Professional Services Terms and Conditions
Last Updated: December , 2021
These Professional Services Terms and Conditions (these “Terms and Conditions”) govern any services to be provided by Artium Technologies LLC, a Delaware LLC (“Artium”) as set forth herein.1. STATEMENT OF SERVICES.
Any engagement for Artium’s services shall be documented in a Statement of Work executed by Artium and the customer entity identified therein (the “Company”), each of which may be referred to individually as a “Party” or collectively as the “Parties”. Any such Statement of Work, and performance of the Parties thereunder, is governed by and subject to these Terms and Conditions which are incorporated by reference into and made a part of such Statement of Work (the “SOW”). These Terms and Conditions (i) are subject to change by Artium from time to time; (ii) in effect as of the effective date of a SOW shall apply for the performance of that SOW; (iii) will not apply retroactively to any SOW; and (iv) are dated and archived when superseded by a newer version.2. METHOD OF PERFORMING SERVICES.
Artium shall determine, and shall be solely responsible for, the method, details, and means of performing its services. Artium may select one or more of its Artium-trained subcontractors to assist Artium in the performance of its services (“Subcontractors”), and agrees to (a) impose written obligations consistent with the terms of the SOW on Subcontractors, and (b) require that Subcontractors comply with the terms of the SOW. Artium has the sole and exclusive right to supervise and control Subcontractors.3. STANDARD OF PERFORMANCE.
Artium’s services shall be performed in an expeditious and workmanlike manner.4. INDEPENDENT CONTRACTOR STATUS.
Artium enters into the SOW as, and will remain throughout the Term (defined below), an independent contractor. The SOW shall not be construed to create a relationship of employer and employee, a partnership, or joint venture between the Parties, and neither Party shall have any right to obligate or bind the other in any manner. Neither Party shall hold itself out as an authorized agent with power to bind the other Party in any manner.4.2 Nonexclusive.
Artium retains the right to perform any services for others at any time. Company retains the right to cause any services to be performed by its own personnel or others at any time.4.3 Taxes.
As neither Artium nor any Subcontractor is a Company employee for any purpose, including for federal or state income tax purposes, Company shall not take any action or provide any of them with any benefits or commitments inconsistent with any of such undertakings by any of them. Artium shall be solely responsible for the payment of all sales, use, or other taxes assessed against or associated with its services, including without limitation all of Artium’s income, payroll, or employment related taxes and payments.4.4 Residual Rights of Personnel.
The terms of confidentiality under the SOW shall not be construed to limit either Party’s right to independently develop or acquire products without use of the other Party’s Confidential Information (defined below) or Work Product (defined below). Further, either Party shall be free to use for any purpose the residuals resulting from access to or work with such Confidential Information or Work Product, provided that such Party shall maintain the confidentiality of the Confidential Information as provided herein. The term “residuals” means information in non-tangible form, which may be unintentionally retained by persons who have had access to the Confidential Information or Work Product, including ideas, concepts, know-how or techniques contained therein. Confidential Information or Work Product purposefully retained or intentionally retained (e.g. through an effort to memorize) shall not be considered as “residuals”. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant to either Party a license under the other Party’s Intellectual Property Rights (as defined below).
5. TERM AND TERMINATION
5.1 Term; Survival.
The term of the SOW shall commence on the date stated therein (the “Effective Date”) and, unless otherwise terminated sooner, remain in effect for the term set forth therein (“Term”). Any provision that by its nature or context is intended to survive any termination or expiration of the SOW, including but not limited to provisions relating to payment of outstanding fees, confidentiality and liability, shall so survive.5.2 Termination.
(a) Termination by Company. Termination by Company. Company may terminate the SOW without cause upon 14 days prior written notice to Artium, provided that Company pays Artium all sums due Artium. Company may terminate the SOW for cause immediately upon written notice to Artium if Artium fails to perform, fulfill, or comply with any of its obligations under the SOW and such non-conformance is not cured within 5 days, or if the Parties are unable to agree on a project start date pursuant to the SOW.
(b) Termination by Artium. Termination by Artium. Artium may suspend its services or terminate the SOW for cause upon written notice to Company if Company fails to pay an invoice in accordance with the requirements of Section 6 or otherwise fails to perform, fulfill, or comply with any of its obligations under the SOW, and if such non-conformance is not cured within 5 days.
