These Professional Services Terms (the “PS Terms”) govern the professional services (“Professional Services”) to be performed by Xage Security, Inc., a Delaware corporation with a place of business at 445 Sherman Ave., Suite 200, Palo Alto, CA 94306 (“Xage”) for a customer (“Customer) identified in a written order form which references and incorporates these PS Terms (“Order Form) pursuant to a written statement of work agreed to by the parties which specifies the particular Professional Services to be provided (“Statement of Work”). These PS Terms will take precedence over any inconsistent terms in the Order Form or Statement of Work unless such Order Form or Statement of Work expressly identifies the specific term of these PS Terms to be amended.
1. Professional Services.
1.1. Professional Services. Xage shall use commercially reasonable efforts to perform or have performed for Customer the Professional Services specified in the applicable Statement of Work in accordance with these PS Terms. Each Party shall appoint an individual to be the primary point of contact and liaison for matters concerning applicable Statement of Work (“Project Manager”), and a party may change its Project Manager upon written notice to the other party. Xage will provide qualified personnel to perform the Professional Services who are capable of performing the requisite duties and tasks under the Statement of Work. Xage may use subcontractors to perform a portion (or all) of the Professional Services, provided that, the subcontractor agrees to comply with the terms of this Agreement, and Xage will be responsible for any breach of this Agreement by the subcontractor. Xage will use reasonable commercial efforts to remove and replace any personnel who Customer reasonably determines does not have the requisite knowledge or skill to perform the Professional Services. Either party agrees to notify the other party promptly of any factor coming to its attention that may affect Xage’s ability to perform the Professional Services or cause a material delay in the timing of performance of the Professional Services.
1.2. Interaction with Xage License Agreement. In the event that Professional Services provided under these PS Terms are provided in conjunction with a license agreement entered into by Xage and Customer for the provision of the Xage proprietary software (“Xage Fabric”) and related products and support services identified in Customer’s Order Form (the “License Agreement”): (i) the fees for Professional Services are in addition to the license fees payable under the License Agreement; (ii) where applicable, any capitalized terms not otherwise defined herein shall have the meanings set forth in the License Agreement; and (iii) in the event of a conflict between the terms and conditions of the License Agreement and these PS Terms, the parties agree (a) the terms and conditions of these PS Terms specific to Professional Services and related deliverables shall control, and (b) the terms and conditions relating to the parties rights to use the Xage Fabric and other products and services described in the Order Form shall be governed by the License Agreement.
1.3. Installation. If installation services are included in a Statement of Work, Xage shall install and configure Xage Fabric or other Xage Software (or assist or direct such installation and configuration) on the Hardware or Customer’s designated hardware in Customer’s Environment or another location designated in writing by the parties as may be set forth in the applicable Statement of Work. If installation services or other support is to be provided by Xage for Customer, Customer shall provide for Xage’s personnel such system access as may be necessary to complete the agreed installation.
1.4. Customer Responsibilities. Customer will provide qualified personnel who will perform Customer’s duties and tasks under the Statement of Work in a timely manner, and any other duties and tasks as may be reasonably necessary in connection with Xage’s performance of the Professional Services. Customer will provide Xage with the information, data, and other materials that Customer is to provide under the Statement of Work in order for Xage to perform the Professional Services (“Customer Materials”). Customer is responsible for the accuracy and completeness of the Customer Materials. If reasonably needed to complete the Professional Services, Customer will provide access to Customer’s network and system to Xage personnel subject to Customer’s standard security policies and procedures.
1.5. Change Authorization. Any changes to a Statement of Work for Professional Services shall be made only in a writing executed by authorized representatives of both parties (a “Change Authorization”); provided, however, if Xage, at the written request of or with written approval from Customer’s Project Manager, performs work that is not covered by, or that exceeds the scope of Professional Services set forth in the Statement of Work, such work shall be deemed Professional Services provided pursuant to these PS Terms for which Customer shall compensate Xage on a time and materials basis in accordance with Xage’s then current rates.
