The following Terms and Conditions (“T&C”) shall apply, govern, and be incorporated into this Statement of Work (“SOW”) and shall supersede any and all other terms included therein.
- ACCEPTANCE
Upon execution of this SOW, Customer and TeraSky adopt and accept these T&C.
- SERVICES AND DELIVERABLES
TeraSky shall perform the services and provide the deliverables (individually and collectively, the “Deliverables”) according to the specifications agreed by the parties and listed in the SOW.
- CONSIDERATION
3.1. The fees payable to TeraSky (“Fees”) for the Deliverables shall be as specified in the SOW. TeraSky shall invoice Customer for Fees in accordance with the payment schedule set out in the SOW. The Fees are exclusive of value-added tax, or like taxes now in force or enacted in the future. All taxes, levies, and duties which are applicable to the Customer and arise from or otherwise in connection with any SOW will be borne by the Customer.3.2. Customer shall pay all invoices within 15 days of the end of the month following receipt thereof. Interest at the rate of 1.5% (one and a half percent) per month shall accrue on any amounts not paid when due.3.3. Unless otherwise specified in the SOW, the Fees do not include any payment to third parties for licenses, design, hosting, or subscription fees, etc., which should be paid separately by the Customer.
3.4. TeraSky will be entitled to delay the performance of its undertakings under the SOW until all undisputed payments are settled. In any case of delay in payment, such delay period will automatically extend, respectively, the period to perform any of TeraSky’s obligations under the SOW.
- TERASKY AND CUSTOMER WARRANTIES
4.1. Subject to the terms of these T&C, TeraSky represents and warrants that the Deliverables shall (a) comply materially with the specifications and requirements set forth in the SOW; (b) be of high industry standard quality and be performed in a timely and professional manner; (c) be free from faulty design, workmanship and material; and (d) be performed in accordance with all applicable laws; and (e) shall not knowingly infringe any intellectual property rights or other proprietary rights of any third party.4.2. Notwithstanding anything to the contrary in these T&C, Deliverables containing hardware, licensed software, cloud services, and/or other third-party products shall be dependent upon their availability and subject to the terms and conditions of use and the warranties provided by such third parties.4.3. The Customer represents and warrants that any material provided by the Customer to TeraSky: (i) does not infringe any copyright, trademark, trade secret, source code, patent or any other intellectual property rights of any third party; (ii) is not and shall not be subject to any obligations of any third party; and (iii) complies with all applicable law, rules and regulations.
- INTELLECTUAL PROPERTY
TeraSky retains sole and exclusive ownership of all rights, title and interest to all proprietary methodologies, tools, models, software, applications, documentation, knowhow, trade secrets, inventions or work of authorship now existing and/or conceived or developed independently by TeraSky, excluding Deliverables that are determined as “work for hire” i.e. Deliverables developed and provided specifically for the Customer according to its order as specified in the SOW which shall be the sole ownership of the Customer.
To the extent any TeraSky IP is incorporated into, embedded in, or provided to Customer as part of the Deliverables, TeraSky grants to Customer a perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, modify, and create derivative works of such TeraSky IP solely to the extent necessary for Customer to use and utilize the full benefit of the Deliverables.
- DISCLAIMER OF WARRANTIES
TeraSky shall provide the Deliverables on a best-efforts basis, and all other warranties are specifically excluded, including but not limited to implied warranty of merchantability, fitness for a particular purpose or no infringement.
- CUSTOMER DATA
TeraSky is not responsible or liable for the deletion of or failure to store any Customer data and other communications maintained or transmitted through the use of Deliverables. Customer is solely responsible for securing and backing up its application, project, and Customer Data. TeraSky does not warrant that the operation of the Deliverables will be error-free or uninterrupted.
- LIMITATION OF LIABILITY
TeraSky will not be liable to the Customer or any third party for special, indirect or consequential damage incurred or suffered by the Customer or any third party, arising as a result of or related to the performance of the Deliverables, whether in contract, tort or otherwise. In no event will TeraSky’s aggregate cumulative liability for any claims arising out of or related to the Deliverables exceed the total fees actually paid to TeraSky by Customer for the Deliverables in respect of the semi-annual period (six (6) months) prior to the date the claim arises.