(c) Duties Upon Termination. If the SOW is terminated for any reason, Artium shall immediately cease performing its services. Upon such termination, Artium shall advise Company of the extent to which performance has been completed through such termination date, and upon payment to Artium for all services performed and third party expenses incurred through the termination date, shall collect and deliver to Company whatever Work Product then exists.
Artium will perform its services on a time and materials basis at Artium’s rates as are set forth in the SOW (or, if not set forth in the SOW, at Artium’s then-current rates) and for any other fees and charges as set forth in the SOW or as otherwise mutually agreed upon by the Parties. Invoices are generally rendered every other week. Artium reserves the right, at its sole and absolute discretion, to require Company’s prepayment of any and all fees and charges, as may be set forth in the SOW. With advance written consent of Artium, other billing arrangements may be made. Artium is not obligated to perform its services unless Company is current in payment of all fees and charges.6.2 Payment Terms.
Unless otherwise set forth in the SOW, all fees and charges are due within fourteen (14) days following the date of the invoice. If Company disputes any fees or charges under any invoice, Company must notify Artium within fourteen (14) days of the date of such invoice and the Parties will then promptly investigate and resolve the dispute pursuant to Section 12.7 below.
The confidentiality obligations in this Section supersede all previous communications, agreements, promises, representations, understandings, and negotiations, whether written or oral, between the Parties as to confidentiality, including the terms of any applicable non-disclosure agreement. Each Party acknowledges and agrees that pursuant to the SOW each Party may have access to confidential or proprietary information of the other Party, including without limitation information and material concerning or pertaining to the other Party’s trade secrets or know-how, product plans, software, programs, network systems, data, inventions, processes, formulas, technology, designs, engineering, hardware configuration information, and/or projects (including projects for other companies that may be occurring concurrently in Artium’s offices while Artium is performing services pursuant to the SOW) or other materials, and that such information and material is confidential and proprietary to the Party disclosing such information to the other ("Confidential Information"). Each Party may use the Confidential Information only for the purpose of the SOW and in connection with the SOW. Each Party shall: (a) hold Confidential Information of the other Party in confidence and take reasonable precautions to protect such Confidential Information (including all precautions the Party employs with respect to its own confidential materials); (b) not divulge any Confidential Information of the other Party to any third party (other than to employees, Subcontractors, or independent contractors as set forth herein); and (c) not copy or reverse engineer any materials disclosed under the SOW or remove any proprietary markings from any Confidential Information. Any employee, Subcontractor, or independent contractor given access to any Confidential Information must have a legitimate “need to know” such information for the purposes of the SOW and be under an express written obligation to maintain the confidentiality of such information, and each Party shall remain responsible for each such person's compliance with the terms of the SOW.7.2 Exclusions.
The provisions of this Section 7 shall not apply to any information or material which: (a) was in the receiving Party's possession before receipt from the disclosing Party, (b) is or becomes a matter of public knowledge through no fault of the receiving Party, (c) was rightfully disclosed to the receiving Party by a third party without restriction on disclosure or (d) is developed by the receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence. The receiving Party may make disclosures (i) to any legal entity that is controlled by, controls, or is under common control with such Party (with “Control” meaning more than fifty percent (50%) of the voting power or ownership interests) (“Affiliate”) for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the requirements of this Section 7, and (ii) to the extent required by law or court order provided the receiving Party uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the disclosing Party to participate in the proceeding.7.3 Conclusion of Services.
The receiving Party’s obligations with respect to Confidential Information under the SOW shall expire 2 years from the Effective Date. Upon written request by the disclosing Party, the receiving Party shall: (i) cease using the Confidential Information, (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to the disclosing Party within 7 business days of receipt of request, and (iii) upon request of the disclosing Party, confirm in writing that the receiving Party has complied fully with these obligations.
