Terms of Service
Last updated on December 23rd, 2024
This Terms of Service Agreement (hereinafter referred to as the “Agreement”) is between The Jenkins Advisory Group (the “Provider”) and the organization agreeing to the terms of this Agreement (“Customer”) (collectively referred to as the “Parties”) and together with all applicable attachments, addenda, and Order Forms, is the complete agreement of the parties regarding Customer’s order of the Services.
Now, therefore, the Parties agree as follows:
1. Terms of acceptance
This Agreement shall be effective on the date (a) Customer accepts terms of this Agreement and (b) Provider receives any required full payment of selected Subscription Plans. In the event of a conflict, an attachment, addendum, or Order Form prevails over this Agreement.
2. Definitions
2.1. “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
2.2. “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with the Customer entity agreeing to these terms, where “Control” means ownership of more than 50% of the voting interests of the subject entity or having the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise, or is granted access by Customer for any purpose.
2.3. “Customer Data” means data, information, or materials submitted by or on behalf of Customer or Users to the Services but excludes Feedback.
2.4. “Feedback” means suggestions, feedback, or comments about the Services or related offerings.
2.5. “Order Form” means an ordering document, or an online order entered into between Customer (or Affiliates) and Provider specifying the Services to be provided pursuant to this Agreement. Each Order Form is a stand-alone Agreement, separate from any other Order Form, incorporating the terms and conditions of this Agreement by reference.
2.6. “Subscription” means the use of a Service as defined on the applicable Order Form.
2.7. “Subscription Plan” means the available plans of a Service, outlined on Provider’s pricing sheet.
2.8. “User” means any individual who uses the Services on Customer’s behalf or through Customer’s account, including Customer’s or its Affiliate’s employees, consultants, contractors, or agents.
2.9. “Website” means Provider’s website https://www.TheJonathanJenkins.com, and its sub-domain pages.
3. Use of services
3.1. User Account, Customer is responsible for all actions on Users’ accounts and for Users compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
3.2. Affiliates, If authorized, individuals from Customer’s Affiliates may access Customer’s account as Users under Customer’s Agreement and Customer will be responsible for its Affiliates’ compliance with this Agreement.
3.3. Usage of Feedback and Usage Data, Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS.” Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data (i) to maintain, improve, and enhance Provider’s Services and services without restriction or obligation and (ii) to communicate Services offerings to Customer as consented. However, Provider may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users.
4. Use of services
4.1. User Account, Customer is responsible for all actions on Users’ accounts and for Users compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
4.2. Affiliates, If authorized, individuals from Customer’s Affiliates may access Customer’s account as Users under Customer’s Agreement and Customer will be responsible for its Affiliates’ compliance with this Agreement.
4.3. Usage of Feedback and Usage Data, Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS.” Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data (i) to maintain, improve, and enhance Provider’s Services and services without restriction or obligation and (ii) to communicate Services offerings to Customer as consented. However, Provider may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users.
5. Customer’s obligations & restrictions
5.1. Obligations. Customer shall at all times:
(a) Ensure the Service is used only as expressly permitted in this Agreement;
(b) Only use the Service in compliance with applicable law;
(c) Ensure Affiliates and Users comply with this Agreement, as applicable;
(d) Be responsible for all actions on Users’ accounts and for Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised;
5.2. Restrictions. Customer must NOT:
(c) Remove any proprietary notices or labels;
(e) Access accounts, information, data, or portions of the Service to which Customer does not have explicit authorization;
(f) Use the Service to develop a competing service or Services.
6. Suspension
If Customer (a) fails to pay renewal prior to the Renewal Date; (b) breaches Customer Obligation and Restrictions (Section 6); or (c) uses the Service in violation of the Agreement or in a way that materially or negatively impacts the Service or others, then Provider may temporarily suspend Customer’s access to the Service with or without notice. Provider may reinstate Customer’s access to the Service if Customer resolves the underlying issue.
