PROFESSIONAL SERVICES AGREEMENT
(Version 1.5: 1July2023)
BY (A) SIGNING A DOCUMENT THAT REFERENCES THIS AGREEMENT, (B) ISSUING A PURCHASE ORDER AGAINST A QUOTATION THAT REFERENCES THIS AGREEMENT, OR (C) ACCEPTING THESE TERMS IN ANY MANNER, YOU ARE ACCEPTING ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY PROFESSIONAL SERVICES THE PURCHASE OF WHICH REFERENCED THIS AGREEMENT.
IF YOU ARE CONTRACTING FOR ANY PROFESSIONAL SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP, OR OTHER ENTITY, THEN YOU MUST BE AUTHORIZED TO BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, DO NOT SIGN A STATEMENT OF WORK REFERENCING THESE TERMS. BY USING SERVICES, THE PURCHASE OF WHICH IS GOVERNED BY THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS LEGALLY ENFORCEABLE.
Modifications to this Agreement:
- SOWs for Services are governed by the version of this Agreement applicable on the Effective Date of the SOW as indicated by the version date above.
- The terms of this Agreement may not be modified with respect to the SOW to which they apply except by mutual agreement.
- New versions of this Agreement will only apply to subsequent SOWs.
This is an agreement between Customer and Precisely (both as defined below). Each of Precisely and Customer may be referred to as “party” or collectively as the “parties” to this Agreement.
1. DEFINITIONS
1.1 For the purposes of this Agreement, the following terms will have the corresponding definitions:
“Affiliate” means an entity that Controls, is Controlled by or is under common Control with a party, where “Control” for purposes of this Agreement means the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise, with direct or indirect ownership of more than fifty percent (50%) of the voting securities or other equivalent interests of an entity.
“Agreement” means exclusively this Professional Services Agreement document, any applicable Addenda, and the Documentation applicable to the Service.
“Customer” or “You” means the entity(ies) specifically named in the SOW as the recipient of the Services.
“Deliverable(s)” means the tangible work product and output of Services as set forth in a SOW.
“Effective Date” means with respect to a SOW, the date specified as such in the SOW, or if no date is specified, the earlier of (a) the date on which the SOW is executed by Customer, or (b) the date Precisely begins performing Services under the SOW.
“Force Majeure Event” means an event beyond the reasonable control of a party, including, but not limited to: acts of God; government actions; fire; labor difficulties; civil disturbances; transportation interruptions; interruptions or failures of telecommunications, digital transmission links, or power; hostile network attacks; unforeseen pandemics; failure of a hosting service provider; or other natural or supervening disasters.
“Precisely” means Precisely Software Incorporated or its Affiliate as identified on a SOW.
“Services” means the professional and consulting Services to be performed by Precisely as described in the SOW, but excludes any product support and/or maintenance services.
“Statement of Work” or “SOW” means a Statement of Work, or Professional Services Order Form (“PSOF”) or other mutual agreement between Customer and Precisely for the purchase of Services.
“Warranty Period” means the thirty (30) day period following completion of the Services.
1.2 In the event of any conflict or ambiguity between the provisions of this Agreement, any SOW and any document referred to in this Agreement, the conflict or ambiguity shall be resolved in the following descending order of precedence: any Addenda (with the most recent taking precedence); SOW’s (with the most recent taking precedence); the Documentation; and the main body of this Agreement.
1.3 Words in the singular include the plural and vice versa and words in one gender include any other gender. Headings are for convenience only and shall not affect the interpretation of this Agreement. A reference to legislation or a legislative provision includes any subordinate legislation made under it and any legislative provision which modifies, consolidates, re-enacts or supersedes it. A reference to any party includes its successors in title and permitted assigns.
2. SERVICES
2.1 Precisely will perform the Services in accordance with this Agreement and the SOW. Precisely is not obligated to provide any Services unless set out in the SOW. Unless otherwise set out in the SOW or as agreed to by the parties, Precisely will commence performance of the Services within fifteen (15) business days following execution of the SOW and the Services will be performed remotely (not onsite). Changes or delays in the work schedule originating with Customer are subject to the project change procedure and may result in an increase in fees and project duration.
