TERMS AND CONDITIONS
1.1 Professional Services. In consideration for the applicable fees, ArganoaMind will provide the professional services identified on certain Statements of Work to be entered into and between the parties (“Professional Services”) according to the terms and conditions as set out in this Agreement and in each such Statement of Work. Upon signature by both parties, each Statement of Work is hereby incorporated into and becomes a part of the Agreement. Customer’s request for any changes in the Professional Services must be in writing in the form of a change order document and pursuant to the change order process set forth in the Statement of Work. ArganoaMind will not be obligated to perform tasks described in Customer’s request until the parties agree in writing to the proposed change. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of the applicable Statement of Work, the terms and conditions of this Agreement will govern and control.
1.2 Service Levels. ArganoaMind will cause all Professional Services to be performed in accordance with industry standards. The Professional Services will be performed in a professional and workmanlike manner, and ArganoaMind’s personnel will have sufficient skill, knowledge and training to perform the Professional Services. Customer’s sole remedy for ArganoaMind’s breach of this representation will be ArganoaMind’s reasonable commercial efforts, at no additional charge, to remedy any Professional Services performed in a manner that is substantially less than professional and workmanlike or to replace personnel with insufficient skill, knowledge and training with qualified personnel for performance of the Professional Services, as appropriate and determined in ArganoaMind’s sole discretion. Customer must report any deficiencies in the Professional Services to ArganoaMind within 30 days of the occurrence of any such deficiency in order to receive such remedies. ArganoaMind will strive to meet all mutually agreed work plan schedules, but the parties acknowledge such schedules are estimates only, and ArganoaMind will not be deemed in breach of this Agreement solely for failing to meet a development or services schedule provided that ArganoaMind has made commercially reasonable efforts to meet such schedule.
2.1 Payment. ArganoaMind will render periodic invoices related to the fees and expenses associated with the provision of the Professional Services to Customer in accordance with the prices and schedules for payment set out in the applicable Statement of Work. If the applicable Statement of Work does not reference any specific pricing, then such Statement of Work will be performed at ArganoaMind’s then-current consulting rates on a time and materials basis; that is, Customer will pay ArganoaMind for the time spent performing the relevant Professional Services, plus materials, taxes and expenses. Unless expressly set forth in the Statement of Work as a fixed fee amount, any monetary limit referenced in the applicable Statement of Work will be an estimate only for the purposes of Customer’s budgeting and ArganoaMind’s resource scheduling unless expressly stated to be a fixed price Professional Services project.
2.2 Additional Work. Any additional work mutually agreed by the parties in writing which is outside the scope of the applicable Statement of Work and its change orders will be invoiced to Customer at ArganoaMind’s then-current consulting rates on a time and materials basis, or at the rates mutually agreed by the parties in such Statement of Work. Customer’s project manager or other authorized representative may request minor changes in the work not involving an adjustment in the fees or an extension of time, and not inconsistent with the intent of the Statement of Work.
3. Customer Requirements
3.1 Equipment. Customer is, at its own expense, responsible for procuring, installing and maintaining all equipment, telephone lines, communication interfaces, cabling and other hardware at Customer’s site.
3.2 Access. Customer will provide ArganoaMind with access to Customer’s designated management, personnel and staff and to Customer’s premises as reasonably required to provide the Professional Services under this Agreement.
Customer understands that ArganoaMind’s performance is dependent in part on Customer’s actions and performance of certain obligations specified in each Statement of Work. Accordingly, Customer will timely perform its obligations specified in each Statement of Work. Any dates or time periods relevant to performance by one party will be extended to account for any delays due to the delaying party.
3.4 Designated Point of Contact. The individuals identified in a Statement of Work will be the only points of contact for the coordination of all activities and issues related to the provision of the Professional Services under that Statement of Work. Any changes in the designated points of contact will be made by notice in writing given to the other party.
