Terms of Service
Last updated: August 18th, 2022
Please read these terms of service (“Agreement”) carefully as this Agreement constitutes a binding contract between the party that accepts this Agreement (“Client”) and Le Poulet PBC, a Colorado public benefit corporation doing business as Darién Advisors and having its registered address at 1942 Broadway Street, STE 314C, Boulder, CO 80302, USA (“Darién Advisors”) governing the agreed-upon services within the Services Agreement or Scope of Work (the “Services”).
By checking an opt-in box, clicking on “I accept” or otherwise accepting this Agreement, Client acknowledges that they have read, understood, and agree to be bound by and comply with the terms of this Agreement. If Client is using the Services on behalf of an entity, partnership, or other organization, then Client represents that they: (i) are an authorized representative of that entity with the authority to bind that entity to this Agreement and (ii) such entity agrees to be bound by this Agreement. If Client does not agree to the terms of this Agreement, then they are not permitted to receive the Services.
ARTICLE 1: DEFINITIONS
Section 1.1 “Authorization” or “Authorized” means any and all authorizations or approvals by Client as required by Darién Advisors described in this Agreement. Any and all such authorizations must be made by Client in writing, email or any other form of written communication, pursuant to proper notice.
Section 1.2 “Client Portal” means the secured portion of Darién Advisors’ web-based platforms through which applications and data sources may be accessed and utilized by Client.
Section 1.3 “Confidential Information” means any trade secrets or confidential business information of a party including, but not limited to: the terms and conditions of the Agreement; information relating to its research and development activities; product designs, prototypes and technical specifications; algorithms, trade secrets or technical data; show-how and know-how; marketing plans and strategies; pricing and costing policies; advertiser, Client and supplier lists and accounts; nonpublic financial information of a party; or any information identified by a part as confidential.
Section 1.4 “Intellectual Property” means any and all information in any form, including software, know how, processes, methods, procedures, formulae, technology, methodologies, machine readable texts or files, algorithms, web sites, web pages, and displays, and all expressions of such in any form. Intellectual Property includes, but is not limited to information that is protected by patents, trademarks, service marks, copyrights, design rights, registered or not, and includes but is not limited to trade secrets, confidential information, proprietary information, and all contents of applications for registration of patents, trademarks, service marks, copyrights, or design rights. Intellectual Property includes all enhancements, changes, revisions, improvements, modifications, and derivative works of any and all information, Software, know how, processes, methods, procedures, formulae, technology, methodologies, machine readable texts or files, algorithms, web sites, web pages, and displays that exist at the time that this Agreement is entered into by the parties.
Section 1.5 “Services” mean the services listed in Services Proposal that Darién Advisors approved and signed by an Authorized Representative.
ARTICLE 2: COMMENCEMENT OF SERVICES
Section 2.1 Commencement and Continuation of Services. The Services shall commence upon Darién Advisors’ receipt of a fully executed Services Agreement or Scope of Work ("Engagement Understanding") and will begin to provide the Services set forth in the Engagement Understanding and bill Client for these services unless Darién Advisors determines it has Cause to terminate the arrangement.
Section 2.2 Scope of Work. Darién Advisors shall provide only the specific Services set forth in the Engagement Understanding. Client agrees that Darién Advisors will not perform any activities on behalf of Client without first obtaining Client’s written agreement, either by way of an amendment or the preparation and execution of a separate Engagement Understanding. At no time shall Darién Advisors render any opinion on the financial statements of the Client including performing any audit or review of the financial statements.
