--- title: Terms and Conditions — Persistently description: The terms that govern Persistently's management consulting services and software. --- ![Persistently](https://www.persistently.us/hubfs/persistently-site/44fdd3d58b.png) ![Persistently](https://www.persistently.us/hubfs/persistently-site/66aed6c5bc.png) Home Why Management by Design How It Works About Us Book a Discovery Call Home Why MBD How It Works About Contact Legal # Terms and Conditions Last updated: November 4, 2026 These Terms and Conditions ("Agreement") are entered into by and between Persistently, LLC, a Massachusetts limited liability company ("Persistently"), and the client identified on Schedule A (the "Client") as of the last date set forth in the signature lines below (the "Effective Date"). For purposes of this Agreement, "Schedule A" refers to and incorporates the proposal, statement of work, or order form provided by Persistently and accepted by the Client. ## 1. Definitions ### 1.1 Software "Software" means any proprietary software as a service (SaaS) platform or digital tool provided by Persistently under Schedule A, including all updates, enhancements, and documentation made available to Client during the Term. ### 1.2 Services "Services" means the management consulting services provided by Persistently as outlined in Schedule A, which may include the Management by Design program, management system design, workshops and facilitation, development of a management and leadership handbook, coaching, advisory services, and any implementation, support, or training for the Software. ### 1.3 Deliverables "Deliverables" means the written materials that Persistently prepares specifically for Client and delivers to Client as part of the Services, as identified in Schedule A (for example, Client's Management & Leadership Handbook). ### 1.4 Persistently Materials "Persistently Materials" means Persistently's pre-existing and independently developed intellectual property, including the Management by Design methodology, frameworks, models, processes, assessments, templates, tools, training materials, know-how, and the Software, together with all improvements, modifications, and derivative works of any of them, whether created before or during the Term. ### 1.5 Authorized Users "Authorized Users" means employees, contractors, or agents of Client who are authorized by Client to access and use the Software or participate in the Services in accordance with this Agreement. ### 1.6 Client Data "Client Data" means any data, content, or information submitted by Client or its Authorized Users to Persistently or to the Software, including employee information, organizational data, survey, assessment, and feedback responses, and any other materials uploaded to the platform. ## 2. Services ### 2.1 Performance of Services Persistently will perform the Services described in Schedule A. Any change to the scope, schedule, or fees of the Services must be agreed in writing (email is sufficient) by both parties. ### 2.2 Client Cooperation Client shall provide timely access to its leaders, managers, personnel, information, and facilities as reasonably required for Persistently to perform the Services, and shall designate a primary point of contact. Persistently is not responsible for delays or deficiencies caused by Client's failure to do so. ### 2.3 Scheduling Workshops, sessions, and meetings will be scheduled by mutual agreement. Any rescheduling or cancellation terms shall be as set forth in Schedule A. ### 2.4 Client Decisions Persistently provides recommendations, frameworks, facilitation, and coaching. Client retains sole responsibility for its management, personnel, and business decisions and for implementing the Services within its organization. The Services do not constitute legal, employment law, human resources compliance, tax, accounting, or investment advice. ## 3. License Grant This Section 3 applies only if Schedule A includes access to the Software. ### 3.1 Grant of License Persistently grants Client a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Software during the Term solely for Client's internal business operations, subject to the terms and conditions of this Agreement. ### 3.2 Restrictions Client shall not, and shall ensure that Authorized Users do not: - Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, algorithms, or underlying structure of the Software; - Modify, adapt, translate, or create derivative works based on the Software or the Persistently Materials, except as expressly permitted in Section 7.2; - Sublicense, resell, rent, lease, transfer, or otherwise make the Software available to any third party; - Use the Software or the Persistently Materials to develop a competing product or service; - Remove or alter any proprietary notices, labels, or marks on the Software; - Use the Software in any manner that violates applicable laws or regulations. ## 4. Fees and Payment ### 4.1 Fees Client shall pay Persistently the fees set forth in the applicable proposal, statement of work, subscription order, or invoice attached as Schedule A. All fees are stated in U.S. dollars. ### 4.2 Payment Terms Software subscription fees are due and payable in advance on a monthly basis, and fees for Services are due as set forth in Schedule A, unless otherwise agreed in writing. Persistently reserves the right to suspend the Services and access to the Software if any payment is more than fifteen (15) days past due. ### 4.3 Expenses Unless otherwise stated in Schedule A, Client shall reimburse Persistently for reasonable, pre-approved travel and out-of-pocket expenses incurred in performing the Services. ### 4.4 Non-Refundable Except as