Note: We try to answer every email in a timely manner but are not always able to do so.
THIS AGREEMENT GOVERNS YOUR USE OF THE SITES (AS DEFINED BELOW). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS OR OTHERWISE USE THE SITES.
PDS Solutions, LLC, its affiliates, subsidiaries and successors or assigns (collectively "PDS," or "We") reserves the right to update or modify this Agreement at any time and from time to time. When we make changes to this Agreement, we will revise the "last updated" date at the top of this Agreement. We encourage you to periodically review this Agreement. Your continued use of the Sites after any changes or revisions to this Agreement, regardless of whether you have reviewed the updated version, shall indicate your agreement to be bound by the terms of this Agreement. You acknowledge that PDS shall have the right to terminate your access to the Sites or Service for any violations of this Agreement or at its convenience.
The Sites are made available for your personal, non-commercial use only. Except as provided by specific terms governing a specific Service, product, or information, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any of the information, software, products, or Services obtained from the Sites.
You may be required to register with PDS in order to access certain areas of the Site. In the course of registration, you must: (i) provide true, accurate, current and complete information on the registration form and (ii) maintain and promptly update such registration information as necessary.
If, after investigation, we have reasonable grounds to suspect that any information is untrue, inaccurate, not current or incomplete, we may suspend or terminate that user's account and prohibit any and all current or future use of the Sites (or any portion thereof) by that user. You may not use a user name (or e-mail address) that is already being used by someone else; that would violate any prohibitions herein; or that PDS rejects for any other reason in its sole discretion. Your user name and password are for your personal use only, and not for use by any other person. You are responsible for maintaining the confidentiality of any password you may use to access the Site, and agree not to lend or transfer your password or user name, or lend or otherwise transfer your use of or access to the Site, to any third party. You are fully responsible for all interactions with the Sites that occur in connection with your password or user name. You agree to notify PDS immediately of any unauthorized use of your password or user name or any other breach of security related to your account or the Site, and to ensure that you "log off"/exit from your account with the Site (if applicable) at the end of each session. PDS is not liable for any loss or damage arising from a user's failure to comply with this Section, including any loss or damage arising from any user's failure to immediately notify PDS of any unauthorized use of his or her password or account or any other breach of security and ensure that he or she "logs off"/exits from his or her account at the end of each session.
You agree that you will not use the Sites or the information, products, or Services available from them for, or to further, any unlawful purpose. Additionally, you will NOT: (A) upload, post, email, transmit, or otherwise make available any content that: (i) is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable or harmful to another party; (ii) you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (iii) infringes any patent, trademark, trade secret, copyright, or other intellectual property right of another party; (iv) is unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," website links, or any other form of content for the purpose of solicitation; (v) contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (vi) consists of forged or manipulated information that disguises the true origin of any content you provide; or (vii) impersonates another person or entity, including, but not limited to, a PDS employee, forum leader, guide or host, or falsely states or otherwise misrepresents Your affiliation with a person or entity; (B) collect or store personal data about other users in connection with any prohibited conduct and activities; (C) use the Sites in any manner that could damage, disable, overburden, or impair any server, or network(s) connections; disobey any requirements, procedures, policies, or regulations of networks connected to the Sites; or interfere with any other party's use and enjoyment of the Sites; (D) attempt to gain unauthorized access to any Site content, other accounts, computer systems, or networks connected to any server through hacking, password mining, scraping, or by any other means to obtain any materials or information not intentionally made available on the Sites; (E) intentionally or unintentionally violate any applicable local, state, national, or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law; (F) provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; or (G) use automated queries (including screen and database scraping, spiders, robots, crawlers and any other automated activity with the purpose of obtaining information from the Services) as they are strictly prohibited on the Services, unless you have received express written permission from PDS. As a limited exception, publicly available search engines and similar Internet navigation tools ("Search Engines") may query the Services and provide an index with links to the Services' Web pages, only to the extent such unlicensed "fair use" is allowed by applicable copyright law. Search Engines are not permitted to query or search information protected by a security verification system ("captcha") which limits access to human users.
Certain Sites enable users to submit content, email, or other information that will be made available to other users of the Sites (e.g., a forum or blog site) or directly to PDS. You understand and agree that PDS: (a) is NOT responsible for the content of user submissions, (b) has no obligation to remove any user-submitted content, and (c) has sole discretion to determine whether any user submitted content violates this Agreement and to take action or inaction based on that determination. If you submit content or information to a Sites or Service that makes your content available to other users, you represent and agree that: (i) your content in not prohibited by this Agreement; (ii) you are solely responsible for the form, content, and accuracy of any material you submit to a Sites; (iii) you are granting PDS a royalty-free, perpetual, irrevocable, non-exclusive license (including a waiver of any moral rights) under your intellectual property rights to use, reproduce, modify, adapt, translate, publish, transfer, create derivative works of, publicly display, publicly perform sell and redistribute your content, know-how, ideas, techniques and elements of submissions (in whole or in part) worldwide, and to incorporate such content, know-how, ideas, techniques and elements of submissions in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in such content; and (iv) PDS is not obligated to exercise the rights you granted above. For the avoidance of doubt, any ideas, concepts, know-how, or techniques contained in any communication or material you send to PDS via email or through the Sites for any purpose whatsoever, will be considered non-confidential and non-proprietary.
You acknowledge that the Sites and various elements contained therein are protected by copyrights, trademarks, trade secrets, patents, or other proprietary rights, and that these worldwide rights are valid and protected in all forms, media, and technologies existing now and hereinafter developed. As between you and PDS, you also acknowledge and agree that the Content is and shall remain the property of PDS. You agree to comply with all intellectual property laws and you shall not encumber any interest in, or assert any rights to, the Content. You may not modify, publish, reproduce, transmit, redistribute, participate in the sale or transfer of, or create derivative works based on any Content, in whole or in part. You may not use any of the information presented on the Sites in any manner to bring a claim of action against PDS in any jurisdiction.
PDS, the PDS logos, and other marks are trademarks and service marks of PDS (the "PDS Trademarks") or of third parties. Nothing on the Sites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of PDS Trademarks or third party marks displayed on the Sites, without prior written permission in each instance. All goodwill generated from the use of the PDS Trademarks will inure to our benefit.
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to the PDS Designated Agent, by providing the following information:
Notices of copyright infringement claims should be sent to the address at the bottom of this page.
INQUIRIES NOT COMPLIANT WITH THE PROCEDURE OUTLINED MAY NOT RECEIVE A RESPONSE.
