Professional Services Terms

(pdf)

THESE PROFESSIONAL SERVICES TERMS (“PS TERMS”) GOVERN EXARI’S PROVISION OF PROFESSIONAL SERVICES. BY EXECUTING AN ORDER FORM (AND SOW IF APPLICABLE) THAT REFERENCES THESE PS TERMS, CUSTOMER ACCEPTS AND AGREES TO ALL OF THE TERMS AND CONDITIONS HEREOF.

  1. Definitions. In addition to the capitalized terms defined upon first use in these PS Terms, certain capitalized terms are defined in the Schedule of Definitions included at the end of these PS Terms.
  2. Scope of Agreement.
    1. The capitalized term “PS Agreement” when used herein refers to the terms of an Order Form (insofar as such terms pertain to Professional Services) and SOW, if applicable, together with these PS Terms. If the Parties enter into more than one Order Form and SOW, then each additional applicable Order Form and SOW shall be deemed to form a new and separate PS Agreement between the Parties (and the phrase “this PS Agreement” shall be deemed to reference the particular PS Agreement required by the context, independently of and separately from each other PS Agreement or other agreement between the Parties), unless the additional Order Form or SOW specifically states that it is supplementing and amending an existing Order Form or SOW.
    2. If Customer also orders, pursuant to an Order Form, any Exari product or service offerings other than Professional Services (such as any of Exari’s generally available software product offerings, maintenance & support service offerings and/or software-as-a-service offerings), then such orders shall be governed exclusively by the applicable Exari terms for such offerings, which can be located at http://www.exari.com/legal/.
  3. Provision of Professional Services.
    1. Exari shall perform the Professional Services and deliver to Customer the Deliverables on the terms and subject to the conditions set forth in this PS Agreement. Exari shall have no obligation under or in connection with this PS Agreement to provide services that are not specified in an Order Form or SOW. Without limiting the foregoing, except to the extent specifically set forth in an Order Form or SOW, Exari shall have no obligation to provide maintenance or technical support services for any Deliverable provided under this PS Agreement.
    2. Customer shall cooperate fully with Exari in Exari’s provision of the Professional Services, including by (a) providing Exari, in a timely fashion, with access to such Customer premises, systems, personnel and information and (b) performing all tasks and providing all decisions, in a timely fashion, each as shall be reasonably required for the performance by Exari of the Professional Services. Exari shall not be liable for any delays caused in whole or in part by (i) any failure or delay on Customer’s part to comply with this Section 3.2 or to otherwise fulfill its obligations with respect to an SOW, (ii) inaccuracies in information provided by Customer; (iii) Customer-requested changes; (iv) changes in Customer personnel; or (v) other factors beyond the reasonable control of Exari (collectively, “Unforeseen Events”). If Exari determines that additional work on Exari’s part will be required as a result of an Unforeseen Event, Exari shall not be required to perform such additional work unless and until the Parties have executed a written change order covering such additional work pursuant to Section 3.3; however, if Exari nevertheless performs such additional work, Customer shall pay Exari for all such additional work at Exari’s then-current rates for the types of services rendered.
    3. Any changes to the scope of Professional Services under an Order Form or SOW shall be made only by written change order or amendment signed by an authorized representative of each Party prior to implementation of such changes.
    4. Customer will appoint and designate in writing a project manager to act as the primary contact person and focal point for all communications with Exari pursuant to this PS Agreement. Customer will promptly inform Exari of any change in the identity of such project manager. The project manager will have the power to make technical and project-level decisions within the scope of this PS Agreement that are binding on Customer.
    5. Exari reserves the right to determine in its sole discretion which of its personnel shall be assigned to perform the Professional Services, and to replace or reassign such personnel during the term of this PS Agreement. Exari may use Affiliates, subcontractors and other third parties in the performance of the Professional Services, provided that no such use of Affiliates, subcontractors or other third parties shall relieve Exari of its obligations under this Agreement.
    6. Unless otherwise specified in an applicable SOW, all Professional Services and Deliverables shall be deemed accepted by Customer upon receipt. If an SOW specifies that a particular Deliverable shall be subject to acceptance testing, then Customer shall have five (5) business days (or such other time period as may be specified in the SOW) (the “Acceptance Period”) to test such Deliverable in accordance with any procedures and criteria specified in the SOW (the “Acceptance Test”). If such Deliverable does not meet the requirements set forth in the SOW, Customer shall notify Exari of the nature and specifics of the nonconformity in sufficient detail to enable Exari to identify, understand and reproduce the nonconformity. Customer shall have no right to reject any Deliverable as nonconforming if such rejection is based in whole or in part on Customer’s request for additional items, services, deliverables, specifications or scope not set forth in the applicable SOW. For those Deliverables subject to acceptance testing, Exari shall work to correct nonconformities of which it has been notified during the Acceptance Test, and resubmit the affected Deliverable to Customer for re-testing within a reasonable period of time. If Customer does not notify Exari of any nonconformity during the Acceptance Period, the Deliverable shall be deemed accepted. The procedures specified in this Section 3.6 shall repeat until Customer accepts or is deemed to have accepted the Deliverable. Notwithstanding the foregoing, any Deliverable used in production operations shall be deemed accepted.
