Statement Of Work (SOW) Terms and Conditions

  1. Definitions are those in Appendix A (Glossary of Terms) at the end of this
  2. Orders. Customer shall, upon and subject to approval by Heimdall Data, purchase Services by issuing a Purchase Each Purchase Order must be signed/sealed, as applicable, if requested by Heimdall Data, or (in the case of electronic transmission) sent, by an authorized representative, indicating the SOW project identification number, specific Services, quantity, price, total purchase price, bill-to and ship-to addresses, tax-exempt certifications, if applicable, reference to the SOW, and any other special instructions. No contingency contained on any Purchase Order shall be binding upon Heimdall Data. The terms of the SOW shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Customer to Heimdall Data, and any such additional or conflicting terms are deemed rejected by Heimdall Data.
  3. Professional Services – Statements of Work.
    1. Services will be provided by Heimdall Data pursuant to the terms and conditions of the Heimdall Data may use subcontractors (under separate contract to Heimdall Data) to perform the Services, or portion(s) thereof.
    2. The SOW may only be amended by a written document signed by each party’s authorized representative, and per the change management procedures set forth therein.
    3. The SOW exclusively defines the scope of the Services that Heimdall Data shall provide to
  4. Pricing.
    1. All prices specified in the SOW are exclusive of any taxes, fees, duties or other applicable Customer shall pay the taxes related to Services purchased pursuant to the SOW, or Customer shall present an exemption certificate acceptable to the taxing authorities. Applicable taxes, if any, will be billed as a separate item on the invoice. Heimdall Data reserves the right to increase the Service fee in the event Customer determines any withholding tax obligation prevents Heimdall Data from receiving the specified prices for such Services set forth in the SOW.
  5. Payment and Invoicing.
    1. Payment. All Purchase Orders are subject to credit approval and, subject thereto, payment terms are net thirty (30) days from the date of invoice, unless stated otherwise in the SOW. Unless otherwise agreed by Heimdall Data, all payments must be made in the currency used by the Heimdall Data entity with which Customer has placed its Purchase Any sum not paid by Customer when due will bear interest from the due date until paid at a rate of: (i) ten (10) per cent per annum or (ii) the maximum rate permitted by law, whichever is less.
    2. Invoicing. Heimdall Data will invoice Customer upon completion of each Milestone as defined in the SOW, per the SOW’s Milestone Invoices may contain multiple Milestones. The SOW Milestone schedule supersedes any Milestones identified in a Purchase Order; nevertheless, unless otherwise mutually agreed upon via a change management procedure, the total invoiced amounts for SOW Milestones shall not exceed the total amount of Customer’s Purchase Order. If the SOW does not contain a Milestone schedule, Heimdall Data will invoice Services performed under such SOW as set forth in such SOW.

6. Term and Termination.

  1. The term of the SOW will commence on the SOW Effective Date and continue until last Milestone completion, unless otherwise specified in the SOW.
  2. Heimdall Data shall have a lead-time of up to forty-five (45) days from acceptance of Purchase Order for scheduling of
  3. The SOW, and any Services being performed hereunder, may be terminated immediately by either party upon written notice:
    1. if the other party breaches any of the material provisions of the SOW and the breach is not capable of being cured or after providing thirty (30) days written notice to the breaching party if the breaching party fails to cure such breach within such period;
    2. if the other party: (w) ceases, or threatens to cease to carry on business as a going concern; or (x) becomes or may become the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or (y) a receiver or similar officer is appointed with respect to the whole or a substantial part of its assets; or (z) an event similar to any of the foregoing occurs under applicable law; or
    3. if, except as provided in Section 15 below, either party assigns (by operation of law or otherwise, including merger) or transfers any of the rights or responsibilities granted under the SOW, without the prior written consent of the other party, or in the event of a sale of all or substantially all of such party’s assets, or transfer of a controlling interest in such party to an unaffiliated third Notwithstanding the foregoing: (y) Heimdall Data reserves the right to subcontract Services to any Affiliate or third party organization to provide Services to Customer, and (z) Heimdall Data may assign the SOW or all or any portion of its rights and obligations hereunder, to any Affiliate of Heimdall Data.
  4. If Services fees are not paid when due and payment has not been received within thirty (30) days after notice from Heimdall Data of such past due payment, Heimdall Data may withhold the provision of Services until all amounts past due are paid in full, and/or immediately terminate the SOW or any Services provided hereunder.
  5. Upon termination of the SOW, Customer shall pay Heimdall Data for all work Heimdall Data has performed up to the effective date of termination at the agreed upon prices, fees and expense reimbursement

