B2B Master Services Agreement
MASTER SERVICES AGREEMENT
This Master Services Agreement (this “MSA”) sets forth the terms and conditions pursuant to which COACHSELECT, INC. (“CoachSelect”) will make its services and platform available to a corporation or other business entity (the “Customer”) and its personnel (each, a “Client”) of Customer as set forth on one or more Services Proposals or Order(s), in a form provided by CoachSelect, that reference this MSA (each, an “Order”).
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By executing an Order and submitting it to CoachSelect, Customer (a) agrees to be bound by this MSA (together with all Orders and any Nondisclosure Agreement to which you and CoachSelect are a party, the “Agreement”) and (b) confirms that the individual executing the Order has the legal authority to bind Customer by the terms of this Agreement.
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In addition to the terms set forth below, this Agreement expressly incorporates by reference CoachSelect'sTerms of Service, located at https://www.coachselect.com/terms-of-service, and CoachSelect's Privacy Policy located at https://www.coachselect.com/privacy-policy. Any capitalized terms used herein without definition shall have the meanings given to them in the Order(s). In the event of a conflict or inconsistency between an Order, the Terms of Service, the Privacy Policy, and this MSA, this MSA will control.
1. Definitions
a. “Coach”: independent coach or coaches identified and matched to a Client by CoachSelect for a particular engagement scope.
b. “Concierge”: a CoachSelect representative responsible for coach matching, client service portfolio construction, and Client satisfaction.
c. “Fees”: the agreed upon costs that Customer agrees to pay to CoachSelect in exchange for the CoachSelect Services and the Coaching Services.
d. “Coaching Engagement”: the collective set of individual 1:1 Coach-Client meetings (each, a “Coaching Session”), assessments, ad hoc e-mail and phone support, and any other services included in the Client-specific scope agreed for each Client and subsequently provided by the Coach to the Client.
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2. Services
a. For each Client that completes the CoachSelect intake process (as provided by CoachSelect and subject to the terms and conditions included therein), CoachSelect and its Concierge will identify a matching Coach from CoachSelect’s inventory of coaches, able to provide suitable services on commercially customary and reasonable terms, and will arrange and provide the business logistics, including items such as high-level engagement scope, Client and Coach contracts, and payments, that are necessary for delivery of the coaching services (such services provided by CoachSelect, the “CoachSelect Services”).
b. Provided that each such Client has accepted the Client Terms and Conditions found on each Order, each such Client will have access to participate in an individual coaching engagement (each, a “Coaching Engagement”) between such Client and the Coach, pursuant to which the Coach will provide coaching services defined by the Order (the “Coaching Services”).
c. If CoachSelect is unable to match a Client with a Coach, Customer will not be responsible for paying for any services with respect to such Client.
d. Customer and each Client acknowledges and agrees that CoachSelect does not provide Coaching Services and solely provides the CoachSelect Services which comprise a platform and administrative process through which Clients are connected to independent Coaches. Customer and each Client understands that the actual Coaching Services a Client receives will be provided by independent third-party Coaches referred to such Client by CoachSelect.
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3. Coaching Engagements
a. Coaching Sessions will be held virtually, via video conference or over the phone, as determined in advance between Coach and Client. CoachSelect makes no guarantee that any Coach will be willing to conduct meetings in person, and this decision will be entirely up to each individual Coach.
b. Coaching Sessions will generally last for approximately one hour, with time of Coaching Sessions and exceptions to meeting cadence and duration to be agreed in advance between Client and the Coach.
c. The Coaching Sessions will begin and end on time, and it will be the responsibility of both Client and the Coach to keep track of time.
d. If a Client is late to any Coaching Session, the Coaching Session will still be expected to end on time and such Client should have no expectation that the Coach will stay later or otherwise make up for the time that was lost.
e. If a Client needs to cancel a Coaching Session, such Client must do so at least 24 hours prior to the scheduled start time. If this notice is not provided, Customer will be liable to pay for the Coaching Session and it will be counted as a used Coaching Session even if such Client does not attend. If a Coach needs to cancel a Coaching Session, the coach will use best efforts to give a Client at least 24-hour notice of change or reschedule prior to any Session, and in no case will a Client be charged for a session a Coach is unable to deliver.
f. Additional Coaching Services outside of Coaching Sessions within a Coaching Engagement, such as assessments, ad-hoc support, etc. are defined on a per-client basis in each Order. Customer and Client agree to take all actions reasonably necessary to facilitate assessments (i.e., providing lists of contacts for 360 feedback, completing assessment questionnaires, etc.), and to use other services, such as ad hoc support, in a commercially reasonable manner aligned with the overall scope of the Coaching
Engagement.
