These Professional Services Terms and Conditions (“Terms and Conditions”) are entered into between AppViewX, Inc., New York corporation having its office at 222 Broadway, FL19, New York NY 10038 (hereinafter called “AppViewX” including its successors and assigns) and you as the customer (hereinafter called the “Customer” including its successors and assigns) on behalf of itself and its affiliates. These Terms and Conditions governs the terms on which AppViewX provides certain implementation, integration, configuration, workflow, or consulting services (“Professional Services”) to the Customer under a Statement of Work. If you are entering into these Terms and Conditions on behalf of an entity, these Terms and Conditions shall be expressly binding on all employees, directors and officers, agents, and assigns who receive the Professional Services.
By signing a Statement of Work incorporating these terms by reference, Customer agrees to be bound by these Terms and Conditions as of the date of the Statement of Work (the “Effective Date”). If you are agreeing to these Terms and Conditions on behalf of an organization or entity, you are representing to AppViewX that you have the authority to bind such organization or entity and its affiliates to these Terms and Conditions. If you do not have such authority, or if the Customer does not agree with these Terms and Conditions, the Customer must not sign the Statement of Work or authorize the Professional Services and contact [email protected] to request any changes.
If Customer has entered into a separate written agreement with AppViewX regarding the Professional Services, then the terms of that agreement will prevail and will govern the Statement of Work. If purchasing through an authorized reseller of AppViewX (“Authorized Reseller”), the Authorized Reseller is responsible for the accuracy of any such order entered into between the Authorized Reseller and the Customer, and the terms in any order or agreement between the Authorized Reseller and the Customer shall not vary or modify the terms of these Terms and Conditions.
Professional Services. AppViewX shall provide to Customer the Professional Services set forth in any Statement of Work (“SOW”) entered into between the Parties and/or one or more Service Packages provided by AppViewX and for which such Professional Services are purchased by the Customer. As used herein, a “Service Package” means a standard Professional Services offering that is purchased as a package and not pursuant to a separate written SOW. A SOW will set forth the following information or other information as required: (a) the Professional Services to be provided, and all documents, work product and other materials that are delivered to Customer under these Terms and Conditions or prepared by or on behalf of AppViewX in the course of performing the Professional Services (“Deliverables”); (b) the timeline and/or project plan, (c) assumptions and limitations, (d) any additional terms and (e) the pricing, payment schedule, and fees. A Service Package will set forth (a) the Professional Services to be provided and any Deliverables, (b) the timeline and/or project plan, and (c) the fees. It is agreed that the foregoing terms as set forth in the applicable SOWs shall in all cases supersede anything to the contrary in these Terms and Conditions. Nothing in these Terms and Conditions shall prevent Customer from performing for itself or acquiring from other providers the same or similar Professional Services, nor prevent AppViewX from providing the same or similar Professional Services to other customers (subject to confidentiality and intellectual property obligations set forth below). Any changes to the Professional Services or Deliverables must be agreed by the parties in a written amendment to the applicable SOW (each a “Change Order”).
Termination for Cause. Either party may terminate these Terms and Conditions and its related SOW and/or Services Package, effective upon written notice to the other party (the "Defaulting Party"), if the Defaulting Party (a) breaches these Terms and Conditions or related SOW / Service Package as applicable, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding which is not dismissed or vacated within sixty days after filing; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; or (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
Effects of Termination or Expiration. Upon expiration or termination of these Terms and Conditions for any reason, (a) AppViewX shall: (i) deliver to Customer all documents, work product, and other materials, whether or not complete, prepared by or on behalf of AppViewX in the course of performing the Professional Services; (ii) return to Customer all Customer or Customer-owned property, equipment, or materials in its possession or control; and (iii) remove any AppViewX-owned property, equipment, or materials located at Customer's locations; and (b) each party shall return to the other party or destroy, at the other party's discretion, all documents and tangible materials (and any copies, physical or electronic) containing, reflecting, incorporating or based on the other party's Confidential Information and certify in writing that it has done so; provided, however, that Customer may retain copies of any Confidential Information of AppViewX incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Professional Services and any Deliverables. Sections regarding license restrictions, ownership, termination, limitations of liability, and the General section shall survive termination or expiration of these Terms and Conditions.
Fees Payment.AppViewX shall issue invoice for the fees enumerated in the applicable SOW(s), Service Package(s), or the applicable Order. Such invoice shall be payable within 30 days from the date of receipt of undisputed invoice.
Taxes. AppViewX will separately state the applicable Transaction Taxes in the SOW. Customer shall provide AppViewX with any resale, direct pay, or other exemption certificates, as applicable for exemption from Transaction Taxes on an invoice and remit the same to the relevant tax authorities. If no exemption certificate is provided, AppViewX will collect the Transaction Taxes showing separately on the invoice and remit to tax authorities concerned and provide necessary certificate to Customer. For purposes of this MSA, “Transaction Taxes” means sales, use, value added tax, goods and Professional Services tax, or other taxes of a similar nature. AppViewX and Customer agree to reasonably cooperate with each other to minimize any Transaction Taxes.
Withholding. If Customer is required by law to withhold from any amount payable hereunder to AppViewX, then the sum payable by Customer upon which the deduction is based shall be paid to AppViewX net of such deduction or withholding. Customer shall pay the applicable tax authorities any such required deduction or withholding. However, prior to the execution of a SOW, Customer shall notify AppViewX of its intention to withhold on any payment under such SOW and shall reasonably cooperate with AppViewX to reduce such withholding. Customer shall withhold at the lowest allowed rate and provide AppViewX with the receipt reflecting the payment to the tax authority.
Intellectual Property. Both AppViewX and Customer acknowledge and agree that each party shall own the right, title and interest in and to any inventions, trade secrets, know-how, software, materials or proprietary technology that such party owned prior to entering into these Terms and Conditions and as independently acquired outside of these Terms and Conditions (each shall constitute “Pre-Existing IP” of a party, such that AppViewX’s Pre-Existing IP is retained by AppViewX, and Customer’s Pre-Existing IP is retained by Customer). With the exception of Customer’s Pre-Existing IP that is used to create the Deliverables, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to the Deliverables shall be owned exclusively by AppViewX. To the extent any AppViewX Intellectual Property Rights are necessarily required for the proper functioning of the Deliverables or are embedded into the Deliverables, AppViewX grants to Customer a perpetual, revocable, worldwide, royalty-free, non-exclusive, non-transferable, right and license to use such AppViewX Intellectual Property Rights solely in conjunction with Customer’s use of the Deliverables or Professional Services.
- Confidential Information and Data Protection.
- All non-public, confidential or proprietary information of either party ("Confidential Information"), including, but not limited to, information about such party's business affairs, products, Professional Services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with these Terms and Conditions, and whether or not marked, designated, or otherwise identified as "confidential," is confidential, solely for use in performing these Terms and Conditions and may not be disclosed or copied unless authorized by the Disclosing Party in writing. Customer’s Confidential Information shall include information about the Customer products and Professional Services, including without limitation all proprietary information and intellectual property rights therein. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party's breach of these Terms and Conditions; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party's disclosure hereunder; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.
- The Receiving Party shall be responsible for any breach of this Section caused by any of its employees, contractors, agents, or representatives. Upon expiration or termination of these Terms and Conditions, at the Disclosing Party's written request, the Receiving Party shall promptly return, and shall require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each party's obligations under this Section will survive termination or expiration of these Terms and Conditions for a period of five years, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
- AppViewX shall not, and shall not permit any other person to, access or use the Customer Confidential Information except as expressly permitted by these Terms and Conditions. For purposes of clarity and without limiting the generality of the foregoing, AppViewX shall not, except as these Terms and Conditions expressly permits: (a) copy, modify, or create derivative works or improvements of the Customer Confidential Information; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Customer Confidential Information to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code contained in the Customer Confidential Information, in whole or in part; or (d) access or use the Customer Confidential Information for purposes of competitive analysis of such Confidential Information, the development, provision, or use of a competing software service or product or any other purpose that is to Customer’s detriment or commercial disadvantage.
- Representations and Warranties.
- Mutual. Each party represents and warrants to the other party that: (a) it has the full right, power, and authority to enter into these Terms and Conditions, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; and (b) when executed and delivered by such party, these Terms and Conditions will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
- AppViewX.AppViewX represents and warrants to Customer that: (a) it shall perform the Professional Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar Professional Services and in compliance with all applicable laws, and shall devote adequate resources to meet its obligations under these Terms and Conditions; (b) the Professional Services and Deliverables shall be provided in accordance with the requirements set forth in the applicable SOW or Service Package, as appropriate; (c) the Professional Services and Deliverables, and Customer's use thereof, shall not knowingly infringe any Intellectual Property Right of any third party; and (d) if supporting documentation is customarily provided with the applicable type of Deliverable, such documentations shall be (i) provided upon the delivery of such Deliverable, and (ii) accurate, complete, current and consistent with industry practice.
- General.Each party ("Indemnifying Party") shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, affiliates, successors, and permitted assigns ("Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees and costs, incurred by Indemnified Party (collectively, "Losses"), arising out of or resulting from any claim of a third party arising out of or occurring in connection with: bodily injury, death of any person or damage to real or tangible personal property (excluding loss of data) resulting from Indemnifying Party's grossly negligent acts or omissions or willful misconduct.
- AppViewX Intellectual Property Indemnity. AppViewX shall defend, indemnify, and hold harmless the Customer Indemnitees from and against all Losses that arise out of or relates to a third party claim that the Professional Services or Deliverables, and Customer’s use thereof, infringes, misappropriates, or violates the Intellectual Property Rights of such third party. If the Professional Services or Deliverables become subject to such intellectual property indemnification claim hereunder, AppViewX may at its sole option and expense (a) procure the right for the Customer to continue using the Professional Services or Deliverables, (b) replace or modify the Professional Services or Deliverables such that they are not infringing, or (c) if options (a) and (b) cannot be accomplished despite AppViewX’s reasonable efforts, then AppViewX may pay the Customer a pro-rata refund of the Professional Services or Deliverables paid for by Customer that are subject to the indemnification claim.
- Indemnification Procedure. The indemnified party (“Indemnitee”) shall promptly notify the indemnifying party (“Indemnitor”) in writing of any claim for which Indemnitee believes it is entitled to be indemnified pursuant to this Section 13. Indemnitee shall cooperate with Indemnitor at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any claim on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee's failure to perform any obligations under this Section 13 will not relieve the Indemnitor of its obligations under this Section 13, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
- LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT, INDEMNIFICATION OBLIGATIONS, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, APPVIEWX’S AGGREGATE LIABLITY FOR DIRECT DAMAGES SHALL NOT EXCEED THREE TIMES (3X) THE AGGREGATE AMOUNTS PAID OR PAYABLE TO APPVIEWX OVER THE TWELVE-MONTH PERIOD LEADING UP TO THE EVENT GIVING RISE TO THE CLAIM . EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT, INDEMNIFICATION OBLIGATIONS, CUSTOMER’S AGGREGATE LIABILITY ARISING FROM THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO APPVIEWX OVER THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Insurance. AppViewX shall continuously maintain in full force and effect commercial general liability, auto liability, worker’s compensation, professional liability/errors & omissions, and employee dishonesty insurance coverages sufficient to fulfill its obligations under these Terms and Conditions. Upon request, AppViewX shall provide a certificate of insurance and shall include the Customer as an additional insured.
- Force Majeure. If the whole or any part of the performance by either party of its respective obligations hereunder is prevented or delayed by causes, circumstances or events beyond the control of such party, including, but not limited to (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of these Terms and Conditions; (f) action by any governmental authority; (each a “Force Majeure Event”) then such party shall be excused from performance hereunder for so long as such causes, circumstances or events shall continue to prevent or delay such performance. The affected party shall resume performance under these Terms and Conditions as soon as reasonably practicable after the Force Majeure Event has been resolved or terminated.
- Independent Contractors. The parties are independent contractors, and nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party shall be authorized to contract for or bind the other party in any manner whatsoever.
- No Publicity. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms and Conditions, or otherwise use the other party's trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party.
- Non-Solicitation. Customer shall not, without the prior written consent of an authorized representative of AppViewX, solicit for employment any employee or contractor of AppViewX performing Professional Services under these Terms and Conditions during the term of the SOW or Service Package, as applicable, or for 1 year after its termination or expiration. Notwithstanding anything to the contrary, this Subsection shall not restrict the right of Customer to solicit or recruit generally in the media and shall not prohibit Customer from hiring, without prior written consent, AppViewX’s employee who answers any advertisement or who otherwise voluntarily applies for hire without having been personally solicited or recruited by the Customer.
- Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the SOW or applicable Order Form (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
- Entire Agreement; Order of Precedence. These Terms and Conditions, together with all SOW(s), Service Package(s), Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to these Terms and Conditions with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of these Terms and Conditions and those of any SOW, Service Package, or Exhibit, then the terms of these Terms and Conditions shall control unless expressly set forth otherwise in the applicable SOW, Service Package, or Exhibit.
- Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under these Terms and Conditions, without the prior written consent of the other party, except in the event of a merger, acquisition or sale of substantially all of the assets of such party. Notwithstanding anything to the contrary, AppViewX may use subcontractors to perform the Professional Services; provided, however, that AppViewX shall enter into terms and conditions that are no less restrictive than these Terms and Conditions and that AppViewX shall remain responsible for the subcontractor’s compliance with these Terms and Conditions. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. These Terms and Conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
- No Third-Party Beneficiaries. These Terms and Conditions is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms and Conditions.
- Compliance with Laws. Each Party represents and warrants to the other that in performing its respective responsibilities and exercising its rights under the Terms and Conditions, as more fully set forth in the SOW(s) or Service Package(s), that it will comply with all national, state, regional and/or local laws, rules and regulations applicable to such Party. This includes but is not limited to privacy laws, U.S. Export laws and regulations, data security laws, advertising laws, employment laws and anti-corruption and anti-bribery laws (collectively, “Law(s)”).
- Amendment and Modification; Waiver. These Terms and Conditions may be amended, modified, or supplemented only in writing expressly identifying the modification, amendment, or supplement and signed by authorized representatives of both parties. No failure to exercise any rights, remedy, power or privilege ("Right(s)") arising from these Terms and Conditions shall operate or be construed as a waiver thereof. No single or partial exercise of any Right hereunder precludes any other or further exercise thereof or the exercise of any other Right.
- Severability. No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, shall affect any other term or provision of these Terms and Conditions or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms and Conditions so as to effect the original intent of the parties as closely as possible.
- Governing Law and Venue.These Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of these Terms and Conditions or the Professional Services provided hereunder shall be instituted exclusively in the state or federal courts in New York, New York and each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; (b) waives any objection to such courts based on venue or inconvenience; and (c) waives any right to trial by jury. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
- Equitable Relief; Cumulative Remedies. Each party acknowledges that a breach of Section 5 (Intellectual Property Rights; Ownership) or Section 6 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief. Except as expressly set forth in these Terms and Conditions, the right and remedies under these Terms and Conditions are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.