PROFESSIONAL SERVICE AGREEMENT
SUPPLEMENTAL TERMS AND CONDITIONS
Last Modified: February 22, 2022
1.) You confirm that you are of legal age and have the legal capacity to enter into and be bound by the Agreement on behalf of yourself or your company (if applicable).
2.) You agree to the use of all forms of electronic communication for purposes of (a) entering into the Agreement; (b) ordering Supplemental Services; and (c) delivery of invoices, notices, records, and any other information.
3.) You hereby waive any legal requirement that may require an original or non-electronic signature or agreement or delivery or retention of documents in paper format.
The Agreement begins upon your acceptance of these Terms and will terminate automatically upon completion by SoftwareKey of the Supplemental Services required by the Agreement. Supplemental Services may be provided on a one-time basis or on a recurring basis as mutually agreed to by the parties.
STATEMENTS OF WORK
Some tasks which comprise the Supplemental Services and the deliverables that will result from such Supplemental Services shall be stated in one or more Statements of Work (“SOW”), which is to be signed by both parties and incorporated by reference herein. By executing the SOW, you agree on behalf of yourself and your company (if applicable) that the SOW will be governed by the Agreement.
SoftwareKey shall provide the Supplemental Services in accordance with the requirements of the applicable SOW. SoftwareKey shall have no obligation under the Agreement to perform any Service that SoftwareKey determines in its sole discretion requires a SOW if a SOW is not signed by the Client. The parties may mutually agree from time to time on additional SOWs. In the event of any conflict between the terms of the Agreement and any SOW, the terms of the SOW will govern.
Unless otherwise agreed to in the SOW, any request to modify a SOW must be in writing and must specify the desired modifications (“Change Request”). No Change Request will become effective, and SoftwareKey will not have any obligation to perform the Supplemental Services as modified by the Change Request, unless mutually agreed to by both parties in writing.
Unless otherwise specified in a SOW or other mutually agreed upon writing signed by both parties, either party will have the right to terminate the Agreement, with or without cause, at any time prior to the completion of the Supplemental Services by giving the other party thirty (30) days prior written notice of such termination (“Early Termination”).
In the event of Early Termination by either party, you agree that you will pay all fees due SoftwareKey for all Supplemental Services performed up to and including the date of termination. If we have started to provide Supplemental Services to you, no refund will be provided for Supplemental Services provided before the date of termination. Set-up and similar fees will not be refunded. You will also reimburse us for all expenses incurred by us in the performance of Supplemental Services under any applicable SOW and which are or would be due if Early Termination had not occurred.
In the event of any Early Termination of the Agreement, SoftwareKey may:
- Declare all amounts owed to it to be immediately due and payable; and
- Cease or suspend performance of all Supplemental Services.
The foregoing rights and remedies shall be in addition to all other rights and remedies available to SoftwareKey in law and in equity.
FEES AND PAYMENT
Fees may be charged (a) in advance of us providing a Service or (b) on a periodic basis. Set-up fees, activation fees, installation fees and other non-recurring charges will typically be charged at the time of purchase. Recurring Fees may be billed in advance and usage charges will be billed in arrears.
Payment shall be made to Concept Software, Inc. and shall be submitted to the “Bill To” address shown on the Invoice. Unless otherwise stated in a SOW, payment is due no later than thirty (30) days from the date of invoice. If there is no invoice, payment is due at the time of purchase. If SoftwareKey utilizes a collection agency or legal action to recover monies due, you shall reimburse us for any and all expenses incurred, including attorneys’ fees.
HOURS OF OPERATION
SoftwareKey shall be available during the hours of 9:00 a.m. through 5:00 p.m. Eastern Time, Monday through Friday, excluding legal holidays recognized in the city where SoftwareKey is located.
