STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (“Agreement“) is a binding agreement between Lean Methods Group (“Lean Methods“) and the individual or entity (“Customer“) purchasing products and/or services (“Services“) from Lean Methods.
LEAN METHODS PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY PURCHASING, USING AND ACCEPTING THE SERVICES, CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LEAN METHODS WILL NOT AND DOES NOT PROVIDE THE SERVICES TO CUSTOMER AND CUSTOMER MUST NOT ACCEPT THE SERVICES.
1. Services Provided. Lean Methods agrees to provide Customer with the process-improvement, strategy, and innovation related training/consulting services (“the Services”), as well as provide Customer with additional services and licenses set forth in any schedule(s) attached hereto or separate agreement and which are signed by both parties. Any grant of a license to any software, course curriculum, or other application or work shall be covered by a separate schedule or agreement that has been signed by both parties.
2. Lean Methods Personnel. Customer shall notify Lean Methods if any Lean Methods staff is found to be unacceptable, and Lean Methods shall work with Customer to resolve the problem, including providing a replacement staff acceptable to Customer. Lean Methods is an independent contractor. Neither Lean Methods nor Lean Methods’ employees are, or shall be deemed for any purpose to be, employees of Customer.
3. Fees. Customer shall pay Lean Methods the “Fees” set forth in the proposal given to Customer and/or invoice sent to Customer for the Services requested, and additional Services not set forth in a proposal or invoice may be purchased for the Fees mutually agreed upon by the parties. Except as is expressly set forth in Section 10 (“Warranty and Disclaimer”), all payments are nonrefundable. The Fees set forth in a proposal or invoice shall not be changed for a period of one (1) year from the delivery of Services. Customer agrees to promptly reimburse Lean Methods for all reasonable and necessary expenses incurred by Lean Methods in providing the Services under this Agreement, including, but not limited to, transportation to and from airports, airfare, hotels, meals, shipping expenses for materials, and other reasonable out-of-pocket expenses such as telephone charges and hotel internet charges. All meals and incidental expenses (e.g., beverages and gratuities) incurred while delivering any on-site Services shall be paid to Lean Methods at the applicable daily rates for the location in question and without regard to actual expenses incurred. The GSA “M & IE” per diem rates are available on the Internet at www.gsa.gov and are generally updated on an annual basis. The Fees set out herein are exclusive of all taxes, and Customer agrees to pay (and Lean Methods shall have no liability for) any sales, use, VAT, excise, or similar taxes applicable to the performance of the Services. If Customer pays the Fees by credit card or debit card, Customer agrees to pay any convenience fees associated with the transaction. If Customer reasonably disputes any portion of an invoice, Customer shall timely pay the undisputed portion of the invoice. The Fees are due NET thirty (30) after receipt of the invoice.
4. Cancellation Policy. In the event that Customer cancels a previously-scheduled delivery date for Services with less than thirty (30) days prior notice to the event, Customer shall pay a cancellation fee equal to fifty (50) percent of the total fees payable for the scheduled event in question. In addition to any cancellation fee, Customer shall also reimburse Lean Methods for any non-refundable travel, printing and shipping expenses incurred by Lean Methods.
5. Confidentiality. All Confidential Information disclosed hereunder will remain the exclusive and confidential property of the “disclosing party.” The “receiving party” will use reasonable care to protect the confidentiality of all Confidential Information of the disclosing party and will use at least the same degree of care it uses to protect its own Confidential Information. The receiving party will limit access to Confidential Information to its employees/contractors with a need to know and will instruct these individuals to keep this information confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to the extent necessary to comply with any law, rule, regulation or ruling applicable to it and to the extent necessary to enforce its rights under this Agreement. Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession. For purposes of this Section, “Confidential Information” shall mean: all information of a confidential or proprietary nature provided by the disclosing party to the receiving party, but does not include (i) information that is already known by the receiving party, (ii) information that becomes generally available to the public other than as a result of disclosure by the receiving party in violation of this Agreement, or (iii) information that becomes known to the receiving party from a source other than the disclosing party on a non-confidential basis. Confidential Information of Lean Methods also includes all Lean Methods trade secrets, any training or consulting materials provided by Lean Methods to Customer (including the Training Materials and Lean Methods course curriculum), the terms of this Agreement, the pricing of the Services.
