Professional Services Agreement
SERVICETRADE PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT GOVERNS CUSTOMER’S PURCHASE AND RECEIPT OF SERVICETRADE PROFESSIONAL SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THE TERMS OF THIS PROFESSIONAL SERVICES AGREEMENT (THE “AGREEMENT”), BY 1) CHECKING A BOX INDICATING ACCEPTANCE, 2) EXECUTING A PROFESSIONAL SERVICES ORDER FORM THAT REFERENCES THIS AGREEMENT OR 3) CONTINUING TO RECEIVE, USE OR ACCESS THE PROFESSIONAL SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE PERSON EXECUTING AN ORDER FORM (EACH, AN “ORDER FORM”) OR OTHERWISE SIGNIFYING ACCEPTANCE OF THIS AGREEMENT IS ACTING ON BEHALF OF A BUSINESS ORGANIZATION, THE PERSON SO SIGNING HEREBY REPRESENTS THAT THEY HAVE THE AUTHORITY AND INTEND TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. THE TERMS “YOU” OR “YOUR” OR “CUSTOMER” IN THIS AGREEMENT SHALL REFER TO THE LEGAL ENTITY AND ITS AFFILIATES (WHERE APPLICABLE) ENTERING INTO THIS AGREEMENT.
Our direct competitors are prohibited from receiving the Professional Services, except with Our prior written consent. In addition, the Professional Services may not be received for purposes of evaluating or monitoring their quality or performance, or for any other benchmarking or competitive purposes.
This Agreement was last updated November 7, 2023. It is effective between You and ServiceTrade as of the date of Your accepting of this Agreement.
1. DEFINITIONS
“Additional Professional Services”: means Professional Services provided by ServiceTrade and are not listed in the Professional Services Schedule. Any Professional Services will be agreed upon in a separate Statement of Work.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Professional Services Agreement and any exhibits, schedules, or addenda.
“Customer” means the company or legal entity for which an individual accepts this Agreement, and Affiliates of that company or entity which has entered into Statements of Work or Professional Services Order Forms.
“Change Order” means any change to any Professional Services Order Form, as applicable, as described in the “Change Orders” section below. Change Orders will be deemed incorporated by reference in the applicable Professional Services Order Form.
“Deliverable” means any service deliverable under a Professional Services Order Form.
“Intellectual Property” means all works, drawings, documents, designs, specifications, inventions, works of authorship (including, without limitation, all software), algorithms, processes, methodologies, frameworks, tools, models, techniques, data and information, including all copyrights, patents, trademarks, service marks, know-how or other intellectual property rights related thereto and any and all enhancements, improvements or other derivative works thereof (whether or not made during the performance of the Professional Services), which have been authored, prepared, created and/or developed by or on behalf of ServiceTrade or any of its affiliates in connection with delivering or performing the Professional Services.
“Online Services” means any online, web-based services made available by ServiceTrade (or one or more ServiceTrade Affiliates) to Customer under a separate agreement.
“Professional Services” means work performed by ServiceTrade for Customer which are explicitly listed on the Professional Services Order Form or Statement of Work for Additional Professional Services. The scope and descriptions of each Professional Service offered by ServiceTrade are described in the Professional Services Schedule or applicable Statement of Work.
“Professional Services Order Form” means ServiceTrade’s standard form for ordering Professional Services, which has been completed and acknowledged by Customer by clicking a box indicating Customer’s acceptance, and which identifies Professional Services to be performed, the applicable fees, and the Service Delivery Window.
“Professional Services Schedule” means the schedule attached hereto as Schedule A describing the scope, deliverables and data requirements for each of the Professional Services offered by ServiceTrade.
“ServiceTrade” means ServiceTrade, Inc., a Delaware C corporation located at 5003 S. Miami Boulevard, Suite 500, Durham NC 27703.
“Service Delivery Window” means the time during which Professional Services will be performed as noted on the Professional Services Order Form.
“Statement of Work” means the scope, deliverables and data requirements outlined for a specific Additional Professional Service not covered by the Professional Services Schedule.
2. PROFESSIONAL SERVICES
2.1 Scope of the Professional Services. Specific Professional Services to be provided to Customer, and Customer’s payment obligations for the same, shall be set forth in the applicable Professional Services Order Form and solely as described in the Professional Services Schedule for each applicable Professional Service or Statement of Work for an Additional Professional Service, and not as described in any other oral or written statements or representations made by ServiceTrade regarding any capabilities, functionality, or features. The scope of each applicable Professional Service shall only be as described in the Professional Services Schedule or a Statement of Work for additional Professional Services.
