- Professional Services
- Customer Cooperation
- Delivery, Acceptance and Change Orders
- Fees, Invoicing and Taxes
- Proprietary Rights and Licenses
- Representations, Warranties, Exclusive Remedies and Disclaimers
- Limitation of Liability
- Term and Termination
Professional Services Agreement
THIS AGREEMENT GOVERNS CUSTOMER’S PURCHASE AND RECEIPT OF METAPACK PROFESSIONAL SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING A STATEMENT OF WORK (“SOW”) OR ORDER FORM THAT REFERENCES THIS AGREEMENT (IN EITHER CASE, SUCH DATE BEING THE “EFFECTIVE DATE”), CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THE PROFESSIONAL SERVICES.
This Agreement was last updated on February 18, 2020. It is effective between Customer and Metapack as of the date of Customer’s accepting this Agreement.
“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” means this Metapack Master Professional Services Agreement and any exhibits, schedules and addenda.
“Change Order” means any change to an SOW or Order Form, as applicable, as described in the “Change Orders” section below. Change Orders will be deemed incorporated by reference in the applicable SOW or Order Form.
“Customer”, “You”, or “Your” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into SOWs or Order Forms for Professional Services.
“Deliverable” means a deliverable under an SOW or Order Form.
“Metapack” means MetaPack Limited, registered in England and Wales with company number 03870530 whose registered office is at 4th Floor, 200 Grays Inn Road, London WC1X 8XZ, acting for and on behalf of its Affiliates.
“Order Form” means an ordering document specifying the Professional Services to be provided hereunder and that is entered into between Customer and Metapack, or any of their respective Affiliates, including any addenda and supplements thereto. Order Forms governed, in whole or in part, by this Agreement must have a SOW attached thereto or expressly state that the Order Form or certain Professional Services provided thereunder are governed by this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Notwithstanding any language to the contrary in the Order Form, all Professional Services purchased under an Order Form are purchased separately from the Services and all references to “Order Form” herein shall not apply in any way to any Services, including without limitation, with respect to payment obligations and termination rights relating to the Services.
“Party” means Metapack or Customer, individually; “Parties” means Metapack and Customer, collectively.
“Professional Services” means work performed by Metapack, its Affiliates, or its or their respective permitted subcontractors under an SOW or Order Form, including the provision of any Deliverables specified in such SOW or Order Form.
“Services” means any online, web-based, software, and API services available by Metapack (or one or more Metapack Affiliates) to Customer under a separate agreement.
“SOW” means a statement of work describing Professional Services to be provided hereunder, that is entered into between Customer and Metapack, or any of their respective Affiliates, or which is incorporated into an Order Form that is entered into between Customer and Metapack, or any of their respective Affiliates. A Metapack Affiliate that executes a SOW with Customer will be deemed to be “Metapack” as such term is used in this Agreement. SOWs or Order Forms will be deemed incorporated herein by reference.
“We,” “Us” or “Our” means Metapack as defined herein.
2.1. Scope of Professional Services. Metapack will provide to Customer the Professional Services specified in each SOW or Order Form (as applicable), subject to Customer’s payment of all applicable fees as set forth in the “Fees, Invoicing and Taxes” section of this Agreement.
2.2. Relationship to Services. This Agreement is limited to Professional Services and does not convey any right to use Services. Any use of Services by Customer will be governed by a separate agreement. Customer agrees that its purchase of Professional Services is not contingent on the delivery of any future Service functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form, or on any oral or written public comments by Metapack regarding future Service functionality or features.
3.1. Cooperation. Customer will cooperate reasonably and in good faith with Metapack in its performance of Professional Services by, without limitation: (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Metapack to perform its obligations under each SOW or Order Form; (b) timely delivering any Customer deliverables and other obligations required under each SOW or Order Form; (c) timely responding to Metapack inquiries related to the Professional Services; (d) assigning an internal project manager for each SOW or Order Form to serve as a primary point of contact for Metapack; (e) actively participating in scheduled project meetings; (f) providing, in a timely manner and at no charge to Metapack, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, access to appropriate and knowledgeable employees and agents of Customer, and continuous administrative access to Customer’s Service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Metapack; and (g) complete, accurate and timely information, data and feedback all as reasonably required by Metapack.
3.2. Delays. Any delays in the performance of Professional Services or delivery of Deliverables caused by Customer or third parties may result in additional applicable charges for resource time.
4.1. Delivery of Services. Metapack will provide the Professional Services, including any Deliverables, in accordance with this Agreement and the applicable SOWs or Order Forms.
4.2. The Parties agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a timely and professional manner and will each designate a representative to interface and facilitate the successful completion of the Professional Services.
