Terms and Conditions

Last updated October 11, 2020

This is an agreement between Otter Tech, LLC, an Oregon limited liability company, with a business address of PO Box 8551, Portland, Oregon, 97207 (Consultant) and any person or organization purchasing services through the Otter Tech LLC website (Client) regarding guidance on best practices for diversity and inclusion, and developing, implementing, and enforcing a code of conduct and incident response policy.

1. Services. Consultant provides guidance on best practices for diversity and inclusion, and developing, implementing, and enforcing code of conduct and incident response policies through consulting sessions, workshops and direct consulting. Consulting sessions are best suited for monthly meetings to discuss guidance on diversity and inclusion initiatives. Workshops are best suited for situations where a group of individuals require education or guidance related to incident response. Direct consulting services are best suited when Client has a specific task for Consultant to complete. The services Consultant will provide Client have been purchased through the website. The parties may execute additional Statement of Work Forms, should the need arise. All SOWs referencing this Agreement will be governed by the terms of this Agreement.
2. License to Materials. Consultant will provide Client with various materials in the course of providing Client services. With the exception of consultant private notes, all materials are provided to Client under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license, the terms of which can be found at the following website: https://creativecommons.org/licenses/by-nc-sa/4.0/. Client agrees to review the terms and abide by them when using the materials. Failure to abide by the terms of the license may result in Client being prohibited from using the materials or derivatives based on the materials.
3. Travel & Expense Policy. If Consultant must travel more than 100 miles from Portland, Oregon to provide the services, Client must reimburse Consultant for the following expenses Consultant incurs on Client’s behalf:
   1. actual transportation costs, business class excluded, with mileage reimbursed according to the then applicable Internal Revenue Service guidelines;
   2. actual accommodation costs, including taxes and fees, for a minimum of two nights; and
   3. the then applicable per diem allowance for meals as dictated by the General Services Administration.
4. Cancellation Policy. In the event Client cancels the services after Consultant has incurred nonrefundable expenses on Client’s behalf, Client is responsible for paying for those expenses. Client refunds will incur a refund fee equal to the Stripe payment fee, and any international wire transfer fees (if applicable). In addition, the following cancellation fees will apply:
   1. Consultation sessions. Client agrees to pay the monthly consultation session fee for a set number of months. If Client signs the contract before the last day of the month, midnight UTC, Client will be invoiced for that month’s consultation session fee. Client may cancel the consultation sessions in writing by email to sharp@otter.technology. If the email is received before midnight UTC on the last day of the month, the invoice for that month will be canceled, and all following monthly invoices. If the email is received after midnight UTC on the last of the month, Client is responsible for paying the invoice for that month, and all following invoices will be canceled.
   2. Workshops. Client may cancel a workshop up to 60 days prior to the scheduled date without paying a cancellation fee. If Client cancels the workshop 30-60 days prior to the event a cancellation fee equal to 50% of the workshop fee will apply. If Client cancels a workshop less than 30 days prior to the event, a cancellation fee equal to 90% of the workshop fee will apply.
   3. Direct Consultation Services. Client may cancel a consultation meeting up to 24 hours prior to the meeting without paying a cancellation fee. If Client cancels a consultation meeting less than 24 hours prior to the meeting, and does not reschedule the meeting at the time of cancellation, a cancellation fee equal to 50% of the hourly rate for direct consultation services will apply.
5. Payment Terms. Client shall pay all invoices no later than 30 days from the date the invoice is issued. If reimbursable expenses were incurred on Client’s behalf, Consultant shall include a detailed accounting of all expenses and provide copies of receipts for transportation and accommodation costs that exceed $30. If payment is not made within 30 days, a late fee of $50 shall apply for each week, or portion of a week, the invoice remains unpaid. Consultant will not provide additional services, and may delay the provision of previously agreed upon services, for as long as a late invoice remains unpaid. Invoices paid with international wire transfer payments will include a $45 fee to cover Consultant bank fees.
   1. Consultation Sessions. Consultant shall provide Client an invoice for the agreed-upon consultation time offered that month, regardless of whether that consultation time was used by Client, on the first day of each month. Unused consultation time does not accrue.
   2. Workshops. Consultant shall provide Client an invoice for the Workshop, and any associated expenses, no later than 30 days following the Workshop.
   3. Direct Consulting Services. A one-hour minimum is required for all direct consulting services. Services will be billed as they are provided, unless the parties agree to a different schedule. Payment for direct consulting services shall be made via Invoice Ninja and Stripe, unless the parties agree to a different payment method.
6. Confidentiality. Consultant shall keep confidential individual or organizational practices around recruiting and hiring, diversity and inclusion plans or roadmaps, and contact information until such information is (a) made public by Client or (b) Client gives Consultant permission to divulge such information. Consultant reserves the right to anonymize information about code of conduct violations or reported microaggressions that Client shares with Consultant and use the anonymized scenario for educational purposes. Information shall be sufficiently anonymized if (a) Client is not mentioned, (b) none of the actual names of participants, locations, or dates are used, and (c) the purpose or focus of the event or online community in which the incident occurred is only referred to generically.
7. Disclaimers. Client acknowledges that it is aware of, understands, and accepts the following disclaimers regarding Consultant’s services:
   1. Consultant cannot, and does not, guarantee Client will experience any particular result when applying Consultant’s advice.
   2. Consultant’s advice is not legal advice and should not be treated as legal advice or equivalent to legal advice.
   3. Consultant’s advice is not public relations advice and should not be treated as public relations advice or equivalent to public relations advice.
   4. Whenever possible, policies and procedures should be reviewed with legal counsel prior to implementation to ensure the policies and procedures adequately protect Client from undue risk.
8. Limitation of Liability. Consultant shall not be liable to Client for any indirect, special, incidental, punitive, or consequential damages, regardless of whether Consultant had been warned of the possibility of such harm. In no instance shall Consultant’s liability to Client, under any theory of law, exceed the total amount Client paid Consultant for the services that gave rise to the harm or alleged harm.
9. Indemnification. Because Consultant cannot control how Client will use or implement Consultant’s advice, Client agrees to indemnify Consultant from any third-party claim arising from Client’s use or implementation of Consultant’s advice and direction. Consultant shall make Client aware of any claim it believes is subject to this paragraph, and cooperate with Client regarding the defense of that claim.
10. Relationship of the Parties. The parties are acting as separate entities and nothing in this Agreement shall be interpreted to create a business partnership, joint venture, agency or employment relationship.
11. Complete Agreement. This Agreement and any associated SOWs, exhibits, attachments, and amendments are the complete agreement between the parties regarding Consultant’s incident response services. This Agreement supersedes and replaces any prior agreement between the parties regarding Consultant’s incident response services.
12. Representations. Both parties represent that they (a) are able to enter this Agreement and be bound by its terms, (b) know of no reason why they would not be able to fulfill their legal obligations under this Agreement, and (c) that the individual signing this Agreement is authorized to act on its behalf.
13. Governing Law & Venue. This Agreement is governed by the laws of Oregon and shall be interpreted without regard to any conflict of law provisions that may apply. In the event of a dispute regarding this Agreement, the parties agree to engage in good faith mediation prior to filing a civil action. Any civil action brought regarding this Agreement must be brought in the state or federal courts in Multnomah County, Oregon, and the parties consent to the jurisdiction of those courts.