Customer Services and Support Terms and Conditions

Customer Services and Support Agreement

This Customer Services and Support Agreement (“Agreement”) is effective as of the date set forth in the sales quote (the “Quote”) provided by Cerillo to Customer (the "Effective Date"), and is by and between Cerillo, Inc., located at 107 E. Water Street, Charlottesville, Virginia 22902 (“Cerillo”) and the Customer identified on the Quote ("Customer").

1. Services

1.1           Scope of Services. Cerillo will supply to Customer the support and integration services (“Services’) specified in the Quote.

1.2           Cooperation. Customer agrees to provide Cerillo with such cooperation, materials, information, access and support which Cerillo deems to be reasonably required to allow Cerillo to successfully provide the Services, including, without limitation, as may be set forth in the Quote or any applicable SOW. Customer understands and agrees that Cerillo’s obligations hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.

1.3           Customer Policies. While on premises owned, controlled or hired by Customer, all Cerillo personnel will conduct themselves in accordance with the standard health, safety and security policies of Customer applicable to its staff generally that have been provided to Cerillo in writing prior to the commencement of Services.

1.4           Customer Project Manager. Upon request by Cerillo, Customer will designate a person called Customer Project Manager who will be the focal point for communications relative to the Services and will have the authority to act on behalf of Customer in all matters regarding the Services.

1.5           Customer Responsibilities. Customer agrees to:

(a)            Ensure Customer’s staff is available to provide such assistance as Cerillo reasonably requires and that Cerillo is given reasonable access to Customer’s senior management, as well as any members of Customer’s staff to enable Cerillo to provide the Services. Customer will ensure that Customer’s staff has the appropriate skills and experience. If any of Customer’s staff fails to perform as required, Customer will make suitable additional or alternative staff available;

(b)            Provide all information and materials reasonably required to enable Cerillo to provide the Services. Customer agrees that all information disclosed or to be disclosed to Cerillo is and will be true and not misleading in any material respect. Cerillo will not be liable for any loss, damage or deficiencies in the Services, if any, arising from inaccurate, incomplete, or otherwise defective information and materials supplied by Customer; and

(c)            Except as provided in the Quote, supply all prerequisite hardware and software to be used during the performance of the Services, and ensure that it has the proper licenses or approvals necessary for Cerillo or its subcontractors to access and use such hardware and software to the extent necessary for Cerillo to perform the Services.

1.6           Ownership.

                (a)            Customer acknowledges that in the course of performing any Services, Cerillo may create software or other works of authorship (collectively “Work Product”). Subject to Customer’s rights in the Customer Confidential Information (defined below), Cerillo shall own all right title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of Services (a “Deliverable”), except for any products made available under a separate license, Cerillo grants Customer an irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to use, execute, reproduce, display, perform, distribute (internally and externally), transfer, exploit and make derivative works of any such Deliverables.

2. Term of Agreement

2.1           Term. This Agreement is effective as of the Effective Date and will continue until terminated as provided under this Section 2.1 (the “Term”). Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after receipt of written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter).

2.2           Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to Cerillo under this Agreement before such termination will be immediately due and payable; and (b) each party will return to the other party the Confidential Information of the other party that it obtained during the course of this Agreement.

2.3           Survival. Sections 1.6 (Ownership), 2 (Term of Agreement), 3.2 (Warranty Disclaimer), 4 (Limitation of Remedies and Damages), 5 (Payment), 6 (Confidential Information) and 7 (General) shall survive any termination or expiration of this Agreement.

3. Limited Warranty and Disclaimer

3.1           Services. Cerillo warrants that the Services will be performed in a workmanlike manner and shall conform to standards of the industry. In the event of a breach of the foregoing warranty, Cerillo shall, as its sole obligation and Customer’s sole remedy, re-perform the applicable Services; provided that this remedy is only available if Customer gives Cerillo written notice of such breach within thirty (30) days of the delivery of the applicable Services.

