1.1. DevSoft Solutions, LLC (“Company”) shall provide professional services (“Services”) to Client as specified in a Statement of Work executed by the parties referencing these Terms and Conditions. In the event of a conflict between these Terms and Conditions and a Statement of Work, the Statement of Work shall prevail. Terms and conditions printed on purchase orders and similar documents referencing Services shall be void and of no effect. Any change in the scope of Services as set forth in a Statement of Work shall be agreed upon in writing (also by Email) by the parties. Company shall have no obligation to perform services in connection with any such change until the parties have agreed upon the effect of such change on Company’s fees and/or schedule of performance.
1.2. To the extent that Client does not fulfill its obligations under these Terms and Conditions, then (without prejudice to Company’s right and remedies) Company will be relieved of its obligations to Client in so far as Company is prevented from performing the Services in accordance with these Terms and Conditions and Company shall not be liable for any costs, charges or losses sustained by Client arising directly from any failure of Client to fulfill its obligations under these Terms and Conditions.
INVOICES AND PAYMENT
2.1. Unless otherwise stated in a Statement of Work, Company shall invoice Client in equal monthly installments for the duration of the services rendered plus all out-of-pocket expenses incurred during the previous month. Company shall have the right to invoice an upfront payment of 20 % after receiving the formal order by Client. Client will pay invoices within thirty (30) days after delivery of invoice. If Client is overdue with any undisputed payment hereunder, then without prejudice to Company’s other rights and remedies, Company shall have the right to immediately suspend performance of the Services until Company has received payment of the overdue amount together with any accrued interest. In the event Client is overdue with any undisputed payment for thirty (30) days or more, this shall be considered as material breach of these Terms and Conditions.
2.2. Company shall be reimbursed for the actual out-of-pocket expenses of its personnel and other expenses incurred in performance of the Services. Company personnel traveling shall be reimbursed for economy class airfare, car rental, lodging, other travel expenses and reasonable and actual meal expenses.
2.3. Client shall pay any and all applicable value added and any other similar taxes of any nature assessed on the Services and/or the Deliverables.
3.1. Client will have three (3) business days after receipt of any Deliverable (or portion of Deliverable, if such Deliverable is to be delivered in milestones as set forth in an applicable Statement of Work) to test and review such Deliverable (“Acceptance Period”).
4.1. Company warrants to Client that (a) the Services shall be performed in a professional and workmanlike manner in accordance with applicable commercial standards; and (b) for a period of thirty (30) days from acceptance of the Services, each Deliverable shall comply with the Specifications in all material respects.
4.2. The foregoing warranties shall only apply provided that: (a) any software or other materials developed by Company have not been modified, unless authorized by Company in writing; (b) there has been no material change in the computer equipment on which Company installed any software, unless authorized by Company in writing; (c) the computer equipment on which any software was installed has sufficient capacity, is in good operating order, and is installed in a suitable operating environment; (d) the nonconformity was not caused by Client (including without limitation being in breach of its obligations under clauses 1.2 and 1.3 above) or its agents or any third party; (e) Client promptly notifies Company of the nonconformity after discovery; (f) the relevant Services are not performed on the basis of subsequent calculations, and (g) all fees due to Company have been paid in accordance with the terms of these Terms and Conditions and applicable Statement of Work.
4.3. 4.3. Client shall be responsible for the use of any Deliverables to achieve Client’s intended results. Should any of the Services not comply with the foregoing warranties, Client shall promptly inform Company of the deficiency and Company shall use commercially reasonable efforts to cause the Services to comply with the applicable warranty. If compliant Services or Deliverables cannot be provided within a reasonable time (at least 30 days) after notification, Client’s sole and exclusive remedy shall be to terminate these Terms and Conditions and receive a refund of any fees already paid to Company for the non-conforming Services or Deliverables.
4.4. The express terms of these Terms and Conditions are in lieu of all representations, warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, in law or in equity, and including any condition of satisfactory quality or fitness for a particular purpose whether or not any purpose has been notified to Company, all of which are hereby excluded to the fullest extent permitted by law.
LIMITATION OF LIABILITY
5.1. This clause sets out the entire financial liability of each party to the other (including any liability for the acts or omissions of its employees, agents and sub-contractors) in respect of any breach of these Terms and Conditions and/or a Statement of Work and for any other liability to the other party whatsoever (including any liability in tort (including negligence)) under or in connection with these Terms and Conditions.
5.2. Nothing in these Terms and Conditions shall limit or exclude either party’s liability under or in connection with these Terms and Conditions (i) for death or personal injury caused by negligence, (ii) for fraud or fraudulent misrepresentation or (iii) for any liability which may not be excluded or limited as a matter of law.
