THE TERMS AND CONDITIONS SET FORTH BELOW CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE TEK TOOLS ENTITY PROVIDING THE SERVICES (“TEK TOOLS”) AND YOU (“CUSTOMER”) WITH RESPECT TO THE TEK TOOLS PROFESSIONAL SERVICES, UNLESS OTHERWISE AGREED TO IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF TEK TOOLS. In the event that Customer issues any form of order to Tek Tools authorizing the purchase of Tek Tools Professional Services, it is agreed that such order is issued exclusively for the purpose of confirming Customer’s purchase of the specified service(s) and the price(s) thereof AND THAT NO OTHER TERMS AND CONDITIONS SPECIFIED OR PREPRINTED ON CUSTOMER’S ORDER SHALL ADD TO OR MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT, nor shall such order terms and conditions affect either party’s responsibility to the other party as set forth herein. RECEIPT BY TEK TOOLS OF A CUSTOMER PURCHASE ORDER SHALL CONSTITUTE ACCEPTANCE OF TEK TOOLS’ OFFER AS SPECIFIED IN A VALID QUOTE, SUBJECT SOLELY TO THE TERMS OF THESE STANDARD TERMS & CONDITIONS OF SALE. Tek Tools reserves the right to reject any order.
1.1. Tek Tools agrees to provide, and Customer agrees to take and pay for the services set out in a statement of work (the “Services”) as such statements of work may be provided to Customer from time-to-time (each an “SOW”) and at the rates or for the sum set out in quote from Tek Tools.
1.2. The Services are provided at Customer’s request and Customer accepts that it is responsible for ensuring that the Services are suitable for its own needs.
1.3. Tek Tools will provide to Customer an appropriately qualified agent(s) (the “Consultant”, or as the context so applies any of the agents). The Consultant will perform the Services in a timely and professional manner, during business hours, exercising due skill and care and will use reasonable endeavors to meet any agreed target dates.
1.4. Any scripts developed by Tek Tools as part of the consulting Services, or scripts that are licensed by Tek Tools to Customer, are incorporated into, form part of and work only in conjunction with the Tek Tools software for which such scripts were developed. Tek Tools licenses the scripts to Customer pursuant to the terms and conditions of the software license agreement under which such software was originally licensed to Customer, except that the scripts are provided “as is” and the warranty in such agreement will not apply to the scripts nor shall the terms of Tek Tools Support for certain scripts.
1.5. All title, ownership rights and world-wide intellectual property rights (including all patents, copyright, trademarks, trade secrets and moral rights) in and to any scripts, software, documentation, materials, methodologies, knowhow or other such information or materials that are developed or provided by Tek Tools in the course of delivering the Services (collectively, “Tek Tools Intellectual Property”), is and will remain the exclusive property of Tek Tools (or its affiliates and/or licensors as applicable). Customer may, however, subject to payment of all fees due under this Agreement, retain any deliverables provided to it under a SOW and may use such deliverables for its own internal purposes in accordance with terms and conditions of the software license noted above.
1.6. In the event that the Services are completed in less time than is estimated in the applicable SOW, the unused time shall expire and shall not be available for subsequent engagements.
1.7 In the event that Customer has pre-purchased a block of Services time, any unused time shall expire six months from the date of purchase of such time.
1.8. In the event that Customer cancels or requests a rescheduling of a mutually confirmed Services engagement date with less than one (1) week notice to Tek Tools, the following shall result:
1.8.1. with respect to onsite Services (i) if cancellation by the Customer occurs within one (1) week of the scheduled date for such Services then 50% of the scheduled Services time shall be forfeited, or (ii) if cancellation by the Customer occurs within twenty-four (24) hours of the scheduled date for such Services then 100% of the scheduled Services time shall be forfeited;
1.8.2. with respect to remote Services (iii) if cancellation by the Customer occurs within forty-eight (48) hours of the scheduled date for such Services then 50% of the scheduled Services time shall be forfeited, or (iv) if cancellation by the Customer occurs within one (1) hour of the scheduled time for such Services then 100% of the scheduled Services time shall be forfeited; unless otherwise agreed by Tek Tools at its sole discretion.
2.1. Payment and Reimbursement:
2.1.1. Customer shall pay for the Services at the rate set out in the relevant SOW or otherwise agreed in writing with Tek Tools. The rates are exclusive of any value added tax that shall be payable by Customer at the rate and in the manner prescribed by law.
2.1.2. Customer agrees to pay valid Tek Tools invoices within 30 days of the date of the invoice.
2.1.3. In the event that the SOW does not state that expenses are included in the fee for the Services, then Customer shall reimburse Tek Tools for any expenses reasonably and properly incurred by the Consultant in performing the Services upon submission of copies of valid receipts, or as otherwise agreed in writing. Tek Tools will maintain full and accurate records of the time spent and expenses incurred in providing the Services.
