PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT TERMS AND CONDITIONS (THESE “SERVICES TERMS”) GOVERN THE SERVICES (AS DEFINED BELOW) TO BE PROVIDED BY INSCALE TECHNOLOGIES, INC. (“INSCALE”) TO THE CUSTOMER (“CUSTOMER”) PURSUANT TO A STATEMENT OF WORK (“SOW “) (AS DEFINED HEREIN). BY EXECUTING A SOW, CUSTOMER IS ACCEPTING AND AGREEING TO THESE
SERVICES TERMS AND THE TERMS OF SUCH SOW, WHICH UPON EXECUTION BECOME PART OF AND SUBJECT TO THESE SERVICES TERMS. THESE SERVICES TERMS AND EACH SOW EXECUTED BY CUSTOMER TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND INSCALE (COLLECTIVELY, THIS “SERVICES AGREEMENT”). EACH SOW EXECUTED BY CUSTOMER SHALL BE EFFECTIVE AS OF THE DATE SPECIFIED THEREIN OR, IF NO SUCH DATE IS SPECIFIED, THE DATE CUSTOMER EXECUTED THE SOW. INSCALE AND CUSTOMER MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY AND, COLLECTIVELY, AS THE “PARTIES”.
1 Definitions.
“Affiliate” means a company which is controlled, under common control or controlling a party or entity during the period of such control. For the purposes of this Services Agreement, “control” means ownership, directly or indirectly, of more than 50% of the voting securities of a party or entity.
“Deliverable” means any and all reports, analyses, recommendations, data, databases, specifications, software, documentation, recordings, and other materials provided, created, developed, and/or delivered specifically for Customer pursuant to and as described in a SOW.
“Law” means any local, state, national, administrative and/or foreign laws, treaties, regulations and/or orders applicable to a Party.
“Inscale Subscription Services” means Inscale’s proprietary Web-based platform and associated modules, components, and updates thereto provided by Inscale as a subscription service pursuant to the terms of the Master Subscription Agreement (“MSA”).
“Master Subscription Agreement” or “MSA” means the Inscale agreement agreed to by Customer (or its Affiliate) covering Customer’s access to and use of Inscale’s subscription Services (referred to herein as “Subscription Services) described in the MSA and associated Inscale software platform as described in each Order Form (as defined in the MSA) covering the provision of such Inscale Subscription Services.
“Services” means the technical, implementation, and/or professional services and any related Deliverables provided or to be provided by Inscale for Customer as set forth in a SOW specifically describing such services and subject to these Services Terms. The Services performed under a SOW may be referred to as “Professional Services”, “Technical Services” or “Admin Services”, as applicable, based on the nature and type of such Services.
“Statement of Work” or ”SOW” means a written or electronic document executed by the Parties which describes the specific Services purchased by Customer to be provided by Inscale and which incorporates these Services Terms and all exhibits or other documents attached to or incorporated by reference (“Attachments”) therein.
“Work Product” means all software, works of authorship, and/or work developed for Customer in the course of providing the Services, including any Deliverables produced or developed in connection therewith, whether produced solely or jointly with others.
2 Provision of Services.
Subject to the payment by Customer to Inscale of the applicable Fees (as defined in 3.1), Inscale will provide the Services under the SOW. Any scheduling required for the Services to be performed and/or delivered will be described in the SOW. Inscale will only provide the specific Services purchased by Customer as set forth in an Order Form and SOW. Inscale will not be responsible for providing any services, tasks, or items that are not specifically included in the description of services in the SOW as such services, tasks, or items shall be deemed out of scope for such SOW and will require the execution of an additional SOW or a change order to an existing SOW with associated Fees. Inscale reserves the right, in its sole discretion, to use, assign and remove personnel in performing the Services. If the Services will be made available to any Customer Affiliate(s) pursuant to the terms of this Professional Services Agreement, then the term “Customer” shall also include such Customer Affiliate(s) identified in a SOW. Inscale will provide Services under this Professional Services Agreement only to Customer’s (or a Customer Affiliate’s).
