These Online Purchase Terms & Conditions (“Agreement“) are between The Presentation Company, LLC (“TPC“), and the entity (“Client“) purchasing goods or services from the TPC website and/or signing a Statement of Work or other document (“SOW“) setting forth specific services to be provided by TPC (“Services“) and referencing this Agreement. By making a purchase from the TPC website and/or signing an SOW referencing this Agreement, Client agrees to the terms of this Agreement. This Agreement will be deemed effective upon the earlier of (a) when Client first purchases Services, (b) when Client first receives TPC’s Services or (c) the effective date listed in the applicable SOW (such date, the “Effective Date“).
The parties agree as follows:
1. Scope of Agreement
As of the Effective Date, Client engages TPC to provide, and TPC agrees to provide, the Services. Detailed descriptions of TPC’s services and technology are available here (services) and here (technology). The descriptions include important information regarding (a) logistics, (b) technical specifications and requirements, and (c) materials provided with various services. The descriptions are incorporated by reference into this Agreement, and TPC may update the descriptions from time to time in its sole and absolute discretion.
2. Fees and Expenses; Timelines
Client will pay TPC for the Services as specified in the applicable SOW or purchase screen on the website; upfront payment may be required for website purchase. Client agrees that TPC may charge any credit card on file for outstanding amounts. All prices are USD. TPC may update its fees and expenses (a) on an annual basis without notice and/or (b) more frequently if it provides at least 30 days’ prior notice to Client (which may be provided by email). Client is responsible for such updated fees and expenses upon (y) updating by TPC or (z) notification to Client, whichever occurs first. Unless stated otherwise in this Agreement or the applicable SOW, all fees and expenses for the Term (as defined below) are noncancellable and nonrefundable, notwithstanding TPC invoicing for such fees and expenses on a monthly (or other periodic) basis.
Unless stated otherwise in an SOW or website purchase screen, Client must pay invoices within 30 calendar days after receipt. If Client fails to timely pay any amounts due, TPC may, in addition to all other remedies available to it at law, in equity, or otherwise, cease providing all Services. This includes, without limitation, immediately suspending or terminating Client’s access to e-learning programs, terminating this Agreement, and/or terminating any/all SOWs. In addition, any late payments will be subject to interest charges equal to the lesser of (i) 1.5 percent per month or (ii) the maximum amount allowed by applicable law. Interest begins accruing on the applicable due date. TPC may refer collection of any unpaid amounts to an attorney or collections agency and recover from Client all costs and fees incurred.
3. Confidentiality
During the Term, each party (the “Receiving Party“) may acquire non-public information (orally, by visual observation, or in writing) the other party (the “Disclosing Party“) considers confidential and proprietary, including without limitation:
(a) matters of a technical nature such as know-how, formulas, trade secrets, inventions, methods, programs, designs, models, or research projects; (b) matters of a business nature such as information about costs, profits, pricing policies, markets, sales, suppliers, customers, employees, subcontractors, references, plans for future development, plans for future products, marketing plans, or strategies; and (c) other information of a similar nature not generally disclosed by Disclosing Party to the public (collectively, “Confidential Information“).
During the Term, Receiving Party will (x) keep secret and retain in the strictest confidence all Disclosing Party Confidential Information, (y) not disclose Disclosing Party Confidential Information to any third party other than its employees, officers, directors, and subcontractors with a “need to know” such information to enable Receiving Party’s performance of this Agreement, and (z) not use any Disclosing Party Confidential Information for any purpose other than performance of this Agreement. Receiving Party further agrees, upon Disclosing Party’s request, to either return or securely destroy Disclosing Party’s Confidential Information and all memoranda, notes, records, reports, manuals, drawings or other documents (and all copies thereof) relating to Disclosing Party’s Confidential Information that are in the possession or under the control of Receiving Party.
TPC will also protect personal information it receives under this Agreement in the same manner as Confidential Information and process it only to perform the Services or as otherwise disclosed at the time of collection (e.g., for optional surveys and testimonials). TPC will not retain, use, disclose, or otherwise process such personal information for any other purpose, “share” or “sell” (as such terms are defined by applicable law) personal information, or combine it with other personal information it collects. Notwithstanding the foregoing, TPC may process personal information to improve the quality of TPC’s services.
