PROFESSIONAL SERVICES AGREEMENT

These Professional Services Terms and Conditions (“Conditions”) set forth are general terms and conditions under which you engage 42Gears to provide certain professional services to you in pursuant to a statement of work, whether in print or online or in any form, which describes the tasks or services to be provided (“SOW”).  The SOW together with these Conditions, constitutes the “Agreement”. The agreed upon SOW describes the services to be provided (“Professional Services”).

1. DEFINITION 

1.1 AUTHORIZED PARTNER: is a reseller or distributor that is enabled and authorized by 42Gears to sell Professional Services to be delivered by 42Gears subject to the partner program requirements.

1.2 COMPENSATION/FEES: Fees or Rates which are agreed between the parties and set forth in the Purchase Order Form.

1.3 PROFESSIONAL SERVICES: means the 42Gears services offerings including, without limitation, implementation, configuration, consulting, or training services to be provided to Customer under any applicable SOW.

1.4 STATEMENT OF WORK (SOW): It's a written document executed between 42Gears and client or Authorized Partner and client describing professional services to be provided hereunder exhibit A or in any other document which will be signed and be read with this agreement.

1.5 PURCHASE ORDER: is a transactional document that includes the applicable Fees, payment terms and other transaction details, and where no SOW is contemplated, the Order Form will include a predefined scope, level of effort and deliverables as set forth at and sold on either a time and materials basis for specified rates or for a fixed fee as applicable.

2. PROFESSIONAL SERVICES

a. Scope of Services: Unless otherwise agreed between the parties, 42Gears agrees to provide, and Customer agrees to take and pay for the services set out in a statement of work (the “Services”) as such statements of work may be agreed between the parties from time-to-time (each an “SOW”) The cost for Services under each SOW shall be set forth in a quote from 42Gears or its authorized reseller associated with such SOW.

b. Customer shall reimburse 42Gears for approved expenses reasonably incurred in the performance of Professional Services, Training services will be provided by 42Gears to the Client either on Client premises or on 42Gears premises or as virtual training sessions via online, as set out in detail in the SOW.

c. If the parties desire to make changes to an SOW during the engagement to address changes in scope or cost, the parties will complete and execute a Change Order. Customer acknowledges that it may need to purchase additional Professional Services if not completed within any estimated time frames as presented within an Order or SOW.

d. The Services are provided at Customer’s request and Customer accepts that it is responsible for ensuring that the Services are suitable for its own needs.

e. 42Gears will provide to Customer an appropriately qualified person(s) (the “Consultant who will perform the Services in a timely and professional manner, during 42Gears’s normal business hours, exercising due skill and care and using reasonable efforts to meet any target dates agreed in the SOW.

f. In the event that the Services are completed in less time than is estimated in the applicable SOW, the unused time shall expire and shall not be used for any subsequent engagements.

3. NATURE OF SERVICES.

a. This Agreement is limited to Professional Services and does not convey any right to use Subscription Products. Any use of Subscription Products by Customer will be governed by 42Gears’s Subscription Agreement or other separate agreement entered into by the parties explicitly governing such rights and obligations. Customer agrees that its purchase of Professional Services is not contingent on: 

(i) the delivery of any future Subscription Products functionality or features, other than any deliverables asset forth and subject to the terms of the applicable SOW or Order Form; or 

(ii) on any oral or written public comments by 42Gears regarding future Subscription Products' functionality or features.

b. Independent Contractor. 42Gears will determine the method, details, and means of performing the Services. 42Gears may use employees or contractors to perform the Services under this Agreement. 42Gears and Client understand and intend that 42Gears shall perform the Services as an independent contractor and not as an employee of Client. Nothing in this Agreement will be deemed to create an agency, partnership, or joint venture between the Parties.

4. PAYMENT OF FEES

• 42Gears fees for the provision of Training Services, the relevant payment terms are set out in the Purchase Order. Unless otherwise provided, all payments to 42Gears hereunder are due within thirty (30) days of the date of the applicable invoice and are non-cancellable and non-refundable. 42Gears may suspend training services until overdue amounts are paid, except for any amounts disputed in good faith. All rates/fees here under are exclusive of any and all taxes (including value added taxes), assessments, charges and levies of any governmental authority, all of which shall be the sole obligation of Client. Further, in the event that the SOW does not state that expenses are included in the fee for the Services, then Customer shall reimburse 42Gears for any expenses reasonably and properly incurred by the Consultant in performing the Services, upon submission of copies of receipts, or as otherwise agreed in writing. 42Gears will maintain accurate records of the time spent and expenses incurred in providing the Services.
• If you purchase Professional Services through a Reseller, you acknowledge that the Reseller and 42Gears are independent of each other and that the Reseller does not have any authority to bind 42Gears in any way, make any modifications to this Agreement or to make any warranties or representations on 42Gears’s behalf and that 42Gears has no liability whatsoever for any actions or omissions of any Reseller.

