Siepe, LLC Services Terms and Conditions

 

Last Updated: June 15, 2022

If Company is a party to a separate signed contract between Company and Siepe governing Company’s use of services, such signed agreement controls the terms of such services. The following Services Terms and Conditions (these “Terms”) govern the Services provided by Siepe to its customers in situations where there is no separate signed contract between Company and Siepe governing the use of Services. By Your receipt of the Services You agree to the following:

1. Definitions.

1.1    “Ancillary Document” means specifically a SOW, Service Description, Purchase Order, Quote, Change Order or other mutually agreed upon duly executed document between the Parties regarding the Services or other items to be provided under this Agreement.

1.2    “Confidential Information” means information or materials provided by one party (the “Discloser”) to the other (the “Recipient”) which are in tangible form and labeled “confidential” or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure and a reasonable person would understand 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 Siepe, 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.

1.3    “Company” means the person or entity acquiring Services from Siepe.

1.4    “Company Materials” means any and all materials or Technology that Company provides to Siepe that are required for Siepe to complete the Deliverables. Company Materials shall not be included in the Deliverables, unless necessary to perform the applicable Services.

1.5    “Deliverables” means the work product from the Services that Siepe performs pursuant to a Service Order and any Prior Technology incorporated therein.

1.6    “Derivative Work” means a derivative work within the meaning of the U.S. copyright and other intellectual property laws.

1.7    “Fees” shall mean fees for Services, Software, Deliverables or any other fees under this Agreement or Ancillary Document.

1.8    “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.

1.9    “Parties” means Company and Siepe and may be referred to individually herein as Party, or together as Parties.

1.10 “Prior Technology” means any and all Technology incorporated into the Deliverables that is developed or otherwise created by or on behalf of Siepe or licensed by Siepe, and which may be improved or modified in the course of developing the Deliverables.

1.11  “Quote” means a valid Siepe quote that provides pricing for the Services that Company may affirmatively acknowledge, execute, or issue a purchase order against to purchase the Services.

1.12  “Services” means those services provided by Siepe to Company as delineated in a Service Order.

1.13  “Service Order” means any Quote with services data sheet, statement of work, Exhibit A, if attached, or other document specifically incorporating these Terms pursuant to which Siepe is providing services to Company.

1.14  “Siepe” means Siepe Services, LLC, a Delaware limited liability company, with offices located at 5440 Harvest Hill Road, Suite 100, Dallas, Texas 75230, and its affiliates and subsidiaries under common control.

1.15  “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, skills, software, techniques, technology, text, tools, web pages, and workflows used in delivering the Services.

1.16  “You” or “Your” means You, either individually, or in your capacity as an authorized representative for the Company you are binding to these Terms.

2. Intellectual Property.

2.1    Proprietary Rights. All Intellectual Property Rights and all software, Prior Technology, and Deliverables developed or provided by Siepe are and remain Siepe property (“Siepe Proprietary Works”). All written reports, analyses and working papers based on Company Materials and delivered by Siepe to Company in the performance of Siepe’s obligations under a Service Order (“Document Work Product”), subject to and exclusive of any Siepe Intellectual Property Rights and Prior Technology embodied therein, belong to Company. Nothing herein shall preclude Siepe 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 Siepe remain Company property.

2.3    Work Product License. Upon Company’s payment in full for Deliverables, and to the extent that Siepe Proprietary Works are contained in the Deliverables, Company is licensed to (i) use such Siepe 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 Siepe 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 Siepe Product(s) that the Service Order corresponds to as defined in the Siepe Quote subject to the terms and conditions of the Siepe End User License Agreement 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, such license shall be governed by a separate End User License Agreement, executed by You and Siepe contemporaneously herewith.

2.5    Siepe License. Company hereby grants to Siepe a non-exclusive, worldwide, perpetual, personal, royalty-free, non-transferable (except for entities controlling, controlled by, or under common control with Siepe) license under Company’s Intellectual Property Rights in the Company Materials necessary for Siepe to use, make, copy, modify, and create Derivative Works of the Company Materials, for the purpose of developing and testing the Deliverables.

2.6    Feedback. Any suggestions and feedback contributed by Company, at its discretion, to Siepe in connection with development of Siepe Proprietary Works are transferred to and owned by Siepe; or if transfer of ownership is not allowed, are thereby licensed by Company to Siepe on a non-exclusive, worldwide, perpetual, personal, and royalty-free basis.

3. Confidentiality.

3.1    If Company and Siepe 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 three (3) years after termination hereof unless such obligation ceases earlier pursuant to Section 3.2.

4. Warranties, Indemnity and Limitation of Liability.

4.1    Siepe Warranty. Siepe 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 Siepe of any failure to so perform within ten (10) days following the commencement of the Acceptance Period (as defined below). Siepe’s entire liability and Company’s sole remedy for Siepe’s failure to so perform shall be for Siepe 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 Siepe necessary to grant the rights and licenses granted by Company to Siepe 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 Siepe DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Siepe WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICES OR PRODUCTS IDENTIFIED OR REFERRED TO COMPANY BY Siepe.

