1. Performance of Services
a. Statements of Work. Client may engage Compello Suite360 to perform NetSuite services (“Services”) pursuant to this Agreement and as set forth in an applicable Statement of Work (“SOW”). Each SOW executed by both parties is hereby incorporated by reference herein. Each SOW shall set forth the agreed upon scope of the work to be performed, estimated pricing and payment terms and, if applicable, project schedule, Deliverables (hereafter defined), Services, and estimated delivery dates. “Deliverables” means the items to be delivered to the Client in connection with services Compello Suite360 performs pursuant to this Agreement and as set forth in an applicable SOW. If there is a conflict between the terms set forth in this Agreement and a SOW, the terms set forth in the applicable SOW will control. Either party may request changes to the scope of an SOW, to be mutually agreed upon by the parties in a written change order, amendment, or additional SOW. Fees and payment terms for the provision of Services by Compello Suite360 will be separately identified on each SOW. Compello Suite360 will provide the Client with an invoice for each payment due.
b. Delivery and Cooperation. The Client acknowledges that their cooperation is essential to the timely performance of the Services. The Client will, to the extent required in connection with the performance of the Services, use reasonable efforts to: (i) provide Compello Suite360 with any necessary materials; (ii) provide Compello Suite360 with any necessary access to the Client’s personnel, facilities or data; (iii) cause the appropriate personnel to cooperate with Compello Suite360 as required for Compello Suite360 to provide the Services, including responding promptly to questions or issues; and (iv) make all payments when due. The Client’s delay or failure to do so may delay the estimated delivery schedules set forth in the SOW. If Client fails to do any of the foregoing, both parties will cooperate in good faith to develop a revised written delivery schedule and written SOW or change order signed by both parties with new pricing.
2. Grant of Rights
In conjunction with the use of NetSuite, Compello Suite360 may use data, software, designs, algorithms, utilities, tools, models, systems, code, templates, tools, configurations and customizations, policies, records, know-how, or other intellectual property, written or otherwise and other methodologies and know-how (“Compello Suite360 Materials”) that we own or license in performing the Services and/or compiling the Deliverables. Notwithstanding the delivery of any Deliverables, as between Client and Compello Suite360, Compello Suite360 retains all intellectual property rights in: (a) the Compello Suite360 Materials (including any improvements or knowledge developed while performing the Services or providing the Deliverables); and (b) any workpapers compiled in connection with the Services and/or Deliverables (but not your Confidential Information or other proprietary information reflected in them). Subject to the foregoing and upon final payment, Compello Suite360 hereby grants to the Client a non-exclusive, non-transferable license to use such Compello Suite360 Materials to the extent such are incorporated into the Deliverables at no additional charge, solely for the Client’s general business purposes, in accordance with the limitations set forth in this Agreement and any applicable SOW. Any of the Client’s pre-existing information, Confidential Information, and/or proprietary information will remain the exclusive property of the Client.
3. Confidential Information
a. Confidential Information. “Confidential Information” means (i) a party’s proprietary technology or computer software in all versions and forms of expression, whether or not the same has been patented or the copyright thereto registered, is the subject of a pending patent or registration application, or forms the basis for a patentable invention (collectively the “Proprietary Technology”); (ii) information regarding current or proposed products, customers, contracts, business methods, financial data or marketing data, financial results and projections, company and market strategy, product roadmaps, product and competitive sales analysis and plans, product or marketing plans, pricing plans or structures, personnel and recruiting matters, and future releases; (iii) offers or proposals which are provided by a Discloser, including, but not limited to, the fees charged by Discloser; and (iv) manuals, notes, documentation, technical information, drawings, diagrams, specifications, formulas or know-how related to or containing any of the foregoing, in each case of clauses (i)-(iv), whether oral or written.
b. Obligations. A party receiving Confidential Information (“Recipient”) of the other party (“Discloser”) shall: (i) not disclose the Confidential Information to any third party at any time except within its own organization to its employees or its legal, financial, accounting advisors, or its subcontractors or consultant performing Services on its behalf pursuant to the terms of this Agreement (its “Representatives”) having a need to know and who have agreed to be bound by the terms at least as restrictive as the terms of this Agreement; (ii) protect the confidentiality of the Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care, and (iii) shall use the Confidential Information solely for purposes relating to the provision of Services under this Agreement or a SOW. Recipient shall be entitled to disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or by a regulatory agency or government body, provided that Recipient shall first give notice to Discloser, if permitted under the law, and make a reasonable effort to obtain a protective order to protect the confidentiality of the information. If such protective order is not obtained, Recipient agrees to disclose only that portion of the Confidential Information which it is legally required to disclose. Recipient shall immediately notify Discloser of any actual or suspected unauthorized disclosure of Confidential Information. Recipient shall not modify, reverse-engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information without Discloser’s prior written consent.