5. TERM AND TERMINATION

• Term.
  The term of this Agreement will begin on the Effective Date and will remain in full force and effect, unless earlier terminated as provided in this Agreement. 
• Termination.
  (i) Either party may terminate this Agreement upon fifteen (15) days’ prior written notice to the other party hereto. Unless otherwise stated herein, termination of this Agreement shall not affect any Professional Services currently being delivered under an SOW, and this Agreement shall remain in full force and effect until the completion thereof.
  (ii) Either party may terminate this Agreement and/or any SOW executed between the parties if:
  • the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after written notice; or 
  • the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

42Gears may (at its sole discretion) suspend delivering Professional Service if Customer breaches the terms of Section 4 (Payment of Fees) until such breach is remedied. 

If this Agreement is terminated by 42Gears in accordance with this Section 5, Customer will pay (if applicable) any and all unpaid Fees due and payable as of the date of termination, to the extent permitted by applicable law. For the avoidance of doubt, in no event will termination relieve Customer of its obligation to pay any Fees payable to 42Gears for the Professional Services performed in the period prior to the effective date of termination.

Except as explicitly provided for herein, upon termination of this Agreement (or any SOW or Order Form as applicable) Customer shall not be entitled to any refund or credit.

6. PROPRIETARY RIGHTS 

All reports, documents, files, media, or other written materials (collectively “42Gears Intellectual Property”) created, developed, or produced by 42Gears in connection with the Services provided is and will remain the exclusive property of 42Gears. Client does not under this Agreement acquire any ownership rights in or to any software, documentation, tools, techniques, methodologies, or other material which has been created as part of the Services and which is proprietary to the 42Gears.

7. NO SOLICITATION

During the term of SOW, and for six (6) months after its expiry or termination, Customer will not solicit or seek to induce to leave the employ of 42Gears any person who was, during the performance of the Services, an employee of 42Gears, and who worked with, or under the supervision of, Customer at any time during that period.

8. LIABILITY AND DAMAGES

1. Limitation of Liability. Except as expressly stated herein, 42Gears make no warranties, conditions, undertakings, or representations of any kind, either express or implied, statutory or otherwise, in relation to the Services and/or any deliverables resulting from such Services, including without limitation any implied warranties or conditions of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement or arising from course of dealing, usage or trade.
2. The liability of 42Gears to Customer in respect of any claim for breach of contract, negligence, breach of statutory duty or otherwise shall be limited as follows: (a) In respect of any claim for fraudulent misrepresentation, personal injury or death caused by the negligence of 42Gears, its employees, agents or subcontractors, or any other liability that cannot be limited by applicable law, no limit shall apply; (b) In respect of all other claims, 42Gears’s aggregate liability shall be limited to the amount of the fees paid to 42Gears under the relevant SOW(s).
3. 42Gears shall not be liable to Customer for any indirect, consequential, incidental or special damage or loss of any kind including, but not limited to, loss of profits, loss of contracts, business interruptions, loss of or corruption of data however caused and whether arising under contract or tort, including without limitation negligence.

9. GENERAL PROVISIONS

a. Governing Law. If the Customer is situated in the United States or Canada, this Agreement shall be governed by and interpreted in all respects by the laws of the State of Delaware, without reference to its conflicts of laws principles and agree to submit to the exclusive jurisdiction of the courts of the Delaware.

If the Customer is situated in India, this Agreement shall be governed by and interpreted in all respects by the laws of the Republic of India without reference to its conflict of laws’ principles and agree to submit to the personal jurisdiction of the courts in Bengaluru, India.

If the Customer is situated in the United Kingdom or European Union, this Agreement shall be governed by and interpreted in all respects by the laws of England and Wales without reference to conflict of laws' principles and agree to submit to the exclusive jurisdiction of the courts in England and Wales, United Kingdom.

If the Customer is situated in any other country, this Agreement shall be governed by and interpreted in all respects by the laws of the Republic of India without reference to conflict of laws' principles and agree to submit to the exclusive jurisdiction of the courts in Bengaluru, India.

b. Force Majeure. Neither Party is responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, including but not limited to act of God, acts of government, floods, fires, earthquakes, tornados, civil unrest, acts of terror, labor disputes, computer, telecommunications, internet service provider or hosting facility failures, delays involving hardware, software, or power systems, malicious code or denial of service threats; provided however, that the Party so affected will promptly resume performance as soon as reasonably practicable.

c. Entire Agreement. This Agreement (including any referenced Exhibits) constitutes the entire agreement between the Parties. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties hereto.

d. Notices. Any notice, request, approval, or query related to the agreement, the customer can send a request at legal@42gears.com.

e. Waiver. No delay or failure by either Party to exercise any right or power under this Agreement will constitute a waiver of that right.