2.2 For a time and materials engagement, Precisely estimates that the Services will be completed in approximately the number of hours set out in the SOW. Precisely does not represent, however, that the Services will be completed within the number of hours specified therein. Any estimates provided in the SOW, including expected hours to complete the Services and any timeline provided by Precisely, are based on known functional requirements and technical environments as of the effective date of the SOW.
2.3 Precisely grants Customer a non-exclusive, non-transferable, royalty-free, perpetual license to use the Deliverables on behalf of and for the benefit of Customer. Precisely retains all right, title and interest to the Deliverables except for those rights expressly granted to Customer and reserves all rights not otherwise expressly granted herein. Deliverables and Services are deemed accepted upon delivery unless otherwise set forth in a SOW.
2.4 Any modifications to the Services must be in writing and signed by authorized representatives of each party. The modifications may be set forth in a project change request or other document agreed to by the parties in writing. Precisely personnel performing Services at Customer’s offices will comply with Customer’s policies and procedures in effect at such location.
3. FEES; EXPENSES
3.1 Customer will pay to Precisely, or Precisely’s authorized partner, designee or agent, the fees set out in the SOW for all Services performed by Precisely, and all taxes related thereto. All fees and any applicable taxes are due and payable by Customer in the currency specified in the SOW by the latter of (a) the number of days from the date of invoice set forth in the SOW, or if none, (b) within thirty (30) days from the date of invoice which Precisely may submit in accordance with the SOW. The fees set out in an SOW are the Customer’s payment for the purchase of the Services for the Term of the SOW. Except as otherwise specified herein or in an SOW, (a) fees are based on Services purchased and not actual usage, (b) payment obligations are non-cancelable, (c) fees paid are non-refundable.
3.2 The fees do not include any amount for taxes. Customer will pay all national, state and local sales, use, property, excise, privilege, ad valorem, Internet-related, and other taxes imposed on or with respect to this Agreement. If any sales, use, excise or other taxes (except for taxes based on Precisely’s net income) are assessed against or required to be collected in connection with this Agreement, Precisely will itemize such taxes on its invoices and Customer will pay such taxes unless it provides Precisely with a valid tax exemption certificate authorized by the applicable taxing authority or demonstrates through documentation to Precisely’s reasonable satisfaction that such itemized taxes do not apply. Customer will pay Precisely the fees set out in the SOW for Services in accordance with the payment terms set forth in this Agreement. Fees will be invoiced to Customer based on one of the following billing options, as indicated in the SOW:
(a) Time and Materials: For engagements with a time and materials billing schedule, invoices will be issued monthly in arrears as Services are performed, based on the hourly or daily rate set forth in the SOW. If Precisely performs Services at Customer’s request on a weekend or federal holiday (for the country where the Services are being performed or if off-site the country where the Precisely resources are performing the Services), Customer will pay Precisely one and a half (1.5) times the hourly or daily rate for all Services performed on such weekend or federal holiday.
(b) Prepaid Hours: Invoices will be issued to Customer based on the number of hours or days indicated as “Prepaid Hours” prior to commencement of any Services, based on the rates set forth in the SOW or other executed order document. Prepaid Hours are then allocated to Services performed upon execution until the Prepaid Hours are depleted. All Prepaid Hours must be used within twelve (12) months of the effective date of the original SOW purchasing the Prepaid Hours. If Customer fails to use the Prepaid Hours within such time period due to factors outside Precisely’s control, Precisely will not be obligated to refund the unused pre-paid fees and will be under no obligation to perform the Services.
(c) Fixed Fee: Invoices will be issued upon delivery of milestones, or in accordance with a billing schedule set forth in the SOW or other executed order document.
3.3 Customer will also pay for all reasonable travel-related and out-of-pocket expenses incurred by Precisely in the performance of the Services which will be billed monthly and due thirty (30) days following date of invoice.