c. Exclusions. The obligations described in Section 4(b) (Obligations) imposes no obligation upon Recipient with respect to any Confidential Information which (i) is or becomes a matter of public knowledge through no fault of Recipient; (ii) is rightfully received by Recipient from a third party without a duty of confidentiality to a third party by, or with the authorization of, Discloser; (iii) is disclosed without a duty of confidentiality; or (iv) is independently developed by Recipient. The burden of proving any of the above exemptions is on Recipient.
d. Retention. Upon the written request of Discloser, Recipient and its Representatives shall immediately destroy or return to Discloser, as requested by Discloser, all Confidential Information of Discloser in its possession, together with all records in any manner pertaining to any of Discloser’s Confidential Information. Recipient shall also, upon the written request of Discloser, furnish Discloser with a certificate of an officer verifying that all the foregoing have been destroyed or returned to Discloser. Notwithstanding the foregoing, Recipient is permitted to retain a copy of Confidential Information or portions thereof if required under its document retention policies. The obligations of this section survive for all such retained Confidential Information until that Confidential Information is destroyed in accordance with the Recipient’s policies.
Indemnification. Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of: any infringement or misappropriation or alleged infringement or misappropriation by the other party of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software provided by such party and utilized in connection with any of the Services; or any material breach of this Agreement.
5. Limited Warranty
Limited Warranty. Each party hereby represents and warrants to the other that (a) such party has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder; and (b) the making of this Agreement does not violate any agreement existing between such party and any third party. COMPELLO SUITE360 FURTHER REPRESENTS AND WARRANTS THAT THE SERVICES WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER CONSISTENT WITH INDUSTRY STANDARDS AND APPLICABLE LAW. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 7, ALL SERVICES AND DELIVERABLES PROVIDED HEREUNDER ARE PERFORMED, PROVIDED, AND MADE AVAILABLE WITHOUT WARRANTY. ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARE HEREBY EXPRESSLY DISCLAIMED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY: (a) THAT ANY DELIVERABLE OR SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) OF MERCHANTABILITY; (c) OF FITNESS FOR A PARTICULAR PURPOSE; (d) ANY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; AND (e) REGARDING NON-INFRINGEMENT.
6. Limitation of Liability
Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS IN SECTION 4 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
Notwithstanding anything else to the contrary contained in this Agreement, except for each party’s indemnity obligations in Section 4 (Indemnification), each party’s maximum aggregate liability to the other party for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid or payable by the Client to Compello Suite360 under the applicable SOW for the twelve (12) months immediately preceding the claim.
7. Third-Party Software
COMPELLO MAY ENGAGE AND/OR UTILIZE THIRD-PARTY SOFTWARE TO PROVIDE THE SERVICES AS A COURTESY TO CLIENT AND SHALL IN NO EVENT BE LIABLE FOR THE ACTIONS OR OMISSIONS OF THE PROVIDERS OF SUCH THIRD-PARTY SOFTWARE. CLIENT AGREES TO COMPLY WITH ANY ADDITIONAL POLICIES AND/OR TERMS PROVIDED BY SUCH THIRD PARTIES FOR THEIR APPLICABLE SOFTWARE AND/OR SERVICES AND TO BRING ANY CLAIMS OR DISPUTES DIRECTLY AGAINST SUCH THIRD-PARTY PROVIDERS. CLIENT SHALL INDEMNIFY, DEFEND, AND HOLD COMPELLO HARMLESS AGAINST ANY CLAIMS BROUGHT BY SUCH THIRD-PARTY PROVIDERS THAT ARISE OUT OF OR ARE RELATED TO CLIENT’S USE OF SUCH THIRD-PARTY’S SOFTWARE AND/OR SERVICES.
8. Governing Law; Attorney’s Fees, Dispute Resolution
a. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. Jurisdiction shall be the state and federal courts of New York located in New York County, New York.
b. Attorney Fees and Costs; Debt Collection. In any judicial or arbitration proceeding involving any controversy, claim or dispute (“Dispute”) arising out of or related to this Agreement, or the enforceability hereof, the prevailing party as determined by the trier of fact in any such action, proceeding, litigation (including bankruptcy court) or other dispute resolution forum or judicial proceeding arising out of this Agreement is entitled to recover all reasonable costs incurred pertaining to such proceeding, including without limitation reasonable costs and fees of attorneys or other professionals and the prevailing party’s share of the arbitrator’s fees and similar costs of the arbitration. Notwithstanding anything in this Agreement and/or any applicable SOW to the contrary, in the event of Client’s bankruptcy or insolvency, Compello Suite360 will be entitled to seek recovery of Compello Suite360’s costs and expenses from Client, including, without limitation, reasonable attorneys’ fees and costs, that Compello Suite360 incurs in enforcing and/or otherwise protecting Compello Suite360’s rights and remedies under any applicable SOW and/or this Agreement or amendments and modifications thereto. If Compello Suite360 uses a debt collection service or other means for collecting amounts owed by Client hereunder, Client shall in addition to any amounts owed hereunder pay for all fees and expenses incurred by Compello Suite360 in connection therewith including the fees and expenses associated with such debt collection efforts.
