Pinnacol Assurance (“Pinnacol”) agrees to provide professional services to (“Customer”) under the following terms and conditions (the “Agreement”), effective as of the date this Agreement has been signed by Pinnacol (“Effective Date”). The parties to this Agreement agree to be bound as follows:
A. Pinnacol agrees to provide Customer with specified professional services (the “Services”) that are set forth in the Statement of Work attached hereto (“Statement of Work”). To the extent either party desires to make changes to the Statement of Work, then the party requesting such changes will notify the other party of its requested changes and such changes must be confirmed and agreed upon, in writing, by both parties.
B. The Services shall be provided in a timely and professional manner consistent with generally accepted industry standards. All parties agree to cooperate in good faith to achieve completion and adhere to the agreed upon schedule.
A. In consideration of the performance of the Services, Customer shall pay to Pinnacol a fee set forth in the Statement of Work. Services and hours are specified in the Statement of Work. Charges for additional hours not set forth in the Statement of Work, and thereafter requested by either party, shall be in writing and approved by Customer prior to commencement of work.
B. Unless otherwise specified in the Statement of Work, Pinnacol requires up-front payment of the agreed-upon fee prior to commencement of the Services. Should further Services be requested, Pinnacol will invoice Customer on a monthly basis for all services, fees, expenses, and taxes that have accrued. Each invoice shall be paid within thirty (30) days of the date of the invoice. Any failure to timely pay any requested amount may result, in Pinnacol’s sole discretion, in a suspension or termination of the Services to be provided hereunder without limiting Pinnacol’s other rights and remedies. If Customer claims tax-exempt status, it shall provide Pinnacol with necessary documentation upon request.
Pinnacol is an independent contractor, and this Agreement will not be construed to create any partnership, joint venture, agency or employment relationship between Pinnacol and Customer. Neither company will represent itself to be an employee, representative, partner, joint venture or agent of the other. Neither company will have any authority to enter into any agreement on the other’s behalf or represent the other party for any purpose whatsoever.
A. EXCEPT AS PROVIDED ELSEWHERE IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM OR ARISING IN CONNECTION WITH ANY OF THE SERVICES OR THE PERFORMANCE OF OR FAILURE TO PERFORM SUCH PARTY’S OBLIGATIONS UNDER THIS AGREEMENT. THIS DISCLAIMER APPLIES WITHOUT LIMITATION (I) TO CLAIMS ARISING FROM THE PROVISION OF THE SERVICES OR ANY FAILURE OR DELAY IN CONNECTION THEREWITH; (II) TO CLAIMS FOR LOST PROFITS; (III) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE; AND (IV) REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. EACH PARTY’S TOTAL LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED IN THE AGGREGATE OF THE AMOUNT OF FEES PAID AND OWED BY CUSTOMER UNDER THE STATEMENT OF WORK. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
C. THE SERVICES ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. PINNACOL AND ITS DIRECTORS, EMPLOYEES, AGENTS, DO NOT WARRANT THAT: (A) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
Unless otherwise provided for herein, this Agreement is non-exclusive as to the Services to be provided by Pinnacol. The parties may enter into agreements with other suppliers and customers to furnish the same or similar services, upon the same or different terms.
Parties to this Agreement shall not assign or transfer this Agreement, or any interest in this Agreement, without the prior, written consent of the other party.
If any part, term, or provision of this Agreement is held by any court of competent jurisdiction to be illegal or to be in conflict with the law of the State of Colorado, the validity of the remaining portions and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular part, term or provision held to be invalid.
This Agreement shall be interpreted, construed, and governed in accordance with the laws of the State of Colorado, without regard to the principle of conflicts of laws thereof. Exclusive jurisdiction for any action relating to this Agreement shall be in the state, local or federal courts of Denver, Colorado.
Customer shall defend, indemnify and hold harmless Pinnacol and its related or affiliated entities, their collective shareholders, officers, directors, employees, affiliates and agents from and against any and all damages, liabilities, costs, expenses and losses (“Losses”) incurred by Pinnacol arising out of any third party claim, action, suit or proceeding (“Claim”) brought against Pinnacol to the extent it arises out of or is related to the Services performed by Pinnacol under this Agreement. Under such circumstances, Pinnacol shall promptly notify Customer of any Claim that has resulted in or is reasonably anticipated to result in Losses and cooperate with Customer in defending or settling the Claim.
It is understood and agreed that one party's failure at any time to require the performance by the other party of any of the terms, provisions, covenants or conditions hereof shall in no way affect the first party's right thereafter to enforce the same, nor shall the waiver by either party of the breach of any term, provision, covenant or condition hereof be taken or held to be a waiver of any succeeding breach.
