STANDARD TERMS AND CONDITIONS
Except as otherwise provided herein, this document contains the entire and only agreement between ProActive Solutions, Inc. and you, our customer, relating to the subject matter hereof, and any representation, affirmation of fact, and course of prior dealings, promise or condition in connection, therewith, or usage of the trade not incorporated herein, shall not be binding on either of us. The rights and obligations contained herein shall inure to and be binding upon each of us and our legal representatives, successors, and permitted assigns. Unless you have entered into a signed written agreement with us, you shall be deemed to have assented to these Standard Terms and Conditions to the extent referenced or contained in any Orders (defined below).
Orders and Order Acceptance:
We agree to provide you certain services (the “Services”). Such Services shall be as set forth and agreed to between us and you in one or more statements of work and/or such other document including any applicable purchase orders as agreed to between us (each, an “Order”). We warrant that the Services will be performed in a workmanlike manner consistent with the applicable Order. In addition, we may sell to you certain hardware, equipment, components, or accessories (the “Equipment”), or license, sublicense, or facilitate the license from a third party to you of computer software (“Software”), all as specified in an Order, or as otherwise requested by you from time to time, but only to the extent that we agree to provide such additional products to you in our sole discretion. Each Order must be accepted by us and is contingent on your credit approval and other terms and conditions as determined by us. Once an Order is accepted , any changes requested by you will be subject to payment by you of any rework or other costs associated with such changes. We reserve the right to substitute products with other equipment, software, and/or components or materials of the same material functionality as reasonably determined by us. We may use refurbished parts in new Equipment, and we use same quality control procedures and warranties as with new Equipment. You agree to pay all installation charges and to provide a suitable place for installation with proper power and general environmental conditions as defined in the Equipment's installation manual.
All dates and timelines for the provision of Services are approximate and are contingent upon our receipt of all necessary information and assistance from you to properly provide the Services.
Deliverables and Deliverables Acceptance:
Except as expressly provided or agreed to elsewhere, any deliverables, such as reports, sites, software, solutions, modifications or integrations form part of our Services (“Deliverables”) to you.
If an Order is provided for under these Terms and Conditions or a Master Services Agreement, then we shall provide such Deliverables to you in the time and manner set forth in the Order. The Services will not commence until a signed Order has been received and accepted by us. Unless otherwise specified in an Order, within five (5) business days following receipt of any Deliverables (“Acceptance Period”), you will provide to us with either (a) written approval and acceptance of such Deliverable (not to be unreasonably withheld), or (b) a written list of specific items or functionalities in the Deliverables that are not in compliance with the Order. Deliverables will be deemed accepted upon the earlier of you commencing operational use of the Deliverable or your failure to provide written notice within the Acceptance Period.
We will provide competent Personnel to perform the Services. Our Personnel consist of our employees, agents and/or subcontractors. We shall retain full responsibility for the Services of any of our Personnel. We shall determine which Personnel will perform specific Services under these Terms and Conditions and/or any other document, including an Order, agreed to between us. You will promptly notify us if any individual assigned is, or becomes, unacceptable to you. If we are unable to arrive at a solution that is acceptable to the you, then you may request that we remove such individual. We will conform to such request and either replace the individual in a mutually agreeable timeframe or terminate these Terms and Conditions or terminate any applicable Order.
You shall pay the amounts agreed to between us, upon receipt of invoices, which shall be sent by us, and you shall pay such amount of such invoices to us within thirty (30) days of receipt of the invoice. We may impose a late payment charge equal to the lesser of one- and one-half percent (1.5%) per month; or (2) the maximum rate allowed by law. You agree to pay for any partial shipment of item(s) under the same terms listed above. Payment for the partial shipments shall equal the portion of the total amount that the partial shipment represents.
Except as agreed to elsewhere, the Services fees and other amounts payable pursuant to these Terms and Conditions are exclusive of, and you shall pay, all federal, state, local, municipal or other sales, use, transfer, excise, property and other taxes and duties imposed with respect to the Services, except for taxes based on our net income. You shall obtain and provide to us any certificate of exemption or similar document required to exempt any transaction under these Terms and Conditions for Sale from sales tax, use tax or other tax liability.
You agree to cooperate with us to the extent necessary for us to perform our Services. Such cooperation shall include, but not be limited to, providing us with (i) all necessary information and free and full access to, and use of, your premises, computers, personnel, and resources as needed to complete Services; (ii) ensure that the necessary business and application knowledge is available and conveyed from your existing support team, internal or external, to our support team; and (iii) provide passwords and other credentials to our Personnel as needed.