All patents, copyrights, trade secrets, trademarks, and other similar rights (collectively, “Intellectual Property Rights”) in or to works of authorship, or other products and materials delivered to Company by Artium or its Subcontractors pursuant to the SOW, other than the excluded materials set forth in Sections 8.2 and 8.3, (collectively, “Work Product”) shall belong exclusively to Company and Artium hereby assigns to Company all of its right, title, and interest thereto. Artium agrees to execute such further documents as may be necessary to assist Company in perfecting ownership of Company’s rights in the Work Product, provided, however, that Artium shall not be required to execute any agreements by which it assumes obligations or liabilities beyond those set forth in the SOW. Artium is not being engaged to perform any investigation of third party Intellectual Property Rights including any searches of patents, copyrights, or trademarks related to the Work Product.
8.2 Artium Materials Exclusion.
All Intellectual Property Rights in or to works of authorship, or other products and materials developed or created by Artium or its Subcontractors prior to the commencement of or independent of the SOW (“Artium Materials”) shall belong exclusively to Artium and/or its licensors. In the event any deliverable provided to the Company pursuant to Artium’s services under the SOW contains Artium Materials, Artium hereby grants to the Company a perpetual, irrevocable, non-exclusive, non-transferable, royalty-free, non-sublicensable, right and license to use, modify, reproduce, and prepare derivative works of such Artium Materials in accordance with the applicable SOW.
8.3 Open Source Materials Exclusion.
Open source software referenced in the SOW or subsequently agreed to in writing by the Parties may be included in, or necessary for Company to use, the Work Product, but are excluded from Company’s Work Product ownership rights set forth in Section 8.1. Artium may (a) obtain such open source software on Company’s behalf, (b) incorporate such open source software into the Work Product, and (c) submit back to open source libraries any improvements made to the open source software during the course of performing the services, to the extent submission of such patches does not violate the confidentiality obligations set forth in Section 7 of the SOW. Upon reasonable request during the term, or earlier termination, of the SOW, Artium will provide a list of such open source software used in the Work Product.
8.4 Company Materials.
Company hereby grants to Artium a nonexclusive, non-transferable, worldwide license to use, modify, reproduce, and prepare derivative works of Company information and materials provided by or on behalf of Company to Artium in connection with the SOW (“Company Materials”), solely for the purpose of performing Artium’s services for Company under the terms of the SOW, with no right to grant sublicenses other than to Subcontractors. Artium shall not be liable under the SOW because of failure or delay in performing its obligations hereunder on account of Company’s failure to provide timely access to facilities, space, power, documentation, networks, files, software, and Company personnel that are reasonably necessary for Artium to perform its obligations.
Company represents and warrants to Artium that the Company Materials will not infringe or violate the copyrights or trade secret rights of any third party.
EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH ABOVE, SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND AS TO ANY OF THE SUBJECT MATTER OF THE SOW, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SERVICES AND WORK PRODUCT. EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
10.2 SECTION 10.1 SHALL NOT LIMIT OR EXCLUDE A PARTY’S (A) LIABILITY ARISING FROM OR RELATED TO BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, OR (B) INDEMNIFICATION OBLIGATIONS.
11. IP INFRINGEMENT INDEMNITY
11.1 Artium will defend at its expense any claim, demand, action, suit or proceeding (collectively, “Claims”) brought against Company by any third party that the Work Product or Artium Materials infringe or violate such third party’s copyright or trade secret rights, and Artium will pay all damages, costs and expenses (including reasonable costs and expenses of attorneys, professionals and accountants) finally awarded against Company by a court of competent jurisdiction as a result of any such Claim or payable by Company pursuant to a settlement agreement to which Artium agrees in writing in settlement of such Claim; provided, however, that Company (a) promptly notifies Artium in writing of such Claim; (b) promptly gives Artium the right to solely control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Artium’s own choosing; and (c) gives reasonable assistance and full cooperation for the defense of same. If the Work Product or Artium Materials are, or in Artium’s opinion might be, held to infringe as set forth above, Artium may, at its option, (i) replace or modify the applicable Work Product or Artium Materials so as to avoid infringement, or (ii) procure the right for Company to continue the use of the applicable Work Product or Artium Materials. The foregoing indemnity will not apply to any Claim based upon or arising solely from (u) any use of the Artium Materials other than as expressly permitted by the SOW, (w) adherence in whole or in part to Company specifications; (x) changes or modifications to the applicable Work Product or Artium Materials made by Company if the applicable changes or modifications forms a basis for such Claim, (y) Company’s continued infringing activity after being informed of modifications that would have avoided the infringement or (z) any combination of the applicable Work Product or Artium Materials with any works of authorship or other products or materials not furnished by Artium if the applicable combination forms a basis for such Claim.
