This User Agreement is made and entered into in Brodheadsville, PA on the date the Client clicks this agreement and is by and between YES Express, LLC a Pennsylvania based limited liability company (hereafter “YE”) and Client.
[YE and Client are sometimes collectively, the “Parties” and individually a “Party”].
Whereas YE is engaged in the business of providing sales, design and business training services and teaching modern sales, design and business concepts or techniques to help companies increase their business generation or profits and
Whereas Client desires YE to provide Client with such sales, design and/or business training services, modern sales/design concepts and techniques.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of such consideration being hereby acknowledged, the Parties, intending to be legally bound, hereby agree as set forth in this Agreement:
1. Program Description, Terms and Conditions
- Program and Program Fee. YE agrees to provide Client with all Sales Accelerator (the “Program”) materials, training and program information which MAY include, but is not limited to: written materials, webinars (live or recorded), audio and/or visual presentations, FAQ’s, videos, tips and techniques in exchange for a fee (the “Program Fee”).
- Term. Client’s enrollment in the Program will commence upon execution of this Agreement and payment of the Program Fee and will conclude in accordance for 6 months.
- Client Representative. Client acknowledges and agrees that only one individual designated by Client to YE contemporaneously with Client’s execution of this Agreement (“Client Representative”) is permitted to participate in, and have access to, the Program and any Program materials, unless otherwise specified in Exhibit 1. Unauthorized access by any agent, employee, contractor or affiliate of Client is a breach of this agreement. For this breach, as liquidated damages and NOT as a penalty, Client shall pay five times the Program Fee, plus any costs incurred, and reasonable attorney’s fees of YE.
- Termination. Upon Client’s breach of this Agreement, including failure to fully and timely pay the Program Fee or permitting or attempting to access the Program after the Term in any way or manner whatsoever, YE may immediately terminate the Term and Client’s participation in, and access to, the Program, upon notice to Client pursuant to Paragraph 15. Notwithstanding anything to the contrary herein, other than Client’s participation in, and access to, the Program, the other provisions of this Agreement shall survive the termination of the Term.
- Promotional Material. Client acknowledges and agrees that YE may at any time reproduce and/or disseminate any testimonial describing or otherwise referencing, directly or indirectly, Client’s experience in the Program, including any specific results experienced during and after Client’s participation in, and access to, the Program, any written statements Client may publish through social media and other online forums, as well as any statements and/or images captured or otherwise recorded during Client’s attendance at any event related to the Program. Additionally, Client irrevocably and permanently grants, assigns and conveys to YE the right to use, broadcast, distribute and exhibit in any existing or later developed form, including publications for promotion on website entries and social media sites, Client’s, Client Representative’s and Client’s other personnel’s name, likeness, image, photograph, voice and video in conjunction with Client’s participation in the Program and/or attendance at any Program event (collectively, “Client Materials”). Client, on behalf of itself, Client Representative and Client’s other personnel, irrevocably and permanently waives any right to royalties or other compensation arising from or related to YE’s use of Client Materials.
- Client acknowledges that there will be NO full or partial refunds. Client acknowledges, understands and agrees that Client has no right to seek, request, claim or obtain a full or partial refund of the Program Fee.
2. Success not Guaranteed. Client understands and agrees that YE is only granting Client the right to participate in, and access to, the Program, which attempts to teach Client sales and/or design and marketing techniques intended to help Client increase Client’s business generation or profits. YE guarantees no specific results. Client takes full responsibility for Client’s own success, income and profits. Client acknowledges that everyone's success is different and depends on numerous factors, including Client’s own drive, dedication and motivation, as well as the individual market conditions for that Client’s location and product offerings. Client commits and agrees to attend all scheduled coaching sessions included in the Program and perform all of the lessons, assignments and course work in the Program to the best of Client’s ability. Client acknowledges that creating results requires tremendous effort, and warrants that Client is prepared and committed to make that effort and is taking full responsibility for Client’s own success. Any testimonials or examples of success, income or profit are not meant as a promise or guarantee of Client’s success, income and profits and Client should not rely upon such testimonials and examples in any way or manner whatsoever, except as an indication of the success of others who have used YE services.
3.. Limited Liability. YE will not be liable to Client, Client Representative or any other person or entity for any damages, including damages for loss of business, income, profits or other pecuniary loss, whether under a theory of breach of contract or warranty, tort (including negligence) or otherwise.