2.2 Relationship to Online Services. The Professional Services provided under this Agreement may be in support of Customer’s licenses, under a separate agreement, to use the Online Services. Such separate agreement shall govern all use by Customer of such Online Services. This Agreement does not grant Customer any license or rights to use such Online Services. In addition, except for the Professional Services described in the Professional Services Schedule or in an applicable Professional Services Order Form, Customer agrees that the purchase of Professional Services under this Agreement is not contingent upon the delivery of any future functionality or features in Online Services, nor is it dependent upon any oral or written comments made by ServiceTrade with respect to future functionality or features.
2.3 Additional Professional Services. In the event Customer requires Additional Professional Services not listed on the Professional Services Schedule, Customer and ServiceTrade will enter into a Statement of Work describing the scope deliverables, Service Delivery Window, data requirements, and applicable fees for such Additional Professional Services. Each Statement of Work shall be incorporated herein and subject to the terms of this Agreement. Additional Professional Services are considered Professional Services hereunder.
3. CUSTOMER COOPERATION
3.1 Cooperation. Customer agrees to cooperate reasonably and in good faith with ServiceTrade in the performance of the Professional Services by, as applicable:
(a) assigning a dedicated internal project manager for each Professional Service to serve as a single point of contact;
(b) defining and maintaining business objectives and requirements that will guide receipt of and use of the Professional Services;
(c) reviewing configurations made to the ServiceTrade application for conformance with relevant requirements;
(d) training users generally in relation to the Professional Services;
(e) timely completion of Certifications and attendance of scheduled calls;
(f) submitting data, responding to clarifying questions in a timely manner;
(g) validating and testing workflows;
(h) administering the ServiceTrade application generally for Customer’s own internal business purposes; and
(i) providing, or providing access to, the following: office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, complete and accurate information and data from its employees and agents, continuous administrative access to its ServiceTrade account, coordination of onsite, online and telephonic meetings, and other resources as reasonably necessary for satisfactory and timely performance of the Professional Services.
3.2 Delays. Any delays in the performance of Professional Services or delivery of Deliverables caused by Customer may result in additional applicable charges for resource time.
3.3 Scheduling. Except where provided otherwise in writing by ServiceTrade, scheduling of ServiceTrade resources must be agreed to no later than two (2) weeks prior to the date work is scheduled to begin. Subsequent scheduling changes requested by Customer may result in additional fees.
4. DELIVERY, ACCEPTANCE, AND CHANGE ORDERS
4.1 Delivery of Professional Services.ServiceTrade will provide the Professional Services, including any Deliverables, in accordance with the Agreement and the applicable Statements of Work and Professional Services Order Forms.
4.2 Acceptance. Professional Services will be deemed accepted upon beginning of the Service Delivery Window and completed upon the close of the Service Delivery Window, or delivery of the Deliverable as outlined below. Upon completion of any Deliverable pursuant to this Agreement that explicitly requires delivery of a tangible artifact of services including but not limited to, a computer program, document, or dataset, ServiceTrade will provide a complete copy thereof to Customer and, upon request, demonstrate to Customer its functionality in conformance with the relevant specifications. Customer is responsible for conducting any additional review or testing of such Deliverable pursuant to any applicable acceptance criteria or test suites agreed upon by the parties for such Deliverable. Failure to reject a Deliverable, as set forth below, will be deemed acceptance. If Customer, in their reasonable and good faith judgment, determines that any submitted Deliverable does not meet the material applicable functional requirements set forth for such Deliverable, Customer must notify ServiceTrade in writing, specifying any deficiencies in detail, within 15 days after ServiceTrade’s submission of the Deliverable, or the end of the Service Delivery Window, whichever comes first. As Customer’s sole and exclusive remedy and ServiceTrade’s sole and exclusive obligation and liability in the event of a material nonconformity as determined in ServiceTrade’s reasonable discretion, ServiceTrade will use reasonable efforts to correct such material nonconformity within a reasonable time after receiving notification of such material nonconformity. In the event ServiceTrade does not correct such material nonconformity, Customer may terminate the Agreement pursuant to Section 11.2(a), provided, that, any Total Fees already paid or incurred by ServiceTrade in delivery of the Professional Services or Deliverables shall not be refundable and shall be paid by Customer to ServiceTrade for services performed through such termination date.
