Professional Services Terms
ALLUXIO, INC. PROFESSIONAL SERVICES TERMS
The following terms apply to Statements of Work for Professional Services (each as defined below)
1. DEFINITIONS. For purposes of this Agreement, the terms set forth below shall have the meanings specified in this Section 1, or as otherwise set forth in this Agreement.
1.1 “Customer Materials” means any requirements documents, or other information provided to Company by Customer under the applicable Statement of Work to be used by Company to perform the Services.
1.2 “Deliverables” means any documentation or software provided by Company to Customer under the applicable Statement of Work.
1.3 “EULA” means an end user license agreement entered into between Customer and Company whereby Customer is granted a license to use certain Software under the terms of such EULA.
1.4 “Intellectual Property Rights” means copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), patent rights (including, without limitation, the right to exclude others from making, using and selling), trade secrets, moral rights, rights of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.
1.5 “Professional Services” or “Services” means those professional services set forth in a Statement of Work to be performed by Company under this Agreement.
1.6 “Alluxio Products” means the Alluxio Open Source Distribution and the Alluxio Software.
1.7 “Alluxio Software” means Alluxio’s proprietary software components set forth in the applicable Quote or Statement of Work licensed by Customer pursuant to the applicable EULA and as further described at https://www.alluxio.com/products.
1.8 “Specifications” means those functional and/or technical specifications, if any, set forth in the applicable Statement of Work as to any Deliverables.
1.9 “Third Party Software” means the copyrighted, patented and/or otherwise legally protected software of third parties that may be incorporated in the Alluxio Products as set forth https://www.alluxio.com/third-party-licenses.
2. SERVICES AND STATEMENTS OF WORK. Company agrees to perform the Services described in Statement of Works executed by Customer and Company. Each Statement of Work shall, when executed by Customer and Company, form a part of and be incorporated into this Agreement and be subject to the terms and conditions set forth herein. Customer shall advise Company in writing of the individuals with whom Company will interface for each Statement of Work. Customer and Company shall develop appropriate procedures to assure timely and appropriate coordination of efforts in support of the Professional Services. Customer shall provide information and assistance as is reasonably required to permit Company to complete each Statement of Work. To the extend that a conflict arises between the terms of any Statement of Work and the terms of this Agreement, the terms and conditions of this Agreement will govern. Any Statement of Work will include: (i) a description of the Professional Services; and (ii) the schedule for the performance of the Professional Services.
3. PAYMENTS; TAXES.
3.1 Invoicing. Unless otherwise specified in the applicable Statement of Work, Company shall invoice Customer on a monthly basis for all Services, reimbursements and other payments due under this Agreement and, unless otherwise specified in the applicable Statement of Work, Customer shall pay such invoiced amounts within thirty (30) days of the date of invoice. Customer agrees to pay interest at the rate of one percent (1%) per month (or, if less, the maximum amount permitted under applicable law) for all amounts not paid within thirty (30) days from the date of invoice.
3.2 Fees. Unless otherwise specified in the applicable Statement of Work, all Services shall be provided on a time and materials basis at Company’s then current fees and charges therefor. However, any change in billing rates shall not affect the rates set forth in any Statement of Work in effect at the time of the rate increase.
3.3 Travel and Expenses. Travel time may be billable on a door to door basis. In addition, Customer shall reimburse Company for all out-of-pocket expenses incurred by Company in connection with the performance of the Services, including, without limitation, travel, lodging, meals and other incidental expenses, unless otherwise specified in the Statement of Work.
3.4 Taxes. In addition to all charges specified in this Agreement (including in each Statement of Work), Customer shall pay or reimburse Company for all federal, state, local, or other taxes, including, without limitation, sales, use, excise and property taxes, or any amounts levied in lieu thereof, based on charges set forth in this Agreement; provided, that Customer shall have no responsibility for taxes based on Company’s net income.
4. TERM AND TERMINATION.
4.1 Term. This Agreement shall commence on the Effective Date and shall terminate on the earlier to occur of: (1) there being no Statements of Work in existence under this Agreement for a period of six (6) consecutive months or (2) this Agreement is terminated pursuant to the terms hereof.
4.2 Material Breach. In the event either party shall fail to perform its obligations pursuant to this Agreement (including any Statement of Work) and such failure shall continue for a period of thirty (30) days following written notice from the other party, this Agreement and/or any Statement of Work may be terminated by such non-breaching party by its giving a notice of termination to the breaching party.
4.3 Effect of Termination. Notice of termination of any Statement of Work shall not be considered notice of termination of this Agreement unless specifically stated in the notice; provided, however, that any termination of this Agreement shall automatically terminate all Statements of Work.
4.4 Amounts Due. In addition to any amounts available under law, Customer shall pay Company for all services performed and costs incurred up through the termination date.
4.5 Survival. The provisions of Sections 3, 4, 5, 6, 7, 8, 9 and 10 shall survive any expiration or termination of this Agreement.
5. PROPRIETARY RIGHTS.
5.1 Ownership of Company Materials. Company agrees that all Customer Materials shall be the property of Customer or its licensors.
5.2 Ownership of Deliverables. Customer agrees that all Deliverables shall be the property of Company or its licensors.
5.3 Licenses. Unless otherwise agreed in a Statement of Work, Customer shall have the following limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license rights to use any Deliverable: (i) if there is no EULA in place relating to the Deliverables, then Customer’s use of the Deliverable is limited to internal use solely to evaluate whether to enter into a license agreement with Company for the license of the Software; or (ii) if there is a EULA in place then Customer will the use rights as specified for the Software and Documentation set forth in the applicable EULA.
5.4 Feedback. From time to time, Customer may provide Company with suggestions, comments, feedback, ideas or know-how, in any form about the Company’s products and services (“Feedback”). Customer hereby grants Company a non-exclusive, worldwide, perpetual, irrevocable license, with rights to sublicense, to make, use, modify, distribute and otherwise commercialize the Feedback as part of any of the services or products Company may offer in Company’s business.
6. LIMITED WARRANTY.
6.1 Limited Warranty. Company hereby warrants to Customer that: (i) the Services will be performed in a professional and workmanlike manner; and (ii) with respect to any Deliverables for which Specifications are set forth in the applicable Statement of Work, for a period of ninety (30) days commencing on the date that such Deliverable is delivered by Company to Customer, such Deliverable, when properly used, shall materially conform to the functional and/or technical criteria set forth in the applicable Specifications.
6.2 Defects Not Covered By Warranty. Company shall have no obligations under the limited warranty set forth in Section 6.1(ii) to the extent that the failure of any Deliverable to materially conform to the functional and/or technical criteria set forth in the applicable Specifications is caused by: (a) the incorporation, attachment or otherwise engagement of any attachment, feature, program, or device, other than by Company, to such Deliverable, or any part thereof; or (b) misuse; alteration, modification, or combination with materials not supplied by Company, or enhancement of such Deliverable other than by Company; failure to provide a suitable installation environment; use of such Deliverable for other than the specific purpose for which such Deliverable is designed; or use of such Deliverable on any systems for which use was not intended.
6.3 Sole and Exclusive Remedy. Company shall, as Customer’s sole and exclusive remedy and Company’s sole and exclusive obligation under the limited warranty set forth in Section 6.1(i), use commercially in as much efforts to reperform the affected Service, and for Section 6.1(ii), use commercially reasonable efforts to correct any failure of an Deliverable to materially conform to the functional and/or technical criteria set forth in the applicable Specifications; provided, that Company’s obligation to so correct or reperform is subject to receipt by Company from Customer, within ninety (90) days from the date that such Service Deliverable was first delivered by Company to Customer, of written notice that sets forth the details of such failure and such other information as is reasonably necessary to permit Company to verify and reproduce such failure.
6.4 No Other Warranties. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, COMPANY MAKES NO OTHER WARRANTIES , EITHER EXPRESS OR IMPLIED, AS TO ANY OTHER MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE SERVICES, LICENSED PRODUCTS OR ANY INNOVATIONS DEVELOPED HEREUNDER, THEIR MERCHANTABILITY, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THEIR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, THAT ANY PRODUCT OR INNOVATION IS ERROR-FREE OR THAT OPERATION OF ANY LICENSED PRODUCT OR INNOVATION WILL BE SECURE OR UNINTERRUPTED.
7. LIMITATION OF LIABILITY.
7.1 Liability Cap. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO THE FEES RECEIVED BY COMPANY FROM CUSTOMER FOR SERVICES RENDERED PURSUANT TO THE STATEMENT OF WORK GIVING RISE TO CUSTOMER’S CLAIM FOR DAMAGES.
7.2 Damages Exclusion. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR DAMAGES RESULTING FROM LOSS OF DATA, PROFITS OR BUSINESS, USE OF THE SERVICES OR INNOVATIONS, FAILURE OF THE SERVICES OR DINNOVATIONS TO PROVIDE SECURITY, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR ANY INNOVATIONS PROVIDED HEREUNDER, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY .
8.1 Indemnity Obligation and Conditions. COMPANY EXPRESSLY DISCLAIMS ANY OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AND/OR ANY OTHER PARTY FROM ANY CLAIM, DEMAND, ACTION OR THREATENED ACTION. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, THE PROVISIONS OF THIS SECTION 8.1 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF COMPANY AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ACTUAL OR ALLEGED MISAPPROPRIATION, VIOLATION AND/OR INFRINGEMENT OF ANY PROPRIETARY AND/OR INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
9.1 Definition. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. For the purposes of this Agreement, the Services, the Deliverables, the results of any performance, functional or other evaluation of the Services or the Deliverables shall be deemed Confidential Information of Company. The Customer Materials shall be deemed the Confidential Information of Customer.
9.2 Exceptions. The confidentiality obligations in this Section 11 shall not apply with respect to any of the Discloser’s Confidential information which: (a) was in the public domain at the time it was disclosed to Recipient or has become in the public domain through no act or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) was disclosed by Recipient with the prior written approval of Discloser; (d) was independently developed by Recipient without any use of Discloser’s Confidential Information by employees or other agents of (or contractors hired by) Recipient who had no access to or did not rely on Discloser’s Confidential Information; or (e) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser’s rights.
9.3 Restrictions on Use and Disclosure. Recipient agrees not to use Discloser’s Confidential Information or disclose, distribute or disseminate Discloser’s Confidential Information except in furtherance of the performance of its obligations or enforcement of its rights hereunder or as otherwise expressly agreed by Discloser in writing. Recipient agrees to restrict access to such Confidential Information to those employees or consultants of Recipient who need to know such Confidential Information for performing as contemplated hereunder and have agreed in writing to be bound by a confidentiality obligation no less protective than that contained in this Agreement. Recipient shall exercise the same degree of care to prevent unauthorized use or disclosure of Discloser’s Confidential Information to others as it takes to preserve and safeguard its own information of like importance, but in no event less than reasonable care.
9.4 Compelled Disclosure. If Recipient is compelled by a court or other competent authority or applicable law to disclose Confidential Information of Discloser, it shall give Discloser prompt written notice and shall provide Discloser with reasonable cooperation at Discloser’s expense so that Discloser may take steps to oppose such disclosure or obtain a restraining order. Recipient shall not be in breach of its obligations in this Section 9 if it makes any legally compelled disclosure provided that Recipient meets the foregoing notice and cooperation requirements.
9.5 Injunctive Relief. Recipient acknowledges that breach of the confidentiality obligations would cause irreparable harm to Discloser, the extent of which may be difficult to ascertain. Accordingly, Recipient agrees that Discloser is entitled to seek immediate injunctive relief in the event of breach of an obligation of confidentiality by Recipient.
9.6 Return of Confidential Information. As between the parties, Confidential Information shall remain the property of the Discloser. At any time, upon Discloser’s reasonable request, Recipient shall promptly (and in any event within 30 days) return to Discloser or destroy, at the election of the Recipient, any Confidential Information of the Discloser. In addition, within 30 days after termination of this Agreement, Recipient shall (i) promptly return all tangible materials containing such Confidential Information to Discloser, (ii) remove all Confidential Information (and any copies thereof) from any computer systems of the Recipient (except that there is no requirement to search back up media maintained in the ordinary course of business), its contractors and its distributors, and confirm in writing that all materials containing Confidential Information have been destroyed or returned to Discloser, as applicable, by Recipient. Recipient shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
10.1 Amendment; Waiver. Neither this Agreement nor any Statement of Work may be amended except by a written notice signed by an authorized representative of Company and Customer. No terms and conditions in purchase order or instrument issued by Customer in connection with the Services that conflict with or that are in additional to this Agreement (including the applicable Statement of Work) shall be binding upon Company. The waiver by either party of any of its rights hereunder or under any Statement of Work shall not be construed as a waiver of any subsequent breach.
10.2 Reference Account. Customer agrees that Company may use Customer’s name and logo on its website and in other marketing materials, and that Customer will serve as a reference account for Company upon request.
10.3 Notice. Unless otherwise specifically provided, all notices required or permitted under this Agreement shall be in writing and in English and may be delivered personally, or sent by facsimile or air mail, return receipt requested, addressed as follows and shall be deemed delivered upon receipt to the address of the receiving party as identified on the Statement of Work or at such other address as may hereafter be furnished in writing by either party to the other party.
10.4 Successors and Assigns. All terms and conditions of this Agreement and each Statement of Work shall be binding upon and inure to the benefit of the parties hereto, and to their successors and assigns. Neither part may assign this Agreement, except that either party may assign this Agreement to a successor of all or substantially all of its assets or stock (whether by sale, acquisition, merger, change of control, operation of law or otherwise).
10.5 Governing Law and Jurisdiction. This Agreement (including each Statement of Work) will be governed by the laws of the State of California without reference to conflict of law principles. All disputes arising out of or related to it, will be subject to the exclusive jurisdiction of the state courts located in San Mateo County, California, and the federal courts located in the Northern District of California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
10.6 Entire Agreement; Counterparts. This Agreement contains the entire understanding of the parties as to the subject matter hereof and supersedes all prior understandings of the parties, whether oral or written. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. If there is a discrepancy between any provision of the body of this Agreement and a Statement of Work, the Statement of Work shall prevail.
10.7 Severability. If a court finds any provision of this Agreement invalid or unenforceable as applied to any circumstance, that provision shall be enforced to the maximum extent permitted by law, and the other provisions, and that provision as applied to other circumstances, will remain in full force and effect.
10.8 Force Majeure. Both parties shall be excused from performance under this Agreement and any related Statement of Work for any period to the extent that a party is prevented from performing any obligation (except for payment obligations) , in whole or in part, as a result of causes beyond its reasonable control , including without limitation, acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment.
10.9 Relationship of Parties. The parties are independent contractors and are not employees, agent or legal representatives of the other party. Neither party is authorized to bind the other party, act as an agent for the other party or otherwise act in the name of or on behalf of the other party.
10.10 U.S. Government End Users. The Deliverables, if any, and any other software covered under this Agreement are “commercial items” as that term is defined at 48 C.F.R. 2.101; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire rights to the Deliverables and any other software and documentation covered under this Agreement with only those rights set forth herein.