Last updated: May 10th, 2023
These Standard Business Terms (“Standard Terms”) apply to the product, workplace, and community design services (the “Services”) provided by Limitless Harmony, LLC, together with its subsidiaries, affiliates, predecessors, successors, and assigns (“Limitless Harmony,” “we,” or “us”), to you, our client (“Client,” or “you”) under the Service Agreement you and we have signed. These Standard Terms, together with the Service Agreement, include the entire understanding and agreement between you and us with respect to the Services described in the Service Agreement (the Service Agreement and these Standard Terms are referred to collectively as the “Agreement”), supersede and incorporate all prior representations, discussions, understandings or agreements between you and us, and may not be modified or amended except by an agreement in writing signed by both you and us. If there is a conflict between these Standard Terms and the provisions of the Service Agreement, these Standard Terms will govern.
1. Invoices and Payment
You agree to pay us a fee for providing the Services as outlined in the Service Agreement. We will invoice you on a periodic basis, and you agree to pay all undisputed amounts within thirty (30) days after the date of the invoice. If you do not pay an invoice within thirty (30) days after the date of the invoice, we have the right to charge, and you agree to pay, late fees and/or interest on the outstanding balance.
We will not incur any expenses on your behalf without your prior written consent, unless provided for in the Service Agreement.
3. Ownership; Intellectual Property
(a) Materials specifically prepared by us for you as a deliverable under the Service Agreement (each a “Deliverable”) may, when you have fully paid our fees, be used, copied, distributed internally, and modified by you, and we grant you an irrevocable, perceptual, royalty-free, worldwide license to use the Deliverables, but solely for your internal business purposes. You will not, without our prior written consent, disclose to a third party, publicly quote or make reference to the Deliverables. We retain all right, title and interest in and to: (i) the Deliverables, including but not limited to, all patent, copyright, trademark and other intellectual property rights in the Deliverables, and any modifications, improvements or enhancements; and (ii) all methodologies, processes, techniques, ideas, concepts, trade secrets and know-how embodied in the Deliverables or that we may develop or supply in connection with this Agreement (“Our Knowledge”). Subject to the confidentiality restrictions contained in Section 4, we may use the Deliverables and Our Knowledge for any purpose. You agree that we have the right to advertise, promote or otherwise market our services and use the Deliverables in any manner (so long as we do not identify you without your prior written consent, and we do not disclose your Proprietary Information).
(b) The documentation for our engagement and performance of Services, and our internal materials, are not part of the Deliverables, remain our property and are part of Our Knowledge.
(c) You retain ownership of all right, title and interest (including patent, copyright, trademark, database, and other intellectual property rights) in your pre-existing materials, and in materials created by you without input or participation from us, that are provided to us in connection with the Services.
(d) You retain ownership of all right, title and interest in any of your information, data, language, communications, and conversations with us (“Communications”), but you hereby assign to us an irrevocable, perceptual, royalty-free, worldwide license to such Communications. We may use the Communications to improve our Services, software, and deliverables for you and all future clients. However, you acknowledge that we own any intellectual property created from the Communications in the course of our providing the Services, including questions, conversations, discussions with us, our chat bots, our software, our automated services, our frameworks, games, and methodologies, and any other software services used with or provided by us in delivery of the Services, and all such intellectual property is considered Our Knowledge.
4. Confidentiality; Proprietary Information
“Proprietary Information” includes, but is not limited to, all business, technical, and other proprietary information belonging to you, and any information not generally known by your actual or potential competitors, or by the public generally.
We will maintain the confidentiality of your Proprietary Information and will not disclose it to any third party without your prior written consent. unless such third party is a provider of services to us who is subject to a written agreement with us requiring the third party to maintain the confidentiality of the Proprietary Information. We will use the Proprietary Information only for performing the Services. You will maintain the confidentiality of Our Knowledge and will not disclose it to any third party without our prior written consent. You will use Our Knowledge only as set forth in this Agreement.
The obligations in this Section 4 shall not apply to any information that: (a) is or becomes generally available to the public other than as a result of a disclosure by you or us as receiving party; (b) is or becomes available to you or us on a non-confidential basis from a source other than the disclosing party; (c) was in the possession of you or us prior to its being furnished by the disclosing party, provided that the source of such information was not known by the receiving party to be bound by an obligation of confidentiality covering such information; or (d) is independently developed without reference to your Proprietary Information or Our Knowledge, as applicable. We may disclose Proprietary Information, and you may disclose Our Knowledge, as required by law or court order, but you and we agree to use commercially reasonable efforts to limit disclosure, and if permitted, to give prompt written notice of such disclosure obligation.
5. Independent Contractors
We may use independent contractors or other third parties to assist us in performing the Services for you, and compensation for the services provided by those independent contractors is included in the fee that you have agreed to pay us. These independent contractors will be engaged by us and compensated by us. Unless you agree in advance, we will not charge you separately for the services of the independent contractor(s).
You or we may terminate this Agreement at any time, with or without cause, with written notice of fourteen days. You agree to pay us for any portion of the Services that have been performed before termination.
You or we may terminate this Agreement effective immediately and without notice, in these cases: (a) the dissolution, termination of existence, liquidation or insolvency of the other party; (ii) the appointment of a custodian or receiver for the other party; (iii) the institution by or against the other party of any proceeding under the United States Bankruptcy Code or any other foreign, federal or state bankruptcy, receivership, insolvency or other similar law affecting the rights of creditors generally; or (iv) the making by the other party of any assignment for the benefit of creditors
Upon termination, we agree to return to you, or destroy, your data, information, logins, and all other materials owned by you.
Sections 3-4 and Sections 8-12 of this Agreement shall survive any termination or expiration.
You acknowledge that the Services we provide are non-exclusive and that we may, in our sole discretion, enter into arrangements with, or perform services for, other parties that are similar to or identical to those contemplated by the Service Agreement.
You acknowledge and agree that our employees and independent contractors are a valuable resource of ours, and agree that during the term of the Agreement and for one year after the termination of the Agreement, you will not directly or indirectly solicit, employ, contract or otherwise interfere with the employment or contractual relationship between us and our employees and independent contractors.
9. Limitation of Liability
With respect to any claims arising from or related to this Agreement, neither you or we shall be liable under any legal or equitable claim or theory for: (a) special, indirect, incidental, punitive, exemplary, or consequential damages of any kind whatsoever, including lost revenues or profits, or loss of goodwill; or (ii) any damages in excess of the total fees to be paid by you to us under this Agreement, in each case regardless of whether claims are based in contract, tort, or otherwise, and regardless of whether the party was advised or had reason to know of the possibility of such damages or liability.
10. Representations and Warranties
You represent and warrant that:
1. Your entity is duly incorporated or formed under the laws of your jurisdiction;
2. You have the authority and power to enter into and perform your obligations under this Agreement; and
3. You have taken all necessary entity actions to authorize entry and performance into this Agreement.
We represent and warrant that:
1. Limitless Harmony, LLC is duly organized under the laws of its jurisdiction;
2. We have the authority and power to enter into and perform our obligations under this Agreement; and
3. We have taken all necessary limited liability company action to authorize entry and performance in this Agreement.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS-IS” AND WE DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING OR RELATED TO THE SERVICES OR THIS AGREEMENT.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights, and a waiver of a breach or default shall not be a waiver of any subsequent breach or default. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflicts of laws provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Wilmington, Delaware, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The parties further agree, to the extent permitted by law, that a final and unappealable judgment against either of them in any action or proceeding contemplated above shall be conclusive and may be enforced in any other jurisdiction within or outside the United States by suit on the judgment, a certified copy of which shall be conclusive evidence of the fact and amount of such judgment. Neither party may assign this Agreement without the consent of the other party, except that we may assign this Agreement without your consent to the purchaser of substantially all of the assts of Limitless Harmony, LLC. The Service Agreement may be executed in one or more counterparts (including by electronic transmission in portable document format (pdf)), each of which shall be deemed an original but all of which together shall constitute one and the same agreement. If a court having proper jurisdiction holds a particular provision of this Agreement unenforceable or invalid for any reason, that provision shall be modified to the minimum extent necessary in the opinion of such court to make it enforceable and valid and the remainder of this Agreement shall be deemed valid and enforceable and shall be enforced to the greatest extent possible under the then existing law. In the event the court determines such modification is not possible or is not permitted by applicable law, the provision shall be deemed severable and deleted, and all other provisions of this Agreement shall remain unchanged and in full force and effect. Unless a party directs otherwise in writing, notices to a party shall be sent by email to the email address set forth in the Service Agreement. You acknowledge that we are acting as an independent contractor and that nothing in this Agreement shall create an agency, partnership, joint venture or employment relationship between you and us.
12. MUTUAL WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY; AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.