Last Published 1st September 2021:
L5 INC. (A California CORPORATION) located at 634 E Magnolia Blvd Burbank CA, 91501.
RECITALS
1.1. Definitions
In this Agreement unless the context indicates otherwise, the following words will have the following meanings:
Background IP means the Intellectual Property of a Party which was in existence prior to the commencement of this agreement or which is subsequently developed by that Party independently of and for purposes unconnected with this agreement.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Confidential Information includes any information marked as confidential and any information received or developed by L5 INC during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by You (the Client) in the course of the You (the Client)’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consultancy Services means the consultancy services to be provided by L5 INC under this agreement.
Consultant’s Personnel means any person(s) that L5 INC designates to perform the Consultancy Services on the L5 INC’s behalf.
Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into this agreement pursuant to division 1 part 3-2 of the Australian Consumer Law.
Contract IP means Intellectual Property created by the Supplier in the course of performing its obligations under this agreement.
Deliverable means any goods or services to be supplied by the Supplier pursuant to this agreement.
Facilities means working space, computer equipment, access to the internet and You (the Client)’s computer network, telecommunications system etc, and includes not only access to such resources but also use of them to the extent required by the Supplier in order to perform the Consultancy Services.
Fee(s) means the fees set out in the Specification.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor (except to the extent that act or omission is caused by a Force Majeure Event).
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.
Parties means L5 INC and You (the Client), and Party means either one of them.
Personal Information has the meaning as defined in any applicable Privacy Law.
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001 (Cth).
Specification means the specific Consultancy Services to be provided by L5 INC under this Agreement. The Specification is set out in Schedule 1 of this Agreement.
Termination Date means the earlier of:
(a) the date of termination of this Agreement by You (the Client) or L5 INC; and
(b) the date of expiry of this Agreement.
In this Agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
(e) reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
(i) the word “including” (and related forms including “includes”) means “including without limitation”.
(a) L5 INC will provide the Consultancy Services to You (the Client) in consideration for You (the Client) paying the Fee to L5 INC, subject to the provisions of this agreement.
(b) L5 INC and You (the Client) will agree on the time and place for the performance of the Consultancy Services.
(c) L5 INC will use reasonable endeavours to complete the Consultancy Services including the provision of data, materials or reports by the dates specified in the Specification or any other dates agreed by the Parties.
(d) The Consultancy Services will be performed by the employees or agents that L5 INC may choose as most appropriate to carry out the Consultancy Services as agreed, from time to time by the Parties.
(e) The Consultancy Services to be performed as agreed by the Parties, the time estimates for the provision of the particular Consultancy Services, and the Fee(s) will be set out in the Specification.
L5 INC will provide the Consultancy Services in places and locations as agreed by the Parties from time to time.
(a) In consideration of the provision of the Consultancy Services in accordance with this agreement, You (the Client) will pay L5 INC the Fee.
(b) Where L5 INC’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
(c) You (the Client) acknowledges that the Fees are exclusive of any GST that may be charged by L5 INC to You (the Client), and therefore, L5 INC will be entitled to add on GST.
4.2. Invoicing
(a) L5 INC will provide You (the Client) with a tax invoice in accordance with the GST Law in relation to Fees payable under this clause 4.
(b) Payment will be made by You (the Client) to L5 INC within 20 days after receiving L5 INC’s invoice.
(c) When making a payment, You (the Client) must quote relevant reference numbers and the invoice number.
(d) The invoice referred to in clause 4.2(b) must include the following details before payment can be approved and forwarded:
(i) date of Consultancy Services;
(ii) name of individual provided by L5 INC;
(iii) description of Consultancy Services provided;
(iv) time allocated per task; and
(v) the ABN of L5 INC.
4.3. Variation of Fees
L5 INC is entitled to vary their rates during the term of this agreement with written notice to You (the Client) of 1 month prior to the change being implemented.