  4. Fees and Payment.
    1. Customer shall pay all fees and charges specified in each Order Form and/or SOW in accordance with the payment terms specified therein. Unless otherwise specified in an Order Form or SOW, Customer will be charged on a time and materials basis, at Exari’s standard rates current at the time of performance for the types of services rendered and, in addition, Customer will reimburse Exari for any Expenses incurred by Exari in connection with its performance of Professional Services.
    2. Unless otherwise specified in the Order Form or SOW, Exari will invoice Customer on a monthly basis and Customer shall pay all other fees and charges within thirty (30) days of the date of Exari’s invoice therefor.
    3. Customer acknowledges and agrees that all projections, estimates or budgets provided by Exari with respect to the Professional Services and Deliverables, whether in an SOW or otherwise (collectively, “Estimates”) represent non-binding estimates only, and that the actual fees and charges payable under this PS Agreement may exceed or otherwise differ from any Estimates. Exari shall use reasonable efforts to inform Customer in the event Exari determines that the fees or expenses chargeable under this PS Agreement will exceed any Estimate specified in the applicable SOW; however, no failure on Exari’s part to so inform Customer shall relieve Customer of its payment obligations with respect to the relevant Professional Services.
    4. Except as otherwise set forth in this PS Agreement, all payment obligations under an Order Form and/or SOW are non-cancelable and amounts paid are non-refundable. If Customer purchases prepaid Professional Services, Customer must make use of such prepaid Professional Services for the purpose specified in the applicable Order Form within the applicable Period of Service specified in such Order Form (or twelve (12) months after the date of the Order Form if no Period of Service is specified) and any prepaid Professional Services not used within such period shall be forfeit.
    5. Exari may charge Customer interest at the rate of one-point-five percent (1.5%) per month (or the highest rate allowable by law, if less) for any past due amounts, from the date payment was due until the date paid, other than with respect to any amount disputed by Customer in good faith where Customer is cooperating diligently to resolve the dispute. Customer shall bear any costs (including attorneys’ fees and costs) incurred by Exari in collecting any amounts due hereunder.
    6. Customer shall pay any sales, use, value added and other taxes and import duties (other than corporate income taxes payable by Exari) due as a result of any amounts paid by Customer to Exari under this PS Agreement.
    7. Customer shall not charge any fee to Exari related to invoice processing, and shall pay or reimburse Exari for any such fee charged by any third party that Customer requires Exari to use in connection with processing Exari’s invoices to Customer.
  5. Warranties.
    1. Each Party represents and warrants to the other Party that: (a) it has the full power and authority to enter into this PS Agreement and perform its obligations under this PS Agreement; and (b) the execution, delivery and performance of this PS Agreement by it does not violate, conflict with or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable law, regulation or order of any court or other tribunal, except where such violation, conflict or default would not materially impair such Party’s performance of its obligations or the other Party’s enjoyment of its rights under this PS Agreement.
    2. Exari further warrants to Customer that the Professional Services shall be performed with reasonable care and skill and in accordance with applicable professional standards. In the event of any nonconformance with any of the warranty specified in this Section 5.2, Customer will promptly (and in no event later than thirty (30) days after the non-conforming services were provided) notify Exari of such nonconformance and Exari will, following receipt of such notice from Customer, use commercially reasonable efforts to re-perform the nonconforming Professional Services. If Exari fails to do so within thirty (30) days, then Customer shall have the right to terminate this PS Agreement upon notice and recover any fees previously paid to Exari for the nonconforming Professional Services; provided, however, that such termination shall not be permitted if, within such thirty- (30) day period, Exari has provided Customer with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing sets forth the exclusive remedies of Customer, and the sole liability of Exari, in the event of any nonconformance with the warranty set forth in this Section 5.2 or otherwise with respect to any errors, defects or other problems with the Professional Services or Deliverables.
    3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, EXARI IS PROVIDING THE PROFESSIONAL SERVICES AND DELIVERABLES “AS IS” AND EXARI DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, EXARI DOES NOT WARRANT THAT ANY DELIVERABLES WILL MEET CUSTOMER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS OR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE OR SYSTEM.
