Client Agreement For CPEx Consultant Referral Services

1. The Agreement.

1.1 Acceptance of this Agreement means that the Client, herein referred to as "you" or "your," also agrees to be bound by the CPEx Web Site, the Website Disclaimer, and the Statement of Ethics for Clients. If there is a discrepancy between this document, the CPEx Web Site Disclaimer, and/or the applicable Statement of Ethics, then the language in this document will prevail. "Agreement" shall refer to the Client Agreement for CPEx Consultant Referral Services, the CPEx Web Site Disclaimer and the applicable Statement of Ethics. Colorado Performance Excellence, herein referred to as "CPEx" intends that its marketing and promotional materials be completely consistent with the legal terms contained in this Agreement. However, if the terms contained in this Agreement conflict with any implied or express terms contained elsewhere, the terms in this Agreement will be considered the true and enforceable terms. This Agreement constitutes the entire agreement between you and CPEx related to the subject matter hereof.

1.2 THIS AGREEMENT MAY BE MODIFIED AT ANY TIME AND WITHOUT INDIVIDUAL NOTICE PROVIDED TO YOU. Thus, you agree to periodically review this agreement and monitor any such changes. Your continued participation in Consultant Referral Service (CRS) indicates your agreement to the terms appearing in this Agreement.

1.3 If you have any questions about this Agreement or the Web Site Disclaimer, call CPEx at 303-893-CPEX (2739) or e-mail us at tmmauro@coloradoexcellence.org.

2. The Service.

2.1 CRS is a venue for Consultants and Clients to find each other. CPEx provides, and/or may provide in the future, information, links, tools, forums, and other benefits to Clients and Consultants. To establish a basic level of integrity, CPEx asks all Consultants and Clients to agree to our Statement of Ethics, and have further asked Consultants to provide three client references. Moreover, in most instances, Consultants are also actively involved with CPEx, The Baldrige National Quality Award or another State's Quality Program. However, we do not warrant the validity and accuracy of information pertaining to Consultants, nor does CPEx undertake any duty to monitor or enforce obligations imposed on Consultants under this Agreement.

2.2 CPEx reserves the right to independently investigate Consultants and Clients to the extent CPEx, in our sole discretion, deems it appropriate. You agree to cooperate with any such investigations. However, CPEx does not undertake the affirmative obligation to conduct any such investigations. Nor does CPEx undertake a duty to notify you of any known incidents of professional discipline, malfeasance, negligence or other unsavory conduct of any participants in CRS. Although it is our intention to refuse participation in CRS whenever CPEx decides that a Consultant does not meet our standards for participation in CRS, CPEx does not undertake the duty to do so, even if CPEx learns a Consultant has violated provisions of this Agreement.

2.3 Further, CPEx cannot ensure that enrollment in CRS will result in a transaction. CRS does not guarantee leads, referrals, sales or results. Clients may find that Consultants are unavailable or disinterested in engaging in a transaction.

2.4 If a transaction does occur, CPEx has no control over the quality, safety or legality of the product or service sold, and does not become involved in the transaction in any way. Thus, CPEx does not warrant or guarantee the adequacy of any work product or service provided by any Consultant participating in CRS, or any Consultant using the "Colorado Performance Excellence" certification mark, name, or logo.

2.5 For all the above reasons, CPEx urges you to make your own independent investigation and evaluation of any Consultant being considered.

3. Your Obligations.

3.1 You agree to provide accurate, current and complete information when registering to become a participant in CRS or when engaging in a transaction through CRS. You further agree to update CRS promptly when information you have provided changes.

3.2 You are solely responsible for maintaining the confidentiality of any password issued to you. Further, you are solely responsible for any and all activities that occur under your account using your password, and agree to take all reasonable steps to prevent security breaches. You agree to immediately notify CPEx of any unauthorized use of your account, or any other breach of security affecting CPEx that is known by you.

3.3 You agree not to assign or otherwise transfer this Agreement to any other party, and acknowledge CPEx's complete discretion in deciding whether an impermissible transfer occurs where substantial ownership in your firm changes.

3.4 You will be solely responsible to obtain and maintain all equipment necessary for gaining access to, or using, the CPEx web site. We do not guarantee the web site will work on every computer platform.

3.5 You agree to promptly report all Consultant/Client transactions to CPEx, and provide good faith estimates of total anticipated fees to be paid by Client to Consultant as a result of said transaction.

