The following words shall have the following meanings when used in this Agreement:
1.1. Business Day shall mean, Monday through Friday in the location of Customer’s principal place of business, except for ThoughtWorks Holidays.
1.2. Business Hours shall mean, 9:00AM – 5:00PM in the location of Customer’s principal place of business.
1.3. Documentation shall mean the user manual, specifications and explanations of functionality distributed with the Software or made available online by ThoughtWorks.
1.4. Initial Target Response Period means the time period starting from the time that an Issue is first logged with ThoughtWorks and concluding when ThoughtWorks provides the Response.
1.5. Issue(s) shall mean a failure of the Software to materially conform to the specifications described in the Documentation and which has been logged to ThoughtWorks as an issue via an issue ticket tracking system.
1.6. Named Contact means the individual(s) designated by Customer to act as the primary point of contact between ThoughtWorks and Customer. Any Named Contact may be changed by giving ThoughtWorks ten (10) business days prior written notice, via email to email@example.com. Named Contacts must be trained and proficient in the operation of the Software.
1.7. Out-of-Scope shall mean Issues (a) determined not to be related to the Software, (b) attributable to third party software or hardware, (c) caused by any of the following: use of the Software on unsupported platforms (such as browser, OS, and networking); use of the Software on hardware/software configurations that do not meet the system requirements specified by ThoughtWorks; failure resulting from misapplication or abnormal use as determined by the user instruction, manual or specification provided by ThoughtWorks or virus introduced by third parties or Customer, any repair, adjustment, alteration, or modification of the Software without ThoughtWorks’ prior written consent (the availability of macros, macro development capabilities, plugins, APIs and certain Software source code shall not be deemed to be ThoughtWorks’ consent to any repair, adjustment, alteration or modification of the Software for purposes of Maintenance and Support); environmental issues outside of ThoughtWorks’ control, including without limitation network and file system permissions, network topology or CPU capacity. For further clarity with regard to plugins for the Software, as a general matter, plugins for the Software are not ThoughtWorks’ software; plugins are written by third parties and are distributed under license from the copyright holder. In addition, notwithstanding who the copyright holder is, if ThoughtWorks makes plugins available for download, these plugins are made available “as is and as available”, without warranties of any kind, either express or implied, including but not limited to the implied warranties of merchantability, satisfactory quality, and fitness for a particular purpose. ThoughtWorks does not endorse, recommend or provide support for any plugins other than the officially maintained ThoughtWorks plugins; and ThoughtWorks accepts no responsibility with regard to functionality, bugs, data loss, security or any other problem associated with plugins that are not officially maintained by ThoughtWorks. You can see which plugins are officially maintained by ThoughtWorks at http://www.go.cd/community/plugins.html.
1.8. Response shall mean the first report delivered to Customer by ThoughtWorks after an Issue has been received.
1.9. Software shall mean the source and object code of a version of the open source software known as “Go,” distributed by ThoughtWorks, which is designated by ThoughtWorks as an “Extended Support Version” and has been provided to the public by ThoughtWorks within the 6 months prior to the Issue being logged to ThoughtWorks as an issue via an issue ticket tracking system.
1.10. Term shall mean collectively, the Initial Term and all Renewal Terms hereunder.
1.11. Third-Party shall mean a party other than ThoughtWorks.
1.12. ThoughtWorks Holidays means the days listed at http://support.thoughtworks.com/entries/53932200-Support-Holiday-Schedule.
1.13. Workaround shall mean a change in the procedures followed or input parameters supplied by Customer to avoid the Issue and to provide a result similar or identical to the operation of the Software as if the Issue had not occurred.
ThoughtWorks will use reasonable efforts to respond to the Issue from the Named Contacts within the Initial Response Period below. All Support will be provided in the English language, only. Customer shall provide ThoughtWorks with all reasonably requested assistance to enable ThoughtWorks to understand Customer’s Software and hardware configuration and to recreate the Issue in a test environment.
An “Urgent Severity Issue” causes i) the Software to be completely unusable or inoperable and ii) no workaround exists.
A “High Severity Issue” causes i) a critical function in the Software to be impeded or restricted and ii) no workaround exists.
A “Normal Severity Issue” is an Issue that i) causes the Software to demonstrate a failure preventing the normal use of certain function(s) and ii) a reasonable workaround exists.
A “Low Severity Issue” is an Issue that i) does not impede normal function of the Software but may be an inconvenience or ii) is a limitation or defect in a function or of the Software that is not an Urgent, High or Normal Severity Issue and iii) a practical workaround is available for an indefinite period of time.