6. Restrictions on Use. Except as expressly permitted in this Agreement or any schedule or separate agreement that has been executed by both parties, Customer and its employees shall not, and shall not permit others to, (a) rewrite, reproduce, or distribute in any form or by any means any part of any Lean Methods Work; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any Lean Methods Work; (c) distribute, sublicense, assign, share, sell, or otherwise transfer any Lean Methods Work; (d) disclose or grant access to any Lean Methods Work to any person; (e) remove any proprietary notices or labels on any Lean Methods Work, or (f) use any portion of any Lean Methods Work to provide any training or instruction to any person or to develop any other curriculum except to the extent expressly authorized under any curriculum agreement or schedule signed by the parties. “Lean Methods Work” shall mean the Training Materials, Lean Methods’ curriculum, and any other work supplied or provided by Lean Methods. The Training Materials are solely for the personal and non-commercial use of each attendee of a Lean Methods course, which they may not use to provide any form of training or instruction to any person. Customer has no implied rights to the Training Materials, and Lean Methods reserves all rights not expressly granted to Customer.
7. Termination. Either party may terminate this Agreement at any time, with or without cause. If Customer terminates this Agreement, Customer shall pay Lean Methods all undisputed Fees and expenses for Services rendered immediately prior to the Termination.
8. Proprietary Rights. All Deliverables shall be the exclusive property of Customer and are works made for hire exclusively for Customer under the copyright laws of the United States. Lean Methods Technology Products shall be the exclusive property of Lean Methods, and any license to any Lean Methods Technology Product shall set forth in a separate, written agreement that is signed by both parties (which does not include a purchase order or invoice that may be signed by one or both parties). “Deliverables” means all reports, technical data, deliverables, or other forms of intellectual property made, conceived, or developed pursuant to this Agreement, but the term excludes any Lean Methods Technology Product. “Lean Methods Technology Product(s)” means (i) Lean Methods’ eHandbook, (ii) Lean Methods’ course curricula, exams, simulations, quizzes, and any materials provided to any attendee of any class taught by Lean Methods or using Lean Methods’ curricula (“Training Materials”), (iii) Lean Methods’ eLearning, including its learning management system (“LMS”), curricula, exams, quizzes, and assignments, (iv) concepts, ideas, methods, methodologies, procedures, processes and techniques used by Lean Methods, (v) any other software or application used by Lean Methods, (vi) any reports, technical data, deliverables, or other forms of intellectual property that were made, conceived, or developed prior to the Effective Date of this Agreement, and (vii) any revisions, additions, replacements, translated versions, derivative works, joint works, or conversions of any of the forgoing.
9. Indemnification. Lean Methods agrees to defend, indemnify and hold Customer harmless from any claims, liability or expense, including legal fees, that arise out of a claim brought by a third party that any Lean Methods’ Training Materials, curriculum, or any Deliverables under this Agreement infringes on any patent, copyright, trademark, or other intellectual property rights of a third party. The selection of counsel in such action shall be at the sole discretion of Lean Methods. If such a claim is made, Lean Methods will, at Lean Methods’ option and expense, either: (i) modify the Deliverables or Services to be non-infringing; (ii) obtain for Customer the right to continued use of the Deliverables or Services; (iii) replace the Deliverables or Services with ones that are non-infringing, or (iv) refund the fees paid by Customer for the Deliverable or Service in question. Lean Methods will have no obligation under this Section for claims of infringement to the extent that such claims arise out (a) use of the Deliverables in combination with any other products, processes or materials if the Deliverables by itself would not directly infringe on the asserted rights, or (b) modifications, alterations, additions, combinations, derivative works or enhancements of the Deliverables not created by Lean Methods.
