Consulting Services addendum to negOptim Master Subscription Agreement

 

THIS CONSULTING SERVICES ADDENDUM (the “Addendum”) TO THE NEGOPTIM MASTER SUBSCRIPTION AGREEMENT (the “MSA”) GOVERNS YOUR PURCHASE OF CONSULTING SERVICES FROM ULIT. 

BY ACCEPTING THIS ADDENDUM, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A STATEMENT OF WORK THAT REFERENCES THIS ADDENDUM, YOU AGREE TO THE TERMS OF THIS ADDENDUM. IF YOU ARE ENTERING INTO THIS ADDENDUM ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS ADDENDUM AND MAY NOT ENTER INTO STATEMENTS OF WORK HEREUNDER OR PURCHASE OR USE THE RESULTS OF ANY CONSULTING SERVICES.

As used herein, the terms "We," "Us," or "Our" mean the applicable ULIT entity described in Section 12 of the MSA (Who You Are Contracting With, Notices, Governing Law and Arbitration).  As used herein the terms "You" or "Your" mean the company or other legal entity for which You are accepting this Addendum, and Affiliates of that company or entity.

This Addendum was last updated on September 9, 2015. It is effective between You and Us as of the date You accept this Addendum.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Relationship to the MSA

You entered into the MSA for the provision of certain subscription services and related support services.  Now You desire to additionally procure, and We desire to render, certain consulting, development, support services described in one or more Statements of Work hereunder (the “Consulting Services”).  Capitalized terms used in this Addendum shall have the meaning defined under the MSA unless otherwise defined herein.  The terms and conditions of the MSA are hereby incorporated by reference, as modified by this Addendum or any Statement of Work signed by both parties hereunder.  For the avoidance of doubt, the parties expressly agree that the terms of the MSA titled “Overdue Charges,” “Payment Disputes,” “Taxes,” “Confidentiality,” “Who You Are Contracting With, Notices, Governing Law and Arbitration,” and “General Provisions” shall apply to this Addendum, and all Statements of Work, Consulting Services and ULIT Materials (defined below) provided hereunder.  In the event of conflict between this Addendum and the MSA, the terms and conditions of this Addendum shall prevail with respect to the subject matter herein.

2. Consulting Services

We will provide the Consulting Services described in one or more Statements of Work executed by the parties pursuant to the terms of this Addendum on a time and materials basis (or such other basis as stated in the applicable Statement of Work) at the rates or for the amounts set forth in the applicable Statement of Work, and in accordance with the payment terms set forth therein.  Each Statement of Work shall contain information about the scope of the engagement, the Consulting Services, any tangible or intangible materials that We may provide in the course of performing the Consulting Services (the “ULIT Materials”), pricing, and such other information as may be necessary and desirable to understand the particular requirements and assumptions of the specific project at issue.

3. License

Except as otherwise provided in the applicable Statement of Work, upon Your payment of the fees and expenses due pursuant to the applicable Statement of Work, the license terms and restrictions applicable to “Services” as set forth in the MSA shall apply to the ULIT Materials solely as used in conjunction with the Services and solely for the Term of the applicable User subscriptions pursuant to the MSA.  Neither this Addendum nor any Statement of Work hereunder grants You any license or rights in or to the Services.

4. Ownership

You acknowledge that We retain all right, title and interest, including all intellectual property rights, in and to the ULIT Materials and any and all results of the Consulting Services.  Except for those rights expressly granted in this Addendum or in its referred statement of work, no other rights are granted, whether express or implied.  The provided ULIT Materials shall be deemed to be Our Confidential Information, however considering that to the extent the ULIT Materials incorporate Your Confidential Information, You shall retain all title, right and interest therein.  You acknowledge and agree that We retain the right to use, without right of accounting, Our generalized knowledge, experience, and know-how (including processes, ideas, concepts and techniques) related to the Consulting Services and any ULIT Materials delivered hereunder acquired in the course of performing the Consulting Services and incidentally retained in intangible form.  We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services or Consulting Services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the Consulting Services or the ULIT Materials.

Particularly, We mean by exception, any Study, Customized Development, Parametrization, Interface (herein after jointly referred to as “Specifics”) result of the Consulting Services, listed as Specifics, and to the exception of those that form the standard version of the Service. For those Specifics, Your right grants You the full copyright of the Specifics. In the context of such grant of copyright related to the Specifics, We shall in particular cede to You the rights of (i) copying and use by any method, on any paper, electronic, optical or video media, including disks, listings, video recordings, for any kind of operation, including operation on the network, (ii) sharing in any manner on any network, (iii) adaptation, modification, correction, integration, transcription or translation. The cession of rights is valid worldwide for the entire legal term of copyright protection. The rights are ceded exclusively and irrevocably to Your benefit, for the entire ensemble of the Specifics, excluding the Customized Developments that We realize for You, for which the grant of rights shall be non-exclusive. Furthermore, for elements which may be reused by third parties, the Parties may agree to adopt another mode of ownership under the terms agreed between them.

5. Warranties

We warrant for thirty (30) days from the performance of any Consulting Services (“Warranty Period”) that the Consulting Services are performed (i) in a professional and workmanlike manner and (ii) substantially in accordance with the relevant Statement of Work applicable to such Consulting Services.  We agree to re-perform any Consulting Services that materially fail to meet this warranty during the Warranty Period, and if We are unable to re-perform such Consulting Services as warranted, You shall be entitled to recover the fees paid to Us for such defective Consulting Services.  The foregoing are Your sole and exclusive remedies for breach of the warranties set forth herein.  The warranties set forth herein are made to and for the benefit of You only.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES STATED IN THIS SECTION 5 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY, WHICH WE SPECIFICALLY DISCLAIM TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. 

6. Term

This Addendum shall commence on the Addendum Effective Date and thereafter shall remain in effect unless and until the earlier of (a) termination as provided in this provision or (b) termination of the MSA in accordance with its terms.  In addition to any termination rights under the MSA, either party may terminate this Addendum or any Statement of Work hereunder upon written notice if the other party materially breaches this Addendum or the applicable Statement of Work and fails to cure such breach within thirty (30) days following receipt of written notice specifying the breach in detail.  Further, unless otherwise specified in the applicable Statement of Work, You may terminate this Addendum and any Statement of Work then in effect for Your convenience upon thirty (30) days’ written notice to Us. Termination of this Addendum or any Statement of Work shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve You of Your obligation to pay all fees that have accrued or are otherwise owed by You up to and including the effective date of termination.  Sections 1, 3, 4, 5, 6, 7 and 8 of this Addendum shall survive any termination of this Addendum.

7. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS ADDENDUM, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID AND OR DUE BY YOU UNDER THE APPLICABLE STATEMENT OF WORK.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8. Miscellaneous

This Addendum, together with all Statements of Work mutually executed by the parties hereunder, and the MSA, constitute the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Addendum and such Statements of Work.  No other act, document, usage or custom shall be deemed to amend or modify this Addendum unless agreed to in writing signed by a duly authorized representative of both parties.  In the event of any conflict between the terms of this Addendum and the terms set forth in a Statement of Work, the terms set forth in such Statement of Work shall prevail solely with respect to the specific Consulting Services described in such Statement of Work.  The MSA, except as expressly amended hereby, is hereby ratified and confirmed.