If Customer purchased consulting services from Prodotype company (“Prodotype”), then the following terms and conditions shall apply to the provision of those consulting services, in addition to any other terms and conditions accepted by Customer when Customer purchased those consulting services (“Agreement”).
1. Service Agreement.
Prodotype shall provide to Customer and Customer shall acquire from Prodotype the services set forth in the Prodotype quote or order form (“Quote or Order Form”) under which Customer purchased those services and as specified in more detail in the services schedule (if any) attached to that Quote or Order Form ("Consulting Services"). Prodotype shall provide the Consulting Services at the location (if any) set out on the Quote or Order Form in accordance with the timetable set forth in the Services Schedule (if any). Prodotype may subcontract all or any portion of performance of the Consulting Services to one or more authorized third party(ies) under the direction of Prodotype provided that Prodotype shall at all times remain responsible for the performance of the Consulting Services.
2. Payment of Fees and Expenses.
Prodotype will invoice fees, actual expenses and taxes, if any, monthly and at project completion. Payment is in accordance with Quote or Order Form terms. Customer shall reimburse Prodotype for all materials, applicable taxes, and all reasonable out-of-pocket expenses incurred by Prodotype in providing the services including, without limitation, project-related travel and living expenses. Save in the case of pre-approved expenses, PRODOTYPE shall obtain YOUR prior approval for any travel or travel related expenses. Customer will include a line item for such expenses on its purchase order or purchase order exception document.
3. Limited Warranty.
Prodotype warrants that the Consulting Services will be provided with due skill and care, using competent and qualified staff. In the event of breach of such warranty, Customer’s exclusive remedy and Prodotype’s sole liability shall be limited to Prodotype’s reasonable efforts to replace the relevant staff with a qualified resource. EXCEPT AS PROVIDED IN THIS SECTION, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Prodotype or its licensors (if any) shall own all products, concepts, materials, techniques, methods and knowhow used or provided by Prodotype in the provision of Consulting Services or included in or with the Consulting Services. Except for the license granted below, Customer shall not have or obtain any rights in such proprietary products, concepts, materials, techniques, methods and know-how, without the prior approval in writing from Prodotype. Prodotype may market, distribute, make derivative works from, and sell similar work to other customers without further notice to or consent from Customer. Nothing in this Agreement shall restrict or prohibit Prodotype's right to use concepts, techniques, and know-how used or developed in the course of performing the Consulting Services.
5. License to Work Products.
Prodotype grants to Customer a perpetual, worldwide, non-exclusive, non-transferable, royalty-free license to use the Consulting Services and the products, concepts, materials, techniques, methods and know-how included in or with the Consulting Services in Customer’s internal business operations. This license shall not apply to any Prodotype or third-party software which may be provided prior to, concurrent with or following the provision of the Consulting Services. Customer’s use of such software shall be governed exclusively by the license agreement(s) accompanying such software.
6. Customer Responsibilities.
In addition to any Customer responsibilities specified in the Services Schedule (if any), Customer shall provide work space and related facilities, as necessary, and access to all necessary Customer personnel and information required for Prodotype to perform work under this Consulting Services Order. Customer acknowledges that such access and facilities is essential to the provision of the work hereunder.
7. Confidential Information.
Through their relationship, Prodotype and Customer may have access to certain proprietary information and materials of the other, including business plans, customers, technology, trade secrets, and products that are confidential and of substantial value to the respective party, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). Prodotype and Customer agree that neither shall disclose any Confidential Information to any third party nor shall take every reasonable precaution to protect Confidential Information. In the event of termination of this Agreement, each party shall promptly return any Confidential Information that it obtained from the other. The provisions of this section shall not apply to any information which (i) is or becomes available to the public other than by breach of the Agreement by the receiving party, (ii) is rightfully received by receiving party from a third party without confidential imitations, (iii) is independently developed by receiving party's employees without access to Confidential Information, or (iv) is known to the receiving party without any restriction on its use or disclosure prior to first receipt of it from the disclosing party.
In the event either party materially breaches or defaults in the performance of any of its obligations hereunder (which breach or default has not been remedied within fifteen (15) days after written notice is given to the defaulting party specifying the breach or default) or in the event Customer fail to pay Prodotype any amount required to be paid under the Agreement, the party not in default may by written notice terminate that part of the Agreement relating to the Consulting Services as of the date specified in such termination notice. In the event of termination for any reason, Customer shall pay Prodotype for all Consulting Services and deliverables (where applicable) provided up to the date of termination at an amount equivalent to that proportion of the Consulting Services provided to the date of termination, as well as for all work-in process on a time and materials basis at the then current standard Prodotype rates for similar services. In the event of termination as aforesaid by Prodotype for Customer breach, Customer shall also reimburse Prodotype for all costs incurred to terminate or renegotiate any supplier or sub-contract agreements that Prodotype entered into in connection with this service agreement or for redeployment of Prodotype personnel.
These terms and conditions shall expire upon completion of the Consulting Services and full payment for the Consulting Services, unless earlier terminated in accordance with this section.
