Professional Services Standard Terms and Conditions
The Client (“You”, “you”, or “your”) wishes Contivio.com Corporation, 2151 Michelson Drive, Suite 263, Irvine, CA 92612, USA and its subsidiaries (hereinafter referred to as “Contivio.com”) to provide Professional Services in the form of Implementation, Support, and/or Consultancy Services (the “Services”) to you.
Contivio.com agrees to provide you Services within the terms contained in this Agreement.
A. Operative Part.
1. Engagement. You hereby engage Contivio.com, and Contivio.com hereby accepts the engagement, to provide Services within the terms and conditions set out in this Agreement.
2. Services. Contivio.com shall provide Services to you as set out in this Agreement or any other documents or terms provided by Contivio.com to you.
3. Confidentiality. Confidential Information of a Party means: (a) the details of the Services; (b) price information of the Services; (c) the terms of this Agreement; (d) information or material proprietary to or deemed to be proprietary to you or Contivio.com (collectively, the “Party”); (e) information designated as confidential by either Party; (f) information acquired by either Party solely by virtue of provision of the Services; (g) trade secrets of either Party; (h) intellectual property rights; and extends to all forms of storage or representation of the Confidential Information including, but not limited to, loose notes diaries, memoranda, drawings, photographs, electronic storage and computer print-outs. Confidential Information excludes any Confidential Information, or any portion thereof, which: (a) from the date from which any of the information becomes publicly available; (b) is disclosed to either Party by a third party and either Party reasonably believes the third party is legally entitled to disclose such information; (c) was known to either Party prior to its receipt from the other Party; (d) is developed by either Party independently of any disclosures previously made by the other Party; (e) is disclosed with the other Party’s prior written consent; (f) is required to be disclosed by either Party by order of the court, other legal processes or other professional standard.
Both Parties agree that Confidential Information disclosed to the other shall be used solely in connection with the provision of the Services. Both Parties agree that they shall carry out their obligations hereunder using the same degree of care that is used in protecting their own proprietary information, but always at least a reasonable degree of care. Provided that both Parties shall have met the foregoing standard of care, neither Party shall be liable or responsible for any inadvertent or accidental disclosure by either Party of Confidential Information. Neither Party shall use the Confidential Information of the other Party for any purpose other than in the lawful carrying out of its obligations under this Agreement
B. Responsibilities of the Parties.
1. Scope. Contivio.com will work to the best of its ability towards meeting your needs in a timely and efficient manner. The assignment is confined to the work specified in a Statement of Work. Extensions to the scope of the assignment require the written Agreement from both Parties. Where you requires additional work to be performed, reasonable additional fees are payable by you to Contivio.com. Consulting work can experience unforeseen delays and this depends to a degree on factors outside Contivio.com’s control. If Contivio.com is prevented from meeting its obligation due to causes beyond its control it will be entitled to a reasonable extension of time for performance of the work.
2. Use of Reports and Recommendations. The provision of Services by Contivio.com may include a report or letter stating findings, conclusions and recommendations. Such a report or letter will be prepared by Contivio.com for distribution or circulation as agreed in the proposal or report. Accordingly, such reports or letters may not be reproduced or used for any other purpose without Contivio.com’s written permission. Contivio.com assumes no responsibility or liability for loss to you or any other Parties as a result of the circulation, publication or reproduction of the contents of such reports or letters contrary to the provisions of this paragraph. It is understood and agreed that Services may include advice and recommendations. All decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, you.
3. Sources of Information. The advice, conclusions and recommendation of Contivio.com may be based on information provided by you or third parties. Unless specifically stated, no form of independent verification or audit of such information is undertaken and Contivio.com is not responsible for the accuracy of information supplied by you or third parties. Furthermore, Contivio.com reserves the right to amend its conclusions or recommendations in the light of any material omissions or misstatements that subsequently become known.
4. Qualified Personnel. Contivio.com is responsible for the provision of qualified consultants and other personnel to carry out Contivio.com’s obligations under the contract and reserves the right to substitute staff on an assignment.
5. Management. In cases involving the appointment by you of one of Contivio’s nominees to a temporary executive role, Contivio.com’s responsibility (including that of its nominee) is limited to the application of established management principles. You acknowledges that the nominee although experienced in such principles is not necessarily experienced in your specific operations. In such circumstances, the Consultant assumes no greater responsibility than that which would pertain to your employee performing a similar role.
6. Machines and Other Goods. Contivio.com is not responsible for delays in the delivery or faulty performance or quality of machines or other goods purchased or otherwise obtained by you from others on the advice of Contivio.com.
7. Compensation. For the Services provided by Contivio.com under this Agreement you shall compensate Contivio.com as agreed between the Parties.
