Terms of Service
These Terms of Service (“Terms”) set forth terms under which THE LANGSTON CO., a Colorado limited liability company (“Company”) shall provide services to clients who have executed a project proposal, statement of work, or purchase order (a “SOW”) that references these Terms (“Client”). These Terms, collectively along with the SOW, are referred to herein as the “Agreement”.
1. SERVICES.
1.1 Statements of Work. Company shall perform the services described in one or more SOWs (“Services”). SOWs will define the Services to be performed and any specific reports or other items to be delivered by Company to Client (“Deliverables”). SOWs are only binding on Company if signed by an authorized representative of Company.
1.2 Change Orders; Conflicts. If either party requires a material change to the scope, frequency or volume of the Services in a SOW, such party will provide a written change order to the other for approval, specifying the change required (each a “Change Order”). Each party agrees that a Change Order may necessitate a change in the delivery schedule and fees due under the applicable SOW. No Change Order will be binding upon either party until it is signed by the authorized representatives of both parties. Each SOW and Change Order will be governed by these Terms. In the event of a conflict between these Terms and those of a SOW or Change Order, these Terms will control, unless specifically stated otherwise in the SOW or Change Order. If an additional SOW is to be executed, Client shall pay Company all fees due under the previous SOW prior to Company commencing work under the new SOW.
1.3 Client Assistance. Client shall provide Company with such resources, cooperation, assistance, data, material and other information as required for Company’s performance of the Services. Client acknowledges and agrees that Company’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Client of such data, material and other information, and Company is entitled to rely on the accuracy and completeness of such data, material and other information in performing the Services. Company shall have no liability for (a) deficiencies in the Services resulting from the acts or omissions of Client, its agents or employees, or the inaccuracy or incompleteness of data, material and other information provided by Client, or (b) performance of the Services in accordance with Client’s instructions.
2. FEES AND PAYMENT.
2.1 Fees. In consideration of the rights granted and Services and Deliverables provided under this Agreement, Client shall pay Company all fees, costs and expenses agreed upon in the applicable SOW, in accordance with this Section 2. All fees due hereunder are non-refundable. Company may increase the rates it charges for Services for the next calendar year by providing Client with at least 60 days written notice; provided that the agreed-upon rates for any particular SOW may not be increased unless agreed to by Client in writing.
2.2 Costs and Expenses. Client shall reimburse Company for reasonable pre-approved travel, lodging and meal expenses, and such other costs and expenses as Company may incur in connection with the performance of Services.
2.3 Payment Terms. Except as otherwise set forth herein or in a SOW, Company will invoice Client for amounts due under the SOW immediately upon execution of the SOW, and Client shall pay all amounts invoiced within 30 days after Client’s receipt of the applicable invoice. All payments must be made in U.S. dollars. Outstanding balances shall accrue interest at a rate equal to the lesser of 1.5% per month or the maximum rate permitted by applicable law, from due date until paid, plus Company’s reasonable costs of collection. All fees due hereunder are exclusive of, and Client shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon Company’s net income.
3. OWNERSHIP; LICENSE.
3.1 Client Data. As between the parties, Client owns all right, title and interest in and to the content, data and information provided to Company by Client under this Agreement (“Client Property”). Client grants to Company a limited, non-exclusive, non-transferable (except as permitted in Section 9.1) non-sublicenseable right and license to use the Client Property as necessary to perform its obligations in accordance with the terms of this Agreement.
3.2 Company Property. Except as expressly set forth in Section 3.1, as between the parties, Company owns all (a) all software, tools, routines, programs, data, designs, document forms, technology, ideas, know-how, processes, techniques, formulas, analyses, strategies, market intelligence, reports, concepts, discoveries, and inventions that Company makes, develops, or reduces to practice, whether alone or jointly with others or otherwise obtained by Company prior to, or independently of, this Agreement, (b) all data, information, video footage, music, images and other content incorporated within a Deliverable, (c) all enhancements, modifications, improvements and derivative works of each and any of the foregoing, and (d) all copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to each and any of the foregoing (collectively, the “Company Property”).
3.3 License to Deliverables. Subject to the terms of this Agreement and Client’s payment of all applicable fees, costs and expenses related to the applicable Deliverable. Company hereby grants to Client a non-exclusive, perpetual, worldwide, non-transferable, fully-paid right and license to use, copy, reproduce, display or distribute the Deliverable internally, and to third parties only as expressly authorized pursuant to the applicable SOW.