c. Mediation. Except as otherwise set forth in this Agreement, in the event of any Dispute among the parties, the parties shall use their best efforts to resolve their differences. To this effect, the parties involved shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to all such parties. In the event the parties are unable to so resolve such Dispute, the parties shall next attempt to do so through the process of mediation before a single, mutually acceptable mediator. The mediator shall be a certified mediator with experience in mediating disputes which are similar in nature to the Dispute in question. If the parties are unable to agree upon the mediator, then the parties shall file for mediation with the AAA and hereby agree to accept the mediator appointed by AAA. The mediation shall be conducted and concluded within thirty (30) days after the mediator has been engaged. The parties shall split evenly all mediation costs. For the avoidance of doubt, neither party may recover any mediation costs under the terms and conditions of Section 10.b. The mediation shall be conducted at a suitable location within the County of New York in the State of New York. In the event that such Dispute is not resolved through mediation, then the parties shall be permitted to pursue other remedies which may be available to them at law or in equity. Notwithstanding the foregoing, nothing in this Agreement shall prohibit a party from seeking equitable relief in a court of competent jurisdiction located in the County of New York in the State of New York.
d. Arbitration. Except for actions seeking injunctive relief, pre-judgment attachment or other relief that is not within the powers of an arbitrator, in the event of any Dispute, either party may require that the Dispute be determined by an arbitration administered by a mutually acceptable arbitrator located in New York, New York, and held at an office of such arbitrator in New York, New York. The arbitration shall be held before a sole arbitrator and shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the industry accepted standard arbitration rules. The arbitration shall be commenced by notifying the opposing party in writing of a demand for arbitration. The parties shall select an arbitrator by mutual agreement within fifteen (15) calendar days of the date the demand for arbitration is received by the opposing party. If the parties are unable to agree on the selection of an arbitrator within such time, an ADR service provider shall be designated by the parties and the administrator of that service provider shall select an independent arbitrator. The arbitrator’s fees and similar costs of the arbitration shall initially be borne equally by the parties, subject to the provisions of Section 10(b) (Attorney Fees and Costs; Debt Collection).
e. Waiver of Class Actions and Jury Trials. Client agrees that any proceeding, whether in arbitration or in court, initiated by Client will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in such action that this class action waiver is unenforceable, this class action waiver will be void only as to Client. If for any reason a Claim proceeds in court rather than through arbitration, Client waives any right to a jury trial.
a. Entire Agreement. This Agreement, together with any applicable SOW, contains the parties’ entire agreement with respect to the subject matter hereof, superseding and replacing all prior and contemporaneous agreements, understandings, offers and communications, both written and oral, between the parties. This Agreement and/or any applicable SOW may not be modified except by written instrument signed by both parties and referring to the provisions to be modified. This Agreement and/or any applicable SOW may be electronically signed and/or executed in one or more counterparts, each of which shall be deemed an original for all purposes, and together shall constitute one and the same agreement.
b. Headings, Advice of Counsel, and Drafting. Headings used in this Agreement and/or any applicable SOW are provided for convenience only and will not in any way affect the meaning or interpretation of any provision. The parties acknowledge that they have been advised by counsel of their own choosing, played equal parts in negotiating this Agreement and/or any applicable SOW and that the terms therein shall be interpreted without bias against either party.
c. Relationship between the Parties. Each party is an independent contractor, and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties.
d. Force Majeure. Neither party shall be in default if its failure to perform any obligation under this Agreement and/or any applicable SOW (other than obligations to make payments when due) is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, war, terrorism, civil commotion, strikes, labor disputes, internet service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.
e. Publicity. There shall be no public announcement of this Agreement or the relationship between the Parties without mutual review and approval by both Parties, except as part of required governmental filings or by applicable law.
f. Assignment. Neither party may assign its interest in this Agreement and/or any applicable SOW, including by operation of law or change of control, without the other party’s prior written consent, which consent shall not be unreasonably withheld; provided, however, that Client may assign this Agreement without Compello Suite360’s prior written consent to an Affiliate or to a successor in connection with any reorganization, consolidation, merger, or sale of all or substantially all of its business to which this Agreement pertains. This Agreement and/or any applicable SOW will inure to the benefit of and be binding upon the party’s successors and permitted assigns. Unless otherwise specifically agreed to by the non-assigning party, no assignment by either party shall relieve the assignor from its obligations pursuant to this Agreement and/or any applicable SOW. Any assignment in violation hereof shall be null and void.
g. Severability. In case any provision of the Agreement is held to be invalid, unenforceable, or illegal, that provision shall be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
h. Waiver. The failure or delay of either party to enforce any provisions of this Agreement is not a waiver of the provisions or of the right of that party to subsequently enforce that, or any other, provision of this Agreement.