This Services for Proof of Concept Agreement, as amended from time to time (“Agreement”), is between Company and Client. “Company,” “Client,” and “Signing Date” shall have the same meanings provided in the applicable Form (as defined below).
WHEREAS, Client desires to receive certain services for proof of concept; and
WHEREAS, Company desires to provide such services.
This Agreement provides general terms applicable to Company’s provision of certain services for proof of concept, in mutually agreed transactions described in mutually executed Form (“Form”). Such Form will be a separate agreement between Company and Client and will be deemed to incorporate the terms of this Agreement by reference. In the event of any conflict or inconsistency between the terms of this Agreement and the specific terms of the Form, the specific terms of the Form govern with respect to such Form.
Company hereby grants Client a non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the services set forth in the Form (the “Services”) from the Commencement Date to the End Date for proof of concept (“POC”), subject to the terms and conditions set forth in this Agreement.
a. Any fees, including but not limited to the Total Fees, shall be paid in full by Client before the Commencement Date.
b. Client is responsible for (i) taxes related to its activities, and (ii) taxes imposed, levied or assessed thereon by any governmental or other authorities.
a. This Agreement commences on the Effective Date and continues until terminated as permitted by this Agreement.
b. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within one (1) calendar day (immediately in the case of Client’s failure to pay the Total Fees in full). If the breach (other than Client failure to pay amounts when due) cannot be cured within one (1) calendar day, the breaching party shall be given a reasonable period of time, but not to exceed one (1) calendar day after receipt of the notice, to cure the breach, provided that the breaching party acts promptly and diligently to cure such breach.
c. In addition to the above, if Client fails to pay any fees, including but not limited to the Total Fees, in full when due, or otherwise fails to perform any of its obligations under this Agreement, Company may, in its sole discretion, take certain actions including, without limitation, the following actions, at Client’s sole risk and expense:
(i) suspend the provision of the Services;
(ii) declare all amounts due under the Agreement, applicable Form and applicable order through the balance of the term to be immediately due and payable;
(iii) forfeit Client’s security deposit, if any;
(iv) terminate this Agreement, Form and all orders; and
(v) exercise all other rights under this Agreement, at law, in equity or otherwise.
d. Payments made by Client pursuant to this Agreement are not refundable nor creditable for any reason whatsoever. Notwithstanding anything to the contrary herein, if an early termination of this Agreement is directly caused by Company’s willful misconduct, Company shall refund the unused fees prepaid by Client.
a. Company does not make and hereby disclaims all warranties, including, without limitation, express, implied and statutory warranties that the Services will be uninterrupted, error-free, or completely secure, and the implied warranties of merchantability or satisfactory quality, fitness for a particular purpose and noninfringement of any third party’s intellectual property rights. All Services are provided on an “as is”, “as available”, and “with all faults” basis, and Client’s use of the Services is solely at its own risk.
b. Each party shall not be liable to the other party for any of the following (whether direct or indirect): (a) consequential, indirect or special losses; (b) loss of profit; (c) loss of revenue; (d) loss of contract; (e) loss of commercial opportunity; (f) loss of savings, discount or rebate (whether actual or anticipated); and/or (g) harm to reputation or loss of goodwill.
c. The maximum aggregate liability of Company to Client under the Agreement shall not exceed a sum equal to the fees paid and/or payable by Client to Company under the Agreement.
a. Client agrees to work with Company to attend a brief training session before commencing the POC.
b. Notwithstanding any contrary provisions in this Agreement, if Client requests or suggests changes to Company’s products or services, absent a separate custom development agreement, Client grants Company the right to incorporate such changes or suggestions into Company’s products and services without restriction.
c. Both parties agree to protect confidential information disclosed during the term of this Agreement.
d. This Agreement will be governed by the laws of the State of New York, without regard to the conflict of law principles thereof.
e. Company may assign, delegate, or transfer this Agreement or any of its rights and obligations hereunder without notice to or prior written consent of Client.
f. This Agreement constitutes the entire agreement and understanding between Client and Company and supersedes all prior negotiations, proposals, understandings and agreements, written or oral, as well as any industry custom. Client acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. Company reserves the right to update the terms in this Agreement from time to time without notification to Client. Client’s continued use of the Services after the publication of the amended Agreement shall be deemed as Client’s acceptance of the amended Agreement. Except where otherwise expressly provided in this Agreement, this Agreement may be amended only by the written agreement of both parties.