PROFESSIONAL SERVICES TERMS AND CONDITIONS
1. Services. The parties will execute one or more statement(s) of work, each of which will expressly reference, and be subject to these Terms and Conditions (each a “Statement of Work”). For each such Statement of Work, Qvinci will use reasonable commercial efforts to perform the services set forth in such Statement of Work (“Services”) and deliver the deliverables set forth in such Statement of Work (“Deliverables”) in accordance with the schedule specified therein.
2. Access and Equipment. Qvinci may require access to your premises or account to provide these Services. You agree to allow Qvinci reasonable access to the premises or accounts(s) and reasonable use of equipment, space, or data and basic office services at no charge, as necessary to provide the Services.
3. Cooperation. You shall cooperate with Qvinci in the performance by Qvinci of its Services hereunder. You shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Qvinci for purposes of the performance by Qvinci of its Services hereunder.
4. Billing Procedures and Compensation.
a. You agree to pay Qvinci for the Services and the Deliverables in accordance with the pricing listed in the applicable Statement of Work. Qvinci shall submit invoices to you at the end of each month for that month’s Services fees. You shall pay Qvinci the fees incurred and described on such invoice within thirty (30) days of receipt of the invoice. Late payments will bear interest at the rate of the U.S. prime rate plus 2.0%, or, if lower, the maximum rate allowed by law.
b. As necessary, upon submission of a report detailing Qvinci’s reasonable actual out-of-pocket expenses incurred in connection with the Services, you shall reimburse Qvinci for reasonable travel and other incidental expenses incurred in connection with the delivery of the Services within thirty (30) days of receipt of such report. Late payments will bear interest at the rate of the U.S. prime rate plus 2.0%, or, if lower, the maximum rate allowed by law.
5. Term/Termination.
a. These Terms and Conditions shall commence on the Effective Date and continue until the earlier of the date when (1) all Services have been performed and all Deliverables have been delivered or (2) these Terms and Conditions are terminated as provided below.
b. Either party may terminate these Terms and Conditions for any reason with thirty (30) days written notice. Upon termination of these Terms and Conditions, you agree to pay Qvinci all amounts due or accrued as of the date of such termination. If Qvinci terminates these Terms and Conditions due to your default, you shall immediately return to Qvinci, and cease all further use of, all Deliverables and all copies of any documents, encoded materials, any software, drawings, flow charts, structure charts, and recording media and other materials furnished to you or used by Qvinci in rendering the Services for which full payment has not been made, and any license granted to you for the same shall be revoked. You agree to reassign any rights granted by Qvinci to you for the same. Sections 4, 5, 6, 7 and 8 shall survive any termination or expiration of these Terms and Conditions.
c. If either party materially breaches these Terms and Conditions (including failure to make any payment hereunder), the other party may terminate these Terms and Conditions by giving the breaching party thirty (30) days written notice of such breach, unless the breach is cured within the thirty (30) day notice period.
6. Warranty and Disclaimer; Indemnity.
a. Qvinci agrees to perform the Services in a good and workmanlike manner.
b. EXCEPT AS SET FORTH IN THIS SECTION 6, QVINCI DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
c. Qvinci will, at its expense, defend or settle any third party claim brought against you alleging that the Deliverables, or any part thereof, when used by you within the scope of these Terms and Conditions, infringes a United States patent, copyright, trade secret or other US intellectual property right of any third party provided that you (a) promptly notify Qvinci in writing of such claim, (b) give Qvinci exclusive control and authority over and fully cooperate with Qvinci on the defense or settlement of such claim at Qvinci’s expense, and (c) do not enter into any settlement or compromise of any claim without Qvinci’s prior written consent. Qvinci has no obligation for any claim resulting from: (i) any infringement or infringement action arising by reason of any unauthorized use or any alteration by you of the Deliverables, (ii) use by you of the Deliverables in conjunction with any other software or hardware that contributes to the infringement, or (iii) if the Deliverables are not used in accordance with the terms of the Documentation. You shall indemnify, defend and hold Qvinci harmless from, and against, all losses or damages arising from, or related to, injury to persons and property arising from your, or your employees’, agents’ or contractors’ negligence, willful misconduct, or breach of these Terms and Conditions including, but not limited to, violations or infringements of IPR of Qvinci or third parties.
d. Except for a breach of obligations concerning the use of Confidential Information, or any obligations arising under Section 6(iii), to the extent not prohibited by applicable law: Each party’s CUMULATIVE aggregate liability to the other for claims relating to these Terms and Conditions, whether in contract or tort, will be limited to THE LICENSE OR SUBSCRIPTION FEE paid by You FOR THE SOFTWARE. Neither party will be liable for any indirect, punitive, special, incidental or consequential damages in connection with or arising out of these Terms and Conditions, or any loss of business, revenue, profits, use, data or other economic advantage, however it arises, whether in contract or tort, even if that party has been previously advised of the possibility of such damage. All direct, indirect, special, incidental, consequential and other damages and loss of profits are disclaimed on behalf of Qvinci’s licensors.