Where PDS has provided a translation of the English-language version of a PDS Site, this Agreement, or other Content, You agree that: (a) the translations are only for Your convenience; (b) the English-language version governs Your use of the Content provided by PDS; and (c) the English-language version shall take precedence in the event of a conflict between the English-language version and the translated version (except as prohibited by local law).
Certain Sites may display content provided by third parties, links to third-party web pages, or both, including advertisements and solicitations to purchase their products or services. As consideration for your convenience in making this third-party content available or accessible to you, you acknowledge that PDS is not responsible for the third-party content. You also agree that PDS IS NOT responsible or liable for any losses or damages you experience with any third-party content you chose to rely upon or advertisements you respond to, and that you must contact the third party directly for any remedies that may be available to you.
ACTUAL OR ATTEMPTED UNAUTHORIZED USE OF THE SITES MAY RESULT IN CRIMINAL AND/OR CIVIL PROSECUTION. WE RESERVE THE RIGHT TO VIEW, MONITOR, AND RECORD ACTIVITY ON THE SITES WITHOUT NOTICE OR PERMISSION FROM YOU. ANY INFORMATION OBTAINED BY MONITORING, REVIEWING, OR RECORDING IS SUBJECT TO REVIEW BY LAW ENFORCEMENT ORGANIZATIONS IN CONNECTION WITH INVESTIGATION OR PROSECUTION OF POSSIBLE ILLEGAL ACTIVITY ON THE SITES. WE WILL ALSO COMPLY WITH ALL COURT ORDERS AS WELL AS ALL LAW ENFORCEMENT AND REGULATORY INQUIRIES INVOLVING REQUESTS FOR SUCH INFORMATION.
YOU ACKNOWLEDGE AND AGREE THAT THE SITES, THE CONTENT, AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NONE OF PDS, ITS AFFILIATES, SUBSIDIARIES OR ITS OR THEIR MEMBERS, MANAGERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE "PDS PARTIES") GUARANTEES THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY OR USEFULNESS OF ANY PORTION OF THE SITES, THE CONTENT, OR THE SERVICES. NONE OF THE PDS PARTIES WARRANT THAT THE SITES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SITES, ITS SERVER OR ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITES AND THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE CONTENT OR SERVICES IS ASSUMED SOLELY BY YOU. NONE OF THE PDS PARTIES MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ANY AND ALL, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITES, THE CONTENT, AND THE SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITES IS TO STOP USING THE SITES. Additionally, PDS makes no claim that any of the content or software available from the Sites can be lawfully viewed or downloaded outside of the United States. Access to portions of the Sites may not be legal by certain persons or in certain countries. If you access a/the Site(s) from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and from jurisdiction to jurisdiction.
You agree that you are responsible for the means you use to access the Sites and all costs associated therewith. You understand that we are not responsible for the performance of your hardware, software, the Internet, your Internet service provider and other third parties involved in connecting you to the Sites.
UNDER NO CIRCUMSTANCES WILL ANY OF THE PDS PARTIES BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SITES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SITES. IN NO EVENT SHALL ANY OF THE PDS PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SITES, THE CONTENT, THE SERVICES, OR THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS PDS'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
To the fullest extent permitted by law, you shall indemnify, defend and hold harmless the PDS Parties from any and all claims (including without limitation any proceeding, investigation or claim by a self-regulatory organization, state or federal securities agency or commission), demands, damages, costs and liabilities, including reasonable attorneys’ fees, arising out of or in connection with: (i) any of your content, including an assertion that the information, content, or other materials or services provided or made available by you or the use thereof, may infringe any copyright, trademark, or other intellectual property rights of any individual or entity, or misappropriate any individual or entity's trade secret, or contain any libelous, defamatory, disparaging, pornographic, or obscene materials; (ii) any breach by you of your obligations under this Agreement; (iii) your unlawful and/or unauthorized use of, or activities in connection with this Site. The foregoing indemnities shall survive expiration or termination of these Terms.
The Sites may contain additional agreements and disclosures in electronic form. By assenting to this Agreement, you agree that a printed version of this Agreement and other agreements entered into by you on the Sites in electronic form shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect. The sections of this Agreement entitled limitation of liability, indemnification, miscellaneous shall survive the termination of this Agreement. The paragraph headings herein are provided only for reference and shall have no effect on the construction or interpretation of this Agreement. You expressly absolve and release the PDS Parties from any claim of harm resulting from a cause beyond their control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, terrorist activities or governmental restrictions. You may not assign this Agreement. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement. This Agreement and any other agreements between the parties entered into through the Sites shall be governed by and construed in accordance with the laws of the State of Delaware and shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods, the Brussels or Lugano Conventions, the UCITA, or the Rome or Rome 1 Conventions. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resolved exclusively by state or federal courts located in the State of Delaware. This Agreement contains the entire agreement of the parties concerning the Sites and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter. You shall comply with all laws, rules and regulations, which are now or hereinafter promulgated by any government authority or agency, which govern or apply to the operation and use of the Sites. Without limiting the generality of the foregoing, you expressly agree to comply with such restrictions and not to export or re-export any of the Content or Services to countries or persons prohibited under the export control laws of the United States. You are prohibited from any use of the Sites that would constitute an illegal offense, give rise to liability or otherwise violate any applicable local, state, national or international law or regulation. All rights not expressly granted herein are reserved by us. Thank you for your cooperation. Questions or comments regarding the Sites, including any reports of non-functioning links, should be sent to us via contact information posted on this page.
NOTICE TO ALL USERS: PLEASE READ THIS CONTRACT CAREFULLY. BY USING THE PRODUCT, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, DO NOT USE THE PRODUCT. IF LICENSEE IS A PARTY TO A SEPARATE SIGNED CONTRACT BETWEEN LICENSEE AND PDS GOVERNING LICENSEE’S USE OF THE PRODUCT(S), SUCH SIGNED AGREEMENT CONTROLS THE TERMS OF SUCH PRODUCT(S).
1.1 "Appliance" means a hardware device, software or virtual appliance on which the Product may be or is Used pursuant to the terms herein.
1.2 "Authorized Partner(s)" means PDS’s distributors, resellers, strategic partners, or other business partners.
1.3 "Documentation" means the then-current, generally available, written user manuals and online help and guides for Product.
1.4 "Licensee" means you as an individual or on behalf of the company, partnership, business you represent.
1.5 "Permitted Number" means one (1) copy of Product unless otherwise indicated in a valid Quote.
1.6 "Quote" means a valid PDS or Authorized Partner quote that provides pricing for the Product that Licensee may affirmatively acknowledge, execute, or issue a purchase order against to purchase the Product.
1.7 "PDS" means PDS Solutions, LLC, with offices at 245 N Highland Ave NE, Suite 230-295, Atlanta, GA 30312.
