Services Terms & Conditions

Version 2008.08
[see *Version notes below]

The following are the Terms & Conditions governing the delivery of professional services by the Attachmate Corporation and NetIQ Corporation families of companies to their customers requesting such services.

1. Statement of Work / Agreement. The parties shall in good faith negotiate the applicable Statement of Work (“SOW”) which shall be offered by an Attachmate Corporation or NetIQ Corporation entity identified in the SOW (“Supplier”) to a customer entity identified in the SOW (“Customer”) and shall upon signing by Customer be deemed to be governed by these Terms & Conditions. In the absence of a Customer signature, and at Supplier’s sole discretion, Customer’s authorization to begin the Services shall be deemed a “signing by Customer” if evidenced by a clear and unambiguous Customer writing or by Customer admission of Supplier staff to Customer premises or networks for the purpose of delivering the Services. These Terms & Conditions, in combination with the SOW, constitute the complete agreement between the parties (the “Agreement”). Customer warrants that the individual executing the SOW is a duly authorized representative for Customer. For the purposes of this Agreement, the SOW need not be a single document so titled, but may instead be constituted by one or more other signature documents between the parties that in combination (i) include these Terms & Conditions by reference and (ii) effect agreement as to services details and compensation.
   
2. Term.  This Agreement commences on the “Effective Date” shown on the applicable SOW, and expires on the date that Services are completed ("SOW Termination Date").
   
3. Services. “Services” shall mean the services identified in the applicable SOW, except that if Supplier’s commitment in such SOW is stated in terms of consulting time delivered, then “Services” shall mean the services identified in the applicable SOW as delivered within the agreed quantity of consulting time. Subject to Customer’s payment of the applicable fees, and Customer’s performance of its Services-enabling obligations hereunder, Supplier agrees to perform the Services.
   
4. Payment for Services.
   1. Fees.  For performance of Services, Customer shall pay Supplier the amounts agreed upon and referenced in the SOW (“Fees”), which Fees will not be increased during the term of the SOW except as the parties may agree in writing.
   2. No Refund. All Fees are non-refundable and non-cancellable and any unused Services days will expire and be forfeited by Customer six months from the date of purchase.
   3. Expenses. Unless otherwise agreed in the SOW, the Fees exclude travel and travel-related expenses, and Customer shall reimburse Supplier for such expenses (if any).
   4. Taxes. All Fees exclude taxes. Customer is responsible for all applicable federal, state and local sales, use or other taxes due on the Services rendered hereunder, except for taxes based on Supplier's income, and agrees to indemnify and hold Supplier harmless for any claims relating thereto.
   5. Invoicing and Payment. Fees for the Services will be due and payable within 30 days from the date of invoice. Unless otherwise agreed in the SOW, expenses will be invoiced as incurred.
   6. Interest. Any amounts payable by Customer that remain unpaid 30 days after the due date may be subject to a late charge equal to the lesser of 1.5% per month or the maximum rate allowed by law, from the due date until such amount is paid.
   7. Cancellation Obligations. If the Services are changed or cancelled by Customer, Customer will (i) reimburse Supplier for the full amount of any otherwise-unrecoverable travel-related expenses and charges and (ii) pay any cancellation charges agreed in the SOW.
   8. No License fee contingency. No payment of any software license fee shall be contingent upon performance or completion of Services.
      
5. Provision of Services.
   1. Staffing. Services will be performed by qualified personnel directly employed or supervised by Supplier or (at Supplier’s sole discretion) under subcontract to Supplier and functioning under the general direction of Supplier.
   2. Access. Customer shall make available to Supplier qualified personnel familiar with the work Supplier is undertaking. Customer shall provide Supplier with adequate access to the hardware, software and documentation that are the subject of the Services to be provided under this Agreement.
   3. Backup. Prior to Supplier’s initiation of Services, Customer shall make back-up copies of its data, software and other materials which may in any way be affected by Services.
   4. Changes. No SOW change affecting the time or cost of performance of the Services shall be effective until the parties have agreed in writing to corresponding adjustments in the time and/or compensation to be paid thereunder.
   5. Supplier Compliance with Rules. While on Customer's premises to perform the Services, and while accessing Customer’s computer systems remotely to perform the Services, Supplier's representative shall abide by all reasonable rules and regulations of Customer applicable to the use of Customer's premises and access to Customer’s computer systems, but only if Supplier has been given a written copy of any rules and regulations prior to the scheduled start of the Services.
   6. Customer Compliance with Rules. Customer shall comply with all applicable health and safety laws and provide safe workspace for Supplier’s personnel.
   7. Suspension for Non-payment. Supplier may suspend its performance if Customer is delinquent in the payment of any invoice and fails to cure such delinquency within 5 business days following written notice thereof.
      
