These terms and conditions (“Terms”) are a legal contract between you or your organization (“Customer”) and the Flexera entity listed in the Global Appendix attached hereto (“Flexera”) and apply to any professional services (“Professional Services”) delivered by Flexera to Customer.

1. Professional Services Engagements. Flexera will provide Customer the Professional Services described in a quote (an “Order”). Professional Services may be either Time & Materials, Fixed Fees or Services Subscription as defined below and as outlined in an Order. Professional Services shall be deemed accepted upon delivery.
   1. Time & Materials. Professional Services are provided on a time and materials basis and the Professional Services fees and travel and expenses set forth in an Order are estimates only; should additional Professional Services be required, a change order will be needed. Customer will pay Flexera at the applicable rate for the specified resource level for actual time worked.  Flexera will invoice Customer monthly in arrears for Professional Services performed.
   2. Fixed Fee. Professional Services are provided on a fixed fee basis. Fixed fees are based on information at the time of Order preparation. Changes in scope will require a change order. Flexera shall invoice Customer on the Order effective date unless an alternative invoice structure is set forth in an Order.
   3. Services Subscription. Flexera will provide the Professional Services as set out in the applicable statement of services available at https://community.snowsoftware.com/s/article/Statement-of-Services. Flexera will invoice Customer on the Order effective date.
   4. Expenses. If Professional Services are performed onsite at Customer facilities, Customer will reimburse Flexera for actual and reasonable travel expenses. Flexera will adhere to the more stringent of either Flexera’s or Customer’s travel policy (as provided by Customer and agreed to by Flexera). Expenses will be invoiced monthly in arrears as incurred.
2. Personnel. Flexera agrees not to assign any personnel to perform Services at a Customer site who have failed a background check or who have committed a felony shown by such background check. Flexera will, at a minimum, have performed the following checks on such personnel to the extent permitted by applicable laws:
   1. Verification of the personnel’s applicable identification number (e.g., social security number) to verify the accuracy of the personnel’s identity and current and previous addresses.
   2. A criminal background search of all court records of the personnel’s addresses over the past seven (7) years.
   3. Verification of the personnel’s post high school education or degrees or professional certifications.
3. Invoicing and Payment. Customer agrees to pay Flexera all such fees up to the limit set forth in the respective Order. All payments are non-refundable and shall be made within thirty (30) days of the date of invoice. All fees are pre-tax and Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Flexera). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
4. Delays and Cancellations. If performance of Professional Services is delayed due to Customer’s failure to provide required access, personnel availability or canceled with less than five (5) business days’ notice once ordered by Customer, Customer shall pay Flexera at the rate set forth in the Order for each day for each person assigned by Flexera to provide the applicable Professional Services if the Flexera resources cannot be redeployed by Flexera using reasonable efforts. In addition, Customer agrees to reimburse any travel expenses which have been incurred and are non-cancelable, non-refundable, or non-creditable.
5. Term and Termination.
   1. Term. These Terms are effective as of the Order effective date and shall continue until the completion of the Order, or until terminated in accordance herewith.
   2. Termination. Either party may terminate the Order immediately if the other party: (a) fails to cure any material breach of these terms within thirty (30) calendar days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) calendar days thereafter).
6. Work Product and other deliverables. Customer will own all Work Product, provided that any Background IP included in the Work Product will remain the property of Flexera. For the purposes of this section 6, “Work Product” is defined as any custom deliverable created exclusively for Customer in the performance of the Professional Services and “Background IP” is defined as any intellectual property rights owned or created by or on behalf of Flexera and whether in existence prior to the effective date of the Order and/or created thereafter independent of the Order. Except for the Work Product as set out above, Flexera will retain exclusive ownership of all rights, title and interest in and to any other deliverable delivered to Customer as part of the Professional Services and Flexera hereby grants Customer a non-exclusive, royalty free, worldwide, non-transferable and non-assignable license to use such deliverable solely for Customer’s internal purposes in connection with its use of the Flexera software products.
7. Warranty.
   1. Professional Services Warranty. Flexera represents and warrants to Customer that the Professional Services will be of a professional quality conforming to generally accepted industry standards and practices. Flexera’s sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be to re-perform the non-conforming Professional Services. If Flexera determines such remedy to be impracticable within a reasonable period of time, then Flexera will refund the fees paid for the non-conforming Professional Services.
   2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, NEITHER FLEXERA NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Compliance with Customer Policies.  Flexera personnel performing Professional Services at a Customer location will comply with all applicable and reasonable policies of Customer that are provided to Flexera in writing in advance, provided that such policies do not materially add to or conflict with these Terms or purport to impose any personal liability on such personnel.
9. Limitation of Liability.
   1. Consequential Damages Waiver. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, NEITHER PARTY SHALL BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND , REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
   2. Limit of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER (OR WITH RESPECT TO FEES DUE, PAYABLE) TO FLEXERA PURSUANT TO THE ORDER GIVING RISE TO THE CLAIM.
   3. Unlimited Liability. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY,NO LIMIT OF LIABILITY WILL APPLY TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, OR FOR DAMAGES ARISING FROM DEATH OR BODILY INJURY CAUSED BY A PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT, OR FOR PAYMENT OF FEES, OR FOR ANY OTHER LOSS THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