4. Ownership and License
4.1 Assignment. ArganoaMind hereby assigns to Customer any and all rights, title and interest, including, without limitation, copyrights, trade secrets, patents and proprietary rights to the deliverables and the use cases and their corresponding function points (including but not limited to all HTML formatting code and other computer programming, text, graphics, audio, video, artwork and designs and other works) developed or prepared specifically for Customer and delivered to Customer hereunder (the “Deliverables”). As between Customer and ArganoaMind, all data, modules, components, designs, utilities, subsets, objects, program listings, tools, models, methodologies, programs, systems, analysis frameworks, leading practices, and specifications included in the Deliverables shall be the property of Customer. This does not apply to Deliverables in which ArganoaMind has ownership of the intellectual property existing prior to or independent of the performance of Professional Services or developed as part of ArganoaMind’s core third party software implementation expertise (“Pre-Existing IP”). ArganoaMind shall retain all right, title and interest in such Pre-Existing IP and subject to the terms and conditions of this Agreement, hereby grants to Customer a perpetual, irrevocable, fully paid up, worldwide, transferable, and royalty-free license to use such for any purpose. For the avoidance of doubt, ArganoaMind will not take any ownership in Customer Proprietary Information contained within the Deliverables. The parties agree to assign and hereby make such assignments to effect the foregoing ownership rights, including all intellectual property rights pertaining thereto. Each party hereby agrees to do and perform such other acts and things and to execute and file such other agreements, documents, certificates or instruments (including the execution of any renewals of any such agreements, documents, certificates or instruments) as may be considered necessary or advisable by the parties to carry out the intent of this provision.
4.2. General Skills & Knowledge. Notwithstanding anything to the contrary in this Agreement, ArganoaMind shall not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the Services specified under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, information publicly known or that could reasonably have been acquired in similar work performed for another Customer.
5.1. Infringement Indemnity. ArganoaMind will defend any action brought against Customer to the extent that it is based upon a claim that the Deliverables, as provided by ArganoaMind to Customer under this Agreement and used within the scope of this Agreement, infringes any third party copyright or U.S. patent, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer or agreed upon by ArganoaMind in settlement, provided that Customer: (a) promptly notifies ArganoaMind in writing of the claim; (b) grants ArganoaMind sole control of the defense and settlement of the claim; and (c) provides ArganoaMind with all assistance, information and authority required for the defense and settlement of the claim. ArganoaMind will not reimburse Customer for any expenses incurred without the prior written approval of ArganoaMind. Customer may engage counsel of its choice at its own expense. ArganoaMind will have no right to bind Customer to terms other than the terms and conditions in this Agreement or admit liability by Customer in any claim, or settlement thereof, without Customer’s prior written consent, which will not to be unreasonably withheld or delayed.
5.2. Injunctions. If Customer’s use of any of the Deliverables hereunder is, or in ArganoaMind’s opinion is likely to be, enjoined due to the type of infringement specified in Section 5.1 above, or if a claim is brought against Customer due to the type of infringement specified in Section 5.1 above, then ArganoaMind may, at its sole option and expense: (a) procure for Customer the right to continue using such Deliverables under the terms of this Agreement; (b) replace or modify such Deliverables so that it is non-infringing and substantially equivalent or better in function to the enjoined Deliverables; or (c) if options (a) and (b) above cannot be accomplished despite ArganoaMind’s commercially reasonable efforts, then ArganoaMind may terminate Customer’s rights and ArganoaMind’s obligations hereunder with respect to such Deliverables and remit to Customer any pre-paid fees for the remainder of the Deliverables License Term after the termination.
5.3. Exclusions. Notwithstanding the terms of Section 5.1, ArganoaMind will have no liability for any infringement claim of any kind to the extent it results from: (a) modification or alteration of the Deliverables by Customer or any third party, without ArganoaMind’s express written authorization and direct supervision; (b) the combination, operation or use of any Deliverables supplied hereunder with equipment, devices or software not supplied by ArganoaMind to the extent such a claim would have been avoided if the Deliverables were not used in such combination; (c) failure of Customer to use updated or modified Deliverables provided by ArganoaMind to avoid infringement; or (d) compliance by ArganoaMind with designs, plans or specifications furnished by or on behalf of Customer.
