Last updated April 24, 2019
This Professional Services Agreement (the “Agreement”) is by and between the individual or entity specified in the relevant SOW (defined below) referencing this Agreement (“Customer” or “you”) and Visallo, LLC, a Delaware limited liability company (“Visallo”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then Customer or “you” means your company, and you are binding your company to this Agreement. Visallo and Customer are each a “Party” and collectively the “Parties”.
The term (“Term”) of this Agreement will begin on the Effective Date identified in the associated Order and continue until termination as provided in Section 6 herein.
During the Term, Visallo and Customer may agree upon statements of work hereunder (each, a “SOW”) defining services (“Services”) and deliverables (“Deliverables”) to be provided by Visallo, Visallo’s compensation, the period during which the Services will be provided (if applicable) (the “Service Period”), and any additional terms and conditions. Each SOW shall be incorporated into and governed by this Agreement. Any changes to a SOW shall be agreed upon in writing by the Parties. The Parties agree that this Agreement and the applicable SOW(s) for Services shall govern and supersede any terms and conditions stated on any purchase order submitted by Customer for such Services. In the event of any conflict between this Agreement and a SOW, the Agreement will control. Each SOW will include, at a minimum, the following information: work to be performed, resources to be provided by each of the Parties, access requirements of Visallo, estimated schedules and deliverables where applicable, detail of fees (e.g., (i) fixed price fee or (ii) time and materials rates), assumptions upon which fees were based and estimated timeframe.
(a) The Services and any Deliverables are provided to Customer “as is” and neither Visallo, nor any of its Affiliates, nor any of their information providers or any third party involved in providing the Services or information included in the Services makes any representation or warranty of any kind with respect to the timeliness thereof, the results to be obtained from use of the Services or any Deliverables, or any matter related thereto. VISALLO EXPRESSLY DISCLAIMS, AND CUSTOMER WAIVES, ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS, TIMELINESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT ANY WORK PRODUCT OR DELIVERABLE WILL OPERATE ERROR FREE OR UNINTERRUPTED, ANY AND ALL WARRANTY THAT MAY ARISE FROM THE COURSE OF PERFORMANCE, BY REASON OF USAGE OR TRADE OR COURSE OF DEALING. THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, WHERE ANY FAILURE OF THE SERVICES OR PRODUCTS COULD LEAD TO MATERIAL PROPERTY OR DATA LOSS OR DISCLOSURE, DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL DAMAGE (“HIGH RISK ACTIVITIES”). VISALLO AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION AND DISCLAIM ALL WARRANTIES RELATING THERETO. As Customer’s sole remedy and Visallo’s sole obligation hereunder where there is non-conformity in any Services, Work Product or Deliverable, Visallo shall use good faith efforts to attempt to remedy such non-conformity if it substantially impairs the ability of any Deliverable to materially conform hereunder. Customer, however, shall be solely responsible for any of the results or outputs of the Work Product and for product and architectural design and interface issues as specified by the SOW. “Affiliate,” with respect to a Party, means a corporation, partnership or other entity controlling, controlled by or under common control with such Party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of greater than fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
Customer shall pay Visallo the fees for the Services as set forth in the fee schedule contained in the applicable SOW. Customer shall also pay the reasonable travel and living expenses of Visallo’s employees that are incurred and other reasonable out of pocket expenses incurred in the course of Visallo’s performance of Services. Customer shall pay invoiced amounts within 30 days of the invoice date. Customer shall also be responsible for taxes (including sales, value-added tax, turnover tax, gross receipts tax or franchise tax arising out of this Agreement, except for taxes imposed on Visallo’s income or arising from the employment relationship between Visallo and its personnel). Failure to timely pay any invoice under this Agreement shall constitute a material breach of this Agreement by Customer. If Customer fails to timely pay any amount due to Visallo, Customer agrees to pay late charges on outstanding amounts equal to one and one-half percent (1.5%) per month, or the highest interest rate permitted by law, whichever is less.
(a). “Confidential Information” means any proprietary information, including but not limited to technical or business information, ideas, materials, know-how, software, or other information that a person exercising reasonable business judgment would understand to be confidential or proprietary (“Confidential Information”). Confidential Information does not include: (i) information that was publicly available at the time of disclosure or that subsequently becomes publicly available other than by a breach of this provision, (ii) information previously known by or developed by the receiving Party independent of the Confidential Information or independent of Visallo Confidential Information obtained from any Customer or (iii) information that the receiving Party rightfully obtains without restrictions on use and disclosure except where such is obtained from the Customer.