1.8 "Software" means (a) all of the software object code, portals, and contents of the files with which this Agreement is provided; or such software or content hosted by PDS or Authorized Partner(s); (b) any Updates; (c) any other software, if any, licensed to Licensee by PDS or an Authorized Partner as part of a maintenance contract or service subscription; and (d) Documentation.
1.9 "Updates" means upgrades, updates, or any new version of Product that is made available without charge pursuant to the warranty for Product; or the Support Services for licensed Product, but does not mean a new Product.
1.10 "Use", "Used" or "Using" means to access, install, download, copy or otherwise benefit from using the Product.
2. License Grant. Subject to the payment of the applicable license fees (where applicable), and subject to the terms and conditions of this Agreement, PDS hereby grants to Licensee a non-exclusive, non-transferable license to Use the Product subject to any restrictions or usage terms specified on the applicable Quote or Documentation. In the event Product contains or uses third party software, PDS will have no responsibility and claims no right with respect to such third party software. Your use of such third party software and other copyrighted material is governed by their respective terms.
3. Term. This Agreement is effective for the term set forth in the Quote issued to you by PDS or an Authorized Partner and which is accepted by you (the "Term"). If Licensee issues a purchase order to an Authorized Partner in response to a valid Quote and the terms and conditions as set forth in the Quote, this Agreement or any agreement referred to therein conflicts with the terms and conditions included in the purchase order, then the terms and conditions specified in the Quote, this Agreement or any other agreement referred to therein shall control and any terms other than those confirming the terms on the Quote are invalid and void. Except for Evaluation Software, Beta Software or freeware, which is subject to Section 7 below, if no Term is included in the above-described materials, then the Term shall be for one (1) year from the date of purchase unless earlier terminated as set forth herein. This Agreement will terminate automatically if Licensee fails to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, Licensee must cease Use of the Product and destroy all copies of the Product and the Documentation.
4. Updates. This license is limited to the version of the Product delivered by PDS and does not include Updates, unless a separate maintenance contract is purchased or, alternatively, Licensee has purchased a service subscription that entitles Licensee to Updates as described in the Quote. After the specified maintenance period or service subscription period has expired, Licensee has no further rights to receive any Updates without purchase of a new license to the Product.
5. Ownership Rights. The Product is protected by United States’ and other copyright laws, international treaty provisions and other applicable laws in the country in which it is being used. PDS and its suppliers own and retain all right, title and interest in and to the Product, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Licensee’s possession, installation, or Use of the Product does not transfer to Licensee any title to the intellectual property in the Product, and Licensee will not acquire any rights to the Product except as expressly set forth in this Agreement. Any copy of the Product and Documentation authorized to be made hereunder must contain the same proprietary notices that appear on and in the Product and Documentation and is prohibited without such authorization.
6. Multiple Environment Product/Multiple Language Product/Dual Media Product/Multiple Copies/Bundles/Updates. If the Product supports multiple platforms or languages, if Licensee receives the Product on multiple media, if Licensee otherwise receive multiple copies of the Product, or if Licensee receives the Product bundled with other software, the total number of Licensee’s Appliances on which all versions of the Product is installed may not exceed the Permitted Number. If the Product is an Update to a previous version of the Product, Licensee must possess a valid license to such previous version in order to Use the Update. Licensee may continue to Use the previous version of the Product on Licensee’s Appliance after Licensee receives the Update to assist Licensee in the transition to the Update, provided that the Update and the previous version are installed on the same Appliance; the previous version or copies thereof are not transferred to another Appliance unless all copies of the Update are also transferred to such Appliance, and Licensee acknowledges that any obligation PDS may have to support the previous version of the Product ends upon availability of the Update.
7. Evaluation Product Additional Terms. If the Product Licensee has received with this license has been identified as "Evaluation Software", "Beta Software" or "freeware", then the provisions of this section apply. To the extent that any provision in this section is in conflict with any other term or condition in this Agreement, this section shall supercede such other term(s) and condition(s) with respect to the Evaluation Software, Beta Software, or freeware, but only to the extent necessary to resolve the conflict. Licensee acknowledges that the Evaluation Software, Beta Software or freeware may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, Evaluation Software, Beta Software, or freeware is provided to Licensee "AS-IS", and PDS disclaims any warranty or liability obligations to Licensee of any kind. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, PDS’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF ONE THOUSAND DOLLARS (U.S. $1,000.00) IN TOTAL. Licensee acknowledges that PDS has not promised or guaranteed to Licensee that freeware or Beta Software will be announced or made available to anyone in the future that PDS has no express or implied obligation to Licensee to announce or introduce the Beta Software, and that PDS may not introduce a product similar to or compatible with the Beta Software. Accordingly, Licensee acknowledges that any research or development that Licensee performs regarding the Beta Software or any product associated with the Beta Software is done entirely at Licensee’s own risk. During the term of this Agreement, if requested by PDS, Licensee will provide feedback to PDS regarding testing and use of the Beta Software, including error or bug reports; Licensee agrees to grant PDS a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute, make derivative works and incorporate the feedback into any PDS product at PDS’s sole discretion. If Licensee has been provided the Beta Software pursuant to a separate written agreement, Licensee’s use of the Beta Software is also governed by such agreement. Upon receipt of a later unreleased version of the Beta Software or release by PDS of a publicly released commercial version of the Beta Software, whether as a stand-alone product or as part of a larger product, Licensee agrees to return or destroy all earlier Beta Software received from PDS and to abide by the terms of the End User License Agreement for any such later versions of the Beta Software. Licensee’s Use of the Evaluation or Beta Software is limited to 30 days and use of freeware is available for only so long as PDS makes the freeware available unless otherwise agreed to in writing by PDS. PDS is under no obligation to continue providing freeware or to update such freeware. You shall return Evaluation and Beta Software and any Documentation at the end of the evaluation or loan period or when sooner terminated by PDS for convenience by giving you ten (10) days’ written notice, whichever occurs first. You shall bear the risk of loss and damage for return of physical media, if any, and de-installation. You may use Evaluation and Beta Software and freeware free of charge, but in the case of Evaluation Software, solely for the purpose of evaluation and not in a production environment. If you are found to be using the Evaluation or Beta Software beyond the terms contained in this Section you shall immediately pay PDS a license Fee for such Software and all terms under this Agreement will be binding. Unless otherwise specifically agreed in writing by PDS, PDS does not provide maintenance or support for any Evaluation Software or Beta Software. YOU RECOGNIZE THAT THE EVALUATION OR BETA SOFTWARE MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY PDS. PDS shall have no liability to you for any action (or any prior related claims) brought by or against you alleging that your sale, use or other disposition of any Evaluation Software or Beta Software infringes any patent, copyright, trade secret or other intellectual property right. In the event of such an action, PDS retains the right to terminate this Agreement and take possession of the Evaluation or Beta Software. THIS SECTION STATES PDS’S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY EVALUATION SOFTWARE OR BETA SOFTWARE ANY PART THEREOF OR OPERATION.
8. Restrictions. Licensee may not sell, lease, license, rent, loan, resell or otherwise transfer, with or without consideration, the Product. If Licensee enters into a contract with a third party in which the third party manages Licensee’s information technology resources ("Managing Party"), Licensee may transfer all Licensee’s rights to Use the Product to such Managing Party, provided that (a) the Managing Party only Uses the Product for Licensee’s internal operations and not for the benefit of another third party; (b) the Managing Party agrees to comply with the terms and conditions of this Agreement, and (c) Licensee provides PDS with written notice that a Managing Party will be Using the Product on Licensee’s behalf. Licensee may not permit third parties to benefit from the use or functionality of the Product via a timesharing, service bureau or other arrangement. Licensee may not reverse engineer, decompile, or disassemble the Product, except to the extent the foregoing restriction is expressly prohibited by applicable law. Licensee may not modify, or create derivative works based upon, the Product in whole or in part. Licensee may not copy the Product or Documentation except as expressly permitted in Section 1 above. Licensee may not remove any proprietary notices or labels on the Product. All rights not expressly set forth hereunder are reserved by PDS.
9. Warranty and Disclaimer.
9.1 Limited Warranty. PDS warrants that for ninety (90) days from the date of purchase of the Product set forth on the respective Quote, the Product will meet the specifications set forth in the Documentation provided by PDS ("Specifications").
9.2 End User Remedies. PDS’s and its suppliers' entire liability and Licensee’s exclusive remedy for any breach of the foregoing warranty shall be, at PDS’s option, either (i) return of the purchase price Licensee paid for the Product, or (ii) replacement of the Product that meets such Specifications. Licensee must return the defective media to PDS at Licensee’s expense with a copy of Licensee’s invoice. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement Product will be warranted for the remainder of the original warranty period. Outside the United States, this remedy is not available to the extent PDS is subject to restrictions under United States export control laws and regulations.
9.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE PRODUCT IS PROVIDED "AS IS" AND PDS MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. PDS, ITS SUPPLIERS AND AUTHORIZED PATNERS MAKE NO WARRANTY, CONDITION, REPRESENTATION, OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE PRODUCT TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE PRODUCT. WITHOUT LIMITING THE FOREGOING PROVISIONS, PDS MAKES NO WARRANTY THAT THE PRODUCT WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS.
10. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL PDS OR ITS AUTHORIZED PARTNERS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR GROSS NEGLIGENCE OF ANY FORM INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, APPLIANCE FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. IN NO EVENT SHALL PDS OR ITS AUTHORIZED PARTNERS OR SUPPLIERS BE LIABLE FOR ANY DAMAGE IN EXCESS OF THE PRICE PAID FOR THE PRODUCT, IF ANY, EVEN IF PDS OR ITS AUTHORIZED PARTNERS OR SUPPLIERS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. Furthermore, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so this limitation and exclusion may not apply to Licensee. Nothing contained in this Agreement limits PDS’s liability to Licensee for PDS’s negligence or for the tort of fraud. PDS is acting on behalf of its suppliers and Authorized Partners for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
11. Indemnity. PDS will defend the Licensee from all third party claims, actions and lawsuits that are caused by the Product’s infringement of a copyright, trademark or patent under United States Law. PDS’s obligations under this clause are subject to (i) Licensee providing PDS with prompt written notice of any claim or lawsuit, (ii) PDS having sole control of the defense and all negotiations for settlement or compromise thereof and (iii) Licensee reasonably cooperating in the defense of such claim or lawsuit. PDS agrees to pay all settlements entered into by PDS, judgments finally awarded against Licensee and all attorney’s fees and expenses for counsel hired by PDS. Licensee may elect to participate in any such action with counsel of its own choice and expense. PDS will have no liability if the alleged infringement is based upon: (i) a combination of non PDS products, (ii) use for a purpose or in a manner not proscribed by PDS, (iii) use of an older version of Product when use of a newer Product would have avoided infringement (iv) any modification not made with PDS’s written approval or any modification made by PDS due to Licensee’s specific instructions, or (v) any intellectual property right owned or license by Licensee, its end users or any of its/their affiliates. Licensee will indemnify, hold harmless and, upon PDS’s request, defend PDS against any third party claims, liabilities and expenses (including court costs and reasonable attorney’s fees) arising from or related to any failure by Licensee to comply with any provision of this EULA, Licensee’s intellectual property, or arising from or related to the acts or omissions of Licensee.
12. Notice to United States Government End Users. The Product and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Product and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
13. Export Controls. Licensee acknowledges that the Product is subject to the export control laws and regulations of the United States of America ("US"), and any amendments thereof. Licensee shall not export or re-export the Product, directly or indirectly, to (i) any countries that are subject to US export restrictions; (ii) any end user known, or having reason to be known, will utilize them in the design, development or production of nuclear, chemical or biological weapons; or (iii) any end user who has been prohibited from participating in the US export transactions by any federal agency of the US government. Licensee further acknowledges that Product may include technical data subject to export and re-export restrictions imposed by US law.
14. High Risk Activities. The Product is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Product could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). PDS EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
15. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws in force: (a) in the State of Delaware for Products delivered in North America, and (b) the laws of England and Wales for Products delivered outside of North America. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The State and Federal Courts of Delaware shall each have non-exclusive jurisdiction over all disputes relating to this Agreement for Products delivered in North America and the Courts in London, England shall non-exclusive jurisdiction over all disputes relating to this Agreement for Products delivered outside of North America.
16. Free Software. This Product may include some software programs that are licensed (or sublicensed) to the user under the GNU General Public License (GPL) or other similar software licenses, which among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and have access to the source code. The GPL requires that for any software covered under the GPL, which is distributed to someone in an executable binary format that the source code also be made available to those users. For any such software, the source code is made available in a designated directory created by installation of the Product or designated internet page. If any Free Software licenses require that PDS provide rights to use, copy or modify a software program that are broader than the rights granted in this agreement, then such rights shall take precedence over the rights and restrictions herein.
This Professional Services Agreement is effective as of the last date signed below and the terms herein shall govern the Services provided by PDS to Company as set forth below (this "Agreement").
1.1 "Company" means the person or entity acquiring Services from PDS.
1.2 "Company Materials" means any and all materials or Technology that Company provides to PDS that are required for PDS to complete the Deliverables. Company Materials shall not be included in the Deliverables, unless necessary to perform the applicable Services.
1.3 "Confidential Information" means information or materials provided by one party (the "Discloser") to the other (the "Recipient") which may be in any form and: (i) labeled "confidential" or the like; (ii) disclosed orally and being identified as confidential at the time of disclosure; or (iii) a reasonable person would understand or reasonably expect the information or materials to be confidential; subject to the exclusions in Section 3.2 The following information shall be considered Confidential Information whether or not marked or identified as such: (i) the terms of a Service Order; (ii) for PDS, its product roadmaps, source code, formulae, processes, methodologies, release dates, feature sets, and strategic business plans; and (iii) for Company, its architecture, customer data, and strategic business plans.
1.4 "Deliverables" means the work product from the Services that PDS performs pursuant to a Service Order and any Prior Technology incorporated therein.
1.5 "Derivative Work" means a derivative work within the meaning of the U.S. copyright and other intellectual property laws.
1.6 "Intellectual Property Rights" means (by whatever name or term known or designated) copyrights, trade secrets, trademarks, patents, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals and extensions of such rights.
1.7 "PDS" means PDS Solutions, LLC, with offices located at 245 N Highland Ave NE, Suite 230-295, Atlanta, GA 30312.
1.8 "Prior Technology" means any and all Technology incorporated into the Deliverables that is developed or otherwise created by or on behalf of PDS or licensed by PDS, and which may be improved or modified in the course of developing the Deliverables.
1.9 "Quote" means a valid PDS quote that provides pricing for the Services that Company may affirmatively acknowledge, execute, or issue a purchase order against to purchase the Services.
1.10 "Services" means those services provided by PDS to Company as delineated in a Service Order.
1.11 "Service Order" means any Quote with services data sheet, statement of work or other document specifically incorporating this Agreement pursuant to which PDS is providing services to Company.
1.12 "Technology" means algorithms, approaches, code, concepts, data, designs, developments, documentation, discoveries, expressions, hardware, interfaces, inventions, know how, look and feel, methodologies, multi-media files, object codes, processes, programs, services, skills, software, techniques, technology, text, tools, web pages, and workflows.
2. Intellectual Property.
2.1 Proprietary Rights. All Intellectual Property Rights and all software, Prior Technology, and Deliverables developed or provided by PDS are and remain PDS property ("PDS Proprietary Works"). All written reports, analyses and working papers based on Company Materials and delivered by PDS to Company in the performance of PDS’s obligations under a Service Order ("Document Work Product"), subject to and exclusive of any PDS Intellectual Property Rights and Prior Technology embodied therein, belong to Company. Nothing herein shall preclude PDS from developing, using or marketing services or materials that are similar or related to such Document Work Product.
2.2 Company Furnished Materials. Any tangible Company Materials furnished for use by PDS remain Company property.
2.3 Work Product License. Upon Company’s payment in full for Deliverables, and to the extent that PDS Proprietary Works are contained in the Deliverables, Company is licensed to (i) use such PDS Proprietary Works internally, for the limited purpose for which the Deliverables were provided, on a non-exclusive, non-transferable, without rights to sublicense, royalty-free, worldwide basis, and (ii) make, for internal use only, a reasonable number of copies of the original Document Work Product in amounts reasonably necessary for Company’s use. Company shall not sublicense or otherwise transfer to any third party any PDS Proprietary Works. Other than as specifically provided herein, Company may not modify, alter, decompile, disassemble, reverse-engineer, or create Derivative Works from the Deliverables. The licenses granted in this section shall be in effect for the Term of the License to the PDS Product(s) that the Service Order corresponds to as defined in the PDS Quote subject to the terms and conditions of the PDS End User License Agreement or Terms of Service, as applicable, in effect on the date of such Quote.
2.4 Software License. If Company is granted a license to use software solely in conjunction with a Service Order ("Project License"); such shall consist solely of a non-exclusive, non-transferable, and without rights to sublicense right to use such software only in direct connection with such Service Order. The term of the Project License shall start on delivery of the software and expire upon the completion of Services in such Service Order.
2.5 PDS License. Company hereby grants to PDS a non-exclusive, worldwide, personal, royalty-free, non-transferable (except for entities controlling, controlled by, or under common control with PDS) license under Company’s Intellectual Property Rights in the Company Materials necessary for PDS to use, make, copy, modify, and create Derivative Works of the Company Materials, for the purpose of developing and testing the Deliverables during the Term of this Agreement.
2.6 Feedback. Any suggestions and feedback contributed by Company, at its discretion, to PDS in connection with development of PDS Proprietary Works are transferred to and owned by PDS; or if transfer of ownership is not allowed, licensed by Company to PDS on a non-exclusive, worldwide, perpetual, personal, and royalty-free basis.
3.1 If Company and PDS are parties to a separate Non-Disclosure Agreement or other agreement governing confidentiality, then its terms control over this Section 3. In lieu of such agreement, the terms of this Section 3 control.
3.2 Confidential Information does not include any specific information which: (i) is or becomes publicly known through no wrongful act or failure to act on the part of Recipient; (ii) is furnished to others by Discloser without similar restrictions on further disclosure; (iii) was known to the Recipient without proprietary restrictions at the time of disclosure by Discloser or becomes rightfully known to the Recipient without proprietary restrictions from a source other than Discloser; (iv) is independently developed by Recipient without reference to the Confidential Information disclosed by Discloser; or (v) is disclosed by order of law, provided that Recipient shall use reasonable efforts to preserve confidentiality and that Discloser shall be given reasonable opportunity to obtain a protective order; provided, however, that only the specific information that meets the above exclusions shall be excluded, and not any other information that happens to appear in proximity to such excluded portions (for example, a portion of a document may be excluded without affecting the confidential nature of those portions that do not themselves qualify for the exclusion).
3.3 The Recipient shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except to exercise its rights and perform its obligations under a Service Order or in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a "need to know" such Confidential Information; provided, however, each party may disclose Confidential Information without the prior written consent of the other party in the following limited circumstances: (i) to the limited extent required by any court, administrative agency, or other governmental body, but only if the receiving party provides prompt written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure; (ii) to the limited extent otherwise required by law; or (iii) to the party’s own legal counsel.
3.4 Recipient shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable.
3.5 Without limiting the foregoing, the restrictions on disclosure and use set forth herein shall not restrict or limit the right of the Recipient to (i) independently design, develop, acquire, market, service or otherwise deal in, directly or indirectly, products or services competitive with those of the Discloser; or (ii) assign personnel for any purpose, provided that Recipient does not violate its obligations under this Agreement while undertaking (i) or (ii).
3.6 Recipient shall protect Confidential Information in the manner provided herein for five (5) years after termination hereof, unless such obligation ceases earlier pursuant to Section 3.2.
4. Warranties, Indemnity and Limitation of Liability.
4.1 PDS Warranty. PDS warrants that the Services to be performed hereunder will be done in a workmanlike manner and shall conform to standards of the industry. Company must notify PDS of any failure to so perform within ten (10) days following the commencement of the Acceptance Period (as defined below). PDS’s entire liability and Company’s sole remedy for PDS’s failure to so perform shall be for PDS to, at its option, (i) use reasonable efforts to correct such failure, and/or (ii) terminate a Service Order and refund that portion of any fees received that correspond to such failure to perform.
4.2 Company Warranty. Company hereby represents and warrants that it either owns or has the rights to all Company Materials it provides to PDS necessary to grant the rights and licenses granted by Company to PDS hereunder. Company further warrants that it has the ability to pay for all Services.
4.3 Disclaimer of Additional Warranties. THE EXPRESS WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES AND DELIVERABLES, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM, AND PDS DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PDS WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICES OR PRODUCTS IDENTIFIED OR REFERRED TO COMPANY BY PDS.
4.4 Indemnity. PDS shall (i) defend Company against any third party claim that: (y) the Deliverable or Service infringes a patent, trademark, trade secret or copyright under the laws of a Covered Country; or (z) PDS’s gross negligence or willful acts resulted in the death, disability or damage or real property of such third party; and (ii) pay the resulting costs and damages finally awarded against Company by a court of competent jurisdiction or the amounts stated in a written settlement negotiated by PDS. For purposes of this Section, "Covered Country" means a country in which PDS offices are located, the United States of America, Mexico, Canada, the European Union, Japan, Australia, and South Korea. The foregoing obligations are subject to the following: Company (a) notifies PDS promptly in writing of such claim; (b) grants PDS sole control over the defense and settlement thereof; (c) reasonably cooperates in response to a PDS request for assistance; and (d) is not in material breach of this Agreement. Should any such Deliverable or Service become, or in PDS’s opinion be likely to become, the subject of such a claim, PDS may, at its option and expense, (1) procure for Company the right to make continued use thereof; (2) replace or modify such so that it becomes non-infringing; (3) request return of the Deliverable and, upon receipt thereof; pay an amount equal to the price paid by Company, less straight-line depreciation based on a three (3) year useful life for such Deliverable; or (4) discontinue the Service and refund the portion of any pre-paid Service Fee that corresponds to the period of Service discontinuation. PDS shall have no liability to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of Deliverable or Service with any third party products or services; (B) use for a purpose or in a manner for which the Deliverable or Service was not designed; (C) any modification made by any person other than PDS or its authorized representatives; (D) any modifications to Deliverable or Service made by PDS pursuant to Company’s specific instructions; (E) any technology owned or licensed by Company from third parties; or (F) use of any older version of the Deliverable when use of a newer version of the Deliverable made available to Company (under the same terms as PDS makes such release generally available to its customers) would have avoided the infringement. Company will indemnify PDS and, at its option, defend any action brought against PDS to the extent that it is based upon a third party claim arising out of (i) the unauthorized or unlicensed use of a Project License, combination of the Deliverable with any third party product to the extent that such claim would have been avoided but for combination therewith, or violation of export laws; (ii) Company’s Materials violation of a third party’s intellectual property rights, or privacy rights; (iii) Company’s gross negligence or willful acts resulting in the death, disability or damage or real property of such third party; or (iv) PDS’s compliance with Company’s designs, specifications, or instructions where such claim would have been avoided but for such compliance with Company’s request, and will pay any costs, damages and reasonable attorneys' fees attributable to such claim that are awarded against PDS, provided that PDS (a) notifies Company in writing of the claim promptly after becoming aware of such claim; (b) grants Company sole control of the defense and settlement of the claim, if Company assumes such defense; and (c) provides Company with all assistance, information and authority reasonably required for the defense and settlement of the claim. THIS SECTION STATES THE NON-INFRINGING PARTY’S SOLE AND EXCLUSIVE REMEDY AND THE INFRINGING PARTY’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.
4.5 Limitation. EXCEPT FOR A PARTY’S OBLIGATION OF INDEMNITY OR BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF, UNDER A SERVICE ORDER. EXCEPT FOR A PARTY’S OBLIGATION OF INDEMNITY OR BREACH OF CONFIDENTIALITY, A PARTY’S TOTAL LIABILITY UNDER A SERVICE ORDER SHALL NOT EXCEED THE FEES PAID FOR THE SERVICES AND DELIVERABLES PROVIDED BY PDS UNDER SUCH SERVICE ORDER.
5.1 Company is required to acknowledge receipt and acceptance/rejection of all Services and Deliverables associated with a Service Order within ten (10) business days (not including Federal Holidays) following the earlier of (i) completion of each individual milestone, or (ii) delivery of the Services and Deliverables, performed as described in the Service Order, as is applicable to the specific engagement ("Acceptance Period"). Upon the commencement of the Acceptance Period, PDS will, as is required by its accounting procedures, present Company with (i) a Project Milestone Completion Form, (ii) Acceptance Certificate, or (iii) notice of delivery of Service and/or Deliverables. Company will execute and return to PDS such Project Milestone Completion Form or Acceptance Certificate within the Acceptance Period. The failure to provide (i), (ii), or (iii) above does not excuse Company from the obligations of Sections 5.2 and 5.3.
5.2 If Company reasonably believes that PDS did not complete the Services and Deliverables in substantial conformance with the specifications from PDS described in a Service Order, Company will notify PDS in writing, with specific reasons delineated, of its rejection of the Services and Deliverables within the Acceptance Period. PDS will address Company’s issues and then re-present, as is applicable, the Project Milestone Completion Form or Acceptance Certificate for Company’s execution in accordance with the requirements of this Section 5.
5.3 If PDS does not receive the signed Project Milestone Completion Form, Acceptance Certificate, or a written notification of the specific reasons for the rejection of the Services and Deliverables from Company within the Acceptance Period, the absence of Company’s response will constitute the Company’s affirmative acceptance of the Services and Deliverables.