Shipping, Risk and Title:
Risk of damage to or loss of products will pass to you (i) upon delivery by us to you, or (ii) in the event that we install Equipment or Software on-site, unless agreed otherwise, upon delivery on-site. Legal title will pass to you only when we have received payment in full. We will arrange for packing, insurance, shipment and delivery of the Equipment to your installation site. You agree to reimburse us for all such costs, unless and to the extent otherwise agreed upon by you and us prior to acceptance of the Order. Until legal title has passed to you, you shall: (i) not assimilate; transfer or pledge any of the Equipment, or Software or grant any right or title in therein to any third party, and (ii) ensure that the Equipment, or Software remain identifiable as our sole and exclusive property. In the event of breach by you, we may require that you return to us, at your cost (including costs for de-installation), all products in which the title has not yet passed, and you shall fully cooperate to enable us to collect such products and grant us (or its representative) free access to the location of the products, and other equipment supplied and/or used by us in the performance of Services.
Cancellation and Returns:
Any cancellation of an Order prior to shipment will result in a cancellation fee of 15% of the total purchase price to be paid to us. No item may be returned to us after shipment, without prior written approval from us (typically, in the form of an RMA -Return Material Authorization). A restocking charge may be assessed by us upon such approval.
We warrant that the Services to be delivered or rendered by us will be performed by qualified Personnel. OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE MAKE NO OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTY OF FITNESS. FOR PURPOSE OF MERCHANTABILITY ANY PRODUCTS, SOFTWARE, PLATFORMS, OR SERVICES PROVIDED BY US ARE PROVIDED BY US ON AN “AS IS” BASIS, NOT SUBJECT TO THE WARRANTIES CONTAINED IN THIS SECTION, AND YOUR SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, SOFTWARE, PLATFORMS, OR SERVICES ARE AGAINST THE THIRD-PARTY VENDOR.
Limitation of Liability:
IN NO EVENT SHALL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION OF ANY KIND WHICH YOU MAY EXPERIENCE, OR FINES OR PENALTIES IMPOSED ON YOU FOR FAILURE TO MEET A GOVERNMENTAL LAW, REGULATION OR REQUIREMENT FOR WHICH THE SERVICES ARE DIRECTLY OR INDIRECTLY USED BY YOU. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE RECOURSE FOR DEFICIENT SERVICES SHALL BE REPERFORMANCE OF SUCH SERVICES. IN ADDITION, THE PARTIES AGREE THAT BY REASON OF THE DIFFICULTY IN FORESEEING POSSIBLE DAMAGES, THE MAXIMUM LIABILITY OF OURS TO YOU SHALL BE LIMITED TO ACTUAL SUMS PAID BY YOU TO US AS LIQUIDATED DAMAGES AND NOT AS PENALTY AND SHALL IN NO EVENT INCLUDE INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Ownership of Deliverables, Background Technology and Work Product:
Deliverables. As applicable, if an Order provides for any Deliverables then, on condition of your full and complete payment of all amounts owed under an Order, subject to the provisions of this Section, all right, title and interest in and to the final Deliverables shall be transferred to and owned by you. Notwithstanding the above, each of us shall retain our own pre-existing intellectual property and confidential information. You grant us a non-exclusive, non-transferable license to use, reproduce, modify, and display your intellectual property and confidential information, and the Deliverables, to the extent necessary to perform the Services.
Background Technology. You hereby acknowledge and agree that we are in the business of providing web development and programming services and that we shall have the right to provide services that are the same or similar to the Services provided to you to third parties and we shall retain ownership of and the right to use all of our methodologies, know how, processes, materials, technology, technical documentation, inventions, algorithms, software, architecture, logic, source files, source codes, engines or other backend and background elements, files and features that we have incorporated into any Deliverables or utilized by us in connection with any Deliverables (collectively, “Background Technology”). You acknowledge and agree that we shall retain ownership of any and all Background Technology, including any and all associated intellectual property rights. If applicable, upon payment of all amounts in full owed under an Order, we will grant you a limited, non-exclusive, non-transferrable, royalty-free license to use our Background Technology to the extent incorporated into Deliverables provided hereunder for the term of such Order.
Work Product. We shall own and retain all rights to any concepts, ideas, designs, proposals and other materials arising out of or related to the Services which are presented to you but not included in any Deliverables (“Work Product”). If you desire to utilize any Work Product, whether accepted or rejected previously, for any purpose, you shall hire us to implement such Work. You may solicit or hire a third party to implement such Work Product if, and only if, we decline to do so and such third party receives terms in no way more beneficial than the terms offered to us.
We shall perform the Services as an independent contractor and none of our Personnel shall be considered your employees. We shall be solely responsible for the compensation of our Personnel.
You agree that, while our Personnel are performing Services and for a period of twelve (12) months following the termination our arrangement, you will not, except with our prior written approval, directly or indirectly through a third party, refer for employment, solicit, or offer employment to any of our Personnel engaged in the provision of Services. In the event you assign or arrange for the performance of Services by our Personnel at a third-party location, you will ensure that an agreement that includes similar non-hire clause is entered into with the third party.