3.4 Restrictions on Usage of Deliverables. Client acknowledges and agrees that, notwithstanding Section 3.3, any Deliverables are intended for Client’s sole benefit and Company does not authorize any party other than Client to benefit from or rely on such Deliverables. Any such benefit or reliance by such other party shall be at its sole risk. Client shall have the unrestricted right to use the Deliverables, provided that Client shall not rely on or use the Deliverables for any purpose than the purpose set forth in the SOW and the Deliverables shall not be changed or modified without the prior written approval of Company. If Client releases the Deliverable to a third party other than as expressly permitted by the applicable SOW, or changes or uses the Deliverables other than for the purpose set forth in the SOW: (a) Client does so at its sole risk and discretion; (b) Company shall not be liable for any claims or damages resulting directly from the change, release, or any such third party's use of the Deliverable; and (c) Client shall indemnify, defend and hold Company harmless from any and all claims brought by a third party related to the release, change, or third-party use of the Deliverable.
3.5 General Know How; Aggregate Data. Nothing contained herein shall be construed as limiting Company’s rights to commercially use or market in the conduct of Company’s business general ideas, concepts, know-how, knowledge, market analysis, frameworks, techniques, tools, approaches, and methodologies or other residual values possessed or known to Company or learned or developed during the course of providing the Services, without obligation of any kind to Client. Notwithstanding anything in this Agreement to the contrary, Company may analyze Deliverables to create a de-identified and aggregated data set that does not individually identify Client (collectively, “Aggregated Data”). Company retains ownership of all right, title, and interest in and to Aggregated Data. Company may use Aggregated Data for any lawful purpose, including to improve, market, and provide the Company’s services.
4. WARRANTIES; DISCLAIMER.
4.1 Warranty. Company warrants to Client that the Services will be performed in accordance with the requirements of these Terms and the applicable SOW. Company shall, as its sole obligation and Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section4.1, re-perform the Services which gave rise to the breach or, if Company cannot re-perform such defective Services, Client may terminate this Agreement pursuant to Section 6.2 for Company’s breach; provided that Client shall notify Company in writing of the breach within 30 days after performance of the defective Services, specifying the breach in reasonable detail.
4.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 4.1 ABOVE, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. COMPANY DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL BE ACCURATE OR WILL MEET CLIENT’S REQUIREMENTS. CLIENT USES DELIVERABLES AT ITS OWN RISK, AND CLIENT SHALL USE ITS REASONABLE JUDGMENT WHEN ACTING ON DELIVERABLES.
4.3 Waiver. Client hereby releases, waives, and discharges Company, its parents, subsidiaries or other affiliates, officers, agents, employees, directors, assignees, and successors ("Releasees") from any and all liability, claims, demands, actions, and causes of action of any kind or nature arising out of or related to any loss or damage incurred by Client arising from Client’s use of or reliance on Deliverables, regardless of whether such loss is caused by the negligence of the Releasees and regardless of whether such liability arises in tort, contract, strict liability, or otherwise, and covenants not to sue the Releasees based on the same (collectively, “Released Claims”). Client shall indemnify, defend, and hold Releasees harmless from any loss, liability, damage, expense, or costs, including attorneys' fees and court costs, they may incur arising out of or related to Released Claims.
5. CONFIDENTIALITY.
5.1 Definition. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) relating to or disclosed in the course of the performance of this Agreement. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself. The Company Property shall be considered Company’s Confidential Information, notwithstanding any failure to mark or identify it as such. All non-public information related to Client’s business (including trade secrets, technical information, data, business forecasts and strategies, marketing plans, Client and supplier lists, personnel information, financial data, and proprietary information of third parties provided to Client in confidence) provided to Company shall be considered Client’s Confidential Information, notwithstanding any failure to mark or identify it as such.
5.2 Protection. During the Term and for three years after termination, Recipient will not use any Confidential Information of the Discloser for any purpose other than to perform obligations or exercise rights under this Agreement and will disclose Confidential Information only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are bound by use and confidentiality restrictions no less restrictive than Recipient’s hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
5.3 Exceptions. Recipient’s obligations under Section 5.2 above with respect to any Confidential Information of Discloser will terminate if and when Recipient can document that such information: (a) was already lawfully known to Recipient at the time of disclosure by Discloser; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of the Confidential Information. In addition, Recipient may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure in writing prior to making such disclosure and cooperates with Discloser, at Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6. TERM AND TERMINATION.
