Terms of Agreement
Terms of Service
1. Scope of Services
1.1 Service Provider agrees to provide the services (“Services”) described below and/or on separately executed statements of work (the “SOW”) as may from time to time be issued hereunder.
2. Price and Payment
2.1 The Services provided by Service Provider shall be at the pricing set forth in the applicable SOW. In the event a SOW does not reference any specific pricing or the Services are not referenced in the SOW, such Services shall be performed at Service Provider’s then-current standard time and material rates and charges.
2.2 Service Provider will submit invoices for charges and expenses hereunder weekly. Client shall make payment of each invoice in US dollars within thirty (30) days from the invoice date. Client shall reimburse Service Provider for all reasonable travel, food, lodging and other out-of-pocket expenses incurred in performance of a given Service.
2.3 Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
2.4 The charges required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Client shall reimburse Service Provider and hold Service Provider harmless from all sales, use, VAT, excise, property, or other taxes or levies which Service Provider is required to collect or remit to applicable tax authorities. This provision does not apply to Service Provider’s income or franchise taxes, or any taxes for which Client is exempt, provided Client has furnished Service Provider with a valid tax exemption certificate.
3. Confidential Information
3.1 Each party agrees at all times to keep strictly confidential all Confidential Information (as hereafter defined) belonging to the other party. “Confidential Information” shall mean any information, technical data or know-how including, but not limited to, that which comprises or relates to the other party’s confidential and proprietary trade secrets, hardware, software (source code and object code), screens, specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, customer names and other information related to customers, price lists, pricing policies and financial information or other business and/or technical information and materials, in oral, demonstrative, written, electronic, graphic or machine-readable form and any analyses, compilations, studies or documents related thereto.
3.2 Each party shall at all times protect and safeguard the Confidential Information of the other and agrees not to, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information. The parties agree, however, that Service Provider may disclose Confidential Information on a confidential basis to a Third Party Consultant in connection with any work that the Third Party Consultant is performing on behalf of Service Provider.
3.3 Each party acknowledges that the other party shall have the right to take all reasonable steps to protect its Confidential Information, including, but not limited to, seeking injunctive relief and any other remedies as may be available at law or in equity in the event the other party does not fulfill its obligations under this Section.
3.4 Each party agrees to restrict access to the other party’s Confidential Information only to those employees and/or Third Party Consultants who (i) require access in the course of their assigned duties and responsibilities, and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
3.5 Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is, or at any time becomes, a part of the public domain through no act or omission of the receiving party; (ii) is independently discovered or developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the party whose Confidential Information is to be so disclosed so that such party may seek a protective order and/or engage in other efforts to minimize the required disclosure. The parties shall cooperate in seeking the protective order and engaging in such other efforts.
3.6 Nothing in this Agreement shall preclude Service Provider from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Service Provider in the performance of Services hereunder.
4.1 In the event Service Provider is required to develop any custom computer Deliverables and/or related documentation (the “Deliverables”) hereunder, the ownership of such Deliverables shall be specified in the applicable SOW.
4.2 Client agrees that for any Deliverables to which Client is not expressly assigned ownership pursuant to a SOW, such Deliverable shall not be considered to be a works made for hire and shall be exclusively owned by Service Provider, and that no ownership rights thereto shall accrue in any manner to Client. However, upon payment for the applicable Deliverables Service Provider grants to Client, at no additional charge, a worldwide, nonexclusive, license (i) to modify and otherwise create derivative works based on the Deliverables and (ii) to reproduce, distribute, perform and display (publicly or otherwise), and otherwise use and exploit the Deliverables and derivative works thereof solely as described in the applicable SOW.
4.3 For any Deliverables to which Client is assigned ownership, upon payment for the applicable Deliverable, Service Provider agrees that the copyright in any portions of such Deliverables that are developed specifically for Client under such SOW (“Custom Elements”) shall be owned by Client and shall be deemed to have been assigned to Client upon delivery of the Deliverable and payment. To the extent that any Deliverable incorporates any software or other materials (including design, coding, user interfaces, visual elements and data models) developed prior to or independently of the Services for Client or for which Client does not pay (“Non-Custom Elements”), Service Provider retains ownership in such Non-Custom Elements and upon payment for the Deliverable incorporating the Non-Custom Elements, grants to Client a worldwide, nonexclusive, license to reproduce, distribute, perform and display (publicly or otherwise), and otherwise use and exploit the Non-Custom Elements and derivative works thereof solely as described in the applicable SOW.
