TERMS & CONDITIONS

This Service AGREEMENT (this “Agreement”) is made and entered into as of the Effective Date defined in the Proposal, by and between Lean Dimensions International, Inc. a Georgia corporation (“LDI”), and the client identified in the Proposal (the “Client”).  This Agreement may refer to LDI or the Client as a “Party,” or collectively as the “Parties.” The term “Agreement” used herein shall include the terms and conditions and Proposal.

Lean Dimensions International is a consulting firm that specializes in corporate strategy, operational consulting, and business analysis. Client desires to engage LDI to provide those services specifically identified and described in the accompanying Proposal.  LDI desires to accept such engagement on all the terms and conditions set forth in this Agreement.

  1. Performance Dates.  LDI will use reasonable efforts to meet any performance dates specified in the Proposal, and any such dates will be estimates only.
  2. Client Obligations:  Client agrees (a) to cooperate with LDI in all matters relating to the Services; (b) respond promptly to any requests by LDI to provide direction, information, approval, authorizations or decisions that are reasonably necessary for LDI to perform the Services in accordance with the requirements of this Agreement; and (c) provide such Client materials or information as LDI may request to carry out the Services in a timely manner and ensure that such Client materials or information are sufficient and accurate in all material respects.
  3. Client Act’s or Omissions.  If LDI’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, its agents, other contractors, or employees, then LDI will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
  4. Change Orders. 
  5. Procedures.  If either Party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other Party in writing.  LDI will, within a reasonable time after such request, provide a written estimate to Client of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change to the Services; and (iv) any other impact the change might have on the performance of this Agreement.
  6. Form.  Promptly after receipt of the written estimate, the Parties will negotiate and agree in writing on the terms of such change (a “Change Order”). Neither Party will be bound by any Change Order unless mutually agreed upon in writing. Change Orders may be approved by the following representatives of LDI: (i) coordinator or any other similarly situated contractor; and (ii) other approved company representatives.
  7. Notwithstanding Sections 4a and 4b, LDI may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, of the fees or any performance dates set forth in the Proposal.
  8. Payment Terms.
  9. Fee.  Client agrees to pay LDI the fee(s) set forth in the Proposal (“Fee”).
  10. Time and Materials.  Services shall be provided on a time and materials basis: (a) the fees payable for the Services will be calculated in accordance with LDI’s daily fee rate set forth in the Proposal; and (ii) LDI will issue invoices to Client twice a month for its fees for the immediately preceding time period, together with a detailed breakdown of any expenses for such month incurred in accordance with Section 5c.
  11. Expenses.  Client will be responsible for payment of all reasonable and customary expenses arising directly out of LDI’s efforts under this Agreement.  These costs include any reasonable expenses incurred by LDI to furnish the Services under this Agreement, including but not limited to airline flights (for flights longer than four (4) hours, the parties acknowledge and agree that LDI may book business class airline tickets), rental car, hotel accommodations, food costs, parking, telephone costs, and any and all other reasonable expenses incurred while performing the Services. If LDI anticipates that substantial expenses will be incurred, then LDI may request a deposit by Client before incurring such expenses or LDI may request that Client pay the vender directly.
  12. Invoicing and Payment of Fee.  Client must pay all invoiced amounts due to LDI on receipt of LDI’s invoice.  Client will make all payments of the Fee and other invoiced amounts hereunder by cash, check, credit card, or electronic funds transfer, including wire transfer.
  13. Unpaid Fees and Expenses.  In the event that any one of LDI’s invoices remain unpaid for fifteen (15) days or more after becoming due, then LDI may (i) charge interest on such unpaid amounts at a rate of one and half percent (1.5%) per month or, if lower, the maximum amount permitted by applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.  Furthermore, Client agrees to pay all collection costs, including reasonable attorneys’ fees and litigation costs, for collection of any unpaid fees or expenses.  Client further agrees to notify LDI in writing or by email within five (7) days of receiving an invoice if Client disputes any expense or fee entry on that invoice.  In the absence of any such written objections within five (5) days, Client will be deemed to have accepted and acknowledged the invoice as correct.
  14. Taxes.  Client will be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
  15.    Intellectual Property.
  16. Intellectual Property Rights. LDI is and will be the sole and exclusive owner of all rights, title, and interest in and to the Final Deliverables (as defined below). Additionally, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), graphic designs, know-how and other confidential information, trade dress, trade names, logos, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all work product shall be owned by LDI. Subject to Section 7b and only upon Client’s payment in full of the Fee and any expenses incurred by LDI, LDI grants a perpetual, non-transferable, and non-sublicensable license to the Final Deliverables to the Client for use only on the premises on the project.  Client agrees and acknowledges not to remove or transfer the Deliverables or Final Deliverables outside of the Project Site.  “Project Site” shall mean the project site(s) identified in the Proposal or the actual location where Services were performed. “Deliverables” shall mean any work product that LDI is required to deliver to Client hereunder in connection with the Services. Client shall have no ownership rights or licensed rights to the Deliverables.  “Final Deliverables” means the final and Client approved version of the Deliverables.
  17. Assignment to LDI upon Nonpayment.  If Client fails to pay any portion of the Fee or any expenses incurred by Client, then LDI will grant the license as mentioned in 7a to the Final Deliverables to Client.  
  18. Customization of Final Deliverables. Client agrees and acknowledges that the Final Deliverables are specifically customized for the Services identified in the Proposal.  They are unique and specifically tailored and any use of the Final Deliverables for any other purpose other than that which is set forth in the Proposal is not recommended, would prejudice LDI, and shall be deemed a breach of this Agreement.