3.4 Where Customer fails to pay the fees by the due date and has not reasonably and in good faith disputed those fees then Precisely may, without limiting its other rights and remedies: (a) charge interest on the late payment of one and a half percent (1.5%) per month or the highest amount permitted by law; and/or (b) suspend performance of the Services until such overdue amounts have been paid in full.
4. CUSTOMER OBLIGATIONS
4.1 Customer will provide any assistance reasonably required by Precisely to perform the Services, including timely review of plans and schedules for the Services and reasonable access to Customer’s offices for Services performed onsite.
4.2 Customer will designate a project manager for the Services. The project manager will have the authority to make decisions on behalf of Customer with respect to changes in the Services, resource allocation, expenditures, resolution of issues, scope changes and other matters involving the Services.
4.3 Customer will maintain a back-up of any data or data files provided to Precisely.
4.4 Customer will be responsible for securing all licenses for third party technology necessary for Precisely to perform the Services (including the right for Precisely to use such technology) and will be responsible for the performance of any third-party providing goods or services to Customer related to the Services, including such third party’s cooperation with Precisely.
5. WARRANTY
5.1 Precisely warrants to Customer that the Services will be performed in a professional manner in accordance with generally accepted industry standards for the software consulting industry. Precisely will use reasonable commercial efforts to complete the Services in accordance with the SOW. If the Services fail to comply with this warranty during the Warranty Period, Customer shall notify Precisely in writing within thirty (30) days of becoming aware of such issue specifying in reasonable detail any alleged non-conformities in the Services. Upon such notice and to the extent the Services did not comply with this warranty, Precisely will, as Customer’s remedy, promptly re-perform any such Services in accordance with the SOW and this Agreement.
5.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT IN RELATION TO SERVICES, THE SERVICES ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRECISELY AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE USE OF THE SERVICE INCLUDING, BUT NOT LIMITED TO, (A) ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF PRECISELY IS INFORMED OF THE PURPOSE), ACCURACY, RELIABILITY, OR NON-INFRINGEMENT, OR (B) ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.
6. CONFIDENTIALITY
6.1 During performance of the Services, each party may receive Confidential Information of the other party.
6.2 “Confidential Information” means all confidential and proprietary information of either party (“Disclosing Party”), including but not limited to, each party’s and its Affiliates: (i) customer and prospect lists, names or addresses, existing agreements with Disclosing Party and business partners; (ii) pricing proposals, financial and other business information, data processes and plans; (iii) research and development information, analytical methods and procedures, hardware design, technology (including the Deliverables); (iv) financial information or personnel data; (v) information concerning the customers and potential customers of either party; (vi) business practices, know-how, marketing or business plans; (vii) this Agreement and the SOW, technical documentation, user manuals, and training materials; and (viii) any other information identified in writing as confidential or information that the receiving party knew or reasonably should have known was confidential, in each case that is disclosed to the other party (“Receiving Party”) or to which the Receiving Party gains access in connection with performance of the Services.
6.3 The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in strict confidence, apply at least the standard of care used by the Receiving Party in protecting its own Confidential Information, but not less than a reasonable standard of care, and not to disclose such Confidential Information to any third party; and (ii) without the written permission of the Disclosing Party, not to use any Confidential Information of the Disclosing Party except as reasonably required to exercise its rights or perform its obligations under this Agreement and the SOW. Each party agrees to cause its employees, subcontractors, agents and, if permitted, Affiliates, who require access to such information to abide by such obligations.
6.4 The foregoing obligations do not apply to information that: (i) is already public or becomes available to the public through no breach of this Section 6; or (ii) was in the Receiving Party’s lawful possession before receipt from the Disclosing Party; or (iii) is lawfully received independently from a third party who is not bound by a confidentiality obligation; or (iv) is independently developed by or on behalf of the Receiving Party without use of any Confidential Information.
6.5 If a Receiving Party is compelled to disclose the Confidential Information by a governmental agency or a court of law having proper jurisdiction, the Receiving Party will give the Disclosing Party reasonable notice as permitted by law to enable such party to try to protect the confidentiality of the Confidential Information.