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4. Coaching Engagement Adjustments
a. If a Client is dissatisfied with the Coaching Services provided by the Coach, Customer and each Client agrees to notify the Concierge of these issues and provide a 30-day window within which CoachSelect and the Coach will make commercially reasonable efforts to resolve such Client’s issue, including, if necessary, re-matching such Client with a different Coach. Customer and each Client agrees to make reasonable efforts to participate in resolving the issue, which often will entail continuing the coaching phase as the issues are resolved.
b. In the event a Customer or Client identifies a need to change the number of sessions, elapsed time required for a phase, or Client-specific scope to an extent materially different than the original Order, such Customer or Client, as appropriate, shall promptly notify the Concierge, at which point Concierge will provide an objective assessment of the situation and recommend a commercially reasonable resolution suitable to the specific situation of the Client.
c. If a Client needs to temporarily pause the engagement for longer than two weeks, such Client agrees to immediately notify Concierge and Coach. At the point at which Client is ready to resume the engagement, such Client will provide reasonable notice in advance sufficient to allow rescheduling to Concierge and Coach. Engagement pauses under this clause will be on a month-to-month basis in units of one month. Engagements can be paused for a maximum of two month-long pause periods per six months of originally scheduled Coaching Services, prorated to the duration of each Order. Billing of the fees for such Client will pause for the duration of the engagement pause and resume when such Client’s Coaching Engagement resume following notification from such Client to Concierge and Coach. Any amounts previously paid to CoachSelect will be credited to the resumption of the Coaching Engagement.
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5. Fees
a. For each Coaching Engagement, Customer will pay a non-refundable fee equal to the amount(s) set forth in the applicable Order for each Client that receives Coaching Services. The payment schedule for each Coaching Engagement will be detailed in the Order for each respective Coaching Engagement.
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6. Confidentiality
a. Customer and each Client agrees to keep all Confidential Information confidential and not disclose any Confidential Information to any third party except as required by applicable law, rule or regulations. For purposes of this Agreement, “Confidential Information” means non-public information in any form or medium disclosed to Client by or on behalf of CoachSelect, including without limitation, CoachSelect's technology, trade secrets, know-how, business operations, plans, strategies, customers, Coaches, pricing, and information with respect to which CoachSelect has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.” Notwithstanding anything in this Agreement to the contrary, the confidentiality obligations herein shall not apply to Customer where disclosure is in connection with a routine audit or examination by, blanket document request from, or other disclosure to a regulatory or governmental entity that does not specifically reference CoachSelect or its affiliates.
b. Pursuant to the Defend Trade Secrets Act of 2016, each Client acknowledges that such Client shall not have criminal or civil liability under any Federal or State trade secret law for the disclosure of Confidential Information that is a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, if a Client files a lawsuit for retaliation by CoachSelect for reporting a suspected violation of law (if applicable), such Client may disclose the trade secret to its attorney and may use the trade secret information in the court proceeding, if such Client (X) files any document containing the trade secret under seal; and (Y) does not disclose the trade secret, except pursuant to court order.
c. Subject to this Agreement and the terms of CoachSelect's Privacy Policy, CoachSelect agrees to keep any non-public information Customer or a Client discloses to CoachSelect confidential and not to disclose any such confidential information to third parties except (i) as necessary to fulfill CoachSelect's obligations under this Agreement, and (ii) as otherwise required by applicable law, rule or regulation.
d. Each Coach has agreed to maintain confidentiality of the content of all Coaching Engagements, in accordance with the Code of Ethics set out by the International Coach Federation, and has executed an agreement with CoachSelect to that effect.
e. If a Client works with more than one Coach from CoachSelect, either simultaneously or in sequence, such Client agrees that all Coaches engaged on work for the same Client will, within the bounds allowed by the International Coach Federation Code of Ethics, exchange with each other necessary information about such Client goals and previous work with such Client in order to ensure coordination and/or continuity of Coaching Services.
f. CoachSelect acknowledges the confidential and sensitive nature of the non-public information provided or to be provided by Customer or a Client and acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Section 6 and that Customer and/or a Client shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any such breach, in addition to all other remedies available to such Party at law or in equity.
