TECHNOLOGY LEADER COMPANIES LLC
TERMS OF SERVICE
Last Updated: March 12, 2024
This Terms of Service (this “Agreement”) governs the provision of services under the applicable Order Form between the Client identified in the Order Form (“Client”) and the Technology Leader Companies LLC entity identified in the Order Form (“Provider”).
This Agreement was last updated on the Last Updated date above. It is effective between Client and Provider as of the date (the “Effective Date”) that is the effective date of the first Order Form or, if earlier, the first date that Client clicks a box indicating acceptance, uses and Services or otherwise agrees to this Agreement. Capitalized terms have the definitions set forth below.
CLIENT AGREES TO THIS AGREEMENT BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, BY USING ANY SERVICES (INCLUDING ANY FREE SERVICES OR FREE TRIALS OF SERVICES THAT PROVIDER MAY OFFER), OR IN ANY OTHER WAY AGREEING TO THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND THAT ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CLIENT” REFERS TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE THAT AUTHORITY OR DOES NOT ACCEPT THIS AGREEMENT, THAT INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
PROVIDER HAS THE RIGHT TO CHANGE OR ADD TO THE TERMS OF THIS AGREEMENT AT ANY TIME, SOLELY WITH PROSPECTIVE EFFECT, AND TO CHANGE, DELETE, DISCONTINUE OR IMPOSE CONDITIONS ON USE OF THE SERVICES BY POSTING AN UPDATED VERSION OF THIS AGREEMENT ON PROVIDER’S WEBSITE. PROVIDER WILL PROVIDE CLIENT WITH NOTICES OF ANY CHANGES THROUGH THE WEBSITE, VIA EMAIL SENT TO THE EMAIL ADDRESS(ES) SPECIFIED IN CLIENT’S ORDER FORM, OR THROUGH OTHER REASONABLE MEANS. EMAIL NOTICES SENT TO AN EMAIL ADDRESS SPECIFIED IN CLIENT’S ORDER FORM WILL BE DEEMED SUFFICIENT AND RECEIVED WHEN SENT.
IF CLIENT HAS ALREADY AGREED TO THIS AGREEMENT, THE CHANGES WILL TAKE EFFECT 30 DAYS AFTER WE PROVIDE CLIENT NOTICE OF THE CHANGES AND CLIENT’S USE OF THE SERVICES AFTER THAT DATE WILL BE SUBJECT TO THIS AGREEMENT AS CHANGED.
This Agreement is the parties’ entire agreement and understanding regarding its subject matter and supersedes all other previous written and oral agreements and communications regarding that subject matter.
The Services may not be accessed for purposes of monitoring their functionality, availability or performance, or for any other benchmarking or competitive purposes.
1. Definitions.
In this Agreement,
"Affiliates” means (a) in the case of Provider: Business Consulting Leader LLC, Presales Leader LLC and Product Marketing Leader LLC, all Delaware limited liability companies wholly owned by Technology Leader Companies LLC, a Pennsylvania limited liability company; and (b) in the case of Client, any companies worldwide controlled by, controlling or under common control with Client.
“Client” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) that have entered into Order Forms.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that Client enters into with Provider or any of its Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, Client agrees to be bound by the terms of this Agreement.
“Provider” means Technology Leader Companies LLC, a Pennsylvania limited liability company, and its Affiliates.
“Services” means those services described in one or more Order Forms.
“Service Period” means the period during which Provider will provide Services under a particular Order Form, whether identified in that Order Form as a “Service Period,” “Order Form term” or otherwise.
2. Services.
During the Term of this Agreement, Provider shall provide Client the Services described in any Order Form in accordance with that Order Form’s terms and with this Agreement. If an Order Form calls for an initial payment or identifies any other events that must occur before that Order Form takes effect, then the occurrence of those events or payment of the initial payment is required, in addition to the parties’ written agreement to the Order Form, before it takes effect.
Provider will provide the Services described in each Order Form throughout that Order Form’s Service Period and will provide any agreed specific deliverables by the Completion Dates or other defined milestones set forth in any Order Form.
In the event of any conflict between this Agreement and a provision of an Order Form, the conflicting Order Form provision shall control. The parties may agree to any Order Form simultaneously with their agreement to this Agreement or at any later time. The parties’ execution of this Agreement itself, without the simultaneous agreement to an Order Form, does not obligate Provider to begin providing any Services or Client to make any payments to Provider.
Client acknowledges that Provider may obtain services used in providing the Services from, and otherwise delegate obligations hereunder to, its Affiliates or other third-party contractors.
