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GINGER TRAINING AND COACHING INC.

TERMS AND CONDITIONS FOR SERVICES

  1. Applicability.
    1. These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by GINGER TRAINING AND COACHING INC. (“Ginger”, “we”, or “us”) to the person or entity (“Client”) who orders Services by signing a Statement of Work.
    2. The accompanying Statement of Work (the “SOW”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the SOW, these Terms shall govern, unless the SOW expressly states that the terms and conditions of the SOW shall control.
    3. These Terms prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted its request for proposal, order, or such terms. Provision of services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
  2. Services. Ginger shall provide the services to Client as described in the Statement of Work (the “Services”) in accordance with these Terms. Ginger provides Services both to groups (i.e., to more than one individual) (“Group Services”) as well as to individuals on a one-on –one basis (“Individual Services”).
  3. Performance Dates. The performance date(s) on which the Services are to be performed (“Performance Date”) are specified in the SOW and have been agreed upon in advance by Ginger and Client. Client acknowledges and agrees that Ginger has committed to providing the Services on such Performance Date(s) and, accordingly Ginger may have declined or refused engagements with other clients on such date(s). Accordingly, Client agrees to pay all fees and expenses for the Services to be performed on such date(s) whether or not Client elects to have Ginger perform the Services on such date(s), subject to any Change Orders agreed to in accordance with Section 6 or rescheduling due a force majeure event in accordance with Section 17.
  4. Client’s Obligations. Client shall:
    1. cooperate with Ginger in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by Ginger, for the purposes of performing the Services;
    2. respond promptly to any Ginger request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Ginger to perform Services in accordance with the requirements of this Agreement;
    3. provide such Client materials or information as Ginger may reasonably request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; and
    4. obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start, including insurance coverage required pursuant to Section 15.
  5. Client’s Acts or Omissions. If Ginger’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, sub- contractors, consultants, or employees, Ginger shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
  6. Change Orders and Cancellation.
    1. Change Orders. If Client wishes to change the scope or performance of the Services relating to (i) the Ginger coach or trainer to perform the Services, (ii) the location or format of performance of the Services; (iii) the number of Client participants entitled to participate in the Services; (iv) the Performance Date; or (v) the content and scope of the Services, then Client shall submit details of the requested change to Ginger in writing (A) at least two (2) weeks prior to the Performance Date with respect to Group Services or (B) at least one (1) week prior to the Performance Date with respect to any Individual Services. Ginger shall, within a reasonable time after such request, provide a written estimate to Client of:
      • any necessary variations to the fees and other charges for the Services arising from the change;
      • the likely effect of the change on the Services; and
      • any other impact the change might have on the performance of this Agreement.

        Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 26. Ginger makes no representation or guarantee that any requested changes to the Services can be fully accommodated and shall only be obligated to perform the Services at set forth in the SOW or a validly executed Change Order. Ginger shall have no obligation to consider or accommodate any re- quested changes if such requests are not made at least (A) two (2) weeks prior to the Performance Date with respect to Group Services or (2) one (1) week prior to the Performance Date with respect to any Individual Services.
    2. Cancellation. If Client wishes to cancel any Services, Client shall promptly send written notice to Ginger (a “Cancellation Notice”), provided that any such cancellation of the Services shall be subject to the following fees:
      • If Ginger receives the Cancellation Notice at least (A) thirty one (31) days prior to the Performance Date with respect to any Group Services or (B) seven (7) days prior to the Performance Date with respect to any Individual Services, Client shall entitled to a refund of any pre-paid fees and shall not be obligated to pay any unpaid fees set forth in the SOW, provided that Client shall reimburse Ginger for any out of pocket expenses actually incurred by Ginger prior to receipt of the Cancellation Notice, including any non-refundable travel and lodging expenses, and the costs incurred with respect to any custom or other content for the Services;
      • If Ginger receives the Cancellation Notice (A) at least two (2) weeks, but less than thirty-one (31) days from the Performance Date with respect to Group Services, or (B) at least 48 hours, but less than seven (7) days from the Performance Date with respect to Individual Services, then Client shall be responsible for fifty percent (50%) of the total fees set forth in the SOW.
      • Client shall be obligated to pay 100% of the fees set forth in the SOW if Ginger receives the Group Cancellation Notice less than (A) two (2) weeks prior to the Performance Date with respect to Group Services or (B) 48 hours with respect to Individual Services.
  7. Fees and Expenses; Payment Terms; Interest on Late Payments.
    1. In consideration of the provision of the Services by Ginger and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the SOW. Ginger may require payment of all or a portion of the fees in advance of the Performance Date as set forth in the SOW.
    2. Except as otherwise set forth in the SOW, Client agrees to reimburse Ginger for all reasonable travel and out-of-pocket expenses incurred by Ginger in connection with the performance of the Services.
    3. Client shall pay all invoiced amounts due to Ginger within 30 days from the date of Ginger’s invoice. Client shall make all payments hereunder in US dollars by wire transfer, PayPal, credit card, certified check, or other readily available funds.
    4. In the event payments are not received by Ginger within 30 days after the date of Ginger’s invoice, Ginger may:
      • charge interest on any such unpaid amounts at a rate of the prime rate of interest as published in the Wall Street Journal plus 4% per annum, or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and suspend performance for all Services until payment has been made in full.
  8. Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.
  9. Intellectual Property.
    1. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, 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 documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Ginger in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables”) except for any Confidential In- formation of Client or Client materials shall be owned by Ginger.
    2. Ginger hereby grants Client a limited license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis solely to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services strictly for Client’s individual or internal purposes only. For the avoidance of doubt, Client may not use any Intellectual Property Rights or Deliverables for any other purpose, and may not reuse, share, or make public any Deliverables or other materials used in the course of Delivery of the purpose without Ginger’s express prior written consent.
    3. Neither Client, nor any employee, contractor, or agent of Client may make any audio, video, or photographic or any other recording in any other form or media, of the performance of the Services without Ginger’s express prior written consent. Ginger may record and monitor the performance of its Services.
    4. The parties agree that Ginger may make audio, photographic, or video recordings of the performance of Group Services, whether such performance is an in- person or virtual setting. Any Intellectual Property Rights to any such audio, video, or photographic recordings, and descriptions of them, shall be owned by Ginger and Gin- ger may use such recordings for any use. Client understands and agrees that such recordings may be copied, reproduced, and distributed by means of various media, including but not limited to video presentations, news releases, mail-outs, emails, placement on websites and or other electronic delivery, publication, display or promotion of any and all other media, and that such recordings may be subject to reasonable modification and editing. Client agrees that any participant in a Group Services session shall, as a condition to such participation, prior to the Performance Date execute and deliver a personal release form in a form provided by Ginger to Client.
  10. Confidential Information.
    1. All non-public, confidential or proprietary information of each party including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by one party (the “Disclosing Party”) to the other (the “Recipient”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by the Disclosing Party without the prior written consent of the Recipient. Confidential Information does not include information that is:
      • in the public domain.
      • known to the Recipient at the time of disclosure; or
      • rightfully obtained by Recipient on a non-confidential basis from a third party.
    2. Client agrees to use Ginger’s Confidential Information only to make use of the Services and Deliverables as permitted by this Agreement.
    3. Ginger shall be entitled to injunctive relief for any violation of this Section.
  11. Representation and Warranty.
    1. Ginger represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner and shall devote adequate resources to meet its obligations under this Agreement.
    2. Ginger shall not be liable for a breach of the warranty set forth in Section 11(a) unless Client gives written notice of the defective Services, reasonably described, to Ginger within five (5) days of the time when Client discovers or ought to have discovered that the Services were defective.
    3. Subject to Section 11(b), Ginger shall, in its sole discretion, either:
      • reperform such Services (or the defective part) at a reduced cost or for no additional cost; or
      • credit or refund the price of such Services at the pro rata contract rate.
    4. THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND GINGER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
  12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a) ABOVE, GINGER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WAR- RANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
  13. Indemnification; Limitation of Liability.
    1. Client shall indemnify, defend and hold harmless Ginger and its parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third- party due to or arising out of Clients breach of this Agreement or the documents they incorporate by reference, any acts of omissions of Client taken in reliance of the Services, or Client’s violation of any law or the rights of a third-party
    2. IN NO EVENT SHALL GINGER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER- WISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GINGER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    3. IN NO EVENT SHALL GINGER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO GINGER PURSUANT TO THE APPLICABLE ORDER CONFIRMATION.
    4. The limitation of liability set forth in Section 13(c) above shall not apply to death or bodily injury resulting from Ginger’s negligent acts or omissions.
  14. Termination. In addition to any remedies that may be provided under this Agreement, Ginger may terminate this Agreement with immediate effect upon writ- ten notice to Client, if Client:
    1. fails to pay any amount when due under this Agreement and such failure continues for 10 days after Client’s receipt of written notice of nonpayment.
    2. has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or
    3. becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
  15. Insurance. With respect to any Group Services, Client shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 per occurrence and $2,000,000 in the aggregate with financially sound and reputable insurers, which insurance shall be in full force and effect on all applicable Performance Dates. Upon Ginger’s request, Client shall provide Ginger with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in these Terms. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against Ginger’s insurers and Ginger.
  16. Waiver. No waiver by Ginger of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Ginger. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  17. Force Majeure. Ginger shall 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 the reasonable control of Ginger 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, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, inclement or hazardous weather conditions affecting travel to or from the site at which the Services are to be provided, telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Client shall be entitled to give notice in writing to Ginger to terminate this Agreement. In the event any such event makes the provision of Services on the date such Services are set to be performed in the SOW; the parties shall negotiate in good faith to reschedule to Services at a later date that is mutually agreeable to both parties.
  18. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Ginger. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
  19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by rea- son of these Terms.
  21. Governing Law; Waiver of Jury Trial. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Connecticut. The Parties hereby irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue. EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY ORDER CONFIRMATION, EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREE- MENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ORDER CONFIRMATION, EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
  22. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Connecticut, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  24. Severability. If any term or provision of this Agreement is invalid, illegal, or un- enforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  25. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Insurance, Submission to Jurisdiction, and Survival.
  26. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
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