This Managed Services Terms and Conditions (this “Managed Services T&C”) is made part of the Master Services Agreement (“Agreement”) executed between Simple Helix and Customer. Any term not defined herein will have the same definition as in the Agreement or any SOW.
1. SOW TERMS AND CONDITIONS
Simple Helix will provide the services as specified in the SOW (“Services”) governed by this Managed Services T&C. In the event of a conflict between a term or condition in an SOW and those set forth here, this Managed Services T&C will govern unless explicitly superseded in the SOW.
2. CUSTOMER MATERIALS DELAY
Customer acknowledges that Simple Helix’s performance of the Services and delivery of any Deliverable is contingent on Customer’s timely delivery of any customer materials (“Customer Materials”) provided to Simple Helix in connection with the Services.
Simple Helix will determine the personnel assigned to perform the Services. Customer may request in writing, with specific legal reasons stated, the replacement of Simple Helix personnel or contractors.
4. PAYMENT TERMS
Simple Helix shall submit invoices for fees and reimbursable costs and expenses as described in the SOW plus all related taxes and withholdings, except for those based on Simple Helix’s net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to Simple Helix. Additional payment terms are as set forth in the Agreement.
Simple Helix shall perform Services in a workmanlike manner in accordance with generally accepted industry standards. EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIMPLE HELIX (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
6. INTELLECTUAL PROPERTY
6.1. Ownership. Other than Simple Helix Materials, Open Source Software and any Third Party Materials (defined herein) Customer shall own all intellectual property rights associated with the Deliverables, works of authorship or other products developed or created and delivered by Simple Helix to Customer in the course of performing Services (“Work Product”), as well as Customer’s derivative works thereof, subject to Customer’s payment in full under such SOW and subject to Simple Helix’s rights in the underlying intellectual property embodied therein or used by Simple Helix to perform the Services.
6.2. Simple Helix Materials Exclusion. “Simple Helix Materials” means any materials developed by Simple Helix: (a) prior to the Effective Date; (b) other than in performance of this SOW; (c) that are generally applicable to Simple Helix’s products and services and are not unique to the business of Customer or the SOW; or (d) that are improvements to Simple Helix software or Simple Helix’s internal processes, provided that such improvements or use thereof do not infringe on Customer’s proprietary rights. Simple Helix Materials may be included in, or necessary for Customer to use the Work Product but are excluded from Customer’s ownership rights set forth in Section 6.1. Simple Helix hereby grants to Customer a worldwide, perpetual, royalty-free license to use Simple Helix Materials solely as necessary for use as part of the Work Product. No other grants of licenses or rights to Customer will be implied from the provisions stated in this SOW. Customer shall not obliterate or remove and will reproduce Simple Helix’s intellectual property notices contained in the Simple Helix Materials. Customer shall not reverse engineer, decompile, or otherwise attempt to derive source code from any portions of the Work Product. Simple Helix is not being engaged to perform any investigation of third-party intellectual property rights including any searches of patents, copyrights, or trademarks related to the Work Product.
6.3. Open Source Materials Exclusion. Open source software is software provided under a license approved by the Open Source Initiative or similar open source or freeware license (“OSS”). Unless otherwise agreed in writing in an SOW (or subsequently agreed to in writing by the parties), OSS components governed by Artistic License (all versions), Apache License (all versions), Boost Software License, BSD, Common Development and Distribution License (CDDL), Common Public License (CPL) or IBM, Eclipse Public License (EPL), FLTK License PSA, LGPL 2.1, MIT, Mozilla (MPL) (all versions), Open LDAP License, OpenSSL, PHP License, Public Domain, Python Software Foundation License, Ruby, and zlib/libpng License, may be included in, or necessary for Customer to use the Work Product but are excluded from Customer’s ownership rights. Simple Helix may (a) obtain such OSS on Customer’s behalf, (b) incorporate it into the Work Product, and (c) submit back to open source libraries any improvements made to the OSS during the course of performing the Services, to the extent such submissions do not violate the confidentiality obligations set forth herein.
6.4. Third Party Materials Exclusion. Materials (including tools that are used to deliver the Services) that are not owned or created by Simple Helix (other than Open Source Software) (“Third Party Materials”) may be included in, or necessary for Customer to use the Work Product, but are excluded from Customer’s ownership rights. Customer will be solely responsible for obtaining necessary licenses to the Third Party Materials and liable for their use.
6.5. Reservation of Rights. Simple Helix reserves all rights not expressly granted to Customer in this Managed Services T&C. Except as expressly stated, nothing herein shall be construed to (a) directly or indirectly grant to a receiving party any title to or ownership of a providing party’s intellectual property rights in services or materials furnished by such providing party hereunder, or (b) preclude such providing party from developing, marketing, using, licensing, modifying or otherwise freely exploiting services or materials that are similar to or related to the Services or materials provided hereunder.
6.6. Customer’s Underlying Rights. Customer represents and warrants to Simple Helix that (a) Customer owns or controls all rights in and to all Customer information and materials provided by or on behalf of Customer to Simple Helix pursuant to the SOW, including without limitation all rights to exploit all such Customer information and materials worldwide in all media and languages in perpetuity without encumbrance or restriction, and (b) Customer grants to Simple Helix a nonexclusive, nontransferable, worldwide paid-up license to make, use, modify, reproduce, and prepare derivative works of Customer information and materials, solely for the purpose of performing Services, with no right to grant sublicenses.
6.7. Feedback License. The Parties agree that any feedback or suggestions (“Feedback”) (if any) given hereunder is voluntary. Each party is free to use, disclose, reproduce, license or otherwise distribute the Feedback relating to its own products and services, without any obligations or restrictions of any kind, including intellectual property rights.
7. BUSINESS HOURS
Unless otherwise expressly stated in an SOW, Services shall be performed by Simple Helix from 9:00 A.M. until 5:00 P.M. in the local time zone where the Services are being performed by Simple Helix, Monday through Friday excluding local statutory holidays and any additional holidays that Simple Helix grants to its employees, a list of which can be provided by Simple Helix to Customer prior to the commencement of the Services.
8. INTELLECTUAL PROPERTY INDEMNITY
8.1. Simple Helix. Subject to the limitations of liability set forth in the Agreement, Simple Helix shall (a) defend Customer against any third party claim that the Services and the Work Product (excluding Open Source Software and/or Third Party Materials) delivered by Simple Helix to Customer infringe a third-party’s intellectual property rights, and (b) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement signed by Simple Helix.
8.2. Customer. Customer shall (a) defend Simple Helix against any third party claim that the materials provided by Customer or its agents for use by Simple Helix infringe a third-party’s intellectual property rights and (b) pay the resulting costs and damages finally awarded against Simple Helix by a court of competent jurisdiction or the amounts stated in a written settlement signed by Customer.
8.3. Process. The foregoing obligations are subject to the following: the indemnitee (a) notifies the indemnitor promptly in writing of such claim, (b) grants the indemnitor sole control over the defense and settlement thereof, (c) reasonably cooperates in response to an indemnitor request for assistance, and (d) is not in material breach of the Agreement. Should such a claim be made, or in the indemnitor’s opinion be likely to be made, the indemnitor may, at its option and expense, (i) procure for the indemnitee the right to make continued use thereof, (ii) replace or modify such so that it becomes non-infringing, (iii) request return of the subject material, or (iv) discontinue the Services and refund the portion of any pre-paid Services fee that corresponds to the period of Services discontinuation. THIS SECTION STATES THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AND THE INDEMNITOR’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.