5.4. Sole Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 5 SET FORTH aMIND’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 1.2 ABOVE, aMIND MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE RELATING TO THE DELIVERABLES OR PROFESSIONAL SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THE AGREEMENT AND ANY STATEMENT OF WORK. aMIND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
7. LIMITATION OF LIABILITY
7.1. Liability Limitation. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY NOR ITS THIRD PARTY SUPPLIERS AND LICENSORS WILL BE LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, (A) EXCEPT FOR PAYMENT OBLIGATIONS HEREUNDER, FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID TO aMIND HEREUNDER WITH RESPECT TO THE STATEMENT OF WORK FROM WHICH THE CLAIM OR CAUSE OF ACTION AROSE, OR (B) FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST DATA, WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE, OR (C) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (D) FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION OF USE. NOTHING IN THIS AGREEMENT WILL LIMIT A PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE.
7.2. Exceptions. The liability limitations set forth in Section 7.1 above do not apply to: (a) either party’s breach of its Confidential Information obligations set forth in Section 8 below; (b) any infringement of ArganoaMind’s intellectual property rights; or (c) either party’s indemnification obligations in Section 5 above.
8. Proprietary Information
8.1. Confidential Information and Trade Secrets.
8.1.1. “Proprietary Information” means Confidential Information and Trade Secrets.
8.1.2. “Confidential Information” means the written, oral and visual information, other than Trade Secrets, about past, present or future products, software, or marketing and business data, or administrative, management, financial, marketing, manufacturing, or development activities of a party which is marked or designated as confidential or proprietary, or which is disclosed in circumstances of confidence and would be understood by the parties, exercising reasonable business judgment, to be confidential or proprietary, including without limitation information viewed or learned by the receiving party during a visit to the disclosing party’s facilities.
8.1.3. “Trade Secret” means information including without limitation and without regard to form, technical or non-technical data, or any formula, algorithm, pattern, device, compilation, source code program and other human readable program languages, method, technique, or process which: (i) derives economic value, actual or potential, from not being generally known and not being readily ascertainable by proper means to other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
8.2. Use and Nondisclosure Obligations. The receiving party will (a) hold the disclosing party’s Proprietary Information in confidence and take reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the receiving party employs with respect to its similar proprietary materials), (b) not divulge any such Proprietary Information or any information derived therefrom to any third person except as authorized hereunder, (c) not make any use of such Proprietary Information except to carry out its rights and obligations under this Agreement, and (d) not copy (except as necessary to carry out its rights and obligations under this Agreement). Any employee given access to any such Proprietary Information must have a legitimate “need to know” and must be bound by confidentiality obligations no less protective of the disclosing party than this Section 10. During the term of this Agreement and for three years after its termination, neither party will disclose to any third party the specific terms of this Agreement without first obtaining the written consent of the other party.
8.3. Authorized Disclosures.; The receiving party may disclose Proprietary Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; to the extent allowed by law, the receiving party must give reasonable notice to the disclosing party to allow the disclosing party to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement on a confidential basis (a) to legal or financial advisors; (b) pursuant to a registration report or exhibits thereto required to be filed with the Securities and Exchange Commission, listing agency or any state securities commission, or any other associated filings; or (c) in connection with any financing transaction or due diligence inquiry. Notwithstanding anything herein to the contrary, each party (and each employee, representative, or other agent of such party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction represented by this Agreement and all materials of any kind (including opinions and other tax analyses) that are provided to the party relating to such tax treatment and tax structure.
8.4. Exceptions. Without granting any right or license, the disclosing party agrees that Section 8.2 does not apply to (i) any information after three years following the disclosure thereof (except Trade Secrets, which will be protected in perpetuity) or (ii) any information that the receiving party can document by its written records (a) is or (through no improper action or inaction by the receiving party or any affiliate, agent, employee, consultant or contractor) becomes generally available to the public, or (b) was properly in its possession or known by it without restriction prior to receipt from the disclosing party, or (c) was rightfully disclosed to it by a third party without restriction, or (d) was independently developed without use of or reference to any Proprietary Information of the disclosing party. Notwithstanding any other provision of this Agreement, each party will be free to use for itself and for others in any manner the general knowledge, skill or experience acquired by that party in the course of this Agreement, including using that knowledge as it relates to any present or future customer, vendor or other business partner.