This Agreement and any attachments or exhibits contain the entire Agreement made between the parties and no statements, promises or inducements made by either party, or an agent of either party that is not contained in this Agreement shall be valid or binding. This Agreement may not be enlarged, modified, or altered, except as specifically hereinabove or otherwise by written agreement of the parties. The parties will comply fully with all applicable laws, regulations, and guidelines, including any applicable state or federal OSHA requirements.
A. Definition of Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party”), which if disclosed to the other Party (“Receiving Party”): (a) in tangible form, is designated in writing as being confidential at the time of disclosure, or (b) orally or visually, is identified as confidential at the time of disclosure, or (c) in tangible form or orally or visually and is of a nature that a reasonable person would understand it to be confidential based on the circumstances under which it was disclosed. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party or (iv) is required by law to be disclosed (in which case the Receiving Party shall provide the Disclosing Party with a reasonable opportunity to seek a protective order maintaining confidentiality).
B. Confidentiality Obligations. The Receiving Party shall not (a) use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations under this Agreement or as otherwise permitted under this Agreement, or (b) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than its personnel (including employees, subcontractors and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. Notwithstanding the foregoing, the Receiving Party shall have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets, so long as said parties have entered into confidentiality agreements with Company containing terms substantially similar to those set forth herein. Further, if Pinnacol, in the course of performing its obligations under this Agreement, receives information relevant to the calculation of Customer’s premium or any other information customarily requested by it as part of an audit, Pinnacol may use the information for those purposes. Customer acknowledges that Pinnacol is subject to the Colorado Open Records Act, and that any disclosure Pinnacol makes pursuant to an open record request is excluded from the confidentiality requirements of this paragraph.
Either party may terminate this Agreement at any time, with or without cause, upon 30 days advance written notice. Notwithstanding anything to the contrary, Customer shall remain liable for timely payment of all amounts set forth in the Statement of Work in all instances irrespective of any termination of this Agreement unless otherwise expressly stated therein, or if Pinnacol terminates this Agreement without cause in which case Customer shall be liable to pay for all Services rendered prior to the effective date of such termination.
No identification of Pinnacol or use of its or its name, marks, codes, drawings, specifications, or other references to Pinnacol shall be used in any of Customer’s advertising, marketing, or promotional activities without Pinnacol’s prior written consent.
A. Any information, advice, recommendations or other content of any reports, presentations or other communications Pinnacol provides under this Agreement (“Reports”) are for your internal use only (consistent with the purpose of the particular Services).
B. Pinnacol may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how that Pinnacol owns or licenses (“Materials”) in performing the Services. Notwithstanding the delivery of any Reports, Pinnacol retains all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services), and in any working papers compiled in connection with the Services.
C. Upon payment for particular Services and subject to other terms of this Agreement, Customer may use the Reports relating to those Services, as well as any Materials owned by Pinnacol that are included therein, solely to the extent necessary to use the Reports.
Customer understands that Pinnacol's employees are the key to Pinnacol's operations and success and that Pinnacol has invested significant financial and labor resources in its staff. Accordingly, Customer agrees that it will not solicit, recruit, or hire any Pinnacol employee during the term of this agreement without prior written permission from an executive of Pinnacol. Should customer and Pinnacol agree that it is in both parties’ interest for customer to hire a Pinnacol employee, customer agrees to pay Pinnacol a conversion fee to compensate Pinnacol for real and potential losses. This fee will be determined on a case-by-case basis, but will not exceed 50% of the employee's total annual compensation at the time the employee joins the customer.
Either party shall have the right to delay delivery, performance, or acceptance where such delay is caused by natural or civil occurrences beyond its control. The affected party shall notify the other party of the delay as soon as reasonably possible and shall cooperate in minimizing the impact of such delay. If delivery or performance is delayed beyond thirty (30) days, the other party may terminate this Agreement in whole or in part upon written notice.
Any notices, requests, designations, or other communications required or permitted to be given hereunder shall be in writing and delivered by certified or registered mail (return receipt requested) or by overnight courier service and shall be deemed sufficiently given if delivered to the following addresses:
To Pinnacol:
Pinnacol Assurance
Attn: General Counsel
7501 E. Lowry Blvd
Denver, CO 80230
Delivery shall be deemed given on the day notice is actually delivered or that delivery is refused. Either party may by written notice to the other, specify a different address for notice purposes.
THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL FOR ANY AND ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement by its duly authorized representatives effective as of the Effective Date.