PROFESSIONAL SERVICES TERMS & CONDITIONS
THESE PROFESSIONAL SERVICES TERMS & CONDITIONS ("AGREEMENT") ARE EFFECTIVE UPON PREPAYMENT OF CREDITS AND EXECUTION OF THE APPLICABLE STATEMENT OF WORK, OR ACCEPTANCE OF A QUOTATION MAKING REFERENCE TO THIS AGREEMENT. ANY AND ALL REFERENCES TO "CUSTOMER" SHALL BE DEEMED TO MEAN THE CUSTOMER SET FORTH IN AN APPLICABLE STATEMENT OF WORK OR QUOTATION.
THIS AGREEMENT ESTABLISHES THE GENERAL TERMS AND CONDITIONS UNDER WHICH CUSTOMER MAY ENGAGE FLUKE NETWORKS TO PROVIDE CERTAIN PROFESSIONAL SERVICES ("SERVICES") TO CUSTOMER ON A PROJECT BASIS PURSUANT TO A STATEMENT OF WORK ("SOW") OR QUOTATION FOR A SERVICE THAT IS CONTAINED IN A FLUKE NETWORKS STANDARD SERVICE BRIEF.
NETSCOUT shall provide the services described in a SOW or a Standard Service Brief that details and shall control the relationship of the parties with regard to a specific project. A Standard Service Brief will not require a SOW. Each SOW shall (i) be signed by the parties; (ii) incorporate by reference this Agreement; and (iii) state the pertinent business parameters, including, but not limited to, pricing, payment, expense reimbursement, and a detailed description of the Services to be provided. Additional or conflicting legal terms and conditions may only be added by express amendment to this Agreement signed by authorized representatives of the parties, even if they are to apply only to one SOW.
2. TERM AND TERMINATION.
A. Term; Survival. The term of this Agreement commences on the later date of execution of an applicable SOW or for a Standard Service Brief upon receipt and acceptance of a Purchase Order for consulting and training credits, and shall remain in effect unless terminated as provided below. The respective obligations of the parties under this Agreement that by their nature would continue beyond the termination, or expiration of the Agreement, shall survive termination, expiration, including but not limited to sections 2, 3, 4, 5, 6(B), and 7 through 12. Termination of this Agreement or any SOW shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pre-pay credits required for payment of all fees and expenses for all Services performed, including any deliverables associated with such Services, as of the date of termination.
B. Termination for Breach. Either party may notify the other in writing in case of the other's alleged breach of a material provision of this Agreement and or an applicable SOW. The recipient shall have thirty (30) days from the date of receipt of such notice to effect a cure. If the recipient of the notice fails to effect a cure within such period, then the sender of the notice shall have the option of sending a written notice of termination of the applicable SOW(s), or the Agreement if the breach affects multiple SOWs, which notice shall take effect upon receipt.
3. PROPRIETARY RIGHTS.
A. Ownership. Customer shall own all copyright in written reports, analyses and other working papers to the extent created by NETSCOUT in the course of performing Services specifically for Customer, subject to Customer's pre payment for consulting and training credits in full under such SOW or Standard Service Brief and subject to NETSCOUT'S rights in the underlying intellectual property embodied therein or used by NETSCOUT to perform the Services.
B. License Grant. Subject to the terms and conditions of this Agreement, NETSCOUT grants Customer the worldwide, nonexclusive, non-transferable, non-sublicenseable, perpetual, irrevocable (except as set forth in Section 3(C)) right to use and copy materials provided by NETSCOUT in the course of performing Services for Customer's own use pursuant to the applicable SOW. The foregoing license excludes NETSCOUT'S generally available products which are subject to separate license agreement(s).