6.6 Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return or destroy all Confidential Information in its possession, and certify its destruction in writing, provided, however, that the Receiving Party may retain one copy of the returned or destroyed items for archival purposes in accordance with its records retention policies and subject to this Section 6.
6.7 Disclosing Party may be irreparably damaged if the obligations under this Section 6 are not enforced and as such may not have an adequate remedy in the event of a breach by Receiving Party of its obligations hereunder. The parties agree, therefore, that Disclosing Party is entitled to seek, in addition to other available remedies, an injunction restraining any actual, threatened or further breaches of the Receiving Party’s obligations under this Section 6 or any other appropriate equitable order or decree.
7. INDEMNIFICATION
7.1 Precisely will
(a) defend Customer against a claim by an unrelated third party alleging that Customer’s use of the Service in accordance with this Agreement, infringes any copyright, trademark, or patent registered or valid within the country where the services are performed, or misappropriates any trade secret (“IP Claim”); and
(b) indemnify and hold Customer harmless in respect of a final award made by a court of competent jurisdiction or the amount agreed to by Precisely in settlement of the IP Claim;
provided that: (i) Precisely will have exclusive control of the defense and negotiation of any settlement of the IP Claim; (ii) Customer notifies Precisely promptly of any such claim; (iii) Customer provides reasonable cooperation to Precisely in relation to the defense, settlement and mitigation of the IP Claim, and (iv) Customer does not make any admission or otherwise compromise the defense or settlement of the IP Claim Precisely will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of Precisely not otherwise covered by this indemnification without Precisely’s prior consent, which consent shall not be unreasonably withheld or delayed. Customer may elect to participate in the defense of any claim with counsel of its choosing at its own expense.
7.2 If the Services are subject to a claim of infringement or misappropriation as noted above, or if Precisely reasonably believes that the Services may be subject to such a claim, Precisely reserves the right to: (a) modify the Service so that they are non-infringing or offer a non-infringing replacement Service, at no cost to Customer, which modified or replacement service will be functionality equivalent; or (b) procure at no cost to Customer the right to continue to use such Services; or (c) terminate Customer’s use of such Service. If Precisely terminates use of such Service, Customer’s remedies, in addition to the indemnification set out herein, will be limited to a refund of any prepaid but unused fees for the Service.
7.3 Precisely will have no obligation to defend or indemnify Customer under this Section 7 if the infringement or misappropriation results from: (i) modifications to the Deliverables by anyone other than Precisely; (ii) combination of the Deliverables with Customer’s equipment or non-Precisely software programs if such claim of infringement or misappropriation would have been avoided had such combination, operation or use not occurred; (iii) Customer’s failure to implement modifications (which if delivered to Customer expressly to avoid infringement, will be delivered at no additional cost to Customer and which will provide substantially the same functionality as the infringing or potentially infringing Deliverables); or (iv) Services performed or Deliverables developed at the direction of Customer, where Customer specifies the means, manner or method of performing the Services or developing the Deliverables and to the extent Precisely did not exercise its independent judgment and discretion in performing the Services or developing the Deliverables.
7.4 Customer acknowledges that certain risks are best able to be mitigated by Customer. In that regard, Customer shall (a) defend Precisely against a claim by an unrelated third party: (i) alleging that Customer Data or any other data, files or other materials provided by Customer to Precisely infringes any copyright, trademark, or patent or misappropriates any trade secret; or (ii) arising out of Customer’s violation of Section 11 (Compliance); and (b) indemnify Precisely in respect of a final award made by a court of competent jurisdiction or the amount agreed to by Customer in settlement of such claims; provided that: (i) Customer will have exclusive control of the defense and negotiation of any settlement of such claims; (ii) Precisely notifies Customer promptly of any such claim; (iii) Precisely provides reasonable cooperation to Customer in relation to the defense, settlement and mitigation of such claims, and (iv) Precisely does not make any admission or otherwise compromise the defense or settlement of such claims. Customer will not agree to any settlement which requires acknowledgment of fault or an incurred liability on the part of Precisely not otherwise covered by this indemnification without Precisely’s prior consent, which consent shall not be unreasonably withheld or delayed. Precisely may elect to participate in the defense of any claim with counsel of its choosing at its own expense.
