Terms & Conditions for Professional Services
All estimates, sales, and deliveries of professional services to you ("Customer") by The Virant Group, Inc., its subsidiaries or affiliates ("Seller") are subject to the following terms and conditions.
Project Authorization
If required by Seller or if requested by Customer, the parties shall in good faith negotiate Statement of Work (each a "SOW"), each of which upon signing shall be deemed to be governed by these Terms & Conditions. Customer warrants that the individual executing the SOW is a duly authorized representative for Customer. If Seller and Customer do not execute a SOW with respect to Professional Services, the parties shall execute a Seller generated estimation (each an "Estimate"), each which upon signing shall be deemed to be governed by these Terms and Conditions.
Payment for Services
Professional Services fees are invoiced in full upon receipt of an order, with payment terms of Net 30, except as otherwise specified on the applicable SOW. The fees specified in the SOW or the Estimate, as applicable, are the total fees and charges for the Professional Services and will not be increased during the term of the SOW or the Estimate, as applicable, except as the parties may agree in writing. If any change affects the time or cost of performance under the applicable SOW or Estimate, an adjustment in the time and/or compensation to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective. Seller shall be reimbursed for the travel expenses specified in the SOW or the Estimate, if any. If dates Seller is scheduled to be onsite are changed or cancelled by Customer within fourteen (14) days of the scheduled date, Customer shall be assessed a cancellation fee of $5,000 in addition to any travel related fees and penalties.
Term and Termination
These terms and conditions shall remain in effect from the effective date of the applicable SOW or Estimate through the completion of Professional Services contemplated in the SOW or the Estimate. A SOW or the Estimate with respect to Professional Services shall become effective on the Effective Date listed on the applicable SOW or Estimate ("Services Effective Date") and shall expire on the date that Professional Services are completed thereunder ("Services Termination Date"). Either party may terminate the SOW or the Estimate, as applicable, upon written notice given to the other party, if the other party materially breaches such SOW or Estimate and fails to cure such breach within thirty (30) days following receipt of notice describing the breach. Customer shall be liable only for payment for Professional Services rendered through the termination date, and shall receive from Seller a pro-rata refund of any unused prepaid fees for Professional Services. The obligation to make payment, to protect confidential information and license to use the intellectual property developed hereunder shall survive termination as described in these Terms and Conditions.
Provision of Professional Services
Seller will perform Professional Services based on a schedule mutually agreed upon between Seller and Customer. Any Professional Services performed at Customer's premises will be performed during Seller' regular working hours. Seller shall not be obligated to provide Professional Services unless (i) the Professional Services are scheduled within six (6) months after Seller receives an order from Customer for such Professional Services, and (ii) the Professional Services are delivered within nine (9) months after Seller' receipt of such order document. Professional Services will ordinarily be performed by a Seller service representative or other authorized representative of Seller. Customer agrees, however, that Seller, in its sole discretion, may provide the Professional Services through a third party representative.
Access
Customer shall make available to Seller a qualified employee who is familiar with the work Seller is undertaking. Customer shall provide Seller with adequate access to the hardware and software that are the subject of the Professional Services to be provided under the applicable SOW or Estimate.
Compliance with Rules
While on Customer's premises to perform the Professional Services, Seller's representative shall abide by all reasonable rules and regulations of Customer applicable to the use of Customer's premises, but only if Seller has been given a written copy of any rules and regulations prior to the scheduled start of the Professional Services.
Ownership of Work Product; License
For purposes of these Terms and Conditions, "Work Product" shall include, without limitation, all designs, discoveries, creations, works, devices, models, work in progress, deliverables, inventions, products, computer programs in object or source code, procedures, improvements, developments, drawings, notes, documents, information and materials made, conceived or developed by Seller, alone or with others, which result from the Professional Services performed hereunder. Work Product excludes Customer's pre-existing proprietary business information and the results of any compilation thereof that are used in or result from Professional Services, and such Customer information or compilation shall remain the sole property of Customer. Seller shall be the sole and exclusive owner of all right, title, and interest in and to all Work Product including all associated intellectual property rights and moral rights therein. Provided that Customer is not in material breach of any provision of these Terms and Conditions or the applicable SOW or Estimate, Seller hereby grants Customer a worldwide, perpetual (subject to termination for Customer's material breach), non-exclusive, non-transferable, non-sublicensable license to use any Work Product provided to Customer under these Terms and Conditions, solely in connection with Customer's use of the results of the Professional Services and Seller software.
No Performance Warranty
Provided that Customer performs its obligations to Seller under these Terms and Conditions and the applicable SOW or Estimate, Seller warrants to Customer that the Professional Services performed by Seller will be performed consistent with generally accepted industry practice. Seller's warranty shall expire 30 days after the applicable Services Termination Date or earlier termination. Seller's warranty shall only be effective if Customer notifies Seller of the breach of warranty within 30 days after the applicable Services Termination Date. Seller's sole and exclusive obligation for breach of warranty shall be, at Seller's option, to (a) use commercially reasonable efforts to perform the Professional Services in a manner that conforms to the warranty, or (b) refund to Customer the fees paid by Customer to Seller for the nonconforming Professional Services. The remedies set forth in this paragraph are Customer's exclusive remedies for any breach of warranty.
