Terms of Service
Last Updated: January 22, 2024
These Terms of Service (“Terms”) are between THE LANGSTON CO., a Colorado limited liability company (“Langston”) and the party executing a project proposal, statement of work, or purchase order (each, an “SOW”) that references these Terms (“Client”) and governs the terms under which Langston will provide the Services (as defined below) to Client. These Terms, together with any SOWs, are referred to herein as the “Agreement.” This Agreement is effective as of the date Client signs the initial SOW (the “Effective Date”).
1. SERVICES.
1.1 Statements of Work. Langston shall perform the services described in one or more SOWs (“Services”). SOWs will define the Services to be performed. SOWs are only binding on Langston if signed by an authorized representative of Langston. Each SOW is incorporated by reference into this Agreement.
1.2 Change Orders; Conflicts. If either party requires a material change to a SOW, such party will provide a written change order to the other for approval, specifying the change requested (each a “Change Order”). Each party acknowledges 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 Change Order will be governed by these Terms.
1.3 Client Assistance. Client acknowledges that in order to perform the Services, Langston requires access to certain materials, content, data, information, and other intellectual property of Client (collectively, “Client Materials”). Client shall provide Langston with the Client Materials along with any assistance, access, answers, decisions, and personnel resources that Langston reasonably requests in order for Langston to perform the Services. Client acknowledges that Langston’s ability to successfully perform the Services is contingent upon Langston’s receipt from Client of such Client Materials and such assistance, access, answers, decisions, and personnel resources. Accordingly, Langston will not be deemed in breach of this Agreement and will have no liability to Client for failure to perform, or any other deficiencies in, the Services or for damages resulting from: (a) Client’s failure to provide any Client Materials or any such assistance, access, answers, decisions, and personnel resources; (b) the acts or omissions of Client, its agents, or employees; or (c) performance of the Services in accordance with Client’s instructions.
2. FEES AND PAYMENT.
2.1 Fees. Client shall pay Langston all fees set forth in the applicable SOW (collectively, the “Fees”), in accordance with this Section 2. Except as otherwise expressly provided for in this Agreement, all Fees due hereunder are non-refundable. Langston 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 Langston for reasonable pre-approved travel, lodging, and meal expenses, and such other costs and expenses that Langston incurs in connection with the performance of Services.
2.3 Payment Terms. Except as otherwise set forth in an SOW, Langston 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. If Client does not make any payments when due under this Agreement, Client shall: (a) pay Langston interest on such unpaid amounts at a rate equal to the lesser of 1.5% per month and the maximum rate permitted by applicable law, from the due date until paid; and (b) reimburse Langston for reasonable costs Langston incurs (including legal fees) in collecting any late payments. All fees due hereunder are exclusive of, and Client shall pay, all sales, use and other taxes and similar charges arising from the payment of any Fees and expenses under this Agreement, except for taxes based upon Langston’s net income.
3. PROPRIETARY RIGHTS.
3.1 Client Materials. As between the parties, Client owns all right, title and interest in and to the Client Materials. Client grants to Langston and its authorized representatives and contractors, during the Term (as defined below) a limited, non-exclusive, non-transferable (except as permitted in Section 11.1) right and license to use the Client Materials solely as necessary to perform its obligations under this Agreement.
3.2 Assignment of Deliverables. The parties acknowledge and agree that Client will own all Deliverables, and, subject to Client’s payment of all applicable Fees, Langston hereby assigns to Client all right, title, and interest worldwide in and to such Deliverables, including all intellectual property rights therein, but excluding Langston Property (as defined below), which is licensed to Client by Langston pursuant to Section 3.4. “Deliverable” means any item created identified as a “Deliverable” in the applicable SOW and delivered to Client by or on behalf of Langston under this Agreement, including Work Product included in such Deliverable but excluding any Survey Data, which rights are outlined in Section 3.6. “Work Product” means all (a) content, designs, ideas, know-how, and other intellectual property that Langston makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Services; and (b) copyrights, trademarks, service marks, trade secrets, patents, patent applications and other proprietary rights related to each and any of the foregoing.
3.3 Langston Property. Notwithstanding anything to the contrary in this Agreement, as between the parties, Langston owns all: (a) software, tools, routines, programs, content, data, designs, document forms, technology, ideas, know-how, processes, techniques, formulas, analyses, strategies, market intelligence, reports, concepts, discoveries, inventions, and other intellectual property that Langston uses, makes, develops, or reduces to practice, whether alone or jointly with others or otherwise obtains: (i) prior to this Agreement; (ii) independently or outside the scope of this Agreement; or (iii) that has applicability to Langston’s provision of services to its clients generally; (b) all enhancements, modifications, improvements and derivative works of each and any of the foregoing; and (c) all copyrights, trademarks, service marks, trade secrets, patents, patent applications, and other proprietary rights related to each and any of the foregoing (collectively, the “Langston Property”).
