These Professional Services Service Terms and Conditions (“Conditions”) apply to and are incorporated by reference into the ordering document (the  “Quote”) made by and between the Service Provider (as identified on the Quote) and the Customer (as identified on the Quote) in conjunction with the Professional Services Addendum.  These Conditions, together with the Professional Services Addendum and Quote will constitute the “Services Agreement.” Capitalized terms used but not defined have the meanings assigned to them in the Quote. For clarity, the parties agree that to the extent  the Services Agreement discusses or involves any activity related to software licensed to Customer pursuant to a separate agreement, nothing in the  Services Agreement modifies the terms of that license.

Service Provider and Customer hereby agree as follows:

1. TERM
   Unless terminated as provided herein, the Services Agreement commences on the Term Start Date and continues through the Completion Date as set forth on each Quote.
2. SERVICES TO BE DELIVERED
   Service Provider will provide the services and deliverables (“Deliverables”) described in the Professional Services Addendum entered into by the parties. Those services are a collection of activities which will be performed during the Term of the  Services Agreement (the “Services”). Any additional scope or activities that extend beyond the Services will require an additional Quote.  For the avoidance of doubt, the Professional Services Addendum may contain terms and conditions specific to the applicable Services ordered (via a Quote) which terms will have no effect on other Professional Services Addenda.
3. FEES AND EXPENSES
   The Services provided under the  Services Agreement will be billed according to the fee schedule set forth in the Quote.  Unless otherwise specifically stated in the Quote, the fees do not include expenses; Customer shall reimburse Service Provider for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred in performance of the  Services Agreement. Service Provider agrees to comply with Customer’s expense policies, as long as Customer provides those policies to Service Provider with reasonable advance notice and in writing. If any additional work is performed beyond the Completion Date or scope of the  Services Agreement, the rate will be mutually agreed upon by the parties or if no such rate is established, such work will be performed under Service Provider’s standard rate in effect at the time. All charges and fees set out in the Quote are quoted exclusive of applicable taxes, duties, or similar charges. Customer shall pay all sales, use, withholdings, excise, or other taxes or duties arising out of the Services Agreement, provided, however, that Customer shall not be responsible for taxes on the net income of Service Provider.
4. PAYMENT
   Notwithstanding any provision to the contrary herein, any and all payments required to be made hereunder shall be timely made by  the Customer, and no payments to Service Provider shall be withheld, delayed, reduced, or refunded if Service Provider has fully and completely performed its material obligations and its inability to meet any schedule requirements is caused by Customer’s failure to provide certain of its facilities, computer resources, software,  personnel, or  business information.
   Customer agrees to provide Service Provider with a valid purchase order, if applicable, promptly upon execution of a Quote.  Notwithstanding anything to the contrary herein, any and all terms contained in invoices, purchase orders, acknowledgments, shipping instructions, or other forms exchanged between the parties in connection with the Services shall be void and of no effect. Customer’s failure to issue a purchase order or provide such purchase order to Service Provider, however, will  in no way relieve Customer of any obligation entered into pursuant to the  Services Agreement, including, but not limited to, its obligation to pay Service Provider in a timely fashion.
   Any late payment will be subject to costs of collection (including reasonable legal fees) and bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
5. GENERAL TERMS
   1. Subcontractors. Service Provider will have the right to use third parties, including offshore entities who employ foreign nationals, as well as employees and contractors of Service Provider’s affiliates and subsidiaries, who may also be foreign nationals, in the performance of its obligations and Services hereunder. Service Provider will have the right to disclose Customer Confidential Information (as defined below) to such third parties provided such third parties are subject to confidentiality obligations similar to those between Service Provider and Customer.
   2. Technical Data. Customer shall not provide to Service Provider any Technical Data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. Customer shall certify that all information provided to Service Provider has been reviewed and scrubbed so that all Technical Data and other sensitive information relevant to Customer’s ITAR regulated project has been removed.
   3. Warranty. Service Provider warrants that it has the right to enter into  the Services Agreement and that all Services performed under the  Services Agreement shall be performed in a workmanlike and professional manner.  EXCEPT AS SPECIFICALLY  STATED IN THE SERVICES AGREEMENT, SERVICE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
   4. LIMITATION OF LIABILITY.
      1. LIABILITY CAP. SERVICE PROVIDER’S (AND ITS AFFILIATES, LICENSORS AND AGENTS) LIABILITY ARISING OUT OR RELATED TO THE SERVICES AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE FEE ACTUALLY PAID TO SERVICE PROVIDER FOR THE SERVICES UNDER A QUOTE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.