Section 2.3 Security, Authorized Users and Passwords. Data between Client and Darién Advisors is transmitted through the Internet. The security of transmissions over the Internet can never be guaranteed. Darién Advisors is not responsible for Client’s access to the Internet, for any interception or interruption of any communications through the Internet, or for changes to or losses of data. In order to protect Client, Darién Advisors may suspend Client’s use of the Services via the Internet immediately, without notice, pending an investigation, if any breach of security is suspected. Client agrees and understands that its employees must create and use their Client passwords each time they access Darién Advisors’ Portal. Client shall assume complete control over the distribution and security of passwords and agrees that its employees shall not disclose or otherwise make their passwords available to anyone not authorized to sign on to Darién Advisors’ Client Portal on behalf of Client. Client agrees that Darién Advisors shall not be responsible for any or all transactions conducted because Client or its employees have disclosed or otherwise made their passwords available to someone other than the designated user. Also, in connection with this engagement, we may communicate with you or others via email transmission. As emails can be intercepted and read, disclosed, or otherwise used or communicated by an unintended third party, or may not be delivered to each of the parties to whom they are directed and only to such parties, we cannot guarantee or warrant that emails from us will be properly delivered and read only by the addressee. Therefore, we specifically disclaim and waive any liability or responsibility whatsoever for interception or unintentional disclosure of emails transmitted by us in connection with the performance of this engagement. In that regard, you agree that we shall have no liability for any loss or damage to any person or entity resulting from the use of email transmissions, including any consequential, incidental, direct, indirect, or special damages, such as loss of revenues or anticipated profits, or disclosure or communication of confidential or proprietary information.
ARTICLE 3: DARIÉN ADVISORS’ DUTIES AND RESPONSIBILITIES
Section 3.1 Darién Advisors Duties. Darién Advisors shall provide the Services and perform any acts incident to those Services that, in Darién Advisors’ best judgment, will assist Client in achieving the results for which Darién Advisors has been engaged. Darién Advisors will inform Client of the software and communications necessary to utilize the Services. Client agrees and understands that Darién Advisors is not a registered independent public accounting firm and will not render services in accordance with standards required by the Public Client Accounting Oversight Board.
Section 3.2 Retaining Records. Darién Advisors may choose to make and retain images only of the original receipts, invoices, bills and supporting documentation reflecting specific transactions and notices related to the transactions. Darién Advisors has the right to destroy all documents or images (excluding fixed asset, securities transaction and tax payment records, which shall be maintained until contract termination in which case Darién Advisors will make these records available to Client for their permanent retention) eight (8) years after the date on which they were originally imaged or copied by or for Darién Advisors.
Section 3.3 Keeping Client and Darién Advisors Informed about Developments. Darién Advisors agrees to promptly notify Client of all significant matters and developments relevant to and within the scope of Darién Advisors’ Agreement with Client and to consult with Client about those developments. Likewise, Client agrees to promptly notify Darién Advisors of all significant matters and developments relevant to and within the scope of the Agreement and to consult with Darién Advisors about those developments. Darién Advisors agrees to provide Client at Client’s request and expense with copies of all written materials and computerized data pertaining to Darién Advisors’ Services performed for Client.
ARTICLE 4: CLIENT’S DUTIES AND RESPONSIBILITIES
Section 4.1 Client’s Duties.
a. Client shall pay Darién Advisors the fees and expenses specified in the Engagement Understanding within 30 days of the date of invoice. In any and all actions and/or proceedings by Darién Advisors relating to collection of its fees and expenses, Client shall pay all of Darién Advisors’ attorney’s fees and costs, including all appellate proceedings and all expert consultants’ and witnesses’ fees.
b. Client consents that delays by any and all of its employees in responding to correspondence, emails, telephone calls and other requests from Darién Advisors may impair Darién Advisors’ abilities to effectively render Services to Client.
c. Client shall fully cooperate with Darién Advisors and shall provide information that will help Darién Advisors in achieving the results for which Darién Advisors has been engaged, including, without limitation, furnishing documents and information requested by Darién Advisors. Client shall make available all necessary personnel to respond to questions from Darién Advisors.
d. In the event of an audit of Client by a state or federal government agency, Client shall pay all costs, fees and expenses incurred by Darién Advisors in connection with such audit unless the audit was triggered by an error or omission by Darién Advisors.
e. Client shall provide access to their required system(s) and data necessary so Darién Advisors can perform its contracted services to Client in a timely and efficient manner. Any and all modifications, development or installation of hardware required is Client’s responsibility and may trigger additional implementation effort and time by Darién Advisors, and as such, may incur additional fees and may impact the onboarding completion date.
f. Client is responsible for installing, downloading or making the necessary communications connections as required by Darién Advisors.
Section 4.2 Client’s Responsibility for Compliance with Laws. Darién Advisors agrees to use its best efforts to cause the applicable Services to be rendered in such a manner that they will be able to assist Client in complying with its applicable legal and regulatory responsibilities. Nevertheless, Client shall be responsible for (i) compliance with all laws and governmental regulations affecting Client’s business and (ii) any and all uses Client may make of the Services to assist it in complying with such laws and governmental regulations.