7.5 This Section 7 sets out each party’s entire liability and the exclusive remedy for IP Claims.
8. LIMITATION OF LIABILITY
8.1 DISCLAIMER. SUBJECT TO SECTION 8.3, NEITHER PARTY (NOR PRECISELY’S THIRD PARTY SUPPLIERS) WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, LOSS OF PROFITS OR REVENUE, GOODWILL OR REPUTATION, BUSINESS INTERRUPTION, OR LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.2 MAXIMUM LIABILITY. SUBJECT TO SECTION 8.3, IN ANY EVENT, EITHER PARTY’S (AND PRECISELY’S THIRD PARTY SUPPLIER’S) MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY SOW (IN TORT, CONTRACT OR OTHERWISE) WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY CUSTOMER TO PRECISELY UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE SUCH CLAIM IS MADE.
8.3 EXCLUSIONS. THE DISCLAIMER SET FORTH IN SECTION 8.1 AND THE MAXIMUM LIABILITY IN SECTION 8.2 DOES NOT APPLY TO: (A) THE EXTENT PROHIBITED BY APPLICABLE LAW; (B) CUSTOMER’S BREACH OF SECTION 11 (COMPLIANCE); (B) CUSTOMER’S OBLIGATIONS TO PAY AMOUNTS DUE UNDER AN SOW; (C) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY); (D) EITHER PARTY’S LIABILITY UNDER SECTION 7 (INDEMNIFICATION); OR (E) EITHER PARTY’S MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8.4 SUBJECT TO APPLICABLE LAW, CLAIMS IN RELATION TO THE SERVICE OR THIS AGREEMENT (OTHER THAN ARISING OUT OF CLAIMS RELATING TO A PARTY’S INTELLECTUAL PROPERTY OR A BREACH OF SECTION 6) MUST BE MADE WITHIN 18 MONTHS OF THE EVENT GIVING RISE TO THE CLAIM.
9. TERM OF AGREEMENT
9.1 This Agreement and the SOW will be effective as of the effective date of the SOW and will remain in effect until the Services are completed, this Agreement is terminated, or the termination date set out in the SOW (the “Termination Date”), whichever is later.
9.2 Either party may terminate this Agreement and any SOW immediately upon written notice to the other party for cause, if: (i) such party is in breach of a material provision of this Agreement or the SOW and fails to cure such breach within fifteen (15) days following written notice of such breach; or (ii) the other party ceases to conduct business in its ordinary course; is adjudged bankrupt or insolvent under applicable law; has made a general assignment for the benefit of creditors; files or becomes subject as a debtor to a petition in bankruptcy for liquidation or reorganization; becomes otherwise insolvent; or admits its inability to pay its debts generally as they become due. The party seeking to terminate must notify the other party in writing of its intent to terminate pursuant to this Section within ninety (90) days of becoming aware of the issue giving rise to the right to terminate.
9.3 Upon the effective date of termination of this Agreement or the SOW, Precisely will cease performance of the Services. Customer will pay Precisely for all Services performed prior to the date of termination plus any additional fees that may be due under the SOW. For Services performed on a fixed fee basis, should the SOW be terminated prior to delivery of any milestone or Deliverable, Customer will pay Precisely at the hourly rate for all Services performed up to the date of termination as set forth in the SOW. If no hourly rate is designated, Customer will pay Precisely’s then standard hourly rate for such Services.
9.4 Sections 3 (Fees; Expenses), 5(b) (Warranty), 6 (Confidentiality), 7 (Indemnification), 8 (Limitation of Liability), 9 (Term of Agreement), 10 (Non-Solicitation) 12 (General) will survive termination of this Agreement indefinitely or to the extent set out therein.
10. NON-SOLICITATION
During the term of this Agreement and for twelve (12) months thereafter, Customer will not solicit for employment, nor knowingly employ (either as an employee, contractor or agent), any of Precisely’s employees or subcontractors.