7. Ownership, Use and Support of Work Product.
a. “Intellectual Property Rights” (or “IPR”) means any and all right, title and interest in and to intellectual property and proprietary rights that are recognized in any country or jurisdiction, including without limitation patent rights (including without limitation patent applications and disclosures), know-how, inventions, (whether or not patentable), copyright rights, moral rights, trade or service marks, trade dress, mask works, rights of priority, and trade secret rights, and all improvements, derivative works, and modifications thereto.
b. Your Ownership. Qvinci acknowledges and agrees that you retain ownership of and will continue to retain ownership of any IPR in and to all materials or data that is provided by you (“Your Property”) to enable or assist Qvinci, in performing the Services.
c. Qvinci Ownership. You acknowledge and agree that Qvinci retains ownership of and will continue to retain ownership of all IPR in and to any materials, software, technology or data existing as of the Effective Date and used by Qvinci in connection with performance of the Services (“Qvinci Property”). You also acknowledge and agrees that Qvinci shall own all IPR in and to all inventions, improvements, works of authorship and other innovations of any kind (including, without limitation, any improvements or modifications to the Qvinci Property) that Qvinci or its subcontractors may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing, or as a result of, the Services (collectively, the “Work Product”).
d. Your License to Use Work Product. Qvinci grants to you a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license and right to use, reproduce, modify, display, perform, and prepare derivative works of any Qvinci Property or Work Product contained in the Deliverables for your internal business purposes, for use in conjunction with your use of the Qvinci product(s) licensed to you under the Qvinci Subscription Terms and Conditions between the parties.
e. License to Your Property. You hereby grant to Qvinci its subsidiaries and affiliates, under all of your IPR, a royalty-free, irrevocable, worldwide, non-exclusive license to Your Property, to use, reproduce, create modifications, translations and derivative works of, distribute, perform, and display Your Property for the sole purpose of performing the Services herein.
f. Maintenance and Support. You agree that Qvinci shall be under no obligation to maintain or support any Work Product, except as provided under separate Terms and Conditions. Qvinci is not responsible for obsolescence of any Work Product that may result from changes in your requirements or modifications or updates to any associated products or services used with the Work Product
8. In General.
a. Fax, email or electronic signatures will be acceptable as originals.
b. These Terms and Conditions incorporate and are subject to the Qvinci Subscription Terms and Conditions, including without limitation the definitions therein and its provisions governing Confidential Information. In the event that any provision of these Terms and Conditions is found to be invalid or unenforceable, it will be enforced to the extent permissible and the remainder of these Terms and Conditions will remain in full force and effect.
c. You represent that you are not an agent or unit of the United States government.
d. Neither party may assign these Terms and Conditions or any right or obligation hereunder, without the other party’s prior written consent, which will not be unreasonably withheld. However, either party may assign these Terms and Conditions to a surviving entity in a merger or consolidation in which it participates or to a purchaser of all or substantially all of its assets. Any other assignment will be void and of no force or effect. These Terms and Conditions will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
e. All notices will be in writing delivered by first class mail (return receipt requested), personal delivery, or email.
f. All fees paid under these Terms and Conditions are non-refundable.
g. The fees set forth in the applicable Statement of Work do not include taxes of any kind. If any such taxes are imposed, then such taxes will be billed to and are payable by you.
h. The sections on indemnity, warranty and liability allocate the risks under the Terms and Conditions between Qvinci and you. Qvinci’s pricing reflects this allocation of risk specified herein and is an essential element of the basis of the bargain between the parties.
i. You will not publish or disclose the results of benchmark or evaluation testing on the Work Product or Deliverable to any third party without the prior written consent of Qvinci.
j. The failure of a party to prosecute its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
k. These Terms and Conditions, including any exhibits, attachments and addenda, constitutes the complete Terms and Conditions between the parties with respect to its subject matter and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein.
l. No modification of these Terms and Conditions will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings, but documents executed by the parties electronically will be deemed signed writings. Additional Statement(s) of Work may be added to these Terms and Conditions by reference to these Terms and Conditions, the Effective Date and provided that each such Statement of Work is executed by both parties. In the event of a conflict between these Terms and Conditions and any such Statement of Work executed by both parties, the terms of such Statement of Work will control with respect to the Services and Deliverables specified in such Statement of Work.
m. No term or condition contained in your purchase order or similar document will apply unless specifically agreed to by Qvinci in writing, even if Qvinci has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by Qvinci.
n. Neither party shall be liable for any delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
o. At Qvinci’s reasonable request, you agree to act as a customer reference for Qvinci and to engage in other publicity activities mutually acceptable to the parties.