Professional Services Agreement
This Turntide Technologies Professional Services Agreement (“PSA”) is a binding legal contract between the person or company accepting this PSA (hereinafter, “Company” or “you”) and Turntide Technologies Inc. (“Turntide”). This PSA governs the provision, purchase and use of the Professional Services described herein. By purchasing Professional Services from Turntide or by signing a Statement of Work (“SOW”) for Professional Services, you are consenting to be bound by this PSA, including all terms incorporated herein by reference. Turntide permits you to purchase Professional Services only in accordance with the terms of this PSA (and a SOW, if needed). If this PSA is being agreed to by a company or other legal entity, then the person agreeing to this PSA on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this PSA and understands and agrees that he or she may not agree to this PSA if lacking such authority. Provided that the person agreeing to this PSA has the aforementioned authority, then all references to “you” refer to your employer. You should print and retain a copy of this PSA for your records.
1.1 “Statement of Work or SOW” means a document that describes certain Professional Services purchased by Company under this PSA, the form of which shall be provided by Turntide if an SOW is needed. Each Statement of Work shall incorporate this PSA by reference.
1.3 “Professional Services” means site visits, product installation consulting services, and other similar services (but does not include any installation work, as that must be provided by a third party) provided by Turntide in connection with the purchase of any products from Turntide or other relationship with Turntide, as may be more fully described in a SOW, if in Turntide’s discretion, additional description is needed.
2. Professional Services.
2.1 Performance of Professional Services and Statements of Work. Turntide may offer certain Professional Services that do not require additional description in a SOW. If, however, additional description is needed, Company and Turntide may execute an SOW that more fully describes the specific services to be performed by Turntide in accordance with the terms and conditions of this PSA and of such SOW. Each SOW will form a part of this PSA and will be subject to the terms and conditions contained herein.
2.2 Turntide Obligations. If applicable, while on Company premises for Professional Services, Turntide personnel shall comply with reasonable Company rules and regulations regarding safety, security, and conduct made known to Turntide prior to be on Company’s premises, and will at Company’s written request promptly remove from the project any Turntide personnel not following such rules and regulations.
2.3 Relationship of the Parties. Turntide is performing the Professional Services as an independent contractor, and is not an employee, agent, joint venturer or partner of Company. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise. Turntide acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Company makes available to its employees. Turntide is solely responsible for all taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between Turntide and its personnel and the performance of Professional Services by such personnel.
3.1 Fees. Company shall pay Turntide the fees set forth in the applicable Turntide sales quotation, Turntide price list or SOW (“Fees”) in accordance with this PSA. Fees will be due per the terms defined in such sales quotation, price list or SOW. Except as otherwise specifically provided in this PSA, all Fees paid and payable to Turntide hereunder are non-cancelable and non-refundable. Turntide will invoice Company for the Professional Services and other payments due under this PSA in accordance with the Turntide sales quotation, Turntide price list or SOW. If Company fails to pay any amounts due under this PSA by the due date, Turntide will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Company pays all amounts due; provided that Turntide will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Company is cooperating diligently to resolve the issue.
3.2 Expenses. Unless otherwise specified in the applicable Turntide sales quotation or SOW, upon invoice from Turntide, Company will reimburse Turntide for all pre-approved, reasonable expenses incurred by Turntide while performing the Professional Services, including without limitation, transportation services, lodging, meal and out-of-pocket expenses directly related to the provision of the Professional Services. Turntide will include, upon request, reasonably detailed documentation of all such expenses in excess of twenty-five dollars ($25 USD).
3.3 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Company is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Turntide’s net income or property).
4.1 Turntide Ownership. Except for the rights expressly granted under this PSA, Turntide retains all right, title, and interest in and to the Professional Services, including all related intellectual property rights inherent therein. Turntide will own all rights, title, and interest in any work product described in a SOW (“Work Product”), including all intellectual property rights therein.