7. Confidentiality.

  1. Customer and Heimdall Data agree that in connection with the SOW and their relationship, they may obtain Confidential The receiving party shall at all times keep in trust and confidence all such Confidential Information, and shall not use such Confidential Information other than as expressly authorized by the disclosing party under the SOW, nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party’s written consent. Notwithstanding the above, Heimdall Data shall be authorized to disclose Customer’s Confidential Information to subcontractors, contractors or employees of a Heimdall Data entity who have a legitimate business need to have access to such information. The receiving party shall immediately return to the disclosing party all Confidential Information (including copies thereof) in the receiving party’s possession, custody, or control upon termination or expiration at any time and for any reason of the SOW. The obligations of confidentiality do not apply to information which: (i) has entered the public domain, except where such entry is the result of the receiving party’s breach of the SOW; (ii) prior to disclosure hereunder was already rightfully in the receiving party’s possession; or (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information to the receiving party. The receiving party will be authorized to disclose Confidential Information pursuant to a valid order issued by a court, government agency or relevant regulatory authority (including a stock exchange), provided that the receiving party provides where practicable: (i) prior written notice to the disclosing party of such obligation and (ii) the opportunity to oppose such disclosure.
  2. Neither party may disclose, advertise, or publish the terms and conditions of the SOW without the prior written consent of the other Any press release or publication regarding the SOW is subject to prior review and written approval of the parties.

8. Warranty.

  1. ALL SERVICES PROVIDED HEREUNDER SHALL BE PERFORMED IN A WORKMANLIKE EXCEPT AS SPECIFIED IN THIS SECTION, HEIMDALL DATA HEREBY DISCLAIMS AND CUSTOMER WAIVES ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES (WHETHER EXPRESS, IMPLIED, OR STATUTORY), INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR CONDITION: (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, TITLE, SATISFACTORY QUALITY, QUIET ENJOYMENT OR ACCURACY, OR (II) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY.
  2. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE DISCLAIMED, SUCH WARRANTY IS LIMITED IN DURATION TO THE APPLICABLE EXPRESS WARRANTY CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF WARRANTY SHALL BE, AT HEIMDALL DATA’S OPTION, RE-PERFORMANCE OF THE SERVICES; OR TERMINATION OF THE SOW AND RETURN OF THE PORTION OF THE SERVICE FEES PAID TO HEIMDALL DATA BY CUSTOMER FOR SUCH NON-CONFORMING SERVICES.

9. Limitation of Liability and Consequential Damages Waiver.

  1. TO THE EXTENT REQUIRED UNDER LOCAL LAW, NOTHING IN THIS AGREEMENT SHALL LIMIT: (I) HEIMDALL DATA’S, ITS AFFILIATES’, OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’ AND SUPPLIERS’ COLLECTIVE LIABILITY TO CUSTOMER FOR BODILY INJURY OR DEATH CAUSED BY THEIR NEGLIGENCE, OR (II) HEIMDALL DATA’S LIABILITY FOR FRAUDULENT MISREPRESENTATION OR IN THE TORT OF DECEIT.
  2. ALL LIABILITY OF HEIMDALL DATA, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS COLLECTIVELY FOR CLAIMS ARISING UNDER THE SOW OR OTHERWISE HOWSOEVER ARISING SHALL BE LIMITED TO THE MONEY PAID TO HEIMDALL DATA UNDER THE SOW DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES FIRST GIVING RISE TO SUCH THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER- INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
  3. SUBJECT TO THE EXCEPTIONS SET OUT IN SECTION 9(a), OR CUSTOMER’S BREACH OF SECTION 10, IN NO EVENT SHALL EITHER PARTY, ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST REVENUE, LOST PROFITS, LOST BUSINESS OPPORTUNITY, OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY
  4. TO THE EXTENT ALLOWED UNDER LOCAL LAW, HEIMDALL DATA AND CUSTOMER AGREE THAT THE FOREGOING SECTIONS 8 AND 9 FAIRLY ALLOCATE THE RISKS IN THIS AGREEMENT BETWEEN THE HEIMDALL DATA AND CUSTOMER FURTHER AGREE THAT THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT THE LIMITATIONS SPECIFIED IN THIS SECTION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE SOW OR ANY LIMITED REMEDY HEREUNDER.