11. COMPLIANCE
11.1 Export Restrictions. Customer acknowledges that Services, Deliverables, content, data or other materials are subject to the export control and sanctions laws and regulations of the United States (“S.”) and may also be subject to the laws and regulations of any country in which the Services, Deliverables content, data or other materials is provided, accessible, incorporated, transferred, or received. Customer and any other users of the Services, Deliverables content, data, or other materials (including, but not limited to, your employees, contractors, or other third parties acting on your behalf) (“Customer Persons”) will comply with all applicable export control and sanctions laws and regulations. Customer represents and warrants that Customer and all Customer Persons (i) are not an entity, citizen, or resident of, or located within, a country or territory that is subject to a U.S. Government embargo or designated by the U.S. Government as a state sponsor of terrorism (including without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region, and the Donetsk People’s Republic and Luhansk People’s Republic located in Ukraine) (“Embargoed Countries”); (ii) are not acting on behalf of, or directly or indirectly owned or controlled by any governmental entity of any Embargoed Country; (iii) are not identified on any prohibited party list maintained by the U.S. Government, including the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identification List maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, and the Denied Persons List, Entity List, and Unverified List maintained by the Bureau of Industry and Security of the U.S. Commerce Department (collectively, the “Prohibited Party Lists”); (iv) are not 50% or more owned (individually or in the aggregate), or otherwise controlled, by persons designated on a Prohibited Party List; (v) are not acting on behalf of the government of Venezuela, including any person or entity employed or owned or controlled, directly or indirectly, by any political subdivision, agency, or instrumentality of the government of Venezuela; and (vi) will not utilize the Services or Deliverables or portion thereof for military purposes or end uses, or in the design, development or production of nuclear, chemical, or biological weapons. Customer agrees that it will not export, re-export, or transfer the Services or Deliverables except in compliance with U.S. law. Customer specifically agrees not to, and shall not allow Customer Persons to, export, re-export, or transfer the Services or Deliverables: (a) to any Embargoed Country or to any national of any such country when such embargoes or restrictions are in effect; (b) to any end user who you know or have reason to know will utilize the Services or Deliverables or portion thereof for military purposes or end uses, or in the design, development or production of nuclear, chemical, or biological weapons; (c) to any person who is designated on a Prohibited Party List or who is 50% or more owned (individually or in the aggregate), or otherwise controlled by, persons designated on a Prohibited Party List; or (d) without a license or other governmental authorization if required by law. Customer is solely responsible for complying with local laws in its jurisdiction that might impact its right to import, export or use the Services and Deliverables. Customer understands and acknowledges that Precisely shall have the right to direct Customer to terminate any Customer Persons who are in violation of, or who cannot make the representations provided in, this Section 11, and Customer warrants that it shall take steps to then immediately terminate and prohibit such Customer Persons from accessing or using the Services and Deliverables content, data, or other materials. If Customer does not terminate such Customer Persons, Precisely reserves the right to terminate its relationship with Customer.
11.2 Anti-Bribery Compliance. Customer warrants that it has not taken and will not take, any action, directly or indirectly, in violation of (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. §§ 78dd-1, et seq.), (ii) the UK Bribery Act 2010, or (iii) any other applicable anti-corruption or anti-bribery laws.
12. GENERAL
12.1 Force Majeure. Except for Customer’s payment obligations, neither party will be liable for, and each is excused from, any failure to perform hereunder or delay in such, to the extent that such failure or delay is due to a Force Majeure Event. The occurrence of a Force Majeure Event will not operate to terminate this Agreement, but if the non-performance of either party continues more than thirty (30) days as a result, the other party may, at its option, terminate this Agreement upon the giving of thirty (30) days’ notice in writing to the non-performing party.
12.2 Assignment. Neither party shall be entitled to assign or otherwise transfer this Agreement, in whole or in part without the prior written consent of the other party which shall not be unreasonably withheld or delayed; provided that each party may assign this Agreement to a purchaser of all or substantially all of the business assets of its company or as part of a bona fide group reorganization by giving the other party written notice.