3. Compensation, Expenses and Invoicing.
In consideration of the Services, the Client shall pay Provider all fees, commissions and other payments set forth in each Order Form. Some Order forms may require an initial payment before Services commence. The parties will follow the invoicing schedules and other payment terms set forth in each Order Form.
Unless the parties agree otherwise in writing, all fees, commissions, initial payments and other payments payable to Provider hereunder are nonrefundable.
Unless an Order Form specifies otherwise, Client shall reimburse Provider for all travel and other expenses incurred by Provider in performing the Services, promptly after receipt of an invoice from Provider for same. In the event of a good faith dispute with regard to an item appearing on an invoice, Provider may without penalty withhold Services until the parties resolve the dispute.
4. Change Orders.
After an Order Form is executed by both parties, either party may request changes to any of that Order Form’s provisions by sending the other party a written document (a “Change Order”) describing proposed changes to that Order Form, including any applicable changes that would result to that Order Form’s Services, Service Period or other deadlines, fee provisions or any other material terms. Provider may condition a Change Order on Client’s payment of any then-outstanding fees or payment of new initial payments.
A Change Order will bind the parties and incorporate this Agreement if and when agreed in writing by both parties. If either party declines to execute a Change Order or fails to respond to a proposed Change Order, it shall have no effect and the original Order Form shall remain in effect without modification.
5. Term and Termination.
5.1. Term and termination of this Agreement. This Agreement’s term begins on the Effective Date and terminates when all Order Forms have terminated and Client has satisfied all payment obligations to Provider, unless this Agreement’s term is renewed or terminated as provided herein (the “Term”).
5.2. Termination and modification of Order Forms. Provider shall have the right to modify, reject, or terminate any Order Form and any related work in process with five days written notice to Client. In the event Provider terminates an Order Form prior to completion of the Services described in that Order Form, the Client shall pay Provider the fees due under the Order Form with respect to Services completed as of the date of termination. Payment for completed work will be deducted from the initial payment. Provider will retain the non-refundable initial payment. Any amount due for services performed by Provider above the initial payment will be billed to Client and Client shall promptly pay the same. Upon settlement of funds due to Provider, all Client provided materials will be returned to Client.
6. Confidentiality.
6.1. Definition. "Confidential Information" in this Agreement means all proprietary information owned by the parties and not generally known to the public or in the relevant trade or industry that is communicated orally, written, printed, electronically or any other form or medium, or which was learned, discovered, developed, conceived, originated, or prepared by the parties in the scope and course of their relationship, relating directly or indirectly to business processes, technical data, trade secrets, know-how, advice, consultations, proprietary information, client lists, client instructions, assets, business operations, specifications, designs, plans, drawings, hardware, software, data, prototypes or other business and technical information belonging to any client or potential client of the parties, operational methods, economic and business analyses, models, strategies, and projections, promotion methods, trade show information and contacts, and other proprietary information relating to the business of the parties and any and all other concepts, as such Confidential Information pertains personally to principals or other information that has independent economic value.
6.2. Non-Disclosure. A party (as “Recipient”) receiving Confidential Information from the other party, or from a client or potential client of that other party, shall not (a) use the Confidential Information for the Recipient’s personal gain or detrimentally to the other party or to the client or potential client (b) disclose the Confidential Information to third parties except as the parties may separately agree in writing, unless and until such Confidential Information becomes publicly available other than as a consequence of a breach by the Recipient of its confidentiality obligations hereunder.
6.3. Exceptions to Confidential Information. “Confidential Information” does not include, and this Agreement does not restrict parties from disclosing or using, information that (a) was in the public domain, or in the possession of the party using or disclosing it, at the time it was communicated between the parties; (b) subsequently came to the public domain through no fault of the Recipient disclosing or using it; (c) is independently developed by the party to using or disclosing it, or that party’s representatives, without reference to any information communicated to or by the parties; or (d is provided by a party in response to a valid order by a court or other governmental body, as otherwise required by law.
6.4. Notice of Disclosure. In the event that a party receives a request or is required (by law enforcement or subpoena or other legal process) to disclose all or any part of the Confidential Information, the party receiving such request or process will, except to the extent that applicable law may preclude it, (a) promptly notify the other party of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the other party on the advisability of taking legally available steps to resist or narrow such request or requirement and (c) assist the other party if requested by that party in seeking a protective order or other appropriate remedy; provided, however, that the disclosing party shall not be required to take any action in violation of applicable laws.