(b) The Party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the Party disclosing such information (the “Discloser”) using the same degree of care in safeguarding the Discloser’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection; (b) not to disclose such Confidential Information to any third parties; (c) to restrict disclosure of the Confidential Information solely to those of its Representatives with a “need to know” (“Permitted Representatives”), where a “need to know” means that the Representative requires the Confidential Information in order to facilitate compliance with the terms of this Agreement (c) advise Permitted Representatives who gain access to the Confidential Information of their obligations with respect to the Confidential Information; (d) make only the number of copies of the Confidential Information necessary to disseminate the Confidential Information to Permitted Representatives or use the Software according to permitted uses. Recipient’s obligations under this Section 5 will continue in effect for so long as Recipient retains any Confidential Information. Customer’s obligations under this Section 5 will continue in effect in perpetuity with respect to Visallo Materials.
(c) Any Visallo Confidential Information used to perform the Services, or included in any Deliverable, and any derivative works thereof, including but not limited to software, appliances, methodologies, code, customer, sender and recipient commercial and personal information, templates, service bureaus, tools, policies, records, working papers, knowledge, data or other intellectual property, written or otherwise and data, testing, analysis, evaluations and conclusions resulting from the disclosures herein shall remain the exclusive property of Visallo.
(d) The provisions of this Section 5 will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient will notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or injunctive relief at its own cost and expense. In such disclosures, the Recipient will only disclose that portion of the Confidential Information that is legally required to be disclosed (as reasonably determined by the Recipient’s legal counsel).
(e) Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 5, without the necessity of posting any bond or other security or proving actual damages. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.
(a) The term of this Agreement expires on the later of three (3) years after the Effective Date or at the completion of any SOW executed hereunder. This Agreement or any SOW may be terminated at any time by either Party upon written notice if any one of the following events occurs: (i) the other files a voluntary petition in bankruptcy under Chapter 11 of the United States Bankruptcy Code and a trustee is named; (ii) the other has an involuntary petition in bankruptcy under Chapter 7 of the United States Bankruptcy Code filed against it; (iii) the other is adjudged by a court of competent jurisdiction as bankrupt; (iv) a court assumes jurisdiction of the assets of the other under federal reorganization act; (v) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of the other; (vi) the other becomes insolvent or suspends business; or (vii) the other makes an assignment of its assets for the benefit of its creditors. Or (viii) if the other Party breaches any material term of this Agreement and such breach remains uncorrected for 30 days following written notice from the other Party. Upon any termination, Visallo shall be entitled to be paid for all work performed up to the effective date of termination.
(b) Upon termination of this Agreement, Recipient will promptly return to Discloser or, at Discloser’s option, unless prohibited by law, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person; provided however, that the Recipient shall have the right to retain a copy of the Confidential Information for audit or regulatory compliance purposes.
Each Party shall indemnify, defend and hold harmless the other and its officers, directors, employees, agents, Affiliates, and assigns from any and all losses, damages, costs, liabilities and expenses (including reasonable attorney fees) to the extent they arise from or in connection with the gross negligence or intentional misconduct of such Party, its employees, agents, or subcontractors resulting in the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person, or resulting in the damage, loss, or destruction of any real or tangible personal property.
The cumulative liability of Visallo, its Affiliates, officers, directors, employees, third party licensors and their respective suppliers for all claims relating to the Work Product and Services or otherwise arising out of this Agreement, in contract, tort, or otherwise, including under Section 7, shall not exceed the total amount of all fees paid or payable to Visallo by the Customer under this Agreement in the twelve months preceding the applicable claim. Any action or proceeding against either Party must be brought 24 months after the cause of action accrues.
IN NO EVENT SHALL VISALLO, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, THIRD PARTY LICENSORS OR THEIR RESPECTIVE SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION AND LOST DATA, FOR ANY CLAIMS RELATING TO THE PRODUCTS AND SERVICES OR OTHERWISE ARISING OUT OF THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
In addition, Visallo and its suppliers will not be responsible for any damages, losses, expenses or costs that Customer suffers as a result of: (i) any interruption, delay or failure of the services or products; (ii) any loss of or delay in data, or any delays, non-deliveries, mis-deliveries, or service interruptions relating to such data; (iii) failures of telecommunication carriers, the internet, connections or communications, electronic communications, corruption, security, loss or theft of data, viruses, spyware, or use of software or hardware that does not meet Visallo systems requirements; (iv) any unauthorized use or modification of Services or any combination of Services with other services, products or equipment or violation of Customer responsibilities; or (v) the attempt by unauthorized users to obtain access to Customer’s data, web site, computers, or networks.
Each Party agrees that for a period ending twelve (12) months after the termination of this Agreement for any reason, unless mutually agreed by the Parties or a related company will not directly solicit or recruit for employment, any consultant or employees of the other Party if that consultant or employee or former consultant or employee had been assigned to or worked under this Agreement including any subsequent SOW.
(a) This Agreement, together with the Software License Agreement to which it is an Exhibit, shall be the entire agreement between the Parties to the exclusion of all antecedent or present representations, undertakings, agreements or warranties, expressed or implied and annuls, supersedes and replaces any and every other representation, warranty and agreement which may have existed between the Parties. This Agreement may be amended only by a written instrument that has been similarly executed by both Parties.