8.5. Consultants and Contractors. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s consultants and contractors who have a legitimate “need to know” and who are similarly bound in writing with terms and conditions no less protective of the disclosing party than this Section 8. The receiving party will not disclose the disclosing party’s Trade Secrets to any of its consultants or contractors without the disclosing party’s prior express written consent.
Each party for itself and all companies associated with or related to it agrees not to solicit or, without the express prior written consent of the other party (which may be arbitrarily withheld), employ any personnel of the other party (or of any subsidiary or affiliated company of the other party) during and for a period of one year following the completion of the Professional Services under each Statement of Work. This restriction does not apply to any employment resulting from contact initiated by personnel or from responses by personnel to general solicitations for employees published by a party in publications or broadcasts of general circulation or general distribution or of industry interest.
10. Independent Contractor
10.1. ArganoaMind is an independent contractor and all individuals assigned to Customer are employees, consultants or subcontractors of ArganoaMind and not employees of Customer. Customer will have no right to, and will not, control the manner or determine the method of accomplishing ArganoaMind’s Professional Services. Customer may, however, require ArganoaMind’s personnel at all times to observe security and safety policies of Customer notified to ArganoaMind.
10.2. ArganoaMind will bear sole responsibility for such employment matters as payment or compensation to its personnel. ArganoaMind will pay and report, for all employee personnel assigned to Customer’s work, federal and state income tax withholding, social security taxes, and unemployment insurance applicable to such employees of ArganoaMind. ArganoaMind will bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such employees may be entitled.
10.3. ArganoaMind will have the sole responsibility for recruiting, hiring, training, replacing, evaluating, supervising, disciplining and terminating its personnel.
10.4. ArganoaMind will provide individuals who are duly qualified and skilled in the area in which their services are to be used. ArganoaMind will consult with Customer in filling Customer’s needs, but ArganoaMind has the right to determine which of ArganoaMind’s personnel will be designated to provide Professional Services to Customer. Customer has no right to approve such determination, but nonetheless possesses the right to reject any individual so furnished, if reasonably dissatisfied with such individual’s performance; provided that ArganoaMind has a reasonable opportunity to try to cure any such performance issues. If any ArganoaMind personnel are rejected, ArganoaMind agrees to use its commercially reasonable efforts to furnish a suitable replacement within a reasonable time, provided that ArganoaMind was not able to correct such individual’s performance after a reasonable period of time. ArganoaMind will procure all licenses and permits and comply with all statutes, ordinances and regulations applicable to the conduct of its Professional Services.
ArganoaMind may contract with or permit anyone other than ArganoaMind employees to perform any of the Professional Services required under this Agreement without the prior written consent of Customer, provided that such subcontractors must: (a) agree to be bound by terms and conditions at least as protective of the parties’ rights as those found in this Agreement including, without limitation, ownership provisions, and (b) enter into written confidentiality and non-disclosure agreements at least as restrictive as the confidentiality and non-disclosure provisions in this Agreement. ArganoaMind will at all times: (i) constitute the primary obligor for all of ArganoaMind’s duties and obligations hereunder, and (ii) be liable and responsible as a principal for the performance of all of the duties and obligations of ArganoaMind hereunder that ArganoaMind subcontracts to any of its subcontractors. Any such permitted subcontractor will be bound by all the terms and conditions of this Agreement.
Before commencing the Professional Services under a Statement of Work, ArganoaMind will procure, and maintain in full force and effect until one year after the completion or termination of a Statement of Work, the insurance coverage in the types and in the amounts set forth in Attachment 1, Insurance Requirements, attached hereto. Upon the request of Customer, ArganoaMind will provide Customer with evidence satisfactory to Customer of such insurance.
13. Term And Termination
13.1. Term. This Agreement will begin on the Effective Date and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement.