4.3. Metapack will perform the Professional Services through qualified employees and/or non-employee contractors of Metapack (“Subcontractors” and together with Metapack’s employees, “Professional Services Personnel”). You agree to provide, at no cost to Metapack, timely and adequate assistance and other resources reasonably requested by Metapack to enable the performance of the Professional Services, as described in section 3.1 of this Agreement (“Cooperation”). Metapack, including its Subcontractors, will not be liable for any deficiency in the performance of Professional Services to the extent such deficiency results from any acts or omissions of You, including, but not limited to, Your failure to provide Cooperation as required hereunder.
4.4. In performing the Professional Services, Metapack will utilize Professional Services Personnel as it deems necessary to perform the Professional Services or any portion thereof. You may object to Metapack’s use of a Subcontractor by specifying its reasonable objection to Metapack, in which case the Parties will cooperate in good faith to appoint another Professional Services Personnel to perform such Professional Services. Metapack may replace Professional Services Personnel in its normal course of business, provided that Metapack will be responsible for the performance of Professional Services by all Professional Services Personnel.
4.5. The ability for Metapack Professional Services Personnel to be onsite (if applicable) is subject to the obtainment of necessary Visa documents prior to travel (if required). Should any delay be incurred in obtaining such Visa requirements, then the timeline outlined in any Order Form or SOW may be subject to change.
4.6. Metapack will control the method and manner of performing all work necessary for completion of Professional Services, including but not limited to the supervision and control of any Professional Services Personnel performing Professional Services. Metapack will maintain such number of qualified Professional Services Personnel and appropriate facilities and other resources sufficient to perform Metapack’s obligations under this Agreement in accordance with its terms.
4.7. Professional Services Personnel may enter Your production account to provide the Professional Services.
4.8. Acceptance. Unless otherwise agreed to in a SOW or Order Form, for Professional Services that are deliverable or milestone based, upon delivery of all Deliverables or completion of all milestones detailed in the SOW or Order Form, Metapack shall provide You with written notice (“Completion Notice”). Thereafter, You shall have five (5) business days from the date of the Completion Notice to provide Metapack with written notice describing any Deliverables that have not been provided or milestones not met. The SOW or Order Form shall be deemed complete and the Deliverables accepted or milestones met absent Your timely written notice of any Deliverables not having been provided or milestones not having been met or Your use of any Deliverable materials in a production environment. In the event that You provide timely written notice of any Deliverables not having been provided or milestones not having been met, Metapack shall make commercially reasonable efforts to remedy the defects identified. If the defects cannot be remedied, You may terminate the applicable SOW and Metapack shall return the portion of the Professional Services Fees (as defined below) paid to Metapack by You for the nonconforming portion of the Professional Services (or, if Professional Services Fees have not yet been paid, You will be relieved from Your obligation to pay such Professional Services Fees for the nonconforming portion of the Professional Services). For the avoidance of doubt, a Completion Notice shall not be necessary for Professional Services that are time and materials based.
4.9. No Effect on Warranty Remedies. Acceptance of Professional Services, including a Deliverable, will not affect Customer’s rights or remedies under the “Warranty” section below.
4.10. Change Orders. Changes to a SOW or Order Form will require a written Change Order signed by the Parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
5.1. Fees. Customer will pay Metapack for the Professional Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Metapack standard rates in effect at the time the SOW or Order Form is executed (“Professional Services Fees”). Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form. Any amount set forth in a time-and-materials SOW is solely a good-faith estimate for Customer’s internal budgeting purposes and Metapack resource scheduling purposes, and is not a guarantee that the work will be completed for that amount; the actual amount may be higher or lower. If it appears that the estimated amount may be exceeded, Metapack will make a reasonable effort to notify You and provide an amended estimate. Upon receiving such amended estimate, You will accept or reject the amended estimate. Unless You reject such amended estimate within five (5) business days of delivery, such amended estimate shall be deemed accepted by You and You shall be liable for all Professional Services Fees associated with Professional Services delivered in reliance on such amended estimate. Any amended estimate that is accepted by You shall be deemed a Change Order.
5.2. Incidental Expenses. Customer will reimburse Metapack for reasonable travel, travel time, and out-of-pocket expenses incurred in connection with Professional Services. Travel time shall be charged at 50% of the applicable daily rate. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, Metapack will not exceed such estimate without the written consent of Customer. Travel and expenses will conform to Metapack’s travel and expense policy. Metapack complies with governmental guidelines concerning expense reimbursement and reconciliation. Additional reporting requirements such as expense receipt copies or detailed reporting above and beyond what is provided on standard Metapack invoices is excluded.
5.3. Invoicing and Payment. Charges for time-and-materials engagements will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Charges for fixed fee engagements will be invoiced in advance in the manner as provided in the SOW or Order Form, as applicable, unless otherwise expressly stated therein. Invoiced amounts will be due and payable net thirty (30) days from the invoice date and payments shall be made by bank transfer or electronic funds transfer, including wire transfer, check, direct debit, ACH, or BACS. Customer is responsible for providing Metapack with its complete and accurate billing and contact information and notifying Metapack of any changes to such information.
5.4. Overdue Charges. Subject to the “Payment Disputes” section below, if any invoiced amount is not received by Metapack by the due date, then without limiting Metapack rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Metapack may condition future purchases of Professional Services on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.5. Suspension of Professional Services. Subject to the “Payment Disputes” section below, if any amount owing by Customer under this or any other agreement for Metapack Professional Services is thirty (30) days or more overdue, Metapack may, without limiting its other rights and remedies, suspend its performance of Professional Services until such amounts are paid in full.
5.6. Payment Disputes. Metapack will not exercise its rights under the “Overdue Charges” or “Suspension of Professional Services” sections above if Customer is disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute.
5.7. Taxes. Metapack Professional Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Metapack has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Metapack will invoice Customer and Customer will pay that amount, unless Customer provides Metapack with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Metapack is solely responsible for taxes assessable against it based on its income, property and employees.
5.8 Purchase Orders. Customer acknowledges and agrees that any reference to a purchase order or other ordering document, other than a Metapack SOW or Order Form, shall in no way be deemed an acknowledgement of or agreement to any terms or conditions associated with any such purchase order or in any way be deemed to modify, alter, supersede or supplement this Agreement. The terms and conditions of this Agreement are the exclusive agreement of the Parties with respect to the subject matter hereof and no other terms or conditions shall be binding upon Metapack or otherwise have any force or effect.
6.1. Customer Intellectual Property. Customer does not grant to Metapack any rights in or to Customer’s intellectual property except such licenses as may be required for Metapack to perform its obligations hereunder.
6.2. Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information.
6.3. License for Contract Property. Upon Customer’s payment of fees due under an applicable SOW or Order Form, Metapack grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for its internal business purposes associated with its use of Metapack Services anything developed by Metapack for Customer, including Deliverables, under this Agreement (“Contract Property”). Metapack and Customer each retains all right, title and interest in its respective intellectual property and Metapack retains all ownership rights in the Contract Property.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each Party includes the terms and conditions of this Agreement and all SOWs or Order Forms (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use or reliance on the Confidential Information of the Disclosing Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not disclose any Confidential Information of the Disclosing Party except as expressly permitted herein; (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither Party will disclose the terms of this Agreement or any SOW or Order Form to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.1. Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Warranty. Metapack warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Customer’s exclusive remedy and Metapack’s entire liability will be the re-performance of the applicable Professional Services. If Metapack is unable to re-perform the Professional Services as warranted, Customer will be entitled to recover the Professional Services Fees paid to Metapack for the deficient Professional Services. Customer must make any claim under the foregoing warranty to Metapack in writing within ninety (90) days of performance of such Professional Services in order to receive warranty remedies.
8.3. Disclaimer. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.1. Indemnification by Metapack. Metapack will defend Customer against any claim, demand, suit or proceeding (“Claim”) made or brought against Customer by a third party arising out of death, personal injury or damage to tangible property to the extent caused by Professional Services Personnel in their performance of the Professional Services, and will indemnify Customer for any damages, reasonable attorneys’ fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved in writing by Metapack of, any such Claim, all of the foregoing to the extent caused by Professional Services Personnel, provided that Customer: (a) promptly gives Metapack written notice of the Claim; (b) gives Metapack sole control of the defense and settlement of the Claim (except that Metapack may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) gives Metapack all reasonable assistance, at Metapack’s cost. The above defense and indemnification obligations do not apply to the extent a Claim arises from Customer’s breach of this Agreement or applicable SOWs or Order Forms.
9.2. Mutual Indemnity. Each Party (the “Provider”) will defend the other Party (the “Recipient”) against any Claim made or brought against the Recipient by a third party alleging that any information, design, specification, instruction, software, data or material furnished by the Provider hereunder (“Material”) infringes or misappropriates such third party’s intellectual property rights, and will indemnify the Recipient from any damages, reasonable attorneys’ fees and costs finally awarded against the Recipient as a result of, or for amounts paid by Recipient under a settlement approved in writing by Provider of, any such Claim, provided that the Recipient: (a) promptly gives the Provider written notice of the Claim; (b) gives the Provider sole control of the defense and settlement of the Claim (except that the Provider may not settle any Claim unless it unconditionally releases the Recipient of all liability); and (c) gives the Provider all reasonable assistance, at the Provider’s cost. The Provider will have no liability for any such Claim to the extent that (i) it arises from specifications or other Material provided by the other Party, or (ii) such claim is based on the Recipient’s use of a superseded or altered version of Material if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered version of the Material that was provided to the Recipient. In the event that some or all of the Material is held or is reasonably believed by the Provider to infringe or misappropriate, the Provider may in its discretion and at no cost to the Recipient (A) modify or replace the Material so it is no longer claimed to infringe or misappropriate, (B) obtain a license for the Recipient’s continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from the Recipient. If the Provider exercises option (C), either Party may terminate the relevant SOW or Order Form upon 10 days’ written notice given within 30 days after the Provider’s exercise of such option, subject to the “Payment Upon Termination” section below.
9.3. Exclusive Remedy. This “Indemnification” section states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this section.
10.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE STATEMENT OF WORK OR ORDER FORM OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11.1. Term. This Agreement commences on the Effective Date and will remain in effect until terminated in accordance with this section.
11.2. Termination for Convenience. Customer may terminate an individual SOW or Order Form for convenience upon fourteen (14) days’ written notice to Metapack. Customer shall be liable for all fees and expenses incurred up to the termination date, including but not limited to a) expenses for which Metapack has become obligated prior to its receipt of the termination notice, b) for time-and-materials SOWs or Order Forms, all resource time allocated to the terminated SOW or Order Form shall remain billable until the termination date unless Metapack is able to reallocate the resources to other billable projects, and c) for fixed fee SOWs or Order Forms, the portion of any milestones that have started but are not complete, which portion shall be based on a percent-of-completion basis. For example, if the termination date occurs half-way through the applicable milestone period, Customer will be required to pay fifty percent (50%) of the applicable fee for such milestone period. A milestone period for a milestone shall commence on the completion of the previous milestone and shall end on the due date, as specified in the applicable SOW or Order Form.
11.3. Termination for Cause. A Party may terminate this Agreement and/or any SOW or Order Form for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if 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.
11.4. Payment Upon Termination. Upon any termination of an SOW or Order Form, Customer will pay, in accordance with the “Invoicing and Payment” section above, any unpaid fees and expenses incurred on or before the termination date (such Professional Services Fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that Customer terminates a SOW or Order Form for cause and Customer has pre-paid any fees for Professional Services not yet received, Metapack will refund such pre-paid fees. In the event that Metapack terminates a SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.
11.5. Surviving Provisions. The sections titled “Fees, Invoicing and Taxes,” “Proprietary Rights and Licenses,” “Confidentiality,” “Representations, Warranties, Exclusive Remedies and Disclaimers,” “Indemnification,” “Limitation of Liability,” “Term and Termination” and “General” will survive any termination or expiration of this Agreement.
Each Party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.
13.1. Compliance with Laws. Customer will comply with all laws and governmental rules and regulations that apply to Customer in its performance of its obligations and exercise of its rights, under this Agreement.
13.2. Export Compliance. The Professional Services, including Deliverables Metapack makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Neither Party will access or use any Deliverables or Confidential Information provided to it hereunder in a U.S.-embargoed country or region (currently the Crimea region, Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or governmental regulation.
13.3. Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
13.4. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Metapack regarding the provision and receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other Customer order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW or Order Form, (2) any exhibit, schedule or addendum to this Agreement and (3) the body of this Agreement.
13.5. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
13.6. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.7. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.9. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld), provided however, either Party may assign this Agreement in its entirety (including all SOWs or Order Forms, as applicable), without the other Party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. A Party’s sole remedy for any purported assignment by the other Party in breach of this paragraph will be, at the non-assigning Party’s election, termination of this Agreement upon written notice to the assigning Party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
13.10. Governing Law. If Your legal address is; a) outside of the United States this Agreement shall be governed by and construed in accordance with the laws of England and Wales and the Parties hereby submit to the exclusive jurisdiction of the courts of England; b) within the United States, this Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute, claim or controversy arising out of or relating to this Agreement, including relating to Professional Services provided hereunder, or related to the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles County, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having subject matter jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction in Los Angeles, California. The Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
13.12. Notice. All notices provided by Metapack to You under this Agreement may be delivered in writing (a) by a nationally recognized overnight delivery service (“Courier”) or certified mail to the contact mailing address provided by You on any SOW or Order Form; or (b) electronic mail to the electronic mail address provided for Your account owner (with acknowledgement of receipt). You must give notice to Metapack in writing by Courier or certified mail to 200 Grays Inn Road, London WC1X 8XZ, UK, Attn: Legal Department, with a copy to 1990 E. Grand Avenue, El Segundo, California 90245, USA, Attn: Legal Department, [email protected] All notices shall be deemed to have been given: (a) if given by electronic mail, immediately upon acknowledgement of receipt; (b) or, if otherwise delivered, upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.