4.4 Notwithstanding anything contained herein, all general know-how, systems, software (including any modifications, enhancements, and updates), documentation, tools, utilities, methodologies, specifications, techniques and other materials resulting from Service Provider’s performance of the Services (together with the intellectual property rights therein but excluding any Client Confidential Information) shall vest in Service Provider. Furthermore, notwithstanding anything to the contrary in the Agreement or in a SOW, Client hereby grants to Service Provider a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, transferable, sub-licensable license to (i) modify and otherwise create derivative works based on Generic Components and (ii) reproduce, distribute, perform and display (publicly or otherwise), and otherwise use and exploit the Generic Components and derivative works thereof. “Generic Components” shall mean any code, algorithm, materials, process or other items of Deliverables that have been developed or created by Service Provider that are owned by Client and do not include or disclose any Client Confidential Information.
4.5 Service Provider shall have no maintenance or support obligations with respect to any Deliverables or any other software (including design, coding, user interfaces, visual elements, and data models), materials, and/or related documentation provided to Client by Service Provider under this Agreement.
5. Client’s Facilities
5.1 To the extent required by Service Provider, Client will make available to Service Provider certain of its facilities, computer resources, software, networks, personnel, and business information as are required to perform any Service hereunder.
5.2 Service Provider agrees to comply at all times with Client’s rules and regulations regarding safety, security, and conduct which Client provides to Service Provider in writing.
6.1 Service Provider warrants that it has the right to enter into this Agreement and that all Services performed under this Agreement shall be performed in a workmanlike and professional manner.
6.2 EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, SERVICE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6.3 Limitation of Liability. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF CHARGES PAID BY CLIENT FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES IN THE SIX (6) MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
6.4 Limitation of Liability. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOOD WILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
7.1 This Agreement or any SOW hereunder may be terminated prior to expiration or completion in accordance with the following:
7.1.1 By Service Provider if Client fails to make any payments due hereunder within fifteen (15) days after Service Provider delivers notice of default to Client.
7.1.2 By either party without cause on thirty (30) days prior written notice. However, no such termination shall be effective until all applicable SOWs have been completed.
7.1.3 By either party in the event the other (i) has failed to perform any obligation required to be performed under this Agreement or a SOW and such failure is not corrected within thirty (30) days from receipt of written notice advising of such failure from the other party; or (ii) files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern and such determination is not rescinded within sixty (60) days.
7.2 Client shall pay a prorata portion of any Service, which is incomplete at the time of termination and for which payments have not been made, and upon such payment Service Provider shall deliver to Client copies of all such incomplete work.
7.3 Upon termination or expiration of this Agreement or any SOW, each party shall deliver to the other all copies of all applicable Confidential Information of the other party and Client shall return or destroy all source code and object code versions of the Deliverables.
8. General terms and conditions
8.1 Independent Contractor. Service Provider is an independent contractor and nothing in this Agreement shall be deemed to make Service Provider an agent, employee, partner or joint venturer of Client. Neither party shall have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
8.2 Expenses and Attorneys’ Fees. In the event any action, including arbitration, is brought to enforce any provision of this Agreement or any SOW or to declare a breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees.
8.3 Assignment. Client may not assign or transfer its rights under this Agreement whether by operation of law, change of control, or in any other manner, without the prior written consent of Service Provider. Any attempt to assign or transfer this Agreement by Client shall be void.
8.4 Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Service Provider shall be sent to the attention of the President with a copy to the General Counsel.
8.5 Force Majeure. Service Provider shall not be liable to Client for any delay or failure of Service Provider to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Service Provider. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by Client in providing required resources or support or performing any other requirements hereunder.
8.6 Reservation of Rights. Service Provider reserves all rights not specifically granted herein.
8.7 Entire Agreement. This Agreement and its SOWs constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals, prior discussions and writings between the parties with respect thereto. The terms and conditions of any purchase order or other instrument issued by Client in connection with this Agreement shall not be binding on Service Provider.
8.8 Modification. The parties agree that this Agreement cannot be altered, amended or modified, except in writing which is signed by an authorized representative of both parties.
8.9 Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Client agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Third Party Consultant of Service Provider without the prior written consent of Service Provider. Client further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Third Party Consultant of Service Provider for a period of one (1) year from such former employee’s or Third Party Consultant’s last date of service with Service Provider. Violation of this provision shall entitle Service Provider to assert liquidated damages against Client equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
8.10 Headings. Headings are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof.
8.11 No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
8.12 Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
8.13 Survival. The provisions set forth in Sections 2, 3, 4, 6.2, 7, and 9 of this Agreement shall survive termination or expiration of this Agreement.
8.14 Publicity. Client agrees to cooperate with Service Provider (i) in providing oral and/or written references to Service Provider’s prospective customers; (ii) in providing oral and/or written references to press and industry analysts; and (iii) in delivering pre-approved quotations to be used in Service Provider’s sales and marketing materials. Service Provider may include Client’s tradename and logo on publicly displayed customer lists (including Service Provider’s Internet Web Site) only upon written, signed consent by Client.
8.15 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF. ANY ACTION OR SUIT RELATED TO THIS AGREEMENT SHALL BE BROUGHT IN AUSTIN, TEXAS AND EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.