expressly stated in this Agreement or required by applicable law, all fees are non-refundable. Persistently does not provide refunds or credits for partial months of service, unused subscription periods, or unused Services. ### 4.5 Taxes Client is responsible for all applicable sales, use, value-added, or similar taxes arising from the use of the Software or Services, excluding taxes on Persistently's income. ## 5. Client Obligations ### 5.1 General Obligations Client shall: - Ensure that all Authorized Users comply with the terms of this Agreement; - Be solely responsible for the accuracy, quality, legality, and appropriateness of all Client Data; - Maintain the confidentiality of login credentials and promptly notify Persistently of any unauthorized access or security breach; - Use the Software and Services in accordance with all applicable local, state, and federal laws and regulations; - Obtain and maintain any necessary consents from, and provide any necessary notices to, employees and other individuals whose data is submitted to Persistently or the Software. ### 5.2 Prohibited Uses Client shall not use the Software or Services to, and shall ensure that Authorized Users do not: - Infringe upon, misappropriate, or violate any third party's intellectual property, privacy, or other legal rights; - Upload, transmit, or store any data that is unlawful, harmful, defamatory, or offensive; - Distribute viruses, malware, or other harmful code; - Attempt to gain unauthorized access to any part of the Software, Persistently's systems, or data of other clients; - Engage in any fraudulent, deceptive, or illegal conduct. ### 5.3 Automated Access and Data Extraction Client shall ensure that Authorized Users access and use the Software only through the standard user interfaces provided by Persistently, in a manner consistent with ordinary interactive use. Except through export or reporting features that Persistently has specifically built into the Software for that purpose, Client shall not, and shall ensure that Authorized Users do not: (a) use any bot, script, scraper, crawler, browser automation tool, AI agent, or other automated or semi-automated means to access, query, extract, copy, or compile Client Data or other content from the Software; (b) download, extract, or reproduce Client Data or other Software content other than through the export or reporting features Persistently provides; (c) circumvent, probe, or attempt to determine the configuration of any rate limit, access control, or other technical measure intended to restrict automated or bulk access; or (d) access the Software through automated means at a volume, frequency, or pattern inconsistent with normal human use. This restriction applies regardless of whether the Authorized User accessing the Software is otherwise properly authorized. Authorization to use the Software for its intended purpose does not authorize automated or bulk extraction of Client Data or other Software content beyond what Persistently's own export and reporting features provide. Client acknowledges that a violation of this Section 5.3 may cause Persistently and its other clients irreparable harm for which monetary damages alone would be an inadequate remedy, and that Persistently shall be entitled to seek injunctive or other equitable relief to prevent or stop such violation, without the necessity of posting a bond, in addition to any other remedies available at law or under this Agreement. ## 6. Term and Termination ### 6.1 Term This Agreement shall commence on the Effective Date and continue until all Services under Schedule A have been completed and all Software subscriptions have expired or been terminated (the "Term"). Services shall be performed for the period, or through completion of the scope, set forth in Schedule A. Software subscriptions shall continue for the initial subscription period set forth in Schedule A (typically twelve (12) months) and will then automatically renew for successive one (1) month periods on a month-to-month basis, unless either party provides at least thirty (30) days' prior written notice of non-renewal before the end of the then-current period. ### 6.2 Termination for Cause Either party may terminate this Agreement for cause if: (a) the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice describing the breach in reasonable detail; or (b) the other party becomes insolvent, makes an assignment for the benefit of creditors, or is subject to bankruptcy or similar proceedings. In addition to the foregoing, if Persistently reasonably believes that a violation of Section 5.3 is occurring or has occurred, Persistently may immediately suspend Client's or any Authorized User's access to the Software pending investigation, without prior notice and without regard to the cure period set forth above. Persistently will notify Client of such suspension and the basis for it as promptly as reasonably practicable. If the investigation confirms a violation, Persistently may terminate this Agreement for cause pursuant to this Section 6.2, and Client shall not be entitled to a cure period with respect to a violation of Section 5.3. ### 6.3 Effect of Termination Upon expiration or termination of this Agreement for any reason: - Client's right to access and use the Software shall immediately cease; - All outstanding fees, including fees for Services performed and expenses incurred through the date of termination, shall become immediately due and payable; - Each party shall promptly return or destroy the other party's confidential information, except that Client may retain Deliverables for which it has paid in full; - Persistently will retain Client Data