    4. CUSTOMER ACKNOWLEDGES AND AGREES THAT EXARI IS NOT ENGAGED IN THE PRACTICE OF LAW AND IS NOT PROVIDING LEGAL ADVICE. IT IS THE RESPONSIBILITY OF CUSTOMER TO REVIEW AND DETERMINE THE SUITABILITY OF ANY DELIVERABLE OR OUTPUT GENERATED THEREFROM AND TO CONSULT ITS OWN INDEPENDENT LEGAL ADVISOR BEFORE USING ANY SUCH DELIVERABLE OR OUTPUT. EXARI DOES NOT WARRANT OR GUARANTEE THAT ANY LEGAL SUBJECT MATTER OR OTHER INFORMATION INCLUDED IN ANY SUCH DELIVERABLE OR OUTPUT OR OTHERWISE USED AND/OR MADE AVAILABLE BY EXARI IS ACCURATE, COMPLETE, CURRENT, LEGAL, LEGALLY EFFECTIVE OR VALID UNDER THE LAWS OF ANY JURISDICTION, OR FIT FOR ANY PURPOSE WHATSOEVER. BY PROVIDING THE PROFESSIONAL SERVICES AND DELIVERABLES AND/OR MAKING ANY SUCH INFORMATION AVAILABLE, EXARI IS NOT PROVIDING LEGAL ADVICE AND CUSTOMER SHALL NOT USE ANY DELIVERABLE OR OUTPUT GENERATED THEREFROM OR ANY SUCH OTHER INFORMATION AS A SUBSTITUTE FOR LEGAL ADVICE.
  6. Indemnification.
    1. Exari shall indemnify, defend and hold harmless Customer and its employees and agents from and against any loss, cost, damage or expense (but specifically excluding any indemnified Person’s attorneys’ fees and costs) in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third Person (each a “Claim”) alleging that the Deliverables as provided by Exari hereunder infringe any third Person’s rights in any copyright, trademark or United States or European Union patent, except to the extent the Claim arises in connection with or relates to (a) any data, information, specifications or other materials provided by or on behalf of Customer, including where Customer specified the form, content or functionality of the Deliverables alleged to be infringing; (b) the combination, operation or use of the Deliverables with other programs, hardware, data or specifications if a different combination would avoid the infringement; (c) Customer’s failure to install or have installed modifications or replacement Deliverables made available to Customer by Exari that would have avoided the infringement; or (d) the actual or alleged infringement of inventions, technologies or methods in widespread unlicensed use by third Persons at the time the Deliverables have been used by Customer. In the event of any actual Claim of infringement or if Exari has reason to believe that such a Claim may be brought, Exari may at its option and sole expense either (i) obtain the rights necessary to extinguish the infringement, or (ii) replace or modify the affected Deliverables to make them non-infringing while functionally equivalent in all material respects, or (iii) terminate Customer’s license to, and accept Customer’s return of, the affected Deliverables and refund to Customer all fees paid under this PS Agreement for such Deliverables. This Section 6.1 states Customer’s sole remedy and Exari’s entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third Person.
    2. Each Party shall indemnify, defend and hold harmless the other Party and its Affiliates and their respective employees and agents from and against any loss, cost, damage or expense (but specifically excluding attorneys’ fees and costs) in respect of any Claim that relates to the death, personal injury or damage to tangible, personal property resulting from the willful misconduct or gross negligence of the indemnifying Party’s employees or representatives.
    3. As a condition to the obligations of the indemnifying party under either of Sections 6.1 or 6.2 above, the indemnified Person shall: (a) promptly notify the indemnifying Party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay; (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense (provided that the indemnified Person shall not be entitled to compensation for time spent providing such cooperation). The indemnified Person shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.
  7. LIMITATIONS OF LIABILITY.
    1. EXCEPT FOR LIABILITY ARISING FROM A WILLFUL OR INTENTIONAL BREACH OF SECTION 9 (CONFIDENTIALITY) OR FROM A BREACH OF SECTION 10 (PROPRIETARY RIGHTS), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, OR ANY OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS PS AGREEMENT.
    2. EXARI’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS PS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL FEES AND CHARGES ACTUALLY PAID BY CUSTOMER TO EXARI UNDER THIS PS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.
    3. THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS PS AGREEMENT WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS (OR LACK THEREOF) OF ANY REMEDIES PROVIDED HEREIN. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE PROFESSIONAL SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS PS AGREEMENT.
    4. EACH PARTY SHALL TAKE, AND CAUSE ITS AFFILIATES TO TAKE, ALL REASONABLE STEPS TO MITIGATE ANY DAMAGES UPON BECOMING AWARE OF ANY EVENT OR CIRCUMSTANCE THAT WOULD BE REASONABLY EXPECTED TO, OR DOES, GIVE RISE TO AN INDEMNIFICATION CLAIM OR OTHER DAMAGES CLAIM ARISING UNDER OR IN CONNECTION WITH THIS PS AGREEMENT.
    5. ANY ACTION BY EITHER PARTY RELATED TO AN ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT BY THE OTHER PARTY, OTHER THAN A BREACH OF SECTION 9 (CONFIDENTIALITY) OR A BREACH OF SECTION 10 (PROPRIETARY RIGHTS), MUST BE COMMENCED WITHIN TWO YEARS AFTER THE DATE ON WHICH THE BREACH IS DISCOVERED. ANY ACTION NOT BROUGHT WITHIN THAT TWO-YEAR PERIOD SHALL BE BARRED, WITHOUT REGARD TO ANY LONGER LIMITATIONS PERIOD SET FORTH IN ANY APPLICABLE LAW OR STATUTE.
  8. Term and Termination.
    1. The term of this PS Agreement shall commence upon execution of the relevant Order Form or SOW and shall continue until the completion of all Professional Services thereunder.
    2. Either Party may terminate this PS Agreement by notice if the other Party breaches any material term of this PS Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party.
