PROFESSIONAL SERVICES TERMS
PROFESSIONAL SERVICES TERMS
Effective 8/16/2024
These Professional Services Terms (these “Terms”) govern Customer’s purchase and Service Provider’s provision of Professional Services. By executing a Statement of Work that references these 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 Terms, the following capitalized terms shall have the meanings set forth below in this Section 1:
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person. For purposes of this Agreement, a Person shall be deemed to have “control” over another Person 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 other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.
“Confidential Information” means any information disclosed by a Party to the other Party in connection with this Agreement, whether directly or indirectly, in writing, orally or by drawings or observation of equipment or software, that is marked or otherwise designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure, including the terms of any Statement of Work (including pricing), business and marketing plans, technology and technical information, product plans and designs, business processes, and information related to finances, costs, suppliers, vendors, customers and employees. 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 parties without violation of this 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 party without violation of this Agreement by the receiving Party.
“Customer” means the Person entering into this Agreement with Service Provider, as identified in the Statement of Work.
“Deliverables” means any tangible work product resulting from Professional Services that are delivered by Service Provider to Customer pursuant to a Statement of Work.
“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.
“Law” means any and all statutes, laws, ordinances, regulations, rules, codes and other requirement or rule of law of any federal, state, local or foreign governmental authority.
“Party” means Customer or Service Provider and “Parties” means, collectively, both parties to this Agreement.
“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 the consulting and professional services that Customer has ordered and Service Provider has agreed to provide pursuant to a Statement of Work.
“Service Provider” means CORE Higher Education Group, LLC, a Rhode Island limited liability company.
“Service Provider IP” means all software (including both source code and object code, as applicable), APIs, mobile applications, documentation, templates, designs (including screen and report designs), data, materials, technology and works created, utilized and/or provided by or on behalf of Service Provider in connection with the performance of this Agreement, including the Deliverables and all software used by Service Provider to perform the Professional Services, and all Intellectual Property Rights related to any of the foregoing.
“Statement of Work” means a statement of work mutually agreed and executed by the Parties that (a) incorporates by reference these Terms, (b) describes the Professional Services to be provided thereunder and the fees and other charges payable by Customer to Service Provider in respect thereof, and (c) may include additional terms and conditions agreed upon by the Parties with respect to such Professional Services.
2. Scope of Agreement.
2.1. This Agreement is comprised of (and the term “this Agreement” refers to) the Statement of Work together with these Terms. If the Parties enter into more than one Statement of Work, then each Statement of Work shall be deemed to form a new and separate agreement between the Parties (and the term “this Agreement” shall be deemed to refer to the particular agreement required by the context, independently of and separately from each other agreement between the Parties) unless the additional Statement of Work specifically states that it is supplementing and amending an existing Statement of Work.
2.2. In the event of any conflict, discrepancy or inconsistency between a Statement of Work and these Terms that is not expressly resolved in the documents, the terms of the Statement of Work will control.
2.3. Any changes to the scope of the Professional Services shall be made only by written change order or amendment signed by an authorized representative of each Party prior to implementation of such changes.
2.4. The Deliverables may contain or support features designed to integrate or interoperate with software applications, online services or other products and services offered by third parties (collectively, “Third-Party Offerings”). Any acquisition, access or use by or on behalf of Customer of Third-Party Offerings, including the availability and performance of any Third-Party Offerings, is solely between Customer and the applicable third-party provider and Service Provider shall have no liability to Customer in connection therewith. Service Provider does not warrant or support Third-Party Offerings or any related integrations, and Service Provider makes no representations or warranties, express or implied, as to the availability, performance, legality or non-infringement of any Third-Party Offerings or related integrations or interoperation.
3. Provision of Professional Services.
3.1. Service Provider shall provide the Professional Services and deliver to Customer the Deliverables on the terms and subject to the conditions set forth in this Agreement. Service Provider shall have no obligation under or in connection with this Agreement to provide services that are not specified in a Statement of Work. Without limiting the foregoing, except to the extent specifically set forth in a Statement of Work, Service Provider shall have no obligation to provide maintenance or technical support services for any Deliverable provided under this
Agreement
3.2. Customer shall cooperate fully with Service Provider in its provision of the Professional Services, including by (a) providing Service Provider, 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 provision of the Professional Services. Service Provider 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 a Statement of Work, (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 Service Provider (collectively, “Unforeseen Events”). If Service Provider determines that additional work on Service Provider’s part will be required as a result of an Unforeseen Event, Service Provider 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 2.3; however, if Service Provider nevertheless performs such additional work, Customer shall pay Service Provider for all such additional work at Service Provider’s then-current rates for the types of services rendered.
3.3. Service Provider 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 at any time. Service Provider 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 Service Provider of its obligations under this Agreement.
