Client Agreement Terms & Conditions

 

Last Updated 7/13/2023. Replaces all prior versions.

 

These Terms and Conditions (“Terms”) form a part of the proposal the (“Proposal”) by and between The Dcode Group, Inc., a Delaware corporation with a principal office at 2001 K St NW, Suite 230 – South Tower, Washington, D.C., (hereinafter known as “Dcode”) and the customer described in the Proposal (“Company”). These Terms together with the Proposal are referred to as the “Agreement.”  Dcode and Company are each referred to as a “Party” and collectively the “Parties.”  Capitalized terms used in these Terms that are not otherwise defined herein shall have the meaning set forth in the Proposal. 

WHEREAS, The Parties mutually agree to the terms and conditions of this Agreement. Each Party acknowledges having; (1) read this entire Agreement and (2) the full power and authority to execute this Agreement.

WHEREAS, the Company wishes to participate in the Dcode Accelerate Program (“Program”), described in the Proposal.

Terms and Conditions.  This Agreement will commence upon the effective date and continue for the Initial Term set forth in Proposal. This Agreement shall be automatically renewed for successive one year terms (each, a “Renewal Term”), unless an authorized representative of either Party gives written notice of termination within sixty (60) days prior to the expiration of the then current Term.  The Initial Term and any Renewal Term are collectively referred to as the “Term.”  The obligations contained in Sections 1, 4(e), 5, 6, and 8 thru 15 shall survive the expiration or termination of this Agreement.

 

 

1. Non-disclosure

a. “Confidential Information” means any proprietary information of a party to this Agreement disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) whether in oral, written, graphic, machine readable, or other tangible form that would reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation the documentation and training materials related to the program, and the terms and conditions of this Agreement, in each case whether or not marked as “Confidential,” “Proprietary,” or other similar designation.

b. Exceptions. Confidential Information will not include any information that was publicly known and made generally available prior to the time of disclosure, becomes publicly known and made generally available after disclosure through no illegal or unauthorized action or inaction of the Receiving Party, is already in the possession of Receiving Party at the time of its initial disclosure by Disclosing Party to Receiving Party, or is independently developed by the Receiving Party without use of or reference to Confidential Information of the Disclosing Party.

c. Non-Use and Non-Disclosure.  The Receiving Party will treat as confidential all Confidential Information, not disclose such Confidential Information to any third party, except to its employees or third parties who have a need to know such information for the purposes of performing hereunder, and subject to a written agreement containing provisions substantially as protective as the terms of this Section, and will not use such Confidential Information except in connection with performing its obligations under this Agreement.  The Receiving Party may disclose Confidential Information if required by law so long as it provides the Disclosing Party prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting such information from public disclosure.

2. Marketing. Company authorizes Dcode, in Dcode’s sole discretion, to identify Company as a program participant in Dcode’s website content, advertising, and marketing materials.  Subject to the prior written agreement from Dcode, Company may be permitted to disclose its relationship with Dcode on Company’s website content, advertising, and marketing materials.  Dcode may use the Company’s name and describe the Company’s success(es) (e.g., contracts it has won) including, but not be limited to: in case studies, newsletters, white papers, blogs, podcasts, videos, press releases, workshops and conference, upon the prior written approval of the other party, which will not be unreasonably withheld.  Upon request from Dcode, Company shall participate in telephone interviews with industry analysts, review editors, and news editors.

3. Name and Trademark. During the Term of this Agreement, Dcode will have the right to advertise and promote the Company’ trademarks, trade names, service marks, and logos.  Company will provide Dcode with a logo and trade name to be used during the program at Dcode events and marketing materials.  All representations of Dcode’s trademarks that the Company intends to use will first be submitted to Dcode for approval (which will not be unreasonably withheld) of design, color, and other details, or will be exact copies of those used by Dcode.  Nothing contained in this Agreement will grant or will be deemed to grant to other Party any right, title, or interest in other party’s trademarks.  At no time during or after the term of this Agreement will either Party challenge or assist others to challenge the other’s trademarks or the registration thereof or attempt to register any of the other’s trademarks or marks or trade names that are confusingly similar to those of Dcode.