3.2           Warranty Disclaimer. THIS SECTION 3 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3, THE SERVICES, DELIVERABLES, ANY TRAINING MATERIALS AND ALL OTHER MATERIALS PROVIDED TO CUSTOMER ARE PROVIDED “AS IS”. CERILLO DOES NOT WARRANT THAT THE SERVICES, DELIVERABLES, TRAINING MATERIALS AND ALL OTHER MATERIALS PROVIDED TO CUSTOMER WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THEY ARE DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. NEITHER CERILLO NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, noninfrngement or FITNESS FOR A PARTICULAR PURPOSE. Customer acknowledges that THE SERVICES, DELIVERABLES, TRAINING MATERIALS AND ALL OTHER MATERIALS PROVIDED TO CUSTOMER ARE not intended for use in connection with any high risk or strict liability activity (including, without limitation, air or space travel, power plant operation, or life support or emergency medical operations) and that Cerillo makes no warranty and shall have no liability in connection with any use of THE SERVICES, DELIVERABLES, TRAINING MATERIALS AND ALL OTHER MATERIALS PROVIDED TO CUSTOMER in such situations.

4. Limitation of Remedies and Damages. CERILLO SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. CERILLO’S TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY CERILLO IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER TO CERILLO UNDER THE APPLICABLE QUOTE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
5. Payment. Customer shall pay all fees for Services as specified on the applicable Quote. Customer shall also reimburse Cerillo for all pre-approved travel and living expenses incurred in the provision of the Services. All fees shall be paid by Customer thirty (30) days from the date of the invoice. All payments are non-refundable and are made without right of setoff or chargeback. Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order, excluding taxes based on the net income of Cerillo. Any late payments shall be subject to a service charge equal to 1% per month of the amount due or the maximum amount allowed by law, whichever is less. If payment of any fee is overdue, Cerillo may also suspend provision of Services until such delinquency is corrected.
6. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it (“Receiving Party”) obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information excludes information that: (a) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the Receiving Party; (b) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without any use of Confidential Information of the Disclosing Party; or (e) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party. The Receiving Party shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except: (A) to exercise its rights and perform its obligations under this Agreement; or (B) in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party is liable for all acts and omissions of its employees and consultants to the extent that such act or omission would be a breach of this Agreement if done by Receiving Party. The Receiving Party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. The Receiving Party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the Receiving Party provides prompt written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. The Receiving Party shall protect Confidential Information in the manner provided herein for five (5) years after receipt thereof; provided that, to the extent Confidential Information constitutes a trade secret(s) under law, the Receiving Party agrees to protect such information for so long as it qualifies a trade secret under applicable law. Notwithstanding anything to the contrary herein, the terms and conditions of this Agreement shall constitute the Confidential Information of each party.
7. General

7.1           Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

7.2           Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the Commonwealth of Virginia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the Commonwealth of Virginia and United States federal courts located in Richmond, Virginia and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.

7.3           Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given upon delivery if sent by: (a) personal delivery; (b) certified or registered U.S. mail (return receipt requested); or (c) overnight commercial delivery service.

7.4           Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

7.5           Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, unless such terms and conditions are expressly stated as an amendment to this Agreement and duly signed on behalf of both parties. If an inconsistency exists between the terms of this Agreement and the terms of any Quote entered into between the parties, the terms of the Quote will control.

7.6           Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

7.7           Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, pandemic, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.

7.8           Customer Acknowledgement. Customer agrees that Cerillo may from time to time identify Customer (with Customer’s name, logo, or trademark) as a Cerillo customer in or on Cerillo’ website, sales and marketing materials, or press releases.

7.9           No Hire. Customer may not hire, or directly or indirectly solicit or employ, any employee or contractor of Cerillo who is or was involved in the development, use or provision of Services to Customer, without the prior written consent of Cerillo, during the term of this Agreement and for a period of two (2) years thereafter; provided that nothing contained herein will prevent Customer from hiring any such employee or contractor who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis.

7.10         Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that upon notice to the other party the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and their successors and permitted assigns.

7.11         Compliance. Customer will not use the Services in a way that is prohibited by applicable law, including without limitation export control, economic sanctions programs, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act. Applicable export control or economic sanctions programs may include U.S. export control laws such as the Export Administration Regulations and the International Traffic in Arms Regulations, and U.S. economic sanctions programs that are or may be maintained by the U.S. Government.

7.12         Headings. The headings in this Agreement are for purposes of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms hereof.