- INDEMNIFICATION
Each party shall indemnify and hold harmless the other party, its subsidiary companies and its respective employees, officers, directors, authorized representatives and stockholders from all claims, costs, liabilities, judgments, expenses, damages or losses resulting from any injury to property or persons due to any act, omission or negligence of such party, its agents, employees or contractors or arising out of its performance of the SOW and/or these T&C or arising out of any breach or alleged breach of the SOW and/or these T&C or any representation or warranty made by such party, its agents, employees or contractors.
- CONFIDENTIALITY
Each party shall hold the Confidential Information of the other in confidence and protect the same with at least the same degree of care, but no less than reasonable care, with which it protects its own most sensitive confidential information. Each party shall use the Confidential Information of the other solely in connection with the exercise of its rights and the performance of its obligations under the SOW and shall restrict disclosure of and access to the Confidential Information of the other to such party’s personnel, agents, and contractors that require access to such Confidential Information in connection with the Purchase Order. Each party shall require its personnel, agents, and contractors to comply with the obligations of confidentiality set forth herein and shall be liable for any failure to so comply.
“Confidential Information” –means all information, including but not limited, to any information both of commercial or technical character, relating to written, visual, oral and electronic information such as models, apparatus, specification, formulae, data, codes, analysis, scientific perspectives, formulations, methods of application, methods of manufacture, designs, documents, drawings, graphics, know-how, letters, electronically transmitted documents and e- mails, pertaining to the collaboration according to this Agreement, in any form, tangible or intangible, supplied in writing, orally or by observation, which may be disclosed by disclosing party to receiving party which is proprietary, a trade secret and/or confidential in nature. Without derogation from the generality of the aforesaid, Confidential Information includes also any document (in paper or electronic form) or written communication (in paper or written form) forwarded by the disclosing party to the receiving party and marked “Confidential” or indicated as such in any other manner.
- NO SOLICITATION
During the term of the SOW and for a period of 12 months thereafter, Customer shall not solicit or encourage any employee, consultant, partner, or contact of TeraSky to terminate their engagement or relationship with TeraSky.
- TERM AND TERMINATION
12.1 Unless otherwise stated in the SOW either party may terminate the SOW upon written notice (a) if the other party becomes insolvent or ceases paying debts, becomes subject to any proceedings under any bankruptcy or insolvency law, or suffers any similar action in consequence of debt, or (b) if the other party materially breaches these T&C and fails to correct the material breach within fourteen (14) days following written notice specifying the material breach and demanding its cure, or (c) for convenience at any time upon thirty (30) days written notice.
12.2 Upon termination of the SOW for any reason, Customer shall immediately pay to TeraSky all amounts owed pursuant to the SOW.
- FORCE MAJEURE
Neither party will be liable to the other for any delay or failure to perform any obligation under the SOW (except for payment obligations) if the delay or failure is due to any cause beyond such party`s reasonable control, including, but not limited to, acts of God, systemic electrical, pandemic, telecommunications or other utility failures, earthquakes, floods, fires, or storms.
- GENERAL PROVISIONS
14.1 Customer acknowledges that the personnel providing the services to Customer under the SOW may perform similar services for other persons or entities.
14.2 TeraSky shall have the sole discretion when defining its personnel seniority level and shall have sole discretion with respect to the availability and identity of its personnel providing the services, provided that TeraSky shall ensure that the personnel is in all cases suitably skilled and qualified.
14.3. These T&C, together with the SOW, constitute the full and entire understanding and agreement between TeraSky and Customer and replace any previous agreement and/or communications between the parties.
14.4. These T&C shall not be amended, modified, or varied by any oral agreement or representation or otherwise other than by a written instrument executed by both parties or their duly authorized representatives.
14.5. No failure, delay, or forbearance of either party in exercising any power or right hereunder shall in any way restrict or diminish such party’s rights and powers under these T&C and/or the SOW or operate as a waiver of any breach or non-performance by either party of any of the terms or conditions hereof.
14.6 All notices shall be in writing, addressed as set forth on the SOW or as otherwise specified by a party in writing, and shall be deemed validly given or served (a) upon personal delivery, (b) confirmed email delivery to the other party,
14.7 The laws of the State of New York shall apply to the SOW and to these T&C, and the sole exclusive place of jurisdiction in any matter arising out of or connected with this SOW and these T&C shall be the competent courts located in New York County, New York, USA.