C. Reservation of Rights. NETSCOUT reserves all rights not expressly granted to Customer in this Agreement. Except as expressly stated, nothing herein shall be construed to (1) directly or indirectly grant to a receiving party any title to or ownership of a providing party's intellectual property rights in services or materials furnished by such providing party hereunder, or (2) preclude such providing party from developing, marketing, using, licensing, modifying or otherwise freely exploiting services or materials that are similar to or related to the Services or materials provided hereunder. Notwithstanding anything to the contrary herein, Customer acknowledges that NETSCOUT has the right to use any Customer-provided materials solely for the benefit of Customer in connection with the Services performed hereunder for Customer.
A. The parties may disclose to each other their confidential and proprietary information which may include, but will not be limited to, information related to new products prior to product introduction, pricing and discount schedules, marketing and other business plans, technical information, drawings, schematics, and financial and other business records, as well as trade secrets ("Proprietary Information"). Both parties will instruct their personnel that all such information gained in connection with this Agreement that is not otherwise previously known to the other or otherwise excluded below in this Confidential Information section, is Proprietary Information which will be disclosed only on a need-to-know basis within each party's organization and shall not disclose it to any third party. The recipient of such Proprietary Information will protect it with the same degree of care, but no less than a reasonable degree of care, as that recipient uses with respect to its own Confidential Information. The disclosing party shall conspicuously mark any document or thing containing proprietary information with a notice that the information is considered proprietary by the disclosing party, and is not to be disclosed to third parties. Further, proprietary information disclosed in confidence by means other than a document should be memorialized in a subsequent document within a reasonable period of time not to exceed two weeks. The failure to mark or designate information as being confidential or proprietary will not waive the confidentiality where it is reasonably obvious, under the circumstances surrounding disclosure, that the Information is confidential or proprietary, and any such information so disclosed or obtained shall automatically be deemed to be confidential and proprietary.
B. The term "Proprietary Information" includes the terms and conditions of this Agreement. The term "Proprietary Information" shall not include information which (1) is publicly disclosed or is in the public domain through no fault of the party receiving the Proprietary Information; (2) was disclosed pursuant to an applicable law or regulation; or (3) was lawfully disclosed to the recipient party without restrictions. The obligation to protect Proprietary Information, except for trade secrets, will survive this Agreement for three years after the date of disclosure to the recipient party. The obligation to protect trade secrets shall survive this Agreement indefinitely.
C.Publicity. Each party shall not, and shall not authorize or assist another to, originate, produce, issue or release any written publicity, news release, marketing collateral or other publication or public announcement, relating in any way to this Agreement or any SOW entered into hereunder, without the prior written approval of the other.
5. PREPAYMENT TERMS.
Customer will purchase credits for consulting and training by sending a Purchase Order in advance of any Professional Service. The credits expire one year from the date of purchase. One (1) credit may be redeemed for $100.00 USD of NETSCOUT’ list price consulting or education services. Credits may also be used for travel and expense, if required, for an engagement.
A. Warranty. NETSCOUT shall perform Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify NETSCOUT of any failure to so perform within ten (10) days after the performance of the Services. NETSCOUT'S entire liability, and Customer's sole remedy, for NETSCOUT'S failure to so perform shall be for NETSCOUT to, at its option, (i) use reasonable efforts to correct such failure, and/or (ii) terminate the applicable SOW or purchase order and refund that portion of any amount received that correspond to such failure to perform.
B. Disclaimer and Exclusions. Except as expressly stated in Section 6(A) above, NETSCOUT (including its suppliers, subcontractors, employees and agents) provides Services "AS IS" and makes no other express or implied warranties, written or oral, and ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
7. LIMITATION OF LIABILITY.
A. Limitation on Direct Damages. FLUKE NETWORK'S TOTAL LIABILITY (INCLUDING THE LIABILITY OF ANY SUPPLIER, SUBCONTRACTOR, EMPLOYEE OR AGENT OF FLUKE NETWORKS), AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO THE PRICE PAID BY CUSTOMER TO FLUKE NETWORKS FOR THE SPECIFIC SERVICE FROM WHICH SUCH CLAIM ARISES.
B. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF FLUKE NETWORKS PROPRIETARY RIGHTS (INCLUDING ANY LICENSE GRANTED THEREUNDER), FLUKE NETWORKS (INCLUDING FLUKE NETWORKS' SUPPLIERS, SUBCONTRACTORS, EMPLOYEES AND AGENTS) SHALL (i) HAVE NO LIABILITY TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; AND (ii) NEITHER PARTY WILL BRING ANY CLAIM BASED ON ANY SERVICE PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
8. EXPORT REGULATIONS. The sale of NETSCOUT commodities, software, technology and Services is subject to and contingent upon compliance with U.S. Export Administration Regulations. Customer may not use or otherwise export or re-export the commodities, software, technology or Services, except as authorized by United States law and the laws of the jurisdiction in which the commodities, software, technology and Services was obtained. In particular, but without limitation, the commodities, software, technology and Services may not be exported or reexported (i) into (or to a national or resident of) any U.S. embargoed country including Cuba, Iran, North Korea, Sudan, Syria or any other countries that may from time to time, become subject to US export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals. The use, sale, re export, delivery or retransfer, directly or indirectly, of the items described herein, in or to any activities related to the design, production, use, or stockpiling of chemical, biological or nuclear weapons or missiles is strictly prohibited.
9. NOTICES. Any notices permitted or required under this Agreement and/or any SOW entered into hereunder shall be in writing, and shall be deemed given when delivered (i) in person; (ii) by overnight courier, upon written confirmation of receipt; (iii) by certified or registered mail, with proof of delivery; (iv) by facsimile transmission with confirmation of receipt; or (v) by email, with confirmation of receipt. Notices shall be sent to the address, facsimile number or email address set forth in the SOW or purchase order.
10. INDEPENDENT CONTRACTORS.
The parties agree that, in the performance of this Agreement, they are and shall be independent contractors. Nothing herein shall be construed to constitute either party as the agent of the other party for any purpose whatsoever, and neither party shall bind or attempt to bind the other party to any contract or the performance of any obligation, or represent to any third party that it has any right to enter into any binding obligation on the other party’s behalf.
11. INSURANCE. During the term of this Agreement with Customer, NETSCOUT shall maintain excess liability (umbrella form), insurance coverage of $2 million each occurrence and $5 million aggregate which coverage shall be applicable to Services provided hereunder. Automobile liability coverage is $3 Million. Workers’ compensation insurance with benefits afforded under the laws of any state in which the Services are to be performed and employers liability insurance at statutory limits. In states where workers’ compensation insurance is a monopolistic state-run system, NETSCOUT has stop gap employers liability with limits not less than $500,000 each accident or disease.
12. MISCELLANEOUS. This Agreement and any SOW(s) entered into hereunder (i) shall constitute the complete statement of the agreement of the parties with regard to the subject matter hereof and (ii) may be modified only by a writing signed by authorized representatives of both parties. Except for the payment of fees, neither party shall be liable under this Agreement or any SOW because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party. NETSCOUT shall not be liable under this Agreement or any SOW because of failure or delay in performing its obligations hereunder on account of Customer's failure to provide timely access to facilities, space, power, documentation, networks, files, software, and Customer personnel that are reasonably necessary for NETSCOUT to perform its obligations. Neither party may assign this Agreement to a separate legal entity, without the other party's written consent. Neither party shall unreasonably withhold or delay such consent; provided, however, that such written consent shall not be required if (i) either party assigns this Agreement to a separate entity in connection with a merger, acquisition, or sale of all or substantially all of its assets with or to such other separate entity, unless the surviving entity of the merger, acquisition, or sale of assets is a direct competitor of the other party. Nothing herein shall limit NETSCOUT'S right to assign its right to receive and collect payments hereunder. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and/or an SOW, shall be null and void and of no legal force or effect. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If any part of this Agreement and/or any SOW entered into hereunder is held unenforceable, the validity of the remaining provisions shall not be affected.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the Washington and the parties irrevocably submit to the exclusive jurisdiction of the courts of the state of Washington and, if federal jurisdiction exists, to the United States District Court for the western District of Washington.
THE PARTIES AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.