(b) The headings of this Agreement are for convenience only. In case of any difficulty in the interpretation of one or more of the headings, the headings shall have no meaning and no effect.
(c) All notices required under the Agreement to be given in writing and delivered by hand or sent by registered post or email addressed to the Party at its email address indicated on any relevant SOW. Day to day communications and interactions between the Parties shall be guided by any method of communication that the Parties choose to use, and any technical or support issues shall be handled via email between Customer and the Visallo Account Manager at the addresses listed in the relevant SOW.
If Visallo, notices shall be delivered to:
C/O Kensho Technologies, LLC One World Trade Center 285 Fulton St, Suite 76G New York, NY 10007 ATTN: Visallo Legal
With an electronic copy to firstname.lastname@example.org
Written notices required under the Agreement shall be deemed to have been validly given if delivered by hand or sent by registered post and shall be effective on date of receipt.
Notices sent by facsimile transmission shall be effective upon transmission provided that if transmitted after the close of normal business hours in the place of receipt, or on a Saturday, Sunday or public holiday in that place, then the notice shall be effective on the opening of business on the next business day of the recipient Party.
Notices sent by email transmission shall be effective upon transmission provided that if transmitted after the close of normal business hours in the place of receipt, or on a Saturday, Sunday or public holiday in that place, then the notice shall be effective on the opening of business on the next business day of the recipient Party.
(d) It is acknowledged that it is the intent of the Parties that the provisions contained in this Agreement should be enforced. Therefore, if any part of this Agreement shall be held unenforceable or invalid, it is the intent of the Parties that such provision shall not be wholly invalid but shall be deemed to be the maximum restriction for time and restriction in activities, which a court of competent jurisdiction deems reasonable and enforceable in any jurisdiction in which such court is convened. If any part, provision or paragraph of this Agreement shall be held unenforceable or invalid, the remaining part, provision or paragraph shall continue to be valid and enforceable as though the invalid portions were not a part thereof.
(e) Visallo is an independent contractor and shall not be deemed an employee or agent of Customer. This Agreement, including all exhibits and any SOWs, contains the complete agreement between the Parties relating to the Services. Sections 4 through 10 shall survive termination of this Agreement and any SOW.
(f) The Agreement shall be governed and construed in accordance with the laws of the State of New York without regard to the application of conflict of laws or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any legal action brought in relation to this Agreement shall be brought in a Federal or State court located in New York County, New York. At any time, a Party may seek preliminary, interim or conservatory measures from a court. The Parties agree that in the case of an alleged breach of or Section 5, a Party may seek to prevent further unauthorized disclosure of Confidential Information or misuse of Services by seeking a temporary injunction or temporary order of specific performance (each an “Order”), and in seeking such Orders, is not required to prove actual damages or post a bond. In any legal action before a court between the Parties, each Party agrees not to object to a request for a court order requiring that the parties not disclose any part of such legal action to the public.
For any dispute, controversy or claim arising out of or relating to this Agreement (“Claims”), the parties will use good faith efforts to resolve any issues by informal means prior to initiating litigation, and agree to treat any such disputes as confidential discussions between the Parties. Further, if either Party initiates litigation related to this Agreement, any legal filings shall be filed under seal or similar protection (so as to not make such filings a matter of public record), and such filings shall remain confidential from the public unless and until a court with proper jurisdiction permits public disclosure.
(g) Neither Party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond such Party’s reasonable control, including but not limited to acts of God, changes in governmental laws, rules, taxes, regulations or orders, war, terrorist acts, insurrection, riot, embargoes, supplier stoppages or delays, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials. Customer acknowledges that certain of Visallo’s suppliers establish the prices charged to Visallo based on governmental laws, rules, regulations, orders and decisions. If any of the prices charged to Visallo by any of its suppliers increase as a result of changes to governmental rules, laws or regulations or pursuant to new decisions or orders issued by applicable regulatory bodies, Visallo reserves the right to increase the price charged to Customer and/or change the terms of service hereunder, effective thirty days following notice to Customer. The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
(h) This Agreement may be executed in several counterparts, all of which taken together shall constitute one single Agreement between the parties. This Agreement may be executed by facsimile signature(s) or email with an attached signed agreement.
(i) This Agreement shall be binding upon and inure to the benefit of both Parties and their respective successors and assigns, including any corporation with which, or into which, a Party may be merged or that may succeed to a Party’s assets or business. Either Party may from time to time assign this Agreement, to: (i) a wholly-owned subsidiary, or to a parent organization in the event of an internal restructuring; or (ii) an acquirer of all or a substantial portion of its or any of its business or assets; provided, however, that any assignment under the foregoing (i) or (ii) shall be invalid if the assignee is a person or entity on the Office of Foreign Assets Control (OFAC) or Specially Designated Nationals (SDN) restricted, sanctioned, or banned lists.