3.6 You acknowledge and agree that CRS and any necessary software used in connection with the service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content on or presented to you through the CRS is protected by copyrights, trademarks, patents and other proprietary rights and laws. Except as expressly authorized by CRS, you agree not to modify, sell, distribute, or create derivative works of such content, in whole or part.

4. Prohibited Conduct.

4.1 You agree to abide by the CPEx Code of Ethics and to refrain from using CRS or CPEx web site or other resources to engage in conduct that is illegal or offensive to others (referred to as "Prohibited Conduct"). The following list exemplifies, without limiting, the definition of Prohibited Conduct.

1. Violating local, state, national, or international laws;
   
   
2. Infringing or violating the intellectual property, privacy, or publicity rights of others;
   
   
3. Cross-selling other products or services or responding to requests with information that does not directly relate to the Client's request;
   
   
4. Posting surveys, contests, gambling or pyramid schemes including "MLM" or Multi-Level Marketing programs;
   
   
5. Engaging in fraud, deceit, or misrepresentation;
   
   
6. Harassing, stalking, threatening or abusing others;
   
   
7. Collecting and selling information about other Consultants or Clients without that Consultant's or Client's explicit consent.
   
   
8. Impersonating any person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity.
   
   
9. Transmitting, posting or making available any information, data, text, files, links, software, chat, communication, or any other materials that are unlawful, harmful, threatening, abusive, invasive of another's privacy, harassing, defamatory, slanderous, vulgar, obscene, hateful, racist, embarrassing or otherwise objectionable to any other person or entity as determined by CPEx, in its sole discretion;
   
   
10. Distributing viruses, corrupted files, Trojan horses, or any other similar software or programs that may damage or interfere with the operation of another's computer or telecommunications equipment, or utilize the resources of another's computer or telecommunications equipment without such parties express permission;
    
    
11. Engaging in conduct that is generally considered rude, annoying or unpleasant, or which negatively affects the CRS Client's experience.

5. Payment of Fees.

5.1 Client agrees to promptly pay Consultant upon receipt of billing from Consultant.

5.2 You understand that fees will be paid by Consultant at least quarterly to CPEx during the term of the agreement. The fee will be 15% of the total consultant engagement amount between you and the Consultant.

6. Modifications of this Agreement.

From time to time CPEx may modify this Agreement, including, without limitation, changing or eliminating certain services provided by CRS, and increasing fees. If so, CPEx will post the modification to the web site. By continuing to use CRS after you knew or should have known about the modifications, you are agreeing to any such modifications. If you do not agree with a modification of these terms, you must stop using the CRS service. Even if you notify us of an intention to stop participating in CRS, you are still consenting to the modifications by any subsequent use of CRS.

7. Term of Agreement.

With the exception of any trial memberships or special offers that may be offered from time to time, the Term of this Agreement is a twelve month annual term. Your term commences on the date CPEx approves your participation in CRS. Terms are automatically renewed every successive annual date, except if validly cancelled, as set forth below.

8. Cancellation of Agreement.

8.1 You may cancel this Agreement at any time, with or without cause, by providing written notice to CPEx of your cancellation of the Agreement. Upon termination of your account, your right to use the CRS and any information about Consultants obtained via the CRS will immediately cease.

8.2 If you violate this Agreement in any manner, CPEx has the right, but not the duty, to deny, suspend or terminate your participation in CRS without prior notice, without liability, and without refund.

8.3 Further, CPEx may deny, terminate or suspend your participation with CRS immediately, without prior notice or liability, if CPEx determines, in its sole discretion, that you do not make a good fit for the service, or if CPEx does so unintentionally.

8.4 Under no circumstances will CPEx be required to refund any Referral Fees.

8.5 You may cancel this Agreement by using the following procedures:

A. Send CPEx a written notification of cancellation:

By email: send an email to tmmauro@coloradoexcellence.org indicating within the body of the message your intent to cancel. Be sure to include your first and last name and organization name and user name. Please note that we will not accept or open email communications containing attachments.

By mail: send a brief letter, including your first and last name, your user name, and your intention to cancel, and mail it to CPEx at Colorado Performance Excellence, Inc, P.O. Box 17545, Denver, CO 80217.

