomplete work product other than the final deliverables(“Consultant Work Product”). Consultant Work Product is the sole property of Consultant. Company may, at its option upon the termination of this Agreement, purchase the Work Product for a reasonable fee set by Consultant at its sole discretion. If the Company elects to purchase Consultant Work Product, the Parties will execute a separate Assignment of Consultant Work Product Agreement. Regardless of whether the Company elects to purchase the Consultant Work Product, to the extent it contains Proprietary Information as defined inSection 3(a), Consultant agrees not to use that Proprietary Information in violation of Section 3 of this Agreement.
f. Delivery of the notice and the Invention shall be in writing, supplemented with a detailed description of the Invention and the relevant documentation. Consultant hereby confirms that its engagement with the Company was made on a "Work for Hire" (as that term is used in the U.S.Copyright Act, 17 U.S.C. 101, et seq.) basis and accordingly Consultant agrees that all the Inventions shall be the sole property of the Consultant and the Consultant shall be the sole owner of all patents and other rights in connection with such Inventions. Consultant hereby grants an exclusive license for the Company and its assignees to use the Invention.
g. Consultant shall own all worldwide right, title and interest to all Materials prepared by Consultant pursuant to an MSA and the corresponding SOW. To the extent that such rights, titles and interests to work products are not automatically vested from the Company to Consultant under the respective SOW, the Company upon the request of Consultant shall execute and deliver any and all documents, instruments and certificates necessary to vest such rights, titles and interests to Consultant at Consultant's expense. To the extent that intellectual property owned by the Company is necessary or useful for the exploitation of the Materials (hereinafter referred to as “Background Intellectual Property”), Client hereby grants to Consultant a nonexclusive,nontransferable, royalty-free, perpetual license to such Background Intellectual Property in connection with such work products. The Company shall retain all right, title and interest in the Background Intellectual Property.Consultant acknowledges that Client has the right to maintain for their recordkeeping purposes a copy of all Materials, subject to the confidentiality restrictions of this Agreement.
The Parties acknowledge that any breach of the provisions of Section 3 of this Agreement may result in serious injury to the other Party. The Parties agree,therefore, that, notwithstanding the dispute resolution procedures set forth in Section 5 below, they both are entitled to seek temporary and permanent injunctive relief (to the extent permitted by law) without the necessity of proving actual damages.
Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement, may be brought by either Party more than one year after the cause of action has accrued.
This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule that would apply laws of any jurisdictions other than those of Tennessee. Any dispute arising between the Parties in connection with this Agreement shall first be presented to the respective senior executives of the Parties for their consideration and resolution. If such Parties’ executives cannot resolve such dispute within thirty (30) days, then such dispute shall be submitted to arbitration by the American Arbitration Association by one arbitrator mutually agreed upon by the Parties. If no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the AAA, then the AAA will choose one arbitrator having reasonable experience in commercial transactions of the type provided for in this Agreement. The arbitration shall take place in the English language in Nashville, Tennessee or be video conference if agreed to by the Parties in accordance with the AAA commercial arbitration rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. The arbitration shall commence within sixty (60) days of the date on which a written demand for arbitration is filed. The arbitrator’s decision shall set forth a reasoned basis for any award of damages or finding of liability. The arbitrator shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award punitive damages. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. Each Party further irrevocably waives its right to a trial by jury and consents that service of process may be effected in any manner permitted under the laws of the State of Tennessee.
Consultant represents and warrants that it will perform the Services and agreed SOWs in a timely and workmanlike manner and in full compliance with applicable laws, regulations, orders and decrees. Company likewise represents and warrants that it will cooperate with Consultant in good faith and in full compliance with applicable laws, regulations, orders and decrees.
NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE,STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE,INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; (C) FOR ANY LOSS OR DAMAGE BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $100,000 OR THE FEES PAID BY COMPANY IN THE PRECEEDING 12 MONTHS; PROVIDED, HOWEVER, THAT THIS SECTION 10 DOES NOT LIMIT EITHER PARTY’S LIABILITY UNDER SECTIONS 5 AND 12 OF THIS AGREEMENT.
Consultant represents that his/her performance of the terms of this Agreement and the performance of the Services do not and will not breach any agreement with any third-party to which Consultant is a party (including without limitation any nondisclosure or non competition agreement), and that Consultant will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any current or previous employer or others.
Consultant shall be solely liable for, and shall indemnify, defend, and hold harmless the Company and its successors and assigns from any claims,suits, judgments, or causes of action initiated by any third-party against the Company where they result from or arise out any uncured breach of this Agreement by Consultant. Consultant shall further be solely liable for, and shall indemnify, defend, and hold harmless the Company and its successors and assigns from and against any claim or liability of any kind (including penalties, fees or charges) resulting from Consultant’s failure to pay the taxes, penalties,and payments referenced in Section 2 of this Agreement. Consultant shall further indemnify, defend, and hold harmless the Company and its successors and assigns from and against any and all loss or damage resulting from any misrepresentation, or any non fulfillment of any representation, responsibility,covenant, or agreement by Consultant, as well as any and all acts, suits,proceedings, demands, assessments, penalties, judgments of or against the Company resulting from any acts or omissions of Consultant and Consultant shall pay reasonable attorneys’ fees, costs, and expenses incident thereto.
The Company shall be solely liable for, and shall indemnify, defend, and hold harmless Consultant and its successors and assigns from any claims, suits, judgments, or causes of action initiated by any third-party against Consultant where they result from or arise out any uncured breach of this Agreement by the Company. The Company shall further indemnify,defend, and hold harmless Consultant and its successors and assigns from and against any and all loss or damage resulting from any misrepresentation, or any non fulfillment of any representation, responsibility, covenant, or agreement by the Company, as well as any and all acts, suits, proceedings, demands, assessments, penalties, judgments of or against Consultant resulting from any acts or omissions of the Company and the Company shall pay reasonable attorneys’ fees, costs, and expenses incident thereto.
With the exception of nonpayment of amounts owed to Consultant bythe Company, neither Party shall be responsible for failure or delay of performanceif caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each Party will use reasonable efforts to mitigate the effectof a force majeure event. If such event continues for more than 20 days, either Party may immediately cancel unperformed Services upon written notice, which iseffective on the last day of the month in which the notice is received. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or the Company’s obligation to pay for the Services provided.
All notices required or permitted under this Agreement shall be in email or writingand shall be deemed effective upon (i) receipt of a read receipt when sent byemail to the email address listed in the signature section below or (ii) forall written notices when delivered by personal delivery or upon deposit in theUnited States Post Office, by registered or certified mail, postage prepaid,addressed to the other party at such address or addresses as either party shalldesignate to the other.
In the event any provision of this Agreement is held to be invalid, itshall not invalidate or otherwise affect in any respect any other term or termsof this Agreement, which term or terms shall remain in full force and effect.
No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent givenby the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
This Agreement may be executed in two (2) signed counterparts, each ofwhich shall constitute an original, but all of which taken together shall constitute one and the same instrument.
You acknowledge and agree that we may change any term or part of these terms and conditions by sending you a written notice at least five days before the change is to become effective. If you do not agree to this change, you must notify us within five days after the effective date of the change.
Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular forms of nouns and pronouns shall include the plural and vice versa.The captions of the sections of this Agreement are for convenience of referenceonly and in no way define, limit, or affect the scope or substance of this Agreement.
By executing an MSA, you agree to these terms and conditions as described above.