8. Expenses. You shall reimburse Contivio.com for all reasonable out-of-pocket expenses incurred by Contivio.com in performing its Services hereunder (including, without limitation, all reasonable travel, meal, lodging and mileage expenses) in accordance with Contivio.com’s standard policies as they exist from time to time.
9. Payment of Fees and Expenses. Unless otherwise noted in any particular Statement of Work, Contivio.com shall invoice you at the end of each month for Contivio.com’s fees for its Services performed under this Agreement prior to the issue of the invoice and out-of-pocket expenses incurred by Contivio.com prior to the issue of the invoice. Payment of Contivio.com’s invoices are due on thirty (30) day terms. Properly submitted invoices upon which payment is not received by due date shall accrue a late charge at any annualized equivalent rate of 12% interest per annum from the time the payment was due. Without limiting its rights or remedies, excepting where such invoices are in dispute, Contivio.com shall have the right to halt or terminate entirely its Services until payment is received on past due invoices. If GST has application to any supply made under this Agreement, Contivio.com may, in addition to any amount or consideration expressed as payable elsewhere in this Agreement, recover from you an additional amount on account of the GST, such amount to be calculated by multiplying the amount or consideration payable by you for the supply by the prevailing GST rate.
10. Term. This Agreement shall commence on the date specified as the Effective Date. If there is no date, the commencement date is the date of chronological later signature of the persons signing this Agreement and, unless sooner terminated in accordance with the provisions hereof, shall terminate on the completion of the Services.
Notwithstanding the provisions of the preceding Paragraph, either Party may terminate this Agreement at any time upon giving notice to the other Party not less than thirty (30) calendar days prior to the termination date. The obligations of any Party which have been incurred prior to the termination date shall continue in full force and effect notwithstanding the expiration or termination of this Agreement and whether or not an invoice has been rendered with respect thereto.
C. Ownership and General.
1. Contivio.com Technology. Contivio.com has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, techniques, processes, know-how, and models (including, without limitation, function, process, system and templates; the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems) (collectively, the “Contivio.com Technology”).
2. Ownership of Deliverables. Except as provided below, upon full and final payment to Contivio.com hereunder, the tangible items specified as deliverables (the “Deliverables”) remain the property of Contivio.com.
3. Ownership of Contivio.com Property. To the extent that Contivio.com utilises any of its property (including, without limitation, the Contivio.com Technology or any hardware or software of Contivio.com) in connection with the performance of Services hereunder, such property shall remain the property of Contivio.com and, except for the license expressly granted in the preceding paragraph, you shall acquire no right or interest in such property. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of Contivio.com to provide consulting or other services of any kind or nature whatsoever to any person or entity as Contivio.com in its sole discretion deems appropriate. In addition, and notwithstanding anything in this Agreement to the contrary, the Parties acknowledge and agree that (a) Contivio.com will own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the Contivio.com Technology and (b) Contivio.com may employ, modify, disclose, and otherwise exploit the Contivio.com Technology (including, without limitation, providing Services or creating programming or materials for other clients). You acknowledges that Intellectual Property Rights in the material existing prior to the provision of Services under this Agreement including Contivio.com Methodologies and Contivio.com Software Tools and Technology, all material provided or used by Contivio.com in providing the Services, and all enhancements thereof shall remain vested in Contivio.com, and that nothing in the Agreement shall prevent, limit or restrict subsequent use of this material by Contivio.com.
4. Return of Materials. Upon completion of the provision of the Services, or earlier termination of the Agreement, and when requested in writing, Contivio.com shall return to you all of your materials, and you shall return to Contivio.com all Contivio.com property, including Contivio.com Technology provided under this Agreement.
5. Limitation on Warranties. Contivio.com shall perform its Services hereunder in good faith. Contivio.com is primarily providing Services under this Agreement, and the provision of any tangible items hereunder shall be deemed an incidental part of the Services and as much as possible not the sale of goods within the meaning of any applicable Trade Practices Act, Competition & Consumer, Sale of Goods or similar legislation. To the extent allowable by law Contivio.com disclaims all other warranties, either express, implied or statutory, including, without limitation, warranties of merchantability and fitness for a particular purpose. Global competition & consumer acts, like the Australian Competition & Consumer Act 2010 as amended, and other statutes from time to time in force in any country may imply conditions and warranties upon Contivio.com which cannot be excluded, restricted, or modified except to a limited extent. The Agreement must be read and interpreted subject to any such statutory provisions. The liability of Contivio.com to any such statutory provisions shall be limited, at the option of Contivio.com: (i) the supplying of the Services again; or (ii) the payment of the cost of having the Services supplied again.
