AQUERA, INC.
PROFESSIONAL SERVICES AGREEMENT
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Customer Data” means all electronic data submitted by or on behalf of Customer to the Service.
1.3 “Professional Services” means implementation services provided by Aquera in connection with the Service, as described more fully in a Statement of Work. Professional Services shall not include the Service.
1.4 “Service” means the on-line, integration services provided by Aquera,. The Service shall not include the Professional Services.
1.6 “Users” means individuals who are authorized by Customer to use the Service, for whom a subscription to the Service has been procured. Users may include but are not limited to Customer’s and Customer’s affiliates’ employees, consultants, clients, external user, contractors and agents.
2.1 Professional Services. Customer and Aquera may enter into Statements of Work that describe the specific Professional Services to be performed by Aquera. If applicable, while on Customer premises for Professional Services, Aquera personnel shall comply with reasonable Customer rules and regulations regarding safety, security, and conduct made known to Aquera, and will at Customer’s request promptly remove from the project any Aquera personnel not following such rules and regulations.
5.1 Customer Data. All right, title and interest in and to the Customer Data is owned exclusively by Customer. Aquera shall have the right to access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement during the Term, and as otherwise expressly permitted in this Agreement.
5.2 Aquera Service. Except for the rights expressly granted under this Agreement, Aquera retains all right, title, and interest in and to the Professional Services, including all related intellectual property rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
5.3 Suggestions. Aquera shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Professional Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the features, functionality or operation of the Professional Services.
6.1 Warranty.
(a) Professional Services. Aquera warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and Aquera’s entire liability for any breach of the foregoing warranty, Aquera will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or refund to Customer the fees paid for the non-conforming Professional Services.
6.2 Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 6.1, AQUERA AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 6.1. AQUERA MAKES NO WARRANTY REGARDING ANY THIRD PARTY SERVICE WITH WHICH THE PROFESSIONAL SERVICES MAY INTEROPERATE.
7.1 NEITHER CUSTOMER, AQUERA, NOR AQUERA’S SUPPLIERS, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7.2 SUBJECT TO SECTION 7.3 BELOW, IN NO EVENT WILL AQUERA NOR ITS SUPPLIER’S, OR CUSTOMER’S LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNTS PAID/PAYABLE TO AQUERA BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING AQUERA’S RECEIPT OF NOTICE OF THE APPLICABLE CLAIM.
7.3 There is no limitation on direct loss, claims or damages arising out of: (a) breach of Section 2.2, (b) breach of Section 4, (c) either party’s gross negligence or willful misconduct, (d) fraud, or (e) obligations of indemnity under Section 8.
8.1 Aquera Indemnification Obligation. Subject to Section 8.3, Aquera will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Professional Services, as provided by Aquera to Customer under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). Aquera will indemnify Customer for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Aquera, in connection with an Infringement Claim. In the event of any such Infringement Claim, Aquera may, at its option: (i) obtain a license to permit Customer the ability to continue using the Professional Services; (ii) modify or replace the relevant portion(s) of the Professional Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Customer any prepaid, unused Fees for such infringing Service hereunder. Notwithstanding the foregoing, Aquera will have no liability for any infringement claim of any kind to the extent that it results from: (1) modifications to the Professional Services made by a party other than Aquera; (2) the combination of the Professional Services with other products, processes or technologies (where the infringement would have been avoided but for such combination); or (3) Customer’s use of the Professional Services other than in accordance with this Agreement. The indemnification obligations set forth in this Section 8.1 are Aquera’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
8.2 Customer Indemnification Obligation. Subject to Section 8.3, Customer will defend Aquera from any and all claims, demands, suits or proceedings brought against Aquera by a third party alleging a violation of a third party’s rights arising from Customer's provision of the Customer Data. Customer will indemnify Aquera for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer.
8.3 Indemnity Requirements. The party seeking indemnity under this Section 8 ("Indemnitee") must give the other party ("Indemnitor") the following: (a) prompt written notice any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor's sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense.
10.2 Termination. Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice. Termination due to Customer’s breach shall not relieve Customer of the obligation to pay any fees accrued or payable to Aquera under the Agreement.
10.3 Effect of Termination. The sections titled “Definitions,” “Confidentiality,” “Ownership; Aggregated Data,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and “General” shall survive any termination or expiration of this Agreement.
11.1 Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Aquera without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety, upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
11.2 Controlling Law, Attorneys’ Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Seattle, Washington. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
11.3 Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).
11.4 Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
11.5 Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
11.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
11.7 Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the Service in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
11.8 Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Service constitute software and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government User as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government End User Section 12.8 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
11.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than with regard to Professional Services, pricing) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.