11.2 Company will defend at its expense any Claim brought against Artium by any third party that the Company Materials infringe or violate such third party’s copyright or trade secret rights, and Company will pay all damages, costs and expenses (including reasonable costs and expenses of attorneys, professionals and accountants) finally awarded against Artium by a court of competent jurisdiction as a result of any such Claim or payable by Artium pursuant to a settlement agreement to which Company agrees in writing in settlement of such Claim; provided, however, that Artium (a) promptly notifies Company in writing of such Claim; (b) promptly gives Company the right to solely control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Company’s own choosing; and (c) gives reasonable assistance and full cooperation for the defense of same. If the Company Materials are, or in Company’s opinion might be, held to infringe as set forth above, Company may, at its option, (i) replace or modify the applicable Company Materials so as to avoid infringement, or (ii) procure the right for Artium to continue the use of the applicable Company Materials. The foregoing indemnity will not apply to any Claim based upon or arising solely from (w) any use of the Company Materials other than as expressly permitted by the SOW, (x) changes or modifications to the applicable Company Materials made by Artium if the applicable changes or modifications forms a basis for such Claim, (y) Artium’s continued infringing activity after being informed of modifications that would have avoided the infringement or (z) any combination of the applicable Company Materials with any works of authorship or other products or materials not furnished by Company if the applicable combination forms a basis for such Claim.
11.3 With respect to a Party, this Section 11 represents the sole and exclusive remedy of such Party and the entire liability and obligation of the other Party regarding infringement or claims of infringement of any Intellectual Property Right.
All notices and other communications provided for under the SOW shall be in writing and shall be delivered by hand or by FedEx, UPS, or other reputable overnight courier service, mailed by certified or registered mail, or sent by electronic communication to the addresses for Artium and Company as set forth in the SOW. Notices sent by hand or by overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received (or refused). Notices and other communications to a Party delivered or furnished by electronic communication by way of the foregoing e-mail addresses shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient, provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
12.2 Entire Agreement; Interpretation.
The SOW (including these Terms and Conditions, which are incorporated by reference into the SOW) constitutes the entire agreement between the Parties with respect to the subject matter of the SOW and supersedes all previous communications, agreements, promises, representations, understandings, and negotiations, whether written or oral, between the Parties with respect to the subject matter of the SOW, including with respect to confidentiality and any applicable non-disclosure agreement. In the event of a conflict between the provisions of these Terms and Conditions and the specific provisions set forth in the SOW, the applicable provisions of these Terms and Conditions shall control unless conflicting provisions of the SOW specifically reference the conflicting provisions of these Terms and Conditions that are inconsistent therewith, in which case the SOW shall control for that conflicting provision only.
12.3 No Waiver.
No waiver of any provision or consent to any action shall constitute a waiver of any other provision or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a Party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a Party shall be null and void if the Party requesting such waiver has not provided a full and complete disclosure of all material facts relevant to the waiver requested. The failure of a Party to notify the other Party of any default under the SOW shall not be deemed to be a waiver by such Party of any continuing default by the other Party nor of the Party’s right to declare a default of any such continuing breach, and the failure of such Party to insist upon strict performance of any of the terms, covenants, or conditions of the SOW shall not be construed as a waiver or relinquishment of the Party’s right to declare a default of any breach for the future of any such terms, covenants, conditions, or options, but the same shall be and remain in full force and effect.
12.4 Amendments and Modifications.
No amendment, modification, or supplement, including those by custom, usage of trade, or course of dealing, of any provisions of the SOW shall be binding on the Parties unless it is in writing and signed by both Parties at the time of the amendment, modification, or supplement and which specifically references the SOW and the provisions that are amended, modified, or supplemented. Any such modifications shall apply only to that SOW, and not to any previous or subsequent SOW, unless expressly stated otherwise. No oral order, objection, claim, or notice by either Party to the other shall affect or modify any of the terms or obligations contained in the SOW.
