Terms of Engagement

Updated: June 22, 2015

Thank you for selecting Laughing Lemon Pie, LLC (“Consultant”) to provide written content and related services for you or your company (“Client”) as described in one or more statements of work.  Printed copies or PDFs of these Terms of Engagement are available upon request.

By confirming any Statement of Work (orally or in writing) or otherwise requesting services from Consultant you accept and are bound by these Terms of Engagement. If you do not wish to be bound by these Terms of Engagement, you must notify Consultant immediately and request that all services provided by Consultant be discontinued.

THESE TERMS OF ENGAGEMENT SHALL APPLY UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH CONSULTANT, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN.

1. Services.  Consultant shall provide Client with written content and related services (“Services”) as described in one or more Statements of Work, in substantially the form attached as Schedule A (“Statement of Work” or “SOW”).  No Services shall be provided by virtue of this Agreement alone but shall be provided in accordance with the applicable Statement of Work. If there is a discrepancy between the Statement of Work and this Agreement, the Statement of Work shall control.  As appropriate, Statements of Work will describe the work to be done, results to be achieved, the cost, the start date, the designated employees or subcontractors provided, and the criteria for completion.

Consultant may delegate any work to be performed under this Agreement to a subcontractor as designated on the applicable Statement of Work accepted by Client. Consultant remains responsible for all services and functions performed by its subcontractors to the same extent as if such services and functions were performed by employees of Consultant, and for purposes of this Agreement such work shall be deemed work performed by Consultant.

 

2. Fees and Expenses.  Client shall pay Consultant for Services provided under a Statement of Work in accordance with any one or all of the following: (a) at an individual rate per hour worked per individual furnished by Consultant; (b) at a fixed fee per task performed; or (c) by any other compensation agreed to by Client and Consultant, as set forth in such Statement of Work.

If there is a change in the Statement of Work, or any Services contained therein, due to changes in Client’s requirements which requires time or expense charges by Consultant in excess of what was contemplated in connection with the preparation of the Services and price quotations in the Statement of Work, Consultant shall notify Client in writing of the fee for such change.  If Client authorizes in writing such change and fee, there shall be added to the amount listed for such Statement of Work the amount of the fee for such change.  

Client shall reimburse Consultant for all reasonable expenses incurred in connection with Services such as licensing images, printing, or mailing costs (“Reasonable Expenses”), which are approved by Client in writing.

Client shall also pay as additional charges under this Agreement amounts equal to any taxes, however designated, levied, or based on this Agreement, or on Services provided hereunder, including: (a) state or local sales; and (b) use or service taxes, if applicable, or amounts in lieu thereof paid or payable by Consultant in respect of the foregoing excluding any taxes based upon Consultant’s net or gross income.

Consultant shall submit invoices in accordance with the payment schedules set forth in the Statement of Work for the Services and Reasonable Expenses incurred under a Statement of Work during the preceding monthly period.  The invoices will indicate work performed and applicable expenses, if any. Client shall make payment to Consultant upon receipt of the applicable invoice.  All overdue payments shall bear interest at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less.

3. Confidential Information.  The parties acknowledge that in the course of performing their responsibilities under this Agreement, they each may be exposed to or acquire information that is proprietary to or confidential to the other party.  The parties agree to hold such information in confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever, without the express written permission of the other party, other than for the performance of obligations hereunder or exercise of its permitted rights hereunder.  The parties agree to advise each of their employees, subcontractors, agents and representatives of their obligations and require them to keep such information confidential.  All confidential and proprietary information described herein (including without limitation financial information, business plans, customer information, and any deliverables provided hereunder) are hereinafter collectively referred to as “Confidential Information.”  The parties shall use reasonable efforts to assist each other in identifying and preventing any unauthorized use or disclosure of any Confidential Information.  Without limiting the foregoing, the parties shall use reasonable efforts to advise each other immediately in the event that either learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement, and will reasonably cooperate in seeking injunctive relief against any such person.  

Notwithstanding the obligations set forth in the preceding paragraph, the confidentiality obligations of the parties shall not extend to information that: (a) is, as of the time of its disclosure or thereafter becomes, available to the public through no fault of the receiving party; (b) was rightfully known to the receiving party as of the time of its disclosure; (c) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party; (d) is subsequently rightfully learned from a third party not under a confidentiality obligation to the providing party; or (e) is required to be disclosed pursuant to a subpoena, court order, or government authority, whereupon the disclosing party shall provide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.