4.4. Costs and disbursements
L5 INC is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including travelling, photocopying, courier services, travel, accommodation, transfers, box rental, transportation, on-site per-diem and postage.
4.5. Failure to pay
If You (the Client) does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, L5 INC is entitled to do any or all of the following:
(a) charge interest on the outstanding amount at the rate of 5%% per year above the base lending rate of US Federal Reserve, accruing daily;
(b) require You (the Client) to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
(c) not perform any further Consultancy Services (or any part of the Consultancy Services).
If You (the Client) disputes the whole or any portion of the amount claimed in an invoice submitted by the L5 INC, You (the Client) must:
(a) pay the portion of the amount stated in the invoice which is not in dispute in accordance with the terms of payment set out in this agreement; and
(b) notify L5 INC in writing (within 5 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.
(a) If You (the Client):
(i) makes a notice in writing to L5 INC; and
(ii) has reasonable grounds which have been disclosed and discussed with L5 INC,
You (the Client) may require L5 INC to cease to permit a particular person or persons employed by L5 INC or acting as agent for L5 INC to carry out the Consultancy Services.
(b) If You (the Client) makes the requirement referred to in clause 5(a), L5 INC must, as soon as it is practicable:
(i) cease to provide the service of the particular person or persons in respect of You (the Client)’s business; and
(ii) provide the services of an alternative person or persons as may be reasonably acceptable to You (the Client).
(a) During the preparation of the Specification and performance of the Consultancy Services You (the Client) will:
(i) cooperate with as L5 INC reasonably requires;
(ii) provide the information and documentation that L5 INC reasonably requires;
(iii) make available to L5 INC such Facilities as L5 INC reasonably requires; and
(iv) ensure that You (the Client)’s staff and agents cooperate with and assist L5 INC.
(b) You (the Client) will not charge for L5 INC’s use of the Facilities made available by You (the Client).
(c) If You (the Client) does not provide the Facilities that L5 INC reasonably requires
(and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by L5 INC will be paid by You (the Client).
(a) Nothing in this agreement constitutes the relationship of employer and employee between You (the Client) and L5 INC or between You (the Client) andL5 INC’s Personnel.
(b) It is the express intention of the Parties that any such relationships are denied.
(a) L5 INC is permitted to use other persons to provide some or all of the Consultancy Services.
(b) L5 INC is responsible for the work of any of L5 INC’s subcontractors.
(c) Subject to clause 8(d), any work undertaken by any of L5 INC’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
(d) To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
(a) The Parties agree that, other than as expressly provided in this clause, nothing in this agreement transfers or grants to any Party any right, title or interest in or to any Intellectual Property in any Background IP. L5 INC grants to You (the Client) a worldwide, royalty free, perpetual, irrevocable, transferable, non-exclusive licence to use the Background IP to the extent necessary for You (the Client) to derive full benefit from its acquisition of the Deliverables.
(b) You (the Client) acknowledges that ownership of the Contact IP remains vested in L5 INC. L5 INC grants to You (the Client) an exclusive, perpetual, fully paid-up, irrevocable, worldwide licence to use the Contract IP for the sole purpose of enabling You (the Client) to derive full benefit from its acquisition of the Deliverables.
(c) L5 INC agrees to indemnify You (the Client) fully against all liabilities, costs and expenses that You (the Client) may incur if the Contract IP or Background IP infringes the rights of a third party, save that L5 INC will have no indemnity
obligation if any infringement, suspected infringement or alleged infringement of the Contract IP or Background IP arises from:
(i) use of the Deliverables in combination by any means and in any form with other goods not specifically approved by L5 INC;
(ii) use of the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by L5 INC;
(iii) modification or alteration of the Deliverables without prior consent in writing of L5 INC; or
(iv) any transaction entered into by the Customer relating to the Deliverables without L5 INC’s prior consent in writing.
(d) The obligations accepted by L5 INC under this clause 9 survive termination or expiry of this agreement.
