SACRED FIRE CREATIVE
PROGRAM TERMS AND CONDITIONS
September 1, 2018
From time to time, Sacred Fire Creative and/or its principal, Malee Ojua, having an address of 5331 SW MACADAM AVE, STE 258 PMB 533, PORTLAND OR 97239 (hereinafter “Company” or “We”) may offer speaking engagements, training seminars, or other events relating to various marketing, branding, and business topics to customers, clients, or the public (hereinafter collectively “Program” or “Programs”). By signing an agreement relating to a specific Program (a “Program Agreement”), where requested, and/or by attending a Program, you (hereinafter “you” or “Client”) agree to fully comply with and be bound by these Program Terms and Conditions. If you do not accept these Program Terms and Conditions, you may not attend the Programs.
We may modify these Program Terms and Conditions at any time, and such modification will be effective upon posting to the Sacred Fire web site, emailing them to you, or otherwise providing them to you. The Program Terms and Conditions governing your attendance at any particular Program are the ones that were posted, provided, and effective as of the date of your attendance at the relevant Program. Client and Company may be referred to herein individually as a “Party” or collectively as the “Parties.”
PROGRAM SERVICES AND RESPONSIBILITIES.
Program Services. Company agrees to provide the services that comprise the Programs pursuant to any Program Agreement, or other description of the particular Programs. Company shall determine the time, place, method, details, and means of performing the services that comprise the Programs. Through Client’s enrollment in a Program, Client will be able to participate in the Program and receive and/or have access to the materials associated with the Program.
Client Attendance. Responsibilities. Client is responsible for their own attendance and participation in any portion of a Program. Company shall make the schedule of the Program available to Client, but will not be responsible for reminding Client of, nor for making sure that Client attends or participates in any portion of the Program. Client is responsible for and agrees to provide their own transportation, lodging, and meals for any part of the Program. Client also is responsible for and agrees to provide their own devices and access to technology necessary for participating in a Program, if applicable, which include, without limitation, (a) devices that access the Internet and specifically the Zoom conferencing service and the Facebook application, (b) Internet access, and (c) any accounts necessary for participating in Zoom meetings and private Facebook groups. Client is responsible for maintaining its own login credentials and account information, if any is required for any of the online meetings or content. Company will not be responsible for maintaining such personal information for Client.
Client will pay prior to attendance or participation in a Program, the fees for the Program set by Company or otherwise agreed to between the Parties (the “Participation Fees”).
Company only offers a limited number of slots for participants in any Program, and expends significant time and resources in preparation of and participation in the meetings, events, and materials associated with a Program. Therefore, Client understands and agrees that they are responsible for full payment of Participation Fees, regardless of whether they attend or complete the Program. Any additional terms relating to fees and payment, including refunds or no refunds, will be specified in a Program Agreement or otherwise agreed to by the Parties for an individual Program.
PROPRIETARY RIGHTS. CONFIDENTIALITY.
Proprietary Works. Client acknowledges and agrees that the information and materials, including without limitation, the methods, strategies, processes, and programs taught or discussed in, or provided through a Program constitute proprietary, intellectual property of Company (“Proprietary Works“). Client further acknowledges that all Programs and the Proprietary Works are and shall remain the property of Company, and that Client shall not (a) infringe on any Program, the Proprietary Works, in whole or in part, (b) interfere with Company’s ownership or registration of its rights in any Program or the Proprietary Works, (c) claim any part of any Program or Proprietary Works as its own, (d) attempt to copy or reproduce any part of any Program or Proprietary Works for Client’s own competitive benefit or cause any third parties, directly or indirectly to do the same. Without limiting the foregoing, Client acknowledges and agrees that any materials it receives during participation in any Program are for Client’s own, personal use, and are not to be copied, duplicated, distributed, published, broadcast, transmitted, performed, publicly displayed, sold, or leased.
Confidential Information. The Proprietary Works, along with any and all Company information and data of a confidential nature, including but not limited to any and all design, creative, marketing, sales, operating, performance, know how, business and process information, and other trade secrets (hereinafter referred to as “Confidential Information”), shall be treated by Client as confidential, in the strictest confidence and not disclosed to third parties or used by Client for any purpose other than for participating in the Program (or in the limited case of materials distributed during the Program, for Client’s personal reference and use after the Program), without Client’s express written consent. Confidential Information shall not include any information which (a) becomes available to the public through no breach of confidentiality by Client, (b) was in Client’s possession prior to receipt from the disclosure, (c) is received by Client independently from a third party free to disclose such information, or (d) is independently developed by Client without use of the Company’s Confidential Information.
Trademarks. SACRED FIRE CREATIVE and the Sacred Fire Creative logo are trademarks of Company, and may appear on materials provided to Client during participation in a Program. Inclusion in such materials does not constitute the grant of any license to Client to use Company’s trademarks. In general, any use of Company’s trademarks must be pursuant to prior written agreement, permission, or consent. Client agrees that it will not at any time assert or claim any interest in or do anything that may adversely affect the ownership, validity, or enforceability of the Company’s trademarks. Any other trademarks appearing in any materials are the property of their owners.
Image Permissions, Copyrights, and Release. Client understands and agrees that photography and videography will be utilized during the Programs, and therefore agrees as follows:
(a) Client grants Company and its agents, representatives, employees and contractors the right to take photographs, video, and audio recordings of Client in connection with their attendance at any Program.
(b) Client grants Company and its agents, representatives, heirs, assigns, successors in interest, contractors and licensees, the irrevocable and unrestricted right and permission to copyright, use, publish, distribute, exhibit, transmit, disseminate, broadcast, copy, and create derivative works of any name, image, likeness, photographs, pictures, video and audio recordings of Client or in which Client may be included, in whole or in part, without restriction as to changes or alterations, for any lawful purpose, including without limitation and only by way of example, such purposes as publicity, illustration, advertising, and Web content, in any and all form of media now or hereafter known, including without limitation print, electronic, digital, and/or on the internet.
(c) Client hereby waives any right that Client may have to inspect or approve the finished product or products that may use Client’s name, image, likeness, or voice.
(d) Client, on behalf of Client, Client’s heirs, executors, agents, administrators, and assigns expressly and specifically releases Company and its agents, representatives, heirs, assigns, successors in interest, contractors and licensees (the “Released Parties”) from all responsibility, liability, claims, demands, damages, expenses, or costs (including attorneys’ fees) of any kind, including without limitation invasion of privacy, right of publicity, copyright or trademark infringement, defamation, or any other cause of action arising out of or resulting from the Released Parties’ use, reproduction, distribution, publication, public exhibition, dissemination, transmission, broadcast, copying, creating derivative works or any other exploitation of Client’s name, image, likeness or voice in connection with the Programs.
NO SOLICITATION. NO COMPETITION.
Non-Solicitation of Clients or Employees. Through the group meetings, activities, and/or materials provided through a Program, Client may have access to the names of Company’s clients or even direct access to Company’s clients. Accordingly, Client shall not, directly or indirectly, contact, solicit, or perform services for the Company’s clients that are in competition with Company’s various marketing, branding, design, web site, social media, and/or training or program services, during the Term and for a time period of one (1) year after the Term, unless Company provides written permission. In addition, Client shall not, directly or indirectly hire, solicit, or encourage to leave the Company’s employment, any employee, consultant or contractor of Company or hire any such employee, consultant, or contractor who has left the Company’s employment or contractual engagement during the Term or for a time period of one (1) year of such employment or engagement unless Company provides written permission.
Non-Competition with Program. Client agrees during the Term and for a time period of one (1) year after the Term, that they shall not (a) offer or provide seminars, training, or programs on the same or substantially similar topics to those provided by Company under the attended Program, or (b) directly or indirectly, own, manager, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation or control of, any company that offers or provides training or programs on the same or substantially similar topics to those provided by Company under the attended Program.
Injunctive Relief. Client agrees that a breach by it of any of the terms of the Program Terms and Conditions and any Program Agreement may cause irreparable harm to Company for which Company could not be adequately compensated by money damages. Accordingly, Client agrees that, in addition to all other remedies available to Company in an action at law, in the event of any breach or threatened breach by Client of the terms of the Program Terms and Conditions and any Program, Company shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief.
Litigation Expenses/Attorneys’ Fees. If any legal action or any arbitration or other proceeding is brought for the enforcement of these Program Terms and Conditions or any Program Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions therein, the successful or prevailing Party or Parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
TERM AND TERMINATION.
Term. The Term shall commence as of the date of a Program Agreement, if applicable, or the date the Program commences (whichever is earlier), and shall continue through completion of the Program, or by earlier termination as set out herein.
Default for Non-Payment. In the event any payment due with respect to a Program is late, including without limitation the failure of a credit card payment to timely process, Company will provide written notice of the default and a demand for payment. Such notice will be considered “written” and delivered, when sent to the last known email address for the Client. Should Client fail to timely remit the past due amount within ten (10) days from the date of the Notice of Default, or prior to the commencement of the Program, whichever is earlier, Company may terminate any relevant Program Agreement and Client will not be allowed to attend the relevant Program.
Breach of Confidentiality; Infringement. Company may terminate any Program Agreement or Client’s attendance at or participation in any Program without the requirement for a Notice of Default or opportunity to cure if any act or omission by Client or on the part of anyone acting within Client’s control breaches the confidentiality terms hereunder, infringes the Company’s Proprietary Works, or otherwise infringes upon the rights of Company.
Non-Disparagement. Client and Company shall refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding the other Party, or any of the other Party’s officers, directors, employees, personnel, agents, policies, services or products, other than to comply with law. Client agrees to take no action, which is intended, or would reasonably be expected, to lead to unwanted or unfavorable publicity or harm to Malee Ojua, Company, or her or its reputation. Client will not make any disparaging or defamatory statements about Company to any third parties, or not take any action to disrupt Company’s business nor to harm Company’s reputation. Any such threatened or actual action will be a violation of these Program Terms and Conditions, and Company may terminate any relevant Program Agreement without the requirement for a Notice of Default or opportunity to cure if any act or omission by Client or on the part of anyone acting within Client’s control breaches this provision.
