Version Date: January 1, 2017
These APTTUS Professional Services Terms & Conditions (“Terms”) constitute a legal agreement between you or your employer or other entity on whose behalf you enter into these Terms (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
APTTUS Professional Services (“Professional Services”) are governed by these Terms and, where applicable, the terms of the master subscription agreement in place between Customer and APTTUS (“Agreement”). Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.
These Terms apply in addition to the Agreement. In the event of any conflict between these Terms and the Agreement, these Terms shall prevail to the extent of any inconsistency. In the event of any conflict between these Terms and any Statement of Work executed hereunder, these Terms shall prevail to the extent of any inconsistency, except with regard to any provision of any Statement of Work that specifically identifies a conflicting provision of these Terms and states that the conflicting provision of these Terms does not prevail.
APTTUS may amend these Terms from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives APTTUS written notice of rejection of the amendment. In the event of such rejection, these Terms will continue under their original provisions, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party.
1.1. “Service” means the online, Web-based service, including associated offline components, provided or managed by APTTUS under an order document.
2. Applicability. These Terms apply only to the extent that Customer and APTTUS execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by APTTUS for Customer.
3. Professional Services.
3.1. Scope. APTTUS will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with APTTUS with regard to Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
3.2. Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or 5 business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, APTTUS may revise and redeliver the Deliverable, and thereafter the procedures of this Section 3.2 will repeat.
4. Fees & Payment Terms.
4.1. Payment. Customer will pay APTTUS the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay APTTUS within thirty (30) calendar days from the date of invoice.
4.2. Other Expenses. Customer shall reimburse APTTUS for travel time and other expenses incurred in performance of Professional Services pursuant to the APTTUS travel policy, so long as Customer has previously approved the expense or range of expenses in question.
5. Term and Termination.
5.1. Term. Each SOW will continue for the term set forth therein, if any.
5.2. Termination. Unless the SOW provides to the contrary, Customer may terminate an SOW for convenience upon 30 days’ written notice to APTTUS. Either party may terminate a SOW for the other’s material breach of such SOW, including of any related obligations set forth in these Terms, on 30 days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate.
5.3. Effect of Termination. Upon termination of an SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay APTTUS such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay APTTUS the reasonable value of the Professional Services received from APTTUS up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or these Terms or the Agreement.
6. Intellectual Property in Deliverables. APTTUS owns and retains ownership of all Deliverables, including without limitation preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such a license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the Service during the applicable Subscription Term(s).
7.1. Intellectual Property. APTTUS represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. APTTUS’ sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for APTTUS: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in APTTUS’ reasonable judgment, (3) to terminate the SOW in question and refund to Customer 1/36th of the fees paid for the Deliverable for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
7.2. Professionalism & Function. APTTUS warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. APTTUS further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and APTTUS’ sole liability and responsibility for breach of any warranty in this Section 7.2. shall be for APTTUS to re-perform the Professional Services in question, including creation of Deliverables.
8. IP Indemnity. Subject to the Agreement, APTTUS shall (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Deliverable as contemplated hereunder infringes the intellectual property rights of a third party, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by APTTUS in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to APTTUS; (b) gives APTTUS sole control of the defense and settlement of the Claim (provided that APTTUS may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to APTTUS, at APTTUS’ cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
9. Relationship with the Service & the Agreement.
9.1. Service vs. Professional Services. Professional Services are not part of the Service.
9.2. Construction. The provisions of the Agreement govern SOW’s and these Terms. In the event of a conflict, the provisions of these Terms will prevail over those of a SOW (and the provisions of the Agreement will prevail over those of these Terms). Neither party’s acts or omissions related to Professional Services, to a SOW, or to these Terms, including without limitation breach of an SOW or of these Terms, will give the other party any rights or remedies not directly related to the SOW in question. For clarity, APTTUS’ breach of an SOW that does not otherwise violate APTTUS’ obligations under the Agreement will not give Customer any rights or remedies not directly related to the SOW in question, including the right to terminate the Agreement or the right to a refund of fees paid for the Service or of other fees paid not pursuant to such SOW. This, however, does not limit any other rights or remedies that Customer may have under the Agreement related to APTTUS’ obligations. In addition to such other limits of liability as apply, including pursuant to the Agreement, APTTUS’ TOTAL AGGREGATE LIABILITY FOR ANY LOSS ARISING OUT OF OR RELATED TO A SOW SHALL BE LIMITED TO THE FEES PAID PURSUANT TO SUCH SOW.