7. Term & termination
8.1. Agreement Term. This Agreement is in effect as long as there is an active subscription for the Services.
8.2. Termination. This Agreement may be terminated as follows: (a) Either Party may terminate this Agreement unilaterally at any time without prior notice if the other Party commits a material breach that is not cured within thirty (30) days following receipt of notice of the breach. If Provider terminates for breach, any amounts Customer paid will not be refunded and Provider reserves the right to bring claims for damages. (b) Provider may terminate this Agreement and/or any subscription without liability if: (i) Customer’s use of the services violates applicable law; or (ii) Provider is prohibited by law or otherwise restricted from providing Services to Customer. (c) Customer may terminate this Agreement unilaterally, at any time and without cause, by providing at least thirty (30) days prior written notice to Provider. In the event of a termination without cause, amounts paid or payable by the Customer will not be refundable.
8.3. Effect of Termination. Termination of the Agreement will automatically terminate all Order Forms. Upon expiration or termination: (a) Customer will no longer have any right to use the Services
8.4. Survival. The following sections shall survive termination of this Agreement: Feedback and Usage Data (Section 4.4), Payment (Section 5) for fees and taxes accrued or payable before expiration or termination, Customer’s Obligation and Restrictions (Section 6), Effect of Termination (Section 8.3), Survival (Section 8.4), Representation and Warranties (Section 10), Disclaimer of Warranties (Section 11), Limited Liability (Section 13), Confidentiality (Section 14), Governing Law (Section 16), and General Conditions (Section 17).
8. Intellectual property
Provider exclusively owns all right, title, and interest in and to all intellectual property rights in the Services and Website. Customer agrees to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services and Website. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services and Websites shall, as between the Parties, at all times be and remain the sole and exclusive property of Provider.
9. Indemnification
9.1. Covered Claims
(a) Provider Covered Claims. Any action, proceeding, or claim that the Services, when used by Customer according to the terms of the Agreement, violates, misappropriates, or otherwise infringes upon a third party’s intellectual property or other proprietary rights.
(b) Customer Covered Claims. Any action, proceeding, or claim (1) that the Customer Data, when used according to the terms of the Agreement, violates, misappropriates, or otherwise infringes upon a third party’s intellectual property or other proprietary rights; and (2) arising from or relating to Customer’s breach or alleged breach of Section 6.2 (Customer Restrictions).
(c) General Cap Amount: $5,000.00 (d) Increased Cap Amount: $10,000.00
9.2. Protection by Provider, Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, which arise from Provider Covered Claim.
9.3. Protection by Customer, Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, which arise from the Customer Covered Claim.
9.4. Procedure, The Indemnifying Party’s obligations in this section are contingent upon the Protected Party:
(a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection;
(b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and
(c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim.
A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
9.5. Changes to Services, If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may:
(a) obtain the right for Customer to continue using the Services;
(b) replace or modify the affected component of the Services without materially reducing the general functionality of the Services; or
(c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid fees for the remainder of the Subscription Period.
9.6. Exclusions
(a) Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from:
(i) modifications to the Services that were not authorized by Provider or that were made in compliance with Customer’s instructions;
(ii) unauthorized use of the Services, including use in violation of this Agreement;
(iii) use of the Services in combination with items not provided by Provider; or (iv) use of a previous version of the Services where a newer release would avoid Provider Covered Claim.
(b) Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.
9.7. Exclusive Remedy, This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.
10. Limitation of liability
10.1. Liability Caps, If there are Increased Claims, each party’s total cumulative liability for the Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount. Each party’s total cumulative liability for all other claims arising out of or relating to this Agreement will not be more than the General Cap Amount.
10.2. Damages Waiver, Each party’s liability for any claim or liability arising out of or relating to this Agreement will be limited to the fullest extent permitted by Applicable Laws. Under no circumstances will either party be liable to the other for lost profits or revenues, or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.