4. Services. The specific service (the “Services”) provided by Dcode to the Company shall be set forth in the Proposal.  The specific Service shall be subject to the below term and conditions:  

a. Meetings & Events.  During the Term of this Agreement, Dcode will facilitate meetings for Company with government officials and system integrator partners.  Company agrees to make its personnel available and respond to and attend such meeting requests. Company agrees that the location and time for each event is subject to change including re-scheduling, or cancellation. Dcode will use commercially reasonable efforts to timely notify Company of any such occurrence.  Company’s sole and exclusive remedy, and Dcode’s entire liability to Company for Dcode’s rescheduling, cancellation or termination, shall be the reasonable travel charges (i.e., change fees) incurred by the Company as a direct result of the rescheduling, cancellation, or termination, provided, that Company first seeks to mitigate its damages, and Company submits receipts for such charges to Dcode within thirty (30) days of being notified of the rescheduling, cancellation, or termination.

b. Proposal Writing & Review Services.  Services may consist of the writing, review, and delivery of response documents to Company to assist Company in responding to a specific government contract solicitation.

c. Company Duty to Provide Certain Information.  Company acknowledges that it is the holder of certain information that may be necessary for Dcode to perform the Services.  Company agrees to provide any such information to Dcode, upon request.  Company agrees it will promptly provide Dcode with truthful, accurate, and non-misleading information and/or documentation for purposes of Dcode performing Services.  Failure of Company to provide necessary information for Dcode to perform Services, or providing false, inaccurate, or misleading information to Dcode shall constitute a breach of this Agreement, and Dcode shall have available to it all remedies set forth in Agreement, and may refuse to perform Services with no liability to Dcode.

d. Company Duty to Review All Information.  Company agrees that the final product provided by Dcode shall be subject to final review and approval by Company before Company submits or authorizes submission to any third party.  It shall be the responsibility of Company to review all content, information, and assertions contained in, attached to, or referenced in any product drafted for Company by Dcode.  Dcode shall not be responsible nor have any liability for any false, inaccurate, or misleading information contained in, attached to, or referenced in the proposal submitted by the Company to any third party.  Company acknowledges that the final product submitted to any third party shall be submitted exclusively in the name of Company.

e. Representations; Disclaimer.  DCODE MAKES NO REPRESENTATION OR GUARANTEE AS TO THE LIKELIHOOD THAT THE SERVICES PERFORMED HEREUNDER WILL RESULT IN ANY SPECIFIC OUTCOME FOR THE COMPANY, INCLUDING THE RECEIPT OF ANY CONTRACT AWARD OR CONTRACTING OPPORTUNITY.  DCODE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM OR RELATING TO ANY RELIANCE PLACED ON THE SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, DATA, ACCURACY, MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

5. Non-Solicit and Non-Compete. Company agrees that during the Term of this Agreement, and for twelve (12) consecutive months after the termination or expiration of this Agreement, the Company, its affiliates and their employees shall not: (i) directly or indirectly solicit any employee or consultant of Dcode (or its affiliates), or any person who was a former employee or consultant of Dcode (or its affiliates) in the prior six (6) months, or (ii) compete with Dcode in the provision of services of the kind and nature Dcode performs pursuant to the Services. For the avoidance of doubt, the non-solicitation under this clause will not restrict Company from hiring employees or consultants of Dcode or its Affiliates who apply unsolicited in response to a general advertising or other general recruitment campaign. Company further agrees that the non‐competition and non‐solicitation provisions of this Agreement are necessary to protect Dcode’s legitimate business interests, including, without limitation, the confidential business or professional information and trade secrets of Dcode, the relationships between Dcode and its clients, vendors and subcontractors, and the goodwill of Dcode. Company further agrees that the twelve (12)‐month limitation of this Section 5 is reasonable. In case of breach of this provision, the contractual partner is obliged to pay damages amounting to fifty percent (50%) of the annual gross salary of the poached Dcode staff member. In the event a court of Competent Jurisdiction (defined as the courts located and situated in the Commonwealth of Virginia determines that the limitations of this provision are invalid, the court may establish different time or restriction, and the Parties agree to comply with the court’s orders.

a. Proprietary Materials.  The Parties acknowledge that the Nexus Platform (the “Platform”) and its content, features, functionality (such as, all graphical and navigational elements and the compilation, arrangement, structure, and sequence of all components and content), resources, software, supported hardware systems, text, data, images, and “look and feel” (collectively, the “Proprietary Materials”) are owned by Dcode or other providers of such material and are protected by U.S. and international copyright, trademark, patent, trade secret or other intellectual property or proprietary laws.  Company acknowledges that, subject to the licenses granted herein, it has no ownership interest in the Platform of Proprietary Materials.  Dcode reserves all rights not expressly stated in this Agreement.

