Cerna Solutions, LLC. (“Cerna”) agrees to provide to customer (“Customer”) implementation, consultation or other professional services (“Services”) as described in a Virtual Administration Order Form, a Services Order Form, or a Statement of Work (each a “SOW”) to which these Services Terms are attached (collectively, this “Agreement”). In the event of any conflict between the terms of the SOW and these Services Terms, these Services Terms shall prevail except for fees, payment and reimbursement of expenses terms if further specified in the SOW. The performance of the Services by Cerna and this Agreement does not supplement, cancel, or alter Customer’s rights, obligations, and responsibilities with respect to third party products under the applicable software license agreement signed between Customer and the manufacturer.
1. Service Fees and Expenses. The fees payable to Cerna for the Services to be rendered will be detailed in the SOW. Cerna will submit invoices to Customer for such fees and related expenses incurred on a weekly basis unless otherwise stated in the SOW. Expenses shall be Customer shall pay amounts invoiced plus applicable taxes within 30 days following receipt of the invoice. Expenses will be invoiced in accord with Cerna’s Travel and Expense Policy.
2. Term and Termination. This Agreement shall continue in effect until either (i) completion of the SOW, or (ii) termination by a party, for its convenience, upon 30 days’ prior written notice. Upon termination, Customer shall promptly pay Cerna for Services rendered, and expenses incurred, through the date of termination.
3. Proprietary Rights and Confidentiality.
3.1 License. Subject to the terms of this Agreement, Cerna grants Customer and Customer’s third parties who may perform work on the Deliverables a perpetual, non-exclusive, non-transferable, non-sublicenseable license to use and modify all programming, documentation, reports, and any other deliverables delivered to Customer as a result of the Services provided under the SOW (“Deliverables”) solely for its own internal use. Except as expressly permitted by applicable law and this Agreement, Customer may not sell, rent, lease, sublicense, timeshare, outsource or otherwise use the Deliverables.
3.2 Mutual Confidentiality. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser’s financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to Cerna, the Deliverables; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees, contractors and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
3.3 Ownership. Excluding Customer Property contained therein, Cerna owns all right, title, and interest in the Deliverables, including all intellectual property rights embodied therein. All business information, systems, software and any other materials provided by Customer under this Agreement (“Customer Property”) remains the sole property of Customer, and Customer grants Cerna a limited, revokable license to Customer Property solely to perform the Services and provide Deliverables under a SOW.
4. Limited Warranty. Cerna warrants that it will perform the Services in conformance with generally accepted practices within the software services industry and in accordance with the SOW for a period of 30 days after delivery unless otherwise stated in the SOW. Customer’s exclusive remedy and Cerna’s entire liability under this warranty shall be for Cerna to re-perform any non-conforming portion of the Services within a reasonable period of time, or if Cerna cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Services under the SOW. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by Cerna in writing. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. CERNA DISCLAIMS ALL OTHER EXSPRES OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION ON LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS OR DATA, OR COSTS OF RECREATING LOST DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR SUCH LOSS OR DAMAGE. IN NO EVENT WILL CERNA’S LIABILITY FOR DIRECT DAMAGES EXCEED AMOUNTS PAYABLE BY CUSTOMER UNDER THE SOW. NONE OF THE ABOVE LIMITATIONS AFFECT THE LIABILITY OF EITHER PARTY FOR A BREACH OF SECTIONS 3, 6 OR 7. NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE ACTION ACCRUED.
6. Infringement Indemnity.
6.1 If a third party asserts a claim against Customer asserting that Customer’s use of a Deliverable in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“Customer Infringement Claim”), then Cerna will, at its own expense: (a) defend or settle the Customer Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer, but only if: Customer promptly notifies Cerna of the Customer Infringement Claim, Cerna retains sole control of the defense of the Customer Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by Cerna. Cerna’s obligations above will not apply if the Customer Infringement Claim is based on (i) the use of the Deliverable in combination with products not supplied or approved by Cerna in writing or in the Deliverable's user manuals, (ii) modification of the Deliverable other than by Cerna, or (iii) the failure of Customer to use any updates to such Deliverable within a reasonable time after such updates are made available to Customer. If Cerna believes a Deliverable may violate a right, then Cerna will, at its expense: (a) modify the Deliverable, or (b) procure the right to continue using the Deliverable, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Deliverable and issue a refund prorated over five years from the completion date of the related SOW.
6.2 If a third party asserts a claim against Cerna asserting that Cerna’s use of Customer Property in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“Cerna Infringement Claim”), then Customer will, at its own expense: (a) defend or settle the Cerna Infringement Claim; and (b) indemnify Cerna for any damages finally awarded against Cerna, but only if: Cerna promptly notifies Customer of the Cerna Infringement Claim, Customer retains sole control of the defense of the Cerna Infringement Claim and all negotiations for its settlement or compromise, and Cerna provides all reasonable assistance requested by Customer.
6.3 This Section contains each party’s exclusive remedy and sole liability for Infringement Claims.
7. Mutual Indemnity. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
8. Hiring of Personnel. The parties acknowledge that Cerna personnel have signed a non-solicitation clause that expressly prohibits solicitation of employment from within Cerna’s customer base. Unless otherwise mutually agreed to by the parties in writing, Customer agrees that it shall not hire or in any way solicit the employment of any member of Cerna personnel directly or indirectly, whether permanently, temporarily, on a part-time basis, as a contractor or otherwise, during the currency of this Agreement and any other agreements between the parties and for a period of one (1) year after the completion or termination of all agreements between the parties. In the event that Customer breaches this clause of this Agreement, Customer agrees to pay immediately to Cerna as a referral fee, and full and final settlement of all claims in relation to breach of this paragraph, a sum equal to fifty percent (50%) of the annual base salary, including bonus, payable by Cerna to the relevant employee immediately before the breach. This paragraph shall apply to any of the parties’ business entities affiliated with either party by ownership or control. Cerna acknowledges that this provision does not apply to individuals responding to general media advertising.
9. Insurance. Cerna will provide and maintain the following insurance, but only for losses arising out of Cerna’s provision of Services under this Agreement:
(a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Services;
(b) Commercial General Liability insurance with one million dollars ($1,000,000) per occurrence combined single limit and two million dollars ($2,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
(c) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
(v) Cyber Liability insurance covering Errors and Omissions in the amount of one million dollars ($1,000,000) for each occurrence and in the aggregate associated with Services performed under this Agreement.
10. U.S. Federal Acquisitions. This Section applies only to acquisitions of the commercial Deliverables subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Deliverables are delivered to the United States Government, the United States Government hereby agrees that the Deliverables qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Deliverables and shall supersede any conflicting contractual terms and conditions. The following Services statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).
11. Export Controls. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Deliverables is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Deliverables under such regulations; d) will not acquire the Deliverables for a person who is restricted under such regulations; e) will not use the Deliverables in contradiction to such regulations; and f) will not use the Deliverables for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Deliverables exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Deliverable is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in Customer forfeiting all rights to the Deliverables.
12. General Terms. All Services performed by Cerna will be performed as an independent contractor. If any provision of this Agreement is held to be unenforceable, the remaining provisions shall nonetheless be enforceable. No failure by either party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of a right. This Agreement shall be governed by the laws of the State of California. Except for assignments to parent entities, merger or sale, or majority owned subsidiaries, neither party may assign or transfer this Agreement, in whole or in part, to any third party without first obtaining the prior written consent of the other party. This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements and understandings, relating to this subject matter. Any amendment or change must be in a writing of the parties. Any additional documents presented to a Cerna employee or consultant by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document adds to or conflicts with this Agreement, it shall be considered null and void.