6. Confidentiality.
   1. Scope.  Each party (a "Recipient") shall (i) keep confidential and secure the non-public information (“Confidential Information”) of the other party ("Discloser"), (ii) use the Discloser's Confidential Information only for the purposes of performing its obligations or exercising its rights under this Agreement, (iii) disclose the Discloser's Confidential Information only to its, and its subsidiaries' or parent company's, employees and contractors who need to know such information solely in connection with item (ii) above and who are themselves subject to reasonably equivalent confidentiality agreements. Confidential Information shall include any source code provided by Supplier.
   2. Exclusions.  "Confidential Information" does not include information that (i) is or becomes a part of the public domain through no wrong act or omission of the Recipient; (ii) was in the Recipient's lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on disclosure; or (iv) is independently developed by the Recipient without use of the Discloser's Confidential Information.
      
7. Ownership and License Grant.
   1. Customer Materials.  Customer retains all right, title, and interest in and to Customer's preexisting proprietary business information ("Customer Materials").
   2. Supplier Materials.  Except with respect to the licenses granted to Customer under this Agreement, Supplier retains all underlying intellectual property right, title and interest in and to the materials developed by Supplier in performing the Services ("Supplier Materials").
   3. License Grant to Supplier Materials.  Subject to the terms and conditions of this Agreement, Supplier grants Customer a worldwide, non-exclusive, royalty-free, non-transferable license to use the Supplier Materials in conjunction with (and coterminous with) the applicable Supplier software (which is separately licensed by Customer from Supplier) solely for Customer's own internal business purposes.
   4. Other Licenses. This Agreement does not affect or modify any prior software license agreements. Should any SOW involve Supplier installation of Supplier software products on Customer’s behalf, Customer must separately, and prior to such installation, acquire the necessary software licensing for such products.
      
8. Warranty and Exclusion.
   1. Warranty. Supplier warrants to Customer that the Services performed by Supplier will be performed using reasonable skill and care. Supplier's warranty shall expire 30 days after the applicable SOW Termination Date or earlier termination of this Agreement. Supplier's warranty shall only be effective if Customer notifies Supplier of the breach of warranty within 30 days after the applicable SOW Termination Date. Supplier's sole and exclusive obligation for breach of warranty shall be, at Supplier's option, to (a) use commercially reasonable efforts to re-perform the nonconforming portion of the Services in a manner that conforms with the warranty, or (b) refund to Customer the fees paid by Customer to Supplier for the nonconforming Services. The remedies set forth in this paragraph are Customer's exclusive remedies for any breach of warranty.
   2. Exclusion of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY STATED IN THIS SECTION IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, WITH RESPECT TO THE PROJECT OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY SUPPLIER. SUPPLIER DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. SUPPLIER DOES NOT WARRANT THAT THE SOLUTION WILL CONTINUE TO OPERATE AS DESIGNED IF CUSTOMER MAKES CHANGES TO THE OPERATING ENVIRONMENT, OR TO THE SOLUTION ITSELF, BEYOND THE SCOPE OF THE SOW.
9. Non-solicitation of Staff. Without the prior written consent of the other, neither party shall directly or indirectly, or cause a third party to solicit, hire or engage any personnel or subcontractor of the other who are or have been assigned to perform work under the applicable SOW and this Agreement until 1 year after the SOW Termination Date. Each party acknowledges that the personnel of the other represent a significant investment in recruitment and training, the loss of which would be detrimental to that party's current and future business and profits. The parties further recognize that determining the damages in the event of a breach of this provision is very difficult and therefore agree that if the other breaches this provision and hires or engages personnel of the other covered hereunder, the breaching party shall pay to the other as damages for the breach an amount equal to 40% of the annual compensation of the person based on the rate of pay as of the last day of work at the non-breaching party.
   
10. Termination for Breach.  Either party may terminate this Agreement for the other party's material breach of this Agreement by providing the breaching party with written notice of termination (detailing the breach), subject to a 30 day cure period. If the breaching party does not cure such breach within such cure period, this Agreement will automatically terminate upon the expiration of such cure period. Notwithstanding the foregoing, either party may terminate this Agreement immediately for the other party’s material breach that by its nature lacks opportunity for cure (for example, breach of confidentiality terms).
    
11. Force Majeure. Supplier and Customer shall be excused from performance for any period during which, and to the extent that, it or its subcontractors are prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence including but not limited to, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures.
    
12. Liability.
    1. Indirect, Incidental and Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
    2. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY  EXCEPT PARAGRAPH (c) IMMEDIATELY BELOW, THE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH A PARTY’S ACTS OR OMISSIONS SHALL BE LIMITED TO THE AMOUNT PAID OR PAYABLE  BY CUSTOMER TO SUPPLIER FOR SERVICES RENDERED UNDER THE APPLICABLE SOW.
    3. No Exclusion or Limitation. Nothing in this Agreement shall exclude or limit either party’s liability in respect of death or personal injury caused by the negligence of that party, its employees or agents, or liability for fraudulent misrepresentation or such other liability which cannot by law be excluded or limited.
13. No Support Obligation. Except as the parties may have separately agreed, or as specifically agreed in the SOW, Supplier shall have no obligation to provide support services of any kind for the delivered Services.
    
