TERMS AND CONDITIONS //
This PERSONAL SERVICES TRAINING AGREEMENT (the “Agreement”) commences on the date the athlete (each a “Client”) electronically confirms acceptance of these Terms and Conditions or otherwise executes the Agreement (“Effective Date”).
RECITALS
WHEREAS, THT offers a range of personal coaching, training camps, classes and other related services as set forth herein (collectively the “Services”); the Client desires to contract the Services as needed and as set forth herein; and THT agrees to provide and Client agrees to accept the Services pursuant to the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, the parties hereto agree as follows:
1. Services. THT shall perform the specific Services and duties as set forth more particularly in Exhibit A, attached hereto, as it may be amended from time to time in the future at THT’s sole discretion.
2. Fees. Unless terminated as provided in Section 3 below, Client agrees to pay THT for the Services as set forth below and in Exhibit A (collectively the “Fees”).
(a) Registration Fees. Client agrees to pay an initial non-refundable registration fee upon enrollment, as identified in Exhibit A. THT reserves the right from time to time to increase or otherwise modify this initial registration fee in its sole discretion.
(b) Coaching Fees. Client will receive the Services outlined in the Training Level that Client selected during enrollment and as described in Exhibit A, subject to payment of all fees.
(c) Travel and Other Expenses. All travel costs and expenses, including but not limited to all airfare, car rental, lodging and meals, and all other expenses, shall be the sole responsibility of and paid by Client, unless otherwise agreed to in advance in writing by THT.
3. Term. This Agreement shall commence on the date Client executes this Agreement and shall continue as set forth on Exhibit A until terminated as provided herein. Upon completion of the initial term (the “Term”) and thereafter, this Agreement shall automatically renew for additional term(s) equal to the initial Term (“Renewal Term(s)”), unless earlier terminated as provided in this Section 3. At any time either party may terminate this Agreement upon ten (10) days prior written notice to the other party, except that registration in any training camp may be cancelled by Client only upon a minimum of ninety (90) days prior written notice and by THT upon thirty (30) days prior written notice. In the event Client breaches any term of this Agreement, THT may immediately terminate the Agreement and THT shall not be obligated to return or refund any fees paid by Client.
4. General Terms and Conditions.
(a) Client Equipment Handling and Storage. Client understands and agrees that THT is not liable, under any circumstances, for any loss, theft, damage or injury related to the assembly, handling, storing, or packing of any of Client’s equipment, property, or gear, specifically including, but not limited to bicycles. Client agrees that it is the Client’s sole responsibility to maintain adequate insurance for any injuries and/or death to Client or to others and for any damage or loss of Client’s personal property. Client understands and agrees that Client shall provide all of the equipment listed on Exhibit C at its own cost and expense during the term of this Agreement.
(b) Client Preparedness and Participation. (1) Client agrees that Client is responsible for arriving to all training sessions, sites, camps, and/or any other Services with all of the necessary and adequate equipment and clothing. In the event that Client arrives without any necessary equipment (e.g., Client’s bike does not arrive at a training location on time), THT will use reasonable efforts to attempt to provide rental replacement equipment at Client’s sole expense; however, THT makes no guarantee that it will be able to obtain any bike or other equipment for Client. In no event will any Fees be prorated or refunded to a Client due to a lack of or unavailability of equipment for any reason. (2) Client understands and agrees that it is Client’s sole responsibility to accurately enter Client’s training data on a daily basis on the trainingpeaks.com website (the “Website”), in order receive the full benefit of THT’s Services. If Client does not keep current on entering Client’s training data on the Website, THT will be unable to accurately analyze and review Client’s performance. (3) Client understands and agrees that it is Client’s sole responsibility to inform THT, at least sixty (60) days in advance, of Client’s calendar and any events, races, and/or goals that Client would like to participate in and/or achieve, and for which Client would like to receive THT Services. If Client does not timely inform THT about these events and goals, THT will be unable to provide its Services. (4) Client understands and agrees that it is Client’s sole responsibility during weekly phone and email sessions with THT to ask for clarification in the event that Client has any injuries, questions, or confusion regarding the Services. Client also understands and agrees to provide feedback on the Services and Client’s physical condition and progress during weekly phone and email sessions with THT so that THT has the information necessary to analyze and modify Client’s training regimen. It is Client’s sole responsibility to keep THT informed whenever Client is considering changing or actually changes any cycling gear or bicycle settings, including but not limited to, for example, purchasing new shoes, seat or pedals, or any changes to seat height or any other adjustments to Client’s bicycle, etc.