13.2. Statements of Work. Each Statement of Work shall commence on the date specified in the Statement of Work and shall continue in effect until performance thereunder has been completed, unless earlier terminated as provided therein. Except as provided in a Statement of Work, either party may terminate a Statement of Work, with or without cause, on 30 days’ written notice to the other party. Termination of this Agreement or any Statement of Work shall not affect any other Statements of Work then in effect, unless the parties specifically agree in writing. This Agreement shall continue to govern such Statements of Work until they are terminated or performance has been completed.
13.3. Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches any term of this Agreement, including but not limited to nonpayment, and fails to cure such breach within 30 days (15 days in the case of non-payment) after written notice thereof.
13.4. Immediate Termination. ArganoaMind or Customer may immediately terminate this Agreement, including any Statements of Work, upon notice if the other party: (a) ceases to carry on business as a going concern; (b) becomes the object of the institution of voluntary proceedings in bankruptcy or liquidation; or (c) becomes the object of the institution of involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets, if such petition or proceeding is not dismissed or receiver discharged within 30 days of filing or appointment.
13.5. Effect of Termination. Upon termination of this Agreement, Customer agrees to pay ArganoaMind all amounts due or accrued as of the date of such termination for Professional Services performed until the effective date of termination. Upon termination of this Agreement for any reason, each party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party. All defined terms and Sections 2, 4, 6, 7, 8, 13, and 14 shall survive any termination of this Agreement.
13.6. Nonexclusive Remedy. Except as otherwise set forth in this Agreement, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
14.1. Assignment. This Agreement and the rights hereunder are not transferable or assignable by Customer (and any attempted assignment will be void) without the prior written consent of ArganoaMind, except as set forth below. A change of control of Customer will be deemed a transfer or assignment. Any attempted assignment in violation of this section will be void. ArganoaMind may assign or transfer this Agreement without Customer’s consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.2. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by the parties duly authorized representatives. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
14.3. Governing Law. This Agreement will be governed by the laws of the State of California and the United States, without reference to conflict of laws principles and without reference to UCITA (the Uniform Computer Information Transactions Act) as it may be enacted in the applicable jurisdiction.
14.4. Notices. All notices, demands or consents required or permitted under this Agreement will be in writing. Notice will be considered effective on the earlier of actual receipt or: (a) upon transmission if sent by facsimile or email, which if not acknowledged by the recipient, is followed by written confirmation; (b) one business day (two business days for international addresses) after posting when sent via an express commercial courier; or (c) five days after posting when sent via certified United States mail. Notice will be sent to the address for each party set forth on the first page of this Agreement, or at such other address as will be given by either party to the other in writing. Notices to ArganoaMind will be addressed to the attention of: Chief Financial Officer.
14.5. Independent Contractors. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
14.6. Publicity and Use of Name. ArganoaMind may identify Customer as a customer of ArganoaMind and a user of the Software in marketing materials and in demonstrations and presentations in a list of customers,. Identifying Customer as a customer may include using Customer’s name and/or using an exact copy of Customer’s corporate logo. Customer authorizes ArganoaMind to issue a press release announcing Customer’s selection of ArganoaMind as a vendor; such press release will be subject to the prior written consent of Customer, which consent will not be unreasonably withheld or delayed.
14.7. Severability.If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
14.8. Force Majeure. Except for Customer’s obligations to pay ArganoaMind hereunder, neither party will be liable to the other party for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to, fire, earthquake, war, riot, act of God or governmental action.
14.9. Attorneys’ Fees. If any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, then the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this section only, “prevailing party” means the party that prevails on a majority of causes of action in such dispute.
14.10. Export Law Assurances. The Software may contain encryption technology controlled under U.S. export law, the export of which may require an export license from the U.S. Commerce Department. Customer will comply with all applicable export control laws and regulations of the U.S. and other countries.
14.11. Precedence. To the extent there is a conflict between the terms in the main text of this Agreement and any terms in Order Schedule and the other referenced documents, then the following precedence will apply: (1) Order Schedule; (2) the main text of the Agreement; and (3) the other referenced documents.
14.12. Entire Agreement. This Agreement, including all Schedules and referenced documents, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. The headings used in this Agreement are for reference only and do not change the meaning of any provision of this Agreement, and will not be used in interpretation of any provision of this Agreement.
14.13. Basis of Bargain. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this Agreement.