4.3 Change Orders. Any changes to the scope under a Professional Services Order Form shall be made by written Change Order signed by an authorized representative of each party prior to implementation of such changes and may result in additional charges.
4.4 Extension. An extension of the Service Delivery Window can be purchased if additional time is required.
5. FEES, INVOICING AND TAXES
5.1 Fees.
(a) Total Fees. Customer will pay ServiceTrade for the Professional Services at the rates specified under “Total Fees” in the applicable Professional Services Order Form. Total Fees are a good faith estimate for Customer’s budgeting and ServiceTrade’s resource planning purposes only, and not a guarantee that the work will be completed for that amount. Total Fees are exclusive of any T&M work, as described in 5.1(c). Total Fees may be subject to change based on unforeseen circumstances. ServiceTrade will provide written notice of additional work requirements and associated fees via a Change Order.
(b) Contract Changes. Any related contract changes will be made in accordance with ServiceTrade’s change control process.
(c) Time & Materials (“T&M”). Professional Services may include T&M, which will be billed at ServiceTrade’s T&M rate listed on the Professional Services Order Form. T&M services are performed and invoiced monthly in arrears for the immediately preceding month.
(d) Incidental Expenses. Customer shall reimburse ServiceTrade for material(s) and reasonable travel, administrative, and out-of-pocket expenses incurred in conjunction with the Professional Services. Incidental expenses are billed monthly in arrears and due upon receipt.
5.2 Invoicing and Payment. Total Fees are due prior to the first day of the Services Delivery Window as noted on the Professional Services Order Form.
5.3 Taxes. Unless otherwise stated, fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with their purchases hereunder, excepting only taxes on ServiceTrade’s income, which are ServiceTrade’s responsibility. If ServiceTrade has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ServiceTrade with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.4 Failure to Make a Payment. Notwithstanding anything in Section 11 to the contrary and without limiting other rights and remedies afforded to ServiceTrade, if Customer fails to make payment on any due date, ServiceTrade shall have the right to suspend Professional Services hereunder and, if such failure to make payment has not been cured within thirty (30) days of the due date, upon written notice terminate this Agreement and any or all outstanding Professional Services Order Forms hereunder.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 License for ServiceTrade Property; Ownership. Subject to Customer’s payment in full of the Total Fees and pursuant to the term of the Agreement, ServiceTrade hereby grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free license during the Term of the Agreement, to use for Customer’s internal business purposes, all Intellectual Property developed by ServiceTrade under this Agreement or delivered to Customer as part of a Deliverable or Professional Services under this Agreement (“ServiceTrade Property”). ServiceTrade shall retain all ownership rights, interest and title in and to ServiceTrade Property, including without limitation all corrections, enhancements, improvements to, or derivative works thereof and in all intellectual property and proprietary rights therein or thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 Restrictions. Customer shall not: (a) permit any third party to access the Professional Services except as permitted herein or in a Order Form; (b) create derivative works based on the Professional Services except as specifically authorized in writing; (c) copy, frame or mirror any part or content of the Professional Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes; (d) reverse engineer the Professional Services; or (e) access the Professional Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Professional Services. Customer must also comply with the restrictions on use as stated in the Master Services Agreement available at https://servicetrade.com/terms/msa/ (“MSA”) and the End User License Agreement available at https://www.servicetrade.com/terms/terms-of-use (“Terms of Use”) which govern all use of the Professional Services (as defined therein) and the Professional Services.
6.3 Customer Applications and Code. If Customer, a third party acting on Customer’s behalf, or a user creates applications or program code to communicate with the Professional Services, Customer authorizes ServiceTrade to host, copy, transmit, display and adapt such applications and program code, solely as necessary for ServiceTrade to provide the Professional Services in accordance with this Agreement. Except as stated above, ServiceTrade acquires no right, title or interest from you or your licensors under this Agreement in or to such applications or program code. Responsibility around the successful operation of these integrations is owned by the Customer, or the third party representative.
6.4 Suggestions. We shall have a royalty-free, worldwide, irrevocable, sublicensable (through multiple tiers) perpetual license to use and incorporate into the Professional Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Professional Services.