    3. Unless otherwise specified in the applicable SOW, either Party may terminate any SOW for any or no reason upon sixty (60) days’ notice to the other Party. No such termination shall relieve Customer of its obligation to pay fees and charges for Professional Services rendered or scheduled to be rendered prior to the effective date of such termination. Exari shall use reasonable efforts to mitigate the fees chargeable to Customer for Professional Services scheduled to be rendered between Exari’s receipt of Customer’s termination notice under this Section 8.3 and the effective date of termination by reassigning relevant personnel to other projects where practicable. For the avoidance of doubt, the foregoing shall not be construed as giving Customer the right to terminate any Order Form for prepaid Professional Services.
    4. Upon ten (10) days’ notice to Customer, Exari may suspend the Professional Services in whole or in part if Customer fails to make when due any payment required under this PS Agreement or under any other agreement entered into by the Parties. Upon receipt of payment in full of all overdue amounts, provided Customer is not otherwise in breach of this PS Agreement or any other agreement entered into by the Parties, Exari shall resume the suspended Professional Services as soon as reasonably practicable. Exari may also suspend the Professional Services in whole or in part if Customer otherwise breaches any term of this PS Agreement or any other agreement entered into by the Parties and fails to cure such breach within thirty (30) days after receipt of notice of the breach from Exari, until such time as the breach is cured. Any suspension hereunder shall be without limitation of any other right or remedy available to Exari.
    5. Either Party may terminate this PS Agreement immediately upon notice to the other Party if the other Party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.
    6. Upon the termination or expiration of this PS Agreement for any reason:
      1. Customer shall pay all amounts that have accrued and are owed hereunder within ten (10) days following any termination or expiration of this PS Agreement.
      2. If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, each Party shall be entitled to retain any records to the extent it has been advised in writing by counsel that such retention is required to comply with applicable law or regulation.
      3. Any provision of this PS Agreement which, by its nature, would survive termination or expiration of this PS Agreement shall survive any such termination or expiration.
  9. Confidentiality.
    1. Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not: (a) use such Confidential Information other than for the purposes of this PS Agreement; or (b) disclose any such Confidential Information to any third Person except those directors, officers, employees, subcontractors, consultants and agents of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this PS Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information using at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
    2. The obligations of the Parties under Section 9.1 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt notice and assistance to the disclosing Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy to protect against disclosure.
    3. Any breach of the confidentiality obligations set forth in this Section 9 would constitute a material breach of this PS Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach.
    4. This Section 9 will remain in effect during the term of this PS Agreement and for a period of five (5) years following termination or expiration of this PS Agreement for any reason.
    5. In the event that the provisions of this Section 9 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the Parties, then the terms of this Section 9 shall govern with respect to Confidential Information disclosed in connection with the subject matter of this PS Agreement.
  10. Proprietary Rights.
    1. As between the Parties, all Intellectual Property Rights in and to the Deliverables are and shall remain the sole property of Exari and its Affiliates and their respective licensors, as applicable, and Customer shall acquire no right of ownership or use with respect thereto except as expressly set forth in this PS Agreement. Subject to the terms of this PS Agreement, Exari grants to Customer, effective upon Customer’s timely payment in full of all fees and charges applicable thereto, a non-exclusive, non-transferable license under Exari’s Intellectual Property Rights in the Deliverables to make use of the Deliverables, during the term of Customer’s license to the Exari software product or service offering associated with the Deliverables and subject to any usage limitations specified in the applicable Order Form or SOW.
    2. As between the Parties, to the extent an SOW expressly designates any Deliverable created specifically for Customer thereunder as a “Work for Hire Deliverable,” such Work for Hire Deliverable together with any Intellectual Property Rights therein shall, upon Customer’s timely payment in full of all fees and charges applicable thereto and unless otherwise set forth in the applicable SOW, become the exclusive property of Customer and are hereby irrevocably assigned and transferred to Customer. The foregoing shall in no event apply to (a) any generally available product offerings of Exari (including software and documentation related thereto) and any improvements or modifications thereof, or (b) any other software, modules, components, designs, utilities, objects, program listings, models, templates, methodologies, frameworks, routines, interfaces, screen designs, instructions and items of a similar nature, owned or developed by Exari or its Affiliates prior to, or independently from, the performance of the Professional Services, and any improvements or modifications thereof made in connection with the Professional Services that do not perform functions specific to a Work for Hire Deliverable and/or that have application to Exari’s other clients or customers outside of this PS Agreement (collectively, “Background IP”). As between the Parties, all Background IP together with all Intellectual Property Rights therein and thereto are and shall remain the sole property of Exari and its Affiliates and licensors, as applicable. To the extent any Work for Hire Deliverable incorporates any Background IP, Exari grants Customer a non-exclusive license under Exari’s Intellectual Property Rights in such Background IP solely to the extent necessary for Customer to make use of such Work for Hire Deliverable for the purposes contemplated by the applicable SOW.
