Professional Services Agreement
THIS AGREEMENT IS BETWEEN YOU (“CUSTOMER”) AND THE TILIA ENTITY LISTED IN THE APPLICABLE STATEMENT OF WORK (“TILIA”). BY SIGNING A STATEMENT OF WORK REFERENCING THIS PROFESSIONAL SERVICES AGREEMENT, OR CLICKING ON THE “I AGREE” BUTTON, YOU ARE ACCEPTING AND AGREEING TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”). The first of the above to occur shall be the “Agreement Effective Date”.
a) Scope. Tilia shall perform all professional services and provide all materials identified in a Statement of Work (“SOW”), hereinafter collectively referred to as “Professional Services”.
b) Performance. Tilia shall: (i) provide the Professional Services in material conformance with this Agreement and the specifications published by Tilia or agreed upon as part of the SOW (“Specifications”); (ii) employ a sufficient number of qualified personnel to provide the Professional Services in accordance with the terms of the SOW (“Delivery Dates”); (iii) provide Professional Services so as to minimize interference with Customer’s operations and keep the project site in an orderly and safe condition; (iv) if reasonably requested by Customer, attend progress meetings; (v) comply with all applicable laws, orders and regulations in providing the Professional Services. The parties acknowledge and agree that Tilia’s ability to provide the Professional Services is subject to Customer meeting all of its obligations in an SOW, if any, and providing the necessary resources that would typically be provided by Customer, including without limitation, provision of adequate facilities, light, heat, ventilation, electrical currents and outlets, water, and internet connectivity, and any other assistance reasonably requested by
c) Acceptance. Once Tilia provides finished Professional Services to Customer (“Delivery”), Customer may reject the Professional Services if they do not materially meet the Specifications (“Rejection”). Otherwise, Customer will accept the Professional Services (“Acceptance”). If a SOW requires acceptance testing prior to Acceptance, completion of acceptance testing will constitute Delivery. If Customer fails to provide Tilia with Rejection or Acceptance within ten (10) business days after Delivery (“Acceptance Period”), Acceptance will be deemed to occur on the eleventh (11) business day after Delivery. Any Rejection must be made in good faith with details as to how Professional Services fail to materially meet the Specifications. Tilia will address such failures and re-deliver the Professional Services to Customer and the Acceptance Process will start again and repeat until Acceptance occurs, with a maximum of three (3) attempts. Acceptance Process shall mean the process of Acceptance or Rejection described in this subsection. In the event Tilia fails to provide Professional Services that materially conform to applicable Specifications or fails to successfully complete acceptance testing after a maximum of three (3) attempts, whatever the case may be, Customer may, as its sole and exclusive remedy, accept the non-conforming Professional Services “as-is” on terms mutually agreeable by the parties, or return the non-conforming Professional Services and obtain a refund for the non-conforming Professional Services. If Customer returns the non-conforming Professional Services and use of conforming Professional Services provided under the same SOW is dependent upon provision of the non- conforming Professional Services, Customer may also return and obtain a refund for such conforming Professional Services. Notwithstanding anything to the contrary above, Customer’s commercial use of Professional Services constitutes Acceptance.
d) Changes. Either party shall propose changes to a SOW solely by way of a change order (“Change Order”) which shall be effective and become a part of the applicable SOW upon signature of both parties. Customer agrees and acknowledges that any change to Customer’s requirement(s), project plan(s), schedule, scope, specification(s), design(s), software, hardware product(s), or related system environment(s) or architecture may affect Tilia’s ability to provide the Professional Services.
a) Fees. Customer shall pay Tilia the fees provided in the applicable SOW (“Fees”). Fees shall be paid in the currency identified in the SOW. Fees do not include shipping, delivery, handling, cutting, other miscellaneous charges, or taxes, and do not constitute the final total landed cost for the Professional Services. All taxes, excluding taxes accruing on the income of each of the parties, shall be borne by the Tilia reserves the right to suspend provision of the Professional Services at any time a delinquent outstanding balance exists under any SOW and Customer fails to pay such undisputed outstanding balance within thirty (30) days of written demand for payment.