Section 4.3 Accuracy of Client Information, Review of Output. All Services will be based upon information provided to Darién Advisors by Client and the Client will be responsible for the accuracy of all such information. Darién Advisors has no obligation to verify the accuracy of such information and will not be liable for any adverse consequences resulting from errors or omissions contained in such data. Except however, that Darién Advisors shall determine the accuracy of invoice coding by applying and reviewing invoice coding based on business rules developed and agreed to by Client. Client further agrees that upon receipt from Darién Advisors, Client will promptly review all financial statements, reports, payroll registers, disbursement records, and other documents produced by Darién Advisors (“Information”) for accuracy, validity and conformity with Client’s records. Client will promptly notify Darién Advisors in writing via email, letter or any other form of written communication of any error, omission, or discrepancy discovered by Client in the Information provided by Darién Advisors. Client must provide such written notification within thirty (30) days of its receipt of the Information, or Client automatically waives any and all claims it may have arising from or related to any such errors, omissions or discrepancies in the Information.
Section 4.4 Client’s Authorization. Client gives Darién Advisors express permission to open all mail, email, faxes, voicemail or other correspondence in Client’s name or other documents which have been forwarded to or received or received by Darién Advisors, and to make and retain copies or images of documents contained in such correspondence.
Section 4.5 Employment of Consultants, Experts and Accountants. Darién Advisors, in its discretion, may employ consultants, experts and accountants in connection with this Agreement. All such consultants, experts and accountants shall report exclusively to Darién Advisors.
ARTICLE 5: FEES AND EXPENSES
Section 5.1 Fees. Client shall pay the Fees set out in the Engagement Understanding. Darién Advisors retains the right to increase the fees for the Services in the future upon mutual agreement. If at such time Darién Advisors provided notice of an increase in fees, and parties cannot in good faith negotiate the increased price, Client may, instead of paying the increased fees, elect to terminate this Agreement by providing written notice.
a. Client shall reimburse Darién Advisors for all reasonable travel and out-of-pocket expenses incurred by Darién Advisors in connection with the performance of the Services, upon receipt by the Client of an invoice from Darién Advisors accompanied by receipts and reasonable supporting documentation.
b. Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, Darién Advisors' income, revenues, gross receipts, personnel, or real or personal property or other assets. Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of 5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.
c. Client shall also reimburse Darién Advisors for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at law (which Darién Advisors does not waive by the exercise of any rights hereunder), Darién Advisors shall be entitled to suspend the provision of any Service if Client fails to pay any undisputed amounts/fees when due hereunder and such failure continues for 30 days following written notice thereof.
Section 5.2 Customized Work. Client agrees to pay for any customized work or additional work performed by Darién Advisors that is not set forth in this Agreement, including changes to the Engagement Understanding.
ARTICLE 6: TERM AND TERMINATION OF SERVICES
Section 6.1 Term for Cryptocurrency Tax Reporting and Tax Preparation and Filing Services. The term of this Agreement will be from the Effective date until delivery of 1) the final cryptocurrency tax report or 2) the final, transmitted tax reporting package.
Section 6.2 Term for Consulting, Advisory, Treasury, Accounting, and other Services recurring in nature. The initial term of this Agreement will be for one month from the Effective Date. The Agreement shall be subject for renewal at the option of both parties unless either party gives written notice of non-renewal to the other party at least 30 days before the expiration of the then current term.
Section 6.3 Termination by Client. Client may terminate this Agreement only for cause anytime. Cause to terminate will be if Darién Advisors is not able to continue rendering the Services or if Darién Advisors has not met the Client service expectations. In the event Client desires to terminate this Agreement for cause, Client shall give Darién Advisors a written notice before terminating. If Client terminates this Agreement for reasons other than Cause pursuant to this section, Client shall pay proportionate Service Fee related to services rendered during that period of termination.
