Standard Terms of Service
These terms of service set forth terms under which Argon Cloud LLC. and its affiliates (“Argon Cloud”) shall provide the customers (“Customer”) with certain services described on Statement(s) of Work and are effective as of the date set forth in the SOW.
1. Services. Argon Cloud agrees to provide the technology-enabled services described in the Statement(s) of Work that reference this Agreement (“Services”). Deliverables provided to Customer as part of the Services will be set forth on a Statement of Work (“Deliverables”). The parties may execute additional Statements of Work describing Services and Deliverables, which will become part of this Agreement upon execution. Customer agrees to provide Argon Cloud with reasonable access to Customer materials, resources, personnel, equipment, or facilities to the extent such access is necessary for the performance of Services.
2. Changes to Scope of Services. If Customer desires to change a Statement of Work, Customer will submit a written request to Argon Cloud detailing the proposed changes. If Argon Cloud wishes to accommodate such changes, Argon Cloud shall prepare an amendment to the Statement of Work detailing the changes, any fee adjustments required as a result of such changes, any adjustments to the delivery schedule required as a result of such changes, and any other adjustments (a “Change Order”). If the Change Order is agreeable to Customer, both parties will execute the Change Order.
3. Payment. Customer will pay Argon Cloud the amounts and at the times set forth on the applicable Statement of Work. Customer agrees to reimburse Argon Cloud for pre-approved travel and expenses incurred in the performance of the Services. Argon Cloud will invoice Customer for expenses incurred and will provide copies of receipts for which charges are incurred. Except as set forth in this Agreement, all payments are non-refundable and, except as set forth in the Statement of Work, shall be made in U.S. dollars within thirty (30) days from the date of Argon Cloud’s invoice. Customer will be responsible for all taxes, withholdings, duties, and levies in connection with the Services (excluding taxes based on the net income of Argon Cloud). Any late payments shall be subject to a service charge of 1.5% per month of the amount due, or the maximum amount allowed by law, whichever is less, plus actual costs of collection. All rates will increase 5% on each anniversary of the Effective Date.
4. Term and Termination. This Agreement remains in effect until terminated in accordance with this Section 4. Either party may terminate this Agreement at any time when there is no Statement of Work then in effect by giving the other party thirty (30) days written notice. Either party may terminate this Agreement or any Statement of Work if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Following termination, Sections 5 (Ownership and License), 7 (Limitation of Liability), 8 (Confidential Information), 9 (Export Compliance), and 10 (Miscellaneous) will survive. Section 3 (Payment) will survive with respect to payments incurred prior to the effective date of termination.
5. Ownership and License.
5.1. Background Materials. Customer hereby grants Argon Cloud a limited right to use any Customer pre-existing materials (tangible or intangible) provided to Argon Cloud in connection with the Services (the “Customer Materials”) solely for the purpose of performing the Services. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials, which shall be Confidential Information of Customer, as set forth more fully in Section 8. Argon Cloud hereby grants Customer a perpetual license to use any Argon Cloud pre-existing materials, including but not limited to know-how, libraries, assets, tools, models, techniques, expertise, whether tangible or intangible, provided to Customer in connection with the Services or Deliverables (the “Argon Cloud Materials”), solely for the purpose of Customer’s use of the Services and Deliverables and in accordance with the terms and conditions of this Agreement. Argon Cloud owns and will retain ownership (including all intellectual property rights) in the Argon Cloud Materials, which shall be Confidential Information of Argon Cloud, as set forth more fully in Section 8.
5.2. Deliverables. Subject to (a) full payment of fees set forth on an applicable Statement of Work, and (b) Sections 5.1 and 5.2, Customer owns and will retain ownership (including all intellectual property rights) in and to the Deliverables, and Argon Cloud will assign and does hereby assign all right, title, and interest in the Deliverables to Customer. For the avoidance of doubt, the parties acknowledge that to the extent the Deliverables consist of software applications designed to be operated on or accessed through a third-party platform (such as, but not limited to, salesforce.com, Workday, or Google), then Customer is solely responsible for obtaining license rights to access such a platform.
6. Limited Warranty. Argon Cloud will perform the Services in a professional and workmanlike manner. Argon Cloud will, as its sole liability for failure to meet this warranty: (a) re-perform the non-conforming Services or (b) re-deliver a conforming version of the non-conforming Deliverables at no additional cost to Customer if, in either case, notified of the non-conformity within ten (10) days of delivery of the applicable Service or Deliverable or, if Argon Cloud determines such remedies to be impracticable, (c) terminate all or part of the applicable Statement of Work and refund the portion of fees attributable to such non-conforming Services or Deliverables. EXCEPT FOR THE FOREGOING WARRANTY, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND ARGON CLOUD EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ARGON CLOUD’S LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID BY CUSTOMER TO ARGON CLOUD IN THE LAST TWELVE MONTHS UNDER THE APPLICABLE STATEMENT OF WORK AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 7 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. Confidential Information.
8.1. Definition. Each party agrees that all code, inventions, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, business plans, marketing plans, customer names, and other technical, financial, or commercial information and intellectual property a party obtains (“Receiving Party”) 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. For the avoidance of doubt, the terms of this Agreement, the Argon Cloud tools, and associated documentation or materials provided as part of the Services shall constitute Argon Cloud’s Confidential Information. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
8.2. Exceptions. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. Export Compliance. Customer acknowledges that the Deliverables may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not remove or export from the United States or allow the export or re-export of any part of the Deliverables in violation of any U.S. export law or regulation or to a U.S.-embargoed country. Customer warrants that it is not named on any U.S. government denied-party list.
10. Miscellaneous. Each party is an independent contractor of the other and neither is an employee, agent, partner, or joint venturer of the other. Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement without the advance written consent of the other party, except that Argon Cloud may assign this Agreement to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or part of Argon Cloud’s assets or voting securities. Any notice, report, approval, or consent required or permitted under this Agreement will be sent to the address specified above. Any waiver by either party of any breach of this Agreement, whether express or implied, will not constitute a waiver of any other or subsequent breach. No provision of the Agreement will be waived by any act, omission, or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. For the duration of this Agreement and for twelve (12) months thereafter, Customer shall not solicit for employment any persons employed or otherwise engaged by Argon Cloud, whether or not such individual had direct interaction with Customer; the foregoing restriction includes, but is not limited to, persons who are Argon Cloud employees, contractors, or agents. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Neither party shall be liable to the other for any delay of failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events that are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency. This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the State of Florida without regard to its conflicts of laws provisions. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties authorized to bind the parties. No provision of any purchase order or other business form (including but not limited to security access forms of any kind) employed by either party will supersede the terms and conditions of this Agreement, and any such document shall be for administrative purposes only and shall have no legal effect. Both parties agree that 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.