6. Limitation on Damages. You agrees that Contivio.com, its principals, members and employees shall not be liable to you for any actions, damages, claims, liabilities, costs, expenses, or losses in any way arising out of or relating to the Services performed hereunder for an aggregate amount in excess of the fees already paid by you to Contivio.com under this Agreement at the time action is commenced against Contivio.com. In no event shall Contivio.com, its principals, members or employees be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs). In furtherance and not in limitation of the foregoing, Contivio.com will not be liable in respect of any decisions made by you as a result of the performance by Contivio.com of its Services hereunder. The provisions of this Paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort (including, without limitation, negligence), or otherwise excepting the case of willful misconduct or fraud on behalf of Contivio.com where such liability is restricted to actual damages.
7. Client Cooperation. The success of consulting work requires your timely cooperation in a number of ways including without limitation: (a) provision of staff to work with Contivio.com; (b) availability of senior executives for consultation with Contivio.com; (c) provision of information and data; (d) decisions as required by the agreed program; and/or (e) provision of reasonable working facilities for Contivio.com, if applicable. You are responsible for such cooperation and recognize that additional consulting fees and expenses may arise from failure or delay by you to provide, or in providing, the required cooperation.
8. Staff. Work is undertaken on the understanding that neither Contivio.com nor you will offer or cause to be offered employment to the staff of the other during the currency of the assignment and six (6) months thereafter, without first receiving written consent from the other Party. Contivio.com’s staff will always remain under the guidance, direction and control of Contivio.com.
9. Disclaimer. You acknowledge that Contivio.com’s work involves making judgments which may be affected by unforeseen future events including wars, economic disruption, dislocation, business cycles vicissitudes, industrial relations, labor difficulties, political action and other factors the effects of which are not capable of precise assessment and that in many cases Contivio.com is required to make value judgments based on material compiled by government agencies, scientific organizations and others. It is agreed by the Parties that although Contivio.com is required to employ or engage experienced and skilled personnel and apply sound business principles in carrying out its obligations, neither Contivio.com or any of the persons employed or engaged by it shall in any circumstances be liable for any loss or damage which may be sustained by you or any other person, as a result of the work whether this included reliance on the Contivio.com work or not.
10. Dispute Resolution. In the event of any dispute between you and Contivio.com that cannot be resolved by negotiation, both Parties agree that the dispute may be submitted to a mutually acceptable independent dispute resolution mechanism. If such Services have been performed in a foreign jurisdiction, Contivio.com agrees to submit to the independent dispute resolution mechanism of that jurisdiction.
11. Force Majeure. Contivio.com shall not be liable for any delays or other non-performance 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. You shall pay to Contivio.com the extra costs and expenses incurred by Contivio.com in the supply of the Services as a result of Force Majeure.
12. Non-Exclusivity. Nothing in this Agreement shall be construed as precluding or limiting in any way the right of Contivio.com to provide consulting, auditing or other services of any kind or nature whatsoever to any person or entity as Contivio.com in its sole discretion deems appropriate.
13. Limitation on Actions. No action, regardless of form, arising under or relating to this Agreement, may be brought by either Party more than one year after the cause of action has accrued, except that an action for non-payment may be brought by a Party not later than two years following the date of the last payment due to such Party hereunder.
14. Independent Contractor. It is understood and agreed that each of the Parties hereto is an independent contractor and that neither Party is, nor shall be considered to be, an agent, distributor or representative of the other. Neither Party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
15. Survival. Each Party acknowledges and agrees with the other that the undertakings given in relation to Confidential Information and Intellectual Property Rights shall survive the termination of the Agreement and shall continue in force until such time as the Confidential Information becomes public knowledge other than by breach of this Agreement.
16. Notices. Notices under this Agreement must be in writing and may be delivered by hand, by registered mail, by facsimile, or email to the addresses of the Parties specified in or notified pursuant to this Agreement. Notice will be deemed given:
(a) in the case of hand delivery or registered mail, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
(b) in the case of a facsimile or email (firstname.lastname@example.org ), upon proof of completion of transmission.
Date of receipt is registered prior to 1600 hrs. Notice received after 1600hrs will be dated the following business day.
17. Miscellaneous. This Agreement, including any Exhibits annexed hereto and made a part hereof, constitutes the entire Agreement between the Parties hereto with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then such provision shall be null and void but each other provision hereof not so affected shall be enforced to the full extent permitted by applicable law. The paragraph headings contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation hereof. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and assigns.
18. If this contract is with Contivio.com Corporation (Contivio.com), California, such jurisdiction governs the interpretation of this contract and applies to claims for breach of it, regardless of conflict of laws principles. If this contract is with a Contivio.com subsidiary and/or you receive the Service in a jurisdiction with which Contivio.com has incorporated subsidiary, the laws of the place of incorporation for that Contivio.com subsidiary shall govern the interpretation of this contract and apply to claims for breach of it, regardless of conflict of laws principles. All other claims, including claims under consumer protection laws, unfair competition laws, and in tort will be adjudicated under the laws of your state of residence in the United States, or, if you reside outside the United States, under the laws of the country in which the Services are performed. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except in writing signed by both Parties hereto.