1.6. Acceptance. If an acceptance test is set forth in the Statement of Work, then the affected deliverables shall be subject to the acceptance procedures set forth in this Section. Customer’s review and acceptance or rejection of the deliverables relating to Professional Services shall be made as promptly as practical, but in no event more than ten (10) days after delivery unless otherwise set forth in the applicable Statement of Work (“Review Period”). Customer acknowledges that delays in performing such review may delay the timing and completion of other deliverables. Any deliverable not rejected by Customer in writing and reasonably detailing the reasons for such rejection within such Review Period shall be deemed accepted. Customer may reject a deliverable only if it does not comply in all material respects with the applicable specifications and acceptance test set forth in the applicable Statement of Work. In the event Customer rightfully rejects any deliverable, Xage shall use commercially reasonable efforts to correct any deficiencies or nonconformities and resubmit the rejected items as promptly as possible until the deliverables are accepted. Except as may be otherwise agreed by Xage in a subsequent Order Form, Xage is not responsible for the obsolescence of any deliverable that may result from changes in Customer’s requirements or any future updates, upgrades or modifications to the Xage Fabric or Hardware. Should the redelivered deliverables still not be accepted, Customer’s sole and exclusive remedy shall be to elect one of the following options (i) allow Xage an additional opportunity to reperform the Professional Services, (ii) revise the applicable specification or acceptance criteria to render the deliverables acceptable; or (iii) terminate the particular Statement of Work and cease use of the rejected deliverables.
2. Fees, Expenses, Payments, Taxes.
2.1. Fees. Unless otherwise stated in the Order Form and/or Statement of Work, Professional Services are provided on a time and materials basis in accordance with Xage’s then-current rates. The estimated fees for Professional Services will be set forth in the applicable Order Form; provided however, that, such fees are estimates are not a guarantee that the project will be completed in the estimated number of hours. Xage will notify Customer if the estimate will be exceeded, and Customer may, at its option, agree to a Change Authorization for additional hours or terminate the applicable Order Form and pay only for Professional Services rendered up through the effective date of termination. Fees for Professional Services do not include any applicable taxes and Customer is responsible for such taxes (other than taxes based on Xage’s income)
2.2. Expenses. Expenses are billed separately, as incurred, and are not part of the Professional Services fees. Xage shall invoice Customer for expenses incurred as a result of performing Professional Services in accordance with any Order Form and/or Statement of Work. Such expenses shall be limited to reasonable out of pocket expenses necessarily and actually incurred by Xage in the performance of the Professional Services. Xage will provide Customer with receipts and other documentation for all expenses incurred. Professional Services are generally performed remotely by Xage unless otherwise agreed by the parties. If Customer approves for Xage personnel to travel to Customer’s location or other site, Customer will reimburse Xage for the travel-related costs and expenses incurred by Xage (including the travel time of Xage personnel). Xage will use reasonable efforts to incur travel expenses in accordance with Customer’s travel and expense policy so long as Customer provides such policy together with or in advance of such travel requests.
2.3. Payment. Unless a different payment schedule is expressly stated in the Order Form and/or Statement of Work, Xage will invoice Customer on a monthly basis for the hours worked in the month, or, if sooner and at Xage’s sole discretion, upon completion of the Professional Services, or upon completion of an identified milestone of the Professional Services. Unless otherwise set forth on the applicable Order Form, all fees and expenses invoiced as set forth above and payable by Customer hereunder are due within thirty (30) days after the date of Xage’s invoice therefor and interest will accrue on any late payments at the rate of 1.5% per month, or the legal maximum, whichever is less
3. Ownership and Licenses.
3.1. Proprietary Rights. Xage owns (and will continue to own) the software programs, tools, utilities, processes, methods, techniques and other materials used or developed by Xage in connection with performing the Professional Services (“Xage Materials”), including the sole and exclusive ownership of all intellectual property rights relating thereto. All Xage Materials will be treated by Customer as Xage Confidential Information, and except for the limited licenses to deliverables set forth below, Xage retains all right title and interest of such intellectual property. Customer owns (and will continue to own) all Customer Materials. All Customer Materials will be treated by Xage as Customer Confidential Information and Customer retains all right title and interest of all intellectual property relating thereto.
3.2. License to Deliverables. To the extent Xage provides Customer any Professional Services deliverables which relate to the Xage Fabric, Customer may use such deliverables with the Xage Fabric in accordance with Customer’s separate License Agreement. Unless otherwise expressly agreed by the parties in the applicable Order Form, for any other Professional Services deliverables, upon Customer’s payment of fees owed, Xage hereby grants Customer a limited nonexclusive, nontransferable, non-sublicensable license to use such deliverables solely for Customer’s internal business purposes, and Customer agrees that it shall not further distribute, disclose, sell of license such deliverables to any third parties. Under no circumstances will the provision of Professional Services to Customer be construed to restrict or limit Xage’s ability to perform similar professional services for other customers.
3.3. Feedback. If Customer make suggestions for improvements, enhancements, features and other information regarding Xage Fabric (collectively, “Feedback”), Customer hereby grants Xage a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s intellectual property rights therein, for Xage to use and exploit such Feedback in any manner and for any purpose. Customer acknowledges that Xage may or may not incorporate Feedback into Xage Fabric or other Xage products and services at Xage’s sole discretion, without restriction and without compensation to Customer.
4. Services Warranty. Xage warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. If Customer reports any deficiencies in the Professional Services in writing reasonably detailing the non-conformance within 30 days from the date of the original performance, then upon Xage’s confirmation of such non-conformance, Xage will re-perform the deficient Professional Services at no additional cost to Customer. XAGE DISCLAIMS ANY IMPLIED WARRANTIES AND EXCEPT AS EXPRESSLY PROVIDED IN THESE PS TERMS, DOES NOT MAKE ANY OTHER WARRANTIES, INCLUDING ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
5. Confidentiality.
5.1. Confidential Information. Each party (“Receiving Party”) acknowledges that the other party (“Disclosing Party”) may disclose or make available to the Receiving Party confidential information and other sensitive or proprietary information and materials such as reference designs, pricing, business affairs, future products/services, customer and prospect lists, know-how, ideas, concepts, designs, drawings, flow charts, diagrams, third-party confidential information and other intellectual property of the Disclosing Party (“Confidential Information“).
5.2. Use and Disclosure. The Receiving Party agrees: (a) not to use Confidential Information other than as strictly necessary to exercise its rights or perform its obligations under these PS Terms, including without limitation not to use any of the Confidential Information, in any manner to the detriment of the Disclosing Party; (b) to maintain Confidential Information in strict confidence and not to disclose any Confidential Information without the Disclosing Party ‘s prior written consent, provided, however, that the Receiving Party may disclose the Confidential Information to its employee, contractors and agents (“Representatives”) who: (i) have a “need to know” for purposes of any performance, or exercise of any rights with respect to such Confidential Information, under these PS Terms; (ii) have been apprised of this restriction; and (iii) are themselves bound by written nondisclosure agreements or obligations at least as restrictive as those set forth in this Section provided, further, that the Receiving Party shall be responsible for ensuring its Representatives’ compliance, and shall be liable for any of its Representatives’ noncompliance; and (c) notify the Disclosing Party in writing immediately of any unauthorized accessing, possession or use of the Confidential Information of which it may become aware and cooperate fully with the Disclosing Party in any investigation or litigation relating to or arising from any of such unauthorized acts. Receiving Party shall use, and ensure that its Representatives use, reasonable care, at least as protective as the efforts it uses with respect to its own confidential information, to safeguard Confidential Information from use or disclosure other than as permitted hereby.
5.3. Exceptions. If the Receiving Party becomes legally compelled to disclose any Confidential Information, it shall: (a) provide prompt written notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy; and (b) disclose only the portion of Confidential Information that it is legally required to produce. If a protective order or other remedy is not obtained, the Receiving Party shall use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.
6. Term and Termination.
6.1. Term. These PS Terms commence upon execution of an initial Order Form and will continue in effect unless terminated earlier as described below.