(c) Conditions to THT Provision of Services. (1) Releases-Adults. Client’s receipt of the Services is conditioned upon Client’s signing and compliance with the Liability Release, Waiver And Indemnification, and Express Assumption Of Risk (the “Release”) attached as Exhibit B-1, and compliance with all of the terms and conditions of this Agreement, including but not limited to the payment of fees. (2) Releases-Minors under the age of 18. For Services provided to Clients under the age of 18 (“Minor Clients”), the receipt of the Services is conditioned upon the Minor Client’s and their parent’s or legal guardian’s signing and compliance with the Liability Release, Waiver And Indemnification, and Express Assumption Of Risk (the “Minor Release”) attached as Exhibit B-2, and compliance with all of the terms and conditions of this Agreement, including but not limited to the payment of fees. (3) All of the Services to which Client is entitled as further described on Exhibit A must be used within the relevant time periods set forth or they will expire. No refund or proration of Fees will be provided for any reason, including but not limited to Client’s injury or illness or the illness or injury of any THT staff, including Tyler Hamilton. (4) THT may use coaches and/or assistant coaches as THT deems appropriate in its sole discretion to provide the Services. (5) Client understands and agrees that the provision of any Services by Tyler Hamilton is subject to Tyler’s schedule and availability. Tyler will notify Clients with whom he is working exclusively in advance of his travel and vacation schedule.
(d) Payment of Fees and Electronic Funds Transfer (EFT). (1) Client agrees that payment for fees will be made in advance each month by credit card unless other arrangements are approved in advance by THT. Each month, THT will automatically charge Client’s credit card on file. It is Client’s responsibility to keep Client’s credit card information current, and to notify THT of any changes. Any additional fees for other THT Services must be agreed upon in advance and in writing prior to THT performing the Service. Client may upgrade the Services and/or Training Level selected at any time and the Coaching Fees associated with such upgraded Services and/or Training Level will be adjusted on a pro-rata basis. (2) Client agrees that, unless Client has provided THT with prior written notice, Client’s automatic fee payments will be automatically renewed and all fees for all other Services chosen by Client shall be charged to Client’s credit card. In the absence of Client providing THT with a written cancellation notice, Client agrees to pay all fees for Services and authorizes THT to debit Client’s credit card, debit card or checking account, in accordance with this authorization. Client understands that with written notice to Client, THT may at any time and in its sole discretion, increase THT’s fee schedule effective as of the next calendar month or Term in which Client is enrolled. (3) Client agrees to pay THT a fee of Fifty Dollars ($50.00) for any credit card, debit card or Electronic Funds Transfer (EFT) payment that is not honored for any reason, and if any payment is returned by Client’s bank for insufficient funds or any other reason, Client agrees to pay THT a fee of Fifty Dollars ($50.00) for each returned item. Client agrees that any and all of the above fees that Client may owe may be automatically charged to Client’s credit card or other payment method. Client agrees to pay any collection cost that THT may incur, including all reasonable attorney’s fees. Client understands and agrees that, in the event any payment for fees is not promptly made, THT may suspend all Services to Client without waiving any other right that THT may have. (4) Electronic Funds Transfer (EFT) Request. Client assumes full responsibility for all fees and charges incurred hereunder and, without limitation, authorizes Tyler Hamilton Training, LLC to charge Client’s credit card, debit card, or the checking account provided by Client, and Client authorizes Client’s bank to make payment to THT by the method indicated below Client’s signature or as otherwise agreed to by Client and THT in writing. Client understands that Client is in full control of all payments and if, at any time, Client decides to make any changes or discontinue the EFT service, Client will give THT reasonable prior written Notice of the Changes, which shall not be less than twenty (20) days. Change of payment method will not affect other provisions and terms of this Agreement. THT may assume that all credit card numbers will be renewed with new expiration dates unless otherwise notified.