B. Obtain a written acknowledgement of cancellation. Cancellation is not effective until it is actually received by CPEx. Therefore, until you receive acknowledgement, you can assume we have not received your cancellation. You are responsible for following up with CPEx until you receive a written acknowledgement of your cancellation, and for retaining the written acknowledgement of cancellation for your records.

9. Obligations Surviving Termination of Agreement

9.1 Canceling this agreement does nothing to cancel your obligations with respect to other CRS participations you have contracted with prior to your cancellation. Any transactions you entered into with other CRS participants prior to cancellation will most likely be deemed a separate contract between you and the other CRS participant. As such, you will either have to cancel that other agreement independently, if allowed, or most likely continue being subject to all the same standards and requirements as contained in this Agreement with respect to your performance with the other CRS participants.

10. Release and Disclaimer or Warranties and Liabilities.

You expressly understand and agree to the following:

10.1 Because CPEx is not involved in the actual transaction between Consultants and Clients, in the event that you have a dispute, for any reason, you release (and CPEx, our officers, directors, agents, and employees) from claims, demands, and damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

10.2 Further, we shall not have any liability to you under any theory of liability or indemnity in connection with your participation in CRS.

10.3 You hereby release and forever waive any and all claims you may have against CPEx or its officers, directors, employees, or agents, for losses or damages you sustain in connection with your participation in CRS.

10.4 CPEx is not responsible or liable for any claims or liability created by our members, guests, consultants, clients or affiliates. If you have any claims relating to such parties, you will make your claim against those parties without naming CPEx as a party to your claim.

10.5 CPEx services are provided on an "as is" and "as available" basis. You use it at your sole risk. Except as otherwise explicitly provided in this agreement, we disclaim all warranties of any kind, whether express or implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. No advice or information obtained by you from our personnel or through our services shall create any warranty not expressly provided for in this membership agreement.

10.6 Further, you expressly understand and agree that CPEx shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including, without limitation, damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), resulting from your use, attempted use, or your inability to use CRS.

10.7 Some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages. if you reside in such a jurisdiction, then the above-stated limitations regarding exclusions and limitations might not apply to you. However, you agree that this paragraph notifying you of your rights in no way conveys rights that you wouldn't otherwise have.

11. Indemnity.

11.1 Without limiting CPEx's right to control its own defense, you agree to exonerate, indemnify, defend and hold CPEx and its directors, officers, employees, agents and the like harmless from and against any and all "Claims" (as defined below), which may be asserted against US, and which arise out of your actions or omissions in utilizing CRS, regardless of whether or not your acts or omissions were permitted or prohibited by CPEx. You further agree to pay all litigation costs and attorneys' fees incurred by us in defending the same, assuming we choose, in our sole discretion, to undertake defense of any such Claims.

11.2 A "Claim" under this paragraph shall refer to any damages, liabilities, costs, suits, penalties, obligations, or other claim of rights, including, without limitation, for infringement of intellectual property, violation of privacy, breach of confidentiality, breach of fiduciary duty, breach of contract, defamation, etc.

12. Notice:

CPEx may deliver notice to you under this Agreement by means of electronic mail, a general notice on its web site, or by written communication delivered by first class U.S. mail to your last known address. You may give notice to CPEx at any time via electronic mail to tmmauro@coloradoexcellence.org or by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address:

Colorado Performance Excellence, Inc.
4100 Jackson Street
Denver, CO 80216

13. Jurisdiction.

This Client Agreement shall be exclusively governed by and construed in accordance with the laws of the State of Colorado, without regard to choice of law rules. Disputes arising between you and CPEx shall be exclusively subject to the jurisdiction of federal or state courts located in the State of Colorado. You further agree to consent in advance to personal jurisdiction and venue in Colorado, waiving any arguments you may otherwise have that would allow you to obtain venue or jurisdiction in a different state or country, including without limitation, for reasons related to public policy or fundamental fairness.

14. Miscellaneous.

If any part of this Agreement is determined to be illegal, invalid, void or unenforceable, then that provision shall be deemed severed from the remaining provisions of this agreement, and the remaining provisions shall be enforceable. Any severed provisions may be used to determine the intent of the parties when interpreting the remaining provisions in the Agreement. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their heirs and executors. Headings or titles at the beginning of sections and paragraphs are for convenience of reference only, and shall not be considered a part of this agreement, and shall not influence its construction. If CPEx does not enforce the performance of a particular term in this Agreement, CPEx does not thereby waive its right to enforce any subsequent breach or failure to perform by you.