10.3. Exceptions, The liability caps in Section 10.1 and the damages waiver in Section 10.2 do not apply to any Unlimited Claims. The damages waiver in Section 10.2 does not apply to any Increased Claims.
11. Confidentiality
“Confidential Information” means all non-public information, materials, documentation, or data, relating to a Party’s business, which is disclosed by one Party (“Discloser”), or received by the other Party (“Recipient”), in connection with this Agreement, and which is clearly identified or marked as confidential or proprietary at the time of delivery to Recipient or which a reasonable person would understand to be confidential or proprietary. Recipient undertakes to:
(a) protect the confidentiality of the Confidential Information with at least the same degree of care as it applies to its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care;
(b) only use Confidential Information for purposes consistent with its rights and obligations under this Agreement;
(c) not disclose Confidential Information to any third-party other than its employees, consultants, vendors or advisors who have a need to know and who are bound by confidentiality and non-use obligations no less restrictive than those set forth herein.
Confidential Information shall not include any information which:
(a) Recipient already knew at the time of disclosure;
(b) is generally available to the public or becomes known through no wrongful act of Recipient;
(c) Recipient received from a third-party who had a legal right to provide it; and/or
(d) Recipient developed independently of any knowledge of or access to any of Discloser’s Confidential Information.
Either party may disclose Confidential Information if required by law or regulatory authorities, provided that, so far as it is lawful to do so, Recipient gives prompt notice to Discloser, so that Discloser may contest the requirement to provide such information. Upon Discloser’s written request, Recipient will return or destroy all Confidential Information in Recipient’s possession within thirty (30) days of the request. Recipient may retain a limited number of electronic copies of the Confidential Information to comply with applicable law, and as may be automatically created, maintained, and destroyed by its standard backup processes and systems. Recipient will remain bound by its confidentiality obligations for any copies retained. If Customer runs the Services in other than “read only” mode and as a result Provider gains access to Confidential Information of Customer, Customer is deemed to have waived its claims under this provision.
12. Dispute resolution
Before resorting to formal dispute resolution, if Customer takes any issue with Provider or Services, Customer agrees that before any formal action, Customer will contact Provider at info@TheJonathanJenkins.com and provide a brief, written description of the dispute and contact information (including username, if the dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the other Party, and good faith negotiations prior to initiating a lawsuit shall be a condition to either party initiating a lawsuit.
13. Governing law
13.1. This Agreement will be governed by and construed according to the laws of Wyoming.
13.2. Chosen Courts. The courts (whether state, federal, or otherwise) are located in Jackson, Wyoming.
The Governing Law (Section 13.1.) will govern all interpretations and disputes about this Agreement, without regard to its conflict of law’s provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts (Section 13.2) and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.
14. General conditions
14.1. Entire Agreement, This Agreement constitutes the Parties’ entire contractual relationship. It cancels and supersedes all prior oral or written communications, proposals, conditions, representations, and warranties, and prevails over any conflicting or additional terms mentioned in any price quotation, purchase order, acknowledgment, clickwrap or clickthrough provisions, or other communication between the Parties, regardless of when such terms were issued. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the Order Form shall prevail.
14.2. Translation, The English version of this Agreement is the only valid version. Translations into other languages are not legally binding.
14.3. Assignment, Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
14.4. Force Majeure, Neither Party shall be deemed in default or otherwise be liable under this Agreement (except for payments due) as a result of its inability to perform its obligations hereunder by reason of any fire, earthquake, flood, substantial snow storm, epidemic, accident, explosion, casualty, strike, lock-out, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state, provincial, territorial or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder) or any failure or delay of any transportation, power or communication system or any other similar cause beyond that Party’s control.
14.5. Notices, Provider will notify Customer of any material modifications to this Agreement at least thirty (30) days prior to the modifications taking effect by sending an email notice to Customer. Customer’s continued use of the Services after thirty (30) days from notice constitutes agreement to the modifications of the Agreement.