5. Independent Contractor. THT is providing all Services as an independent contractor and is not the agent, employee, partner or joint venturer of Client. At certain THT training events and/or camps, other related services may be provided by other independent contractors, including but not limited to massage therapists (the “Related Services”). These individuals are independent from THT and governed by their respective state licensing authority, if applicable. The use of such Related Services is strictly voluntary, at Client’s sole expense, and Client hereby indemnifies, releases and holds THT harmless from and against any liability, claims, loss or injury associated Client’s use of all Related Services.
6. Confidentiality. Client agrees that the Services provided under this Agreement are strictly confidential and may not be disclosed to any third party without the express written consent of THT, including but not limited to, the materials provided to Client from THT, the techniques and methodologies utilized by THT and its staff in rendering Services under this Agreement and the substance of the communications between THT and the Client. Client agrees that Client shall not reproduce any materials provided to Client by THT and, further, that Client will not remove any proprietary markings from materials provided to Client from THT, including any confidentiality notices and/or copyright notices. Client understands and agrees that THT is the sole and exclusive owner of all concepts, programs, ideas, materials, copyrights, trademarks, and other intellectual property rights associated with the Services. The parties further agree that neither party shall make any disparaging remarks about the other to any third party, at any time, including after this Agreement is terminated.
7. Promotional Rights. As part of this Agreement, and for no additional consideration or agreement, Client hereby consents to THT’s use of Client’s name, image and likeness for promotional or commercial purposes, including any and all photographs and video images arising out of Client’s participation in the Services. Client hereby assigns all right, title and interest Client may have in or to any and all media in which Client’s name or likeness might be used by THT including, without limitation, all intellectual property rights therein. Client agrees not to make any claim of a violation of Client’s rights of publicity or privacy as a result of THT exercise of its rights hereunder.
8. Notices. All notices and other correspondence concerning the parties and provisions of this Agreement shall be in writing and deemed conclusively given if delivered to each party at the relevant address listed below their signatures: (a) personally, (b) mailed in the U.S. mail first class, postage prepaid, return receipt requested, (c) sent by a recognized and reputable overnight courier service with written confirmation of delivery, or (d) sent by electronic mail (“email”) or (e) facsimile transmission. Notices given by facsimile, e-mail, or other electronic means shall be effective upon receipt, if the sender receives reasonable written confirmation of recipient’s receipt of such email or facsimile transmission. Notice of change of address shall be given in the same manner.
9. Amendment; Assignment. This Agreement may be modified or amended only by written agreement between Client and THT. The Services are not transferable by Client and Client may not assign or transfer this Agreement or subcontract the Services set forth herein to any third party.
10. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to the extent this Agreement is assignable.
11. Entire Agreement; Integration. This Agreement, and all Exhibits attached hereto, specifically including but not limited to the Release and Minor Release, which are attached hereto and incorporated herein by this reference, contains the entire agreement of the parties, and supersedes any and all prior written or oral proposals, agreements or negotiations between them pertaining to the subject matter of this Agreement.
12. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Colorado, irrespective of the fact that any one of the parties now is or may become a resident of a different state or nation, and without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Colorado.