3.1. Term. The term of this Agreement shall be as set forth in the applicable Support Schedule.
3.2. Non-Renewal. Any renewal of this Agreement shall be as set forth in the applicable Support Schedule.
3.3. Material Breach. With the exception of monetary breaches as described in Section 3.4, either party may terminate this Agreement upon fourteen (14) days written notice in the event of a breach of any other material provision of this Agreement by the other party, provided that, during such fourteen (14) day period, the breaching party fails to cure such breach.
3.4. Monetary Breach. If a party fails to make a monetary payment as specified in this Agreement, the non-breaching party shall notify the other party of such failure and if the breaching party fails to cure such breach within five (5) days, the non-breaching party may terminate this Agreement.
4. Fees, Invoices, Payment Taxes
4.1. Fees. Support Fees are those fees set forth in the applicable Support Schedule and payable by Customer to ThoughtWorks in consideration of ThoughtWorks’ provision of the services described in the applicable Support Schedule. ThoughtWorks reserves the right to alter the Support Fees by providing Customer with written notice at least ninety (90) days prior to the annual renewal date.
4.2. Invoices. ThoughtWorks shall invoice Customer annually for Support Fees and in advance for all pre-approved Expenses. Any such invoice shall be payable by check or wire transfer or ACH within the time set forth in the applicable Support Schedule. Late payments shall accrue interest at a rate of the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by law.
4.3. Expenses. ThoughtWorks shall not incur any expenses without Customer’s prior written approval. Customer shall reimburse ThoughtWorks for all pre-approved materials and reasonable out-of-pocket expenses it incurs in connection with the performance of its obligations under this Agreement (“Expenses”).
4.4. Taxes. There shall be added to the charges provided for in this Agreement amounts equal to any taxes, whether federal, state, or local, however designated, that may be validly levied or based upon this Agreement or upon the software, hardware, and Services furnished hereunder, excluding, however, taxes based on or measured by ThoughtWorks’ net income, and any taxes or amounts in lieu thereof paid or payable by ThoughtWorks in respect of the foregoing. Taxes payable by Customer shall be billed as separate items on ThoughtWorks’ invoices and shall not be included in ThoughtWorks’ fees or prices. Customer shall have the right to have ThoughtWorks contest with the imposing jurisdiction, at Customer’s expense, any such taxes that Customer deems are improperly levied.
5.1. Warranty. ThoughtWorks warrants that all Services will be performed in a professional manner with due care, skill and diligence using qualified professional personnel.
5.2. Malicious Code. ThoughtWorks shall not transmit to Customer, or cause any Customer system to be exposed to any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”). ThoughtWorks shall notify Customer in writing and in reasonable detail immediately upon becoming aware of ThoughtWorks transmitting any Malicious Code to a Customer system, ThoughtWorks shall cooperate with Customer, at ThoughtWorks’ expense, to assist Customer with removal of the Malicious Code and repair any corrupted files or data.
5.3. Remedy. As Customer’s sole and exclusive remedy for breach of this warranty, ThoughtWorks will re-perform the defective Services in a manner that confirms with the warranty in Section 5.1 of this Agreement, at no additional cost to Customer.
5.4. Disclaimer. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE, WITH NO WARRANTY OF ANY KIND, AND THOUGHTWORKS, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY WARRANTY AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, OR NON-INFRINGEMENT AND THOUGHTWORKS AND ITS SUPPLIERS AND LICENSORS DO NOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES. THOUGHTWORKS DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR OR DEFECT FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED.
5.5. Indemnity. ThoughtWorks will defend or settle, at its expense, any action brought against Customer based upon the claim that the Services, when used in accordance with this Agreement, infringe an issued U.S. patent or registered copyright; provided, however, that: (i) Customer notifies ThoughtWorks promptly in writing of any such claim; (ii) Customer does not enter into any settlement related to any claim without ThoughtWorks’ prior written consent; (iii) ThoughtWorks has sole control of any claim and all related settlement negotiations; and (iv) as requested, Customer provides ThoughtWorks with all information and assistance necessary to settle or defend the claim.
5.6. Liability.5.6.1. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES, EITHER IN CONTRACT OR TORT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES, EVEN IF THOUGHTWORKS IS ADVISED OF THE POSSIBILITY. IN ADDITION, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE AMOUNT PAID OR TO BE PAID BY CUSTOMER UNDER THIS AGREEMENT. TO THE EXTENT THAT LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, CAUSED BY FRAUDULENT MISREPRESENTATION OR DECEIT, OR ANY OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, NEITHER PARTY EXCLUDES OR LIMIT ITS LIABILITY.