Section 6.4 Termination by Darién Advisors. At the initial stage of the engagement period, if Darién Advisors determines not to provide the Services to Client for cause as defined, Darién Advisors shall retain any portion of the Service Fee paid by Client as payment in full for Darién Advisors’ work performed during the service month period. If Darién Advisors determines not to provide the services to Client for reasons other than for cause, Darién Advisors shall provide notice of its intent to terminate and immediately refund the Service Fee less any associated direct costs. For the purposes of Darién Advisors’ right to terminate, cause will be defined as follows:
a. Darién Advisors has reason to believe that either Client, or any of its officers, directors or managing agents have engaged in any illegal acts relating to the Services;
b. Client is not current in its payments to Darién Advisors; or
c. Client is experiencing severe cash flow difficulties
d. it is determined that the cooperation needed from the Client to provide a smooth accounting outsourcing solution will not be achieved.
ARTICLE 7: PRIVACY AND PROPRIETARY RIGHTS
Section 7.1 Confidentiality. The parties acknowledge that during the negotiation and term of the Agreement, each party may have access to Confidential Information relating to the other party. A party that receives the Confidential Information (the “Receiving Party”) of the other party (the “Disclosing Party”) agrees that it will not, directly or indirectly, disclose any Confidential Information relating to the Disclosing Party without Disclosing Party’s prior written consent, and will promptly return or destroy all such Confidential Information upon the request of the Disclosing Party. Confidential Information will not include any information to the extent it:
a. is or becomes a part of the public domain through no act or omission on the part of the Receiving Party,
b. is disclosed to third parties by the Disclosing Party without restriction on such third parties,
c. is in the Receiving Party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under the Agreement
d. is disclosed to the Receiving Party by a third party having no obligation of confidentiality with respect thereto
e. is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information or
f. is released from confidential treatment by written consent of the Disclosing Party. This section shall survive this agreement for one (1) year.
Section 7.2 Privacy. Darién Advisors agrees not to sell or disclose any personally identifiable information to any third party without Client’s consent. Darién Advisors will only disclose information to third parties about Client’s account or its business or financial condition:
a. where it is necessary for conducting the Services,
b. if required by law or government regulation, or
c. if Client requests or authorizes it in writing.
Section 7.3 No Other Rights. No party hereto grants, assigns, or otherwise transfers to any other party to this Agreement any interest in any Intellectual Property owned or licensed by it, except as expressly set forth herein, or in a separate written agreement executed by all parties. All Intellectual Property of any party to this Agreement is confidential and proprietary, and each party to this Agreement shall treat all such Intellectual Property as confidential and proprietary and shall only Use such Intellectual Property as permitted in this Agreement.
ARTICLE 8: MODIFICATION OF AGREEMENT
This Agreement represents the entire agreement between Darién Advisors and Client including all aspects of the Services to be rendered to Client and the payment of fees and expenses in connection therewith. There are no promises, terms, conditions or obligations other than those contained herein and this Agreement shall supersede all previous communications, representations, or other agreements either verbal or written, between Client and Darién Advisors. No other terms or conditions on any document (including any purchase order, invoice or other form) not signed by both parties shall be of any force or effect. This Agreement may be modified, replaced or rescinded only in writing, and signed by an authorized representative of each party.
ARTICLE 9: ARBITRATION
Any and all actions, proceedings, and/or disputes relating to the enforcement or interpretation of any or all terms of this agreement, the nature of the Services performed by Darién Advisors under this Agreement, no matter how characterized or classified, and/or performance under the terms of this Agreement, no matter the nature of the claims or issues, any and all such disputes shall be submitted to binding arbitration under the then prevailing rules of the American Arbitration Association and shall be a confidential proceeding. Arbitration shall be conducted in City and County of Spokane, WA in the United States and each party shall bear its own costs of the arbitration. Each party will choose one independent arbitrator. The two arbitrators so chosen shall jointly select a third arbitrator. Decision of the arbitrators shall be final and the parties agree to enter any decisions as judgments in the court of appropriate jurisdiction. However, this article’s provisions shall not apply to any action or proceeding by Darién Advisors to collect any or all of its fees and/or expenses.
