These Terms of Professional Services (these “Terms”) apply to any implementation, training, customization or other services that Numerify, Inc., a Delaware corporation (“Numerify”) may perform for subscribers (“Customers”) to Numerify’s online, web-based data services (the “Subscription Services”).
In connection with any engagement of Numerify to perform implementation, training, customization or other services (the “Services”) for Customer, the parties will sign a Statement of Work (“SOW”) that describes the Services to be performed, the fees payable by Customer to Numerify for the Services, the payment terms, and any other terms and conditions the parties may agree upon. If there is any direct conflict between these Terms and the terms of an SOW, the terms of the SOW shall control with respect to the Services to be performed pursuant to that SOW.
For the Services rendered by Numerify, Customer agrees to pay Numerify the amount specified in the SOW. An SOW may specify that payment is to be an hourly amount, a total fixed amount, or a fixed amount for specified milestones or deliverables. In addition, unless otherwise provided in the SOW, Customer agrees to reimburse Numerify for expenses incurred by Numerify in connection with the performance of the Services. Numerify shall invoice Customer for Services performed under an SOW, and reimbursable expenses incurred, and Customer agrees to pay each invoice within thirty (30) days after receipt. If Customer fails to make a payment by the date such payment is due, the delinquent amount will be subject to finance charge of 1.5% per month, and Numerify shall be entitled to suspend performance of Services, until the overdue amount is paid.
Unless otherwise specifically provided in an SOW, (a) Numerify shall own all right, title and interest (including rights under patent, copyright, trademark, and trade secret laws, referred to below as “Intellectual Property Rights”) in and to any and all inventions (whether or not patentable), works of authorship, software, deliverables, and other materials (collectively, “Work Product”) that are conceived, created, invented, developed, or reduced to practice by Numerify, solely or jointly with Customer or others, in connection with the performance of the SOW, (b) to the extent Customer may have or acquire any interest in such Work Product, Customer hereby assigns, and agrees to assign to Numerify, all such interest, including Intellectual Property Rights, and (c) Customer shall have a non-exclusive, royalty-free, non-transferable (except as permitted in connection with a permitted assignment of Customer’s subscription to the Subscription Services), non-sublicensable, worldwide license to use such Work Product solely in connection with the authorized use of the Subscription Services as contemplated by the Master Subscription Agreement applicable to the Subscription Services (the “MSA”). As used below, “Numerify Core Technology” means: (a) Numerify technology, methodologies and intellectual property rights (including, without limitation, products, data models, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation (both printed and electronic)) existing as of the date of an SOW or otherwise arising in whole or in part outside the scope of the Services performed pursuant to the SOW; (b) any derivatives, improvements, enhancements or extensions of the foregoing, whether or not conceived, reduced to practice or developed during the term of an SOW or in performance of Services, as applicable; and (c) any Intellectual Property Rights relating to any of the foregoing. If an SOW specifically provides that Customer is to own the Work Product created pursuant to such SOW, then (a) such ownership shall not include any Numerify Core Technology that may be incorporated into any Work Product, and Numerify shall continue to own all right, title and interest in and to such Numerify Core Technology, including all Intellectual Property Rights therein, and (b) Numerify grants to Customer a non-exclusive, royalty-free, non-transferable (except as permitted in connection with a permitted assignment of Customer’s subscription to the Subscription Services), non-sublicensable, worldwide license to use such Numerify Core Technology solely to use the Work Product in connection with its authorized use of the Subscription Services as contemplated under the MSA during the term of the MSA. Nothing in these Terms shall be deemed to restrict or limit Numerify’s right to perform similar Services for any other party or to assign any employees or subcontractors to perform similar Services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Services. Nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques or expertise (“Tools”) used by Numerify to develop Work Product. The parties specifically agree that no SOW may modify or alter this Section 3 so as to give Customer any ownership of Numerify Core Technology or Tools or the Intellectual Property rights thereto.