2.2. Customer shall provide the Consultant with all information and help reasonably required by the Consultant and shall make available such of its own appropriately qualified staff as may be reasonably required to assist the Consultant with the performance of the Services, including (a) providing the Consultant with such computer facilities, and office facilities at its premises as may reasonably be necessary to enable the Consultant to perform the Services including suitably equipped accommodation and facilities for making telephone calls to and from the Consultant’s offices in private; (b) providing full access to those areas of Customer’s premises that are required for performance of the Services; (c) authorizing the Consultant to have access to those computer systems to which it is reasonably necessary to have access for the provision of the Services; and Customer shall take all reasonable steps to ensure the health and safety of Tek Tools employees while they are at Customer’s premises.
2.3. Customer undertakes that any computer hardware or software that the Consultant is asked to use or modify for the purpose of the Services are either the property of Customer or are legally licensed to Customer and to indemnify Tek Tools in respect of any claims against Tek Tools or its employees by third parties related to such use or modification, including all related costs, expenses or damages in the event of any actual or alleged violations of third party proprietary rights or software licenses.
2.4. Customer represents and warrants that neither Customer, nor any party that owns or controls or is owned or controlled by Customer, is (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial sanctions or trade embargoes imposed, administered, or enforced by the United States, or the European Union, the United Kingdom; (ii) an individual or entity on the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury's List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce's Denied Persons List or Entity List; or any other sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) otherwise the target or subject of any Sanctions and Export Control Laws. Customer further represents and warrants that it will not, directly or indirectly, export, re-export, transfer, or otherwise make available (a) the Services, or (b) any data, information, software programs and/or materials resulting from the Services (or direct product thereof) to any country, region, or person described in this Clause or in violation of, or for purposes prohibited by, Sanctions and Export Control Laws, including for proliferation-related end uses. For purposes of this section, “Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or similar measure applicable to the Services and/or to either party relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures, including, but not limited to, those administered and enforced by the United States, the European Union, and the United Kingdom, each of which shall be considered applicable to the Services.
During the term of SOW, and for 12 months after its expiry or termination, Customer undertakes not to solicit or seek to induce to leave the employ of Tek Tools any person who was, during the period of Tek Tools’ undertaking the Services, an employee of Tek Tools, and who worked with, or under the supervision of, Customer at any time during that period.
Tek Tools shall not be liable to Customer for any delay in or failure to perform the Services as a result of a Force Majeure Event. "Force Majeure Event " means any event affecting the performance by Tek Tools of its obligations arising from any act, events, omissions, happenings or non-happenings beyond its reasonable control including (but without limiting the above) government regulations, fire, flood or any disaster or an industrial dispute affecting a third party.
5.1. Each party acknowledges that it and its Affiliates (“Disclosing Party”) may have access to Confidential Information of the other party and its Affiliates (“Receiving Party”) in connection with this Agreement. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party agrees to (i) not use any Confidential Information for any purpose other than to perform its obligations and exercise its rights under this Agreement, and (ii) restrict dissemination of Confidential Information only to individuals or third parties with a “need to know” such information and who are under a substantially similar duty of confidentiality. A Receiving Party may disclose the Disclosing Party’s Confidential Information in any legal proceeding or as required as a matter of applicable law or regulation (such as in response to a subpoena, warrant, court order, governmental request, or other legal process); provided, however, that to the extent permitted by applicable law, the Receiving Party will (1) promptly notify the Disclosing Party before disclosing the Disclosing Party’s Confidential Information; (2) reasonably cooperate with and assist the Disclosing Party, at the Disclosing Party’s expense, in any efforts by the Disclosing Party to contest the disclosure; and (3) disclose only that portion of the Disclosing Party’s Confidential Information that is legally required to be disclosed.
5.2. Notwithstanding the above, a Disclosing Party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure by the Disclosing Party and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third-party without restriction on the disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
6.1. The IT Consultant may assign rights and may delegate duties under this Agreement to other individuals or entities acting as a subcontractor ("Subcontractor"). The IT Consultant recognizes that they shall be liable for all work performed by the Subcontractor and shall hold the Client harmless of any liability in connection with their performed work.
6.2. The IT Consultant shall be responsible for any confidential or proprietary information that is shared with the Subcontractor in accordance with this section. If any such information is shared by the Subcontractor to third (3rd) parties, the IT Consultant shall be made liable.
7.1. Save as expressly stated herein, Tek Tools make no warranties, conditions, undertakings or representations of any kind, either express or implied, statutory or otherwise, in relation to the Services and/or any deliverables resulting from such Services, including without limitation any implied warranties or conditions of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or arising from course of dealing, usage or trade.
