These Terms of Service (“Terms”) are a legal agreement between you (“you,” “your,” or ”Client”) and Learned On LLC (“we,” “our,” “us,” or “Learned On LLC”). These Terms and the terms in your Statement of Work (“SOW”) or Proposal constitute the Agreement (“Agreement”) between you and us (“parties”).
In consideration of the promises and the payment to us, you and we agree to the following:
1. SCOPE OF SERVICES
Client hereby retains Company to provide the services further described in a Statement of Work (each a “SOW”) which shall be consecutively numbered SOW #1, SOW #2, etc., or signed Proposal.
2. CLIENT DUTIES
(a) Compensation: Fees for each Project will be set forth on the applicable SOW or Proposal.
Payment Schedule: The payment schedule for each Project shall be set forth on each SOW or Proposal.
(b) Information to be Provided by Client: Client agrees to provide all Client specific information and documentation that may be required by Company to effectively perform said responsibilities in connection with the performance of services.
(c) Expenses: Client agrees to reimburse Company for expenses incurred by Company solely on Client’s behalf, provided, however, that any single expense or related group of expenses must first be approved by Client in writing, otherwise, Client will have no obligation to pay such expense. Company agrees to provide Client with a monthly expense invoice, and Client agrees to make payment to Company within thirty (30) days from date of delivery of said expense invoice to Client.
This Agreement shall commence as of the Agreement Effective Date until terminated by either party pursuant to Section 4 below and each Project shall have the term set forth in the applicable SOW or Proposal until terminated by either party pursuant to Section 4 below.
Client may cancel this Agreement for any reason by providing a minimum of 15 days written notice to Company. Cancellation of this Agreement by Client will not extinguish Client’s obligation to pay the monthly [or project] fee specified in Paragraph 2(a) through the last day of performance or the 15th day after notice is provided, whichever comes later. In the event Client cancels this Agreement, Client will also remain obligated to pay all pre-approved expenses incurred by Company on Client’s behalf through the last day of performance or the 30th day after notice is provided, whichever comes later. Company may cancel this Agreement at any time for any reason by providing written notice to Client. In the event that Company cancels this Agreement, Company will provide a prorated refund of any overages of monthly fees paid minus any approved, unpaid expenses incurred on Client’s behalf.
5. NO GUARANTEES
Company cannot guarantee the outcome of the services described in the applicable SOW or Proposal and Company’s comments about the outcome are expressions of opinion only. Company makes no guarantees other than that the services described in the applicable SOW or Proposal shall be provided to Client in accordance with the terms of this agreement. Client acknowledges that Company cannot guarantee any results for the applicable SOW or Proposal as such outcomes are based on subjective factors that cannot be controlled by Company.
(a) Client Information: Any and all Client information and data of a confidential nature, including but not limited to any and all design, creative, marketing, sales, operating, performance, know how, business and process information (hereinafter referred to as “Confidential Information”), shall be treated by Company in the strictest confidence and not disclosed to third parties or used by Company for any purpose other than for providing Client with the services specified hereunder without Client’s express written consent. Confidential Information shall not include any information which (a) becomes available to the public through no breach of confidentiality by Company, (b) was in Company’s possession prior to receipt from the disclosure, (c) is received by Company independently from a third party free to disclose such information, or (d) is independently developed by Company without use of the Client’s Confidential Information. Upon request, Company hereto will promptly return or destroy all documents containing Confidential Information and delete all electronic records of or containing the
(b) Public Disclosure: Neither party may disclose the terms of this Agreement. Neither party shall make any formal or informal public statement, press release or other announcement regarding the existence or terms of this Agreement without the other party’s prior written approval.
(c) Non-Disparagement: Member shall, during and after the participation in and use of the Company’s services, refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding Company, or any of Company’s officers, directors, employees, personnel, agents, policies, services or products, other than to comply with law.
7. INDEPENDENT CONTRACTORS
(a) Independent Contractor Relationship: This Agreement shall not render Company an employee, partner, agent of or joint venturer with the Client for any purpose. Company is and will remain an independent contractor in its relationship to the Client. Company is or remains open to conducting similar tasks or activities for entities other than the Client and holds itself out to the public to be a separate business entity. Company shall retain sole and absolute discretion in the manner and means of carrying out the activities and responsibilities under this Agreement. Company shall be responsible to the ownership and management of the Client, but Company will not be required to follow or establish a regular or daily work schedule. Company will not rely solely on the equipment or offices of Client for completion of tasks and duties set forth pursuant to this Agreement. Any advice given to Company regarding services performed for the Client shall be considered a suggestion only, not an instruction. Client retains the right to inspect, stop or alter the work of Company to assure its conformity with this
Agreement and Client needs. Company and Client agree to conform to any and all IRS tests necessary to establish and demonstrate the independent contractor relationship between Client and Company.