    3. If Customer provides or otherwise makes available to Exari any software, data or other materials belonging to Customer in connection with this PS Agreement, then Exari and its Affiliates and their respective employees and agents shall have the non-exclusive right and license to reproduce, modify and use the same in connection with the provision of the Professional Services.
  11. Employee Non-Solicit. During the term of this PS Agreement and for twelve (12) months thereafter, neither Party shall, directly or indirectly, solicit for employment any employee of the other Party that is or has been involved in the provision or receipt of the Professional Services, provided that general advertisements (and any discussions based upon responses thereto) shall not be deemed to be a breach of this Section 11.
  12. Insurance. Exari will maintain insurance coverage that is appropriate and adequate to cover its obligations under this PS Agreement, and will provide certificate(s) of insurance to Customer evidencing such coverage.
  13. Force Majeure. If either Party is unable to perform any obligation (excluding any payment obligation) under this PS Agreement because of any matter beyond that Party’s reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of either Party), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond a Party’s reasonable control (each, a “Force Majeure Event”), that Party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such Party shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.
  14. General Provisions.
    1. No waiver or modification of any of the provisions of this PS Agreement shall be binding unless in writing and signed by a duly authorized representative of each Party. Any forbearance or delay on the part of either Party in enforcing any of its rights under this PS Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence.
    2. This PS Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its choice of law principles. Any litigation between the Parties concerning this PS Agreement shall be subject to the exclusive jurisdiction of the state or federal courts in the Commonwealth of Massachusetts. Nothing contained in this Section 14.2 or in Section 14.3 below shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.
    3. The Parties will use commercially reasonable efforts to discuss and resolve in good faith any dispute arising under this PS Agreement as soon as practicable and without the necessity of any formal proceeding including, if requested in writing by either Party, by each appointing one or more senior management representatives not directly involved with the day-to-day provision or use of the Professional Services, who shall endeavor to resolve such dispute at a meeting to take place at a mutually agreeable time and place Unless otherwise agreed by the Parties, such meeting shall be scheduled within fourteen (14) days of the Party’s request, and the senior management representatives shall reach or abandon resolution within thirty (30) days following the Party’s request. Nothing contained in this Section 14.3 shall prevent Exari from exercising any right of suspension pursuant to Section 8.4.
    4. Customer shall not assign or otherwise transfer this PS Agreement, or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of law, without the prior written consent of Exari in each case. Any attempt to do any of the foregoing without Exari’s prior written consent shall be a material breach of this PS Agreement and any assignment or purported assignment without such consent shall be null and void ab initio. Subject to the foregoing, this PS Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
    5. Unless otherwise specified in this PS Agreement, any notice required or permitted to be sent under this PS Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to Exari or to Customer at the addresses for notices set forth in the Order Form or SOW, or as changed from time to time by notice. Such notices shall be effective when received.
    6. If any one or more of the provisions of this PS Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this PS Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision(s).
    7. The headings and other captions in this PS Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this PS Agreement. The words “including,” “include” and “includes,” and the phrases “by way of example,” “such as” and “for example” when used in this PS Agreement shall each be deemed to be followed by the words “without limitation.”
    8. This PS Agreement does not create or evidence a partnership, joint venture or any other fiduciary relationship between the Parties. The Parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this PS Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this PS Agreement.
    9. This PS Agreement constitutes the entire agreement between Parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, as well as any previous memoranda of understanding and side letters between the Parties with respect to such subject matter. In the event of any conflict, discrepancy or inconsistency between an Order Form or SOW and these PS Terms, the terms of the Order Form or SOW shall govern. Neither the course of conduct between Parties nor trade usage shall modify or alter this PS Agreement.
    10. Any Order Form or SOW may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Any Order Form or SOW may be executed and delivered by facsimile or other electronic image transmission.