for thirty (30) days following termination, after which it may be permanently deleted. Client may request a data export during this period. ### 6.4 Survival The following sections shall survive termination of this Agreement: Sections 1, 2.4, 5.2, 5.3, 6.3, 7, 8, 9, 10, 11, 12, and 13. ## 7. Proprietary Rights ### 7.1 Persistently Ownership Persistently retains all right, title, and interest in and to the Persistently Materials, the Software, the Services, and all related intellectual property rights, including all updates, modifications, enhancements, and derivative works thereof. No rights are granted to Client except as expressly set forth in this Agreement. ### 7.2 Deliverables Upon Persistently's receipt of payment in full for the applicable Services, Client will own the Deliverables, excluding any Persistently Materials incorporated in them. To the extent Persistently Materials are incorporated in a Deliverable, Persistently grants Client a perpetual, non-exclusive, royalty-free, non-transferable (except in connection with a permitted assignment of this Agreement) license to use, copy, and modify those Persistently Materials solely as part of that Deliverable and solely for Client's internal business purposes. Client shall not sell, license, or otherwise commercialize the Persistently Materials or use them to provide services to any third party. ### 7.3 Client Ownership Client retains all right, title, and interest in and to Client Data. Client grants Persistently a limited, non-exclusive license to access and use Client Data solely as necessary to provide the Software and Services under this Agreement. ### 7.4 Aggregated Data Persistently may compile and use aggregated and de-identified data derived from its provision of the Software and Services to operate, improve, and develop its offerings, provided that such data does not identify Client, any Authorized User, or any individual. ### 7.5 Feedback If Client provides Persistently with suggestions, ideas, or feedback regarding the Software or Services ("Feedback"), Persistently may use such Feedback without restriction or obligation to Client. ### 7.6 General Knowledge Nothing in this Agreement restricts Persistently from using the general skills, knowledge, and experience retained in unaided memory from performing the Services, provided Persistently does not disclose Client's Confidential Information. ## 8. Confidentiality ### 8.1 Obligations Each party agrees to: (a) hold the other party's Confidential Information in strict confidence; (b) not disclose Confidential Information to any third party without prior written consent, except to its employees, contractors, and professional advisors who need to know it and are bound by confidentiality obligations at least as protective as these; and (c) use Confidential Information solely as necessary to fulfill its obligations under this Agreement. "Confidential Information" means any non-public information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information, and includes Client Data and the Persistently Materials. ### 8.2 Exclusions Confidential Information does not include information that: (a) is or becomes publicly known through no fault of the receiving party; (b) was rightfully known to the receiving party before disclosure; (c) is independently developed by the receiving party without use of Confidential Information; or (d) is required to be disclosed by law or court order, provided the receiving party gives prompt written notice to the disclosing party. ### 8.3 Duration Confidentiality obligations shall survive for three (3) years following termination of this Agreement, except that obligations with respect to trade secrets shall survive for so long as the information remains a trade secret under applicable law. ## 9. Data Security and Privacy ### 9.1 Security Measures Persistently will implement and maintain reasonable and appropriate administrative, technical, and physical safeguards designed to protect Client Data from unauthorized access, use, disclosure, alteration, or destruction. ### 9.2 Data Use Persistently will not access, use, or disclose Client Data except: (a) as necessary to provide the Software and Services; (b) as directed or permitted by Client; (c) as permitted by Section 7.4; or (d) as required by applicable law. ### 9.3 Data Breach Notification In the event Persistently becomes aware of a confirmed security breach affecting Client Data, Persistently will notify Client without undue delay and, where feasible, within seventy-two (72) hours of discovery. Persistently will cooperate with Client in investigating and remediating the breach. ### 9.4 Privacy Persistently's collection and use of personal information in connection with the Software and Services is governed by the Privacy Policy, which is incorporated herein by reference. ## 10. Warranties and Disclaimers ### 10.1 Persistently Warranties Persistently warrants that: (a) it will provide the Services in a professional and workmanlike manner consistent with industry standards; (b) it has the right and authority to grant the licenses provided in this Agreement; and (c) the Software, if any, will perform materially in accordance with Persistently's documentation during the Term. ### 10.2 Client Warranties Client warrants that: (a) it has the authority to enter into this Agreement; (b) Client Data does not and will not infringe any third party's intellectual property or other rights; and (c) Client will use the Software and Services in compliance with all applicable laws. ### 10.3 No Guarantee of Results Client acknowledges that the results of the Services depend on factors outside Persistently's control, including