3 Fees.
Invoice and Payment. The fees for the Services provided to Customer are determined in accordance with the terms of the applicable SOW covering such Services and, together with any other amounts due under this Services Agreement (collectively, the “Fees”), are quoted and payable in United States dollars. Unless otherwise provided in the applicable SOW, all Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) shall be due and payable immediately upon receipt of the invoice date. Customer shall provide Inscale with complete and accurate billing and contact information including a valid email address for receipt of invoices. All Fees and payment obligations for Services under any SOW are non-cancelable and Fees paid are non-refundable and quantities purchased cannot be decreased.
Incidental and Project Expenses. Customer shall reimburse Inscale for all reasonable travel, food, lodging and other out-of-pocket expenses incurred in the performance and/or provision of the Services. Specific types of travel expenses and rates will be billed at the rates included in the SOW. If Inscale incurs any additional of the foregoing or additional costs or expenses in providing the Services and/or if Inscale charges any additional fees as described in Section 6.2 below, such fees, costs, and expenses may be invoiced separately.
Overdue Payments. Without limiting Inscale’s rights and remedies under this Services Agreement or by Law, any Fees not paid by Customer (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) within thirty (30) days of the invoice date shall accrue late charges at the rate of one and one percent (1.0%) of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses and fees of collection (including attorneys’ fees and court and administrative costs).
Taxes. The Fees are exclusive of all shipping costs, and federal, state and local sales, value-added taxes, goods and services taxes, use, excise, service, transaction, gross receipts or similar taxes imposed on the Services (collectively, “Taxes”), any and all of which Customer agrees to pay, excluding taxes assessable against Inscale on its income, property, and employees. Customer shall make all payments required without deduction of any Taxes, except as required by Law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Inscale receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer is exempt from paying any applicable Taxes, Customer shall promptly provide written evidence reasonably satisfactory to Inscale of its tax-exempt status, and Inscale will not include such Taxes in Customer’s invoices.
Suspension of Services for Non-Payment. If Customer’s account is more than thirty (30) days past due (except with respect to any disputed Fees then subject to a Billing Dispute under Section 3.6), in addition to any other rights or remedies it may have under this Services Agreement or by Law, Inscale reserves the right to cease providing any or all Services currently being performed or to be performed for Customer, without liability to Inscale for such suspension, and such Services shall only be resumed if Customer pays the full amount of such invoiced Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) are paid in full.
Billing Disputes. Any dispute involving invoiced Fees (a “Billing Dispute”) must be in writing and submitted to Inscale within thirty (30) days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed Fees as well as the reasonable and good faith bases for why a credit or refund is being requested (a “Billing Dispute Notice”). Customer shall cooperate with Inscale to promptly address and attempt to resolve any Billing Dispute submitted in accordance herewith. Customer acknowledges and agrees that, in the event Customer does not submit a timely Billing Dispute Notice as required in this Section, Customer waives all rights to dispute such invoice and all Fees set forth in such invoice will be considered correct and binding on Customer. Notwithstanding any dispute of invoiced Fees commenced in accordance with this Section 3.6, Customer shall remain obligated to pay in a timely manner all undisputed Fees within thirty (30) days of the invoice date.
4 Proprietary Rights; Ownership.
Inscale Property. In performing the Services, Inscale may use products, materials, information, ideas, concepts, know-how, techniques, tools, templates, models, software, procedures, documentation, technology, interfaces, data and/or databases, reports, processes, best practices, and methodologies owned or licensed by, or developed on behalf of, Inscale or any of its partners or suppliers (collectively, the “Inscale Property“). Subject to the limited rights expressly granted hereunder, Inscale and its licensors reserve and retain all right, title, and interest in and to the Services and the Inscale Property, respectively, including all patents and applications therefor, copyrights, trademarks, domain name rights, trade secret rights, and all other intellectual property rights (collectively, “Intellectual Property Rights”) therein. No Inscale Property shall be deemed to be Work Product. Inscale may modify or improve any Inscale Property at any time and such Inscale Property, and Inscale’s rights (including all Intellectual Property Rights) will include all enhancements, modifications, adaptations and/or derivative works therein and thereto (whether made by Inscale, Customer, a third-party or jointly). Except as expressly set forth herein, Customer is not granted any right, title, or interest in or to any Inscale Property or any other equipment, supplies, or materials owned, leased, or licensed by or to Inscale, whether related to the performance of the Services, use or operation of the Deliverables or otherwise. All Inscale Property is deemed to be Inscale Confidential Information.