7. CONFIDENTIALITY
7.1 Definition of Confidential Information. “Confidential Information” shall mean all confidential or proprietary information disclosed orally or in writing by one party to the other that is identified as confidential or reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving party; or (e) is required to be disclosed by law.
7.2 Protection of Confidential Information. The party receiving the Confidential Information (the “Receiving Party”) shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall: (a) not to use any Confidential Information of the party disclosing the Confidential Information (the “Disclosing Party”) for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the confidential terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.4 Delivery of Customer’s Confidential Information. Upon request by Customer made within 30 days after the effective date of termination of the Agreement, ServiceTrade will make available to you for download your Confidential Information along with attachments in their native format. After such a 30-day period, ServiceTrade shall have no obligation to maintain your Confidential Information.
7.5 Destruction or Return of ServiceTrade’s Confidential Information. Upon expiration or termination of this Agreement or at any time upon request by ServiceTrade, Customer shall: (a) promptly deliver to ServiceTrade, or permanently delete and destroy, all documents and records, in whatever form or medium, containing ServiceTrade’s Confidential Information in Customer’s possession, power or control; and (b) require that all persons to whom Customer has provided any of ServiceTrade’s Confidential Information pursuant to Section 7.2 comply with this Section 7.5. Upon request by ServiceTrade, Customer will promptly deliver to ServiceTrade a declaration signed by a senior officer of Customer certifying that Customer has complied with this Section 7.5.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Warranty. ServiceTrade warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards for similar services. For any breach of the warranty in Section 8.2, Customer’s exclusive remedy, and ServiceTrade’s entire obligation and liability, shall be the re-performance of the Professional Services. If ServiceTrade is unable to re-perform the Professional Services as warranted, Customer shall be entitled to recover a prorated amount of the fees paid to ServiceTrade for the deficient Professional Services, excluding any fees otherwise owed to ServiceTrade or which are nonrefundable. Customer must report any deficiencies in the Professional Services to ServiceTrade in writing within fifteen (15) days of performance of such services in order to receive warranty remedies or is otherwise deemed to waive such remedies.
8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS,” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SERVICETRADE DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. INDEMNIFICATION
9.1 ServiceTrade Indemnification. ServiceTrade shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, successors and permitted assigns (each, including Customer, a “Customer Indemnitee”) from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by the Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding by a third party (other than an Affiliate of a Customer Indemnitee) (each, a “Third-Party Claim”) to the extent that such Losses arise from any allegation in such Third-Party Claim that Customer’s use of the Professional Services (excluding Customer’s content, applications or intellectual property) in accordance with this Agreement infringes any U.S. Intellectual Property Right. The foregoing obligation does not apply to the extent that such Third-Party Claim or Losses arise from any allegation of or relating to any: (a) access to or use of the Professional Services in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by us; (b) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of us; or (c) Third-Party Claims or Losses for which Customer is obligated to indemnify ServiceTrade pursuant to Section 9.2.
9.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless ServiceTrade and our Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and assigns (each, including us, a “ServiceTrade Indemnitee”) from and against any and all Losses incurred by the ServiceTrade Indemnitee in connection with any Third-Party Claim to the extent that such Losses arise out of or relate to any: (a) Customer’s Content or Shared Content, including any processing thereof by or on behalf of ServiceTrade in accordance with this Agreement; or (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any of Customer’s users, including our compliance with any specifications or directions provided by or on behalf of Customer or any Customer’s user.
9.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Third-Party Claim for which such Party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Third-Party Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 9 will not relieve the Indemnitor of its obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
9.4 Mitigation. If any of the Professional Services in ServiceTrade’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Customer’s user’s use of the Professional Services is enjoined or threatened to be enjoined, ServiceTrade may, at our option and sole cost and expense: (a) obtain the right for Customer to continue to use the Professional Services as contemplated by this Agreement; (b) modify or replace the Professional Services in whole or in part to seek to make the Professional Services (as so modified or replaced) non-infringing, while providing substantially similar features and functionality, and such modified or replacement software will constitute Professional Services, as applicable, under this Agreement; or (c) if the remedies in clauses (a) or (b) are not reasonably practicable, as determined by us, ServiceTrade may terminate this Agreement and require Customer to immediately cease any use of the Professional Services, and ServiceTrade will refund to Customer, on a pro rata basis, the share of any fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.