      2. DISCLAIMER OF DAMAGES. IN NO EVENT WILL SERVICE PROVIDER (OR ITS AFFILIATES, LICENSORS OR AGENTS) BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, GOODWILL, PROFITS, DATA OR DATA USE ARISING OUT OR RELATED TO THE  SERVICES AGREEMENT.
      3. THE LIABILITIES LIMITED BY SECTIONS 5.4.1 AND 5.4.2 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (iii) EVEN IF SERVICE PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (iv) ATTORNEYS FEES AND COSTS, AND (v) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 5, SERVICE PROVIDER’S (AND ITS AFFILIATES, LICENSORS AND AGENTS) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
   5. Ownership. All Deliverables produced by Service Provider under the Services Agreement shall not be considered to be works made for hire and shall be exclusively owned by Service Provider and no ownership rights thereto shall accrue in any manner to Customer, and Customer hereby agrees, upon written request from Service Provider, to assign any rights of Customer in such Deliverables to Service Provider.  However, Service Provider hereby grants to Customer, at no additional charge, a worldwide, nonexclusive, license to (i) modify and otherwise create derivative works based on the Deliverables, and (ii) reproduce, distribute, perform, and display (publicly or otherwise), and otherwise use and exploit the Deliverables and derivative works thereof solely in connection with Service Provider licensed under a separate license agreement.  Nothing in the  Services Agreement shall preclude Service Provider from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Service Provider in the performance of Services hereunder.
   6. Confidentiality.  Either Party (“Receiving Party”) agrees to keep confidential all technical, product, business, financial, and other information regarding the business and software programs of the other Party (“Disclosing Party”), its affiliates, customers, employees, investors, contractors, vendors, and suppliers (the “Confidential Information”). For clarity, the term ‘Confidential Information’ does not include any personally identifiable information. Obligations with respect to such information (if any) will be set forth in a separate written agreement between the parties. Receiving Party shall at all times protect and safeguard the Confidential Information and agrees not to disclose, give, transmit, or otherwise convey any Confidential Information, in whole or in part, to any third party. Receiving Party shall not, by authorized or unauthorized access, review, reverse engineer, disassemble, or decompile any Confidential Information. Except as provided hereunder, Receiving Party agrees that it will not use any Confidential Information for its own purpose or for the benefit of any third party and shall honor the copyrights and other intellectual property rights of the Disclosing Party and will not copy, duplicate, or in any manner reproduce any such copyrighted materials. Upon request of Disclosing Party or upon termination of the Services Agreement, the Receiving Party shall promptly deliver to the Disclosing Party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) that are in its possession or control.
   7. Patent Notice.  You are hereby placed on notice that the Software, its related technology and services may be covered by one or more United States (“US”) and non-US patents. A listing that associates patented and patent-pending products included in the Software, Software Updates, their related technology and services with one or more patent numbers is available for you and the general public’s access at www.aurea.com/legal (the “Patent Notice”) and any successor or related locations designated by Service Provider. The association of products-to-patent numbers at the Patent Notice may not be an exclusive listing of associations, and other unlisted patents or pending patents may also be associated with the products. Likewise, the patents or pending patents may also be associated with unlisted products. You agree to regularly review the products-to-patent number(s) association at the Patent Notice to check for updates.
   8. Marks and Publicity. Service Provider and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), shall be the sole and exclusive property of the respective owning party, which shall own all right, title and interest therein. Service Provider may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; and/or (iii) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, Service Provider may include Customer’s name and/or logo within its list of customers for general promotional purposes. Service Provider shall comply with Customer’s trademark use guidelines as such are communicated to the Service Provider in writing and Service Provider shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.
   9. Third Party Rights. Customer acknowledges that in the event Service Provider provides Services pertaining to any third party products (including software, hardware, equipment or any other material), all rights in such third party products (“Third Party Rights”) are retained by the respective third party. Customer shall be required to obtain any Third Party Rights from the respective third party directly and any rights in the Service Provider Services related to such Third Party Rights shall be subject to Customer’s agreement with the respective third party.
