Terms & Conditions
1. GAZELLE SERVICES
1.1. Works for Hire. If Client and Gazelle agree in a SOW that Gazelle will develop and deliver custom work product for Client, and that Client will own such work product, and if such work product is identified in such SOW as a work for hire that is expressly subject to the provisions of this Section 1.1 (“Custom Work Product”), then, notwithstanding anything to the contrary in Section Error! Reference source not found. Client will own such Custom Work Product, and Gazelle hereby assigns ownership rights in and to Custom Work Product to Client, subject to the terms of this Agreement. If any Gazelle Technology is embedded or incorporated into Custom Work Product, then, subject to the terms of this Agreement, Gazelle grants Client a nonexclusive, limited, non-transferable, royaltyfree license to use such Gazelle Technology solely as incorporated or embedded within the Custom Work Product, and solely for Client’s internal business purposes to the extent necessary for Client to use the Custom Work Product in the manner described in the applicable SOW.
2. THIRD PARTY PRODUCTS AND SERVICES
2.1. Use of Third Party Products and Services. Gazelle or third parties may from time to time make available to Client certain web-based, mobile, offline, online or other applications, products or services provided by a third party as identified in an SOW (each a “Third Party Application”). Client’s acquisition of Third Party Applications, and any exchange of data between Client and any third party provider, is solely between Client and the applicable third party. Gazelle does not warrant or support Third Party Applications or other third party products or services, whether or not they are designated by Gazelle as “certified” or otherwise, except as may be expressly specified in an SOW.
2.2. Third Party Terms and Conditions. Certain components of the Services may be provided by third parties and are subject to separate terms and conditions. Client must agree to those terms and conditions before accessing or using such third party products, and Client must comply with such terms and conditions. Gazelle may modify, remove or replace such third party products or components from time to time.
2.3. Subcontractors and Dependencies. Gazelle may engage third party subcontractors to perform any portion of the Services provided that Gazelle obligates such subcontractors to maintain the confidentiality of Client Confidential Information under terms consistent with this Agreement, and Gazelle shall remain responsible to Client with respect to such subcontractors’ performance of such Services. Client acknowledges that its timely provision of (and Gazelle’ access to) relevant Client assistance, cooperation, and complete and accurate information and data (including required consents, licenses and authorizations, if any) is essential to the performance of the Services, and that Gazelle shall not be liable for any deficiency in performing Services if such deficiency results from Client’s failure to provide full cooperation, assistance and information as required hereunder.
3. PRICE AND PAYMENT Client will pay Gazelle the fees as set forth on the cover page to this Agreement (the “Cover Page”) or in a SOW (“Fees”). All such Fees are exclusive of taxes, and is be responsible for payment of any taxes (excluding taxes imposed on the income of Gazelle, for which Gazelle shall be responsible). Unless set forth otherwise on the Cover Page or a SOW, Gazelle will invoice Client for such Fees and costs, and Client will pay invoices within thirty (30) days of receipt. Client may withhold an invoiced amount that it disputes in good faith if Client notifies Gazelle of such good faith dispute and provides supporting documentation, within fifteen (15) days of receipt of the invoice. If Client does not notify Gazelle of such dispute within such time, then invoiced amounts shall be deemed accepted by Client. If Client does not pay amounts when due, then Gazelle may, without limiting its other available remedies, assess a monthly late payment charge of 1.5% or the highest amount permitted under applicable law (whichever is less) on the unpaid amount and/or, upon notice to Client, suspend performance of this Agreement (including suspending performance of a SOW.) All payments are nonrefundable and non-creditable except as may otherwise be expressly permitted herein.
