Services Terms & Conditions

Version 2013.04
[see *Version notes below]

The following are the standard Terms & Conditions under which Attachmate Corporation and NetIQ Corporation (in either case, “Company”) offer professional services to customers requesting such services in association with the implementation of Company’s commercial software products.

These Terms & Conditions shall govern the delivery of any and all professional services by Company except in the case where the statement of work for the services (i) expressly invokes an appropriate signature agreement and (ii) is itself signed by the parties.

1. Statement of Work / Agreement. The parties shall in good faith negotiate the applicable Statement of Work (“SOW”) that describes the services which shall be offered by the Company entity identified in the SOW (“Supplier”) to the customer entity identified in the SOW (“Customer”). Upon signature of the SOW by Customer, the SOW shall be governed by these Terms & Conditions. In the absence of a Customer signature, and at Supplier’s sole discretion, Customer agrees that Customer’s authorization to begin the Services shall be deemed acceptance and “signing by Customer” of the SOW if the authorization is evidenced by a clear and unambiguous Customer writing or by Customer admission of Supplier staff to Customer premises or networks for the purpose of delivering the Services. These Terms & Conditions, in combination with the SOW, constitute the complete agreement between the parties (the “Agreement”). Customer warrants that the individual executing the SOW is a duly authorized representative for Customer. For the purposes of this Agreement, the SOW need not be a single document so titled, but may consist of one or more other signed documents between the parties that in combination (i) include these Terms & Conditions by reference and (ii) effect agreement as to services details and compensation.
   
2. Term.  This Agreement commences on the Effective Date shown on the applicable SOW or, if such date is not explicitly stated, shall commence upon  Customer and Supplier agreement to the SOW (whether by  signature or by conduct as envisioned in Paragraph 1 above) (in either case, the “Effective Date”) , and expires on the earliest of (i) the date that Services are completed, (ii) the date of termination as provided in this Agreement,  or (iii) at a set interval from the Effective Date (such interval to be six months unless otherwise expressly agreed in writing by Supplier) if Services delivery has not started at that time (the "SOW Termination Date").
   
3. Services. “Services” shall mean the services identified in the SOW. If Supplier’s commitment in the SOW is stated in terms of consulting time delivered, “Services” shall mean the services identified in the SOW, as delivered within the agreed quantity of consulting time. Subject to Customer’s payment of the applicable fees and expenses, and Customer’s performance of its Services-enabling obligations hereunder, Supplier agrees to perform the Services. For clarity regarding scope of services:  Supplier does not offer the following kinds of services: Operation of Customer production systems, hosting of Customer production data, or processing of commercial transactions on Customer's behalf.
   
4. Payment for Services.
1. Fees.  For performance of Services, Customer shall pay Supplier the amounts agreed upon and referenced in the SOW (“Fees”), which Fees will not be increased during the term of the SOW except as the parties may agree in writing.
2. No Refund. All Fees are non-refundable and non-cancellable and any pre-paid but unused Services days will expire and be forfeited by Customer six months from the date of purchase.
3. Expenses. Unless otherwise agreed in the SOW, the Fees exclude travel and travel-related expenses, and Customer shall reimburse Supplier for such expenses (if any).
4. Taxes. All Fees exclude taxes. Customer is responsible for all applicable federal, state and local sales, use or other taxes due on the Services rendered hereunder, except for taxes based on Supplier's income.
5. Invoicing and Payment. Fees for the Services will be due and payable within 30 days from the date of invoice. Unless otherwise agreed in the SOW, expenses will be invoiced as incurred.
6. Cancellation Obligations. If the Services are changed or cancelled by Customer, Customer will (i) reimburse Supplier for the full amount of any otherwise-unrecoverable travel-related expenses and charges and (ii) pay any cancellation charges agreed in the SOW.
7. No License fee contingency. No payment of any software license fee shall be contingent upon performance or completion of Services.
   