Schedule of Definitions.

Affiliate” means, with respect to any entity, any other Person that directly or indirectly is controlled by or under common control with such entity. For purposes of this PS Agreement, a Person shall be deemed to have “control” over an entity if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least 50% of the issued and outstanding voting stock or other equity interest of such entity; or (b) such Person controls or has the power to control the management or operations of such entity, including by contract.

Customer” means the Person entering into this PS Agreement with Exari, as identified in the Order Form.

Confidential Information” means any information, including information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees, which is disclosed by the disclosing Party in connection with this PS Agreement whether before, on or after the Effective Date, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the receiving Party or any of its employees or designated agents. Confidential Information includes the terms of this PS Agreement. Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain or otherwise available on an unrestricted basis to one or more third Persons without violation of this PS Agreement by the receiving Party; (b) information that was known to or in the possession of the receiving Party on a non-confidential basis prior to the disclosure thereof to the receiving Party by the disclosing Party, as evidenced by written records; (c) information that was developed independently by or on behalf of the receiving Party, without use of or reference to the Confidential Information; or (d) information that is disclosed to the receiving Party by a third Person without violation of this PS Agreement by the receiving Party.

Deliverables” means any tangible work product resulting from the Professional Services that are delivered or required to be delivered by Exari to Customer pursuant to an Order Form or SOW.

Exari” means Exari Systems, Inc. or such other contracting Exari entity as may be specified in the Order Form.

Expenses” mean all reasonable costs, fees and charges agreed by Customer and incurred by Exari in connection with the rendering of any Professional Services, including those incurred for travel, meals, lodging, rental cars, hardware, software, consumables and materials. Where Customer has a reasonable Expense reimbursement policy in place, Customer may provide it to Exari in writing and upon acceptance by Exari, Exari will adhere to it.

Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind; (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.

Order Form” means an order form executed by the Parties with respect to Professional Services that incorporates by reference these PS Terms.

Party” means Customer or Exari and “Parties” means, collectively, both parties to this PS Agreement.

Period of Service” means the time period within which prepaid Professional Services are to be delivered.

Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture or other form of business or legal entity.

Professional Services” means consulting and professional services that Customer has ordered, and Exari has agreed to provide, pursuant to an Order Form and/or SOW.

Statement of Work” or “SOW” means a statement of work mutually agreed and executed by the Parties (or attached to an executed Order Form) that (a) incorporates by reference these PS Terms, (b) describes the Professional Services to be provided, and (c) may include additional details concerning specific requirements, assumptions, specifications, milestones and other terms applicable to such Professional Services.

Effective 10.16.15

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