Professional Services Terms and Conditions
(Version 1.0, November 2015)
1.1 In entering into this Agreement Client has relied on Aconex’s undertaking that it is an independent company carrying on a business on its own account and that it has Personnel with skills, experience and qualifications which will enable it to perform the Services (“Services”) detailed in Scope of Work. The Parties agree that this Agreement is for the provision of professional services only.
1.2 During the term of this Agreement, Aconex will provide the professional services as set out in the Scope of Work.
1.3 For the purpose of fulfilling its obligations under this Agreement Aconex shall provide all necessary personnel, material, equipment, additional services and facilities.
2. CONSULTANT’S OBLIGATIONS
2.1 During the term of the Agreement Aconex is retained on a non-exclusive basis to provide the services set out in the Scope of Work to Client.
2.2 Aconex shall perform or shall ensure that any personnel shall perform the obligations contained in the Scope of Work to the best of its ability and shall at all times act with good faith towards Client.
3. LIMITATION OF LIABILITY
3.1 Client agrees that it has accepted the terms and conditions of this Agreement in the knowledge that Aconex's liability is limited and that the prices and charges payable have been calculated so as to reflect such limitations and thus represent a reasonable and commercial allocation of risk between the parties.
3.2 This Section 3 sets out Aconex’s entire Liability to Client and all other Liability of Aconex to Client is, subject to Section 3.2.1 hereby excluded.
3.2.1 Notwithstanding any other provision of this Agreement, Aconex does not exclude or limit liability for:
a) death or personal injury to the extent that such injury results from Breach of Duty or wilful default of Aconex, its servants, agents or subcontractors; or
b) fraud or deceit;
3.3 Except as expressly provided in Section 3.2.1, the total Liability of Aconex to Client shall not exceed:
3.3.1 in respect of liability for loss of or damage to tangible property (including real property) arising as a result of the negligence or default of Aconex, its subcontractors or agents or employees acting within the course of their employment, the sum of fifty thousand USD ($50,000) for each event or series of connected events; and,
3.3.2 in respect of all other Liability of Aconex to Client the greater of fifty thousand USD ($50,000) or 125% of the Charges payable to Aconex (whether or not paid) under this Agreement.
3.3.3 Aconex shall not have any Liability to Client in respect of any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
a) loss of profits or revenue;
b) loss of anticipated savings or of the use of money;
c) loss of business;
d) loss of goodwill;
e) loss of use or downtime;
f) loss of or corruption to data or other information or loss of or damage to software;
g) damage relating to the procurement by Client of any substitute products or services; or
h) any, indirect, incidental, special or consequential loss or damage (whether or not such loss or damage is of the type specified in a to g above).
3.4 For the avoidance of doubt:
3.4.1 Aconex shall not be liable to Client in respect of any third party products; and
3.4.2 Client shall not be entitled to recover against Aconex under this Agreement more than once in respect of any one loss.
4. OBLIGATIONS OF CLIENT
4.1 Client shall comply in a timely manner with the obligations contained in this Section 4.1 and the Scope of Work.
4.1.1 Client acknowledges that Aconex’s ability to fulfil its obligations in relation to the performance of the Services is dependent upon the Client’s timely co operation with Aconex as well as the accuracy and completeness of any information and data that Client provides to Aconex. Client shall:
a) provide Aconex with access to, and use of, all information, data, documentation deemed necessary by Aconex to enable Aconex to perform its obligations hereunder; and
b) appoint a representative and procure that such representative shall provide professional and prompt liaison with Aconex, possess the necessary expertise and authority to commit Client, be available at all necessary times, meet with Aconex’s representative at regular intervals to be agreed to review, progress and resolve any difficulties relating to the Services.
c) Client shall be solely responsible for maintaining an external procedure for reconstruction of lost or altered files, data and programs to the extent deemed necessary by Aconex, and for actually reconstructing any and all such materials.
5.1 The appointment of Aconex shall take effect on the date of this Agreement ("Effective Date") and shall terminate on completion of the Scope of Work unless earlier termination in accordance with Section 9 below.
6.1 Client shall pay to Aconex the Fees set out in the "Scope of Work".
6.2 The Fees are exclusive of Value Added Tax.
7. INVOICING AND PAYMENT
7.1 Aconex shall submit an invoice upon acceptance of the work performed. Invoices shall be payable by Client 30 days from date of invoice. Without prejudice to any other rights or remedies available to Aconex, Aconex shall be entitled to levy interest on any overdue amount at the rate of one percent (1%) per month (or, if less, the maximum amount permitted by applicable law) and accruing on a daily basis until payment is made.