Should Customer desire to modify or extend the work performed under this Consulting Services Order after it has been signed, the parties will develop and sign written change orders. Prior to Customer's issuance of change orders, Prodotype will provide a detailed description of work to be completed, fee and expense estimates, and duration. Customer will authorize the change order via a written notification prior to Prodotype initiating any work. Pricing will be set forth in each change order.
The current Terms and Conditions that govern the provision of Prodotype consulting services are provided below as they apply to services that are not covered by a Standard Services Agreement or other services contract. These Terms and Conditions must be used in conjunction with a standard Prodotype Quote and Order Form.
PRODOTYPE POST PROCESSOR SERVICES AGREEMENT (Governs Certain Basic Product Training and Post Processor Services)
(a) “Prodotype” means Prodotype Design House., or an affiliate, as applicable, referenced in the Quotation (b) “Customer” means the party acquiring the Services pursuant to a Quotation from Prodotype. (c) “Quotation” means a Prodotype quotation, executed by Customer, that includes the Services, or such other signed writing referencing the Services as the parties may mutually agree. (d) “Services” means basic product training and/or technical consulting services commonly referred to as “post processor” services offered in connection with particular Prodotype software products or any third party softwares they use.
Prodotype shall provide to Customer and Customer shall acquire from Prodotype the Services set forth in the applicable Quotation.
Customer shall pay to Prodotype the fees for the Services (“Fees”) in accordance with the payment schedule set out in the Quotation. Note that any basic product training services specified in the Quotation must be consumed by Customer within twelve (12) months of the order effective date. Basic product training services not utilized within such period expire without right of refund.
4.0 Duties and Taxes.
All Fees under this Agreement are exclusive of any and all duties and tax, levy or similar governmental charge that may be assessed by any jurisdiction, including, without limitation, any export, VAT, sales, use or goods and services taxes and business taxes, customs or excise duties except for withholding taxes, net income, net worth or franchise taxes assessed on Prodotype. Any taxes required by local law to be withheld by Customer shall be remitted to the appropriate governmental authorities by Customer on behalf of Prodotype, with a copy of the tax receipt or certificate forwarded to Prodotype. If applicable, Customer must forward a copy of its tax exemption certificate to Prodotype prior to commencement of Services. Customer shall promptly reimburse Prodotype for any such taxes which Prodotype pays directly.
In addition to the payment of Fees, Prodotype shall invoice customer for and Customer shall reimburse Prodotype for any actual expenses incurred by Prodotype in providing the Services, without markup, subject to the following guidelines: (a) Airfare: Customer shall reimburse Prodotype for airfare which where possible shall be at economy or lower rate or at any other rate approved by Customer. (b) Ground Transportation: Customer shall reimburse Prodotype for travel from Prodotype’s assigned work location for dispatched Prodotype personnel to and from the Customer’s facilities at the then current standard mileage rate generally accepted for tax purpose for use of a private automobile. (c) Incidental Transportation Expenses: Customer will reimburse Prodotype for incidental transportation expenses such as bridge tolls, interstate tolls/taxes and parking fees incurred for travel to and from Customer work locations. (d) Lodging and Meals: Customer will reimburse Prodotype for reasonable lodging and meal expenses when Prodotype personnel are assigned to Customer’s facilities requiring an overnight or longer stay. Prodotype shall not be entitled to reimbursement for meals purchased for persons other than Prodotype personnel assigned to the project.
6.0 Relationship of Parties.
The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Neither party shall represent itself as an agent, legal representative, or partner of the other and shall not assume or purport to create any obligation on behalf of the other
Through their relationship, the parties may have access to certain proprietary information and materials of the other (“Confidential Information”), including business plans, customers, technology, and products that are confidential and of substantial value to the respective party, which value would be impaired if such information were disclosed to third parties. The parties agree that neither shall disclose any Confidential Information to any third party and shall take every reasonable precaution to protect Confidential Information. In the event of termination of this Agreement, neither party shall use or disclose any Confidential Information of the other and each party shall promptly return, or certify in writing to the other party that it has destroyed, all Confidential Information that it obtained from the other. The obligations in this Section 6 will not apply to any information which (i) is or becomes available to the public other than by breach of this Agreement by the party receiving the information (“Recipient”), (ii) is rightfully received by Recipient from a third party without confidential limitations, (iii) is independently developed by Recipient’s employees without access to the other party’s Confidential Information, or (iv) is known to Recipient without any restriction on its use or disclosure prior to first receipt of it from the other party. Prodotype reserves the right to develop and market any technology similar to any technology disclosed to Prodotype without the use of Customer’s Confidential Information.
Prodotype warrants that the Prodotype personnel and any subcontractor(s) will be competent and qualified to perform the Services. In the event of any breach of such warranty, Customer’s exclusive remedy and Prodotype’s sole liability is limited to Prodotype’s reasonable efforts to replace the relevant Prodotype personnel with a qualified resource.