(b) Taxes & Benefits: Company will be responsible for filing its own tax returns and to pay taxes in accordance with all provisions of applicable Federal and State law. Client shall not be responsible for withholding taxes with respect to Company’s compensation. Company shall have no claim against Client for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any
8. NO COMPETITION
Company will not, directly or indirectly, contact or perform services for the Client’s clients for a time period of one year after this Agreement ends unless Client provides written permission. Company shall not, directly or indirectly hire, solicit, or encourage to leave the Client’s employment, any employee, consultant or contractor of the Client or hire any such employee, consultant, or contractor who has left the Client’s employment or contractual engagement within one year of such employment or engagement unless Client provides written permission.
9. TRANSFER OF INTELLECTUAL PROPERTY RIGHTS
Provided Client has complied with the terms of this agreement, and upon final payment to Company for services, Company shall automatically thereby grant, transfer, assign and convey to Client, and its successors and assigns, all right, title, interest, ownership and all subsidiary rights, including all rights accruing to Company under the United States Copyright Act, in and to all works of authorship and all copyrights, patents, trade secrets and any other intellectual property rights, business concepts, plans and ideas, reports, manuals, visual aids, documentation, inventions, processes, proposed products, services, techniques, marketing ideas, and commercial strategies, that have been or will be created by Company, for Client (“the Work”) for use throughout the world in perpetuity in any manner or media whether
now known or hereafter invented. Company hereby further waives any moral rights it may have with regard to Client’s uses of the Work. Company agrees, at Client’s reasonable expense, to cooperate as may be necessary to assist Client in enforcing Client’s rights in the Work. Nothwithstanding the foregoing, Client grants Company a worldwide, nonexclusive, revocable license to display the written or visual content developed by Company for Client only in association with Company’s portfolio and for other business development and marketing purposes.
(a) Company’s Warranties: Company represents, warrants and covenants that Company has full authority to enter into this Agreement and that all of the services, whether performed by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.
(b) Client’s Warranties: Client represents, warrants and covenants that Client has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Client’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term.
(c) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.
11. LIMITATION OF LIABILITY
(a) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND
(b) IN NO EVENT SHALL A PARTY’S LIABILITY EXCEED THE FEES PAID UNDER THIS
AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
(c) THE FOREGOING LIMITATIONS IN THIS SECTION 11 SHALL NOT APPLY TO A BREACH OF CONFIDENTIALITY BY A PARTY HEREUNDER OR THE OBLIGATIONS UNDER PARAGRAPHS 6, 9 AND 19.
12. EFFECT OF HEADINGS
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
13. ENTIRE AGREEMENT; MODIFICATION; WAIVER
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
14. NEUTRAL CONSTRUCTION
This Agreement was prepared by Company and/or Company’s legal counsel. It is expressly understood and agreed that this Agreement shall not be construed against Company merely because it was prepared by its counsel; rather, each provision of this Agreement shall be construed in a manner which is fair to both parties.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Client may not assign any of its rights under this Agreement, except to a wholly owned subsidiary entity of Client. No such assignment by Client to its wholly owned subsidiary shall relieve Client of any of its obligations or duties under this Agreement.
All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:
To Company at: 2400 NW 80th Street, #299 Seattle, WA 98117
To Client at: As specified in Statement of Work or Proposal
Any party may change its address for purposes of this paragraph by giving the other
parties written notice of the new address in the manner set forth above.
18. GOVERNING LAW; VENUE; MEDIATION
This Agreement shall be construed in accordance with, and governed by, the laws of the State of WASHINGTON as applied to contracts that are executed and performed entirely in WASHINGTON. The exclusive venue for any court proceeding based on or arising out of this Agreement shall be KING COUNTY, WASHINGTON. The parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation, which shall be conducted under the then current mediation procedures of The CPR Institute for Conflict Prevention & Resolution or any other procedure upon which the parties may agree. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures.
19. RECOVERY OF LITIGATION EXPENSES
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to
any other relief to which it or they may be entitled.
If any term, provision, covenant or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed a separate Statement of Work (each a “SOW”) which shall be consecutively numbered SOW #1, SOW #2, etc., or separate signed Proposal.