13. Dispute Resolution. If any dispute occurs between the parties that arises out of or is related to this Agreement, including without limitation the validity, interpretation, performance, and/or breach hereof, prior to initiating any litigation, the aggrieved party shall notify the other party in writing of the nature of the dispute and the party’s desire to mediate the dispute (the “Notice”). After such Notice has been given, the parties in good faith will select a mediator and participate in mediation in Boulder, Colorado, within sixty (60) days of the Notice. If, within ninety (90) days after the Notice, a dispute is not resolved through negotiation or mediation, either party may begin litigation to resolve the dispute. The statute of limitations on all claims shall be tolled from the date of the Notice until the time for resolution by mediation has expired. In the event that mediation fails to settle the dispute as provided above, the parties hereby irrevocably agree and consent to the jurisdiction of any appropriate state or federal court sitting in Boulder or Denver counties, Colorado, as applicable, in any and all disputes, actions, or proceedings between them. The parties hereby waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waive any bond, surety, or other security that might be required of any other party with respect thereto.
14. Headings. The various paragraph headings are inserted for reference convenience only, and shall not affect the meaning or interpretation of this Agreement or any paragraph.
15. Severability. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement. Such provision shall be deemed amended or reformed to the minimum extent necessary to conform to the requirements of the law so as to be valid and enforceable in light of the parties’ intent as evidenced by this Agreement. If such provision cannot be amended without materially altering the intention of the parties, the tribunal having jurisdiction shall revise the provision in a reasonable manner to the minimum extent necessary to make it binding and enforceable. If no such revision is possible, this Agreement shall be construed as if such provision had never been contained herein; provided that such provision shall be curtailed, limited, or eliminated only to the minimum extent necessary to remove the invalidity, illegality, or unenforceability, and the rest of this Agreement shall remain in full force and effect.
16. Limited Liability. In no event shall either party be liable to the other for any special, indirect, consequential, punitive or incidental damages. In no event, under any circumstances, shall THT’s total liability to Client, arising out of or related to this Agreement or the provision of Services, exceed the total amount of compensation paid to THT by Client hereunder.
17. Survival. Each provision of and/or exhibit to this Agreement, which by its terms is to apply after the termination of this Agreement, specifically including but not limited to the Release and Minor Release attached as Exhibits B-1 and B-2, shall survive the termination of this Agreement.
18. Counterparts. This Agreement may be executed in several counterparts, each of which may be deemed an original, but all of which together shall be deemed one instrument. Facsimile and electronic signatures shall be accepted as original signatures.
This PERSONAL SERVICES TRAINING AGREEMENT (the “Agreement”) commences on the date the athlete (each a “Client”) electronically confirms acceptance of these Terms and Conditions or otherwise executes the Agreement (“Effective Date”).
RECITALS
WHEREAS, THT offers a range of personal coaching, training camps, classes and other related services as set forth herein (collectively the “Services”); the Client desires to contract the Services as needed and as set forth herein; and THT agrees to provide and Client agrees to accept the Services pursuant to the terms and conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, the parties hereto agree as follows:
1. Services. THT shall perform the specific Services and duties as set forth more particularly in Exhibit A, attached hereto, as it may be amended from time to time in the future at THT’s sole discretion.
2. Fees. Unless terminated as provided in Section 3 below, Client agrees to pay THT for the Services as set forth below and in Exhibit A (collectively the “Fees”).
(a) Registration Fees. Client agrees to pay an initial non-refundable registration fee upon enrollment, as identified in Exhibit A. THT reserves the right from time to time to increase or otherwise modify this initial registration fee in its sole discretion.
(b) Coaching Fees. Client will receive the Services outlined in the Training Level that Client selected during enrollment and as described in Exhibit A, subject to payment of all fees.
(c) Travel and Other Expenses. All travel costs and expenses, including but not limited to all airfare, car rental, lodging and meals, and all other expenses, shall be the sole responsibility of and paid by Client, unless otherwise agreed to in advance in writing by THT.
3. Term. This Agreement shall commence on the date Client executes this Agreement and shall continue as set forth on Exhibit A until terminated as provided herein. Upon completion of the initial term (the “Term”) and thereafter, this Agreement shall automatically renew for additional term(s) equal to the initial Term (“Renewal Term(s)”), unless earlier terminated as provided in this Section 3. At any time either party may terminate this Agreement upon ten (10) days prior written notice to the other party, except that registration in any training camp may be cancelled by Client only upon a minimum of ninety (90) days prior written notice and by THT upon thirty (30) days prior written notice. In the event Client breaches any term of this Agreement, THT may immediately terminate the Agreement and THT shall not be obligated to return or refund any fees paid by Client.
