Consulting and Training Services
Terms and Conditions
1. Description of Services
Alloy Software (“Alloy Software” or “Consultant”) shall provide you or the entity that you represent (“You”, “Your”, or “Customer”) with certain consulting and training services (“Services”) in relation to the IT infrastructure management software solutions developed by Alloy Software, as specified in Customer’s order (“Order”) which references these Terms and Conditions. Alloy Software and Customer shall be known individually as “party” or collectively as the “parties”. All Consultant’s subcontractors under an Order, if any, shall be bound to perform all obligations under this Agreement as if they were being performed by Alloy Software. Services are only for Customer’s internal use and Customer may not use the Services to supply any consulting services or training services to any third party.
2. Services Period
Services must be used within one (1) year of purchase. Any Services not used within the 1-year period will be automatically forfeited by Customer, with no further action required of either party. As such, Customer will not be entitled to a refund, or any credit toward additional or other services, for any unused portion of the fees paid for any unused Services. Customer may not use the fees for any other services other than the Services stated herein.
3. Independent Contractors
The Consultant will provide the Service to Customer as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a partnership, joint venture, principal-agent or employment relationship between the Parties. Neither Party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and shall have no power or authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on the other party’s behalf or in its name, nor shall such party represent to any one that it has such power or authority.
Customer will pay to Alloy Software the fees and other compensation set forth in each Order Form. Customer will also reimburse Alloy Software for all reasonable out-of-pocket travel and living expenses incurred in the provision of the Services, and any other reimbursable items set forth in each Order Form. All invoices will be paid within thirty (30) days from the date of the invoice. All payments are nonrefundable and made without the right of setoff or chargeback. If Customer fails to pay fees in accordance with this Section 4, Alloy Software may suspend fulfilling its obligations under this Agreement until such payment is received by Alloy Software. Customer will pay directly any taxes arising out of this Agreement or Alloy Software’s performance under this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Alloy Software’s net income and all employer reporting and payment obligations with respect to Alloy Software’s personnel. If any applicable law requires Customer to withhold amounts from any payments to Alloy Software under this Agreement, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Alloy Software with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Alloy Software receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Alloy Software would have received and retained absent the required deduction or withholding.
The term “Confidential Information” shall mean: (a) any and all information which is disclosed by either party (“Owner”) to the other (“Recipient”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary at the time of disclosure; and (b) the terms, including without limitation, price and pricing of Alloy Software’s Services and any proposals or other documents that preceded this Agreement. Confidential Information also includes, without limitation, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, employee information, and financial information. In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).
5.2 Obligation of Confidentiality
Owner’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than the terms herein this Section 5 and who have a justified business “need to know”. Customer shall protect the deliverables resulting from Services with the same degree of care. This Agreement imposes no obligation upon the parties with respect to Confidential Information which either party can establish by legally sufficient evidence that: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure.
Each party (“Indemnifying Party”) shall indemnify and hold the other party (“Indemnified Party”), its officers, directors, employees, suppliers, and affiliates harmless against any third party claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the negligent acts and omissions, or failure to act by the Indemnifying Party, its employees or agents, while performing its obligations hereunder, which result in death, personal injury, or tangible property damage. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, information, all reasonable assistance in the defense of such action, and sole authority to defend or settle such claim. The terms of this Section 5 shall survive termination of this Agreement.
Each party warrants that it has the right and power to enter into this Agreement, and that an authorized representative has executed this Agreement.
7.1 Limited Warranty
With respect to any Services, Alloy Software warrants that Services rendered under this Agreement will be performed by qualified personnel; and the Services performed will substantially conform to any applicable requirements set forth in the Order Form.