the commitment of Client's leadership and the adoption of the management system by Client's managers. Persistently does not guarantee any particular business, financial, engagement, retention, or performance outcome. ### 10.4 Disclaimer EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1, THE SOFTWARE, SERVICES, AND DELIVERABLES ARE PROVIDED "AS IS" AND "AS AVAILABLE." PERSISTENTLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PERSISTENTLY DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF SECURITY VULNERABILITIES. ## 11. Limitation of Liability ### 11.1 Exclusion of Consequential Damages IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, BUSINESS, OR GOODWILL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ### 11.2 Liability Cap EXCEPT FOR LIABILITY ARISING FROM: (A) A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; (B) CLIENT'S BREACH OF SECTION 5.3 (AUTOMATED ACCESS AND DATA EXTRACTION); OR (C) CLIENT'S PAYMENT OBLIGATIONS, EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO PERSISTENTLY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED, HOWEVER, THAT FOR LIABILITY ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR FROM ITS INDEMNIFICATION OBLIGATIONS, SUCH LIMIT SHALL BE THREE (3) TIMES THAT AMOUNT. ## 12. Indemnification ### 12.1 By Persistently Persistently shall defend, indemnify, and hold harmless Client and its officers, directors, employees, and agents from any third-party claims, damages, and costs (including reasonable attorneys' fees) alleging that the Software or the Deliverables, as provided by Persistently and used in accordance with this Agreement, infringe any U.S. patent, copyright, trademark, or trade secret. Persistently shall have no obligation under this section to the extent such claims arise from: (a) Client's modification of the Software or Deliverables; (b) use of the Software or Deliverables in combination with other products, services, or content not provided by Persistently, including Client Data; or (c) Client's use of the Software or Deliverables in violation of this Agreement. ### 12.2 By Client Client shall defend, indemnify, and hold harmless Persistently and its officers, directors, employees, and agents from any third-party claims, damages, and costs (including reasonable attorneys' fees) arising from: (a) Client's use of the Software or Services in violation of this Agreement or applicable law; (b) Client Data, including any claim that Client Data infringes a third party's rights; (c) Client's management, personnel, or employment decisions, including those made in connection with the Services; or (d) Client's breach of any representation or warranty in this Agreement. ### 12.3 Indemnification Procedure The indemnified party shall: (a) promptly notify the indemnifying party in writing of any claim; (b) grant the indemnifying party sole control of the defense and settlement; and (c) provide reasonable cooperation. The indemnifying party shall not settle any claim in a manner that imposes liability on the indemnified party without its prior written consent. ## 13. Miscellaneous ### 13.1 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions. Any disputes arising under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Massachusetts. ### 13.2 Notices All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth in Schedule A by: (a) personal delivery; (b) nationally recognized overnight courier; (c) certified mail, return receipt requested; or (d) email with confirmed receipt. Notices are effective upon receipt. ### 13.3 Entire Agreement This Agreement, together with Schedule A and the Privacy Policy, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral. If Client and Persistently have executed a separate written agreement governing the same Services or Software, that separate agreement shall control to the extent of any conflict. ### 13.4 Amendments No amendment or modification to this Agreement shall be binding unless made in writing and signed by authorized representatives of both parties. Persistently reserves the right to update the Privacy Policy with reasonable notice to Client. ### 13.5 Waiver No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. ### 13.6 Severability If any provision of this Agreement is found to be unenforceable, the remaining provisions shall continue in full force and effect, and the unenforceable provision shall be modified to the minimum extent necessary to make it enforceable. ### 13.7 Assignment Client may not assign or transfer this Agreement or any rights hereunder without Persistently's prior written consent. Persistently may assign this Agreement to an affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets or of the business line to which this Agreement relates. Any purported assignment in violation of this section is void. ### 13.8 Subcontractors Persistently may engage qualified subcontractors to perform portions of the Services, provided that Persistently remains responsible for their performance and they are bound by confidentiality obligations consistent with this Agreement. ### 13.9 Force Majeure Neither party shall be liable for delays or failures in performance (other than payment obligations) resulting from circumstances beyond that party's reasonable control, including natural disasters, acts of government, pandemics, or failures of third-party infrastructure. ### 13.10 Relationship of the Parties The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, franchise, or employment relationship between the parties. ### 13.11 SMS Communications Persistently may send transactional SMS messages to users who have opted in. 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