10. License.

  1. Heimdall Data grants to Customer a non-exclusive and non-transferable license to use for Customer’s internal business use only: (i) Software provided as a result of the Services, if any, solely in object code form; (ii) other Deliverables specified in the SOW, if any, and (iii) Data Collection Tools, if any (collectively and individually, the “Licensed Materials”). In addition, Heimdall Data grants to Customer a right to modify and create derivative works of any Scripts provided by Heimdall Data to Customer pursuant to this Agreement, solely for Customer’s internal business These license grants do not include the right to sublicense. Customer may permit its suppliers, subcontractors and other related third parties to use the Licensed Materials solely on Customer’s behalf for Customer’s direct benefit, provided that any such use is subject to license restrictions and confidentiality obligations at least as protective of Heimdall Data’s rights in such Licensed Materials as are specified in this Agreement.
  2. Nothing in this Agreement or the SOW alters or affects the Intellectual Property rights and/or licenses provided with any Heimdall Data The terms and conditions provided with the Software are hereby incorporated into this Agreement by this reference. To the extent there is a conflict between the terms of the End User License Agreement and this Agreement, the terms of the End User License Agreement will apply, unless explicitly stated otherwise in this Agreement. The provisions in this Section apply only to those Services, Deliverables and other Intellectual Property provided by Heimdall Data to Customer pursuant to the SOW.
  3. Except as otherwise expressly set forth in this Agreement or the SOW, Customer shall not (and shall not permit a third party to): (i) download more than one copy of the Software; (ii) copy, in whole or in part, any Software, Deliverable or Data Collection Tool; (iii) make error corrections or derivative works of, or otherwise modify, decompile, decrypt, reverse engineer, disassemble or reduce all or any portion of any Software, Deliverable or Data Collection Tool to human-readable form; or (iv) transfer, sublicense, rent, lease, distribute, or sell any Software, Deliverables or Data Collection Customer acknowledges that it does not receive any implied licenses under this Agreement, and all rights not expressly granted herein are reserved to Heimdall Data.
  4. Customer grants to Heimdall Data a irrevocable, royalty free, worldwide right and license to all Intellectual Property in the Customer Feedback (as defined below) to use and incorporate into any or all Services, Products, Deliverables, Data Collection Tools, Reports, Scripts and Heimdall Data Pre-Existing Technology, and to use, make, have made, offer to sell, sell, copy, distribute, and create derivative works of such Intellectual Property for any and all purposes whatsoever, and Customer acknowledges that it will have no rights in or to any Services, Products, Deliverables, Data Collection Tools, Reports, Scripts or Heimdall Data Pre- Existing Technology as a result of Heimdall Data’s use of any such Intellectual For purposes of this Agreement, “Customer Feedback” means all oral or written communications regarding improvements or changes to any Services, Products, Deliverables, Data Collection Tools, Reports, Scripts or Heimdall Data Pre-Existing Technology that Customer provides to Heimdall Data.

11. Ownership.

  1. Each party will retain the exclusive ownership of all of its pre-existing Intellectual Property, Confidential Information and materials, including, without limitation, proprietary ideas, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology that are owned by a party prior to commencement of any Services hereunder, or that are otherwise developed by or for such party outside the scope of this Agreement (“Pre-Existing Technology”). Except as otherwise expressly set forth in this Agreement or the SOW, Heimdall Data owns and will continue to own all right, title, and interest in and to the Services, Products, Deliverables, Data Collection Tools, Reports, Scripts, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes or other technology provided or developed by Heimdall Data (or a third party acting on Heimdall Data’s behalf) pursuant to this Agreement, including  modifications, enhancements, improvements or derivative works of any of the foregoing, regardless of who first conceives or reduces to practice, and all Intellectual Property in any of the foregoing (collectively “Heimdall Data Intellectual Property”).
  2. As between Customer and Heimdall Data, Customer at all times retains all right, title and interest in and to all of Customer’s Pre-Existing Technology and all Intellectual Property that is developed by Customer or by a third party on Customer’s behalf thereafter, other than Heimdall Data Intellectual Third Party Products will at all times be owned by the applicable third party, and will be subject to any applicable third party license terms.

12. Force Majeure. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable The obligations and rights of the defaulting party shall be extended for a period equal to the period during which such event prevented such party’s performance.

