General Terms of Services
General Terms of Services
1. SERVICES
Provectus shall perform all Services described in Statement of Work (“SOW”) entered into under this General Terms of Services (“Terms”). SOW shall describe the Services to be performed hereunder, the applicable rates, contact persons, any applicable milestones, deadlines, or deliverables, and any special conditions or instructions relating to the services described in SOW directly relevant and linked to these Terms (“Services”) to be performed. These Terms and SOW shall form the whole contract between the parties. Any services related to and performed under these Terms shall be subject to the provisions of these Terms. In case Customer does not sign SOW when all of the terms of works were discussed and accepted by the Parties, and the works on the project have already been started upon Customer’s written approval (via email), it is deemed that SOW and Terms have been signed.
2. PAYMENT
The terms of this Section 2 shall not apply to the invoices hereto timely paid by Amazon Inc. In cases where AWS funding is not granted for any reason, Provectus will invoice the customer directly under the terms specified in this Section 2. Provectus shall send monthly invoices directly to the Customer, stating the time spent on services rendered. Any payments by Customer to the Vendor shall be made within ten (10) calendar days of receipt of an invoice. Any payment by Customer to Vendor shall be made in USD only by bank transfer to a bank account indicated by the Vendor in the invoice. The agreed-upon payments are exclusive of all fees and charges the Customer may be charged by the banks or financial institutions. The Vendor must receive the full payments in the Vendor’s account and all additional fees are the responsibility of the Customer. The payment of invoices issued by the Vendor shall constitute the Customer’s acceptance of the deliverables for which payment is being made. If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 1.5% per month, or the maximum percentage allowed under applicable laws, whichever is less.
3. REPRESENTATIONS AND WARRANTIES
Each Party warrants and represents, as of the Effective Date and throughout the term, that:
(a) it has full capacity and authority, and all necessary licenses, permits, corporate approvals and consents to enter into and perform these Terms and SOW and that those signing SOW are duly authorized;
(b) once duly executed, these Terms and SOW will become legal, valid and binding for each Party;
(c) it is solvent and able to perform all of its obligations under these Terms and SOW and will remain so throughout the term of the Terms;
(d) entering into this Terms and SOW will not cause that Party to be in breach of any other agreement to which it is a party or any statutory or another legal requirement;
4. LIMITATION OF LIABILITY
In no event shall Provectus be liable for any damages arising from the use of the software developed under the terms of this Terms. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR DAMAGES, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY) UNDER OR RELATED TO A SOW WILL BE LIMITED TO AN AMOUNT EQUIVALENT TO THE FEES PAID BY CUSTOMER UNDER SUCH SOW.
5. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
Provectus acknowledges that it is being retained by the Customer to perform the Services and to create certain deliverables for the Customer’s use and benefit. Provectus acknowledges and agrees that Customer shall exclusively own all rights, titles, and interest, including without limitation, all Intellectual Property Rights, in and to any deliverables and all information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, as well as all forms of expression of ideas which are the subject matter of copyright, developed or prepared by Provectus under these Terms or an SOW, in connection with the Services or deliverables (collectively “Work Product”), after respective payment has been received by Provectus. Customer acknowledges that Provectus shall retain ownership of deliverables not yet covered by payment of Customer, whether delivered or not. At the same time, until payment for such deliverables has been made, Provectus hereby grants to Customer a restricted, exclusive, royalty-free, revocable, perpetual, transferrable, worldwide license (with the right to sublicense through multiple levels of sublicenses) to make, have made, copy, modify, make derivative works of, use, distribute, display, import any such deliverables thereto. Provectus acknowledges and agrees that all information, data, documents, and materials that Provectus receives from Customer or acquires or learns from Customer’s files, documents, employees, or representatives, shall remain Customer’s, as applicable, sole and exclusive property. The Customer, however, acknowledges that certain components of the work product and deliverables may have been previously created by Provectus and are standardized to be used for multiple and various customers. The Customer acknowledges that Provectus will retain the right to use such components in services and deliverables for other customers. Provectus shall retain and reserve all rights to any software, technology, or Intellectual Property Rights of Provectus existing prior to the Effective Date or developed or otherwise obtained by Provectus outside the scope of this Terms without the use of any confidential information or materials of Customer or any of its affiliates (“Related Rights”).