3.4 License of Langston Property. Subject to the terms and conditions of this Agreement, Langston hereby grants to Client a non-exclusive, perpetual, worldwide, right and license, with the right to sublicense, under all of Langston’s intellectual property rights, to all Langston Property incorporated into any Deliverable or necessary for Client to fully utilize any Deliverable, to use, reproduce, distribute, publicly display, publicly perform, and create derivative works of such Langston Property solely to the extent reasonably required in connection with Client’s use of the Deliverable on the condition that Client does not: (a) reproduce, distribute, or use Langston Property other than as components of the Deliverable; or (b) sublicense any rights in Langston Property other than in support of Client’s internal business purposes.
3.5 Reservation of Rights. Langston reserves all rights not expressly granted to Client under this Agreement.
3.6 Survey Data Rights.
(a) Definitions:
(i) “Client Sourced Research Participants” means research participants who are directly sourced by Client to participate in a Survey.
(ii) “Langston Sourced Research Participants” means research participants who are sourced by Langston or its third-party service providers to participate in a Survey.
(iii) “Surveys” means authorized research activities as set forth in an applicable SOW whereby either Langston Sourced Research Participants or Client Sourced Research Participants respond to a set of questions administered by Langston or its third-party service providers.
(iv) “Survey Data” means all content, data, and information obtained from Survey responses.
(v) “Usage Data” means any content, data, or information that is collected or produced in connection with Client’s use of the Client portal for the Services that does not identify Client, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Client portal for the Services.
(b) Client Sourced Research Participants. Langston shall not use Survey Data from any Client Sourced Research Participants for any purpose other than solely as necessary to perform its obligations under this Agreement.
(c) Langston Sourced Research Participants. Langston may use Survey Data from Langston Sourced Research Participants in connection with its performance of its obligations in this Agreement and for benchmarking purposes, improving modules and research, providing general information about modules and research, and to provide services to its customers generally on the condition that such Survey Data does not identify Customer or the Langston Sourced Research Participants.
(d) Usage Data. Langston retains ownership of all right, title, and interest in and to the Usage Data. Langston may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve Langston’s services, systems, and algorithms.
4. WARRANTY; DISCLAIMER.
4.1 Warranty. Langston warrants to Client that the Services will be performed materially in accordance with the requirements of these Terms and the applicable SOW. If Client notifies Langston of a breach of the foregoing warranty (specifying the breach in reasonable detail) within 30 days after Langston performs the applicable Services, Langston shall, at its own expense and as its sole obligation and Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section 4.1, use commercially reasonable efforts to re-perform the Services which gave rise to the breach or, if Langston cannot re-perform such defective Services within 60 days after receiving notice of the breach, Client may terminate this Agreement upon written notice to Langston and Langston shall refund to Client the Fees paid for such non-conforming Services.
4.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 4.1, THE SERVICES, DELIVERABLES, AND ANY LANGSTON PROPERTY ARE PROVIDED “AS IS,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. LANGSTON 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. CLIENT ACKNOWLEDGES THAT THE SERVICES, DELIVERABLES, AND LANGSTON PROPERTY ARE BASED ON OPINION DATA AND MAY NOT REFLECT REAL WORLD MARKET ATTITUDES. ACCORDINGLY, LANGSTON MAKES NO WARRANTY REGARDING THE RESULTS OR SPECIFIC OUTCOMES THAT CLIENT MAY OBTAIN IN CONNECTION WITH THE SERVICES, DELIVERABLES, AND LANGSTON PROPERTY AND CLIENT’S USE THEREOF IS AT CLIENT’S SOLE RISK.
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 Langston Property will be considered Langston’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 Langston will be considered Client’s Confidential Information, notwithstanding any failure to mark or identify it as such.
5.2 Protection. Recipient shall 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 and contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s hereunder. Recipient will be liable to the Discloser for any of its employees’ and contractors’ acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 5. Recipient shall protect Confidential Information from unauthorized use, access, and 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 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. DATA PROTECTION. Langston and Client shall comply with the Data Processing Addendum in effect on the Effective Date located at https://www.thelangstonco.com/dpa-2024 (the “DPA”) with respect to the processing of any Customer Personal Data (as defined in the DPA).
7. TERM AND TERMINATION.
7.1 Term. This Agreement begins on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues until all SOWs have terminated (“Term”). Following expiration of this Agreement, the Term may be resumed by entering into a subsequent SOW.
7.2 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 or any uncompleted SOW or both by written notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach. Notwithstanding the foregoing, Langston may also terminate the Agreement and all uncompleted SOWs immediately upon written notice in the event Client fails to pay any amounts payable under a SOW within 10 days after receiving written notice from Langston that payment is past due. The termination or expiration of a single SOW will not cause the automatic termination of any other SOW.
7.3 Effect of Termination.
(a) Client understands and acknowledges that Langston 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 Langston’s uncured breach pursuant to Section 7.2(b), Client shall pay Langston all amounts payable under the applicable SOW, regardless of whether or not the applicable Services have been performed prior to such termination.
(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 Langston under this Agreement will be immediately due and payable.
(c) Sections 2, 3, 4.2, 5, 6, 7.3, 8, 9, 10, and 11 survive the expiration or termination of this Agreement for any reason.