4. TERM AND TERMINATION The Term of this Agreement is set forth on the Cover Page. At any time upon advance written notice to the other party, either party may terminate this Agreement or any SOW for its convenience; provided, however, that neither party may terminate a project-based SOW for convenience unless expressly permitted in such SOW. If Client terminates this Agreement or a SOW for convenience, Client must promptly pay to Gazelle a termination fee equal to the unpaid fee obligations under this Agreement for the remainder of the then-current term. Each party may terminate this Agreement (i) if the other party materially breaches any provision of this Agreement and does not cure such breach within sixty (60) days of receipt of notice describing such breach or (ii) upon notice 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. Upon expiration or termination of this Agreement, Client shall promptly pay all outstanding Fees through the date of such expiration or termination. Except as may be set forth otherwise in this Agreement, all rights and obligations that expressly or by their nature survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement until they are satisfied or by their nature expire and shall bind the parties and their successors and permitted assigns, and the provisions of Sections 4, 5.2, 6, 7, 8 and 9, and Client’s payment obligations, shall survive any termination or expiration of this Agreement.
5. LIMITED WARRANTIES AND DISCLAIMERS
5.1. Gazelle’ Warranties. Gazelle represents and warrants that (a) it has validly entered into this Agreement and has the legal power to do so, and (b) it will provide the Services materially in accordance with the terms of this Agreement.
5.2. Client’s Warranties. Client represents and warrants that (a) it has validly entered into this Agreement and has the legal power to do so, (b) it will comply with all applicable local, state, national and international laws, treaties, regulations and conventions in connection with its use of the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data, and (c) that it has the right to deliver the Client Content to Gazelle and to allow Gazelle to use, copy, modify, distribute, display and publicly perform Client Content as permitted herein.
5.3. Disclaimers. THE EXPRESS WARRANTY MADE BY GAZELLE IN SECTION 5.1 IS THE SOLE AND EXCLUSIVE WARRANTY OF GAZELLE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE, ALL OF WHICH ARE HEREBY DISCLAIMED. THE SERVICES ARE MADE AVAILABLE “AS IS”. GAZELLE DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR OR DEFECT-FREE, UNINTERRUPTED, COMPLETELY SECURE, OR THAT ERRORS, DEFECTS OR BUGS CAN OR WILL BE CORRECTED.
6. INDEMNIFICATION Client shall indemnify, defend and hold Gazelle, its licensors and their respective officers, directors, employees and agents harmless from any losses, damages, costs and expenses (including attorneys’ fees) directly or indirectly arising out of or relating to any claim from any party arising out of or relating to (i) Client’s or its End Users’ use of the Services, unless such claims are caused by Gazelle’ gross negligence or willful misconduct; (ii) Client’s noncompliance with applicable laws or breach of this Agreement, and (iii) Client Content.
7. LIMITATION OF LIABILITY IN NO EVENT SHALL GAZELLE AND/OR ITS LICENSORS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF OR DAMAGE TO DATA, LOSS OF PROFITS, OR OTHER ECONOMIC LOSS, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF GAZELLE HAS BEEN ADVISED OF SUCH CLAIM. The aggregate and cumulative liability of Gazelle to Client or any third party for all damages arising out of or relating to this Agreement shall in no event exceed the amount of Fees paid by Client to Gazelle during the six (6) months immediately preceding the cause of action.
8. NONDISCLOSURE
8.1. Proprietary Information. The term “Proprietary Information” means information (whether oral or written) relating to a party’s products, services and business that it treats as confidential and that may be marked or identified as “Proprietary Information” or reasonably should be understood as confidential given the nature of the information and circumstances of disclosure. Gazelle’ Proprietary Information shall include, but not be limited to, the Services, and the terms and pricing under this Agreement, regardless of whether such information is marked as “Proprietary Information.”
8.2. Protection of Confidential Information. The receiving party shall not use the disclosing party’s Proprietary Information for any purpose unrelated to this Agreement and shall limit disclosure of such Proprietary Information to those of its employees, subcontractors, and consultants with a need to know the Proprietary Information, subject to a nondisclosure obligation comparable in scope to this Section 8. Each party shall protect the other party’s Proprietary Information by using the same degree of care (but no less than a reasonable degree of care) that it uses to protect its own Proprietary Information. The obligations imposed by this Section 8 shall expire five (5) years after this Agreement’s expiration or termination, provided however that the obligations imposed by this Section 8 shall continue in perpetuity with respect to Gazelle’ trade secrets.