ACCESS TO EQUIPMENT AND USE OF SOFTWARE
If applicable, you authorize us to connect to, access, gather system data, modify hardware and software settings and user profiles, and control your equipment to receive the Supplemental Services, including all associated hardware and software. We may recommend that you acquire, install, and use software that is owned or licensed by SoftwareKey (“SoftwareKey Software”) or third-party licensors, providers, and suppliers (“Third-Party Software” and, together with the SoftwareKey Software, the “Software”). The Software may be provided as part of the applicable fees for the Supplemental Services or for an additional fee. You acknowledge that we may not be able to provide the Supplemental Services if you do not agree to install the recommended Software. You agree that we may download and use the Software and that we may accept applicable end user license agreements on your behalf. When Software is accompanied by an end user license agreement, your use of the Software is governed by the terms of that license agreement and by the Agreement. We may need to update or change the Software from time to time, and you agree to install such updates or changes. We may download and use trial versions of Software that may expire and cease to function unless you purchase a license to continue using such Software. We may, but are not obligated to, remove any Software when we cease to provide Supplemental Services to you. In some instances, your rights to use certain SoftwareKey Software will cease once the Supplemental Services cease. SoftwareKey grants you a revocable, non-exclusive, non-transferable license to use the SoftwareKey Software in connection with the Supplemental Services subject to the terms of any accompanying end user license agreement and this Agreement. You may not make copies of the SoftwareKey Software. You agree that the SoftwareKey Software is the proprietary information of SoftwareKey or its third-party licensors, providers, or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The SoftwareKey Software contains copyrighted material, trade secrets, patents, and proprietary information owned by SoftwareKey or its third-party licensors, providers, or suppliers. You may not decompile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the SoftwareKey Software, or otherwise reduce the SoftwareKey Software to a readable form. SoftwareKey has no rights to the Third Party Software, does not license or sublicense it to you, or warrant it to you.
We provide technical assistance and support for the SoftwareKey Software and hardware in accordance with our policies. We do not provide technical assistance and support to you for Third Party Software.
In connection with the Supplemental Services, we may suggest certain third-party Supplemental Services to you. Your use of any such Supplemental Services is subject to the terms of service of the third-party provider, and you agree that the provider is solely responsible for delivery of its Supplemental Services to you. Violation of a third-party provider’s terms of service may result in the termination of your Supplemental Services.
LIMITATIONS ON USE AND AVAILABILITY OF SUPPLEMENTAL SERVICES
You agree that use of the Service is solely for your personal or company purposes. You shall not modify, sell, resell, loan, lease, rent, subcontract, sublicense, use for timesharing or service bureau purposes, reproduce, sublicense, distribute copies, or otherwise transfer the SoftwareKey Software to any third party or transfer the Supplemental Services to others or use the Supplemental Services to compete with us.
You may not remove or alter any trademark, trade name, copyright, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the SoftwareKey Software.
You acknowledge that this license is not a sale of intellectual property and that SoftwareKey or its third party licensors, providers, or suppliers continue to own all right, title, and interest in and to the SoftwareKey Software and related documentation.
WORK PRODUCT OWNERSHIP
Unless otherwise stated in an SOW or otherwise mutually agreed to by the parties in writing, any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by SoftwareKey in connection with the Supplemental Services will be the exclusive property of SoftwareKey. Upon request, Client will execute all documents necessary to confirm or perfect the exclusive ownership of SoftwareKey to the Work Product.
YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING AND PERFORMING A COMPLETE AND COMPREHENSIVE BACKUP OF ALL DATA AND SOFTWARE STORED ON ANY EQUIPMENT OR DEVICE BEFORE PROVIDING ACCESS TO SUCH EQUIPMENT OR DEVICE TO US AND ALLOWING US TO PERFORM ANY SERVICE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER UNDER ANY CIRCUMSTANCE FOR ANY LOSS, DAMAGE, DESTRUCTION, HARM OR CORRUPTION THAT MAY ARISE FROM OR BE RELATED IN ANY WAY TO THE AGREEMENT, THE SUPPLEMENTAL SERVICES, THE EQUIPMENT OR DEVICE, OR DATA THEREON, INCLUDING CLIENT DATA, BUSINESS INTERRUPTION, WORKS OF LITERATURE, PHOTOGRAPHS, INFORMATION NECESSARY OR MATERIAL TO THE PERFORMANCE OF YOUR OCCUPATION, INTELLECTUAL PROPERTY, PERSONAL IDENTIFYING INFORMATION, SOFTWARE OR HARDWARE.
Neither party or their employees, agents, or representatives will at any time or in any manner, either directly or indirectly, use for their personal benefit, or divulge, disclose, or communicate in any manner, any information that is confidential or proprietary to the other party. Each party and their employees, agents, and representatives will protect such information and treat such information as strictly confidential. This provision will continue to be effective after the termination of the Agreement.
Upon termination of the Agreement, SoftwareKey will return to Client all records, notes, documentation, and other items that were the property of Client but used or controlled by SoftwareKey during the term of the Agreement in performance of its duties under the Agreement.