Seller is providing all Professional Services, Work Product and other Deliverables hereunder strictly on an "as is" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with Specifications, reliability or functionality.
Exclusion of Warranties
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ELSEWHERE IN THESE TERMS AND CONDITIONS, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, WITH RESPECT TO THE PROJECT OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY SELLER. SELLER DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE.
Limitation of Liability
NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE PROFESSIONAL SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SELLER UNDER THE APPLICABLE SOW OR ESTIMATE.
Indirect, Incidental and Consequential Damages
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
Construction
Seller is willing to enter into these Terms and Conditions and the applicable SOW or Estimate and perform Professional Services for Customer only in consideration of and in reliance upon the provisions of these Terms and Conditions limiting Seller's exposure to liability, including but not limited to the provisions contained above. Such provisions constitute an essential part of the bargain underlying these Terms and Conditions and the applicable SOW or Estimate and have been reflected in the consideration specified therein.
Non-solicitation
Without the prior written consent of the other, neither party shall directly or indirectly, or cause a third party to solicit, hire or engage any personnel or subcontractor of the other who are or have been assigned to perform work under these Terms and Conditions and the applicable SOW or Estimate until one (1) year after the completion of an engagement in effect between the parties. Each party acknowledges that the personnel of the other represent a significant investment in recruitment and training, the loss of which would be detrimental to that party's current and future business and profits. The parties further recognize that determining the damages in the event of a breach of this provision is very difficult and therefore agree that if the other breaches this provision and hires or engages personnel of the other covered hereunder, the breaching party shall pay to the other as damages for the breach (exclusive of any other remedy provided herein) an amount equal to 150% of the annual compensation of the person based on the rate of pay as of the last day of work at the non-breaching party.
Independent Contractor
Seller is, and throughout the term of these Terms and Conditions and the applicable SOW or Estimate shall be, an independent contractor, and not an employee, partner or agent, of Customer. Nothing herein shall be deemed to establish a partnership, joint venture or association between Seller and Customer. Seller shall not be entitled to nor receive any benefit normally provided to Customer's employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Customer shall not be responsible for withholding income or other taxes from the payments made to the Seller. Seller agrees to indemnify and hold Customer harmless for any claims relating thereto.
Taxes
Customer is responsible for all applicable federal, state and local sales, use or other taxes due on the Professional Services rendered hereunder, except for taxes based on Seller's income, and agrees to indemnify and hold Seller harmless for any claims relating thereto.
Attorneys' Fees
Should any suit, action or arbitration be commenced in connection with any dispute arising out of these Terms and Conditions or any applicable SOW or Estimate, or collection of a judgment thereunder, the prevailing party shall be entitled to recover its costs and disbursements, together with such investigation, expert witness and attorneys' fees incurred in connection with such dispute, as the court or arbitrator may adjudge reasonable, at trial, in the arbitration, upon any motion for reconsideration, upon petition for review, and on any appeal of such suit, action or arbitration proceeding.
Confidentiality
Neither party shall disclose, without the prior written consent of the other or unless required by legally constituted authority, any information, matter or thing of a secret, confidential or proprietary nature (the "Confidential Information") connected with the business of that party. "Confidential Information" shall include any and all technical and non-technical information of each party, including but not limited to (a) patent and patent applications, (b) trade secrets, and (c) proprietary information--mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and any other information of a similar nature.
The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Terms and Conditions, or is disclosed to a third party without similar restriction on the third party's rights, or is already known in the relevant industry. This Section will survive termination of these Terms and Conditions and the applicable SOW or Estimate.
Indemnification
Customer agrees to defend, indemnify, and hold harmless Seller, its officers, directors, agents, and employees from any claims, demands, loss, damage, liability, or expense, including attorneys' fees at trial, on appeal, and on any petition for review, arising out of the acts or omissions of Customer and any claims by Customer's end-users against Seller for any acts or omissions of Seller or Customer.
Compliance with Export Regulations
Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Seller harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or Use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
Assignment
Neither party may assign or delegate its rights and obligations under these Terms and Conditions and the applicable SOW or Estimate to any third party without the prior consent of the other party to these Terms and Conditions (which consent shall not be unreasonably withheld); provided, however, that a "change of control" transaction shall not be deemed assignment or delegation under these Terms and Conditions.
Seller may subcontract discrete portions of the Professional Services, provided Seller remains responsible to the same extent as if it performed the work itself and obtains in writing all necessary rights and assurances from the subcontractor that may be required by this Agreement.
Governing Law and Venue
These Terms and Conditions shall be governed by and construed under the laws of the State of Minnesota, exclusive of its choice of law rules, as such law applies to agreements between Minnesota residents entered into and to be performed within Minnesota, except as governed by federal law. Any controversy or claim arising out of or in any way connected with these Terms and Conditions or any applicable SOW or Estimate, or the alleged breach thereof shall be brought in the state and federal courts located in the State of Minnesota. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph.
Entire Agreement
These Terms and Conditions, together with all applicable SOWs and/or Estimates executed by the parties constitute the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of these Terms and Conditions, and all such terms or conditions shall be null and void. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.