3.4. Unless otherwise specified in an applicable Statement of Work, all Professional Services and Deliverables shall be deemed accepted by Customer upon receipt. If the Statement of Work 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 Statement of Work) (the “Acceptance Period”) to test such Deliverable in accordance with any procedures and criteria specified in the Statement of Work (the “Acceptance Test”). If such Deliverable does not meet the requirements set forth in the Statement of Work, Customer shall notify Service Provider of the nature and specifics of the nonconformity in sufficient detail to enable Service Provider 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 Statement of Work. For those Deliverables subject to acceptance testing, Service Provider 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 Service Provider of any nonconformity during the Acceptance Period, the Deliverable shall be deemed accepted. The procedures specified in this Section 3.4 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, Expenses and Payment.
4.1. Customer shall pay all fees and charges as specified in the Statement of Work in accordance with the payment terms specified therein.
4.2. Unless otherwise specified in a Statement of Work, Customer will be charged for Professional Services on a time and materials basis monthly in arrears, at Service Provider’s standard rates current at the time of performance for the types of Professional Services rendered and, in addition, Customer will reimburse Service Provider for all reasonable costs and expenses incurred by Service Provider with Customer’s approval in connection with the rendering of any Professional Services, including those incurred for travel, meals, lodging, rental cars, hardware, software, consumables and materials. Customer acknowledges and agrees that all projections, estimates or budgets provided by Service Provider with respect to Professional Services and Deliverables, whether in a Statement of Work or otherwise (collectively, “Estimates”) represent non-binding estimates only, and that the actual fees and charges payable for Professional Services may exceed or otherwise differ from any Estimates. Service Provider shall use reasonable efforts to inform Customer in the event Service Provider determines that the fees or expenses chargeable for Professional Services will exceed any Estimate specified in the applicable Statement of Work; however, no failure on Service Provider’s part to so inform Customer shall relieve Customer of its payment obligations with respect to the relevant Professional Services.
4.3. Unless otherwise specified herein or in the applicable Statement of Work, Customer shall pay all properly invoiced fees and charges within thirty (30) calendar days of the date of Service Provider’s invoice therefor.
4.4. If any invoiced amount is not received by Service Provider by the due date, then without limiting Service Provider’s rights or remedies, Service Provider may charge Customer interest at the rate of 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 Service Provider in collecting any amounts due hereunder.
4.5. Service Provider fees do not include and Customer shall pay any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes and import duties, assessable by any jurisdiction whatsoever (other than corporate income taxes payable by Service Provider) due as a result of any amounts paid by Customer to Service Provider under this Agreement. Such amounts may, but are not required to be, identified in a Statement of Work.
4.6. Customer shall not charge any fee to Service Provider related to invoice processing, and shall pay or reimburse Service Provider for any such fee charged by any third party that Customer requires Service Provider to use in connection with processing Service Provider’s invoices to Customer.
5. Warranties.
5.1. Each Party represents and warrants to the other Party that (a) it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement, and (b) the execution, delivery and performance of this 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, 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 Agreement.
5.2. Service Provider 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 the warranty specified in this Section 5.2, Customer will promptly (and in no event later than thirty (30) days after the non-conforming Professional Service was provided) notify Service Provider of such nonconformance and Service Provider will, following receipt of such notice from Customer, use commercially reasonable efforts to reperform the nonconforming Professional Services. If Service Provider fails to do so within thirty (30) days of such notice, then Customer shall have the right to terminate this Agreement upon notice and recover a refund of any fees paid to Service Provider for the nonconforming Professional Services; provided, however, that such termination shall not be permitted if, within such thirty (30)-day period, Service Provider has provided Customer with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing set forth the exclusive remedies of Customer, and the sole liability of Service Provider, 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.
5.3. EXCEPT AS EXPRESSLY PROVIDED ABOVE IN THIS SECTION 5, SERVICE PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THE PROFESSIONAL SERVICES OR DELIVERABLES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVICE PROVIDER IS PROVIDING THE PROFESSIONAL SERVICES AND DELIVERABLES ON AN “AS IS” BASIS AND SERVICE PROVIDER DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL SERVICES AND DELIVERABLES OR THEIR PERFORMANCE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, SERVICE PROVIDER DOES NOT WARRANT THAT THE PROFESSIONAL SERVICES OR 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. IN ADDITION, SERVICE PROVIDER DOES NOT WARRANT THAT THE PROFESSIONAL SERVICES OR DELIVERABLES WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF THE PROFESSIONAL SERVICES AND ANY DELIVERABLES ARE IN ACCORDANCE WITH APPLICABLE LAW.