7.2. The liability of Tek Tools to Customer in respect of any claim for breach of contract, negligence, breach of statutory duty or otherwise shall be limited as follows: (a) In respect of any claim for fraudulent misrepresentation, personal injury or death caused by the negligence of Tek Tools, its employees, agents or sub-contractors, or any other liability that cannot be limited by applicable law, no limit shall apply; (b) In respect of all other claims, liability shall be limited to the amount of the fees paid to Tek Tools under the relevant SOW(s) per claim or series of claims arising from one incident.
7.3. Tek Tools shall not be liable to Customer for any indirect, consequential, incidental, or special damage or loss of any kind including, but not limited to, loss of profits, loss of contracts, business interruptions, loss of or corruption of data however caused and whether arising under contract or tort, including without limitation negligence.
8.1 Indemnification by Tek Tools.
(a) Tek Tools will (i) indemnify, defend, and hold Customer harmless from any third-party claim, action, suit, or proceeding alleging that Customer’s access and use of the Service in accordance with this Agreement infringes such third party’s patent, trademark, or copyright; and (ii) reimburse Customers’ reasonable attorney’s fees and costs actually incurred and any damages finally awarded against Customer by a court of competent jurisdiction or agreed to by Tek Tools in a settlement. If a third-party claim is made or appears likely to be made, Tek Tools, in its sole discretion, may: (1) procure the right for Customer to continue accessing or using the Service under the terms of this Agreement; or (2) modify or replace the Service to be non-infringing without material decrease in functionality. If Tek Tools, in its sole discretion, determines that neither of the foregoing options is reasonably feasible, Tek Tools may terminate the Service upon written notice to Customer, and provide or authorize a pro rata refund of the fees paid by Customer to Tek Tools or the Partner, respectively, for the remainder of the applicable Subscription Term. The foregoing shall be Tek Tools’ entire obligation and Customer’s exclusive remedy regarding any third-party claim against Customer.
(b) Tek Tools will have no indemnity obligation for any claim to the extent such claim, in whole or in part, is based on: (i) a modification of the Service by Customer or a third party; (ii) access or use of the Service in a manner that violates the terms and conditions of this Agreement; (iii) technology, designs, instructions, or requirements provided by Customer or a third party on Customer’s behalf; (iv) combination, operation, or use of the Service with non-Tek Tools products, software, services, or business processes, if a claim would not have occurred but for such combination, operation, or use; or (v) Customer Content or Third Party Services.
8.2 Indemnification by Customer. Customer will indemnify, defend, and hold harmless Tek Tools, its Affiliates, and their officers, directors, employees, contractors, and agents against any claims, liabilities, and expenses (including court costs and reasonable attorneys' fees) that are incurred as a result of or in connection with: (a) Customer Content, including without limitation Customer’s failure to follow applicable laws, obtain all necessary consents related to Customer Content, or comply with Section 4.4 (Content Restrictions); (b) Customer's access or use of the Service in a manner not expressly permitted by this Agreement; (c) Customer’s violation of any third party rights; (d) Customer’s violation of applicable laws or regulations; or (e) any work product created in reliance on the Service and use of such work product by Customer or a third party.
8.3 Indemnification Procedures. The indemnified party (“Indemnitee”) will: (a) promptly notify the indemnifying party (“Indemnitor”) in writing of any indemnifiable claim; (b) give Indemnitor all reasonable assistance, at Indemnitor’s expense; and (c) give Indemnitor sole control of the defense and settlement of the claim. Any settlement of a claim will not include a specific performance obligation other than the obligation to cease using the Service, or an admission of liability by the Indemnitee, without the Indemnitee’s consent. The Indemnitee may join in the defense of an indemnifiable claim with counsel of its choice at its own expense.
If any dispute arises under this Agreement, the IT Consultant and the Client shall negotiate in good faith to settle such dispute. If the parties cannot resolve such disputes themselves, then either party may submit the dispute to mediation by a mediator approved by both parties. If the parties cannot agree with any mediator or if either party does not wish to abide by any decision of the mediator, they shall submit the dispute to arbitration by any mutually acceptable arbitrator, or the American Arbitration Association (AAA). The costs of the arbitration proceeding shall be borne according to the decision of the arbitrator, who may apportion costs equally or in accordance with any finding of fault or lack of good faith of either party. If either party does not wish to abide by any decision of the arbitrator, they shall submit the dispute to litigation. The jurisdiction for any dispute shall be administered in Orange County, State of California.
This Agreement shall be governed by and construed in accordance with the laws of the State of California and the courts of the State of California shall have exclusive jurisdiction to determine any disputes, which may arise out of, under, or in connection with this Agreement.
TEK TOOLS PROFESSIONAL SERVICES TERMS AND CONDITIONS (24 JAN 2021)