THIS IS A SERVICE AGREEMENT. EXCEPT AS SPECIFICALLY STATED IN SECTION 8.0, PRODOTYPE MAKES NO OTHER WARRANTIES OR CONDITIONS AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WHETHER EXPRESS OR IMPLIED BY LAW, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.0 Limitation of Liability.
SAVE IN THE EVENT OF DEATH OR PERSONAL INJURY CAUSED BY PRODOTYPE’S NEGLIGENCE OR FOR LIABILITY ARISING FROM FRAUDULENT MISREPRESENTATION, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF PRODOTYPE AND ITS AFFILIATES, SUBSIDIARIES AND RELATED COMPANIES, AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, AND AGENTS FOR ALL COSTS, LOSSES OR DAMAGES FROM CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED TO CUSTOMER'S DIRECT DAMAGES ONLY AND SHALL NOT EXCEED THE TOTAL AMOUNT SET FORTH IN THE PARTICULAR QUOTATION FOR THAT SERVICE. FURTHER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR FOR LOSS OF PROFITS, REVENUES, CONTRACTS, CUSTOMERS, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF REPLACEMENT GOODS OR SERVICES, OR FAILURE TO REALIZE EXPECTED COST SAVINGS EVEN IF ADVISED OF THE POSSIBILITY OF SAME OR SAME WERE REASONABLY FORESEEABLE. CUSTOMER ACKNOWLEDGES THAT THE FEES FAIRLY REFLECT THIS ALLOCATION OF RISK.
11.0 Force Majeure.
The parties shall not be responsible for any failure to perform or for any delay in performance of its obligations, except the obligation of payment, under this Agreement where the failure or delay is due to acts of God, war, fire, flood, earthquakes, terrorism or terrorist act, civil unrest, strikes, lockouts or other labor disturbances, failure or interruption of a third party internet connection(s) or infrastructure, or any other circumstances beyond the control of that party.
12.0 Governing Law.
This Agreement will be governed by and construed in accordance with the laws of (a) England if Licensee acquired the Services in a country in Europe, Africa or the Middle East, (b) Singapore if Licensee acquired the Services in a country in Asia, Oceania or the Asia-Pacific region, or (c) the State of California (and, to the extent controlling, the federal laws of the United States) if Licensee acquired the Services in a country in the Americas (including the Caribbean) or any other country not specified in this Section 9.2 (Governing Law and Jurisdiction). The laws of such jurisdictions shall govern without reference to the conflicts of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to (and are excluded from the laws governing) this Agreement. In addition, each party agrees that any claim, action or dispute arising under or relating to this Agreement will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the court in Puducherry, India except that if Licensee has acquired the Services in (a) a country in Europe, Africa or the Middle East, any such claim or dispute will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the courts of England, or (b) a country in Asia, Oceania or the Asia-Pacific region, any such claim or dispute will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the court of Puducherry, India. Nothing in the foregoing will prevent Prodotype from bringing an action for infringement of intellectual property rights in any country where such infringement is alleged to occur.
13.0 Assignment and Subcontracting.
This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer may not assign this Agreement or any of its rights or obligations hereunder to a third party without the prior written consent of Prodotype, which consent shall not be unreasonably withheld or delayed. Prodotype may assign or otherwise transfer its rights and obligations to its affiliates or successors-in-interest (whether by purchase of stock or assets, merger, operation of law, or otherwise) of that portion of its business related to the subject matter hereof. Prodotype may subcontract all or any portion of performance of the Services to one or more authorized third parties under the direction of Prodotype.
14.0 Amendment and Waiver.
No amendment, modification, or waiver of this Agreement shall be binding unless executed in writing by both parties. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision (whether or not similar) or any subsequent breach or default, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
Any provision in this Agreement which is held to be illegal or unenforceable in any jurisdiction shall be ineffective to the extent of such illegality or unenforceability without invalidating the remaining provisions and any such illegal or unenforceable provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law.
16.0 Entire Agreement.
This Agreement, including all Contract Documents, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations, and discussions of the parties, whether oral or written. There are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth in this Agreement. Terms or conditions contained in any order placed by Customer or in any other communication by Customer, which purport to vary the terms of this Agreement shall be void and of no effect unless explicitly agreed in writing signed by an authorized representative of Prodotype.
17.0 Export Controls.
In conformity with laws and regulations of the United States, India and other countries relating to international trade, Customer shall not disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof) provided by Prodotype under this Agreement to any country, entity or other party which is ineligible to receive such items under Indian laws and regulations as modified from time to time by the Indian Department of Commerce or the Indian Department of the Treasury or under other laws or regulations to which Customer may be subject. Customer shall be solely responsible for (a) complying with those laws and regulations and (b) monitoring any modifications to them.
18.0 No Setoff.
The right of either party to any payment provided for under this Agreement will not be subject to any abatement, reduction, setoff, defense, counterclaim or recoupment of any amount due or alleged to be due by reason of any past, present or future claims of the other party.
Sections 3.0, 4.0, 5.0, 6.0, 7.0, 9.0, 10.0, 12.0, 14.0, 15.0, 16.0, 17.0 and 19.0 of shall survive completion of the Services described in the applicable Quotation.