In the event that such protective order or other remedy is not obtained or that one of the parties waives compliance with the provisions hereof, the disclosing party shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a previous disclosure by the disclosing party not permitted by this Agreement.
6.5. Return of Confidential Information. Within 30 days after written request by the other party after termination of this Agreement, a party will promptly deliver to that other party all originals and copies that it possesses of (a) all documents, records, software programs, media and other materials containing any Confidential Information and (b) equipment, files, and other personal property belonging to the requesting party. The returning party shall not make, retain, or distribute copies of any Confidential Information and shall not create any other documents, records, or materials in any form whatsoever that includes the Confidential Information.
6.6. Additional terms. The parties agree that the restrictions in this Section 6 are necessary to protect the business goodwill, business interests and proprietary rights of the parties and have independently discussed, reviewed and had the opportunity of legal counsel to consider this Agreement. The parties acknowledge and agree that due to the unique and sensitive nature of the Confidential Information, any breach of this Agreement would cause irreparable harm for which damages and or equitable relief may be sought. The violated party shall be entitled to all remedies available at law.
6.7. Duration. The obligations in this Section 6 shall last throughout the term of this Agreement and for two years thereafter (and shall last permanently thereafter to the extent of Confidential Information that constitutes trade secrets).
7. Representations and Warranties.
7.1. Provider’s Representations and Warranties: Provider represents and warrants that any materials that Provider uses or provides to Client in the course of Provider’s performance of the Services will not to Provider’s knowledge (a) infringe on the intellectual property rights or rights of publicity or privacy of any third party or (b) violate any law, statute, ordinance or regulation (collectively, “Law”).
7.2. Client’s Representations and Warranties: Client represents and warrants that (i) any materials provided to Provider by Client in relation to the Services will not infringe on the intellectual property rights or rights of publicity or privacy of any third party and will not violate any Law; and (ii) any necessary approval, authorization or consent of a third party that may be required in order for Provider to view or access materials relating to that third party will have been secured by Client before Client invites Provider to participate in communications with that third party in connection with this Agreement.
7.3. WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY ORDER FORM, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Non-Solicitation.
During the Term and for two years after it, each party and its owners, directors, officers, employees and contractors (as “Restricted Parties”) will not without written consent of the other party (as a “Protected Party”), directly or through third parties, solicit for employment or otherwise induce, influence, or encourage to terminate employment with the Protected Party or any of that Protected Party’s Affiliates, or engage as an independent contractor, any current or former employee or independent contractor of the Protected Party or the Affiliate in question, except (i) through a general solicitation through the media (including social media postings) or by a search or recruiting firm that is not directed specifically to any employees of the Protected Party or Affiliate or (ii) if the Protected Party terminated the employment or contractor relationship of that person before that person was solicited by the Restricted Party.
9. INDEMNIFICATION.
EACH PARTY (AS AN “INDEMNIFYING PARTY”) WILL DEFEND AND INDEMNIFY THE OTHER PARTY AND ITS AFFILIATES (AS “INDEMNITEES”) AND HOLD EACH INDEMNITEE HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, LIABILITIES, DAMAGES, EXPENSES AND COSTS (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) ARISING FROM OR RELATING TO A BREACH BY AN INDEMNIFYING PARTY OF ANY EXPRESS WARRANTY HEREIN.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CLAIMS FOR LOSS OF USE, INTERRUPTION OF BUSINESS OR LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR BREACH OF THE PARTIES’ CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAYABLE TO PROVIDER UNDER THIS AGREEMENT.
11. General.
Provider may freely assign and delegate its obligations and rights hereunder to its Affiliates, and to any third party that may acquire Provider or substantially all of Provider’s assets. Except as provided herein, neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void.
Any notice or consent under this Agreement must be in writing and sent to (a) in Client’s case, the Client email address specified in the Order Form, and (b) in Provider’s case, Jeremy.Potoka@techleaderco.com.
If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect.
Any waivers or amendments of this Agreement shall be effective only if made in writing and signed by each party’s authorized representative. Each individual signing this Agreement represents that they are duly authorized by the applicable party to bind that party to this Agreement.
12. Choice of Law.
This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of, the State of Delaware and the United States without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state court in Lancaster County, Pennsylvania and each party irrevocably submits to the jurisdiction and venue of such courts.
13. Remedies.
Provider reserves all remedies available at law or equity for any disputes that arise under this Agreement.
In the event of a suit or proceeding under this Agreement, the losing party shall pay the prevailing party’s reasonable legal fees and costs.