6.2. Termination.
6.2.1. Either party may terminate an Order Form relating to these PS Terms by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for either party or its property; (b) either party makes a general assignment for the benefit of its creditors; (c) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) either party is liquidated or dissolved.
6.2.2. Either party may terminate an Order Form relating to these PS Terms effective upon written notice to the other party if the other party breaches these PS Terms with respect to such Order Form and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof.
6.3. Effect of Expiration or Termination. Upon termination of these PS Terms for any reason, each Party shall: discontinue all use of and permanently erase or cause to be erased from its computer systems, files and storage media all copies of Confidential Information of the other Party, and upon written request, certify in writing that it has done so. The rights and obligations of the parties set forth in Sections 2, 3.1, 3.3, 5, 6.3, 7, 8 and 9 will survive any such termination. The parties acknowledge if Customer terminates the PS Terms for material breach by Xage, Customer’s obligation to pay fees and expenses shall apply only to the Professional Services actually performed by Xage, and if Xage terminates the PS Terms for material breach by Customer, Customer shall pay all fees and expenses due under the Order Form, whether or not the project described therein is complete.
7. Indemnification. Customer shall defend, indemnify and hold harmless Xage and its officers, directors, employees, shareholders, customers, agents, successors and assigns from and against any and all loss, damage, settlement, costs or expense (including legal expenses and expenses of other professionals), resulting from, or arising out of any third party claim which alleges that the Customer Materials or Customer Environment: (a) has caused or contributed to bodily injury, death or damage to property; (b) violates any applicable laws or rights of privacy; or (c) infringes upon, misappropriates or violates any third party Intellectual Property Right. Xage shall prompt notify Customer in writing of any such claims, give Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of Xage or requires Xage to contribute to the settlement without Xage’s prior written consent. Xage may participate and retain its own counsel at its own expense.
8. Limitation of Liability.
8.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL XAGE OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, PERSONAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH XAGE FABRIC, HARDWARE, THESE PS TERMS OR ANY SUBJECT MATTER HEREOF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THESE PS TERMS FAILS OF ITS ESSENTIAL PURPOSE.
8.2. IN NO EVENT WILL XAGE’S OR ITS SUPPLIER’S LIABILITY ARISING OUT OF OR RELATED TO XAGE FABRIC, HARDWARE, THESE PS TERMS OR ITS SUBJECT MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE FEES PAID TO XAGE FOR THE AFFECTED PROFESSIONAL SERVICES UNDER THE AFFECTED ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
9. Miscellaneous. (a) The relationship of the parties hereto are independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. (b) These PS Terms shall be governed by and construed under the law of the State of California without regard to conflict of laws provisions. The federal and state courts of Santa Clara County, California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this these PS Terms. Each party hereto expressly consents to the personal jurisdiction of the courts of California and service of process being effected upon it by registered mail sent to the address set forth at the beginning of these PS Terms. (c) These PS Terms sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior discussion between them. No modification of or amendment to these PS Terms, nor any waiver of any rights under these PS Terms, will be effective unless set forth in writing signed by officers of both parties hereto. (d) Any notice required or permitted by these PS Terms will be in writing and will be sent by prepaid, registered or certified mail, return receipt requested, addressed to the other party at the address (i) shown at the beginning of these PS Terms, with respect to notices to Xage, and (ii) to Customer’s address set forth on the initial Order Form, or (iii) at such other address for which such party gives notice hereunder. Such notice will be deemed to have been given when delivered or, if delivery is not accomplished by some fault of the addressee, when tendered. (e) Customer may not transfer or assign its rights or obligations under these PS Terms without the prior written consent of Xage. Subject to the foregoing sentence, these PS Terms will be binding upon and inure to the benefit of the parties hereto, their successors and assigns. (f) If any provision of these PS Terms is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision. (g) The failure of either party to enforce at any time any of the provisions of these PS Terms, or the failure to require at any time performance by the other party of any of the provisions of these PS Terms, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.