6.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated as set forth herein (“Term”).
6.2 Termination.
(a) Either party may terminate this Agreement at any time for convenience by providing at least 30 days’ prior written notice.
(b) Either party may terminate the Agreement by written notice in the event the other party is in material breach of any obligation under this Agreement, which default is incapable of cure or which, being capable of cure, has not been cured within 30 days after receipt of notice of such breach. Notwithstanding the foregoing, Company may also terminate the Agreement and all uncompleted Statements of Work immediately upon written notice in the event Client fails to pay any amounts payable under such SOW within 10 days after receiving written notice from Company that payment is past due.
6.3 Effect of Termination.
(a) Client understands and acknowledges that Company is making certain upfront investments, commitments and undertakings with regards to resources for the Services in reliance on performing the Services for Client as set forth in each SOW. Therefore, unless otherwise set forth in a particular SOW, if Client terminates this Agreement or any SOW other than for Company’s uncured breach pursuant to Section 6.2(b), Client shall pay Company all amounts then due and outstanding under the applicable SOW, even if such amounts have not yet been invoiced under the schedule laid out in the SOW.
(b) Upon the expiration or termination of this Agreement, (a) each party shall return the other’s Confidential Information in its possession or control, and (b) all amounts owed to Company under this Agreement will be immediately due and payable. If, upon any termination of this Agreement, Client has not paid Company all fees due for a particular Deliverable, the license to such Deliverable shall immediately terminate and Client shall promptly return to Company all copies of the Deliverables in its possession or control.
(c) Sections 3, 4.2, 5, 6.3, 7, 8 and 9 will survive the expiration or termination of this Agreement for any reason.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA, LOST PROFITS AND COSTS OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY SERVICES OR DELIVERABLES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES OR DELIVERABLES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE TO COMPANY UNDER THE APPLICABLE SOW. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 DO NOT APPLY TO LIABILITY ARISING FROM (A) CLIENT’S BREACH OF OR LIABILITY UNDER SECTION 3.4 OR (B) A PARTY’S BREACH OF SECTION 5.
8. NON-SOLICITATION. During the term of this Agreement and for 12 months after the termination or expiration of this Agreement, neither party will, directly or indirectly, solicit the employment or services of any employee or consultant of the other party, or encourage such employees or consultants to leave the other party. This prohibition shall not apply to any offers of employment which result from a general solicitation for employment, including without limitation, through the use of a recruitment firm, Internet, newspapers, magazines and radio.
9. GENERAL.
9.1 Assignment. Neither party may assign or transfer this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that a party may assign this Agreement without consent by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and shall not confer any rights or remedies upon any person or entity not a party hereto. Company may use subcontractors, provided Company is responsible for their performance.
9.2 Force Majeure. Except for any payment obligations, neither party shall be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement as a result of any cause which is beyond the reasonable control of such party.
9.3 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the signature page and will be effective upon receipt. Additionally, electronic mail and facsimile may not be used for providing legal notices but may be used to distribute routine communications and to obtain approvals and consents.
9.4 Governing Law & Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado without reference to its choice of law rules. Any party bringing a legal action or proceeding against the other party arising out of or relating to this Agreement, including to interpret or enforce any provision of this Agreement, shall bring the legal action or proceeding only in the state or federal courts for Denver, Colorado. Each party consents and submits to the exclusive jurisdiction and venue of those courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement. Each party irrevocably waives (a) any objection that party may have to the venue of any such proceeding or legal action brought in those courts, and (b) any defense of inconvenient forum for the maintenance of a proceeding or legal action brought in those courts.
9.5 Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Sections 3 or 5 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.
9.6 Independent Contractor. Company acknowledges that it is an independent contractor, and neither Client nor Company is intended to or should be construed to be an agent, partner, joint venture or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, and neither party may represent to anyone that it has a right to do so.
9.7 Compliance with Laws. Each party shall perform all of its obligations under this Agreement in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including, without limitation, those relating to privacy and data protection.
9.8 Waivers. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Any waiver must be in writing and signed by the party entitled to the benefit of the right being waived. Unless otherwise stated in the waiver, any waiver applies only to the specific circumstance for which the waiver is given and not to any subsequent circumstance involving the same or any other right.
9.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
9.10 Entire Agreement. These Terms, together with the SOW and any exhibits or attachments thereto, constitute the entire agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted.