Terms of Service
It is understood and agreed that the services provided by Sender Company, hereafter referred to as “Russell Technology Consulting”, may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Receiving Party, hereafter referred to as “Client”.
Payment of Invoices
Properly submitted invoices are due within thirty (30) days of the date of receipt of a correct invoice. Without limiting its rights or remedies, Russell Technology Consulting shall have the right to halt or terminate entirely its services if payment is not received (i) on undisputed invoiced amounts that remain unpaid thirty (30) days after the due date, and (ii) on disputed invoiced amounts that remain unpaid sixty (60) days after the due date.
Unless terminated sooner in accordance with its terms, this engagement shall terminate on the completion of Russell Technology Consulting’s services hereunder. Either party may terminate this engagement at any time by giving written notice to the other party not less than two (2) weeks before the effective date of termination, provided that, for termination for cause, the breaching party shall have the opportunity to cure within such period.
Service Provider Technology
Russell Technology Consulting has created, acquired or otherwise has rights in, and may, in connection with the performance of services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques (including, without limitation, models; templates; the generalized features of the structure, sequence and organization of software; user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems) (collectively, the “Russell Technology Consulting technology”).
Ownership of Deliverables
Except as provided below, upon full and final payment to Russell Technology Consulting hereunder, the tangible items specified as deliverables or work product in the engagement letter to which these terms are attached (the “Deliverables”) will become the property of Client. To the extent that any Russell Technology Consulting technology is contained in any of the Deliverables, Russell Technology Consulting hereby grants Client, upon full and final payment to Russell Technology Consulting hereunder, a royalty-free, fully paid-up, worldwide, non-exclusive license to use such Russell Technology Consulting technology in connection with the Deliverables.
Ownership of Service Provider Property
To the extent that Russell Technology Consulting utilizes any of its property (including, without limitation, the Russell Technology Consulting technology or any hardware or software of Russell Technology Consulting) in connection with the performance of services hereunder, such property shall remain the property of Russell Technology Consulting and, except for the license expressly granted in Paragraph 4(b), Client shall acquire no right or interest in such property. Notwithstanding anything herein to the contrary, the parties acknowledge and agree that (a) Russell Technology Consulting will own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the Russell Technology Consulting technology and (b) Russell Technology Consulting may employ, modify, disclose, and otherwise exploit the Russell Technology Consulting technology (including, without limitation, providing services or creating programming or materials for other clients). Russell Technology Consulting does not agree to any terms that may be construed as precluding or limiting in any way its right to (a) provide consulting or other services of any kind or nature whatsoever to any person or entity as Russell Technology Consulting in its sole discretion deems appropriate.
Russell Technology Consulting shall indemnify, defend and hold harmless the Client, its affiliated companies, and its and their directors, officers, employees and agents from and against any and all claims, actions, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of a third party claim that the Deliverables, the Russell Technology Consulting Technology or any aspect of the services provided hereunder (the “Work Products”) infringe or misappropriate any patent, copyright, trade secret, trademark, service mark or other intellectual property right of a third party, except to the extent that such infringement or misappropriation arises from (i) Client’s modification of the Work Products or use thereof in a manner not contemplated by this Agreement, (ii) the failure of Client to use any corrections or modifications made available by Russell Technology Consulting, (iii) information, materials, instructions or specifications provided by or on behalf of Client, (iv) Client’s distribution, marketing or use for the benefit of third parties of the Work Products, or (v) the use of the Work Products in combination with any product or data not provided by Russell Technology Consulting. If any such Work Product, or any portion thereof, becomes, or in the reasonable opinion of Russell Technology Consulting is likely to become, or is found by final, non-appealable order of a court of competent jurisdiction to be such an infringement or misappropriation, Russell Technology Consulting, at its option and expense, shall have the right to (x) procure for Client the continued use of such Work Product, (y) replace such Work Product with non-infringing work product, or (z) modify such Work Product so it becomes non-infringing; provided that, if (y) or (z) is the option chosen by Russell Technology Consulting, the replacement or modified Work Product is capable of performing substantially the same function. As a condition to the foregoing indemnity obligations, Client shall provide Russell Technology Consulting with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with Russell Technology