7.2 Liability for Expenses:
7.2.1 Unless otherwise expressly agreed in writing, Aconex shall not be entitled to payment for any costs, or expenses incurred during or after the expiration or termination of this Agreement.
7.2.2 Where Client expressly agrees, in writing, to be liable for expenses, then Client shall reimburse Aconex for the actual cost of transportation, lodging, meals and out-of-pocket expenses; travel expenses shall be paid in accordance with Client's current policy covering such expenses. All actual expenses must be supported by receipts where normally provided.
8.1 Aconex warrants that it has exercised and shall exercise all reasonable skill, care and diligence in carrying out its obligations under this Agreement.
8.2 Save as expressly provided in this Section 8, all other conditions, warranties, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise, in respect of the Services are hereby excluded by Aconex to the fullest extent permitted by law and Aconex shall have no other obligation, duty or liability whatsoever in contract, tort, statute or otherwise to the Client. Without prejudice to the generality of the foregoing, Aconex specifically disclaims the statutory implied terms of satisfactory quality and fitness for a particular purpose and Aconex shall not be responsible for any business decisions made or actions taken by the Client based on all or any part of the Services.
Either party shall have the right to terminate this Agreement in whole or in part immediately if:
9.1 The other party neglects or fails to perform or observe any of its obligations under this Agreement, is incompetent, commits any act of gross or persistent misconduct and/or breaches any term of the Agreement
9.2 Without prejudice to Section 9.1 above, the other party is in breach of any of its obligations hereunder or Aconex is in breach of Client's internal regulations and if such breach is remediable, the breach is not remedied by Aconex within ten (10) days following receipt of notice from Client.
9.3 The other party becomes insolvent or its financial position is such that within the framework of its national law, legal action leading to insolvency may be taken against it by its creditors.
9.4 The other party resorts to any fraudulent practices in connection with this Agreement especially deceit concerning the nature, quality or quantity of goods or services required to be rendered under this Agreement, or by giving or offering of remuneration or gifts for the purposes of bribery to any officer, employee or agent of the other party.
9.5 The other party does anything that brings or might reasonably be expected to bring the other party into disrepute
9.6 Either party shall have the right to terminate this Agreement in whole or in part for its convenience at any time on one month's prior written notice.
9.7 The termination of this Agreement howsoever caused is without prejudice to the rights, duties, liabilities of either party accrued prior to termination. The provisions of this Agreement which expressly or impliedly have effect after termination shall continue to be enforceable after termination.
10.1 Both parties shall treat all information received from the other party, (whether written or oral) in confidence which it has received as a result of the discussions leading up to or the entering into, or obtains or receives in the performance of, this Agreement.
10.2 Neither party shall use such confidential information, or disclose it to any third party, except insofar as strictly necessary for the performance of the parties’ obligations hereunder, except to such employees or sub-contractors who have a need to know and are bound to keep such information confidential.
10.3 The receiving party shall ensure that such confidential information is not used for any purpose other than for the performance of its obligations under this Agreement.
10.4 This Section 10 shall not apply to confidential information which is:
10.4.1 lawfully received free of any duty of confidentiality from a third party;
10.4.2 already in the possession of the receiving party, other than as a result of a breach of this Section 10;
10.4.3 in the public domain other than as a result of a breach of this Section10;
10.4.4 necessarily disclosed pursuant to a statutory obligation; or
10.4.5 disclosed with the prior written consent of the disclosing party.
10.5 This Section shall continue to apply after the termination or expiry of this Agreement for a period of 5 years.
10.6 Upon termination of this Agreement for whatever reason, or expiry of the term and at all other times when reasonably requested to do so, both parties will deliver up to the other party all working papers or other material (in whatever format stored) and all confidential information and any copies held by such party.
11. RELATIONSHIP OF THE PARTIES
11.1 Aconex shall serve as an independent contractor, and the Agreement shall not be deemed to create a partnership, agency, or joint enterprise. The authority of Aconex is limited to the performance of the functions set forth in this Agreement.
11.2 Neither party shall have authority to make any agreement or incur any liability on behalf of the other, nor shall either party be liable for any acts, omissions to act, contracts, commitments, promises or representations made by the other, except as specifically authorised in this Agreement or as the parties may otherwise agree.
11.3 Aconex shall make appropriate filings with tax authorities and shall be liable for all required payments to the tax authorities (including income tax and national insurance payments). Aconex agrees to indemnify and hold Client harmless from any claims for payments made by said tax authorities resulting from performance of Aconex pursuant to this Agreement.