5. Provision of Services.
   1. Staffing. Services will be performed by qualified personnel directly employed or supervised by Supplier or under subcontract to Supplier and functioning under the general direction of Supplier.
   2. Access. Customer shall make available to Supplier qualified personnel familiar with the work Supplier is undertaking. Customer shall provide Supplier with adequate access to the hardware, software and documentation that are the subject of the Services to be provided under this Agreement. Should the SOW involve Supplier installation of Supplier software products on Customer’s behalf, Customer must separately, and prior to such installation, acquire the necessary software licenses for such products.
   3. Backup. Prior to Supplier’s initiation of Services, Customer shall make back-up copies of its data, software and other materials which may in any way be affected by Services.
   4. Changes. No SOW change affecting the time or cost of performance of the Services shall be effective until the parties have agreed in writing to corresponding adjustments in the time and/or compensation to be paid thereunder.
   5. Supplier Compliance with Rules. While on Customer's premises to perform the Services, and while accessing Customer’s computer systems remotely to perform the Services, Supplier's personnel shall abide by all reasonable rules and regulations of Customer applicable to the use of Customer's premises and access to Customer’s computer systems to the extent that such rules and regulations have been effectively communicated to Supplier in writing. Rules introduced subsequent to SOW acceptance will require SOW adjustment if Supplier reasonably determines that such rules will affect the time or cost of performance.
   6. Customer Compliance with Rules. Customer shall comply with all applicable health and safety laws and provide safe workspace for Supplier’s personnel.
   7. Suspension for Non-payment. Supplier may suspend its performance if Customer is delinquent in the payment of a Supplier invoice delivered pursuant to this Agreement and fails to cure such delinquency within 5 business days following written notice thereof.
   8. Delivery Dates.  Any specific date referenced in the SOW in association with a deliverable or a milestone is an estimate unless clearly distinguished in the SOW as a committed date.
6. Confidentiality and Data Protection.
   1. Scope.  Each party (a "Recipient") shall (i) keep confidential and secure the non-public information (“Confidential Information”) of the other party ("Discloser"), (ii) use the Discloser's Confidential Information only for the purposes of performing its obligations or exercising its rights under this Agreement, (iii) disclose the Discloser's Confidential Information only to its, and its subsidiaries' or parent company's, employees and contractors who need to know such information solely in connection with item (ii) above and who are themselves subject to reasonably equivalent confidentiality agreements. Confidential Information shall include any source code provided by Supplier, and Customer’s customer data.
   2. Exclusions.  "Confidential Information" does not include information that (i) is or becomes a part of the public domain through no wrong act or omission of the Recipient; (ii) was in the Recipient's lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on disclosure; or (iv) is independently developed by the Recipient without use of the Discloser's Confidential Information.
   3. Data Protection. Each party shall comply with its respective obligations under applicable data protection legislation. The parties agree that within the scope of Services delivery (i) Customer will remain the controller of protected data; (ii) Supplier will process protected data only under Customer instruction; and (iii) Supplier will be operating under Customer direction and authority in any implementation of data flows or data handling rules designed or approved by Customer.
      
7. Ownership and License Grant.
   1. Customer Materials.  Customer retains all right, title, and interest in and to Customer's preexisting proprietary business information ("Customer Materials").
   2. Supplier Materials.  Except with respect to the licenses granted to Customer under this Agreement, Supplier retains all underlying intellectual property right, title and interest in and to the materials developed by Supplier in performing the Services ("Supplier Materials"). To the extent that any material developed under this SOW is a compilation incorporating Customer Materials, Supplier shall have no right to use or reproduce such compilation for any purpose other than the delivery of the Services.
   3. License Grant to Supplier Materials.  Subject to the terms and conditions of this Agreement, Supplier grants to Customer a worldwide, non-exclusive, royalty-free, non-transferable, perpetual license to reproduce and use the Supplier Materials solely for Customer's own internal business purposes.
   4. Other Licenses. This Agreement does not affect or modify any software license agreements. Customer agrees that if it fails to acquire licensing for Supplier software products as necessary for Services delivery, any Supplier-provided copy of such software is an evaluation-only and time-limited copy governed by the terms of its accompanying software license agreement ( a copy of which will be provided on request).
   5. Customer Ownership Exception. Notwithstanding the foregoing provisions of this Section 7, Customer ownership of a named deliverable may be expressly agreed in the SOW provided that such deliverable (i) is unambiguously defined in the SOW, (ii) incorporates no portion of any Supplier commercial software product and (iii) has operational value independent of any Supplier commercial software product, and provided that the SOW is signed by Supplier and also by Company.
      