Upon termination or expiration of an SOW, TPC will, upon request, delete or return Client’s personal information; provided that TPC may retain such information if required to do so by law.
If TPC becomes aware of the unauthorized access, use, or disclosure of personal information received from Client (a “Security Incident”), it will notify Client without undue delay and provide reasonable assistance to enable Client (at Client’s cost and expense) to respond to and remediate the Security Incident. TPC will also provide, upon request and at Client’s expense, such information as Client may reasonably request to confirm TPC’s compliance with its obligations under applicable privacy laws.
Notwithstanding the expiration or termination of this Agreement, each party will continue to comply with its confidentiality and nondisclosure obligations set forth in this Section 3 with respect to any of the other party’s Confidential Information and/or personal information it possesses.
4. Intellectual Property
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all TPC information, methods, programs, designs, models, workshops, materials, documents, and work product existing as of the Effective Date or developed independent of this Agreement will be owned by TPC. TPC will also own all Intellectual Property Rights in anything that is conceived or developed by TPC in the course of performing the Services, or any feedback provided by Client (collectively, the “Developed IP”); provided that, as long as Client complies with its obligations under this Agreement, TPC grants Client a license to use all Intellectual Property Rights in the Developed IP free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis solely to the extent necessary for Client’s internal business use of the Developed IP and Services. TPC will not own Client Confidential Information, Client personal information, or any other materials or information provided by Client: all such information and materials will be owned by Client; provided that TPC will have a license to use such Client information and materials to provide the Services.
5. Client Responsibilities
TPC’s timely, accurate, and successful provision of the Services depends, in part, on Client’s timely performance and functionality of Client’s systems, including without limitation Client’s computer network and learning-management system. TPC is not responsible for any delays arising from Client’s actions or omissions, including without limitation any failure to timely provide any access, information, or materials as TPC may reasonably request, or any failure or delay arising out of or related to Client’s systems.
In addition, Client is solely responsible for the accuracy, content, completeness, and legality of all information and materials provided or made available to TPC, including without limitation information provided by or related to Client’s employees (collectively, “Client Data”). Client is also solely responsible for ensuring that its use of TPC and the Services does not violate any obligations to any third parties. Client must obtain all third-party licenses, rights, clearances, consents, and approvals that are required for TPC to perform the Services, and Client represents and warrants that TPC’s performance will not violate any applicable law or any intellectual property, publicity, privacy, or other rights of any third parties.
Client is solely responsible for paying any sales, use, goods, value-added, or similar taxes or levies related to the Services, other than taxes based on TPC’s income. All such taxes and levies are excluded from any prices provided by TPC.
6. Independent Contractors; No Exclusivity
TPC is an independent contractor and not an employee of Client. TPC is not subject to direct supervision or control by Client. TPC is not eligible for Client employee benefits. TPC may use subcontractors to perform the Services; provided that (a) TPC enters into agreements with its subcontractors committing them to relevant obligations of TPC under this Agreement, such as confidentiality, and (b) TPC will be responsible for all actions and omissions of its subcontractors.
The Services are not exclusive to Client: TPC may provide similar or identical services to third parties.
7. No Assignment
This Agreement may not be assigned by Client without the prior written consent of TPC, which will not be unreasonably withheld. Any attempted assignment in violation of this Section is voidable in TPC’s sole and absolute discretion. This Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
8. Term and Termination
This Agreement and each SOW will commence on their respective Effective Date and, unless stated otherwise in the applicable SOW, will continue for two years (“Initial Term“) from such date; provided that this Agreement and each SOW will automatically renew for successive two-year terms (each a “Renewal Term“) unless a party provides notice of its intent to not renew at least 90 days before the expiration of the then-current Term. In addition, notwithstanding expiration (and unless previously terminated), each SOW will survive until the Services under that SOW are completed. “Term” will mean, collectively, the Initial Term and any Renewal Term(s).
Either party may terminate this Agreement if the other party is in material breach and fails to cure such breach within 30 days of being provided notice by the non-breaching party. Regardless of the reason for termination, Client will remain responsible for all costs, fees, and expenses that are (or will be) due through the effective date of termination.