8. INDEMNIFICATION.
8.1 Claims against Client. Langston shall defend any claim, suit, or action against Client brought by a third party to the extent that such claim, suit, or action is based on an allegation that any Deliverable infringes or misappropriates a United States patent or copyright of the third party (each, a “Client Claim”), and Langston shall indemnify and hold Client harmless, from and against damages, losses, liability, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Client Claim or those costs and damages agreed to in a monetary settlement of such Client Claim. The foregoing obligations are conditioned on Client: (a) notifying Langston promptly in writing of such Client Claim; (b) giving Langston sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Langston’s request and expense, assisting in such defense or settlement. If any Deliverable becomes, or in Langston’s opinion is likely to become, the subject of an infringement claim, Langston may, at its option, either: (i) procure for Client the right to continue using the Deliverable; (ii) replace or modify the Deliverable so that it becomes non-infringing; or (iii) accept return of the Deliverable and give Client a refund of the Fees paid by Customer for the Deliverable. Notwithstanding the foregoing, Langston will have no obligation under this Section or otherwise with respect to any infringement claim based upon: (v) Client Materials; (w) any instruction, designs, or specifications provided by Client to Langston; (x) any use of the Deliverable not in accordance with this Agreement or for purposes not intended by Langston; (y) any use of the Deliverable in combination with other products, reports, information, or data not supplied by Langston; or (z) any modification of the Deliverable by any person other than Langston. THIS SECTION 8.1 STATES LANGSTON’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR THIRD PARTY CLAIMS AND ACTIONS.
8.2 Claims against Langston. Client shall defend, any claim, suit, or action against Langston brought by a third party to the extent that such claim, suit, or action is based on any one or more of the following: (a) Langston’s use of any Customer Materials in accordance with this Agreement; (b) Langston’s use of any Survey Data from Client Sourced Research Participants in accordance with this Agreement; or (c) an allegation that any Client Material infringes or misappropriates a United States patent or copyright of the third party (each, “Langston Claim”), and Client shall indemnify and hold Langston harmless, from and against Losses that are specifically attributable to such Langston Claim or those costs and damages agreed to in a settlement of such Langston Claim. The foregoing obligations are conditioned on Langston: (i) promptly notifying Client in writing of such Langston Claim; (ii) giving Client sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at Client’s request and expense, assisting in such defense.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO ANY ONE OR MORE OF THE FOLLOWING: THIS AGREEMENT, THE SERVICES, OR DELIVERABLES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO ANY ONE OR MORE OF THE FOLLOWING: THIS AGREEMENT, THE SERVICES, OR DELIVERABLES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL FEES PAID TO LANGSTON BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS OF LIABILITY IN THIS SECTION 9 DO NOT APPLY TO LIABILITY ARISING FROM ANY ONE OR MORE OF THE FOLLOWING: (A) A PARTY’S BREACH OF SECTION 5; OR (B) A PARTY’S OBLIGATIONS UNDER SECTION 8.
10. NON-SOLICITATION. During the Term and for 12 months thereafter, each party shall not, directly or indirectly, solicit the employment or services of any employee of the other party, or encourage such employees to terminate or breach any employment, contractual, or other relationship with the other party. This prohibition does not prohibit a party from using a recruiting firm or placing an advertisement for a position that it may have available, even if an employee of the other party responds to such recruitment or advertisement and accepts the position, so long as the recruitment or advertisement is not specifically directed to that employee or consultant.
11. GENERAL.
11.1 Assignment. Neither party may assign 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 from the other party to any successor to its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment in violation of the foregoing will be null and void. Langston may use subcontractors, provided Langston is responsible for their acts and omissions to the extent any of such acts or omissions, if performed by Langston, would constitute a breach of, or otherwise give rise to liability to Langston under, this Agreement when they are performing for or on behalf of Langston.
11.2 Publicity. Notwithstanding anything to the contrary in Section 5, Client hereby consents to Langston’s use of Client’s name and trademarks: on Langston’s website, on Langston’s customer lists, and in Langston’s other sales and marketing efforts.
11.3 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.
11.4 Notices. To be effective, all notices, consents, and approvals under this Agreement must be delivered in writing by email to the other party and will be effective upon receipt. If to Langston, notices, consents, and approvals must be sent to Legal@Langston.com. If to Client, notices, consents, and approvals must be sent to the contact email address that Langston has on file for Client.
11.5 Governing Law & Venue. The laws of the State of Colorado govern this Agreement, the Services, and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Services.
11.6 Remedies. 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.
11.7 Independent Contractor. Langston acknowledges that it is an independent contractor, and neither Client nor Langston 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.
11.8 Compliance with Laws. Each party shall comply with all applicable laws, rules, and regulations, to which it is subject in connection with this Agreement.
11.9 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. To be effective, 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.
11.10 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 (unless such modification is not permitted by law, in which case such provision will be disregarded) and the remaining provisions of this Agreement will continue in full force and effect.
11.11 Entire Agreement. These Terms, together with the SOWs, constitute the final and 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. To the extent of any conflict between these Terms and any SOW, these Terms will govern unless the SOW specifically overrides these Terms. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.