The confidentiality provisions of the MSA shall apply to information disclosed by the parties in connection with the performance of Services pursuant to an SOW.
Numerify warrants to Customer that the Services will be performed in a competent and workmanlike manner, and will materially comply with the requirements of the applicable SOW. If Services fail to conform to this warranty, and Customer notifies Numerify thereof within forty five (45) days after Numerify’s performance of such Services, Numerify will use commercially reasonable efforts to re-perform or correct the Services so that they conform to the warranty. If Numerify fails to do so, Customer may submit to Numerify a claim for refund of any fees paid by Customer for the affected Services. This Section 5 sets forth Customer’s exclusive rights and remedies, and Numerify’s sole liability, in connection with the performance of Services.
EXCEPT FOR THE EXPRESS WARRANTY IN SECTION 5 ABOVE, NUMERIFY MAKES NO WARRANTIES TO CUSTOMER UNDER THESE TERMS WITH RESPECT TO THE SERVICES OR WORK PRODUCT. NUMERIFY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Either party may terminate an SOW, with or without cause, on thirty (30) days prior notice to the other party.
If an SOW is terminated prior to completion of the applicable Services, then (a) for Services to be performed for hourly compensation, Customer will pay Numerify for hours of Services performed prior to termination, at the specified hourly rates, (b) for Services to be performed for a total fixed fee, Customer will pay Numerify a pro-rated portion of the fixed fee, based upon the number of hours of Services performed, as compared to the total hours estimated to be required to complete the Services, and (c) if an SOW specifically provides that a separate fixed fee is to be paid for delivery of specified deliverables, or for achievement of specified milestones, then (i) Customer will pay Numerify the specified fixed fee for each deliverable delivered, or milestone achieved, prior to termination, and (ii) Customer will pay Numerify a pro-rated portion of the fixed fee for deliverables or milestones on which Numerify was working at the time of termination, based upon the number of hours of Services performed toward such deliverable or milestone, as compared to the total hours estimated to be required to complete the deliverable or milestone.
The parties are independent contractors as to each other and neither shall be deemed a partner, joint venturer, or agent of the other and neither shall have the power to bind the other to any contract.
NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF REVENUE OR PROFITS) ARISING OUT OF OR RELATING TO THE SERVICES OR WORK PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF NUMERIFY TO CUSTOMER, IN CONNECTION WITH THE SERVICES PERFORMED UNDER ANY SOW, EXCEED THE AMOUNT CUSTOMER HAS PAID NUMERIFY UNDER SUCH SOW.
The rights of the parties to transfer or assign their rights and obligations under these Terms shall be as provided in the MSA with respect to assignment of the MSA. Numerify may, in its discretion, subcontract the performance of portions of the Services in accordance with its business needs. These Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third party beneficiaries of these Terms.
All notices relating to the Services shall be given in accordance with the notice provisions of the MSA.
Neither party will be liable for, or be considered in breach of or default under these Terms or an SOW on account of, any delay or failure to perform as required by these Terms or an SOW (except failure to pay money) as a result of any causes or conditions beyond such party’s reasonable control including but not limited to fire, earthquakes, storms, flood, strikes, riots, war, and acts, delays or failures to act by the other party or any third party. Any such breach shall be excused for the duration of such event or condition.
The failure of either party to enforce its rights under these Terms at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to these Terms will be effective unless in writing and signed by both parties. In the event that any provision of these Terms shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary and the other provisions of these Terms shall not be affected. These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law provisions. The state and federal courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute relating to these Terms, and each party hereby irrevocably consents to the exclusive personal and subject matter jurisdiction and venue of such courts. In any action or proceeding to enforce rights under these Terms, the prevailing party shall be awarded its costs and reasonable attorneys’ fees. These Terms, together with the SOWs signed by the parties, constitute the entire agreement and understanding of the parties relating to their subject matter, and supersede all prior agreements and understandings, whether written or oral, relating to that subject.