 

  1. Publicity.  The Client hereby irrevocably consents to any and all uses and displays, by LDI and its agents, representatives and licensees, of Client in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes and all other printed and electronic forms and media throughout the world, at any time during or after the term of this Agreement, for all legitimate commercial and business purposes of LDI (“Permitted Uses”) without further consent from or royalty, payment or other compensation to the Client. The Client hereby forever waives and releases LDI and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the term of this Agreement by LDI, arising directly or indirectly from LDI’s and its agents’, representatives’ and licensees’ exercise of their rights in connection with any Permitted Uses.
  2. Confidential Information.
  3. Non-Disclosure.  All non-public, confidential or proprietary information of LDI, including, but not limited to, trade secrets, technology, the terms of this Agreement, information pertaining to business operations, strategies, human resources, and information pertaining to employees, customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by LDI to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of LDI. Confidential Information does not include information: (i) which has been voluntarily disclosed to the public by LDI or by another person with LDI’s consent; (ii) which has been independently developed and disclosed by others; or (iii) which has otherwise entered the public domain through lawful means.
  4. Use Restrictions.  Client agrees to use the Confidential Information only to make use of the Services.
  5. Remedies.  LDI will be entitled to injunctive relief for any violation of this Section and its reasonable attorneys’ fees and expenses in obtaining such relief.
  6. Services.  LDI will provide the services to Client as identified and described in the Proposal (the “Services”) in accordance with this Agreement.  LDI may engage sub-agents, independent contractors or other persons (“Sub-Agents”) to act on LDI’s behalf or to otherwise perform any of LDI’s obligations under this Agreement; provided that any compensation to such Sub-Agents shall be solely LDI’s responsibility.
  7. Representations and Warranties.
  8. LDI hereby represents and warrants to Client that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
  9. LDI shall not be liable for a breach of the warranty set forth in Section 11a unless Client gives written notice of the defective Services, reasonably described, to LDI within five (5) days of the time when Client discovers or ought to have discovered that the Services were defective.
  10. Subject to Section 11b, LDI shall, in its sole discretion either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
  11. The remedies set forth in section 11c shall be the client’s sole and exclusive remedIES and LDI’s entire liability for any breach of the limited warranty set forth in section 11a.
  12. Disclaimer of Warranties.  Except for the Warranty set forth in Section 11a above, LDI makes no warranty whatsoever with respect to the Services, including any (a) warranty of merchantability; or (b) warranty of fitness for a particular purpose; or (c) warranty of title; whether express or implied by law, course of dealing, course of performance, or usage of trade or otherwise.
  13. Limitation of Liability.  LDI shall not be liable to Client or any third-party for any incidental, consequential, special, indirect, punitive or third-party damages or claims, including lost profits, and regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.  In no event shall LDI’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts paid or payable to LDI pursuant to this Agreement and the applicable Proposal.
  14. Indemnification. Client shall indemnify, defend and hold harmless LDI, its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees arising out of or resulting from any third party claim, suit, action or proceeding (each, an “Action”), related to or arising out of: (a) the breach of any of the representations, warranties, covenants, or conditions contained within this Agreement by Client, (b) negligence, willful misconduct, or any violation of applicable laws or regulations by Client, and (c)  Client’s use of the Final Deliverables in any manner not consistent with this Agreement and Proposal.
  15. Term and Termination. This Agreement will commence on the Effective Date identified in the Proposal and in addition to any other remedies that may be available under this Agreement, LDI may terminate this Agreement with immediate effect upon written notice to Client, if Client (a) fails to pay any amount when due under this Agreement; or (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.  Otherwise, this Agreement will terminate on LDI’s sending of a final invoice for services rendered.  Any payments received by LDI will be deemed non-refundable.