5.4. NEITHER SERVICE PROVIDER NOR ANY OF THE PROFESSIONAL SERVICES OR DELIVERABLES ARE INTENDED TO PROVIDE MEDICAL, LEGAL, TAX, ACCOUNTING OR OTHER PROFESSIONAL ADVICE. It is the responsibility of Customer to review and determine the suitability of any Deliverables and to consult independent medical, legal, tax, accounting or other professional advice before using any Deliverables.
6. Indemnification.
6.1. Service Provider shall defend (or at its option settle) any claim, demand, action, suit or other judicial proceeding brought or asserted by a third party (each a “Claim”) against Customer alleging that the Deliverables as provided by Service Provider hereunder infringe any third party’s rights in any copyright, trademark or United States or European Union patent, and Service Provider shall indemnify and hold Customer harmless from and against all damages, costs and expenses associated with the final resolution of any such Claim whether by litigation, arbitration or mediation or settlement agreed to by Service Provider, in each case except to the extent the Claim (a) relates to information, content, specifications or 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) relates to use of the Deliverables in combination with any software, hardware, network or system not supplied by Service Provider where the Claim would have been avoided in the absence of such combination, (c) relates to the actual or alleged infringement of inventions, technologies or methods in widespread unlicensed use by third parties at the time the Deliverables have been used by Customer and/or (d) is subject to Customer’s indemnification obligations under Section 6.2. In the event of any Claim of infringement or if Service Provider has reason to believe that such a Claim may be brought, Service Provider may at its option and sole expense either (i) obtain the rights necessary to extinguish or avoid the infringement, (ii) replace or make modifications to the affected Deliverables to avoid the infringement 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 Agreement for such Deliverables. This Section 6.1 states Customer’s sole remedy and Service Provider’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 party.
6.2. Customer shall defend (or at its option settle) any Claim against Service Provider, and Customer shall indemnify and hold Service Provider harmless from and against all damages, costs and expenses associated with the final resolution of any such Claim whether by litigation, arbitration or mediation or settlement agreed to by Customer, that relates to (a) any information, content, specifications or materials provided by or on behalf of Customer for use in connection with the Professional Services, or (b) the use by Customer of the Professional Services or Deliverables in breach of this Agreement or in violation of applicable Law or third party rights.
6.3. As a condition to the obligations of the indemnifying party under either of Sections 6.1 or 6.2, 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.
7.1. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 9 (CONFIDENTIALITY), OR FROM A BREACH BY CUSTOMER OF SECTION 10 (PROPRIETARY RIGHTS), OR FROM CUSTOMER’S FAILURE TO PAY AMOUNTS DUE UNDER THIS AGREEMENT, 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 AGREEMENT.
7.2. SERVICE PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.
7.3. THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS 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 SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.
8. Term and Termination.
8.1. The term of this Agreement shall commence upon execution of the relevant Statement of Work and shall continue until the completion of all Professional Services thereunder.
8.2. Unless otherwise specified in the applicable Statement of Work, either Party may terminate any Statement of Work for any or no reason upon thirty (30) 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. Service Provider shall use reasonable efforts to mitigate the fees chargeable to Customer for Professional Services scheduled to be rendered between its receipt of Customer’s termination notice under this Section 8.2 and the effective date of termination by reassigning relevant personnel to other projects where practicable.
8.3. Either Party may terminate this Agreement by notice if the other Party breaches any material term of this 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.
8.4. Either Party may terminate this 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.
8.5. Upon the termination or expiration of this Agreement for any reason:
(a) Customer shall pay all amounts that have accrued or are otherwise owed hereunder within ten (10) days following any termination or expiration of this Agreement.
(b) If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed in writing, 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 Confidential Information to the extent it has been advised by counsel that such retention is required to comply with applicable Law.
(c) Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.
9. Confidentiality.
9.1. 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 Agreement or (b) disclose any such Confidential Information to any third party except those directors, officers, employees, subcontractors and agents of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this 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.
9.2. 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.
9.3. Any breach of the confidentiality obligations set forth in this Section 9 would constitute a material breach of this 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.
9.4. This Section 9 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason. Notwithstanding the foregoing, any Confidential Information that qualifies as trade secret under applicable Law shall remain subject to protection in accordance with such applicable Law notwithstanding the expiration of such five (5) year period.
9.5. 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 Agreement.
10. Proprietary Rights.
10.1. As between the Parties, all Intellectual Property Rights in and to the Deliverables and other Service Provider IP are and shall remain the sole property of Service Provider 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 Agreement. Subject to the terms of this Agreement, Service Provider 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 Service Provider’s Intellectual Property Rights in the Deliverables to make use of the Deliverables, during the term of Customer’s subscription to the Service Provider software product or service offering associated with the Deliverables and subject to any usage limitations specified in the applicable Statement of Work.