4. Indemnification. Client will, at Client’s own expense, defend, indemnify and hold YE, its subsidiaries and affiliates, and its and their respective members, managers, shareholders, directors, officers, employees, agents and independent contractors, as applicable, harmless of, from and against any and all claims, demands, actions, causes of action, litigation, suits, arbitrations, mediations, controversies, proceedings, fees, charges, set-offs, offsets, losses, liabilities, damages, diminution of value, judgments, awards, executions, liens, assessments, penalties, costs and expenses whatsoever, at law or in equity, now existing or hereafter arising, both known and unknown, direct or indirect, foreseeable and unforeseeable, liquidated or unliquidated, absolute or contingent, insured or uninsured (collectively “Claims”), arising out of, related to or in connection with Client’s participation in, and access to, the Program, Client’s, Client Representative’s and Client’s other personnel’s actions, omissions, violation of law or breach of this Agreement.
5. Confidentiality. Only Client is granted access to the Program; during the Program, Client, Client Representative and Client’s other personnel will or may be exposed to and receive YE’s proprietary and/or confidential information (collectively “Confidential Information”). On behalf of Client, Client representative and any other person or entity affiliated with Client, Client agrees:
A. Non-Disclosure. Client shall hold, and shall ensure that Client Representative and Client’s other personnel shall hold the Confidential Information in trust and confidence and shall not use the Confidential Information for any purpose except as expressly set forth in this Agreement or teach, sell, disclose, disseminate, communicate, reveal, provide or make any of the Confidential Information available to any person or entity, including materials (whether in electronic form or made available to Client in YE’s private social media groups or otherwise), documentation, techniques, formulas, methods, processes, algorithms, codes, software, designs, uses, apparatuses, notes, trademarks, service marks, trade dress, trade secrets, images, video, audio, intellectual property or any login member credentials. YE shall at all times retain all rights, ownership, title and interest in all of the Confidential Information.
B. Intellectual Property. Client acknowledges that any and all intellectual property, including the Confidential Information, audio and visual presentations, documentation, images, designs, works made for hire, marks, trademarks, service marks, trade secrets and any other materials or elements associated with the Program (collectively, the “Intellectual Property”) is the sole and exclusive property of YE. Except for Client’s participation in, and access to, the Program pursuant to this Agreement, this Agreement does not grant Client any ownership or other right, license or interest in or to the Program or any of the Intellectual Property, whether by implication, estoppel or otherwise, including any trademarks or service marks, and Client shall not seek or assert any ownership or other right, license or interest in any other intellectual property, including any trademarks or service marks, that are confusingly similar YE’s trademarks, service marks or other Intellectual Property.
6. Governing Law, Jurisdiction and Venue. This Agreement will be governed, construed and interpreted in accordance with the laws and decisions of the state of Pennsylvania without regard to conflict of laws principles that would require the laws of another state or jurisdiction be applied. Client consents to jurisdiction in Monroe County, Pennsylvania andagrees that any dispute related to the subject matter of this agreement shall be heard there. Unless both parties agree in writing, a jury trial is waived.
7. Integration. This Agreement constitutes the entire agreement and understanding between Client and YE with respect to the Program and the other subject matter of this Agreement, and this Agreement supersedes and replaces any and all prior and contemporaneous oral or written proposals, representations, communications, agreements, assurances, promises, commitments and understandings with regard to the Program and the other subject matter of this Agreement. Client represents, warrants and agrees that Client is not relying upon any prior or contemporaneous sales call, proposal, representation, communication, agreement, assurance, promise, commitment or understanding in entering into this Agreement.
8. Modification. This Agreement may only be amended, changed, modified or discharged in a writing signed by Client and YE; provided, however, YE reserves the right to amend this Agreement, from time to time in its sole discretion, by posting an updated version of this Agreement at www.yes.express. Client may indicate it’s disagreement with any modified terms by providing notice in writing within 3 business days of the posting of the modification by YE. Should Client select additional curricula from YE offerings, the modification of this Agreement to include that curricula shall occur upon full payment to and acceptance by YE.