   10. Reservation of Rights. Service Provider reserves all rights not specifically granted herein.
   11. Termination. The Services Agreement may be terminated prior to the Completion Date in accordance with the following:
       • Termination for Cause. Either party may terminate the Services Agreement in the event the other party has failed to perform any obligation required to be performed under the Services Agreement and such failure is not corrected within thirty (30) days from receipt of written notice advising of such alleged failure from the other party.
       • Termination without Cause. The Customer may terminate the Services Agreement by providing written notice to Service Provider. In the event of termination under this paragraph, an early termination fee will apply that is equal to the fees due during the Term minus the total fees paid for Services at the time of termination.
   12. Governing Law; Venue. The laws of the State of Texas, USA govern the interpretation of the Services Agreement, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to the Services Agreement. The parties agree that the federal and state courts located in Travis County, Texas, USA will have exclusive jurisdiction for any dispute arising under, out of or relating to the Services Agreement. Mediation will be held in Austin, Texas, USA.
   13. Dispute Resolution
       • Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to the Services Agreement, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties.
       • Mediation. Any dispute, controversy, or claim arising under, out of, or relating to the Services Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The language to be used in the mediation will be English.
       • Opportunity to Cure. Notwithstanding anything contained hereunder, Customer agrees and acknowledges that no dispute resolution or litigation shall be pursued by Customer for any breach of the Services Agreement until and unless Service Provider has had an opportunity to cure any alleged breach. Customer agrees to provide Service Provider with a detailed description of any alleged failure and a description of the steps that Customer understands must be taken by Service Provider to resolve the failure. Service Provider shall have thirty (30) days from Service Provider’s receipt of Customer’s notice to complete the cure.
       • Injunctive Relief. The choice of venue does not prevent a party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations. For clarity, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the mediator.
   14. Miscellaneous. The provisions of these Conditions together with the applicable Quote and Professional Services Addendum referenced herein constitute the entire agreement between the parties with respect to the subject matter herein and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of the Services Agreement. The Services Agreement may only be modified or supplemented by a writing manually signed by the authorized representatives of the parties. Notwithstanding the foregoing, Service Provider reserves the right to modify these Conditions at any time by posting such amended Conditions to Service Provider’s site. Each provision of the Services Agreement is a separately enforceable provision. If any provision of the Services Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Services Agreement will remain in full force and effect and will be interpreted, to the extent possible, to achieve its purposes without the invalid, illegal, or unenforceable provision. Any waiver made by either party of any term or condition of the Services Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof. Both parties agree to abide by the export control laws/regulations of the US and other countries, as applicable. Each party is and will remain an independent contractor with respect to all performance rendered pursuant to the Agreement. The headings of the Services Agreement are provided for reference only and will not be used as a guide to interpretation. All notices under this Services Agreement will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means (such as fax or e-mail as duly provided by the authorized representatives of either party for the said purpose) or by overnight air courier service, or as of forty-eight (48) hours after deposit in the mail (certified, return receipt requested) to the addresses specified on Quote. Customer may not assign or transfer the Services Agreement by operation of law, change of control, or otherwise without the prior written consent of Service Provider. In no event will either party be liable to the other for any delay or failure to perform due to causes beyond the control and without the fault or negligence of the party claiming excusable delay, but only to the extent that such delay could not have been avoided by the taking of reasonable precautionary measures. Such causes include, but are not limited to, acts of God, floods, fire, utility failure, acts of terrorism, and war. The terms of Sections 4 and 5 will survive the termination of the Services Agreement.
   15. Assignment. Customer may not assign this Agreement by operation of law, change of control or otherwise (“Assign”) without the prior written consent of Service Provider, and such consent shall not be unreasonably withheld. Notwithstanding the language of this Section 5.16, however, Customer may Assign this Agreement to any person, firm or corporation which, through merger, acquisition by or of Customer or otherwise, succeeds to all or substantially all of Customer’s business, provided (i) Customer provides Service Provider with thirty (30) days prior written notice; (ii) the assignee does not compete directly or indirectly with Service Provider; (iii) Customer and any assignee are current in all fees due hereunder to Service Provider; (iv) any such assignee agrees in writing to be bound by the terms and conditions of this Agreement; and (v) if Customer is the acquired party, the licenses and rights of Customer under this Agreement shall apply to, and may be exercised only in connection with, the operations of Customer as they exist on the date of the acquisition, and the Deliverables, materials, and Confidential Information of Service Provider may be made available only to Customer personnel working in such operations. Any purported assignment of this Agreement in violation of this Section will be deemed void.

Updated: April 15, 2016.