8. Warranty and Exclusion.
   1. Warranty. Supplier warrants to Customer that the Services performed by Supplier will be performed using reasonable skill and care and in conformity with prevailing industry standards. Supplier's warranty shall expire 30 days after the applicable SOW Termination Date. Supplier's warranty shall only be effective if Customer notifies Supplier of the breach of warranty within 30 days after the applicable SOW Termination Date. Supplier's sole and exclusive obligation for breach of warranty shall be, at Supplier's option, to (a) use commercially reasonable efforts to re-perform the nonconforming portion of the Services in a manner that conforms with the warranty, or (b) refund to Customer the fees paid by Customer to Supplier for the nonconforming Services. The remedies set forth in this paragraph are Customer's exclusive remedies for any breach of warranty.
   2. Exclusion of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY STATED IN THIS SECTION IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, WITH RESPECT TO THE PROJECT OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY SUPPLIER. SUPPLIER DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. SUPPLIER DOES NOT WARRANT THAT THE DELIVERABLES WILL CONTINUE TO OPERATE AS DESIGNED IF CUSTOMER MAKES CHANGES TO THE OPERATING ENVIRONMENT, OR TO THE DELIVERABLES ITSELF, BEYOND THE SCOPE OF THE SOW.
9. Non-solicitation of Staff. Without the prior written consent of the other, neither party shall purposely, directly or indirectly, solicit, hire or engage any personnel or subcontractor of the other who are or have been assigned to perform work under the applicable SOW and this Agreement until 1 year after the SOW Termination Date. Each party acknowledges that the personnel of the other represent a significant investment in recruitment and training, the loss of which would be detrimental to that party's current and future business and profits. The parties further recognize that determining the damages in the event of a breach of this provision is very difficult and therefore agree that if the other breaches this provision and hires or engages personnel of the other covered hereunder, the sole remedy shall be for the  breaching party to pay to the other as damages for the breach an amount equal to 40% of the annual compensation of the person based on the rate of pay as of the last day of work at the non-breaching party.
   
10. Termination for Breach.  Either party may terminate this Agreement for the other party's material breach of this Agreement by providing the breaching party with written notice of termination (detailing the breach), subject to a 30 day cure period. If the breaching party does not cure such breach within such cure period, this Agreement will automatically terminate upon the expiration of such cure period. Notwithstanding the foregoing, either party may terminate this Agreement immediately for the other party’s material breach that by its nature lacks opportunity for cure (for example, breach of confidentiality terms).
    
11. Force Majeure. Supplier and Customer shall be excused from performance for any period during which, and to the extent that, it or its subcontractors are prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures.
    
12. Liability.
    1. EXCEPT AS OTHERWISE PROVIDED IN 12(c), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. EXCEPT AS OTHERWISE PROVIDED IN 12(c), IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAYABLE TO SUPPLIER PURSUANT TO THIS AGREEMENT.
    3. The exclusions and limitations in 12(a) and 12(b) shall not apply to: (i) damages or other liabilities arising out of or relating to a party's failure to comply with its obligations under 7 (Ownership and License Rights); (ii) damages or other liabilities arising out of or relating to a party's failure to comply with its obligations under 6 (Confidentiality); (iii) damages or other liabilities arising out of or relating to a party's gross negligence, willful misconduct or intentional acts; (iv) death or bodily injury or damage to real or tangible personal property resulting from a party's negligent acts or omissions.
13. No Support Obligation. Except as the parties may have separately agreed, or as specifically agreed in the SOW, Supplier shall have no obligation to provide support services of any kind for the delivered Services.
    
14. Subcontractor. This paragraph applies if Customer is subcontracting Supplier to perform services for a third party. In such case, the applicable SOW shall clearly state such purpose, and shall clearly identify such third party (the “End Customer”), and the following amendments to the terms above shall apply: (a) All Customer obligations associated with End Customer technical working environments and data protection are agreed to be End Customer obligations which Customer shall pass through to End Customer or shall otherwise effect on behalf of End Customer; and (b) As regards the section titled “Ownership and License Grant”, the word “Customer” shall be read to mean Customer or End Customer as the case may apply, except that in the sub-section titled “License Grant to Supplier Materials” the license grant is to End Customer, and Customer shall have temporary license rights to use Supplier Materials only as necessary to any Customer participation in Services delivery. Customer acknowledges that Supplier’s willingness to provide Services to End Customer relies upon Supplier’s expectation that Customer’s terms with End Customer are consistent with these Terms & Conditions and sufficient to protect Supplier’s interests as if Supplier and End Customer had entered into these terms directly. Customer warrants that its terms with End Customer are consistent with these Terms & Conditions.
    