(a) A Party which receives Confidential Information (Recipient) from the other Party (Discloser) must keep the Discloser’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.
(b) The Recipient’s obligations in relation to the Confidential Information will continue for as long as the Confidential Information is maintained on a confidential basis by the Discloser.
(c) At the Termination Date, or when earlier directed by the Discloser:
(i) all Confidential Information must be returned to the Discloser, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Recipient makes and any software that the Recipient creates based on the Confidential Information; and
(ii) the Recipient must erase and destroy any copies of any software containing or comprising the Confidential Information in the Recipient’s possession or under the Recipient’s control or that may have been loaded onto a computer possessed or controlled by the Recipient.
(d) The Confidential Information does not include information which:
(i) is generally available in the public domain otherwise than as a result of a breach of clause 10(a) by the Recipient; or
(ii) was known by the Recipient prior to the Discloser disclosing the information to the Recipient.
(e) The Recipient agrees that the Discloser may require any of the Recipient’s
Personnel to sign a confidentiality agreement in a form that the Discloser approves, as a condition of the Discloser’s acceptance of any of the Recipient’s Personnel.
(f) The Recipient agrees to indemnify the Discloser fully against all liabilities, costs and expenses which the Discloser may incur as a result of any breach of this clause 10 by the Recipient.
(g) The Recipient acknowledges that damages may be an inadequate remedy for breach of this clause 10 and that the Discloser may obtain injunctive relief against the Recipient for any breach of this clause 10.
(h) The obligations accepted by the Recipient under this clause 10 survive termination or expiry of this agreement.
(a) You (the Client) is responsible for obtaining all relevant consents from, and providing all relevant notices to, individuals whose Personal Information is provided by You (the Client) to L5 INC in connection with this agreement so as to ensure that L5 INC’s dealings with that information pursuant to this agreement comply with L5 INC’s obligations under any Privacy Laws.
(b) You (the Client) must indemnify L5 INC against, and must pay L5 INC on demand the amount of, all Losses, liabilities, costs and expenses arising out of its failure to comply with clause 11(a).
(c) You (the Client) must:
(i) immediately notify L5 INC if it becomes aware of any unauthorised access to, or unauthorised disclosure of, Personal Information under its control by virtue of this agreement, and provide advice as to whether it considers that such security breach may result in serious harm to any individual to whom the information relates;
(ii) comply with any directive from L5 INC as to which Party will discharge any statutory reporting obligation arising from the incident;
(iii) conduct or assist L5 INC in conducting a reasonable and expeditious assessment of the breach or suspected breach; and
(iv) ensure compliance with all mandatory data breach reporting obligations arising out of the breach or suspected breach.
(a) L5 INC warrants that it will use reasonable care and skill in performing the
Consultancy Services and to the standard generally accepted within the industry, sector or profession in which L5 INC operates for the type of Consultancy Services provided by L5 INC.
(b) If L5 INC performs the Consultancy Services (or any part of the Consultancy Services) negligently or materially in breach of this agreement including any part of the Specification, then, if requested by You (the Client), L5 INC will re-perform the relevant part of the Consultancy Services, subject to clauses 12.6(a) and 12.6(b) below.
(c) You (the Client)’s request referred to in clause 12.1(b) must be made within 1 month of the date L5 INC completed performing the Consultancy Services.
12.2. Insurances
L5 INC must take out the following insurance:
(a) worker’s compensation insurance as prescribed by law for L5 INC’s Personnel; and
(b) public liability insurance for a minimum of an amount to be agreed for each occurrence.
(a) L5 INC covenants that L5 INC is solely responsible for payment to L5 INC’s employees and agents of all amounts due by way of salary, superannuation, annual leave, long service leave and any other benefits to which they are entitled as L5 INC’s employees or agents.
(b) L5 INC must otherwise comply with legislation applicable to L5 INC’s employees and agents.