4. General Terms and Conditions.
(a) Client Equipment Handling and Storage. Client understands and agrees that THT is not liable, under any circumstances, for any loss, theft, damage or injury related to the assembly, handling, storing, or packing of any of Client’s equipment, property, or gear, specifically including, but not limited to bicycles. Client agrees that it is the Client’s sole responsibility to maintain adequate insurance for any injuries and/or death to Client or to others and for any damage or loss of Client’s personal property. Client understands and agrees that Client shall provide all of the equipment listed on Exhibit C at its own cost and expense during the term of this Agreement.
(b) Client Preparedness and Participation. (1) Client agrees that Client is responsible for arriving to all training sessions, sites, camps, and/or any other Services with all of the necessary and adequate equipment and clothing. In the event that Client arrives without any necessary equipment (e.g., Client’s bike does not arrive at a training location on time), THT will use reasonable efforts to attempt to provide rental replacement equipment at Client’s sole expense; however, THT makes no guarantee that it will be able to obtain any bike or other equipment for Client. In no event will any Fees be prorated or refunded to a Client due to a lack of or unavailability of equipment for any reason. (2) Client understands and agrees that it is Client’s sole responsibility to accurately enter Client’s training data on a daily basis on the trainingpeaks.com website (the “Website”), in order receive the full benefit of THT’s Services. If Client does not keep current on entering Client’s training data on the Website, THT will be unable to accurately analyze and review Client’s performance. (3) Client understands and agrees that it is Client’s sole responsibility to inform THT, at least sixty (60) days in advance, of Client’s calendar and any events, races, and/or goals that Client would like to participate in and/or achieve, and for which Client would like to receive THT Services. If Client does not timely inform THT about these events and goals, THT will be unable to provide its Services. (4) Client understands and agrees that it is Client’s sole responsibility during weekly phone and email sessions with THT to ask for clarification in the event that Client has any injuries, questions, or confusion regarding the Services. Client also understands and agrees to provide feedback on the Services and Client’s physical condition and progress during weekly phone and email sessions with THT so that THT has the information necessary to analyze and modify Client’s training regimen. It is Client’s sole responsibility to keep THT informed whenever Client is considering changing or actually changes any cycling gear or bicycle settings, including but not limited to, for example, purchasing new shoes, seat or pedals, or any changes to seat height or any other adjustments to Client’s bicycle, etc.
(c) Conditions to THT Provision of Services. (1) Releases-Adults. Client’s receipt of the Services is conditioned upon Client’s signing and compliance with the Liability Release, Waiver And Indemnification, and Express Assumption Of Risk (the “Release”) attached as Exhibit B-1, and compliance with all of the terms and conditions of this Agreement, including but not limited to the payment of fees. (2) Releases-Minors under the age of 18. For Services provided to Clients under the age of 18 (“Minor Clients”), the receipt of the Services is conditioned upon the Minor Client’s and their parent’s or legal guardian’s signing and compliance with the Liability Release, Waiver And Indemnification, and Express Assumption Of Risk (the “Minor Release”) attached as Exhibit B-2, and compliance with all of the terms and conditions of this Agreement, including but not limited to the payment of fees. (3) All of the Services to which Client is entitled as further described on Exhibit A must be used within the relevant time periods set forth or they will expire. No refund or proration of Fees will be provided for any reason, including but not limited to Client’s injury or illness or the illness or injury of any THT staff, including Tyler Hamilton. (4) THT may use coaches and/or assistant coaches as THT deems appropriate in its sole discretion to provide the Services. (5) Client understands and agrees that the provision of any Services by Tyler Hamilton is subject to Tyler’s schedule and availability. Tyler will notify Clients with whom he is working exclusively in advance of his travel and vacation schedule.