4. Ownership of Work.  All work product excluding Consultant’s pre-existing works or third party works (“Work Product”) as designated in the applicable Statement of Work on Schedule A is deemed to be “works made for hire” and as such, any right, title and interest in any Work Product shall vest in the Client.  In the event that any of Consultant’s pre-existing works are incorporated into the Work Product delivered to the Client under this Agreement, Consultant grants to the Client an unrestricted, royalty-free, fully paid-up, irrevocable, perpetual, transferable, worldwide license, with the right to sublicense, to copy, access, create and use derivative works or improvements of, reduce to practice and manufacture, make, use, sell, offer for sale, distribute, and export such works.  Consultant hereby waives any and all moral rights, including any right to identification of authorship, rights of approval of modifications, or limitation on subsequent modification that Consultant has or may have in the Work Product.  Notwithstanding the foregoing, Consultant shall have the right to reuse any or all of the reusable materials that Consultant may develop for Client during the term of this Agreement (“Reusable Materials”) as designated in the applicable Statement of Work on Schedule A and Client hereby grants to Consultant an unrestricted, royalty-free, fully paid-up, irrevocable, perpetual, transferable, worldwide license, with the right to sublicense, to copy, access, create and use derivative works or improvements of, reduce to practice and manufacture, make, use, sell, offer for sale, distribute, and export such Reusable Materials.  

5. Solicitation of Employment.  During the term of this Agreement and continuing for a period of one year thereafter, Client agrees not to solicit or cause to be solicited the employment of or hire any employee or contractor of Consultant without written authorization by Consultant.  During the term of this Agreement and continuing for a period of one year thereafter, Consultant agrees not to solicit or cause to be solicited the employment of or hire any employee or contractor of Client without written authorization by Client.  The term “solicit or cause to be solicited the employment of or hire” shall be deemed not to include general solicitations of employment not specifically directed towards employees or contractors of the Consultant or Client, as the case may be, or hiring which results from such general solicitation.

6. Term and Termination.

(a)   The term of this Agreement will commence on the Effective Date and will continue until for the Term as specified in the applicable Statement of Work (such period, as it may be extended, being referred to as the “Initial Period”), unless sooner terminated in accordance with the provisions of Sections 6(b) or 6(c) below.  If the term of any Statement of Work extends beyond the term of this Agreement, this Agreement will remain in effect with respect to that Statement of Work until the date on which such Statement of Work expires or is terminated.   

 

(b) Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party. In the event of such termination, Consultant shall be entitled to payment hereunder and for expenses paid or incurred prior to the effective date of termination.  If Client terminates this Agreement, Client will need to pay all fees and expenses (without prorating) through the last day Client provides work or the 30th day after notice is provided, whichever is later.  If Consultant terminates this Agreement, Consultant will provide a prorated refund of any overages of any monthly fees.

(c) Either party may terminate this Agreement or a Statement of Work immediately upon written notice if the other party (i) ceases doing business and its business is not continued by another corporation or entity which has agreed to assume such party’s obligations; (ii) files for or becomes a party to any involuntary bankruptcy, receivership or similar proceeding, and such proceeding is not dismissed within 45 calendar days after filing; (iii) makes an assignment for the benefit of creditors.  

(d) In the event of termination, Client shall pay Consultant for all Services rendered and expenses incurred by Consultant prior to the date of termination of this Agreement or the applicable Statement of Work, as the case may be.  Termination of this Agreement or a Statement of Work shall in no way relieve either party of its duties or obligations incurred pursuant to this Agreement or Statement of Work prior to termination thereof.  

(e) The provisions of Paragraphs 3 through 21 shall survive any termination of this Agreement or any Statement of Work.

7. Warranties.  Consultant warrants that the Services provided hereunder will be performed in a good and workmanlike manner in the estimated and projected time specified (except for delays beyond Consultant’s control or delays caused by Client).  EXCEPT AS PROVIDED IN THIS SECTION 7 ABOVE, THE SERVICES ARE PROVIDED “AS IS” AND THE WARRANTIES STATED HEREIN SHALL BE IN LIEU OF ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESSED OR IMPLIED, ORAL OR WRITTEN) INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INFORMATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT CONSULTANT KNOWS OR HAS REASON TO KNOW OF SUCH PURPOSE), WHETHER ARISING BY LAW, CUSTOM, USAGE IN THE TRADE OR BY COURSE OF DEALING. IN ADDITION, CONSULTANT EXPRESSLY DISCLAIMS ANY WARRANTIES TO ANY PERSON OTHER THAN CLIENT.