12.1 The parties shall not and shall procure that any of its sub-contractors shall not, whether directly or indirectly whilst this Agreement is in force and for a period of 6 months immediately following termination solicit or entice away from the other party any employee of the other party, whether for the its own business or the business of any third party. The parties agree that this restriction is reasonable and fair in the circumstances and that it goes no further than necessary to protect the legitimate business of each party.
13.1 Any notice or demand required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered personally or received by registered mail or certified mail, postage repaid, at the addresses set out at the head of this Agreement.
14. INTELLECTUAL PROPERTY
14.1 License to Aconex. Client grants Aconex a non-exclusive, worldwide, royalty-free right and license (or sublicense) to use, copy, translate, make derivative works of, modify, make available (communicate), distribute by all means, media and support, display, perform, and transmit all items made available to Aconex and all related Client's and third parties' intellectual and industrial property rights only to the extent necessary for Aconex to use such items and perform its obligations and exercise its rights under this Agreement.
14.2 Deliverables and License to Client. Neither party will gain by virtue of this Agreement any rights or ownership of copyrights, patents, trade secrets, trademarks or any other intellectual or industrial property rights owned by the other. Aconex will retain exclusive ownership in all Deliverables created hereunder and will own all intellectual and industrial property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed under this Agreement. Aconex hereby grants Client for the duration of all related rights a non-exclusive, perpetual, royalty-free, non-transferable right and license to use, copy, display and translate the Deliverables solely in the country(ies) in which Client does business and solely for Client's internal use. To the extent that the Deliverables include Software, Client's license as set forth above is to the object code version of the Software only unless otherwise agreed in the SOW. Aconex may terminate Client's license in the Deliverables upon notice for failure to comply with any material terms of this Agreement. In the event of termination of Client's license, Client will immediately destroy or return to Aconex the affected Deliverables and all partial or complete copies thereof, or provide satisfactory evidence of their destruction to Aconex. Notwithstanding the license grants set forth in this sub-section 14.2, any third party Software incorporated into any licensed Deliverable will be subject to the license terms applicable to such Software and set forth in the Scope of Work.
15. FORCE MAJEURE
15.1 Neither party will be deemed to be in breach of this Agreement, not otherwise liable to the other for failure or delay in performance of this Agreement if it is due to an event beyond the reasonable control of a party to this Agreement other than a strike or lock out but including, acts of God, war, terrorism, fire, flood, tempest.
16.1 Aconex shall not make any announcement, press release or public statement nor use Client’s name in any advertising or promotional material in respect of this Agreement or the relationship of the parties without the prior written consent of Client.
17. ENTIRE AGREEMENT
17.1 This Agreement contains all the terms which the parties have agreed in relation to the subject matter hereof and supersedes any prior written or oral agreements, representations or understandings. Neither party has been induced to enter into this Agreement by a statement or promise which it does not contain save that this Section shall not exclude any liability which one party would otherwise have to the other in respect of any statements made fraudulently by that party.
18.1 This Agreement is governed by the laws of the state of California and the Parties submit to the exclusive jurisdiction of the state and federal courts located in the Northern District of California and any court that may hear appeals from any of those courts, for any proceedings initiated or pursued in connection with this Agreement, and waive any right they may have to claim that those courts are an inconvenient forum.
18.2 No changes to the Services or variation of this Agreement shall be effective unless in writing and signed by an authorised officer of each party.
18.3 Neither party shall assign any part of this Agreement without the express written consent of the other, such consent not to be unreasonably withheld or delayed. Except that Aconex may assign this Agreement, and any of its rights, interests or obligations under this Agreement, in Aconex’s sole discretion, to any direct or indirect wholly owned subsidiary of Aconex, any direct or indirect parent of Aconex or any other affiliate (one in which Aconex its direct or indirect parent or direct or indirect wholly owned subsidiary has a controlling interest) of Aconex.
18.4 If any Section in this Agreement is found by any court or other authority of competent jurisdiction to be illegal, invalid or unenforceable, it shall not affect any other provision of this Agreement which shall remain in full force and effect
18.5 No failure or delay by either party to exercise any right, power or remedy will operate as a waiver of it.
18.6 Products obtained under these terms and conditions may be subject to U.S. and other government export control regulations. Client assures that it will comply with those regulations whenever it exports of re-exports controlled products or technical data obtained from Aconex or any product produced directly from the controlled technical data.
18.7 To the extent that access to the Aconex platform is required to enable the Services to be provided hereunder, and such access is not already contracted separately, then this Agreement provides access to the platform solely to the extent necessary to receive the Services outlined herein, in accordance with the terms of the Aconex Terms of Service Agreement accessible at www.aconex.com/terms_of_service/TSA_Americas_1203.