Inscale Ownership of Work Product. Inscale shall own and retain all right, title, and interest (including all Intellectual Property Rights), in and to all Work Product as well as all recommendations, ideas, techniques, know-how, designs, programs, development tools, processes, integrations, enhancements, and other technical information and any modifications or adaptations to, and/or derivative works from, the foregoing, whether developed by Inscale in the course of performing or providing any Services or co-developed by the Parties under any SOW(s). No Work Product shall be deemed a “work made for hire”. If any Work Product is delivered to Customer in connection with providing the Services (including any Work Product included as a Deliverable or portion thereof), Inscale hereby grants to Customer a non-exclusive, worldwide (subject to export Laws), royalty-free, fully paid-up, limited right to access and use the Work Product only on the terms and for the same period of time as Customer’s authorized use of the Inscale Subscription Services in accordance with the MSA. Such rights shall not be sublicensable, assignable, or transferable, except in connection with Customer’s assignment of (a) these Services Terms and all SOWs hereunder; and (b) the MSA (including all Schedules and Order Forms, as applicable, thereunder) pursuant to Section 11.6 below.
Inscale Subscription Services. The Services provided under this Services Agreement are in support of Customer’s use of the Inscale Subscription Services and/or technology related to such Inscale Subscription Services purchased under the MSA. The MSA shall govern Customer’s use of the Inscale Subscription Services and any other services provided therein. Neither the terms of these Services Terms nor any SOW hereunder grants Customer any license or rights to use the Inscale Subscription Services or any Inscale proprietary software platform or other Inscale services, and any such rights shall be governed by the MSA entered into by Customer and Inscale.
Residuals. Nothing in this Services Agreement will: (a) prohibit or limit Inscale’s use of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience that were used, developed and/or gained in connection with Inscale’s provision of any Services under these Services Terms or any SOW; or (b) preclude Inscale from marketing, developing or using for any other purpose, any services or products for the benefit of Inscale or any other party. Inscale will continue to be free to use and exploit the Services and any Work Product to undertake the same or similar services for, and provide the same or similar products to, other customers and entities.
5 Confidentiality.
Confidential Information; Exceptions. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Inscale Confidential Information includes the Inscale Property and Work Product; Customer Confidential Information includes the (as defined below); and Confidential Information of each Party includes the terms and conditions of all SOWs (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed or made accessible by such Party. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without access to or reliance on the Disclosing Party’s Confidential Information.
Protection. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Services 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, advisors, contractors and third parties (collectively, “Representatives”) who need access for purposes consistent with this Services Agreement and who have signed confidentiality agreements with the Receiving Party containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Confidential Information than those herein. Each Party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure or use of the other Party’s Confidential Information. Each Party may confidentially disclose the terms of this Services Agreement to any actual or potential financing source or acquirer. Notwithstanding the foregoing, Inscale may disclose the terms of these Services Terms and any applicable SOW to a subcontractor or third party software provider to the extent necessary to perform Inscale’s obligations to Customer under this Services Agreement and/or any SOW, under terms of confidentiality materially as protective as those set forth herein.
Compelled Disclosure; Retention. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Law to do so, provided the Receiving Party, to the extent legally permissible, gives the Disclosing Party prior written notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or limit the extent of the disclosure through a protective order or other legal measure. 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 that Confidential Information. Notwithstanding anything to the contrary contained herein, the Receiving Party (a) will be entitled to retain copies of Confidential Information for internal record keeping purposes and compliance with Laws and industry standards or for the purposes of defending or maintaining litigation; and (b) will not be obligated to erase Confidential Information that is contained in its archived data storage.
Internal Record Keeping. Notwithstanding anything to the contrary contained in this Services Agreement the Receiving Party will (a) be entitled to retain copies of the Disclosing Party’s Confidential Information for internal record keeping purposes and compliance with applicable regulations and industry standards or for the purposes of defending or maintaining litigation; and (b) not be obligated to erase Confidential Information that is contained in its archived data storage.
6 Representations, Warranties, Exclusive Remedies and Disclaimers.
Service Warranty. Inscale warrants that the Services shall be performed by qualified personnel in a professional manner, consistent with industry standards. Customer’s sole and exclusive remedy for breach of this warranty will be for Inscale to promptly correct the defective Services at no cost or expense to Customer, which remedy shall apply and be available so long as Customer notifies Inscale in writing of any such breach within thirty (30) days of when such Services were provided by Inscale. Inscale does not otherwise warrant, expressly or implicitly, the results, performance, or quality of the Services or any Work Product provided under this Services Agreement or any SOW and Inscale has no obligation to provide any updates or upgrades for any Work Product.
a) Customer Cooperation and Responsibilities. (a) Customer agrees and acknowledges that Inscale is relying upon the timely availability of necessary Customer personnel as well as information (including, data, records, specifications, descriptions, and documentation) provided by Customer. As a result, the accuracy and results of the Services and provision of any Work Product are dependent upon the timeliness, accuracy, and completeness of the information furnished to Inscale by Customer and the timely availability of Customer’s employees, agents, and contractors. Inscale’s obligations to provide the Services are expressly conditioned upon Customer’s cooperation and timely: (i) performance of tasks, responsibilities, and reviews under the applicable SOW (including any project plans developed thereunder); (ii) provision of approvals and information (including data, records, specifications, descriptions, and documentation) under the SOW; (iii) access to Customer’s personnel, resources, facilities, and systems reasonably required for Inscale to perform the Services as well as Customer meeting all of its responsibilities as set forth in this Professional Services Agreement and any SOW; and (iv) licensing or procurement of any third party software and/or subscriptions needed by Customer in conjunction with Customer’s use of the Services and/or Inscale Subscription Services and are compatible with Inscale Subscription Services. Inscale is not responsible or liable for any third party software licensed and/or subscription purchased by Customer and Customer’s use of any such third party software and/or subscriptions is subject to and governed by the terms and conditions of any agreement entered into between Customer and the third party vendor (subsections (i), (ii), and (iii) above are collectively referred to as, “Customer Responsibilities”). Customer is also responsible for ensuring that Customer complies with all dates and deadlines set forth in any project plan. Any delays due to Customer’s failure to satisfy or comply with the Customer Responsibilities may result in delays in the provision of the Services (including the Work Product) and additional Fees. Customer shall be responsible for the content of all material, information, data, records, specifications, descriptions, and/or documentation provided by Customer to Inscale (collectively, the “Customer Data”). Customer shall not provide to Inscale any material, information, data, records, specifications, descriptions, and/or documentation that infringes, misappropriates, or violates the Intellectual Property Rights or privacy rights of any third party or is otherwise unlawful. Customer is also responsible for: (1) ensuring that all Customer data provided or made accessible to Inscale have been “cleaned” (i.e., gone through de-duplication; corrupted, outdated, and unrelated data have been removed; etc.); (2) providing Inscale with a backup data file or 24/7 remote access to a Customer computer contained the Customer data; and (3) if applicable and specified in a SOW, ensuring that Customer’s data are formatted in the Excel templates provided or made accessible by Inscale.
b) Customer acknowledges and agrees that it is critical to the success of the provision of the Inscale Subscription Services and overall integrity of the project schedule that key project tasks have specific deadlines and durations to ensure the efficient and timely implementation of the Inscale Subscription Services. Accordingly, Customer will appoint a Project Manager who will be responsible for the timely coordination of internal resources necessary for managing the project to completion. The Project Manager will perform a variety of tasks including, without limitation: (i) co-developing, managing, and maintaining the project plan; (ii) promptly addressing and managing any issues and key decisions which arise; (iii) meeting agreed upon deadlines and promptly evaluating milestones; (iv) assigning responsibilities to Customer personnel and contractors (excluding Inscale); (v) ensuring that all resources to be provided by Customer are timely scheduled and available in order to ensure attendance and completion of tasks in a timely manner; and (vi) taking reasonable actions necessary to meet all dates and deadlines set forth in the project plan. The Project Manager will remain actively engaged throughout the duration of Inscale’s provision of professional services by actively participating, providing requested integration information, and otherwise completing all Customer obligations as set forth in any Order Form and/or SOW in a timely manner (“Cooperate”). Failure to Cooperate will result in the dismissal of assigned Inscale resources with no guarantee of resource continuity when project activity resumes. As a result, new resources may need to be onboarded at the expense of Customer.
c) If Customer does not meet any completion dates for deliverables and/or milestones, Inscale has the right to revisit and revise the project’s estimated costs, completion date, and approach to completing the project. Additionally, if any project delay is caused by Customer or any change in project scope, estimated level of effort, project timeline, and/or project resource commitments, Inscale has the right to increase its fees to reflect the additional services rendered as a result of Customer’s failure to perform any agreed upon task or meet any deadline.
d) If Customer notifies Inscale of a need to delay, reschedule, or cancel any professional services on less than three (3) business days prior written notice or if any professional services are delayed due to Customer not having performed its relevant responsibilities agreed upon with Inscale and/or as set forth in the project plan and/or any SOW or not having necessary personnel or contractors available for any meeting or task, Inscale may, in its sole discretion, charge, and Customer agrees to pay in a timely manner, a delay/rescheduling/cancellation fee of three hundred dollars ($300) plus the total amount of all expenses actually incurred and paid by Inscale arising from any such delay, rescheduling, or cancellation. The fee will also apply in any situation when: (i) any necessary Customer personnel fails to attend any scheduled meeting, training session, and/or workshop; and (ii) Customer fails to vet the Inscale Subscription Services end to end (i.e., evaluating and testing all data, processes, forms, reports, etc.) and promptly report any issues or concerns with its ability to process transactions prior to going live. Customer will have up to ten (10) business days for reporting any implementation or performance issues after the go live date and, thereafter, any Customer issues will be addressed as part of Inscale’s customer support services as set forth in the Inscale Customer Support Policy.
e) Inscale’s timely performance of the professional services is conditioned on Customer continuing to Cooperate. If Customer fails to Cooperate in a timely manner, Inscale will notify Customer and Inscale has the right to suspend its performance of the professional services. In such situation, the professional services will be deemed complete and Inscale’s personnel and resources may be assigned to other projects. Further, if Inscale suspends the professional services, (i) all prepaid or milestone-based fees set forth in any Order Form and/or SOW shall become due and are deemed earned in full, and (ii) all unused time and materials fees set forth in any Order Form and/or SOW shall be voided. Any and all services requested by Customer following such suspension will require Customer to send a written request to Inscale seeking re-engagement and execution of a new SOW. Upon execution of a new SOW, Inscale will promptly resume the professional services but Inscale cannot guarantee that the original resources will be re-assigned to the professional services and additional hours may be required.
DISCLAIMERS. EXCEPT FOR ANY WARRANTIES EXPRESSLY CONTAINED IN THIS SERVICES AGREEMENT, ALL SERVICES AND WORK PRODUCT PROVIDED BY INSCALE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, INSCALE SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. INSCALE DOES NOT WARRANT THAT THE SERVICES, WORK PRODUCT, AND/OR ANY DELIVERABLE WILL BE ERROR-FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF ANY SERVICES, WORK PRODUCT, AND/OR DELIVERABLE. INSCALE SHALL NOT BE RESPONSIBLE FOR LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND/OR ELECTRONIC COMMUNICATIONS. ALL OF INSCALE’S WARRANTIES ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND FOR NO OTHER ENTITY OR THIRD PARTY.
7 Mutual Indemnification.
Indemnification by Inscale. Inscale shall defend and hold Customer, its officers, directors, employees and contractors harmless from and against any third party claims, demands, suits, or proceedings (“Claims”) against Customer arising out of or relating to (A) personal injury (including death) to any persons or damage to any tangible personal property (excluding any Customer Data) arising out of any negligent act, error, or omission of Inscale and/or any Inscale employee, agent, or contractor; or (B) any Work Product infringing a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party, and shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer: (i) must give prompt written notice of the Claim to Inscale; (ii) gives Inscale sole control of the defense and settlement of the Claim (provided that Inscale may not settle any Claim or enter into any order or stipulated judgment that purports to bind Customer unless it unconditionally releases Customer of all liability); and (iii) provides to Inscale, at Inscale’s cost, all reasonable cooperation and assistance. If (a) Customer is enjoined from using the Work Product; or (b) the Work Product becomes, or Inscale believes the Work Product will likely become, the subject of an infringement Claim, Inscale shall have the right, in its sole discretion, to (i) obtain for Customer the right to continue use of the affected Work Product; or (ii) replace or modify the affected Work Product so that it is no longer infringing. If, in Inscale’s sole reasonable discretion, neither of the foregoing options are reasonably available to or commercially feasible for Inscale, Inscale will request that Customer return and no longer use the affected Work Product and, upon Customer’s compliance with such request, Inscale’s sole liability will be to refund the Fees paid by Customer for the affected Services and/or Work Product. Inscale’s foregoing indemnification obligation shall not apply to any Claim based on or caused by: (v) any design specifications, requirements, documentation, materials, instructions, and/or directions prepared by Customer and/or provided to Inscale under these Services Terms or any SOW; (w) any Work Product or Services being modified by any party other than Inscale, but solely to the extent the alleged infringement is caused by such modification; (x) any Work Product or Services being combined with other non-Inscale products, services, and/or processes not authorized by Inscale in writing, but solely to the extent the alleged infringement is caused by such combination; (y) any unauthorized use of any of any Work Product or Services; (z) any third party deliverables or components not provided by Inscale that are contained within any Work Product or Services; or (f) Inscale’s use of any Customer Data in accordance with this Services Agreement. THIS SECTION 7.1 SETS FORTH INSCALE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
Indemnification by Customer. Customer shall defend and hold Inscale, its officers, directors, employees and contractors harmless from and against any and all Claims against Inscale alleging that any Customer Data infringes the rights of, or have caused harm to, a third party or violates any Law, and shall pay all costs and damages finally awarded against Inscale by a court of competent jurisdiction as a result of any such Claim; provided, however, that Inscale: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim or enter into any order or stipulated judgment that purports to bind Inscale unless it unconditionally releases Inscale of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable cooperation and assistance.
8 Limitation of Liability.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS; (B) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS SERVICES AGREEMENT AND ANY SOW, IN NO EVENT SHALL (I) EITHER PARTY OR ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, OR FOR ANY LOSS OF BUSINESS, REVENUE, ANTICIPATED SAVINGS, PROFITS, USE, LOSS OR CORRUPTION OF ANY DATA AND/OR COST OF DATA RECONSTRUCTION, AND/OR PROCUREMENT OF ANY SUBSTITUTE OR REPLACEMENT GOODS, SERVICES, DATA, INVENTORY, OR EQUIPMENT, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY CLAIM ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICES AGREEMENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND (II) EITHER PARTY’S ENTIRE AND MAXIMUM LIABILITY FOR ALL CLAIMS IN ANY MANNER RELATED TO THESE SERVICES TERMS AND/OR THE APPLICABLE SOW, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID TO INSCALE BY CUSTOMER UNDER THE SOW WHICH GAVE RISE TO THE CLAIM FOR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE FOR ALL CLAIMS IN ANY MATTER RELATED TO THIS SERVICES AGREEMENT AND IS NOT PER INCIDENT.
Commencement of Actions; Mitigation of Damages. No Party may commence any action under these Services Terms or any SOW more than one (1) year after the occurrence of the breach or event giving rise to the claim for damages and/or indemnification. The claiming Party shall use commercially reasonable efforts to mitigate and avoid any damages.
9 Term; Termination.
SOWs. Unless otherwise provided in a SOW, the term of each SOW shall expire on the earlier of (a) the date of expiration of such SOW or cessation of such Services, as specified therein; or (b) Inscale’s completion of the Services described therein (the “Term”).
Applicability of these Services Terms. The term of these Services Terms commences as of the date these Services Terms are accepted by Customer in accordance with the terms herein and shall remain in effect and apply to each SOW executed by the Parties until all SOWs have expired or been terminated hereunder.
Termination.
Either Party may terminate a SOW or, at the election of the terminating Party, this Services Agreement (i) upon thirty (30) days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event 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. In the event this Services Agreement is terminated, these Services Terms and all SOWs are simultaneously terminated. Notwithstanding any terms to the contrary in this Services Agreement, if any amounts owed by Customer (except for any Disputed Fees then in dispute under Section 3.6) are not fully-paid when due in accordance with Section 3, Customer shall be in material breach of this Services Agreement and, in addition to its other rights and remedies at law or in equity, Inscale may terminate this Services Agreement and cease providing all Services, effective immediately upon delivery of written notice to Customer.
If Customer terminates this Services Agreement or any SOW prior to the expiration of the applicable SOW Term for Inscale’s uncured breach, Customer shall be entitled to a refund of all pre-paid Fees for the Services paid for but not provided by Inscale beyond the effective date of termination. If, prior to the expiration of the applicable SOW Term, (i) Customer terminates this Services Agreement or any SOW before the completion of all Services purchased and such termination is not due to Inscale’s uncured breach; or (ii) Inscale terminates this Services Agreement or any SOW due to Customer’s uncured breach (collectively, a “Customer Early Termination”) and Customer has not already paid in advance the full amount of all Fees due under each SOW for the Services purchased by Customer, Customer shall pay Inscale an early termination charge equal to all Fees, including all applicable Taxes, set forth in each SOW which would otherwise be due through the end of the entire Term of such SOW (the “Early Termination Fee”). The Parties agree that the precise damages resulting from a Customer Early Termination are difficult to ascertain and the Early Termination Fee is a reasonable estimate of anticipated actual damages and not a penalty. Customer agrees and acknowledges that the Early Termination Fee shall apply even if Customer terminates this Services Agreement or any SOW prior to Inscale commencing performance of any Services under this Services Agreement. The Early Termination Fee shall be due and payable within ten (10) days of the effective date of termination and any prepaid Fees will be applied towards the amount of the Early Termination Fee.
10 Modifications and Amendments to Services Terms.
Modifications and Amendments. Inscale may, at any time and in its sole discretion, amend these Services Terms (posted at www.avsight.net/legal) if any such amendment(s) does not adversely and materially affect the level or quality of Services provided or to be provided by Inscale to Customer or change the rates quoted in any SOW. The revised Services Terms will become effective as to Customer on the earlier of (a) the first day after Customer and Inscale sign a new SOW that incorporates the revised version of the Services Terms by reference; or (b) thirty (30) days following Inscale’s written notice to Customer that a revised version of the Services Terms has been posted at www.avsight.net/legal.
Customer’s Rights. If Customer’s compliance with the revised or amended version of the Services Terms would materially or adversely affect Customer’s use of the Services or any Work Product provided under a SOW and Customer gives written notice of its objection to the revised Services Terms no later than ten (10) business days following the date that the revised Services Terms would otherwise have become effective as to Customer, Inscale will not enforce the revision(s) to such Services Terms as to Customer until thirty (30) days following the date the revision(s) would otherwise have become effective as to Customer and Customer will continue to be subject to the prior version of the Services Terms. During the thirty (30) day period, Customer may elect to terminate the SOW on these grounds by giving written notice to Inscale, which must be received by Inscale during such thirty (30) day period or such termination right shall be deemed to be waived by Customer. Inscale will not charge Customer an early termination fee for a termination on these grounds. If Customer does not elect to terminate the SOW during the thirty (30) day period, then the revised version of the Services Terms will become effective as to Customer and apply to the SOW (and all other SOWs) as of the end of the thirty (30) day period. If Customer elects to terminate the SOW in accordance with the terms of this Section 10.2, Inscale, in its sole discretion, may elect to waive application of the revised Services Terms as to Customer and continue to apply, for the remainder of the term of the SOW, the version of the Services Terms that was in effect prior to the date that the revised version of the Services Terms was posted at www.avsight.net/legal.