13.      Applicable Law and Jurisdiction.

  1. The validity, interpretation, and performance of the SOW shall be controlled by and construed under the laws of the State of California, United States of America, as if performed wholly within the state and without giving effect to the principles of conflicts of law, and the State and Federal courts of California shall have exclusive jurisdiction over any claim arising under this Agreement, if the SOW is with Heimdall Data,
  2. Notwithstanding the foregoing, either party shall at all times have the right to commence proceedings in any other court of its choice for interim injunctive relief in the event of threatened or actual breach of Intellectual Property rights or provisions regarding protection and non-disclosure of Confidential
  3. Export Control. Customer shall comply with such laws and regulations governing use, export, re-export, and transfer of Products and technology and will obtain all required S. and local authorizations, permits, or licenses.
  4. Assignment. Except as provided below, neither party may assign or delegate its rights or obligations under the SOW (other than: (i) the right to receive any amount due, which shall be freely assignable, or (ii) to Customer’s parent or majority-owned subsidiary company of sufficient net worth to meet any potential liability under the SOW) without the prior written consent of the other, such consent not to be unreasonably withheld or delayed, provided that any such assignment shall not relieve the assigning entity of any obligation to pay monies that were owed prior to the date of the Notwithstanding the foregoing: (a) Heimdall Data reserves the right to subcontract Services to any Affiliate or third party organization to provide Services to Customer, and (b) Heimdall Data may assign the SOW or all or any portion of its rights and obligations hereunder, to any Affiliate of Heimdall Data.
  5. Notices. All notices required or permitted under the SOW will be in writing and will be deemed given one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery), with written verification of All communications will be sent to the addresses set forth on the cover sheet of the SOW or such other address as may be designated by a party by giving written notice to the other party pursuant to this paragraph. Notwithstanding the above, notices regarding general changes in pricing, policies or programs may also be by posting on Heimdall Data.com or by e-mail or fax.
  6. Entire Agreement. The SOW, including this Agreement, is the complete agreement between the parties concerning the subject matter of the SOW and replaces any prior oral or written communications between the parties, except as agreed between the There are no conditions, understandings, agreements, representations, or warranties expressed or implied, that are not specified herein. The SOW may only be modified by a written document executed by the parties hereto.
  7. No Waiver. The waiver by either party of any right provided under the SOW shall not constitute a subsequent or continuing waiver of such right or of any other right under the
  8. Severability. In the event that one or more terms of the SOW becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null and void and shall be deemed deleted from the All remaining terms of the SOW shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph is invoked and, as a result, the value of the SOW is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate the SOW by written notice with immediate effect to the other.
  9. Attorneys’ Fees. To the extent allowed under local law, in any suit or proceeding relating to the SOW, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such This provision is intended to be severable from the other provisions of the SOW, and shall survive expiration or termination and shall not be merged into any such judgment.
  10. Survival. Sections 5 (Payment and Invoicing), 6 (Term and Termination), 7 (Confidentiality), 8 (Warranty), 9 (Limitation of Liability and Consequential Damages Waiver), 10 (License), 11 (Ownership), 12 (Force Majeure), 13 (Applicable Law and Jurisdiction), 14 (Export Control), 16 (Notices), 17 (Entire Agreement), 18 (No Waiver), 19 (Severability), 20 (Attorneys’ Fees), 22 (Survival), the Glossary of Terms Appendix.

 

APPENDIX A GLOSSARY OF TERMS

(Appendix A)

Affiliate with respect to a party, means any corporation, firm, partnership, limited liability company or other entity, whether de jure or de facto, that directly or indirectly owns, is owned by, or is under common ownership with such party to the extent of at least fifty percent (50%) of the equity having the power to vote on or direct the affairs of such party, and any person, firm, partnership, corporation, limited liability company or other entity actually controlled by, controlling, or under common control with such party.

Application Software means non-resident or standalone Software Products listed on the Price List that include but are not limited to Heimdall Data® software.

Heimdall Data.com (http://www.heimdalldata.com) is the Heimdall Data website for its suite of online services and information.

Confidential Information means proprietary and confidential information received by Heimdall Data or Customer in connection with the SOW and their relationship. Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, customer lists, financial information, and sales and marketing plans or information which the receiving party knows or has reason to know is confidential, proprietary or trade secret information of the disclosing party, as well as, in the case of Heimdall Data, any information posted on Heimdall Data.com.

Data Collection Tools means Hardware and/or Software tools that support Heimdall Data’s ability to provide troubleshooting on cases, data analysis, and report generation capabilities as part of the Services.

Intellectual Property means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

 Price List means the price list for services applicable in the country where the Services are ordered or delivered.

Third Party Products means third-party hardware and/or software, and all upgrades/updates thereto, that are designated by Heimdall Data as required for:

  • The operation of Application Software in conformance with Heimdall Data applicable Application Software Documentation; and
  • Heimdall Data support of the Application Software