10. Warranty and Disclaimer. Lean Methods warrants that its performance of any Services under this Agreement shall be conducted with due diligence and in full compliance with the highest professional standards of practice in the industry. If Customer is for any reason dissatisfied with any of Lean Methods’ Services, Customer shall notify Lean Methods within seven (7) business days after the unsatisfactory Services were performed, and Lean Methods, at its option and as Customer’s sole remedy, will either re-perform the Services in question for the affected individuals or refund Customer any money paid for the defective Services. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, TRAINING MATERIALS, SERVICES, AND ANY OTHER LEAN METHODS-SUPPLIED MATERIALS/WORKS ARE PROVIDED TO CUSTOMER “AS IS,” AND LEAN METHODS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO, THEIR FEATURES OR CAPABILITIES AND THE RESULTS FROM THEIR USE.
11. Damage Limitation. EXCEPT FOR VIOLATIONS OF OR CLAIMS ARISING OUT OF SECTIONS 5 (“CONFIDENTIALITY”), 6 (“RESTRICTIONS ON USE”), 8 (“PROPRIETARY RIGHTS”) OR 9 (“INDEMNIFICATION”), NEITHER PARTY SHALL HAVE ANY LIABILITY FOR CONSEQUENTIAL DAMAGES, SPECULATIVE OR REMOTE DAMAGES, EXEMPLARY DAMAGES, LOST PROFITS, OR ANY INDIRECT DAMAGES. CUSTOMER’S SOLE REMEDY AND LEAN METHODS’ SOLE OBLIGATION WITH RESPECT TO ANY CLAIMS IRRESPECTIVE OF THE NATURE OR THE CAUSE OF ACTION, DEMAND, OR ACTION BY CUSTOMER, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT SHALL IN ALL CASES BE LIMITED TO MONEY DAMAGES NOT EXCEEDING THE FEES PAID DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE DAMAGES.
12. Personnel. Neither party shall, in the absence of prior written consent from the other, during the term of this Agreement and for a period of twelve (12) months following termination, solicit the employment of any personnel of the other party (which includes any contractors of Lean Methods that may provide Services on behalf of Lean Methods) to become an employee or independent contractor of that party. If either party breaches this section, the breaching party shall pay as liquidated damages, and not as a penalty, the sum of half of the salary or compensation paid per employee or contractor. The parties agree and acknowledge that this liquidated damages provision, and the agreed upon liquidated damages amount, is fair and reasonable based upon the difficulty of ascertaining an estimate of actual damages to the non-breaching party under this provision, and that notwithstanding anything else to the contrary contained in this Agreement, such liquidated damages remedy shall be the sole and exclusive remedy between Lean Methods and Customer, including any other possible remedy for actual damages, specific performance or injunctive relief, should a breach of this provision occur.
13. Insurance. Lean Methods shall carry insurance coverage as follows: (i) General Comprehensive Liability at $2,000,000.00 per occurrence, (ii) Automobile Liability at $1,000,000 per occurrence, (iii) Worker’s Compensation of at least statutory limits, and (iv) Employer’s Liability Insurance at $1,000,000 per occurrence. Upon request, Lean Methods shall provide Customer with certificates evidencing the above.
14. General Provisions. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, whether oral or written, between the parties relating to the subject matter hereof. Should any provision of this Agreement, for any reason, be held to be invalid, or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof, and the Agreement shall be interpreted to preserve to the extent possible their original intent. No amendment or modification of this Agreement shall be effective unless made in writing and signed by each of the parties. In the event that there is any conflict between the terms and conditions of this Agreement and any purchase order or invoice, the terms of this Agreement shall control. Lean Methods objects to any different or additional terms or conditions contained in any purchase order of the Customer, and no such different or additional terms shall be effective or binding upon Lean Methods even if signed by Lean Methods. Except as part of a sale of all or substantially all of the assets of a party, neither party may assign the rights or obligations under this Agreement without the prior written consent of the other party, but Lean Methods may use independent contractors to perform Services. Waiver of any breach of this Agreement shall not act as a waiver of any other past, present, or future breach. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. The following provisions shall survive the termination of this Agreement: Sections 3-6, 8-12, and 14. Excluding the payment of money, neither party will be deemed in default of any obligation hereunder nor be liable for any failure or delay in performance which results directly or indirectly from any cause beyond its reasonable control.