(d) Payment of Fees and Electronic Funds Transfer (EFT). (1) Client agrees that payment for fees will be made in advance each month by credit card unless other arrangements are approved in advance by THT. Each month, THT will automatically charge Client’s credit card on file. It is Client’s responsibility to keep Client’s credit card information current, and to notify THT of any changes. Any additional fees for other THT Services must be agreed upon in advance and in writing prior to THT performing the Service. Client may upgrade the Services and/or Training Level selected at any time and the Coaching Fees associated with such upgraded Services and/or Training Level will be adjusted on a pro-rata basis. (2) Client agrees that, unless Client has provided THT with prior written notice, Client’s automatic fee payments will be automatically renewed and all fees for all other Services chosen by Client shall be charged to Client’s credit card. In the absence of Client providing THT with a written cancellation notice, Client agrees to pay all fees for Services and authorizes THT to debit Client’s credit card, debit card or checking account, in accordance with this authorization. Client understands that with written notice to Client, THT may at any time and in its sole discretion, increase THT’s fee schedule effective as of the next calendar month or Term in which Client is enrolled. (3) Client agrees to pay THT a fee of Fifty Dollars ($50.00) for any credit card, debit card or Electronic Funds Transfer (EFT) payment that is not honored for any reason, and if any payment is returned by Client’s bank for insufficient funds or any other reason, Client agrees to pay THT a fee of Fifty Dollars ($50.00) for each returned item. Client agrees that any and all of the above fees that Client may owe may be automatically charged to Client’s credit card or other payment method. Client agrees to pay any collection cost that THT may incur, including all reasonable attorney’s fees. Client understands and agrees that, in the event any payment for fees is not promptly made, THT may suspend all Services to Client without waiving any other right that THT may have. (4) Electronic Funds Transfer (EFT) Request. Client assumes full responsibility for all fees and charges incurred hereunder and, without limitation, authorizes Tyler Hamilton Training, LLC to charge Client’s credit card, debit card, or the checking account provided by Client, and Client authorizes Client’s bank to make payment to THT by the method indicated below Client’s signature or as otherwise agreed to by Client and THT in writing. Client understands that Client is in full control of all payments and if, at any time, Client decides to make any changes or discontinue the EFT service, Client will give THT reasonable prior written Notice of the Changes, which shall not be less than twenty (20) days. Change of payment method will not affect other provisions and terms of this Agreement. THT may assume that all credit card numbers will be renewed with new expiration dates unless otherwise notified.
5. Independent Contractor. THT is providing all Services as an independent contractor and is not the agent, employee, partner or joint venturer of Client. At certain THT training events and/or camps, other related services may be provided by other independent contractors, including but not limited to massage therapists (the “Related Services”). These individuals are independent from THT and governed by their respective state licensing authority, if applicable. The use of such Related Services is strictly voluntary, at Client’s sole expense, and Client hereby indemnifies, releases and holds THT harmless from and against any liability, claims, loss or injury associated Client’s use of all Related Services.
6. Confidentiality. Client agrees that the Services provided under this Agreement are strictly confidential and may not be disclosed to any third party without the express written consent of THT, including but not limited to, the materials provided to Client from THT, the techniques and methodologies utilized by THT and its staff in rendering Services under this Agreement and the substance of the communications between THT and the Client. Client agrees that Client shall not reproduce any materials provided to Client by THT and, further, that Client will not remove any proprietary markings from materials provided to Client from THT, including any confidentiality notices and/or copyright notices. Client understands and agrees that THT is the sole and exclusive owner of all concepts, programs, ideas, materials, copyrights, trademarks, and other intellectual property rights associated with the Services. The parties further agree that neither party shall make any disparaging remarks about the other to any third party, at any time, including after this Agreement is terminated.
7. Promotional Rights. As part of this Agreement, and for no additional consideration or agreement, Client hereby consents to THT’s use of Client’s name, image and likeness for promotional or commercial purposes, including any and all photographs and video images arising out of Client’s participation in the Services. Client hereby assigns all right, title and interest Client may have in or to any and all media in which Client’s name or likeness might be used by THT including, without limitation, all intellectual property rights therein. Client agrees not to make any claim of a violation of Client’s rights of publicity or privacy as a result of THT exercise of its rights hereunder.