4.4    Indemnity. Siepe 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) Siepe’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 Siepe. For purposes of this Section, “Covered Country” means a country in which Siepe 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 Siepe promptly in writing of such claim; (b) grants Siepe sole control over the defense and settlement thereof; (c) reasonably cooperates in response to a Siepe request for assistance; and (d) is not in material breach of this Agreement. Should any such Deliverable or Service become, or in Siepe’s opinion be likely to become, the subject of such a claim, Siepe 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. Siepe 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 Siepe or its authorized representatives; (D) any modifications to Deliverable or Service made by Siepe 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 Siepe makes such release generally available to its customers) would have avoided the infringement. Company will indemnify Siepe and, at its option, defend any action brought against Siepe 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) Siepe’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 Siepe, provided that Siepe (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 FOR DIRECT DAMAGES UNDER A SERVICE ORDER SHALL NOT EXCEED THE FEES PAID FOR THE SERVICES AND DELIVERABLES PROVIDED BY Siepe UNDER SUCH SERVICE ORDER.

5. Acceptance.

5.1    Company is required to acknowledge receipt and acceptance/rejection of all Deliverables, including signed timesheets (if applicable), associated with a Service Order within ten (10) business days of delivery (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, Siepe will, as is required by its accounting procedures, present Company with (x) a Project Milestone Completion Form, (y) Acceptance Certificate, or (z) notice of delivery of Service and/or Deliverables. Company will execute and return to Siepe such Project Milestone Completion Form or Acceptance Certificate within the Acceptance Period. The failure to provide (x), (y), or (z) above does not excuse Company from the obligations of Sections 5.2 and 5.3.

5.2  If Company reasonably believes that Siepe did not complete the Services and Deliverables in substantial conformance with the specifications from Siepe described in a Service Order, Company will notify Siepe in writing, with specific reasons delineated, of its rejection of the Services and Deliverables within the Acceptance Period. Siepe 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 Siepe 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. Siepe will provide the Services as outlined in a Service Order for fees therein, plus applicable taxes and travel expenses. Siepe shall submit invoices for the fees and/or expenses to Company (i) fifteen (15) days prior to any payments due to Siepe in advance on monthly, quarterly or date certain basis (excluding the first payment under this Agreement which is due on the Effective Date hereof); (ii) monthly in arrears for any Services or Deliverable rendered on a time and materials basis; (iii) upon completion of a milestone as set forth in this Agreement or Service Order for any Services or Deliverable rendered on a milestone basis or (iv) upon Acceptance of a Service or Deliverable for those rendered on a fixed fee or fee not to exceed basis where one of the models in (i), (ii), or (iii) is not used. Unless expressly stated otherwise, invoices shall be due and payable upon presentation.

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 Siepe 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 Siepe). If Company is required to pay any withholding tax, charge or levy in respect of any payments due to Siepe hereunder, Company agrees to gross up payments actually made such that Siepe 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. Without limiting its rights or remedies, Siepe shall have the right to suspend or terminate entirely its services if payment is not received within thirty (30) days of the date the invoice is received, 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 fifteen (15) 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. Siepe reserves the right to charge Company the entire amount if a Service Order is canceled with less than such notice.

7. Terms and Termination.

7.1    Term. Unless separately state in the initial Service Order, this Agreement will begin on the Effective Date and will remain in effect for a period of one (1) year from the Effective Date of this Agreement (the “Initial Term”). This Agreement shall renew for successive one (1) year periods upon mutual written agreement between the Parties (each such additional term a “Renewal Term”).

7.2    Renewal Fee. Except as provided below or separately stated in a Service Order, Siepe shall have the right to revise the Fees after the first anniversary date of this Agreement by giving Company written notice ninety (90) days prior to the each such price increase. Siepe may only increase fees one time within any twelve (12) month period after the first anniversary date of this agreement. Siepe reserves the right to revise the Fees for any reason, including an increase in the complexity of Services provided or a material change in the nature of Company’s Services request by giving Company ninety (90) days’ prior written notice. In the event that Company does not agree with such proposed increase in the Fees, the Parties shall meet in good faith to discuss such proposed increase and use commercially reasonable efforts to reach a resolution; however, Siepe shall have the final decision-making authority to increase Fees in accordance with this Paragraph 7.2. If after such meeting, Company and Siepe cannot agree on a resolution then either Party may give notice under the Termination provision of its intent not to renew this Agreement. Siepe and Company will promptly enter into negotiations to revise the Fee(s) to provide Siepe with appropriate compensation for the Services if, during the Term: (i) any state, federal, local law or regulation is enacted, (ii) any decree of any court or any other administration agency is entered, or (iii) Company enters into, becomes bound by, terminates, or alters any contractual arrangement, which, would result in a material increase in the resources or level of effort by Siepe in the provision of the Services.  Siepe also has the right to adjust Fee(s) if (y) on or prior to the Effective Date of this Agreement or an Ancillary Document, Company fails to disclose or discloses erroneous information relating to Company business, which information, if disclosed accurately, would have led Siepe to propose higher fees, or (z) Company does not meet its responsibilities outlined in this Agreement or an Ancillary Document.