9.5 Sole Remedy. THIS SECTION 9 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE PROFESSIONAL SERVICES, THE DOCUMENTATION AND/OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Damages. IN NO EVENT WILL EITHER PARTY, OR ANY OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SOFTWARE OR SERVICES; OR (c) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID TO SERVICETRADE UNDER THIS AGREEMENT FOR PROFESSIONAL SERVICES DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM HEREUNDER. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.3 Exceptions to Limitations. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 10 WILL NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 7, LIABILITY FOR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER’S INTELLECTUAL PROPERTY RIGHTS, OR LIABILITY FOR A PARTY’S FRAUD OR OTHER WILLFUL OR INTENTIONAL MISCONDUCT.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence on the Effective Date and shall remain in effect until the completion of any Service Delivery Window (including any extensions agreed upon by ServiceTrade) or as otherwise terminated in accordance with this Section 11 (the “Term”).
11.2 Termination for Convenience.
(a) Customer. Customer may terminate this Agreement and/or any Professional Services Order Forms hereunder at any time for convenience by providing ServiceTrade 30 days prior written notice, except for Professional Services that are billed in advance or that otherwise expressly do not permit cancellation or termination for convenience. If Customer terminates a Professional Services Order Form for convenience prior to its completion, then (i) ServiceTrade will stop work under the Professional Services Order Form promptly upon notification; and (ii) in the case of any T&M Fees under a Professional Services Order Form, Customer will be billed for the planned hours under that Professional Services Order Form during such notice period. Because ServiceTrade cannot guarantee continuity of resources should Customer desire to restart work under a Professional Services Order Form after having given notice of termination for convenience thereof, such restarting of work may involve additional billable hours and effort for information transfer, project re-planning, and other reasonable restart activities.
(b) ServiceTrade. ServiceTrade may terminate this Agreement at any time for convenience by providing Customer thirty (30) days prior written notice; provided, however, that any Professional Services Order Form outstanding at the time of such a termination by ServiceTrade shall continue to be governed by this Agreement as if it had not been terminated.
11.3 Termination for Material Breach. A party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party of a material breach (other than nonpayment) if such breach remains uncured at the expiration of such period, (b) we may terminate for nonpayment as described in section 5.4 above, or (c) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Effect of Termination. Termination of this Agreement and/or any Professional Services Order Form hereunder shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall termination relieve Customer of its obligation to pay all charges and expenses accruing prior to such termination.
11.5 Surviving Provisions. The sections titled “Proprietary Rights and Licenses,” “Confidentiality”, “Representations, Warranties, Exclusive Remedies, and Disclaimers,” “Fees, Invoicing and Taxes,” “Indemnification,” “Limitation of Liability,” “Term and Termination,” and “General Provisions” will survive any termination or expiration of this Agreement and/or any Professional Services Order Form hereunder.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after depositing written notice with Federal Express, UPS or DHL or equivalent courier service; or (c) upon confirmation of delivery to an email address specified in your Order Form. Notice of termination or notice of a claim must be in writing by personal delivery, by authorized courier service with delivery receipt, or by certified or registered mail, return receipt requested. Customer shall be obligated to provide and maintain current physical, mailing and email addresses for use in providing notices under this Agreement.
12.2 Agreement to Governing Law and Jurisdiction. The laws of the State of North Carolina govern this Agreement and use of the Professional Services. If the Professional Services are accessed from a location outside of the United States, it is done at your sole risk and discretion with the understanding that laws applicable in a foreign location may not be applicable to the Professional Services. Any action related to this Agreement or the Professional Services shall be brought and litigated exclusively in the federal or state courts for Durham County, North Carolina, and execution of this Agreement shall constitute your consent to personal jurisdiction in such courts. Provided, we shall have the right to bring suit against you in the courts for the place of your domicile.
12.3 Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement to the extent permitted by law.
13. GENERAL PROVISIONS
13.1 Export Compliance. The Professional Services, other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit users to access or use Professional Services in violation of any U.S. embargo.
13.2 Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify our Legal Department (legal@servicetrade.com).
13.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.5 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
13.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.7 Attorney Fees. Customer shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement and unpaid by You.
13.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, we shall refund to Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, together with other agreements between the parties referenced herein, constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent there is any conflict among this Agreement, the MSA and the Terms of Use, the MSA shall control, followed by this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall have no legal effect.