SoftwareKey shall provide its Supplemental Services and meet its obligations under the Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the Supplemental Services which meet generally acceptable standards in SoftwareKey’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to SoftwareKey on similar projects. If the Supplemental Services fail to conform to the foregoing warranty, written notice of such nonconformity must be received by SoftwareKey within thirty (30) days from completion of the Service, and SoftwareKey will re-preform the nonconforming Supplemental Services. THE REMEDY EXPRESSLY SET FORTH ABOVE IS YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, SOFTWAREKEY DOES NOT WARRANT THE SUPPLEMENTAL SERVICES PERFORMED HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SUPPLEMENTAL SERVICES, AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR PARTICULAR PURPOSE; 3) EFFORT TO ACHIEVE PURPOSE; 4) QUALITY; 5) ACCURACY; 6) NON-INFRINGEMENT; 7) TITLE; 8) MARKETABILITY; 9) PROFITABILITY; 10) SUITABILITY; AND/OR 11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SUPPLEMENTAL SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT, OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SUPPLEMENTAL SERVICES SHALL CREATE ANY WARRANTY.
IN NO EVENT SHALL SOFTWAREKEY (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), OR ITS THIRD-PARTY LICENSORS, PROVIDERS, OR SUPPLIERS, BE LIABLE FOR: (A) ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO OR LOSS OF DATA ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE SUPPLEMENTAL SERVICES EVEN IF SOFTWAREKEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
IN NO EVENT SHALL OUR TOTAL LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SUPPLEMENTAL SERVICES EXCEED THE AMOUNT PAID BY YOU FOR THE SUPPLEMENTAL SERVICES.
CERTAIN JURISDICTIONS’ LAWS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES AND OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU ONLY TO THE MAXIMUM EXTENT ALLOWED BY SUCH LAWS.
Any legal determination that any of the provisions contained in these Terms or the Agreement are void, invalid, or unenforceable shall not affect the validity of any other provisions of these Terms or the Agreement.
The Agreement constitutes the sole and entire agreement between the parties with respect to the Supplemental Services and supersedes all prior agreements, understandings, and commitments, whether oral or written regarding the Supplemental Services.
Neither party shall be considered in default in the performance of its obligations to the extent that the performance of any such obligation is prevented or delayed by any cause that is beyond its reasonable control.
SoftwareKey reserves the right to modify these Terms at any time and at its sole discretion. The Agreement may be modified or amended in writing provided the writing is signed by the party obligated under the amendment.
All notices to SoftwareKey must be given in writing. Such notices shall be deemed to have been given when delivered in person, or three (3) days after being sent by certified mail, return receipt requested, postage pre-paid, or upon delivery by reputable overnight courier, all delivery charges pre-paid. Notices shall be sent to the following email address: firstname.lastname@example.org.
WAIVER OF CONTRACTUAL RIGHT
The failure of either party to enforce any provision of the Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
LINE OF PRECEDENCE
Unless otherwise stated in a writing signed by the parties, if any term or condition listed in the Agreement is in conflict with any other term and condition imposed by us for the purchase of the Supplemental Services, we shall determine in our sole discretion which terms and conditions apply.
While engaged in carrying out other terms and conditions of the Agreement, SoftwareKey is an independent contractor, and not an officer, employee, agent, partner, or joint venture of the Client.
Neither party shall assign any part of this Agreement without prior written consent of the other party. However, SoftwareKey can assign the Agreement without the other party’s consent, to its parent company or to any purchaser of all or substantially all of its assets, or to any successor by way of merger, consolidation, or similar transaction.
WARRANTY OF TITLE
SoftwareKey warrants good title to all materials, supplies, and equipment incorporated in the Supplemental Services.
The Agreement shall be enforced and interpreted under the laws of the State of Florida without regard to conflict of law principles. In any action arising out of the Agreement, you consent to personal jurisdiction, and agree to bring all such actions, exclusively in state or federal courts located in Orange County, Florida.
The Client is prohibited from placing a lien on SoftwareKey’s property.
NO ATTORNEY FEES
Unless otherwise stated herein, in the event any action, suit, or proceeding is brought for the enforcement of, or the declaration of, any right or obligation pursuant to the Agreement or as a result of any alleged breach of any provision of the Agreement, each party shall bear its own costs and expenses, including attorney fees.
The provisions of the Agreement which by their nature survive termination of this Agreement or final completion, including all warranties, indemnities, payment obligations shall remain in full force and effect after final completion or any termination of the Agreement, as will your obligation to pay any fees accrued and owing to us as of termination or expiration.