  16. Postponement or Cancellation by Client. If Client postpones, reschedules, or cancels any Service delivery dates, including scheduled site visits, Client acknowledges and agrees to pay any and all costs and losses incurred by LDI as a result of such postponement, rescheduling, or cancellation, including but not limited to, travel costs such as airline flights, hotels, car rentals, etc., and any change fees related to such costs. If Client cancels the Agreement before or after the Services have begun, Client acknowledges and agrees that it must provide a written cancellation and that it will pay the amount of the Services that would have been rendered for forty-five calendar (45) days after the date the written cancellation is received by LDI, plus any and all costs incurred by LDI.  If Client cancels the Agreement after execution of the Agreement but prior to LDI performing any Services, Client agrees and acknowledges that it shall pay any and all costs or change fees incurred by LDI.
  17. Non-solicitation.  During the term of this Agreement and for a period of one (1) year after the termination date, Client will not, directly or indirectly, individually or in combination or association with any other person or entity: (A) induce any person who is an employee or subcontractor of LDI to terminate said relationship; or (B) solicit, or attempt to solicit an employee or subcontractor of LDI for copywrite and content services outside of this Agreement.  If Client hires or otherwise engages a current or former employee or subcontractor of LDI in violation of this provision, then Client will pay LDI a placement, training and replacement fee of 50% of the employee or subcontractor’s total annual compensation package in addition to all other remedies available under the law.  Client’s obligations under this Section will survive the termination of this Agreement.
  18. Miscellaneous. 
  19. Entire Agreement.  This Agreement and the Proposal constitute the sole agreement of the Parties with respect to its subject matter.  It supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.  In the event of any conflict between this Agreement and the Proposal, this Agreement shall govern, unless the Proposal expressly states that the terms and conditions of the Proposal will control.  This Agreement may not be modified except in a writing signed by the Parties.
  20. Relationship of Parties.  The relationship of the Parties is that of an independent contractor and shall not be deemed to create any joint venture, association, or partnership.
  21. Waiver.  No waiver by LDI of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by LDI. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  22. Force Majeure.  LDI shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of LDI including, without limitation, acts of God, flood, fire, snowstorm, earthquake, explosion, governmental actions, civil unrest, national emergency, or restraints.
  23. Successors; Assignment.  This Agreement binds and inures to the benefit of the Parties and their respective heirs, personal representatives, and successors.  This Agreement or any rights or obligations under this Agreement shall not be assigned without the other Party’s prior written consent.
  24. Survival.  Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions:  Confidentiality, Governing Law, Payment Terms, Publicity, Non-Solicitation, Indemnification, Submission to Jurisdiction and Survival.
  25. Including.  Unless the context requires otherwise, the term “including” means “including but not limited to.”
  26. Severability.  If any part of this Agreement is for any reason held to be unenforceable, the rest of it remains fully enforceable.
  27. Notices.  All notices and other communications required or permitted under this Agreement must be in writing and must be sent to the Party at that Party’s address set forth below and or at whatever other address the Party specifies in writing:  To LDI: 1640 Powers Ferry Rd., Bldg. 23, Ste. 100, Marietta, GA 30067; and to Client, as set forth in the Proposal.  All notices shall be delivered by personal delivery, e-mail (if such e-mail is identified in this Agreement) or by certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving Party, and (b) if the party giving the notice has complied with the requirements of this Section.
  28. Governing Law; Submission to Jurisdiction.  Georgia law applies to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction.  All disputes arising out of or in connection with this Agreement will be brought in the courts of Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia and the parties consent to the jurisdiction of such courts.
  29. Counterparts.  This Agreement may be signed in counterparts, each one of which is considered an original, but all of which constitute one and the same instrument.
  30. Electronic Signature. Each Party agrees that electronic signatures, whether digital or encrypted, of the Parties included with this Agreement and Proposal are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including email electronic signatures.