If any provision of the SOW or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of the SOW, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of the SOW shall remain in effect and be enforceable to the fullest extent permitted by law.
12.6 Successors and Assigns.
Each Party binds itself, and its successors and permitted assigns, to the other Party and to the successors and permitted assigns of such other Party with respect to all covenants, agreements, and obligations contained in the SOW. Neither Party may assign the SOW to a separate legal entity, without the other Party's written consent (which consent shall not be unreasonably withheld or delayed); provided, however, that no such written consent shall be required for such Party to assign the SOW to a separate entity in connection with a merger, acquisition, or sale of all or substantially all of its assets with or to such other separate entity. Nothing herein shall limit Artium’s right to assign its right to receive and collect payments hereunder. Any assignment or transfer not permitted by this Section 12.6 shall not be effective and shall constitute a breach of the SOW.
12.7 Governing Law; Disputes; Mediation and Arbitration.
The SOW and all of the transactions contemplated by it, as well as all matters arising out of or relating to it, including without limitation claims as to its validity, interpretation, construction, performance, and all claims sounding in tort, are governed by and shall be construed in accordance with the domestic laws of the State of California excluding any conflicts-of-laws rule or principle that might refer the governance or the construction of the SOW to the law of another jurisdiction.
In the event of any dispute, claim, question, or disagreement arising out of or in connection with the SOW (including without limitation these Terms and Conditions), or the breach thereof (collectively, “Disputes”), the Parties shall use their best efforts to settle the Dispute. To this effect, the Parties will adhere to the following procedures if and when any such Dispute arises. A Party who intends to raise a Dispute must first send to the other, by certified mail, a written Notice of Dispute (“Notice,” the date of such notice, the “Dispute Notice Date”). Any such Disputes will be first referred to executive officers designated by each affected Party. If such executive officers are unable to resolve such a Dispute within thirty (30) days of the Dispute Notice Date, the matter will be presented to the chief executive officers of such Parties, or their respective designees (which designees must be senior executives), for resolution through good faith discussions. In the event that the chief executive officers or their designees cannot resolve the dispute within thirty (30) days of being requested by a Party to resolve the Dispute, then, the Parties agree to endeavor first to settle the Dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The Parties further agree that any unresolved controversy or claim arising out of or in connection with the SOW (including without limitation these Terms and Conditions), or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Los Angeles, California.
Company acknowledges and agrees that the employees, contractors and Subcontractors of Artium who performed or are performing the services for Company under the SOW (individually a "Person," and collectively "Personnel") are a valuable asset to Artium, and that Artium incurs substantial time and costs in recruiting, placing and orienting such Personnel. Accordingly, Company agrees that: (a) for the Term, Company will neither solicit for hire nor hire directly or indirectly any Personnel, and (b) for a period of 12 months after termination of the SOW, Company will not solicit for hire any Personnel. In addition to any other available remedies, in the event of a breach of Section 12.8(a), Artium may immediately terminate the SOW and Company shall pay Artium $50,000 per Person, and in the event of a breach of Section 12.8(b), Company shall pay Artium $50,000 per Person, in each case the sum representing an amount the Parties acknowledge and agree accurately reflects the reasonable value of Artium’s time and expenses for recruitment, placement and orientation, including without limitation costs or placement fees to employment agencies that Company would otherwise incur for recruitment, and lost profits.
Company agrees to cooperate with Artium in marketing efforts by permitting Artium to (a) post Company’s name and logo on the customer page of Artium’s website and other published Artium client lists, (b) use Company’s name and logo in non-public portfolio materials, and (c) publish press releases indicating that Artium is providing services for Company. Company further agrees to serve as an occasional reference for press, analysts, and prospective Artium customers.
12.10 Remedies Cumulative.
Nothing in the SOW shall constitute a waiver or limitation of any right or remedy, whether in equity or at law, which Company or Artium may have under the SOW or applicable law. All rights and remedies of Company and Artium, whether under the SOW or applicable law, shall be cumulative.
12.11 Force Majeure.
Except for the payment of fees, neither Party shall be liable under the SOW because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such Party.
Artium’s services are only to be accessed from/provided within the United States, Canada, and Mexico.