Each of us shall hold in trust for the other hereto (the “Other Party”), and shall not disclose to any other, any confidential information of the Other Party. Confidential information is information, which relates to the Other Party’s research, development, trade secrets, or business affairs, but does not include such information, which is generally known or easily ascertainable by others of ordinary skill in computer design and programming. You hereby acknowledge that during the performance of our Services, your confidential information may be provided to our support staff or associates in order to enable us to perform our Services.
We shall indemnify and hold you harmless from any responsibility for bodily injury and property damage liability or loss which may arise or grow out of performance of our Services, resulting from negligence or willful misconduct by our representatives. You shall indemnify and hold us harmless from any responsibility for bodily injury and property damage liability or loss which may arise or grow out of performance of your obligations to us resulting from negligence or willful misconduct by Client.
These Terms and Conditions shall be in full force until terminated. Either of us may terminate these Terms and Conditions upon ten (10) days written notice, provided that no such termination shall affect your obligation to pay us for all Services provided through the effective date of termination and to reimburse us for all applicable actual and reasonable expenses incurred prior to the effective date of termination. Any terms of this Terms and Conditions that by their nature extend beyond termination, including without limitation, indemnification, confidentiality, and non-solicitation obligations, shall remain in effect until fulfilled, and apply to both of our respective successors and assigns.
Compliance with Laws:
Both parties agree to comply, and assist one another in complying with all applicable federal, state and local laws and regulations to their respective operations.
The parties shall attempt in good faith to resolve any disputes, claims, and questions regarding the rights and obligations of the parties arising out of these Terms and Conditions through negotiations between executives of the parties, who shall have authority to settle the same. If the matter is not resolved by negotiation within thirty (30) days of receipt of a written invitation to so negotiate, then the matter shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The location of any arbitration under these Terms and Conditions shall be in the Kansas City, Missouri metropolitan area.
Should either party be required to institute a legal action or an arbitration proceeding to enforce any of its rights set forth in Terms and Conditions, then the prevailing party shall be entitled to reimbursement of its costs, expenses and reasonable attorneys’ fees incurred in such action or proceeding as determined by an arbitrator or the court within its sound discretion. [Any award shall be in accordance with the following formula: (i) if the plaintiff/claimant or counter claim-plaintiff/claimant obtains a complete or partial award or judgment, that party shall also be entitled to recover the same portion of its costs, expenses and reasonable attorneys’ fees as the ratio of the judgment or award bears to the total amount sought by that party in the proceeding. However, a plaintiff/claimant or counterclaim plaintiff/claimant that receives an award or judgment which is less than the defendant/respondent’s or counterclaim defendant/respondent’s last written offer shall in no event be considered a prevailing party hereunder; and (ii) if the defendant/respondent or counterclaim defendant/respondent obtains a judgment completely in its favor, or the plaintiff/claimant or counterclaim plaintiff/claimant recovers less than the last written offer of defendant/respondent or counterclaim defendant/respondent, the defendant/respondent or counterclaim defendant/respondent shall then be entitled to recover all of its costs, expenses and reasonable attorneys’ fees
- These Terms and Conditions are governed by the laws of the State of Kansas and shall inure to our benefit and to the benefit of our successors, administrators and assigns.
- You may not assign your rights and obligations under these Terms and Conditions without our prior written consent.
- Neither party will bring legal action against the other in excess of one year after the cause of action.
- Each provision of these Terms and Conditions are severable from all other provisions and, if one or more of the provisions of these Terms and Conditions shall be declared invalid, the remaining provisions of these Terms and Conditions, shall, nevertheless, remain in full force and effect.
- Neither party will be liable for failure to perform its obligations under these Terms and Conditions if the failure results from an act of God, the refusal of any license or any other act of a national, federal, state or local government authority or any department, agency or representative thereof, fire, explosion, accident, industrial dispute, or any other event beyond such party’s reasonable control.
- Any notice required to be given by either party under these Terms and Conditions shall be in writing and sent by certified mail to the address of the other party on the Order or to such address as may be designated by the receiving party in writing. Such notice shall be deemed to have been received two days from the date of mailing. Each party agrees that when electronic communications are used, they are the equivalent of written and signed documents.
- Captions included in these Terms and Conditions are for convenience only and are not to be used for purposes of interpretation of these Terms and Conditions.
- You are responsible for all reasonable expenses including but not limited to travel, lodging, meals, auto, etc. We will invoice such expenses on a pass-through basis.
- Because software is inherently complex and may not be completely free of errors, it is your responsibility to verify work and to make backup copies. We will not be responsible for your failure to do so.
- We reserve the right to amend, modify, and supplement these Terms and Conditions without any prior notice to you. You should check and review these Terms and Conditions prior to any new Order.
- All rights reserved. The information contained herein is proprietary. No part of this document may be reproduced in any form or by any means without our express permission in writing
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