10. Confidentiality.
    1. Confidential Information. “Confidential Information” means any business and/or technical information that is received by a party (“Recipient”) from the disclosing party (“Discloser”) that a) is in written, recorded, graphical or other tangible form and is marked "Confidential" or “Trade Secret” or similar designation; b) is in oral form and identified by the Discloser as "Confidential" or “Trade Secret” or similar designation at the time of disclosure, with subsequent confirmation in writing within thirty (30) calendar days of such disclosure; or c) is received under circumstances that should be interpreted as imposing an obligation of confidentiality. Any software, documentation or technical information provided by Flexera (or its agents), and performance information relating to Flexera’s software products, shall be deemed “Trade Secrets” of Flexera without any marking or further designation.
    2. Protection of Confidential Information. The Recipient shall a) have the right to disclose the Confidential Information only to its employees, consultants and affiliates having a need to know and who have agreed in writing to be bound to confidentiality terms substantially similar to those contained herein; b) use at least as great a standard of care in protecting the Discloser’s Confidential Information as it uses to protect its own information of like character, but in any event not less than a reasonable degree of care; c) use such Confidential Information only in connection with its rights and/or obligations under these Terms; and d) at the Discloser’s option return or destroy any or all Confidential Information upon the Discloser’s demand. Except as expressly authorized herein, for a period of three (3) years following the disclosure date of Confidential Information to the Recipient, the Recipient will hold in confidence and not make any unauthorized use or disclosure of any Confidential Information. No time limit shall apply to Confidential Information marked or otherwise identified as or deemed to be a “Trade Secret”.
    3. Exclusions. The Recipient’s nondisclosure obligation shall not apply to information that: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Recipient; (c) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Recipient who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Discloser).
    4. Equitable Relief. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient the Discloser shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
11. General
    1. Governing Law. These Terms are governed, without reference to applicable conflicts of law principles, by the laws of the jurisdiction as set forth in the Global Appendix attached hereto (“Governing Law”), which is incorporated herein by reference. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to these Terms.  The language of any litigation or legal proceeding shall be English. The prevailing party in arbitration or litigation is entitled to recover its reasonable attorneys’ fees and costs from the other party. CUSTOMER MUST INITIATE ANY CAUSE OF ACTION FOR ANY CLAIM(S) ARISING OUT OF OR RELATING TO THESE TERMS AND ITS SUBJECT MATTER WITHIN 1 YEAR FROM THE DATE WHEN CUSTOMER KNEW, OR SHOULD HAVE KNOWN AFTER REASONABLE INVESTIGATION, OF THE FACTS GIVING RISE TO THE CLAIM(S).
    2. Independent Contractors. The parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Customer acknowledges and agrees that the Professional Services and work product may provide results and conclusions based on facts, assumptions, data, material, and other information that Flexera has not independently investigated or verified. Inaccuracy or incompleteness of such facts, assumptions, data, material, and other information could have a material effect on conclusions reached by the Professional Services or work product; all actions taken or not taken by Customer based on the output of the Professional Services or work product shall be the responsibility of Customer. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
    3. Subcontracting. Flexera may engage a third party subcontractor to perform its obligations hereunder provided that Flexera remains responsible for the compliance of such subcontractor with these Terms.
    4. Anti-Bribery. Each party represents and warrants that (i) in connection with these Terms, it has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any government or any agency or instrumentality thereof and (ii) it will comply in all respects with the Foreign Corrupt Practices Act, UK Bribery Act 2010, or any similar local laws.
    5. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party and could not be avoided through the exercise of reasonable care and diligence, including but not limited to a Force Majeure Event. If a Force Majeure Event occurs and continues for a period of thirty (30) days, Customer may terminate these Terms by providing written notice to Flexera. In the event Flexera’s performance hereunder is the subject of a Force Majeure Event, the fees to be paid by Customer will be equitably adjusted to reflect the period of non-performance. For the purposes of this section, a “Force Majeure Event” is defined as any strike, blockade, war, act of terrorism, riot, natural disaster, sanction, or failure or diminishment of power or of telecommunications or data networks or services
    6. Notices and Reports. Any notice or report to be given under these Terms must be in writing for the attention of Legal Dept. to the address given in the preamble to these Terms, by the following methods only and will be deemed to have been validly given (a) on the date of delivery if delivered by hand; (b) upon transmission if delivered by email to Flexera at legal@flexera.com and to Customer at the email address on file; and (c) two (2) Business Days after posting with an internationally recognized overnight courier. Where any provision of these Terms requires Customer to object in writing, such objection must be based on Customer’s reasonable opinion that Flexera (or its Subcontractor) would be incapable of meeting the requirements of these Terms. Each party to these Terms may change its location for notice under these Terms by giving notice to the other party in accordance with the notice provisions contained in this section.
    7. Entire Agreement. These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these Terms.

Global Appendix

Governing Law, and Venue of Disputes

In accordance with and subject to Section 11.a “Governing Law” of these Terms, the following table sets forth the Governing Law that corresponds with the location of the Customer entity entering into these Terms: