Last updated 5.12.2023
Orca Business Consulting LLC Terms
Orca Business Consulting LLC (“Orca Business Consulting”, “we,” or “us”) provides a range of business consulting services for businesses of all sizes (the “Services”). Your Service Agreement (the “Service Agreement”), Service Order (the “Service Order”), or Online Order Form (the “Order Form”) sets forth which Services you are purchasing, the party entering the agreement (the “Client,” “you” or “your” and together with Orca Business Consulting LLC the “Parties” or each individually a “Party”), the costs for such Services, the minimum Initial Term, and other relevant details. As used in this Agreement, the term Service Agreement means any Service Agreement, Service Orders or Online Order Form or any combination of the foregoing. These Terms of Services (the “Terms of Service” or the “Terms”) are incorporated by reference into and made part of any Service Agreement submitted to Orca Business Consulting LLC and govern the relationship between you and Orca Business Consulting LLC. These Terms of Service are effective on the date the Service Agreement is signed (the “Effective Date”) and remain in effect until terminated as provided below. The Service Agreement, the Terms of Service, and the other documents incorporated by reference herein are collectively referred to as the “Agreement.” These Terms of Service may change and can be reviewed at any time at www.consultorca.com/terms.
ORCA BUSINESS CONSULTING LLC PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY EITHER SIGNING A SERVICE AGREEMENT/SERVICE ORDER OR BY CHECKING THE "ACCEPT" BOX YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, ORCA BUSINESS CONSULTING LLC DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY ORCA BUSINESS CONSULTING LLC, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
1. Definitions and Products. The Orca Business Consulting LLC services, and other capitalized terms have the definitions as defined in this section or in the section where they first appear.
Business Consulting / Business Consulting Services: the provision of expertise or strategic advice that is presented for consideration and decision-making.
2. Compliance with Laws/Prohibited Content. You shall not use nor permit the Services to be used in violation of any applicable national, state, or local laws or regulations. Without limiting the foregoing, you may not use any of Orca Business Consulting LLC’s Services for any illegal activity including the storage or transmission of information, data, files, or links to content that violate any applicable local, state, national, or international law. Orca Business Consulting LLC may terminate this agreement if it determines, in its sole discretion, you have violated this policy.
3. Client Obligations. In addition to making all required payments, you shall (a) cooperate with Orca Business Consulting LLC in all matters relating to the Services and provide access to your business accounts as necessary; (b) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Orca Business Consulting LLC to perform Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as Orca Business Consulting LLC may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects. Orca Business Consulting LLC is not responsible or liable for any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform, any of your obligations under this Agreement.
4. Payment. Once you have executed your Service Agreement, you will be responsible for payment in full of all associated fees. All fees are due in US dollars. Fees for one-time services will be due in full on the Effective Date, or as otherwise provided by your Service Agreement. For recurring fees, the initial payment will be taken on the Effective Date, and you will be billed for subsequent fees as outlined in your Service Agreement. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is November 12th, you will be billed for recurring monthly payments on December 12th, January 12th, and so on. The last billing date each month is the 20th. If your Effective Date is after the 20th, the first payment will be taken on the Effective Date, and recurring payments will bill on the 20th of each month. For annual recurring services, you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date unless canceled as provided in Section 5 below. If you have a monthly recurring plan, you acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the monthly recurring consulting total listed in your Service Agreement. Orca Business Consulting LLC shall have the right to charge your credit card or debit from your account through ACH for fees in accordance with these Terms of Service and the Service Agreement. Client warrants the validity of any ACH information provided to Orca Business Consulting LLC and acknowledges that Orca Business Consulting LLC is entitled to debit Client’s account for any ACH fees charged to Orca Business Consulting LLC due to Client’s error, including, but not limited to, incorrect information, invalid account numbers and non-sufficient funds. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL FEES MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.
a. Term. The Agreement shall begin on the Effective Date and will remain in effect until terminated as provided below. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”) and authorizes recurring monthly billing for such periods. Unless otherwise stated in the Service Agreement, all recurring plans have a twelve (12) month Initial Term. Your Initial Term may be extended by any added Service Order or Online Order Form. If there is a conflict the most recent agreement’s Initial Term shall control. Only months in which full payment has been received will count as a month of services under the Initial Term. Client acknowledges that Client’s consulting plan is designed based on the Initial Term defined in Client’s Service Agreement. After the Initial Term, the Term will be automatically renewed for successive six-month periods (each, a “Renewal Term”) or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)
b. Cancellation. You may cancel the services by providing no less than 30 days’ written notice of cancellation via email addressed to your main point of contact at Orca Business Consulting LLC, as applicable. If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term. If you have completed the Initial Term, services will continue through the end of the current Renewal Term and will then be canceled.
c. Early Cancellation. If you wish to cancel the Services without completing the Initial Term you may do so only by providing both (1) written notification of cancellation and (2) any previously waived set up fees, if applicable.
d. Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation after you have made a cancellation request, in which case the Service Agreement will be reinstated, and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.
e. Orca Business Consulting LLC’s Right to Cancel. We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you. Cancellation will take effect at the end of the then-current billing period. Written notice may be provided to you via email.
f. Pause or Downgrade of Service. During the Initial Term, you may request a pause or a downgrade in your Services, however it will be in Orca Business Consulting LLC’s sole discretion to determine if a pause or downgrade in Services is appropriate. No pause or downgrade will be effective without a signed written confirmation from both Orca Business Consulting LLC and the Client. After the Initial Term, you may pause or downgrade your account with no less than 30 days’ written notice. You may upgrade or reinstate services at any time with a written or oral request.
g. No Refunds. If services are canceled for any reason prior to the associated services being rendered, the remaining budget can be used for future services at the client’s discretion, with Orca Business Consulting’s agreement, within 12 months. Remaining funds will expire 12 months after the payment was received.
h. Account Records on Termination. Upon termination, we may delete your account records at any time. We will preserve account data to the extent necessary for us to comply with our own document retention obligations.
6. Intellectual Property.
a. Your License Grant to Orca Business Consulting LLC. During the Term, you hereby grant to Orca Business Consulting LLC a non-exclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast, and transmit any of your content, including but not limited to your website, text, images, logos, copyrights, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing Orca Business Consulting LLC to perform the Services. This license will terminate upon termination of the Service Agreement.
b. Ownership of Creative Deliverables and Content. Upon receipt by Orca Business Consulting LLC of full, unconditional payment from Client, Client shall own all rights, title, and interest in and to the Creative Deliverables created under this Agreement. Orca Business Consulting LLC will retain a non-exclusive, non-revocable license in the completed Creative Deliverables, and Orca Business Consulting LLC reserves the right to use the Creative Deliverables for advertising, publication, promotion, display or other purposes.
c. Work Product Ownership. Any copyrightable works, ideas, discoveries, inventions, patents, products, marketing data, marketing campaigns or other information (collectively, “Work Product”) developed in whole or in part by Orca Business Consulting LLC during the course of this Agreement but excluding the Creative Deliverables and any materials referenced as belonging to Client pursuant to Section 7a. above, shall be the exclusive property of Orca Business Consulting LLC.
f. Trademarks. All trademarks used in this agreement and used in conjunction with the Services are the property of their respective owners or licensors. With the exception of the trademark rights explicitly granted in this Agreement, no other rights to any trademarks are granted herein. Use of the Orca Business Consulting LLC trademarks without the express written consent of Orca Business Consulting LLC is prohibited.
8. Representations. By signing, you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms. You further represent that you have the right to enter this agreement and use all intellectual property, including, but not limited to copyrighted materials and trademarks, supplied to Orca Business Consulting LLC for use in conjunction with the services.
9. Agency. If you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by these Terms of Service.
10. DISCLAIMER OF WARRANTIES. Orca Business Consulting LLC PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE SERVICES ARE INTERRUPTED OR DELAYED, Orca Business Consulting LLC’s SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Orca Business Consulting LLC DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, Orca Business Consulting LLC MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
11. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Orca Business Consulting LLC SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL 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 TOTAL OF THE AMOUNTS YOU PAID TO Orca Business Consulting LLC IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. WITHOUT LIMITING THE FOREGOING, Orca Business Consulting LLC IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENT’S WEBSITE, BLOGS, OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION, OR BREACH OF CLIENT DATA WITHIN CLIENT’S Orca Business Consulting LLC ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
12. Dispute Resolution.
a. Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies, or claims arising out of, relating to, or in connection with this Agreement and/or the Services, including the breach, termination, or validity thereof, through confidential binding arbitration in Fort Collins, Colorado by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA) and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.
b. Exceptions to Agreement to Arbitrate. Orca Business Consulting LLC may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services or for intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the Good Faith dispute-resolution process described above. In the event that the Parties' agreement to arbitrate is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts located in Larimer County, Colorado and Denver County, Colorado, respectively. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Section 12.c.
c. Costs and Attorney’s Fees: You agree to pay all costs of collection (including attorneys’ fees, costs, and other legal and collection expenses) incurred by Orca Business Consulting LLC in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Except as otherwise provided in this Section, the Parties will be responsible for their own costs and legal fees.
d. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
13. Indemnification. You agree to indemnify, defend, and hold Orca Business Consulting LLC harmless from any and all liability, claims, damages, and settlements due to any third party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms of Service by you or any third party (authorized, permitted or enabled by Client). This indemnification includes, but is not limited to, any actions, including actions alleging or related to: infringement of any intellectual property (including trademark, patent and copyright actions), defamation, false or misleading advertising, end user personal or financial data, applicable privacy laws, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection, or actions related or associated with any products or services offered, sold, or licensed through Client’s website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Client waives any claims it may have against Orca Business Consulting LLC arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless Orca Business Consulting LLC against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.
a. Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of Colorado without giving effect to conflict of laws principles.
b. Entire Agreement. These Terms of Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Orca Business Consulting LLC limits acceptance of these agreements, and objects to any additional or different terms in the Client’s acceptance.
c. Amendment/No Waiver. We may update and change any part or all of these Terms of Service. Updated terms can be reviewed at any time at www.consultorca.com/terms.
d. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, click box or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
e. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal, or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of this Agreement will remain in full force and effect.
f. Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon written notice to the other Party.
g. No Third-Party Beneficiaries. The parties do not confer any rights or remedies upon any person other than the parties to this Agreement and their respective successors and permitted assigns.
h. Third-Party Sites and Products. Third party sites and products are not under our control and are provided to you only as a convenience. The availability of any third-party website or product does not mean we endorse, support or warranty the 3rd Party site or product. We do not warranty the performance of any third-party product or service. If you are using a
i. HIPAA. If Client is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Client is solely responsible to ensure full compliance therewith. Client is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. Orca Business Consulting LLC makes no claims or warranties regarding compliance with HIPAA.
j. Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture, or employee/employer relationship is intended or created.
k. Referrals. Orca Business Consulting LLC may provide incentives to 3rd parties to introduce potential Clients to Orca Business Consulting LLC. From time to time, Orca Business Consulting LLC may receive referral fees, incentives, revenue shares or rebates (the “Incentives”) from 3rd party advertisement providers, payment processors, and/or other 3rd parties based on hitting revenue or advertising spend thresholds or referring potential customers to the 3rd party provider. You acknowledge that you are not entitled to any Incentive or share of any Incentive received by Orca Business Consulting LLC.
l. Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, and Indemnification are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to Orca Business Consulting LLC as of the effective date of termination.
m. Subcontracting. Orca Business Consulting LLC may, without your consent, subcontract to any party the performance of all or any of Orca Business Consulting LLC’s obligations under this Agreement provided that Orca Business Consulting LLC remains primarily liable for the performance of those obligations.
n. Taxes. Sales tax and/or VAT tax may be added to certain products or services in certain states and countries. Client is responsible for any sales, use or VAT taxes not collected by Orca Business Consulting LLC.
o. Call Recording. You acknowledge that we may record Client phone calls for quality control purposes.
q. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe, or describe the scope or extent of any section.
r. Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
s. Notices. All notices required by one party hereunder shall be provided in writing to the other Party at the mailing address or email address provided to the other Party from time to time in writing.