4.2 Company License. Subject to the terms and conditions of this PSA, Turntide shall grant to Company a worldwide, non-exclusive, non-transferable, non-sub-licensable license to use the Work Product solely for Company’s internal business purposes.
4.3 Reservation of Rights. Except as otherwise expressly provided herein, nothing in this PSA shall be deemed to grant, directly or by implication, estoppel, or otherwise, any right or license with respect to any technology or other intellectual property rights, and each party retains all right, title, and interest in and to their respective technologies and other intellectual property rights.
5. Confidential Information.
5.1 Definition of Confidential Information. Each party may, during the course of Turntide’s provision of Professional Services hereunder, receive, have access to, and acquire technical and business information (“Receiving Party”) from discussions with the other party (“Disclosing Party”) which may not be accessible or known to the general public, including, but not limited to, trade secrets and technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services and other third party proprietary, or confidential information that Disclosing Party treats as confidential, or is information that a reasonable person knows or should have known to be confidential given the circumstances surrounding disclosure (“Confidential Information”). Without limiting the foregoing, (i) Turntide Confidential Information includes Turntide Work Product and trade secrets, and (ii) Confidential Information of both parties includes the terms of this PSA and any SOW hereunder. Confidential Information shall not include or shall cease to include, as applicable, information or materials that (a) is now or becomes generally known to the public without breach of this PSA; (b) was rightfully known to the Receiving Party, and reduced to writing, prior to its receipt thereof from the Disclosing Party; (c) is lawfully received from a third party without restriction to use or disclosure and without that third party’s breach of agreement or obligation of trust; or (d) is independently developed by or for the Receiving Party without reference to the Confidential Information as shown by documents and other competent evidence in the Receiving Party’s possession.
5.2 Disclosure and Use Restrictions. The Receiving Party shall not: (i) use any Confidential Information of the Disclosing Party for any purpose outside the scope of this PSA, except with the Disclosing Party’s prior written permission, (ii) disclose or make the Disclosing Party’s Confidential Information available to any party, except those of its employees, contractors, and agents (“Representatives”) that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this PSA. Receiving Party shall be responsible for any breach of these confidentiality obligations by its Representatives, which shall be considered a breach by Receiving Party. Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information if it is compelled to do so by applicable law or regulation or a court or administrative agency of competent jurisdiction; provided that, the Receiving Party provides the Disclosing Party with reasonably prompt written notice, to the extent legally permitted, of any such request or requirement so that the Disclosing Party may seek an appropriate remedy or waive compliance with this provision and reasonably cooperate with Disclosing Party in protecting against any such disclosure or obtaining a protective order narrowing the scope of such disclosure and/or use of Confidential Information. Receiving Party shall only disclose that portion of such Confidential Information that, in the opinion of its legal counsel, is reasonably required to be disclosed, and shall exercise all commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information it discloses.
5.4 Injunctive Relief. Each party acknowledges that the unauthorized use or disclosure of Disclosing Party’s Confidential Information might cause Disclosing Party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, each party agrees that Disclosing Party will have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
6.1 Professional Services Warranty. Turntide warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services. As Company’s sole and exclusive remedy and Turntide’s entire liability for any breach of the foregoing warranty, Turntide will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or refund to Company the Fees paid for the non-conforming Professional Services.
6.2 Warranty Disclaimers. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 6.1, TURNTIDE AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE PROFESSIONAL SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS PSA, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 6.1. TURNTIDE DOES NOT WARRANT THAT THE OPERATION OF THE WORK PRODUCT OR ANY OF THE PROFESSIONAL SERVICES PERFORMED PURSUANT TO THIS PSA OR ANY SOW WILL BE UNINTERRUPTED OR ERROR-FREE.