14. Subcontractor. This paragraph applies if Customer is subcontracting Supplier to perform services for a third party. In such case, the applicable SOW shall clearly state such purpose, and shall clearly identify such third party (the “End Customer”), and the following amendments to the terms above shall apply: (a) Customer obligations identified  in paragraphs titled “Access”, “Backup”, and “Customer Compliance with Rules” are agreed to be End Customer obligations which Customer shall pass through to End Customer or shall otherwise effect on behalf of End Customer; (b) As regards the section titled “Ownership and License Grant”, the word “Customer” shall be read to mean Customer or End Customer as the case may apply, except that in the sub-section titled “License Grant to Supplier Materials” Supplier grants no license to any entity that is not the licensee of the referenced “applicable Supplier software”; (c)  Customer acknowledges that Supplier’s willingness to provide Services to End Customer relies upon Supplier’s expectation that Customer’s terms with End Customer are consistent with these Terms & Conditions and sufficient to protect Supplier’s interests as if Supplier and End Customer had entered into these terms directly.
    
15. General
    1. Entire Agreement.  This Agreement is the complete agreement between the parties and supersedes (i) all prior, existing or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement, and (ii) any and all different, conflicting or additional terms of Customer's purchase order documentation. The Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement. This section shall not exclude any right to rescind this Agreement that may result from the other party’s fraud or fraudulent misrepresentation or concealment.
    2. Governing Law. This Agreement shall be governed by the laws of Washington State, exclusive of choice of law rules, except that if Supplier is “Attachmate EMEA Sales BV” or “NetIQ Europe Limited”, then this Agreement and all matters arising out of or relating to this Agreement, shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English courts, and no term of this Agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
    3. Severability / Waiver.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
    4. Notices. All notices pertaining to this Agreement shall be in writing and sent ATTN: Legal Department at the addresses set forth in the SOW and shall be deemed to have been received upon confirmed delivery by any reputable delivery service.
    5. Attorneys' Fees. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys' fees.
    6. Assignment. Without prejudice to Section 5 Paragraph (a) (“Staffing”), neither party may assign or delegate its rights and obligations under this Agreement to any third party without the prior consent of the other party to this Agreement (which consent shall not be unreasonably withheld); provided, however, that either party may assign this Agreement without the other party’s consent in the event of merger or acquisition of all or substantially all of the assigning party’s assets.  All provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and permitted assigns of Supplier and Customer.
    7. Independent Contractor. Supplier is, and throughout the term of this Agreement shall be, an independent contractor, and not an employee, partner or agent, of Customer. Supplier shall not be entitled to nor receive any benefit normally provided to Customer's employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Customer shall not be responsible for withholding income or other taxes from the payments made to Supplier. Supplier agrees to indemnify and hold Customer harmless for any claims relating thereto.
    8. Export Compliance.  As regards Supplier Materials, Customer shall comply with all applicable export and import laws, including those of the United States.
    9. Survival. The following terms shall survive any termination of this Agreement: Section 4 (“Payment for Services”); Section 6 (“Confidentiality”); Section 7 (“Ownership and License Grant”); Section 9 (“Non-solicitation of Staff”); Section 12 (“Liability”); Section 15 (“General”).
    10. Precedence. In case of conflict between the SOW and these Terms and Conditions, the Terms and Conditions shall prevail. Notwithstanding the foregoing, the SOW may override the Terms and Conditions by explicitly stating the intention to do so with reference to the section or paragraph in the Terms and Conditions that is the subject of the override.
16. Essence of the Bargain. Supplier’s primary business is the development and licensing of commercial software products, and Supplier offers professional services primarily for the purpose of enhancing customer success in implementing such products. Supplier is therefore willing to enter into this Agreement and perform Services for Customer only in consideration of and in reliance upon the provisions of this Agreement limiting Supplier's exposure to liability, and reserving Supplier’s rights in developed materials. Such provisions constitute an essential part of the bargain underlying this Agreement and have been reflected in the nature and pricing of the Services. Customers seeking other terms should contact Supplier regarding availability and pricing of custom terms.
    

*Version Note. This posted statement of Services Terms & Conditions may be changed from time to time, as indicated by a new “Version” header at the top of the page. Customer shall have the right to attach to the SOW any Version posted at this address at the time of, or subsequent to, Supplier’s presentation of the associated quotation for Services. In the absence of a Version reference in the SOW, the applicable Version shall be that posted at the time of SOW acceptance by the Customer.