9. Waiver. No failure or delay to enforce this Agreement, address Client’s breach or default of any term or provision of this Agreement or exercise YE’s rights or remedies pursuant to this Agreement, at law, in equity or otherwise shall be or be deemed a waiver of such default, breach, right or remedy; a waiver of Client’s default or breach any term or provision of this Agreement or any of YE’s rights or remedies pursuant to this Agreement, at law, in equity or otherwise, will be effective only if in writing and signed by YE and will be limited to the default, breach, term, right or remedy described therein; no such waiver will be or be deemed a waiver of any other, similar, prior, continuing or subsequent default or breach.
10. Non-transferability. This Agreement and the rights and obligations set forth in this Agreement are personal to Client. Client may not sell, assign or otherwise transfer this Agreement or any rights or obligations set forth in this Agreement to any person or entity in any form or manner whatsoever.
11. Binding Effect. This Agreement will be binding upon, inure to the benefit of and will be enforceable by the Parties and their respective legal representatives, successors and permitted assigns, if any, and no other person or entity will be or be deemed a third-party beneficiary of this Agreement.
12. Remedies. Client agrees that it may be impossible to measure in money the damages which YE will sustain as a result of Client’s breach or default in the full and timely performance of any of Client’s covenants, duties or obligations set forth in this Agreement, especially in relation, but not limited to, the confidentiality of YE materials, processes, intellectual property, techniques and concepts. Client agrees that Client will, therefore, be liable to YE for liquidated damages, and not as a penalty, the sum of fifty times the program fee together with any actual or consequential damages proven by YE. Accordingly, upon Client’s breach or default in the full and timely performance of any of Client’s covenants, duties or obligations set forth in this Agreement, in addition to any and all other rights and remedies available to YE pursuant to this Agreement, at
law, in equity or otherwise, YE shall be entitled to the immediate entry of injunctive relief to enjoin the continuing and future breach or default of this Agreement without notice to Client and without the requirement of posting any bond or other security therefor, including the entry of an order of specific performance, a temporary restraining order and preliminary and permanent injunctions and, in connection therewith, Client hereby waives and will not raise or suggest the claim or defense therein that YE has an adequate remedy at law or has not been, or is not being, irreparably injured. Client acknowledges and agrees that all of the rights and remedies of YE pursuant to this Agreement are cumulative, are not exclusive and are in addition to all other rights and remedies of YE, at law, in equity or otherwise. Such remedies are cumulative with the remedies and rights set forth within this Agreement.
13. Default. Upon Client’s breach or default in the full and timely performance of any of Client’s covenants, duties or obligations set forth in this Agreement, Client shall be liable for, and shall pay to YE upon demand, all damages, costs and expenses which YE incurs as a result of or arising from such breach or default and to enforce any of YE’s rights or remedies set forth in this Agreement, at law, in equity or otherwise, including YE’s attorneys’ fees, court costs and related legal expenses. Interest will accrue on all or any portion of the Program Fee or any other sum due YE from Client which is not timely paid at the rate of one and one half percent (1.5%) per month.
14. Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision will be severed therefrom and such invalidity or unenforceability will not affect any other provision of this Agreement, the balance of which will remain in and have their intended full force and effect; provided, however, if such invalid or unenforceable provision may be modified so as to be valid and enforceable as a matter of law, such provision will be deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law.
15. Communications. All notices, requests, demands, waivers, consents, designations, authorizations and other communications required or desired to be given pursuant to this Agreement will be given in writing and will be deemed duly given upon personal delivery or receipted email transmission, or on the third day after mailing if sent by certified mail, postage prepaid, return receipt requested, or on the day after deposit with nationally recognized overnight delivery service which maintains records of the time, place and recipient of delivery, and directed as follows: YES Express, LLC; 141 Karen Glen Way Brodheadsville, PA 18322 [email protected].
16. Interpretation. Whenever required by context, the masculine pronouns will include the feminine and neuter genders, and the singular will include the plural and vice versa. Further, “including” means “including, without limitation” and “including, but not limited to”.
BY CLICKING BELOW, CLIENT ACKNOWLEDGES THAT CLIENT UNDERSTANDS AND AGREES TO AND ACCEPTS ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT, INCLUDING THE PROVISIONS ENTITLED PROGRAM AND PROGRAM FEE, NO FULL OR PARTIAL REFUNDS AND CONFIDENTIALITY.