6.1.1. As used in this Agreement, “Confidential Information” means all information, and all documents and other tangible materials and things which record it, relating to, or used in either party’s business, whether or not Trade Secret Information (as defined below), and whether owned by either party, any of their clients, or any third party vendor, which is not generally known to the public, or to either party’s or their clients’ competitors, and was disclosed to either party to this Agreement by the other party. Confidential Information includes, without limitation, the following especially sensitive types of information which are owned or used by either party, or owned by either party’s clients, or third party vendors: (1) business channels, business plans, product development and marketing plans, advertising programs, and planning and merchandising strategies; (2) technical information, including formulae, pricing information, processes and methods of production; (3) Trade Secret Information (as defined hereafter), manuals, ideas, know-how, research-in-progress, work-in-progress, prototypes, and the like; (4) the identity, purchase and payment patterns of, and special relations with, customers and prospective customers; (5) the identity, net prices and credit terms of, and special relations with, suppliers and shippers; (6) computer programs, software, computer systems, computer logic, algorithms, individual computer designed features, computer or software features, methods, processes, program or system documentation, data, object codes and source codes and system or software design criteria; (7) business records and financial information; (8) information relating to hiring procedures and assessments; (9) personally identifiable information of employees; and (9) any other information or documents which either party reasonably regards as being confidential.
6.1.2. As used in the Agreement, “Trade Secret Information” means Confidential Information, and all documents and other tangible materials and things which record it, and which: (1) has economic value, actual or potential, from not being known by others who could obtain economic value from its disclosure or use; and (2) is the subject of reasonable efforts to maintain its secrecy.
6.1.3. Excluded Information. Confidential Information does not include information which: (i) is in or comes into the public domain other than as a result of a disclosure by the party hereto to whom it was disclosed pursuant to this Agreement (the “Receiving Party”), (ii) was known or within Receiving Party’s possession prior to its being furnished by or on behalf of the other party hereto (the “Disclosing Party”), (iii) becomes available to the Receiving Party from a source other than the Disclosing Party or any of its representatives, provided that such source is not, to the Receiving Party’s knowledge, bound by an obligation of confidentiality to the Disclosing Party or any other party with respect to such information, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
6.1.4. Use and Disclosure. The parties will use Confidential Information of the other party solely for the purposes of evaluating the advisability of an engagement or in the course of the engagement itself, shall keep it confidential, and will not, except as set forth in the following paragraph, disclose any of the other party’s Confidential Information in any manner whatsoever. Nothing in this Agreement is intended to grant any rights under any patent, copyright or other intellectual property rights of any party in favor of the other, nor shall this Agreement be construed to grant any party any rights in or to either party’s Confidential Information, except the limited right to use such Confidential Information in connection with the proposed relationship between the parties.
6.1.5. Further Exceptions. Either party may disclose Confidential Information without being in violation of this Agreement under any of the following circumstances: (i) with the prior written consent of the Disclosing Party; (ii) to its employees, representatives, consultants or agents, solely for the purpose of assisting the Receiving Party with the engagement, but only if such person has been informed of the confidential nature of the Confidential Information and is obligated to maintain its confidentiality; or (iii) as required by law, legal process or the rules of any applicable stock exchange, in which event the Receiving Party shall give the Disclosing Party prompt notice thereof so that the Disclosing Party may seek a protective order and/or waive the duty of nondisclosure (except to the extent that the Receiving Party’s provision of such notice would cause it to violate a court order or other legal requirement); provided that in the absence of such order or waiver, if the Receiving Party or any such representative shall, in the opinion of its counsel, stand liable for contempt or suffer other censure or penalty for failure to disclose, disclosure pursuant to the order of such tribunal may be made by the Receiving Party or its representative without liability hereunder.
6.1.6. Return of Information. At any time upon request of a Disclosing Party for any reason, the Receiving Party will promptly destroy or deliver to the Disclosing Party all documents (and all copies thereof) furnished to the Receiving Party by or on behalf of the Disclosing Party, and all documents created by the Receiving Party in reliance on documents and information furnished to the Receiving Party by or on behalf of the Disclosing Party. Notwithstanding the return of the Confidential Information the Receiving Party will continue to be bound by its obligations of confidentiality and non-use hereunder. Provided the Receiving Party continues to comply with this Agreement, the Receiving Party may retain any Confidential Information that: (a) is included in any back ups made in the ordinary course of its business which are not capable of ready search and deletion; (b) the Receiving Party is required by law or any Regulatory Requirement to retain, or needs to retain to defend itself in any proceeding being brought or threatened against it at the time the Confidential Information must be returned or destroyed; or (c) the Receiving Party is required to retain for its own reasonable internal credit, risk, insurance, taxation or record-keeping purposes.
