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These Professional Services General Terms & Conditions apply to the applicable Statement of Work (“SOW”) executed by Client (as defined therein).
The Services; Client Assistance. The Professional Services shall be provided by Elemica to Client in accordance with the provisions herein and compensation shall be in accordance with the terms specified in the Statement of Work. Client will provide Elemica with such reasonable information and assistance as Elemica may reasonably request for the purpose of rendering the Professional Services, such as: (i) access, on an as-needed basis, to Client personnel, and to data processing, hardware and software systems utilized by Client related to Client connecting or utilizing the Elemica Network and (ii) reasonable use of office space and equipment, such as desks, chairs, telephone, copying and other equipment and services reasonably appropriate to accommodate Elemica personnel providing Professional Services at Client’s location. Client shall obtain any and all necessary consents for Elemica to use or access Client’s software, leased and rented equipment and third party contracts necessary for Elemica to provide the Professional Services. For the purposes of the foregoing, the “Elemica Network” means the electronic system Elemica offers that allows companies with enterprise resource planning systems, legacy systems, or through the use of a web browser to electronically connect and transact with such companies’ customers and suppliers. Client acknowledges and agrees that it has no right to use the Elemica Network except as set forth in an applicable SOW.
Termination. Elemica may terminate the SOW upon ten (10) days written notice to the Client. In addition, either party may terminate the SOW in the event the other party materially breaches these General Terms & Conditions or the SOW and does not cure such breach within thirty (30) days after its receipt of written notice from the non-breaching party.
Survival. Any provision of these General Terms & Conditions or the SOW which by their nature extend beyond the expiration or termination of the SOW (including, but not limited to, Confidentiality, Intellectual Property, Payment Terms, Indemnification, Limitation of Liability) shall continue in full force or effect notwithstanding the expiration or termination of the SOW, and in respect of the Professional Services provided to Client, whether or not an invoice has been rendered with respect thereto prior to such expiration or termination.
Acceptance; Payment Terms and Late Fees; Taxes. The SOW is subject to acceptance by Client within thirty (30) days from the date specified therein and the prices are subject to change without notice prior to acceptance by Client. Client understands and agrees that (i) any delay in performance of the Professional Services as a result of Client’s actions will subject Client to additional fees not included in the SOW and (ii) in case of a change to the Statement ofWork, the total cost of the Professional Services and expenses may exceed the amount set forth in the SOW. Elemica will invoice Client for all Professional Services and expenses as set forth in the SOW, or, if not so specified, on a monthly basis. Client will pay each Elemica invoice by no later than thirty (30) days following the date of such invoice.Client will reimburse Elemica for actual travel and living expenses, if any, that Elemica incurs in providing Client with the Services, with reimbursement to be on an as-incurred basis. At Elemica’s discretion, a late fee of the lesser of: (i)1ó% per month, and (ii) the maximum amount allowed by law, may be assessed on all late payments. Client is responsible for paying all taxes (except for taxes based on Elemica’s net income or capital stock) relating to the Services or payments made under the SOW and such taxes (if any) are NOT included in the fees set forth herein.
Intellectual Property. Elemica shall own exclusively all right, title, and interest, including, without limitation, all proprietary rights inherent therein or appurtenant thereto, to any and all data, materials, work product, and deliverables (including, without limitation, specifications, technical manuals, flow charts and software) created or provided by Elemica, or on Elemica’s behalf, either solely or jointly with Client, in connection with the provision of Professional Services (collectively, the “Elemica Materials”). To the extent that Client otherwise retains any right, title or interest in the Elemica Materials, Client hereby irrevocably assigns to Elemica all of its right, title and interest in the Elemica Materials and all intellectual property rights associated therewith. Client shall, upon request, execute and deliver such assignments and other documents that Elemica may reasonably request to perfect Elemica’s ownership of the Elemica Materials.