6. Payment. The fees for the Service shall be set forth in this Proposal and are subject to the additional terms herein.  Fees may include monthly retainer and success fees. 

a. Monthly Retainer.  To participate in the Dcode program, Company shall pay Dcode the monthly retainer specified in the Proposal (“Monthly Retainer”).  The Monthly Retainer shall be paid on the first day of the month of Service and thereafter on the first of each month.

b. Success Fee.  Dcode shall be entitled to the percentage success fee contained in the Proposal (“Success Fee”).  The Success Fee shall be a percentage of the total contract value for new revenue that Company receives as a result of any strategic support, introductions or referrals from Dcode (“Dcode Support”).  Dcode Support includes any strategic support, introductions or referrals that assisted Company in the award of a contract, or any strategic or material assistance support of government contracting opportunities.  Dcode Support includes but is not limited to introductions made directly or indirectly by Dcode and Dcode’s mentor network, such as introductions or referrals made face-to-face, including at networking events or other Dcode-arranged functions or meetings, or introductions or referrals made by email, telephone, on Dcode’s platform Nexus, videoconference, or similar methods of communication.  For the avoidance of doubt, this Agreement includes support of Company’s government contracting business generally, and does not require or contemplate Dcode soliciting or obtaining any specific government contract for Company, and Dcode Support expressly excludes any such activities.

c. Scope of Success Fee.  The Success Fee shall apply to the total contract value Company wins for which Dcode provided Dcode Support prior to contract award.  Contracts subject to the Success Fee shall include any options exercised or task orders executed on contracts for which Dcode provided Dcode Support on the initial award of the underlying master contract.  Should Dcode provide Dcode Support for a proof of concept, the Success Fee shall be applied to the follow-on contract resulting from that proof of concept. The Success Fee shall not include any revenue from a contract that Dcode has notified Company in writing as part of Dcode’s Government Procurement Support Services or subject to other restrictions (“Excluded Contracts”).  Dcode reserves the right, in its sole discretion, to change its classification of any Excluded Contract if Dcode determines that the restrictions no longer apply or have been otherwise mitigated.  In such case, Dcode will provide notice to the Company, and thereafter the Company shall include all revenue from the formerly Excluded Contract as part of the Success Fee revenue. 

d. Reporting of Dcode Support.  On a quarterly basis, Dcode will provide Company with a report (“Dcode Support Report”) of Dcode Support provided during the previous quarter, including a listing of strategic support and the contacts and/or agencies to which Dcode made an introduction or referral.  In the event Company disputes any information contained in the Dcode Support Report, Company shall provide written notice of such dispute to Dcode within ten (10) business days, and Company and Dcode shall work in good faith to resolve the dispute.  Any dispute that cannot be resolved by Company and Dcode within six (6) months of the date of the disputed Dcode Support Report shall be resolved in a court of appropriate jurisdiction.  If Company does not provide notice of a dispute to Dcode within ten (10) business days as required under this subparagraph, Company shall be deemed to have accepted the contents of the Dcode Support Report.

e. Reporting of Contract Awards and Revenue.  Company shall report to Dcode all new contract awards and revenues subject to the Success Fee on a quarterly basis, no later than fifteen (15) days after the end of the calendar year quarter for which the report covers.  This report shall specify which contracts and revenue are subject to the Success Fee, and include a calculation of the Success Fee.  If it is determined that Company has been awarded a contract and/or received revenue subject to the Success Fee within the most recent quarter but has not reported such contract and/or revenue on the quarterly report, the Success Fee shall increase by 2% for the revenue that was omitted from the report.  Dcode shall have the right to audit and inspect Company’s records relevant to the calculation of the Success Fee, and Company shall cooperate with any such audit and provide responses in a timely manner and not unreasonably withhold information from Dcode.

f. Payment of Success Fee.  Dcode will invoice, and Company shall pay Dcode, the Success Fee in accordance with the schedule set forth in the Proposal.  Dcode will invoice the Success Fee upon contract award.  Interest shall not accrue and invoices shall not be considered overdue until a minimum of thirty (30) days have passed from invoice date.

g. Payment due dates and interest.  Success Fee invoices are due within thirty (30) days of receipt of invoice.  Retainer Fee is due upon receipt.  Any amounts not paid when due shall accrue interest at the rate of 1.5% per month or the highest rate permitted by applicable usury law, whichever is less, until the date paid.  Without limiting any other right or remedy available to Dcode, in the event that any payment is more than thirty (30) days late, Dcode shall have the right to suspend performance and all services or support under this Agreement until all payments, including interest, are made current.

h. Invoicing.  Invoices shall be sent to the Company at its address set forth in the Proposal.

7. Code of Conduct. Dcode does not tolerate behavior that is inappropriate, illegal, disruptive, or abusive.  Dcode defines inappropriate behavior as any form of verbal, written, or physical abuse, the use of directly or indirectly derogatory or discriminatory language, gestures or actions, any form of harassment, bullying, racism, sexism, or any other targeted comments which are intended to cause personal offense to another Dcode community member either in-person or through any means of communication, including social media channels, or in violation of any local, state, or national laws.