In the event that any Services fail to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of Customer will be for Alloy Software, at its expense, to promptly re-perform the applicable Services. The foregoing warranty is expressly conditioned upon (i) Customer providing Alloy Software with written notice of any claim thereunder within three (3) days of delivery of the affected Services, which notice must identify with particularity the non-conformity; (ii) Customer’s full cooperation with Alloy Software in all reasonable respects relating thereto, including, in the case of modified software, assisting Alloy Software to locate and reproduce the nonconformity; and (iii) with respect to any Deliverable, the absence of any alteration or other modification of such Deliverable by any person or entity other than Alloy Software.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, ALLOY SOFTWARE DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
8. Limitation of Liability
UNDER NO CIRCUMSTANCE WILL ALLOY SOFTWARE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ALLOY SOFTWARE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 8 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND ALLOY SOFTWARE AND THE FEES CHARGED FOR THE SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
9. Rights to Work Product
Any expression or result of Alloy Software’s Services, or the work, findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, software, and other technical information (collectively “Work Product”) created or learned by Alloy Software in the course of performing the consulting services hereunder are the property of Alloy Software and are licensed to Customer, without further license fees, pursuant to Alloy Software’s license(s) to which the consulting services pertain, provided, however, to the extent such Work Product provided to Customer by Alloy Software contains Customer’s Confidential Information, Customer shall retain title to such Confidential Information. With the exception of Customer’s Confidential Information, Customer shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.
10. Maintenance of Development Work
Standard maintenance and support services offered by Alloy Software do not cover any customized software or new development created under an Order. If available, maintenance and support may be addressed under a separate services agreement.
The term of this Agreement will commence on the Effective Date and will remain and continue in effect, unless sooner terminated as provided under this Agreement. This Agreement may be terminated in whole or in part by each party (the “Non-Breaching Party”) upon written notice to the other party if any of the following events occur by or with respect to such other party (the “Breaching Party”): (i) the Breaching Party commits a material breach of any of its obligations under this Agreement and fails to cure such breach within thirty (30) days after receipt of notice to do so; or (ii) any insolvency of the Breaching Party, any filing of a petition in bankruptcy by or against the Breaching Party, any appointment of a receiver for the Breaching Party, or any assignment for the benefit of the Breaching Party’s creditors.
Upon termination, Alloy Software will be entitled to recover payment for all Services and related expenses rendered through the date of termination, including for work in progress.
12. Separate Agreements
All Services provided herein are acquired separately from any software licenses agreed to between the Parties. Specifically, Customer may acquire software licenses without acquiring consulting or training services. Customer understands and agrees that this Agreement and any Order is a separate and independent contractual obligation from any order relating to software licenses. Customer shall not withhold payments that are due and payable under this Agreement because of the status of any software license orders, nor shall Customer withhold payments that are due and payable relating to software license order because of the status of work performed hereunder.
13.1 Entire Agreement
This Agreement and the Order(s) constitute the entire understanding between the Parties with respect to the subject matter herein and may only be amended or modified by a writing signed by a duly authorized representative of each party. This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between the Parties regarding the subject matter contained herein.
If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless remain in full force and effect.
All notices or other communications referenced under this Agreement shall be made in writing and sent to the address designated in the specific Order or as designated from time to time in writing by the Parties. All notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: registered or certified first class mail, postage prepaid; recognized courier delivery; or electronic mail with read receipt requested.
No modification to this Agreement nor any failure or delay in enforcing any term, exercising any option, or requiring performance shall be binding or construed as a waiver unless agreed to in writing by both parties.
13.5 No Third-Party Beneficiaries
Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Alloy Software and Customer and do not create any right in favor of any third party
13.6 Government Law and Jurisdiction
This Agreement shall be governed by the laws of the State of New Jersey, excluding choice of law principles. Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. The parties shall attempt to resolve any dispute related to this Agreement informally, initially through their respective management, and then by non-binding mediation in Essex County, New Jersey. Any litigation related to this Agreement shall be brought in the state or federal courts located in Essex County, New Jersey, and only in those courts and each party irrevocably waives any objections to such venue.
13.7 Force Majeure
Neither party shall be liable for any failure to perform its obligations under this Agreement or any Order if prevented from doing so by a cause or causes beyond its reasonable control, including without limitation, war, fire, flood, epidemic, act of God or public enemy, power shortages or blackouts, breakdown of telephone lines and services, failure of the Internet, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government. Such nonperformance shall be excused and shall not be considered a breach or default for so long as such conditions prevail.
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