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7. Termination
a. Either party may terminate this Agreement with 30-days written notice to the other party. Should either party elect to terminate this Agreement, except for termination by CoachSelect for Customer’s or a Client’s material uncured breach of this Agreement, each Client will have the right to receive any Coaching Services remaining in the current coaching phase that have been fully paid for by Customer prior to such termination. In the event the 30-day termination period extends beyond the phase that has been fully paid for by Customer, CoachSelect and Customer agree to reach a commercially reasonable plan to terminate the Order, but in no case will CoachSelect provide a portion of the Coaching Engagement for which Customer has not paid. Refunds will only be provided for the prorated duration of the Coaching Engagement for which the Customer has fully paid beyond the 30-day termination period. Notwithstanding anything herein, if Customer terminates this Agreement due to CoachSelect’s or Coaches’ material breach, which, if capable of being cured is not cured within 30 days of Customer’s notice to CoachSelect describing such material breach, in addition to any other remedies available, CoachSelect shall promptly refund to Customer the pro rata unused portion of any prepaid fees from the date of cancellation.
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8. Payments
a. Means and schedule of payment will be designated in the Order, with payment by means of one of the two following options:
i. Credit Card Payments: estimated fees will be charged to a credit card nominated by Customer in advance of services rendered, generally on a monthly basis. Customer authorizes CoachSelect to make the charges disclosed herein and on the Order, including recurring payments, where applicable. If the foregoing payment method is used, Coaching Services will begin on receipt of first payment.
ii. Invoiced, with payment due on terms of net 30. If the foregoing payment method is used, Coaching Services will begin upon issuance of first invoice.
a) For Coaching Engagements of three (3) months or less, payment in full is due and payable upon the date a Client signs up for Coaching Services.
b) For Coaching Engagements exceeding three (3) months, payments will be prorated into equal installments based on three-month payment intervals, with the first payment due and payable upon the date a Customer executes the initial Order, and remaining invoices issued every three months thereafter in advance of services rendered.
b. In the event of a failed payment or nonpayment, CoachSelect will promptly notify Customer to rectify the situation. Until payment has been received, no Coaching Sessions will be conducted. A finance charge of 1.5% per month (or the maximum amount allowed by law, if less) shall accrue on any Fees not being disputed in good faith that remain unpaid for more than ten (10) days after becoming due. If any Fees remain unpaid for more than thirty (30) days after becoming due, Customer agrees that CoachSelect reserves the right to deem such failure to pay as an effective termination of the applicable Order. Customer further agrees the prevailing party in a final non-appealable judgement by a court of competent jurisdiction will be entitled to any attorney fees, court costs, or other costs incurred in collection of delinquent accounts.
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9. Indemnification
a. Except to the extent arising out of the gross negligence, intentional misconduct or breach of this Agreement by CoachSelect or a Coach, Customer and each Client will indemnify, defend, and hold harmless any Coach providing Coaching Services under this Agreement and CoachSelect and its directors, officers and employees from and against all taxes (but not including U.S., state, or local taxes based on CoachSelect’s income or business, generally), losses, damages, liabilities, costs, and expenses, including attorney’s fees and other out-of-pocket legal expenses, arising directly or indirectly from or in connection with third party claims arising out of: (i) such Client’s use of the Services and the Coaching Services; and (ii) any data, information or other content provided to CoachSelect or the Coach by or on behalf of Customer or such Client; and (iii) the gross negligence of Customer or such Client or the intentional misconduct of Customer or such Client in breach of this Agreement.
b. Each Client is personally responsible for the actions he/she takes or does not take. Customer and each Client agrees not to hold CoachSelect or the Coach liable for consequences of any actions or absence of any actions taken by a Client as a result of coaching conversations.