8. Termination

a. Termination for Cause.  If either party fails to perform any of its obligations under this Agreement, the other Party may terminate this Agreement by giving thirty (30) days prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the thirty (30) day period.  If either Party is insolvent or commits or suffers (voluntarily or involuntarily) an act of bankruptcy, receivership, liquidation, or similar event, the other Party may immediately terminate this Agreement.

b. Liability for Termination.  Except as expressly required by law, and except as otherwise provided in this agreement, in the event of termination of this Agreement by either Party in accordance with any of the provisions of this agreement, neither party will be liable to the other, because of such termination, for reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Dcode or company.

c. Effect of Termination.  Termination will not, however, relieve either Party of obligations incurred prior to the effective date of the termination.  Company will owe any Success Fee associated with any federal opportunity where the initial date of contact with the customer occurred prior to the date of termination or cancellation.

9. Severability. If any portion of this Agreement is held invalid, the Parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.  All rights and remedies contained in this Agreement are cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity.  Any waiver by Dcode of any right or provision contained in this Agreement shall not be deemed to be a waiver of any other right or provision of this Agreement.

10. Indemnification & Limitation of Liability

a. Indemnification.  Company shall indemnify, defend, and hold harmless Dcode and its  officers, directors, owners, employees, representatives, agents, and contractors against and from any and all liabilities, suits, claims, losses, damages, expenses (including reasonable attorneys’ fees), and judgments, of any kind or character, type or description, arising out of, in connection with, or related to the advice and/or services contemplated under this Agreement. 

b. Cap on liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, (I) DCODE IS NOT LIABLE, UNDER ANY LEGAL THEORY AND EVEN IF DCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS, OR EXPENSES, TO YOU OR ANY THIRD PARTY FOR ANY (A) INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND; AND/OR (B) DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND FOR LOST PROFITS, DELAY, PROCUREMENT OF SUBSTITUTE TECHNOLOGY, LOSS OF GOODWILL, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, LOST OR DAMAGED DATA, LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE OR OTHER INTANGIBLE LOSSES.  Under no circumstances will Dcode’s liability of any kind arising out of, in connection with, or related to this agreement, regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total Monthly Fees paid by Company to Dcode during the one (1) month period preceding the date of the initial event resulting in such claims.

11. Independent Contractors. The relationship of the Parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either Party the power to act as an agent or direct or control the day-to-day activities of the other.  Financial and other obligations associated with each Party’s business are the sole responsibility of that Party.

12 Assignment; Successors and Assigns. Company may not assign this Agreement in whole or in part without the prior written consent of Dcode. Any attempted assignment, subletting or transfer by Company without Dcode’s prior written consent shall be void. This Agreement will bind and inure to the benefit of the Parties and their respective successors or permitted assigns.  During the term of this Agreement, Company shall promptly notify Dcode of any significant or material change in the operational management or ownership of Company that may occur, including, without limitation, any material change in the managers, directors, or owners of Company.

13. Choice of Law. It is the intention of the Parties that this Agreement, the performance hereunder, and all suits and proceedings hereunder be construed in accordance with the laws of the Commonwealth of Virginia, without regard to the conflicts of laws principles thereof.  Company agrees that all legal proceedings arising under or related to this Agreement shall be adjudicated exclusively and solely in the courts of Commonwealth of Virginia.  Company consents to extraterritorial service of process and submit to the exclusive jurisdiction of such courts.  The Parties acknowledge and agree that Company’s breach of Sections 5 will result in irreparable injury to Dcode not capable of being measured by money damages, and Dcode does not have an adequate remedy at law to redress such injury.  Thus, in the event there is a breach or threatened breach of such sections, Dcode shall be entitled to seek and obtain injunctive relief without the posting of a bond in order to enforce the Company’s non-solicitation and non-competition agreement.  Company agrees to reimburse Dcode for all costs and expenses, including attorney’s fees at the trial and appellate levels and in bankruptcy court, in connection with Dcode’s enforcement action.  This provision does not limit any other rights and legal or equitable remedies available to Dcode on account of Company’s breach.

14. Force Majeure. Neither Party shall be liable for any delay in performance if such performance is rendered impossible, hazardous, or is otherwise impaired due to events or occurrences beyond the reasonable control the parties, including but not limited to strikes, labor difficulties, acts of God, epidemics, earthquakes, hurricanes, floods, severe weather, war, terrorist acts and/or specific threats of terrorism, government regulation, or civil unrest.

15. Entire Agreement and Modification.  This Agreement, including any exhibits, amendments, schedules or appendices, is the final and complete expression of all agreements between the Parties and supersedes all previous oral and written agreements regarding these matters.  It may be changed only by a written agreement signed by an authorized representative of the party against whom enforcement is sought.  The exhibits, amendments, schedules or appendices referred to in this Agreement are incorporated by this reference as if fully set forth here.  Modification, addition or deletion, or waiver of any of the terms and conditions of this Agreement shall not be binding on either Party unless such modification is signed by both Parties.

16. Privacy Policy: This agreement is subject to Dcode’s privacy policy found: https://dcode.co/privacy-policy/