6.1.7. Injunctive Relief. It is agreed that the unauthorized disclosure or use of any Confidential Information will cause immediate or irreparable injury to the parties, and that the parties cannot be adequately compensated for such injury in monetary damages. The parties therefore acknowledge and agree that, in such event, either party shall be entitled to any temporary or permanent injunctive relief necessary to prevent such unauthorized disclosure or use, or threat of disclosure or use.
7.1. Ownership of Existing Intellectual Property. Except as expressly stated in this Agreement, the ownership of the Intellectual Property Rights of each of the Parties as at the date of commencement of this Agreement shall not be affected by this Agreement.
7.2. Ownership of Services and Grant of License. ThoughtWorks retains all right, title and interest in and to the Services, including but not limited to any computer software source or object code, ideas, concepts, know-how, methods, documentation, manuals, charts, diagrams, screen displays, schematics, blueprints or drawings that are used, developed or provided to Customer in the course of providing the Services to Customer under this Agreement. Customer agrees that Customer shall assign to ThoughtWorks all right, title, and interest in and to the Services including but not limited to any computer software source or object code, ideas, concepts, know-how, methods, documentation, manuals, charts, diagrams, screen displays, schematics, blueprints or drawings that are created in connection with the performance of the Services.
7.3. Residual Rights. Both parties acknowledge and agree that each party shall retain ownership of, and shall have the unrestricted right to use, any general knowledge, skills, and experience, and any ideas, concepts, know-how, techniques, designs, generalized frameworks, models, and artifacts (“Residual Rights”), which such party obtains in the course of fulfilling its obligations under this Agreement.
Customer represents that it is not located in Cuba, Iran, North Korea, Sudan, or Syria and Customer shall not export or re-export any Services rendered by ThoughtWorks under this Agreement to Cuba, Iran, North Korea, Sudan, or Syria. Additionally, Customer affirms that, to Customer’s knowledge, Customer is not included on any list that would cause ThoughtWorks’ export of the Services to Customer to be prohibited by the laws or regulations of the United States, including the Department of Commerce’s (“DOC”) Denied Persons, Entities, and Unverified Lists; the U.S. Department of State’s Debarred List; or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists. Customer agrees to indemnify, to the fullest extent permitted by law, ThoughtWorks from and against any fines or penalties that may arise as a result of any breach by Customer of this provision.
Customer may not assign its rights under this Agreement except in the case of a change in control of Customer, including merger or sale. Customer must give ThoughtWorks sixty (60) days prior written notice of any such assignment. ThoughtWorks may assign its rights and obligations under this agreement for any reason and without the consent of Customer.
Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable and so as to effect the original intent of the parties hereto.
11.1. Any controversy or dispute between the parties shall be settled first by negotiation between a Customer Named Contact and the ThoughtWorks Support Manager. In the event the representatives are unable to resolve the dispute within ninety (90) days, the parties agree to elevate the dispute to their respective Presidents or equivalent officer. If, after sixty (60) days, the parties are still unable to resolve the dispute, the Parties shall participate in mediation pursuant to the then-current JAMS International Mediation Rules. If mediation is unsuccessful, then the Parties will resolve the dispute by binding arbitration before a single, mutually agreed upon arbitrator with at least ten (10) years of experience in the field of software support services, regardless of the amount in dispute. The arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, except as set forth herein. The decision and award of the arbitrator shall be final and binding and the award so rendered may be entered in any court having jurisdiction thereof. The arbitration shall be held in Chicago, Illinois. No damages excluded by or in excess of any damage limitations set forth in this Agreement, including punitive or other non-compensatory damages, shall be awarded. Nothing herein contained shall bar the right of either party to obtain equitable relief from a court of law or equity with regard to a claim under the Confidentiality Agreement.
11.2. This Agreement shall be deemed executed in the State of Delaware, U.S.A., and shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to choice of law or conflict of law principles. For purposes of enforcement of arbitration awards, equitable relief, or if for any other reason litigation is permissible under this agreement, each party hereby irrevocably agrees to the exclusive personal jurisdiction and venue of any court located in the State of Delaware.
No failure or delay by either party in exercising any right, power, or privilege granted under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege granted under this Agreement. The knowing waiver of a Breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
This Agreement can only be modified by mutual written assent of the parties. The parties agree that the terms on either party’s purchase order, invoice or other business forms are not binding on the other party and shall not be of any effect whatsoever and may not affect, alter, or modify the terms and conditions of this Agreement unless they are expressly incorporated into a formal written agreement signed by both parties.
For all purposes hereof and in the performance of its obligations under this Agreement, ThoughtWorks is and shall remain an independent contractor and nothing in this Agreement shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between ThoughtWorks and Customer. Nothing herein shall be deemed or construed to create an employment relationship between Customer and any employee, agent or independent contractor of ThoughtWorks. Neither party shall have any authority to insure any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.