b) Expenses. Customer shall reimburse Tilia for all travel, administrative, and out-of-pocket expenses incurred in connection with performance of its obligations in a SOW.
c) Invoicing and Payment. Invoicing of fees and payment shall occur in accordance with the provisions set forth by the applicable If specific payment terms are not provided in the applicable SOW, invoices issued shall become due and payable thirty (30) days following the corresponding invoicing date.
d) Delivery. Tilia will arrange for transportation of Product and ship all Product to Customer Ex-Works (Incoterms 2010). Title and risk of loss or damage to the Products shall pass to Customer upon delivery to carrier at the point of shipment, provided that to the extent Professional Services concern software, transfer of title shall solely pertain to the physical media onto which the Professional Services was
3. TERM AND TERMINATION
a) Termination of Professional Services Exhibit. Either Party may terminate this Professional Services Exhibit in accordance with Section 4 of the Master Agreement. This Professional Services Exhibit, and all SOWs hereunder shall automatically terminate in the event the Master Agreement is terminated pursuant to Section 4 of the Master Agreement.
b) Termination of an Individual SOW. Either party may terminate any SOW for cause immediately upon written notice to the other for the grounds listed in Section 4 of the Master Agreement. Termination of any individual SOW will not automatically terminate the Master Agreement or any other SOW, unless otherwise agreed upon by the parties. Customer will pay Tilia for all conforming Professional Services provided to Customer prior to the termination date of the SOW, within thirty (30) days of
4. INTELLECTUAL PROPERTY
Tilia and its third party licensors retain all title and ownership of any Tilia provided Deliverables, Professional Services, Documentation or other intellectual property and all subsequent updates, derivative works and copies thereof, including without limitation any portions that are modified, altered or merged with any other data sets by Customer, regardless of the form or media in or on which the original and other copies may exist. Notwithstanding the foregoing, Tilia shall have no right of ownership in any Customer Data, or any data owned or licensed by Customer from a source other than Tilia. Tilia shall grant to Customer, upon full payment of fees and charges, and subject to the terms of the Master Agreement, a non-exclusive and nontransferable license to use the Professional Services specifically identified in a relevant SOW solely for Customer’s internal business purposes.
Tilia warrants that the Professional Services will be performed in a workmanlike manner consistent with industry standards reasonably applicable to the performance of such Services and that all Professional Services shall operate in accordance with the terms of this Agreement, any relevant Statement of Work and all specifications agreed upon between the parties in relation to the associated Professional Services. If Customer believes there has been a breach of this warranty and so notifies Tilia in writing stating in reasonable detail the nature of the alleged breach within twelve (12) months after approved delivery of the relevant Professional Services (“Warranty Period”), then Tilia will promptly investigate the matter to determine the nature of the alleged breach of warranty. If it is determined that there has been a breach of this warranty, then Tilia’s sole obligation, and Customer’s exclusive remedy, will be for Tilia to promptly correct or re-perform any affected Services as necessary to cause them to comply with this warranty. If Tilia is unable to correct a breach of this warranty after a maximum of two (2) repeated efforts, Customer will be entitled to terminate the relevant SOW as far as the affected Professional Services are concerned, and receive a refund for any fees actually paid for the affected Services and affected Professional Services. THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. LIMITATION OF LIABILITY
a) Exclusion of consequential damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY HERETO HAVE ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS PROFESSIONAL SERVICES EXHIBIT FOR ANY LOST PROFITS, REVENUES, GOODWILL, LOSS OF DATA, OR INDIRECT, SPECIAL, COVER, BUSINESS INTERRUPTION, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
b) Liability Limitations. TILIA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS PROFESSIONAL SERVICES EXHIBIT, OR ANY PROFESSIONAL SERVICES PERFORMED HEREUNDER, REGARDLESS OF THE FORM OR ACTION, SHALL NEVER EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO TILIA PURSUANT TO THE APPLICABLE SOW DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM. CUSTOMER HEREBY RELEASES TILIA FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION.
c) General Liability Provisions. THE PARTIES AGREE THAT THIS SECTION 6 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.