10. Disclaimer; Limitation of Liability
a. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY ORDER, ANY SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT BEARS ALL RISK RELATING TO QUALITY, ACCURACY AND USE OF THE RESULTS OF THE SERVICES.
b. EXCEPT IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY HERETO, ITS STOCKHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO CUSTOMER OR ANY CLIENT FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES. IN NO EVENT SHALL COACHSELECT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE SERVICES. UNDER NO CIRCUMSTANCES WILL COACHSELECT’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COACHSELECT DURING THE IMMEDIATELY PRECEDING THREE MONTH PERIOD (DETERMINED AS OF THE LAST DATE OF ANY ACTION OR INACTION RESULTING IN COACHSELECT LIABILITY HEREUNDER). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
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11. Intellectual Property
a. CoachSelect and the Coach shall retain all right, title, and interest worldwide in and to any trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter collectively referred to as “Inventions”) and all applicable intellectual property rights related to such Inventions owned by CoachSelect or Coach, respectively, as of the effective date hereunder or discovered, conceived, or reduced to practice by CoachSelect or Coach during the term of the Agreement. Client shall have a perpetual, non-exclusive, royalty-free license to use any Inventions of a Coach that are incorporated in any Coaching Services or deliverables provided to Client by such Coach, and Client shall use Inventions for personal purposes only and shall not provide the Inventions in tangible form to any third party.
b. For further clarity: (i) neither Customer nor any Client may copy or use for any reason (including for any future training) any of the Inventions without prior written consent from CoachSelect; and (ii) neither Customer nor any Client is permitted to record or videotape any Coaching or Training Session without prior written consent of CoachSelect and Coach or Provider.
c. Subject to the Confidentiality terms set forth in Section 6, Customer and each Client hereby grants to CoachSelect and the Coach or Provider a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, sublicensable and transferable right and license to use, copy, process, transmit, store, host, edit, modify, aggregate, combine, reproduce, distribute, display, and prepare derivative works of any data, information, or other content provided to CoachSelect or the Coach or Provider by or on behalf of Customer or such Client, whether through a matching surveys, feedback surveys, or otherwise, in order for each of CoachSelect and the Coach to (a) fulfill its obligation under this Agreement and (b) make changes or improvements to its services or develop other services.
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12. Non-Solicitation and Non-Compete
a. Customer and each Client will not suggest or agree to work with any Coach or Provider in the CoachSelect network to whom they have been introduced during the term of this Agreement by CoachSelect directly during the term of this Agreement and for a period of one year thereafter, except in connection with a written Order or with express written approval of CoachSelect.
b. If during the term of this agreement any Coach or Provider within the CoachSelect network to whom Customer and any Client have been introduced during the term of this Agreement by CoachSelect attempts to solicit Customer or any Client or works directly with Customer or any Client, Customer and/or such Client will notify CoachSelect immediately.
c. Neither Customer nor any Client may use or access the Services for the purposes of monitoring their performance, pricing, functionality, or for any other benchmarking or competitive purposes.
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13. Applicable Law and Other Terms
a. This Agreement shall be interpreted in accordance with the laws of Delaware residents without regard to any conflict of law principles.
b. This Agreement will be effective as of the date executed by both parties via a signed Order referencing this Agreement.
c. This Agreement constitutes the sole and entire agreement of the parties hereto and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. The terms of this Agreement will govern all Services undertaken by CoachSelect for Customer or Clients.
d. No waiver by either party hereto of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by either party hereto of any right under this Agreement shall be construed as a waiver of any other right.
e. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
f. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, CoachSelect may assign, without Customer’s consent, this Agreement, to (i) a wholly owned subsidiary of CoachSelect, or (ii) any entity which acquires all or substantially all of the assets of CoachSelect or into which CoachSelect is merged or consolidated or to any entity controlling or controlled by CoachSelect Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
g. Customer hereby grants to CoachSelect a worldwide, non-exclusive, royalty-free right and license to use Customer’s name and logo solely in connection with CoachSelect’s marketing and advertising materials, including without limitation, on CoachSelect's website; provided, that CoachSelect shall use such name and logo in accordance with such written guidelines therefor as Customer may provide to CoachSelect from time to time. In the event CoachSelect would like to use Customer’s name and logo in connection with a public case study regarding Customer’s use of the Services, CoachSelect will obtain Customer’s prior written approval of the content of such case study (such approval not to be unreasonably withheld).