11 General Provisions.
Export Compliance. The Services and other technology Inscale makes 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 any of the Services in any U.S. embargoed country or in violation of any U.S. export law or regulation.
Employee Solicitation. While this Services Agreement is in effect and for one (1) year thereafter, Customer shall not, directly or indirectly, solicit for employment or engage (whether as an employee, independent contractor or consultant) any Inscale employee or subcontractor who was involved in providing any Services. An employee’s or subcontractor’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this Services Agreement.
Survival. All provisions survive termination or expiration of this Services Agreement except those requiring performance only during the term of this Services Agreement and/or a SOW, as applicable.
No Third Party Beneficiaries. This Services Agreement does not create any right enforceable by any person or entity that is not a party hereto.
Entire Agreement; Order of Precedence. This Services Agreement along with all SOWs executed by the Parties, is the entire agreement between Customer and Inscale regarding the Services and supersedes and merges all prior and contemporaneous, written or oral, agreements, understandings, proposals, marketing materials and representations concerning its subject matter and the Services and there are no representations, understandings, or agreements that are not fully expressed. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Services Agreement or any SOW will be effective unless set forth in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The Parties agree that any term or condition stated in any Customer purchase order or in any of Customer’s other order documentation (excluding any SOW) is void. Headings contained in this Services Agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this Services Agreement. In the event of any conflict or inconsistency between the following documents, the following order of precedence shall be: (a) these Services Terms; and (b) the applicable SOW (unless and to the extent expressly stated therein that a specified term therein shall take priority over an analogous or conflicting term in these Services Terms).
Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Services Agreement in its entirety together with all SOWs, without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets provided that the assignee agrees in writing to be bound by all the terms of this Services Agreement (including all SOWs) and, in the case of an assignment by Customer, all past due Fees (except for any disputed Fees then subject to a Billing Dispute under Section 3.6) are paid in full. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Services Agreement upon written notice. In the event of such a termination, Inscale will refund to Customer any prepaid Fees for the Services allocable to the remainder of the Term for the period after the effective date of such termination. Subject to the foregoing, this Services Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Relationship of the Parties. The Parties are independent contractors. This Services Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third party beneficiaries under this Services Agreement.
Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such Party’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, epidemic or pandemic, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees or contractors), service disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of service attacks.
Waiver. No failure or delay by either Party in exercising or enforcing any right, remedy, or obligation under this Services Agreement or SOW will constitute a waiver of that right, remedy, or obligation or any other right. Any waiver of any right, remedy, or obligation under this Services Agreement or any SOW must be in writing and signed by each Party. A waiver on one occasion shall not be construed as a waiver of any right, remedy, or obligation on any future occasion. Except as otherwise expressly stated in this Services Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
Governing Law; Venue. This Services Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Services Agreement (including any SOW), the relationship of the Parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the Parties shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without regard to conflicts of laws principles. The Parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts in Delaware, USA. The Parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Services Agreement or any SOW.
Notice. Unless otherwise provided in this Services Agreement, all notices (except for routine business communications, e.g., scheduling of meetings or calls; requests for information; status reports, etc.) shall be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Inscale shall be addressed to the Chief
Executive Officer, with a copy to the Vice President of Finance, Notices sent to Inscale must be sent to its principal place of business identified below and sent to the attention of Chief Executive Officer at Inscale Technologies, Inc., 1544 Blowing Rock Road, Suite # 3716, Boone, NC 28607 (with a copy sent to Vice President of Finance at the same address). Notices to Customer may be sent to the contact information for Customer provided in the applicable SOW.
Severability. If any provision of Services Agreement is held by a court of competent jurisdiction to be contrary to Law, the provision will be deemed null and void, and the remaining provisions of this Services Agreement will remain in effect.
Subcontractors. Inscale may use the services of subcontractors for the performance or provision of any Services or Work Product under any SOW, provided that Inscale remains responsible for the (a) compliance by any such subcontractor with the terms of this Services Agreement; and (b) overall performance of the Services.
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