15. General.
    1. Entire Agreement.  This Agreement is the complete agreement between the parties and supersedes (i) all prior, existing or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement, and (ii) any and all different, conflicting or additional terms of Customer's purchase order documentation. The Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement. This section shall not exclude any right to rescind this Agreement that may result from the other party’s fraud or fraudulent misrepresentation or concealment.
    2. Governing Law. This Agreement shall be governed by the laws of Washington State, exclusive of choice of law rules, except as Section 17 (International Amendments) may apply.
    3. Severability / Waiver.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
    4. Notices. All notices pertaining to this Agreement shall be in writing and sent ATTN: Legal Department at the addresses set forth in the SOW and shall be deemed to have been received upon confirmed delivery by any reputable delivery service.
    5. Attorneys' Fees. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, except as may be locally mandated, the prevailing party will be entitled to recover its reasonable costs, including reasonable attorneys' fees.
    6. Assignment. Without prejudice to Sections 5 Paragraph (a) (“Staffing”) and 14 (“Subcontractor”), neither party may assign or delegate its rights and obligations under this Agreement to any third party without the prior consent of the other party to this Agreement (which consent shall not be unreasonably withheld); provided, however, that either party may assign this Agreement without the other party’s consent in the event of merger or acquisition of all or substantially all of the assigning party’s assets.  All provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and permitted assigns of Supplier and Customer.
    7. Independent Contractor. Supplier is, and throughout the term of this Agreement shall be, an independent contractor, and not an employee, partner or agent, of Customer. Supplier personnel shall not be entitled to nor receive any benefit normally provided to Customer's employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Customer shall not be responsible for withholding income or other taxes from the payments made to Supplier. Supplier agrees to indemnify and hold Customer harmless for any claims relating thereto.
    8. Export Compliance.  As regards Supplier Materials, Customer shall comply with all applicable export and import laws, including those of the United States.
    9. Survival. The following terms shall survive any termination of this Agreement: Section 4 (“Payment for Services”); Section 6 (“Confidentiality”); Section 7 (“Ownership and License Grant”); Section 8 (“Warranty”); Section 9 (“Non-solicitation of Staff”); Section 12 (“Liability”); Section 15 (“General”).
    10. Precedence. In case of conflict between the SOW and these Terms & Conditions, the Terms & Conditions shall prevail, except that the SOW may override the Terms & Conditions by explicitly stating the intention to do so with reference to the section or paragraph of the Terms & Conditions that is the subject of the override.
16. Essence of the Bargain. Supplier’s primary business is the development and licensing of commercial software products, and Supplier offers professional services primarily for the purpose of enhancing customer success in implementing such products. Supplier is therefore willing to enter into this Agreement and perform Services for Customer only in consideration of and in reliance upon the provisions of this Agreement limiting Supplier's exposure to liability, and reserving Supplier’s rights in developed materials. Such provisions constitute an essential part of the bargain underlying this Agreement and have been reflected in the nature and pricing of the Services. Customers seeking other terms should contact Supplier regarding availability and pricing of custom terms.
    
    
17. International Amendments.
1. For Customers located in Europe, the Middle-East and Africa, the Agreement will be governed by the law of the country in which Customer has its principal place of business, where that country is 1) a member-state of the European Union or 2) a member-state of the European Free Trade Area or 3) the Republic of South Africa.  In any other case within Europe, the applicable law shall be the law of the Federal Republic of Germany, with venue in Düsseldorf.  Within the Middle-East and Africa (excluding the Republic of South Africa) the applicable law shall be English law.  An action at law under this Agreement may only be brought before a court of appropriate jurisdiction in the country whose law governs this Agreement as above.
2. For Customers located in Asia Pacific, the Agreement will be governed by the substantive law, excluding the private international law rules, of the country of principal residence of Customer and, where applicable, the state of principal residence in the country of principal residence of Customer.  An action at law hereunder may only be brought before a court of appropriate jurisdiction in the state whose law governs the Agreement.
   
   

*Version Note. This posted statement of Services Terms & Conditions may be changed from time to time, as indicated by a new “Version” header at the top of the page. Customer shall have the right to attach to the SOW any Version posted at this address at the time of, or subsequent to, Supplier’s presentation of the associated quotation for Services. In the absence of a Version reference in the SOW, the applicable Version shall be that posted at the time of SOW acceptance by the Customer.