8.3. Exceptions. The obligations in this Section 8 shall not apply to any Proprietary Information that: (a) is or becomes publicly known through no fault of the receiving party; (b) is developed independently by the receiving party prior to the date of disclosure, without use of the disclosing party’s Proprietary Information, as evidenced by the receiving party’s records kept in the ordinary course of its business; (c) is in the receiving party’s possession prior to receipt from the disclosing party, as evidenced by the receiving party’s records kept in the ordinary course of its business; or (d) is rightfully obtained by the receiving party from a third party entitled to disclose the information without confidentiality restrictions. A receiving party also may disclose Proprietary Information to the extent required by a court or other governmental authority, provided that the receiving party promptly notifies the disclosing party of the disclosure requirement and cooperates with the disclosing party (at the latter’s expense and at its request) to resist or limit the disclosure.
8.4. Injunctive Relief. A party’s breach of this Section 8 could cause the other party irreparable injury for which it may not have an adequate remedy at law and for which damages may be difficult to ascertain. The non-breaching party shall be entitled to seek injunctive relief in any court of competent jurisdiction in addition to other legal or equitable remedies, without posting a bond.
9. GENERAL TERMS
9.1. Interpretation. All headings in this Agreement are included solely for convenient reference, and shall not affect its interpretation. If any provision of this Agreement is determined by a court to be invalid or unenforceable as drafted, that provision shall be severed and the enforceability of other provisions shall not be affected. This Agreement may be modified or amended only by a written agreement signed by both parties. The failure by a party to exercise any right or remedy hereunder will not operate as further waiver of such right or remedy in the future or any other right or remedy. No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. This Agreement, including each SOW, constitutes the entire agreement between the parties concerning its subject matter and supersedes any prior or separate agreements between the parties concerning the subject matter of this Agreement, and supersedes the terms of any Client purchase order, and such terms are rejected by the parties.
9.2. Notices. All notices and consents sent under this Agreement shall be in writing and: (a) hand delivered; (b) transmitted by fax; or (c) delivered by prepaid overnight courier. Notices shall be sent to the parties’ respective addresses as indicated on the cover page, attention President/CEO, and shall be deemed received on the date of receipt.
9.3. Relationship of the Parties. The parties are independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture or agency relationship between the parties, or as authorizing either party to act as agent for the other or to enter into contracts on behalf of the other.
9.4. Insurance. During the term of this Agreement, Gazelle will obtain and maintain the following insurance, and will provide Client with a certificate of insurance evidencing such coverage in response to Client’s written request. Such coverage shall include (i) Commercial General Liability with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate; (ii) automobile insurance with limits of not less than $1,000,000 combined single limit; (iii) workers’ compensation insurance in accordance with applicable law; (iv) errors and omissions liability with a limit of $1,000,000; and (v) umbrella coverage of not less than $5,000,000.
9.5. Force Majeure. Gazelle will be excused from performance and liability for any period during which and to the extent that it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence.
9.6. Non-Solicitation. Client shall not, directly or indirectly, during the term of this Agreement and for twelve (12) months thereafter, solicit any Gazelle personnel for the purposes of offering employment, or offer any such personnel employment, or hire such personnel. Job requisitions posted through public channels (such as online job boards) that are not specifically directed towards an individual are not a violation of the non-solicitation restriction.
9.7. Governing Law. The interpretation of this Agreement shall be governed by the laws of the State of North Carolina without regard to (i) choice of law principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; and (iii) the Uniform Computer Information Transactions Act. The exclusive jurisdiction and venue for any dispute between the parties in connection with this Agreement is Mecklenburg County, North Carolina, and each party consents to the exclusive jurisdiction and venue in Mecklenburg County, North Carolina and agrees that all proceedings and actions, including all discovery matters, shall take place solely and exclusively within Mecklenburg County, North Carolina.
9.8. Assignment. Neither this Agreement, nor any rights granted hereunder, may be sold, leased, assigned, or otherwise transferred, in whole or in part, by Client, and any such attempted assignment shall be void and of no effect without the advance written consent of Gazelle. This Agreement will inure to the benefit of and be binding upon any successors and permitted assigns of the parties.