No Further Services. Upon termination or expiration of any Program Agreement, or the end of a Program, for any reason, all services and access to elements of the relevant Program will be terminated as to Client (including without limitation, further participation on any Zoom meetings, access to any online materials, and access to or participation in any group Facebook page, if applicable to the relevant Program).
Survival: Upon expiration or termination of any Program Agreement or the end of a Program, for any reason, the following provisions of these Program Terms and Conditions shall survive: terms relating to Proprietary Rights and Confidentiality, Non-Solicitation and Non-Competition, Remedies, Non-Disparagement, Survival, Indemnification, Warranties, No Guarantees, Disclaimer of Warranties and Limitations of Liability, Notices, and General Provisions.
Indemnity. Client shall defend, indemnify and hold harmless Company and its agents, affiliates and their respective shareholders, directors, officers and employees from and against all claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements arising out of or resulting from any third-party claim, suit, action or proceeding related to or arising out of any breach by Client of any of its representations, warranties and obligations hereunder.
Company’s Warranties. Company represents, warrants and covenants that Company has full authority to enter into any Program Agreement and these Program Terms and Conditions, and that all of the services, whether performed by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.
Client’s Warranties. Client represents, warrants and covenants that Client has full authority to enter into the relevant Program Agreement and accept and follow these Program Terms and Conditions, and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Client’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term.
Company’s obligations to Client are to provide the elements of the Program, pursuant to any Program Agreement and these Program Terms and Conditions. While Company is confident that Client will derive significant information and benefits from the relevant Program, and that Company is providing usable and translatable business strategies for success, Company cannot and does not represent, warrant, or guarantee that Client will attain any specific level of success, business results, sales, profits, or earnings as a result of participation in any Program. Company cannot and does not represent, warrant, or guarantee any achievement related to specific or personal of goals, satisfaction in any Program, or that Client’s business will utilize and/or implement all of the elements of the relevant Program. Results may vary based on the Client, the Client’s business, and many other factors both intrinsic and extrinsic to Client outside of Company’s control (ranging from personal motivation, time commitment, and work ethic to fiscal viability of a business, market conditions, and technological changes). Client’s cost and time for a Program is an investment in Client’s self and in Client’s business, and as with any investment, there is the potential for, but no guarantee of any return.
DISCLAIMER OF WARRANTIES. LIMITATION OF LIABILITY.
DISCLAIMER OF WARRANTIES. THE PROGRAMS (INCLUDING WITHOUT LIMITATION, ANY MEETINGS, PRESENTATIONS, AND MATERIALS IN ANY MEDIA OR FORMAT) ARE PROVIDED “AS IS,” AND EXCEPT AS PROVIDED IN THESE PROGRAM TERMS AND CONDITIONS, COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO THE CLIENT FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND IN NO EVENT SHALL COMPANY’S LIABILITY EXCEED THE FEES PAID TO COMPANY BY CLIENT UNDER FOR THE RELEVANT PROGRAM OR UNDER ANY PROGRAM AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
All notices, requests, demands, and other communications under these Program Terms and Conditions or any Program Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
To Company at: 5331 SW MACADAM AVE, STE 258, PMB 533, PORTLAND OR 97239
To Client at: ADDRESS PROVIDED IN PROGRAM AGREEMENT OR PROGRAM ENROLLMENT
Any Party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.
Electronic notice via email is also an accepted method of “written” communication under these Program Terms and Conditions, and shall be deemed to have been duly given on the date sent.
Headings. The subject headings of the paragraphs and subparagraphs of these Program Terms and Conditions and in any Program Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
Relationship of the Parties. The Parties are independent companies and nothing within these Program Terms and Conditions or any Program Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the Parties.
Entire Agreement; Modification; Waiver. These Program Terms and Conditions, and any relevant Program Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the Parties. No supplement, modification or amendment of any Program Agreement or the then applicable Program Terms and Conditions shall be binding unless executed in writing by all the Parties. No waiver of any of the provisions of the Program Terms and Conditions or any Program Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.
Severability. If any term, provision, covenant or condition of these Program Terms and Conditions or any Program Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void or unenforceable, the rest of these Program Terms and Conditions and the Program Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Assignment. The Program Terms and Conditions and any Program Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective heirs, legal representatives, successors, and assigns; provided, however, that Client may not assign any of its rights under the Program Terms and Conditions or any Program Agreement without prior, written approval of Company.
Governing Law; Venue; Mediation. The Program Terms and Conditions and any Program Agreement shall be construed in accordance with, and governed by, the laws of the State of Oregon as applied to contracts that are executed and performed entirely in Oregon. The exclusive venue for any court proceeding based on or arising out of the Program Terms and Conditions and any Program Agreement shall be Multnomah, Washington or Yamhill County, Oregon. The parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to the Program Terms and Conditions and any Program Agreement by mediation, which shall be conducted under the then current mediation procedures of The CPR Institute for Conflict Prevention & Resolution or any other procedure upon which the Parties may agree. The Parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures.