READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY CONSITUTE, TOGETHER WITH AN APPLICABLE ORDER FORM, A LEGALLY BINIDNG AGREEMENT AND GOVERN THE PROVISION BY TALEND TO YOU OF SERVICES IDENTIFIED ON THE APPLICABLE TALEND ORDER FORM. BY RECEIVING TALEND’S SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT RECEIVE THE TALEND SERVICES.
This Professional Services Agreement (this “Agreement“) is entered into by and between Talend Limited, whose registered office address is Statesman House – Stafferton Way, Maidenhead, Berkshire – SL6 1AY (“Talend”) and the customer identified on a Talend Order Form (“You” or “Customer”), and is effective as of the date Talend signs the Order Form (the “Effective Date”).
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
1.1 “Business Day” means any weekday other than a day designated as a holiday under the Talend holiday schedule, as revised annually and from time to time.
1.2 “Consulting Services” means the consulting services, if any, set forth on an applicable Order Form, to be performed by Talend for Customer, as may be further described in an applicable Services Attachment.
1.3 “Customer” means the entity named on the cover page to this Agreement, and its affiliates. For purposes of this Agreement, “affiliate” means an entity that is controlled by or under common control with the entity named above. The entity named above agrees to be responsible to Talend for any costs or damages resulting from an act or omission by an affiliate that if attributable to Customer would constitute a breach of this Agreement.
1.4 “Deliverables” means any software or other materials delivered to Customer in connection with the performance of Services.
1.5 “Development Services” means the development services, if any, set forth on an applicable Order Form, to be performed by Talend for Customer, as may be further described in an applicable Services Attachment.
1.6 “Order Form” means a Talend order form pursuant to which Customer may order Services from Talend.
1.7 “Services” means collectively, Consulting Services, Training Services and/or Development Services.
1.8 “Services Attachment” means a statement of work entered into by the parties, setting forth the specific details of Training Services, Consulting Services and/or Development Services to be performed by Talend for Customer.
1.10 “Training Services” means the training services, if any, set forth on an applicable Order Form.
2.1 General. Unless otherwise expressly specified in the applicable Order Form, Services shall be provided on a time and material (“T&M”) basis pursuant to the then-current T&M rates when the Services are performed. A standard working day shall be 8 hours, including lunch. Any additional hours worked by the consultant(s) over and above the standard working day will be charged at the agreed hourly / daily rate in one hour increments. Any weekend (Saturday Sunday) or Bank/National Holiday working will be charged at 1.5 times the agreed daily rate. Any estimate of time or number of days required to perform Services, or any monetary amount stated in the applicable Order Form or Services Attachment for T&M Service, shall be deemed an estimate for Customer’s budgeting and Talend resource scheduling purposes. After any such estimate of time, days or monetary limit is expended, Talend will continue to provide the Services on a T&M basis, unless otherwise set forth in the applicable Order Form or Services Attachment.
2.2 Consulting Services. Subject to the payment by Customer to Talend of applicable fees, Talend agrees to use its commercially reasonable efforts to provide Customer with the Consulting Services, if any, set forth on an applicable Order Form, as may be further described in an applicable Services Attachment.
2.3 Development Services. Subject to the payment by Customer to Talend of applicable fees, Talend agrees to use its commercially reasonable efforts to provide Customer with the Development Services, if any, set forth on an applicable Order Form, as may be further described in an applicable Services Attachment.
2.4 Training Services. Subject to the payment by Customer to Talend of applicable fees, Talend agrees to provide Customer with the Training Services, if any, set forth on an applicable Order Form, as may be further described in an applicable Services Attachment.
2.5 Cancellation and Rescheduling. Cancelling or rescheduling of Services must be done in writing. There is a £1,500 cancellation/rescheduling fee per consultant if Consulting or Development Services are cancelled or rescheduled less than five (5) Business Days prior to the engagement commencing, and Customer shall reimburse Talend for any non-refundable travel expenses that have been incurred by Talend prior to such cancellation. To cancel an engagement which is in progress, either party must give ten (10) days written notice of cancellation, and Talend shall have the right to collect fees for the Services performed during such ten (10) day period.
2.6 Subcontractors. Talend reserves the right to use subcontractors to perform Services on Talend’s behalf.
2.7 Customer Obligations. Customer agrees to provide Talend with such cooperation, materials, information, access and support which Talend deems to be reasonably required to allow Talend to successfully provide the Services, including, without limitation, as may be set forth in an applicable Services Attachment. Customer understands and agrees that Talend’s obligations hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.
2.9 Customer Policies. Whilst on premises owned, controlled or hired by Customer, all Talend personnel shall conduct themselves in accordance with the standard health, safety and security policies of Customer applicable to its staff generally.
3. Acceptance of Deliverables
Criteria for acceptance of the Deliverables by Customer shall be specified in the applicable Services Attachment. Prior to delivery, Talend will test the Deliverables to ensure compliance with the acceptance criteria. Deliverables shall be deemed accepted by Customer unless objected to in writing within thirty (30) days of delivery (“Acceptance Period”). In the event that Customer notifies Talend in writing prior to the expiration of the Acceptance Period that a Deliverable fails to meet the applicable acceptance criteria, Talend shall use its commercially reasonable efforts to correct any such non-conformity within ten (10) Business Days and submit the corrected Deliverable to Customer for additional Acceptance Testing. Talend shall have no obligation or liability under this Agreement if any modifications are made to the Deliverables by anyone other than Talend, or if the Deliverables are integrated or combined with any other materials including, without limitation, software, hardware, or services not provided by Talend, or if the Deliverables are tested in a configuration not specified in the acceptance criteria.
4. Ownership of Work Product and Other Materials
4.1 Work Product. In the course of performing Consulting Services and/or Development Services, Talend may create software or other works of authorship (collectively “Work Product”). Subject to Customer’s ownership interest in, and Talend’s obligations with respect to, Customer’s Confidential Information, Talend shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of Consulting Services and/or Development Services (a “Work Product Deliverable”), Talend hereby grants to Customer a royalty-free, perpetual, worldwide license, without the right to grant or authorize sublicenses, to use such Work Product Deliverable solely for Customer’s own internal business purposes. Customer may not distribute or otherwise transfer such Work Product Deliverable to any third party. Notwithstanding the foregoing, any deliverable provided by Talend to Customer that is a derivative work, modification or transformation of data provided to Talend by Customer for processing, shall be owned by Customer. Nothing in this Agreement shall be deemed to prohibit Talend from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services.
4.2 Other Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any materials provided by Talend to Customer in connection with the provision to Customer of Training Services (“Materials”), other than the rights of use specifically granted in this Agreement. Customer shall be entitled to keep and use all Materials provided by Talend to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Talend. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any Materials will be limited to use by the specific persons to whom the applicable Services are provided. All Talend trademarks, trade names, logos and notices present on the Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Talend trademarks without Talend’s express written authorization.
5. Fees, Payment and Taxes
5.1 Fees. Fees for Services shall be Talend’s then-current rates for the applicable Services, unless otherwise set forth in the applicable Order Form or Services Attachment. Unless specifically stated otherwise, the Customer shall reimburse Talend for reasonable travel, accommodation, communications, equipment and out-of-pocket expenses incurred in conjunction with the Services (“Expenses”).
5.2 Payment. Unless otherwise specified on an Order Form, all invoices will be paid in GBP Sterling and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. All monetary amounts are specified and shall be paid in the lawful currency of Great Britain. Customer shall pay all amounts due under this Agreement to Talend at the address set forth herein or such other location as Talend designates in writing. Any amount not paid when due will bear interest at the rate of one and one half percent (1.5%) per month or, the maximum rate permitted by applicable law, whichever is less, determined and compounded on a daily basis from the date due until the date paid.
5.3 Taxes. All amounts payable by Customer to Talend under this Agreement are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the provision of Services, the execution or performance of this Agreement or otherwise, and including without limitation all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs; provided, however, that Customer shall have no liability for any net income, net worth or franchise taxes assessed on Talend. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to Talend, then the amount of the payment to Talend shall be automatically increased to totally offset such tax, so that the amount actually remitted to Talend, net of all taxes, equals the amount invoiced or otherwise due. Customer will promptly furnish Talend with the official receipt of payment of these taxes to the appropriate taxing authority. Customer will pay all other taxes, levies or similar government charges or provide Talend with a certificate of exemption acceptable to the taxing authority.
6. Term and Termination
6.1 Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 6.2 below, continue in force until the completion by Talend of its Services obligation(s) set forth therein.
6.2 Termination. Either party may, upon written notice to the other party, terminate this Agreement for material breach by the other party if such party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching party.
6.3 Survival. All payment obligations under Section 5, plus Sections 4, 6.3, 7, 8, 9, 10 and 11 of this Agreement shall survive any termination or expiration of this Agreement.
7.1 Confidential Information. Both parties acknowledge that, in the course of performing this Agreement, they may obtain information relating to products (such as goods, services, and software) of the other party, or relating to the parties themselves, which is of a confidential and proprietary nature (“Confidential Information”). Confidential Information includes, Deliverables and all communications concerning Talend’ or Customer’s business and marketing strategies including but not limited to employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with Talend software, anything provided by Talend in connection with its warranty obligations under this Agreement, including, without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical plans and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made.
7.2 Non-use and Non-disclosure. The parties shall at all times, both during the term of this Agreement and thereafter keep in trust and confidence all Confidential Information of the other party and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any such Confidential Information to third parties without the other party’s prior written consent.
7.3 Non-Applicability. The obligations of confidentiality shall not apply to information which (i) has entered the public domain except where such entry is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction; (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; or (iv) was developed by the receiving party without use of the Confidential Information. In addition, nothing in this Section 7 shall be deemed to prevent a party from disclosing information as required by law, regulation or a court order.
7.4 Terms of this Agreement. Except as required by law or governmental regulation, neither party shall disclose, advertise, or publish the terms and conditions of this Agreement without the prior written consent of the other party, except that either party may disclose the terms of this Agreement to potential acquirers, accountants, attorneys and parent organizations pursuant to the terms of a non-disclosure or confidentiality agreement, or to potential investors.
7.5 Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party’s Confidential Information in compliance with that order. In doing so, to the extent permitted under applicable law, such party shall: (i) give the other party prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperate with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order.
8. Warranties and Remedies
8.1 Services Warranty and Remedy. Talend warrants that during the Term it will perform the Services in a workmanlike manner consistent with generally accepted industry standards, and that for a period of thirty (30) days from completion of the Services, any Deliverables will perform in all material respects in accordance with any applicable specifications therefore set forth in an applicable Services Attachment. In the event of a breach of the foregoing warranty, Talend’s sole obligation, and Customer’s exclusive remedy shall be for Talend to re-perform the applicable Services.
8.2 Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND TALEND MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE DELIVERABLES, MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TALEND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT WITH RESPECT TO THE DELIVERABLES AND SERVICES PROVIDED BY TALEND HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING.
Each party (“Indemnitor”) shall indemnify, defend and hold the other party and its directors, officers, employees, agents and independent contractors (“Indemnitee”) harmless from and against, any and all suits, actions and proceedings, claims, liabilities, losses, damages, expenses (including attorneys’ fees) and costs (collectively, “Claims”), made against an Indemnitee by a third party for (i) personal injury or tangible property damage to the extent arising solely from any gross negligence or reckless act, or any intentional misconduct of the Indemnitor, or its directors, officers, employees, agents or independent contractors in the performance of this Agreement or (ii) any violation of any laws, statutes or governmental regulation. The indemnification obligations of the parties in this Section 9 are contingent upon: (1) the Indemnitee promptly notifying the Indemnitor in writing of any claim which may give rise to a Claim for indemnification hereunder; (2) the Indemnitor being allowed to control the defense and settlement of such Claim; and (3) the Indemnitee cooperating with all reasonable requests of the Indemnitor (at Indemnitor’s expense) in defending or settling a Claim. The Indemnitee shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through a counsel of its own choosing.
10. Limitation of Liability
10.1 Disclaimer of Certain Damages. SUBJECT TO SECTION 10.4 BELOW, IN NO EVENT SHALL CUSTOMER OR TALEND BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TALEND SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN THE DELIVERY OR FURNISHING OF THE SERVICES.
10.2 Damages Cap. SUBJECT TO SECTION 10.4 BELOW, IN NO EVENT SHALL TALEND’S AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED AND FIFTY PERCENT (150%) OF THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY TALEND UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
10.3 CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
10.4 NOTHING IN THS AGREEMENT SHALL HAVE EFFECT SO AS TO LIMIT OR EXC;LUDE A PARTY’S LIABILITY FOR FRAUD INCLUDING FRAUDULENT MISREPRESENTATION, OR DEATH OR PERSONAL INJURY CAUSED BY NEGLGIENCE
11.1 Assignment. Customer may not assign this Agreement, in whole or in part, without the prior written consent of Talend. Any assignment in violation of this Section 11.1 shall be void ab initio and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns. The Parties intend that no term of the contract made by this Agreement may be enforced by any person who is not a party to it. The Parties reserve the right to agree to rescind or vary this Agreement without the consent of any other person. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall be and hereby are excluded.
11.2 Customer Identification. Customer consents to Talend’s identification of Customer as a user of the Services, as applicable, on its website, through a press release issued by Talend and in other promotion materials. Customer also agrees to cooperate with Talend in writing a case study exposing how the Services are being used and the benefits the Customer is deriving from this use.
11.3 Fees. Subject to the applicable court’s or tribunal’s order or direction otherwise, in any judicial proceeding between Customer and Talend arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.
11.4 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such party’s reasonable control.
11.5 Governing Law. This Agreement will be governed by and shall be construed in accordance with the laws of England and Wales whose courts shall have exclusive jurisdiction over any and all disputes arising out of or in connection with it.. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach by either party of Section 6 would cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief. If any provision(s) hereof is held unenforceable, this Master Agreement will continue without said provision and be interpreted to reflect the original intent of the parties.
11.6 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding to the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
11.7 Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified below the signatures on this Agreement. Either party may from time to time change its address for notices under this Section by giving the other party notice of the change in accordance with this Section 11.8.
11.8 Non-solicitation. During the Agreement and for a period of six (6) months following its expiry or earlier, lawful termination, Customer shall not solicit nor approach in any way any of Talend’s employees or contract staff (“Restricted Persons”) with a view to: (i) offering such Restricted Persons, employment; or (ii) soliciting services from them on their own account; or (iii) encouraging them to provide their services to a third party rather than Talend; or (iv) offering to them the opportunity to perform services colourably similar to the Services.
11.9 Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
11.10 Entire Agreement. This Agreement, together with any Order Form executed by the parties (all of which are hereby incorporated herein by this reference), along with any valid amendments hereto, completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. For the avoidance of doubt, any terms or conditions on any Customer purchase order or similar document are expressly excluded from this Agreement. This Agreement shall not be modified except by a subsequently dated, written amendment signed on behalf of Talend and Customer by their duly authorized representatives.