Acceptance of Terms by Engagement
These Terms and Conditions govern your entire business relationship and any services provided to you by Prosperity Partners LLC (“Prosperity”). By engaging Prosperity for services (which includes, but is not limited to, requesting work commence, providing us with information necessary to perform services, accepting deliverables, or making payment for services) or by continuing to utilize our services after these Terms and Conditions have been provided or made available to you, you acknowledge that you have read, understood, and agree to be bound by all provisions outlined herein, including those detailed under Shared Responsibilities and Legal Matters.
Shared Responsibilities
Confidentiality: “Confidential Information” means non-public information marked “confidential” or “proprietary” or information received by one party from the other party orally and/or physically which would logically be considered confidential and/or proprietary in view of its relationship, and the disclosure. All terms of this engagement, including but not limited to the fee and expense structure of Prosperity, are considered Confidential Information. Confidential Information does not include any information which (i) is rightfully known to the recipient prior to its disclosure; (ii) is released to any other person or entity (including governmental agencies) without restriction; (iii) is independently developed by the recipient without use of or reliance on Confidential Information; or (iv) is or later becomes public knowledge without violation of this engagement or may be lawfully obtained by a party from a non-party. Each party will protect the confidentiality of Confidential Information that it receives from the other party using the same degree of care which it uses to protect its own Confidential Information and will not use or disclose any Confidential Information for any purpose other than to perform its obligations under this engagement, or as required by applicable law, statute, rule, regulation or professional standard without the other party’s prior consent. If disclosure is required by law, regulation, or action of any governmental agency or authority or by professional standards, the party to which the request for disclosure is made shall (other than in connection with routine supervisory examinations by regulatory authorities with jurisdiction and without breaching any legal or regulatory requirement) provide the other party with prior written notice, if practicable under the circumstances, in order to provide the other party with the opportunity to seek a protective order or other similar order preventing or limiting the proposed disclosure.
Intellectual Property: We may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how that we own or license (“Materials”) in performing our services. Notwithstanding the delivery of any advice, recommendations, information, deliverables or other work product, we retain all intellectual property rights in the Materials (including any improvements or knowledge developed while performing services under this engagement), and in any working papers compiled in connection with such services (but not your information reflected in them). Upon payment for services rendered and subject to the other terms of this engagement, you may use the Materials solely to the extent necessary to use any advice, recommendations, information, deliverables or other work product delivered to you pursuant to this engagement.
Legal Matters
Email Correspondence: We will communicate with you or others via email. As emails can be intercepted and read, disclosed, or otherwise used or communicated by an unintended third party, or may not be delivered to each of the parties to whom they are directed, we cannot guarantee or warrant that emails from us will be properly delivered and read only by the addressee. Therefore, we specifically disclaim and waive any liability or responsibility whatsoever for interception or unintentional disclosure of emails transmitted by us in connection with the engagement.
SMS / Text Message Communications
You acknowledge and agree that we may communicate with you or others on your behalf via Short Message Service (SMS) text messaging to the mobile phone number(s) you provide to us regarding matters related to this engagement. By providing us with your mobile phone number, you consent to receive such communications via SMS and confirm that you are authorized to consent to receive messages at that number. You understand and accept that SMS messages, similar to email, are not always secure and can be intercepted, accessed by unintended third parties (including anyone with access to your device), delayed, misdelivered, read, disclosed, or otherwise compromised, and may be stored by mobile carriers. Standard messaging and data rates from your mobile carrier may apply to SMS messages sent or received in connection with this engagement.
Therefore, we cannot guarantee or warrant that SMS messages from us will be properly delivered and read only by the intended addressee(s) or that they will be secure from interception or unauthorized access. We specifically disclaim and you hereby waive any liability or responsibility whatsoever for interception, unauthorized access, unintentional disclosure, non-delivery, delay, or any associated costs (including carrier charges) related to SMS messages transmitted by us or to us in connection with the performance of services under this engagement. You are responsible for notifying us promptly of any changes to your mobile phone number or if you wish to withdraw your consent to receive SMS communications.
Non-Solicitation: During the term of this engagement and for one year thereafter, you agree not to solicit or hire, directly or indirectly, as an employee, consultant or otherwise any Prosperity personnel and consultants who have had any involvement with the services under this engagement. Should you violate this provision, you agree to pay Prosperity an amount equal to 100% of such person’s first annual compensation with you. This amount is intended to compensate Prosperity for business interruption as well as the cost to identify, attract, hire and train a replacement employee.
Indemnity: Prosperity’s services may include advice and recommendations; but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, you. Prosperity will not make management decisions for you. You acknowledge and agree that any advice, recommendations, information, deliverables or other work product provided to you in connection with the services under this engagement are intended for your sole benefit.
The liability of Prosperity and its officers, employees and agents (the “Prosperity Parties”) to you on account of any actions, damages, claims, liabilities, costs, expenses or losses in any way arising out of or relating to the services performed under this engagement (“Liabilities”) shall be limited to the amount of fees paid to Prosperity under this engagement during the six-month period immediately preceding such a claim. In no event shall you or any of the Prosperity Parties be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs). Any Liabilities asserted by you against any of the Prosperity Parties shall be asserted no later than one year after you become aware (after reasonable due inquiry should have become aware) of the facts giving rise to any alleged Liabilities and in any event, no later than two years after the completion of the services performed under this engagement, unless otherwise prohibited by applicable law or professional regulations.
You agree to indemnify, defend and hold harmless the Prosperity Parties from and against any and all Liabilities incurred or suffered by or asserted against any of the Prosperity Parties in connection with a third-party claim to the extent resulting from such party’s reliance upon Prosperity’s advice, recommendations, information, deliverables or other work product. The foregoing indemnification obligation shall apply regardless of whether the third-party claim alleges a breach of contract, violation of statute or tort, including without limitation negligence, by Prosperity.
Choice of Law: This engagement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws provisions. In the event that any term or provision of this engagement shall be held to be invalid, void or unenforceable, then the remainder of the engagement shall not be affected, and each such term and provision shall be valid and enforceable to the fullest extent permitted by law.
Dispute Resolution: Any controversy or claim arising out of this engagement shall be submitted first to non-binding mediation, and if mediation is not successful, then to binding arbitration administered by the American Arbitration Associates, in accordance with the Commercial Arbitration Rules. By operation of this provision, the parties agree to forego litigation over such disputes in any court of competent jurisdiction. The arbitration panel shall have no authority to award non-monetary or equitable relief, but nothing herein shall be construed as a prohibition against a party from pursuing non-monetary or equitable relief in a federal or state court. Damages that are inconsistent with any applicable agreement between the parties, that are punitive in nature, or that are not measured by the prevailing party’s actual damages shall be unavailable in arbitration or any other forum. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitration panel have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction. The decision of the arbitration panel shall be final and binding on the parties and not appealable. The place of the mediation or arbitration shall be Chicago, Illinois. Except as may be required by law or to enforce an award, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties.
Assignment: Neither party may assign, transfer or delegate any of its rights or obligations without the prior written consent of the other party, such consent not to be unreasonably withheld.
Entire Agreement: This engagement sets forth the entire understanding between you and Prosperity and may only be modified in a writing signed by you and Prosperity.