6. Fees and Payment.
6.1 Payment. PDS will provide the Services as outlined in a Service Order for i) a fixed price or ii) a time and materials price described therein, plus applicable taxes and travel expenses. Invoicing occurs upon Company acceptance of each milestone, receipt of Acceptance Certificate or acceptance of the Service and/or Deliverable, or approval of travel expenses, and must be paid by Company within thirty (30) days of the date of invoice. In the event Company uses pre-purchased PDS Consulting and Training Credits as means of payment, upon acceptance of Deliverables, timesheets, or travel expenses, the PDS Consulting & Training Credits will be deducted from the Company’s balance. It shall be the Company’s responsibility to ensure that its purchase order ("PO") issued to PDS for the Services reflects the pricing set forth in a Service Order. Once a PO from Company has been fulfilled by PDS, PDS shall have no liability for any pricing in Company’s PO which is inconsistent with the pricing set forth in a Service Order. Company agrees that POs do not have to be signed to be valid and enforceable. All fees are non-refundable and fully earned once paid.
6.2 Taxes. All charges and fees provided for in a Service Order are exclusive of any taxes, duties, or similar charges imposed by any government. Company shall pay or reimburse PDS for all federal, state, dominion, provincial, or local sales, use, personal property, withholding, excise or other taxes, fees, or duties arising out of a Service Order or the transactions contemplated by a Service Order (other than taxes on the net income of PDS). If Company is required to pay any withholding tax, charge or levy in respect of any payments due to PDS hereunder, Company agrees to gross up payments actually made such that PDS shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.
6.3 Late Payments. All amounts that are not paid by Company as required by a Service Order shall be subject to a late charge equal to one percent (1%) per month, or, if less, the maximum amount allowed by applicable law. If payment of any fee is overdue, PDS may also suspend provision of the Services until such delinquency is corrected.
6.4 Currency. All charges and fees provided for in a Service Order shall be in US Dollars unless otherwise agreed.
6.5 Cancellation. A minimum of thirty (30) business days’ written notice is required for rescheduling or canceling a Service Order prior to the commencement of the Services. A full refund less any expenses (e.g., airfare) will be provided if such notice is given. PDS reserves the right to charge Company the entire amount if a Service Order is canceled with less than such notice.
7. Term and Termination.
This Agreement shall begin on the date first signed by either party and shall continue in effect until terminated by the parties hereto. This Agreement may be terminated by the non-breaching party for a material breach that remains uncured thirty (30) days after written notice was sent to the breaching party specifying such breach. Service Orders will generally be in full force and effect until (i) Company’s acceptance of the final Deliverable or submission of final timesheet, or (ii) PDS and/or Company terminate this Agreement and/or mutually terminate a Service Order in writing. Sections 1, 2, 3, 4, 6, 7, and 8 will survive termination or expiration of a Service Order or this Agreement.
8.1 No Assignment. A Service Order and any rights or obligations of Company under it may not be assigned, subcontracted or otherwise transferred by Company, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of PDS, which consent will not be unreasonably withheld. Subject to the foregoing, a Service Order will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
8.2 Independent Contractors. The relationship of PDS and Company established by a Service Order is that of independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or otherwise grant either party the authority to bind the other party to any obligation, or constitute the parties as partners or joint venturers and neither party shall hold itself out as being an agent having such authority. Company shall make no representations or warranties on behalf of PDS with respect to the Services and/or Deliverables.
8.3 No Warranties. No employee, agent, representative or affiliate of PDS has authority to bind PDS to any oral representations or warranty concerning the Deliverables. Any written representation or warranty not expressly contained in a Service Order will not be enforceable.
8.4 Governing Law; Venue. With respect to Services to be provided in North America: (i) the laws of the State of Delaware, USA, excluding its conflict of law rules, will govern all Service Orders; and (ii) the parties consent to the exclusive jurisdiction of the state and federal courts of Dover, Delaware. With respect to Services to be provided outside North America, the laws of England and Wales will govern all Service Orders. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
8.5 Equitable Relief. Each party acknowledges and agrees that in the event of a breach of Section 2 or Section 3, the non-breaching party shall be entitled to seek immediate injunctive relief in addition to whatever remedies it might have at law or under this Agreement.
8.6 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of a Service Order if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, natural disaster, fire and explosions, or any other events reasonably beyond the control of either party, but the inability to meet financial obligations is expressly excluded.
8.7 Export Control. The Services, Deliverables, and any software provided to Company hereunder are of United States origin and may be subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, Company agrees that (i) it is not, and is not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (ii) it is not, and is not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (iii) it will not use the Services, Deliverables, and software for, and will not permit the Services, Deliverables, and software to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
8.8 End User License Agreement. In the event the Services involve software products (which may include Deliverables once accepted under this Agreement) licensed to Company under a separate license agreement, unless otherwise provided herein, the terms set out in such separate license agreement shall apply with respect to each such software product.
8.9 Acknowledgment. Unless otherwise expressly and specifically stated in a Service Order that also addresses the Intellectual Property Right in such software, Company acknowledges that the Services set forth in a Service Order do not include significant production, modification or customization of PDS licensed software.
8.10 Security Clearance. Company acknowledges that if any security resource requirements are required for the Services pursuant to a Service Order, Company will issue the appropriate security specifications and/or clearance requests to PDS.
8.11 Counterparts. This Agreement and Service Orders may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. This Agreement and Service Orders may be executed and delivered by facsimile or in electronic format in compliance with the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN).
8.12 Severability. If any provision in this Agreement or a Service Order is found to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent possible so as to affect the intent of the parties, and the remaining provisions of a Service Order will remain in full force and effect.
8.13 Notices. Any notice required or permitted under the terms of a Service Order or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth herein. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, five (5) business days after deposit in the mail as set forth above, or two (2) days after delivery to an overnight air courier service. All notices shall be directed to Company to the address set forth in the Service Order, and to PDS at the address in the definition of PDS, Attn: Legal Department.
8.14 Non-solicit. During the Term of the Agreement and for one (1) year thereafter, neither party may offer employment to, employ or subcontract work to any person employed then or within the preceding six (6) months of this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld. This Section will not prohibit a general solicitation of employment in the ordinary course of business or prevent either party from employing any employee who contacts it as a result of such a general solicitation or at his or her own initiative without any direct or indirect solicitation by or encouragement from such party. Furthermore, this provision shall only be enforceable to the extent it would not conflict with applicable law.
8.15 Entire Agreement. A Service Order (including its Exhibits) together with this Agreement constitute the entire agreement between the parties with respect to the subject matter thereof and, with respect to such subject matter, supersedes all previous communications, representations, understandings and agreements, either oral or written. A Service Order may not be amended except in a written document signed by both parties. No terms, provisions or conditions of any purchase order, acknowledgment or other business form that Company may issue to PDS in connection with a Service Order will have any effect on, or otherwise modify, the rights, duties or obligations of the parties under a Service Order, regardless of any failure of PDS to object to such terms, provisions or conditions. PDS hereby rejects any such additional or conflicting terms and conditions on any Company purchase order, acknowledgement or other business form, unless expressly otherwise agreed to by the parties in writing.
PDS does not intend to collect "Sensitive Information" which includes such items as: Personal Information specifying medical or health conditions, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership or information specifying the sex life of the individual. However to the extent this information is collected by PDS the person providing such information will be given an affirmative or explicit (opt in) choice if such information is to be disclosed to a third party or used for a purpose other than those for which it was originally collected or subsequently authorized by the individual through the exercise of opt in choice.
PDS will use Personal Information to provide current and potential customers and business partners with information and services and to help us better understand your needs and interests. Specifically, we use your information to welcome you and to provide ongoing service and support.
In accordance with applicable law, Personal Information collected may be transferred to, stored and processed in the United States or any other country in which PDS, PDS subsidiaries and affiliates, or service providers maintain facilities, even if the level of data privacy required is less than that required by applicable law of the originating country. By entering your personal data, you consent to the worldwide processing of your Personal Information by PDS for these uses.
In addition, we may use aggregate demographic information to improve our Sites, but that information is not personally identifiable.
PDS contracts with its affiliates and subsidiaries and with third party service providers and suppliers to deliver certain products, services and customer solutions and support and may also contract with its affiliates and subsidiaries for such items. Examples of such services provided on our behalf include the delivery of mailings, hosting websites, processing transactions, planning events, and the provision of support and other services to enable the use of PDS products and services. PDS may use a recruitment partner to collect and process career applications. PDS may share Personal Information with its service providers and suppliers to the extent needed to deliver the service, or to respond to requests for information on products or services, or to otherwise support the customers' business needs. In these instances, you will not have the opportunity to opt out of having your information shared with third party providers and suppliers, and they may contact you directly regarding such products or services.
PDS does not require that customers, business partners or non-employee visitors to PDS Sites provide PDS with Personal Information. The decision to provide Personal Information is wholly voluntary. If you do not provide the Personal Information requested, however, you may not be able to proceed with the activity or receive the benefit for which the Personal Information is being requested.
PDS will send you service-related announcements on occasions when it is necessary to do so. For instance, if our service is temporarily suspended, we might send you an email. Generally, you may not opt-out of these service-related communications. If you do not wish to receive them, you have the option to deactivate your account.
With respect to the sending of promotional materials, PDS will offer you the opportunity to opt out before such materials are sent to you. You can always unsubscribe or choose not to receive promotional information from us by following the specific instructions in the email you receive or by notifying us via the appropriate method available. It may take a reasonable period of time to process your request, no longer than 30 days. This will not apply to the receipt of mandatory service communications that are considered part of certain PDS services, which you may receive periodically unless you cancel the service.
You have the right to access to your Personal Information and to modification or deletion thereof in the event your Personal Information as stored by us is incorrect or otherwise unlawful. PDS strives to keep your Personal Information accurate. We will provide you with access to your information when reasonable, or in accordance with relevant laws, including making reasonable effort to provide you with online access and the opportunity to change your information. To protect your privacy and security, we will take steps to verify your identity before granting access or making changes to your data. You have the right to withdraw any consent you've given with respect to our use of your Personal Information. Requests to delete Personal Information are subject to any applicable legal and ethical reporting or document retention obligations. To access and/or correct information, you can do so online or notify us via the appropriate method available depending on which site is at issue. Contact PDS using contact information posted on this page.
PDS will retain your information for as long as your account is active or as needed to provide you services. PDS will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
PDS is committed to securing the personal data you choose to provide us. To protect the privacy of any Personal Information you may have provided, PDS and its service providers employ industry-standard physical and logical access controls that change in response to the changing regulatory and threat environments including Internet firewalls, intrusion detection, anti-virus protection, and network monitoring. If a password is used to help protect your accounts and Personal Information, it is your responsibility to keep your password confidential. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, we cannot guarantee its absolute security. If you have any questions about security on our web site, you can contact us using contact information posted on this page.
As is true of most web sites, PDS and/or a third party service provider collects and/or logs Internet Protocol addresses, Internet domain names, the web browser and operating system used to access the Sites, the files visited, the time spent in each file, and the time and date of each visit. PDS collects these through the use of log files and web beacons. Web beacons are tiny graphics with a unique identifier, similar in function to cookies, and are used to track the online movements of web users. In contrast to cookies, which are stored on a user’s computer hard drive, web beacons are embedded invisibly on web pages and are about the size of the period at the end of this sentence. PDS does not tie the information gathered by web beacons to our customers’ personally identifiable information. PDS uses this information, which does not identify individual users, to analyze trends, to administer the site, to track users’ movements around the site and to gather demographic information about our user base as a whole.
For the PDS Sites we may use the services of a third party vendor to help us measure the effectiveness of our advertising and how visitors use the site by using web beacons or cookies as described above. The type of information we collect includes the pages visited, navigation patterns, etc. This information helps us learn things such as what product information is of most interest to our customers and what kinds of offers our customers like to see. These third party tracking devices only collect data in the aggregate. Broadly speaking the cookies on the Sites fall into three categories:
These are always enabled cookies required for site functionality. These include cookies that allow you to be remembered as you explore the site within a single session or, if you request, from session to session. They help make the search and account process run smoothly as well as assist in security issues and conforming to regulations.
These analytics cookies allow us to improve the site's functionality by anonymously tracking usage. They also help us identify PDS products that we may recommend to you. In some cases these cookies improve the speed with which we can process your request, allow us to remember site preferences you've selected and help connect you to your social networks. De-selecting these cookies may result in poorly-tailored recommendations and slow site performance. You also may not be able to share effectively with Facebook, Twitter or other social networks.
These cookies collect information to help better tailor advertising to your interests, both within and beyond Sites. The data collected is anonymous; it is not connected with any Personal Information you may have shared about yourself with PDS. De-selecting these cookies may result in seeing advertising that is not as relevant to you.
PDS may utilize framing techniques to make it appear that the user is still on the site when the user is actually on a third party web site. Widgets support functions that require that you disclose certain personally identifiable information given the user's choice of participation.
The Sites do not target and are not intended to attract children under the age of 13. PDS does not knowingly solicit Personal Information from children under the age of 13 or send them requests for Personal Information.
PDS Solutions is committed to providing an accessible website. If you have difficulty accessing content, have difficulty viewing a file on the website, or notice any accessibility problems, please contact us to specify the nature of the accessibility issue and any assistive technology you use. We will strive to provide the content you need in the format you require. We welcome your suggestions and comments about improving ongoing efforts to increase the accessibility of this website.
Last Updated: July 11, 2017