12.3 Sub-Contracting. Precisely shall be entitled to appoint subcontractors to perform some or all of its obligations under this Agreement, including the hosting service provider with respect to the Service. Precisely is responsible for all acts and omissions of subcontractors performing services in connection with a Service as if such acts and omissions were made by Precisely.
12.4 Publicity. With Customer consent, Precisely is permitted to list Customer’s name and logo in accordance with Customer’s trademark guidelines communicated to Precisely. Specific details related to Customer’s use of a Service, and other marketing material such as press releases, case studies and other collateral using quotes or requiring active participation of Customer to create will be subject to Customer’s consent.
12.5 Applicable Law and Jurisdiction. This Agreement and each SOW shall be governed by and construed under the laws of the Governing Law jurisdiction in the table set forth in Schedule 1 without regard to conflict of laws provisions thereof and without regard to the United Nations Convention on Contract for the International Sales of Goods. Customer hereby irrevocably consents to the exclusive jurisdiction of, and confers such jurisdiction upon, the courts in the Jurisdiction shown in the table in Schedule 1 in connection with any action, suit, or other proceeding arising out of, or relating to this Agreement or an SOW, and all claims, counterclaims and crossclaims in any actions, suits or proceedings.
12.6 No waiver. No waiver of or failure to act regarding any breach of this Agreement by either party or the or the failure of either party to insist on the exact performance of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by the party issuing the waiver.
12.7 Any notice alleging a breach of this Agreement will be in writing and will be sent by overnight courier or delivered in person to the party’s address set forth in the SOW. Any other notice required to be provided by Precisely under this Agreement may be sent by postal mail or e-mail to the individual designated by Customer, and to Precisely as noted in Schedule 1; provided such notice is also sent to legal@precisely.com.
12.8 No Third-Party Beneficiaries. No person who is not a party to this Agreement shall be entitled to rely its terms provided that Precisely’s third party suppliers may rely on Sections 5.2 (Warranty Disclaimers) and 8 (Limitation of Liability) of this Agreement.
12.9 Severability. If any provision of this Agreement, or portion thereof, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.
12.10 Relationship. Each party will act as an independent contractor and employees of each party will not be considered employees of the other party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other. Each party is responsible for the acts of its own employees, officers, directors, subcontractors, representatives, and other agents.
12.11 Entire Agreement. This Agreement and all appendices, exhibits, schedules, addenda and attachments thereto (a) constitutes the entire agreement between Customer the parties with regard to the subject matter, may not be modified or amended except as noted in the introductory paragraph “Modifications to this Agreement” or as otherwise indicated herein and (b) supersede all proposals, understandings, representations, prior agreements or communications relating to Customer’s use of the Service. All documents referenced in this Agreement by hyperlink are incorporated into the Agreement in its entirety. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Customer and any such terms will have no force or effect. Customer has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement will not be construed against the party that prepared it, but instead will be construed as if both parties prepared it.
SCHEDULE 1
PRECISELY ENTITIES
| Precisely Entity | Governing Law | Jurisdiction |
| Precisely Software Incorporated
(or any entity not listed below) |
New York, USA | A federal or state court of competent jurisdiction located in New York County in the State of New York, USA |
| Precisely Software and Data Canada Inc. | Province of Ontario, Canada | General Division of the Ontario Court of Justice |
| Precisely Software Brasil Ltda. | Federative Republic of Brazil | Central Courts of the City of São Paulo |
| Precisely Software Limited | England and Wales | English Courts |
| Precisely Software GmbH | Germany | Competent courts in Munich, Germany |
| Precisely Software S.A.S. | France | Competent courts in Paris, France |
| Precisely Software Pty Ltd
|
NSW, Australia | Courts of NSW and/or the Commonwealth of Australia |
| Precisely Software and Data Singapore Pte. Ltd. | Singapore | Courts of Singapore |
Address for Notices to all of the above (unless otherwise specified in a SOW):
Precisely Software Incorporated
1700 District Avenue #300
Burlington, MA 01803 USA
Attn: General Counsel