Terms
Last Updated: September 11, 2024
These Professional Services Terms and Conditions (these “Terms and Conditions”) govern any services to be provided by Lost Horse Design Studio, a California business (“Lost Horse”) as set forth herein.
1. STATEMENT OF SERVICES
Any engagement for Lost Horse’s services shall be documented in a Statement of Work executed by Lost Horse and the customer entity identified therein (the “Company”), each of which may be referred to individually as a “Party” or collectively as the “Parties.” Any such Statement of Work, and performance of the Parties thereunder, is governed by and subject to these Terms and Conditions, which are incorporated by reference into and made a part of such Statement of Work (the “SOW”). These Terms and Conditions (i) are subject to change by Lost Horse from time to time; (ii) in effect as of the effective date of a SOW shall apply for the performance of that SOW; (iii) will not apply retroactively to any SOW; and (iv) are dated and archived when superseded by a newer version.
2. METHOD OF PERFORMING SERVICES
Lost Horse shall determine, and shall be solely responsible for, the method, details, and means of performing its services. Lost Horse may select one or more of its trained subcontractors to assist in the performance of its services (“Subcontractors”), and agrees to:
- (a) impose written obligations consistent with the terms of the SOW on Subcontractors, and
- (b) require that Subcontractors comply with the terms of the SOW.
Lost Horse has the sole and exclusive right to supervise and control Subcontractors.
3. STANDARD OF PERFORMANCE
Lost Horse’s services shall be performed in an expeditious and workmanlike manner.
4. INDEPENDENT CONTRACTOR STATUS
4.1 Relationship of the Parties
Lost Horse enters into the SOW as, and will remain throughout the Term (defined below), an independent contractor. The SOW shall not be construed to create a relationship of employer and employee, partnership, or joint venture between the Parties, and neither Party shall have any right to obligate or bind the other in any manner.
4.2 Nonexclusive
Lost Horse retains the right to perform services for others at any time. The Company retains the right to cause any services to be performed by its own personnel or others at any time.
4.3 Taxes
Lost Horse shall be solely responsible for the payment of all sales, use, or other taxes associated with its services, including without limitation all income, payroll, or employment-related taxes.
4.4 Residual Rights of Personnel
The terms of confidentiality under the SOW shall not limit either Party’s right to independently develop or acquire products without using the other Party’s Confidential Information or Work Product (defined below). Either Party is free to use non-tangible residuals resulting from work with such Confidential Information or Work Product. However, Confidential Information or Work Product purposefully retained or intentionally memorized shall not be considered as “residuals.”
5. TERM AND TERMINATION
5.1 Term; Survival
The term of the SOW shall commence on the Effective Date and remain in effect as set forth therein (“Term”). Provisions relating to payment of outstanding fees, confidentiality, and liability shall survive termination or expiration.
5.2 Termination
- (a) Termination by Company: The Company may terminate the SOW without cause with 14 days' notice to Lost Horse, provided all sums due to Lost Horse are paid.
- (b) Termination by Lost Horse: Lost Horse may suspend its services or terminate the SOW for cause if the Company fails to pay an invoice or fulfill its obligations, after 5 days' notice.
- (c) Duties Upon Termination: Upon termination, Lost Horse will cease services and, upon payment, deliver any existing Work Product to the Company.
6. FEES
6.1 Fee
Lost Horse will perform its services on a time and materials basis at the rates set forth in the SOW. Invoices are generally rendered bi-weekly. Lost Horse reserves the right to require prepayment of fees.
6.2 Payment Terms
All fees are due within 14 days following the invoice date. Disputed invoices will be promptly investigated and resolved by both Parties.
7. CONFIDENTIALITY
Each Party acknowledges that pursuant to the SOW, they may access confidential or proprietary information of the other Party ("Confidential Information"). Both Parties shall:
- (a) use Confidential Information only for the purpose of the SOW,
- (b) hold such information in confidence, and
- (c) not disclose it to third parties except to employees, Subcontractors, or independent contractors involved in performing the SOW.
8. INTELLECTUAL PROPERTY
8.1 Company Ownership
All intellectual property rights associated with Work Product developed under the SOW shall belong exclusively to the Company.
8.2 Lost Horse Ownership
All intellectual property rights in works developed prior to the commencement of the SOW ("Lost Horse Materials") shall belong exclusively to Lost Horse.
8.3 Open Source Materials Exclusion
Any open-source software used in the Work Product shall be excluded from the Company's ownership rights under Section 8.1.
9. WARRANTY DISCLAIMER
Services are provided on an “as-is” basis, and Lost Horse makes no express or implied warranties, including warranties of merchantability or fitness for a particular purpose.
10. LIMITATION OF REMEDIES AND DAMAGES
Neither Party shall be liable to the other for any consequential, incidental, or indirect damages, including lost profits or business interruption.
11. INDEMNITY
The Company shall indemnify and hold Lost Horse harmless against any third-party claims arising from the Company's breach of Section 8.4.
12. GENERAL PROVISIONS
12.1 Notices
All notices under the SOW shall be delivered via hand, certified mail, or email and deemed received when acknowledged.
12.2 Governing Law; Consent to Jurisdiction
The SOW shall be governed by the laws of California, and any disputes shall be resolved in the courts of San Bernardino County, California.
12.3 No Waiver
No waiver of any provision or consent to any action shall constitute a waiver of any other provision or consent to any other action, whether or not similar.
12.4 Amendments and Modifications
No amendment, modification, or supplement of any provisions of the SOW shall be binding on the Parties unless it is in writing and signed by both Parties.
12.5 Severability
If any provision of the SOW or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of the SOW shall not be affected and shall remain in effect.
12.6 Successors and Assigns
Each Party binds itself and its successors and permitted assigns to the other Party with respect to all covenants in the SOW. Neither Party may assign the SOW without written consent from the other, except for assignments related to mergers or acquisitions.
12.7 Non-Solicitation/Non-Hire
The Company acknowledges that Lost Horse employees, contractors, and Subcontractors performing services under the SOW are valuable assets. Accordingly, the Company agrees:
- (a) during the Term, the Company will not solicit or hire any Lost Horse personnel, and
- (b) for a period of 12 months following the termination of the SOW, the Company will not solicit for hire any such personnel.
If the Company breaches this non-solicitation provision, it shall pay Lost Horse $50,000 per hired individual, reflecting Lost Horse’s recruitment and training costs.
12.8 Marketing
The Company agrees to cooperate with Lost Horse in marketing efforts by permitting Lost Horse to:
- (a) post the Company’s name and logo on its client page,
- (b) use the Company’s name in non-public portfolio materials, and
- (c) publish press releases indicating that Lost Horse is providing services for the Company.
12.9 Force Majeure
Neither Party shall be liable for failure or delay in performing obligations due to events beyond reasonable control, such as natural disasters, war, or governmental action.
12.10 Remedies Cumulative
Nothing in the SOW shall limit a Party’s right to seek other remedies at law or in equity.
12.11 Territories
Lost Horse’s services are to be accessed from within the United States, Canada, and Mexico.