Consulting in connection with any such claim. Client’s failure to give prompt notice shall not constitute a waiver of the Client’s right to indemnification and shall affect Russell Technology Consulting’s indemnification obligations only to the extent that Russell Technology Consulting’s rights are materially prejudiced by such failure or delay. Russell Technology Consulting shall be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing, provided that Client’s written approval shall be required for any settlement other than the payment of money or release of any claim. Notwithstanding anything to the contrary set forth herein, (i) the Client may participate, at its own expense, in any defense and settlement directly or through counsel of its choice. If Russell Technology Consulting elects in writing not to defend or settle any such claim for which it is obligated to do so hereunder, or if Russell Technology Consulting fails to do so promptly after receipt of notice of such claim and Client notifies Russell Technology Consulting of Client’s intent to defend or settle the claim and Russell Technology Consulting still fails to do so within five (5) business days of receipt of such notice, the Client will have the right to defend or settle the claim as it may deem appropriate, at the cost and expense of Russell Technology Consulting, and Russell Technology Consulting will promptly reimburse the Client for all costs, expenses, and settlement amounts for which it is obligated to indemnify and hold harmless Client hereunder. The foregoing provisions of this paragraph constitute the sole and exclusive remedy of Client, and the sole and exclusive obligation of Russell Technology Consulting, relating to a claim that the Work Products infringes or misappropriates any patent, copyright or other intellectual property right of a third party.
Limitation on Warranties
This is a services engagement. Russell Technology Consulting warrants that it has all necessary rights to provide the Deliverables, the Russell Technology Consulting technology and the services as provided hereunder and Russell Technology Consulting will perform the services hereunder in a professional manner.
Limitation on Damages
Client agrees that Russell Technology Consulting and its personnel shall not be liable to Client for any claims, liabilities or expenses relating to this engagement for an aggregate amount in excess of the fees paid by Client to Russell Technology Consulting for work performed pursuant to this engagement, and Client and its personnel shall not be liable for any claims, liabilities, or expenses relating to this engagement for an aggregate amount in excess of the amounts paid or payable by Client to Russell Technology Consulting for work performed pursuant to this engagement. The preceding sentence shall not apply to (i) breaches of a party’s obligations set forth in the Confidentiality Agreement or (ii) Russell Technology Consulting’s indemnity obligations under Section 4(d) above. In no event shall Client or Russell Technology Consulting or their respective personnel be liable for consequential, special, indirect, incidental, punitive or exemplary loss, damage or expense relating to this engagement. In furtherance and not in limitation of the foregoing, Russell Technology Consulting will not be liable in respect of any decisions made by Client as a result of the performance by Russell Technology Consulting of its services hereunder. The foregoing provisions shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise.
a Client shall cooperate with Russell Technology Consulting in the performance by Russell Technology Consulting of its services hereunder, including, without limitation, providing Russell Technology Consulting with reasonable facilities and timely access to data, information and personnel of Client.
b Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Russell Technology Consulting for purposes of the performance by Russell Technology Consulting of its services hereunder.
Russell Technology Consulting shall not be liable for any delays resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
Limitation on Actions
No action, regardless of form, arising under or relating to this engagement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought by a party not later than one year following the date of the last payment due to such party hereunder.
It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor or representative of the other. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
The provisions of Paragraphs 1 through 7 and 9 through 15 hereof shall survive the expiration or termination of this engagement.
Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder without the prior written consent of the other party. Russell Technology Consulting may assign or subcontract its rights and obligations hereunder to any affiliate of Russell Technology Consulting, without the consent of Client.
These terms, and the Proposal or Engagement Letter, to which these terms are appended, including the exhibits, constitutes the entire agreement between Russell Technology Consulting and Client with respect to the subject matter hereof and supersedes all other oral and written representations, understandings or agreements relating to the subject matter hereof.
Governing Law and Severability
These terms, and the proposal, engagement letter or contract to which these terms are appended, including the exhibits, shall be governed by, and construed in accordance with, the laws of the State of North Carolina (without giving effect to the choice of law principles thereof). If any provision of these terms is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.