ARTICLE 10: LIMITATIONS OF LIABILITY
Section 10.1 Indemnification. Each party (“Indemnifying Party”) shall indemnify, defend and hold the other party (“Indemnified Party”) harmless from any and all third party claims, settlements, liability, damages and/or costs (including, but not limited to, attorney’s fees) payable to such third parties arising from a claim directly resulting from the reckless or willful misconduct of the Indemnifying Party in the performance of this Agreement. As a condition of the foregoing, Indemnified Party will promptly notify Indemnifying Party of such claims, provide Indemnifying Party with sole control of defense and settlement and will reasonably cooperate with Indemnifying Party with the defense and/or settlement thereof.
Section 10.2 Limitation of Liability. Client agrees that Darién Advisors will not be responsible or liable for any damages for failing to conduct any transaction or for issuing any report when:
a. the website or other system was not working properly and Client knew or should have known about the problem when it Authorized the transaction; or
b. the information Client or Client’s Customers, vendors or payees have supplied to Darién Advisors is incorrect, incomplete or not timely. Client agrees that Darién Advisors will not be responsible for detecting errors, irregularities, or illegal acts of Client or its employees. Notwithstanding anything in this Agreement to the contrary, Darién Advisors’ liability under this Agreement for damages under any circumstances for claims of any type shall be limited to a combined maximum of the previous six (6) month’s combined fees. Darién Advisors is not privy to or a party to negotiations or agreements with the Client’s vendors or business affiliates that may impose these types of costs or penalties due to errors or omissions. As such, Client will notify Darién Advisors in advance of any such arrangements with vendors or business affiliates that may impose or cause to occur these or any other type of costs arising from an error or omission so that any additional safeguards can be implemented to avoid such costs. These safeguards may include but are not limited to oversight, review and final approval by the Client for these particular transactions. Darién Advisors reserves the right to carve out transactions from its scope of responsibility that it deems too great a liability if an error or omission were to occur. This in no way refutes, alters or affects the limitations of liability and damages set forth in this section (Section 10.2) Notwithstanding anything in this Agreement to the contrary, Darién Advisors will not be responsible for special, indirect, incidental, consequential or other similar damages (including lost profits or declines in the value of a business) that Client may incur or experience in connection with this Agreement or the Services, however caused and under whatever theory of liability, even if Client has advised Darién Advisors of the possibility of such damages. This Section sets forth the full extent of Darién Advisors’ liability for damages resulting from this Agreement, or the Services rendered or to be rendered hereunder, regardless of the form in which such liability or claim for damages may be asserted and sets forth the full extent of Client’s remedies. Both Client and Darién Advisors acknowledge that the fees for the Services to be provided hereunder reflect the allocation of risk set forth in this Section. Nothing in this Agreement is intended to adversely affect Client’s obligation to mitigate damages.
ARTICLE 11: MISCELLANEOUS
Section 11.1 Assignment. Neither party may assign, (e.g. merger, buyout, acquisition, or bankruptcy) any of its rights or obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Whereby one party assigns its interest in this agreement to a third party, the other party may terminate this agreement immediately upon written notice.
Section 11.2 Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
Section 11.3 Notice. Client agrees to give such notice to the person who signed this Agreement on behalf of Darién Advisors by email to Darién Advisors’ email address or in writing to Darién Advisors’ address.
Section 11.4 Governing Law and Jurisdiction. As stated in Article 9, the Agreement will be governed by and construed in accordance with the laws of the State of Colorado excluding that body of laws known as conflicts of law. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the county of Boulder, Colorado and the parties hereby irrevocably consent to personal jurisdiction and venue therein.
Section 11.5 Attorney Fees. Except for the purpose of collections, each party shall bear its own costs for any arbitration pursuant to Article 9 or any litigation to arise for.
Section 11.6 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, terrorism, power outage, system failure, labor shortage or dispute, governmental act, failure of the Internet, or failure or delay in any software, hardware or telecommunications provided by the other party.
Section 11.7 Non-Solicitation. During the Term hereof and for a period of twelve (12) months following the termination or expiration of this Agreement, the Parties hereto agree not to hire, solicit, nor attempt to solicit, the services of any employee or consultant of the other Party that provided or received services under this Agreement, without prior written consent. Violation of this provision shall entitle the offended party to assert liquidated damages against the offending party equal to one hundred fifty percent (150%) of the solicited person’s annual compensation and all reasonable legal fees incurred by the offended Party. The rights of the Parties hereto arising from this Section 11.7 Non-Solicitation shall survive the expiration or other termination of this Agreement.