8. Notices. All notices and other correspondence concerning the parties and provisions of this Agreement shall be in writing and deemed conclusively given if delivered to each party at the relevant address listed below their signatures: (a) personally, (b) mailed in the U.S. mail first class, postage prepaid, return receipt requested, (c) sent by a recognized and reputable overnight courier service with written confirmation of delivery, or (d) sent by electronic mail (“email”) or (e) facsimile transmission. Notices given by facsimile, e-mail, or other electronic means shall be effective upon receipt, if the sender receives reasonable written confirmation of recipient’s receipt of such email or facsimile transmission. Notice of change of address shall be given in the same manner.
9. Amendment; Assignment. This Agreement may be modified or amended only by written agreement between Client and THT. The Services are not transferable by Client and Client may not assign or transfer this Agreement or subcontract the Services set forth herein to any third party.
10. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to the extent this Agreement is assignable.
11. Entire Agreement; Integration. This Agreement, and all Exhibits attached hereto, specifically including but not limited to the Release and Minor Release, which are attached hereto and incorporated herein by this reference, contains the entire agreement of the parties, and supersedes any and all prior written or oral proposals, agreements or negotiations between them pertaining to the subject matter of this Agreement.
12. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Colorado, irrespective of the fact that any one of the parties now is or may become a resident of a different state or nation, and without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Colorado.
13. Dispute Resolution. If any dispute occurs between the parties that arises out of or is related to this Agreement, including without limitation the validity, interpretation, performance, and/or breach hereof, prior to initiating any litigation, the aggrieved party shall notify the other party in writing of the nature of the dispute and the party’s desire to mediate the dispute (the “Notice”). After such Notice has been given, the parties in good faith will select a mediator and participate in mediation in Boulder, Colorado, within sixty (60) days of the Notice. If, within ninety (90) days after the Notice, a dispute is not resolved through negotiation or mediation, either party may begin litigation to resolve the dispute. The statute of limitations on all claims shall be tolled from the date of the Notice until the time for resolution by mediation has expired. In the event that mediation fails to settle the dispute as provided above, the parties hereby irrevocably agree and consent to the jurisdiction of any appropriate state or federal court sitting in Boulder or Denver counties, Colorado, as applicable, in any and all disputes, actions, or proceedings between them. The parties hereby waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waive any bond, surety, or other security that might be required of any other party with respect thereto.
14. Headings. The various paragraph headings are inserted for reference convenience only, and shall not affect the meaning or interpretation of this Agreement or any paragraph.
15. Severability. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement. Such provision shall be deemed amended or reformed to the minimum extent necessary to conform to the requirements of the law so as to be valid and enforceable in light of the parties’ intent as evidenced by this Agreement. If such provision cannot be amended without materially altering the intention of the parties, the tribunal having jurisdiction shall revise the provision in a reasonable manner to the minimum extent necessary to make it binding and enforceable. If no such revision is possible, this Agreement shall be construed as if such provision had never been contained herein; provided that such provision shall be curtailed, limited, or eliminated only to the minimum extent necessary to remove the invalidity, illegality, or unenforceability, and the rest of this Agreement shall remain in full force and effect.
16. Limited Liability. In no event shall either party be liable to the other for any special, indirect, consequential, punitive or incidental damages. In no event, under any circumstances, shall THT’s total liability to Client, arising out of or related to this Agreement or the provision of Services, exceed the total amount of compensation paid to THT by Client hereunder.
17. Survival. Each provision of and/or exhibit to this Agreement, which by its terms is to apply after the termination of this Agreement, specifically including but not limited to the Release and Minor Release attached as Exhibits B-1 and B-2, shall survive the termination of this Agreement.
18. Counterparts. This Agreement may be executed in several counterparts, each of which may be deemed an original, but all of which together shall be deemed one instrument. Facsimile and electronic signatures shall be accepted as original signatures.