Limited Warranty. Elemica will render all Professional Services in a professional and workmanlike manner. Client must provide Elemica with written notice of any deficiencies in the Professional Services within thirty (30) days of completion of the Professional Services.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THESE GENERAL TERMS & CONDITIONS, ELEMICA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL SERVICES INCLUDING WITHOUT LIMITATION: (i) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (ii) THAT THE PROFESSIONAL SERVICES WILL MEET CLIENT’S REQUIREMENTS OR WILL ALWAYS BE AVAILABLE; (iii) INFRINGEMENT; AND (iv) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
Limitation of Liability. ELEMICA’S AGGREGATE LIABILITY IN CONNECTION WITH THE PROFESSIONAL SERVICES OR ANY OTHER MATTER RELATED TO THE SOW SHALL NOT EXCEED THE FEES THE CLIENT ACTUALLY PAID TO ELEMICA PURSUANT TO THE SOW. IN NO EVENT WILL ELEMICA BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, REVENUES OR DATA), EVEN IF ELEMICA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PROFESSIONAL SERVICES OR ANY OTHER MATTER RELATED TO THE SOW, REGARDLESS OF HOW CAUSED AND UNDER ANY THEORY OF LIABILITY.
Miscellaneous.
Assignment. Elemica may assign its rights or delegate its obligations under the SOW, without consent of Client, to any company which, directly or indirectly, owns or controls Elemica, is under common ownership or control with Elemica, is owned or controlled by Elemica, or to any company in connection with a merger, acquisition, or sale of all or substantially all of the assets of Elemica. Client may not assign its rights or delegate its obligations under the SOW without Elemica’s prior written consent. The rights and obligations of the parties set forth herein shall be binding upon, and inure to the benefit of, the respective successors and assigns of the parties.
Notice. All notices and other communications required or permitted under a SOW must be in writing and will be deemed given when: delivered personally; sent by email; sent by registered or certified mail, return receipt requested (or by other means of delivery requiring an acknowledged receipt); transmitted by facsimile confirmed by first class mail; or sent by overnight courier. Notices must be sent to a party at its address shown on the SOW or Master Agreement. All notices will be effective upon receipt.
Choice of Law; Consent to Jurisdiction. These General Terms & Conditions and the SOW will be governed by and interpreted in accordance with the laws of the State of Delaware, U.S.A., excluding its conflicts of law principles. Each party irrevocably consents to the exclusive jurisdiction of any court within such jurisdiction (except for purposes of enforcing a judgment), including, in the case of states within the United States, federal courts with concurrent jurisdiction. Each party waives any objection to venue or inconvenience of the forum in any such court. These General Terms & Conditions and the SOW shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Relationship of the Parties; Severability. Client and Elemica are independent contractors, and no agency, partnership, joint venture, employer-employee or other similar relationship is intended or created. If any provision shall be held invalid or unenforceable, such provision shall be deemed deleted from these General Terms & Conditions or the SOW and replaced by a valid and enforceable provision which so far as possible achieves the parties’ intent in agreeing to the original provision. The remaining provisions shall continue in full force and effect.
Force Majeure. Neither party shall be considered in default in the performance of any obligation hereunder to the extent that the performance of such obligation is prevented or delayed by a fire, flood, explosion, strike (except for a strike by a party’s employees), war, insurrection, embargo, government requirement, act of civil or military authority, act of God, or any similar event, occurrence or condition which is not caused, in whole or in part, by that party, and which is beyond the reasonable control of that party.
Amendments and Modifications; Waiver. The SOW can be amended, modified or superseded only by writing signed by both parties. A party’s failure to insist upon or enforce strict performance of any provision herein shall not be construed as a waiver of such provision or right.
Entire Agreement. These General Terms & Conditions, together with the SOW and the confidentiality terms in the Master Agreement, contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any terms and conditions contained in any purchase order or other form or communication from either party to the other which are additional to or different from the terms of these General Terms & Conditions or a SOW are void and of no force or effect (whether or not material).