6. CONFIDENTIALITY
Disclosing party’s Confidential Information will remain their sole property. Confidential information received by Party or any of its representatives from disclosing Party will be used by Party and its representatives only for purposes of, or as otherwise authorized by these Terms. Receiving Party, and each of its representatives, will hold disclosing Party’s confidential information in confidence and protect such confidential information from disclosure using the same care they use to protect their own confidential information of like importance, but not less than reasonable care. At all times during the term of this Terms and thereafter, no confidential information will be disclosed without the prior written consent of the other Party. Upon the expiration or termination of these Terms, all embodiments of the disclosing Party’s confidential information will be returned or destroyed by the other Party.
7. SOLICITATION OF EMPLOYEES AND/OR CONTRACTORS
In consideration for the mutual promises contained in this Terms, Customer agrees and shall cause its representatives and affiliates to agree, not to solicit or hire, either directly or indirectly, for Customer’s benefit or for the benefit of any third party (including any of Customer’s representatives or affiliates), the services of any of Provectus’ or its affiliates’ employees and/or contractors during the term of this Terms and for a period of twelve (12) months thereafter, regardless the fact whether the employee or contractors who provide technology development services continued to work for Provectus during the above mentioned period or not, without Provectus’s prior written consent. For each employee and/or contractor who quits as a result of a breach of this Section, Customer shall pay Provectus one hundred thousand ($100, 000.00) U.S. dollars, as liquidated damages.
8. MISCELLANEOUS
(a) Unless terminated earlier, these Terms shall commence upon signing SOW and shall continue for a period stated in SOW.
(b) Customer may terminate the performance of Services under these Terms and SOW upon written notice or email to Provectus, if Provectus commits a material breach.
(c) If the Customer wishes to terminate this Agreement for cause it shall pay Provectus a termination fee calculated as prorated for the part of services already performed prior to the termination date. The terms of this Section 8(c) shall not apply to the cases where AWS funding is duly granted and the invoices hereto timely paid by Amazon Inc.
(d) To be effective, any amendment or waiver under these Terms must be in writing (or email) and signed by the Party’s authorized representative.
(e) The customer agrees that Provectus may include the Customer’s name and logo in customer lists or other marketing-related and promotional material to identify customers and/or testimonials and case studies referencing the services performed. Unless informed to the contrary in writing, Customer hereby grants Provectus a non-exclusive, non-transferable, non-sublicensable, and royalty-free license to use and reproduce Customer’s name, logos, and trademarks for the purpose above-mentioned.
(f) In the event of any conflict between these Terms and the terms and conditions of SOW, the terms and provisions of SOW shall prevail and control only with respect to the definition and scope of the Services to be provided, compensation, and payment terms for such Services under the SOW. Except with regard to the definition and scope of Services and compensation for such Services, any additional or inconsistent terms contained in SOW with respect to these Terms will be of no force and effect.
(g) These Terms shall be deemed to have been executed and delivered in the State of Delaware and shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflict of laws thereof.
(h) All notices, requests, claims, demands, and other communications under these Terms shall be in writing or email and shall be deemed given if sent by email to the parties at the email specified in SOW.
(i) These Terms and SOW, or Amendments to it, may be executed and delivered by facsimile or email. Any manual signature upon these Terms and SOW that is faxed, scanned, or photocopied, and any electronic signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original signature, and the parties hereby waive any objection to the contrary. The failure to deliver the original signed copy and/or the non-receipt of the original signature copy shall have no effect upon the binding and enforceable nature of these Terms.
(j) Provectus may modify these Terms from time to time. If Provectus determines in sole discretion that an update is material, Provectus will provide notice of such material change to Customer in accordance with Section 8(h) (Notices). Any changes to these Terms will be effective immediately if Customer assents to such changes, and fourteen (14) days thereafter for all other customers with existing SOWs, except changes required by law or as necessary for the use of any new products or features, which will immediately become effective to the extent necessary to comply with such law or as required to use such new products or features.