8. Notices.  Notices hereunder shall be deemed properly given if in writing and given by personal delivery, confirmed facsimile or electronic mail, or certified mail addressed to the parties at their addresses set forth above or any substitute address designated by the parties and established after notice, and shall be deemed effective upon confirmed receipt in the case of personal delivery, receipt or facsimile, or three (3) business days after mailing in the case of certified mail.

9. Limitation of Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CONSULTANT’S LIABILITY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED IN THE AGGREGATE TO THE FEES PAID BY CLIENT TO CONSULTANT FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY.

10. Third Party Exclusions.  Consultant will not be held responsible for non-performance issues which result from third-party software or hardware malfunction or defect; incorrect information or procedures provided by Client or Client’s vendor; feature or functionality deficiencies in product or solution purchased by Client from third party; changes performed to Work Product by Client or third party authorized by Client to make changes; or defects which are outside the reasonable control of Consultant.

11. Marketing. Unless the Work Product contains Client’s Confidential Information, Consultant shall have the right to show all Work Product as a sample of Consultant’s work.  In addition, Client acknowledges and agrees that Consultant may identify Client on a list of clients published on its website or other marketing materials and include Client’s email address on the distribution list for Consultant’s newsletter.

12. No Waiver.  Any failure by either party hereto to enforce at any time any term or condition under this Agreement shall not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.

13. Entire Agreement.  This Agreement, the License and the Statements of Work constitute the entire Agreement between Consultant and Client; and it shall not be amended, altered, or changed except by a written agreement signed by the parties hereto.

14. Titles.  The titles to the paragraphs of this Agreement are solely for the convenience of the parties, and are not an aid in the interpretation of this Agreement.

15. Governing Law.  This Agreement is deemed to be made under and shall be construed according to the laws of the State of Colorado, United States without giving effect to applicable conflict of laws principles.

16. Independent Contractors.  The relationship created between the parties hereto is that of independent contractors, and neither party nor any of its employees, subcontractors, customers or agents shall be deemed to be representatives, agents or employees of the other party for any purpose whatsoever, nor shall they or any of them have any authority or right to assume or create any obligation of any kind or nature, express or implied, on behalf of the other party, nor to accept service of any legal process of any kind addressed to or intended for the other party.

17. Force Majeure.  Neither party shall be liable for any delays or failures in performance due to circumstances beyond its control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, common carrier interruptions, breakdown in facilities and government requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

18. Assignment.  This Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors and permitted assigns.  This Agreement may not be assigned or transferred, by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however, either party may assign this Agreement to a subsidiary or affiliate or a successor in interest in case of a merger or acquisition of such party or in case of a transfer of all or substantially all of its assets, or the assets of a major division, to another party.

19. Dispute Resolution.  If any dispute arises between the parties pertaining to this Agreement (excepting only any cause of action giving rise to a claim for equitable relief), which the parties are unable to resolve amicably, such dispute shall be submitted to arbitration before a single arbitrator selected in accordance with the then-prevailing Rules of Commercial Arbitration of the American Arbitration Association.  The arbitrator shall not contravene or vary in any respect any of the terms or provisions of this Agreement.  The award of the arbitrator shall be final and binding upon the parties, and judgment upon any award rendered therein may be entered and enforced in any court of competent jurisdiction, including the Colorado State Court. Neither this arbitration provision nor a pending arbitration shall prevent either party from obtaining injunctive relief for any matter at any time.  In any arbitration or action for equitable relief arising in connection with this Agreement, the prevailing party may, in the discretion of the arbitrator, judge, or other authority (as the case may be), be entitled to recover from the other party its costs incurred in such action, including reasonable attorneys fees.

20. Severability.  If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions shall continue in full force and effect and such term, provision, covenant or condition shall thereafter be construed such that it is valid and enforceable and gives effect to the intent of the parties hereto.

21. Execution.  This Agreement or any SOW may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.  This Agreement or any SOW may be delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.