5.3. Subject to section 5.2, in no event will either party be liable under or in connection with these Terms and Conditions for loss of actual or anticipated income or profits, loss of goodwill or reputation, loss of anticipated savings, loss of data or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
5.4. Subject to section 5.2, each party’s maximum aggregate liability under or in connection with these Terms and Conditions and/or a Statement of Work, whether in contract, tort (including negligence) or otherwise, shall be limited to an amount equal to 125% of the total fees paid by Client to Company pursuant to the relevant Statement of Work, subject to a maximum of $100,000.00. If the relevant Statement of Work is mainly a long-term contract with a term of more than one year, the limitation shall be set at 125% of the total amount of the fees paid during the twelve (12) month period immediately preceding the event or circumstances first giving rise to such liability, subject to a maximum $100,000.00. This limitation of liability is cumulative and not per incident.
6.1. Either party may terminate a Statement of Work (provided it is on a time and materials basis) without cause upon giving the other party thirty (30) days prior written notice. In the event such termination without cause is initiated by the Client, Client shall maintain and pay for the Company staffing levels existing at the time of the notice of termination during the thirty (30) day termination period.
6.2. Either party may terminate a Statement of Work for a material breach thereof if such breach has not been cured, within thirty (30) days of the written notice from the non-breaching party to the breaching party specifying the alleged breach. If, at the time of these Terms and Conditions and/or Statement of Work’s termination under this section, one party has already (partially) performed its obligations, the other party shall be obliged in return to perform its relevant obligations to an equivalent degree.
6.3. Upon termination of any Statement of Work, Client will immediately pay Company all fees, costs and expenses owed to or incurred by Company up to the effective date of such termination; provided, however, that with respect to any Statement of Work which is the basis for the termination, Client will pay Company a pro rata amount of the fees due for such Statement of Work (based on the percentage of completion of the Services, as reasonably determined by Company). Furthermore, each party shall promptly return all data, materials and other property of the other held by it; provided, however, that if Client has not fully paid all outstanding invoices for Services performed by Company prior to the date of termination, Company shall be entitled to retain or recover any Deliverables until payment is made. This right shall be in addition to any other remedies it may have at law or in equity.
6.4. Unless the parties subsequently agree otherwise in writing, the terms and conditions of these Terms and Conditions shall govern any services which Company may provide to Client in the future, regardless of whether or not such services are performed pursuant to a Statement of Work.
7.1. Each party agrees that any non-public information concerning the other party’s business and/or operations disclosed by the other party and identified in writing as confidential (“Confidential Information”) shall not, without the disclosing party’s authorization, be disclosed to any other party or used by the receiving party for its own benefit except as contemplated by these Terms and Conditions. The recipient shall protect the confidentiality of the Confidential Information using at least the same measures it takes to protect its own confidential information of similar nature and shall restrict access to Confidential Information to its personnel on a need to know basis.
7.2. Nothing in these Terms and Conditions shall restrict either party’s use of information (including, but not limited to, ideas, concepts, knowhow, techniques and methodologies): (a) that is or becomes publicly available through no breach of these Terms and Conditions; (b) independently developed by it; (c) previously known to it without obligation of confidence; or (d) acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information. If either party is required by law or regulation to disclose Confidential Information, such party shall promptly notify the other party and may comply with such requirement. Confidential Information shall be returned or destroyed upon the earlier of: (i) the completion of the Services; or (ii) the disclosing party’s request. Company may retain, subject to the obligations of this Section 7, copies of Confidential Information for record keeping purposes.
WAIVER / SEVER-ABILITY
8.1. Waiver of any breach or failure to enforce any term of these Terms and Conditions shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. No waiver may be valid against any party hereto unless made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. If any term or provision of these Terms and Conditions is found by a court of competent jurisdiction to be illegal, invalid, or otherwise unenforceable, such term or provision shall not affect these Terms and Conditions other terms or provisions, or the whole of these Terms and Conditions, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the parties.
9.1. Except with regard to payments due to Company, neither party shall be liable for any delays or failures in performance due to circumstances beyond its control which could not be avoided by the exercise of due care.
10.1. Independent Contractor. Company is an independent contractor, and no party shall have the authority to bind, represent or commit the other. Nothing in these Terms and Conditions shall be deemed or construed to create a joint venture, partnership, or agency relationship between the parties for any purpose.
10.2. Use of Client’s Name. Client agrees that Company may use the Client’s name and trademarks as a client reference, including a general description of the Services provided to Client by Company, in its resumes, client list, case studies, and in other promotional information including, but not limited to, press releases, brochures, reports, letters, white papers and electronic media such as e-mail or Web pages.
10.3. Survival. The terms of Sections 2, 4, 5, 7, 9 and other sections which by their nature are intended to extend beyond termination shall survive termination of these Terms and Conditions for any reason.
10.4. No set-off. Except as permitted by law, all amounts due under these Terms and Conditions shall be paid in full without any set-off, restriction, abatement, condition, withholding or deduction.
10.5. Governing Law. These Terms and Conditions (and any dispute or claim relating to it, its enforceability or its termination or which may otherwise arise in connection with it) shall be governed in all respects by and construed in accordance with applicable Federal law, as well as in accordance with the law of the State of South Carolina.
10.6. Jurisdiction. Each party irrevocably submits to the exclusive jurisdiction of the State and Federal Courts of Greenville County, South Carolina as regards any claim, dispute or matter arising out of or in connection with these Terms and Conditions.