10.2. If Customer provides or otherwise makes available to Service Provider any software, data or other materials belonging to Customer in connection with this Agreement, then Service Provider 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. Force Majeure. If either Party is unable to perform any obligation (excluding any payment obligation) under this Agreement because of any matter beyond that Party's reasonable control, such as any act of God, lightning, flood, exceptionally severe weather, fire, explosion, war, terrorism, pandemic, 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 or the Internet, attacks on networks or other cyber infrastructure, issues caused by a Third-Party Offering 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.
12. Employee Non-Solicitation. Without Service Provider’s prior written consent, Customer will not during the term of this agreement and for a period of twelve (12) months thereafter, directly or indirectly, solicit for employment or employ any person who is or has been an officer, director or employee of Service Provider or any of its Affiliates at any time during the term of this Agreement; provided, however, that the foregoing shall not prohibit: (a) any general advertisements not targeted Service Provider, any of its Affiliates or any of their respective personnel, (b) any solicitation of individuals who have terminated their employment with Service Provider and its Affiliates and have not been employed for a period of at least one (1) year prior to any such solicitation, or (c) the hiring of any individuals as a result of any of the aforementioned solicitations.
13. Certain Regulatory Matters. The Deliverables and associated technical data are subject to U.S. export control Laws and may be subject to export or import Laws in other countries. Service Provider authorizes use of the Deliverables and associated technical data only with software and hardware obtained and used in compliance with applicable export control Laws. Each Party shall comply with applicable export control Laws in providing and using the Deliverables. Without limiting the foregoing, Customer represents, warrants and covenants: (a) that it is not named on the U.S. Department of Treasury, Office of Foreign Asset Controls list of Specially Designated Nationals and Blocked Persons or on any other U.S. or other applicable government lists of prohibited, restricted or sanctioned parties; (b) that it will not and does not intend to use or permit anyone else to use any of the Professional Services or Deliverables for or in connection with the design, development or production of nuclear, biological or chemical weapons, missiles or unmanned aerial vehicles; and (c) that it will not make, cause or facilitate any release, export, re-export, dissemination, distribution or other form of transfer, directly or indirectly, of any Deliverables to any destination or person, or for any use (i) within any country or territory subject to territorial embargoes of the United States, United Kingdom, European Union, Australia or Canada, including Cuba, Iran, North Korea, Syria, or the occupied Crimea, Donetsk and Luhansk regions, (ii) by any Person listed on any U.S. or other applicable government list of prohibited, restricted or sanctioned parties or (iii) otherwise in violation of any U.S. or otherwise applicable export Law.
14. General Provisions.
14.1. No waiver or modification of any of the provisions of this 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 Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence.
14.2. This Agreement, all related documents and all matters arising out of or relating to this Agreement, whether in contract, tort or statue, shall be governed by, and construed in accordance with, the laws of the State of Delaware, including Del. Code Ann. Tit. 6 Section 2708, without giving effect to the conflict of laws provisions thereof to the extent such principles would require or permit the application of the laws of any other jurisdiction. Any action arising from or relating to this Agreement shall be brought exclusively in a state or federal court of competent jurisdiction in the State of Delaware, and the Parties irrevocably and unconditionally consent and submit to such exclusive jurisdiction, forum and venue and agree not to assert any defenses of forum non conveniens or any other defenses in opposition to such exclusive jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION. Nothing contained in this Section 14.2 shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.
14.3. Neither Party shall assign or otherwise transfer this Agreement or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of Law, without the prior written consent of the other Party in each case. Notwithstanding the foregoing, Service Provider may freely assign or otherwise transfer this Agreement without Customer’s consent to any Affiliate or in connection with a merger, corporate reorganization or sale of all or substantially all of Service Provider’s business or assets to which this Agreement relates. Any purported assignment or transfer in contravention of this Section 14.3 shall be null and void ab initio. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
14.4. Unless otherwise specified in this Agreement, any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to Service Provider or to Customer at the respective address set forth in the Statement of Work or as changed from time to time by notice. Such notices shall be effective when received.
14.5. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this 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).
14.6. The headings and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement. The words “including,” “include” and “includes,” and the phrases “by way of example,” “such as” and “for example” when used in this Agreement shall each be deemed to be followed by the words “without limitation.”
14.7. This 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 Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this Agreement.
14.8. This Agreement constitutes the entire agreement between the 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. Without limiting the foregoing, terms and conditions on any Customer purchase order are expressly rejected and superseded by the terms and conditions set forth in this Agreement. Neither the course of conduct between Parties nor trade usage shall modify or alter this Agreement.
14.9. Any Statement of Work 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 Statement of Work may be executed and delivered by facsimile or other electronic image transmission including PDF.