7.3    Termination. Each Party will have the right to terminate this Agreement and any Exhibits or Statements of Work upon written notice if the other Party or any of its officers, agents, or employees involved in the performance of this Agreement (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof; (ii) if a Party becomes insolvent or proceedings are initiated by or against the Party under any law relating to bankruptcy, insolvency or the relief of debtors; (iii) violates applicable law in connection with the performance of its obligations hereunder in a manner likely to create criminal or material civil liability from a government organization or regulatory body for the other Party; or (iv) any reason upon thirty (30) days’ written notice to the other Party; provided that, if Company terminates this Agreement prior to the end of the Initial Term or a Renewal Term for any reason other than a reason provided in this Section 7.3(i)-(iii), Company shall pay Siepe a termination fee equal to the remaining balance of the contract. 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) Siepe 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.

7.4    Effect of Termination. Upon any termination of this Agreement, all access to the Services pursuant to this Agreement shall terminate in sixty (60) days, subject to extension in a Transition Period pursuant to Section 7.5 below. At such time upon request of Siepe or Company and subject to any surviving terms and conditions of the Material Agreements or software license, each Party will promptly return any and all materials provided hereunder by the other Party that are owned by such other Party, or destroy such and all copies and portions thereof, in all forms and types of media, and, at a Party’s request, provide the other Party with an officer’s written certification, certifying to such Party’s compliance with the foregoing. Each Party shall either return or destroy all copies of all Confidential Information belonging to the other Party. Termination of this Agreement shall not affect the Parties’ accrued rights and obligations and clauses that are expressed to survive termination, together with clauses necessary for the interpretation or enforcement of this Agreement, shall continue in full force and effect. Upon termination of this Agreement, all related SOWs shall also terminate unless otherwise specifically agreed in writing by the Parties and then such terms in this Agreement shall continue only for such time as the SOW(s) is in effect.

7.5    Transition Period. Siepe recognizes that the Services specified in this Agreement are vital to Company and that upon the termination or expiration of this Agreement, a successor service provider may be retained to provide services substantially similar to such Services or Company and/or an Affiliate of Company may perform such services. Siepe shall cooperate in an orderly and efficient transition to a successor service provider or to Company and/or Company’s Affiliate. Except in the event of termination of this Agreement by Siepe for a material uncured breach of the Agreement by Company, at Company’s election, Siepe shall provide, at the same rates, terms, and conditions stated in this Agreement, an applicable SOW, purchase order or change order, up to one (1) year of transitional services while Company transitions to other service providers at Company’s election (such period the “Transition Period”). All terms and conditions of this Agreement or any other Ancillary Document(s) will apply to the Parties during this Transition Period. During a Transition Period, the Parties shall cooperate fully with each other and third party service providers by, in addition to other means, providing requested information and committing necessary resources to ensure that service quality is maintained at levels set forth in this Agreement or other Ancillary Document and to ensure a seamless transition of services, provided however that Siepe shall not be obligated to provide nor shall Company provide any Siepe Confidential Information to any substitute service provider. In the event that Company has not fully transitioned to its successor service provider within the Transition Period, the Fees due to Siepe for any continuation of the Services after the Transition Period shall be increased by fifty percent (50%) based on the pricing for the Service Fees due on the first day of the Transition Period.

8. Miscellaneous.

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 Siepe, 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 Siepe 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 Siepe with respect to the Services and/or Deliverables.

8.3    No Warranties. No employee, agent, representative or affiliate of Siepe has authority to bind Siepe to any oral representations or warranty concerning the Deliverables. Any written representation or warranty not expressly contained in these Terms or 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 Texas, USA will govern all Service Orders; and (ii) the parties consent to the exclusive jurisdiction of the state and federal courts of Texas. With respect to Services to be provided outside North America, the laws of England will govern all Service Orders. This Agreement will not be governed by the conflict of laws rules of any jurisdiction, Uniform Computer Information Transactions Act 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 these Terms.

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 are provided 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. Company will obtain any export licenses required under applicable law prior to export or re-export of the Services, Deliverables and software.

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 Siepe 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 Siepe.

8.11  Counterparts. Service Orders may be executed in counterparts, each of which so executed will be deemed to be original, and such counterparts together will constitute one and the same agreement. 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 a Service Order or these Terms 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 and these Terms 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 Siepe at the address in the definition of Siepe, 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 8.14 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), and an End User License Agreement, together with these Terms 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 Siepe 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 Siepe to object to such terms, provisions or conditions. Siepe 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.