If Client needs to cancel or reschedule a scheduled workshop (or other event), it must provide TPC with written notice more than 30 business days before such event. If it fails to timely provide such notice, Client will be invoiced, and responsible for, fees as follows (in addition to any of TPC’s out-of-pocket expenses):
- 30 business days’ notice or less: $2,500.
- 20 business days’ notice or less: $5,000.
- 10 business days’ notice or less: full price.
9. Limited Warranties
TPC warrants that the Services will be performed by personnel with commercially reasonable skill, experience, and qualifications. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES, TOGETHER WITH ALL RESULTS AND OUTPUTS OF THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TPC MAKES NO OTHER GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. Limitation of Liability; Indemnification
IN NO EVENT WILL TPC BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, OR DATA, OR DIMINUTION IN VALUE, OR FOR ANY OTHER 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 TPC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL TPC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID TO TPC PURSUANT TO THE APPLICABLE SOW IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Client will defend, indemnify, and hold TPC harmless from and against any and all claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, costs, and expenses (including, without limitation, reasonable attorney fees) asserted by a third party arising out of or related to any (a) Services, (b) Client Data, (c) alleged infringement of a third-party’s intellectual property, privacy, or other proprietary rights by Client, (d) alleged breach of this Agreement by Client, or (e) gross negligence or willful misconduct by Client.
11. Governing Law; Arbitration
This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, without regard to Oregon’s conflict of laws principles. Any dispute or claim that arises out of or relates to this Agreement, or to the interpretation or breach thereof, or to the existence, validity, or scope of this Agreement, will be resolved by confidential arbitration in Portland, Oregon, in accordance with the then effective arbitration rules of (and by filing a claim with) Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof. The parties agree to a single arbitrator.
12. Entire Agreement; Counterparts
This Agreement, including all signed SOWs, constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and agreements, whether written or oral, among the parties with respect to such subject matter. If there is a conflict between this Agreement and online purchase terms or an SOW, this Agreement will control and govern. SOWs and other documents under this Agreement requiring signature may be executed in multiple counterparts, including by electronic (e.g., PDF) document exchange, each of which will be deemed an original, and all of which together will constitute the same agreement.
13. Amendment
This Agreement and any SOWs may be amended only by an instrument in writing executed by both parties, which writing must refer to this Agreement. Notwithstanding the foregoing, if any dates and times are not specified when a purchase is made or an SOW is executed, the parties may later mutually agree to such dates/times and memorialize that agreement via email. In addition, (a) the parties may change the (i) dates and times for an event and (ii) personnel associated with events if they reach consensus by email; no formal signed amendment is necessary for such purposes, and (b) TPC may update this Agreement from time to time, effective upon the earlier of (i) posting an updated version to its website (https://www.presentation-company.com/) or (ii) providing notice to Client (which may be provided by email). Client’s continued use or receipt of Services after such updates are effective is deemed Client’s acceptance of the updated Agreement.
14. Notices
Notices under this Agreement must be given by email to (a) TPC at the following address: privacy@presentation-company.com and (b) to Client at the address (i) Client used when making an online purchase or (ii) set forth in the applicable SOW. Notice will be deemed received on the same day it is sent if sent during the regular business hours of the receiving party (or on the next business day if sent outside the recipient’s regular business hours). A party may update their email address for notices by providing its updated email address to the other party.
15. Third-Party Beneficiaries
This Agreement benefits solely the parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person (including without limitation Client’s employees) any legal or equitable right, benefit, or remedy of any nature whatsoever.
16. Force Majeure
TPC will not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond TPC’s reasonable control including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic, lock-outs, strikes or other labor disputes, failure or unavailability of services or software provided by third parties retained in connection with the Services, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage; provided that, if the event in question continues for a continuous period longer than 60 days, Client will at that time be entitled to terminate this Agreement by giving notice to TPC.
17. Attorney Fees
In any litigation related to or arising out of this Agreement, the prevailing party will be awarded reasonable costs and attorney fees incurred in such proceeding, including on appeal.