12.4. Compliance with all laws
Throughout this agreement L5 INC must comply at L5 INC’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, state and local government departments, bodies, and public authorities or other authority. This requirement applies to L5 INC or to the Consultancy Services. L5 INC must indemnify You (the Client) from and against all actions, costs, charges, claims and demands in respect of such action, cost, charge, claim and demand.
12.5. No warranties in relation to completion
L5 INC provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date any other date, whether stated in this agreement, the Specification or elsewhere.
(a) Except in the case of death or personal injury caused by L5 INC’s negligence, the liability of L5 INC under or in connection with this agreement whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by You (the Client) to L5 INC under this agreement. The provisions of clause 12.6(a) will not apply to clause 12.4.
(b) Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clause 12.4. For the purposes of this subclause, “consequential loss or damage” means any Loss that does not arise naturally and according to the usual course of things as a result of a breach of this agreement or other event giving rise to such Loss, whether or not such Loss may reasonably be supposed to have been in the contemplation of the Parties at the time they made this agreement.
12.7. No reliance
Each of the Parties acknowledges that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement. Any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
12.8. Survival of obligations
The obligations accepted by L5 INC and You (the Client) under this clause 12 survive termination or expiry of this agreement.
(a) Either Party may terminate this Agreement by notice in writing to the other if the other Party notified:
(i) fails to observe any term of this Agreement; and
(ii) fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 1 month notice of the breach being given in writing by the notifying Party to the other Party.
(b) Either Party may terminate this Agreement immediately upon the happening of any of the following events:
(i) if the other Party commits a material breach of the agreement which is incapable of rectification;
(ii) if You (the Client) enters into a deed of arrangement or an order is made for it to be wound up;
(iii) if an administrator, receiver or receiver/manager or a liquidator is appointed to You (the Client) pursuant to the Corporations Act; or
(iv) if You (the Client) would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.
(c) Upon termination of this agreement any fees, expenses or reimbursements payable by You (the Client) to L5 INC in respect of any period prior to the Termination Date must be paid by You (the Client) to L5 INC within 7 days after the Termination Date.
(a) Neither Party has any liability under or may be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from a Force Majeure Event.
(b) The Party affected by these circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
(c) If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.
14.2. Amendments
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
(a) Subject to paragraph (b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Agreement without the prior written agreement of the other Party.
(b) A Party may assign and transfer all its rights and obligations under this Agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Agreement.
(a) This Agreement contains the whole agreement between the Parties in respect of the subject matter of the Agreement.
(b) The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
(a) No failure or delay by L5 INC in exercising any right, power or privilege under this Agreement will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(b) The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
(a) This Agreement will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
(b) Neither Party will have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
14.7. Further assurance
Each Party to this Agreement will at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
14.8. Severance
If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and will not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
(a) Subject to paragraph (b), no Party will issue or make any public announcement or disclose any information regarding this Agreement unless prior to such public announcement or disclosure it furnishes the other Party with a copy of such announcement or information and obtains the approval
of the other Party to its terms.
(b) No Party will be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this Agreement, or sent by facsimile to the facsimile number of the addressee.
14.11. Work, health and safety
L5 INC must comply with all relevant work, health, safety and welfare standards and regulations determined by You (the Client) or as prescribed by legislation.
14.12. Law and jurisdiction
This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in California, United States. The Parties submit to the non-exclusive jurisdiction of the courts of Los Angeles County, California, United States of America.
SCHEDULE 1 SPECIFICATIONS
(a) Consultancy Services
We make things that are awesome. The Parties agree to describe the services and or products to which the Consult will be providing.
(b) Fee
As provided and/or stated in accompanying QUOTE, Statement of Work (SOW), Invoice, Master Services Agreements (MSA) or request for payment
(c) Time
Any and all engagements subject to this Agreement are valid only in writing and upon acceptance of the applicable QUOTE, SOW, Invoice, MSA or payment request.