7. Limitation of Liability.
IN NO EVENT WILL TURNTIDE OR TURNTIDE’S SUPPLIERS BE LIABLE TO COMPANY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE PROFESSIONAL SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS PROFESSIONAL SERVICES AGREEMENT, ANY SOW, OR ANY WORK PRODUCT PROVIDED BY TURNTIDE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF TURNTIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TURNTIDE’S TOTAL LIABILITY TO COMPANY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO TURNTIDE BY COMPANY FOR THE APPLICABLE PROFESSIONAL SERVICES OR UNDER THE APPLICABLE SOW GIVING RISE TO ANY LIABILITY HEREUNDER.
8. Term and Termination.
8.1 Term. This PSA will commence on the date accepted and, unless terminated earlier in accordance with the terms of this Section 8, will remain in force and effect for as long as Turntide is performing Professional Services hereunder or pursuant to any SOW.
8.2 Termination. Either party may terminate this PSA or any SOW by written notice to the other party in the event that such other party materially breaches this PSA and does not cure such breach within thirty (30) days of such notice. Termination due to Company’s breach shall not relieve Company of the obligation to pay any Fees accrued or payable to Turntide under this PSA or any SOW for Professional Services provided prior to the effective date of termination. Upon any termination for cause by Company, Turntide will refund Company a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered as of the effective date of termination. Notice of termination of any SOW shall not be considered notice of termination of this PSA unless specifically stated in the notice; provided, however, any termination of this PSA shall automatically terminate all Statement(s) of Work.
8.3 Effect of Termination. Upon the expiration or termination of this PSA or of any SOW: (i) each party will promptly return to the other party or destroy all Confidential Information of the other party in its possession or control; and (ii) Company will, within thirty (30) days after receipt of Turntide’s invoice, pay all accrued and unpaid Fees and expenses. Notwithstanding the foregoing, the Receiving Party may retain copies of project notes and work product for reference purposes, which the Receiving Party shall continue to treat as Confidential Information under this PSA. For the avoidance of doubt, anything that is stored on routine back-up media solely for the purpose of disaster recovery shall be subject to destruction in due course, provided that, employees are precluded from accessing such information in the ordinary course of business prior to destruction.
8.4 Survival. The rights and obligations of the parties contained in Sections 2.3 (“Relationship of the Parties”), 3 (“Payment”), 4.1 (“Turntide Ownership”), 4.3 (“Reservation of Rights”), 5 (“Confidential Information”), 7 (“Limitation of Liability”), 8.3 (“Effect of Termination”), 8.4 (“Survival”), and 9 (“General Provisions”) will survive the expiration or termination of this PSA or any SOW.
9. General Provisions.
9.1 Assignment. Neither the rights nor the obligations arising under this PSA are assignable or transferable by Company or Turntide without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this PSA in its entirety (including all SOWs), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of that portion of Turntide’s business to which this PSA relates. Subject to the foregoing, this PSA will bind and inure to the benefit of the parties’ permitted successors and assigns.
9.2 Governing Law, Venue, and Attorneys’ Fees. This PSA shall be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this PSA will be brought exclusively in the federal or state courts located in Santa Clara, California and the parties hereby consent to personal jurisdiction and venue therein. In any action to enforce this PSA the prevailing party will be entitled to costs and attorneys’ fees.
9.3 Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).
9.4 Force Majeure. If the performance of this PSA or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terrorism, riot, acts of God or governmental action, the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
9.5 Entire Agreement, Waiver, Conflict, and Severability. This PSA together with any SOW’s constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. No modification, amendment or waiver of any provision of this PSA or any SOW will be effective unless in writing and signed by both parties hereto. The failure by either party to enforce any provision of this PSA will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provision. In the event of a conflict between the provisions of this PSA and the provisions of a SOW, if any, the provisions of the SOW will govern and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Company purchase order or in any other Company order documentation shall be incorporated into or form any part of this PSA, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this PSA shall not constitute a waiver thereof or of any other provision. In the event that any of the provisions of this PSA shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this PSA shall otherwise remain in full force and effect and enforceable.