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1. Definitions

1.1 "Agreement" means the Service Order, these Professional Services Terms and Conditions, and the Software Agreement.

1.2 "Subscriber" means the Subscriber named in the Service Order.

1.3 "Professional Services" means the services specified in the Service Order related to the Software.

1.4 "Professional Service Fees" means the fees for Professional Services charged on a time and materials basis at Yaguara's then-current rates, unless otherwise specified in the Service Order.

1.5 "Software" means the Yaguara software program specified in the Service Order to which the Professional Services are related.

1.6 "Software Agreement" means the license, subscription or service agreement between Yaguara and Subscriber pursuant to which Subscriber has a right to use the Software.

1.7 "Service Order" means the Service Order to which these Professional Services Terms and Conditions are attached.

2. SERVICES, SERVICE ORDER, AND CHANGE ORDERS

2.1 Services and Service Order. Subject to the terms and conditions of this Agreement, Yaguara will perform the Professional Services for Subscriber. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described in the Service Order. If there is a conflict between the terms of these Professional Services Terms and Conditions and the terms of the Service Order, the terms of the Service Order will control.

2.2 Change Orders. Unless otherwise specified in the Service Order, Subscriber may reasonably request in writing that revisions be made with respect to the Professional Services or deliverables set forth in the Service Order ("Change Order"). If a Change Order recites revisions that materially increase the scope of the Professional Services or the effort required to deliver deliverables under the Service Order, then within 10 business days after Yaguara's receipt of the Change Order, Yaguara will deliver to Subscriber a written, revised Service Order reflecting Yagaura's reasonable determination of the revised Professional Services, deliverables, delivery schedule, and payment schedule, if any, that will apply to the implementation of the revisions. If Subscriber approves the revised Service Order, then the parties will execute it, and upon execution, the revised Service Order will supersede the then-existing Service Order. If Subscriber does not approve the revised Service Order within ten business days after its receipt by Subscriber, the then-existing Service Order will remain in full force and effect, and Yaguara will have no further obligation with respect to the applicable Change Order.

3. PERFORMANCE OF PROFESSIONAL SERVICES

3.1 Project Management. The Service Order designates a project leader as a single point of contact within each party's organization to manage the project described in the Service Order ("Project Leader"). The Project Leaders will meet as necessary to manage the Professional Services to be performed the Service Order. Disputes will be escalated to more senior executives, if the Project Leaders are unable to resolve a problem.

3.2 Performance Standard. Yaguara will perform the Professional Services in accordance with the Service Order, including any specifications in the Service Order. Yaguara will use reasonable efforts to complete the Professional Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the Service Order.

3.3 Subcontractors. Yaguara may utilize independent contractors to perform all or part of the Professional Services. Yaguara will remain solely responsible for the performance of all of the Professional Services that are subcontracted.

3.4 Subscriber's Responsibilities. Subscriber will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable Yaguara to perform the Professional Services. Subscriber acknowledges that Yaguara’s ability to provide Professional Services as described in the Service Order may be affected if Subscriber does not provide reasonable assistance as set forth above.

4. ACCEPTANCE

4.1 Initial Delivery. Yaguara will deliver Deliverables (as defined below) to Subscriber pursuant to the Service Order.

4.2 Acceptance Period. After receiving Deliverables, Subscriber will have 7 days ("Acceptance Period") to notify Yaguara whether it accepts or rejects the Deliverables.

4.3 Rejection Notice. If Deliverables are rejected, Subscriber will promptly describe the defects in detail in a written notice to Yaguara ("Rejection Notice"). If Subscriber does not deliver a Rejection Notice for Deliverables to Yaguara during the Acceptance Period, the Deliverables will be deemed accepted by Subscriber.

4.4 Correction of Defects. After Yaguara receives a Rejection Notice, Yaguara will determine in good faith whether the Rejection Notice sets forth failures to conform the Deliverables to the Service Order or changes that are outside the scope of the Professional Services. The parties will then meet and agree in good faith upon a schedule to correct the Deliverables and upon a schedule and price for performing additional services to implement out-of-scope changes in the Rejection Notice. Yaguara is not required to implement out-of-scope changes if the parties cannot agree on a schedule and price. When Yaguara completes these services, Yaguara will redeliver the applicable Deliverables to Subscriber. Subscriber will notify Yaguara whether it accepts or rejects the Deliverables within 7 days after redelivery. The parties will continue this process until the Deliverables are accepted by Subscriber.

5. COMPENSATION

5.1 Fees and Payment. Unless otherwise specified in the Service Order: (a) Yaguara will issue invoices for Professional Service Fees on a monthly basis; and (b) Subscriber will pay any undisputed amount set forth in an invoice upon receipt. The charges in an invoice will be considered to be accepted by Subscriber unless Yaguara is notified of a dispute in writing within 7 days of the date of the invoice. Any amount not paid when due will be subject to finance charge`s equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will also reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Yaguara to collect any amount that is not paid when due.

5.2 Taxes. Other than federal and state net income taxes imposed on Yaguara in the United States, Subscriber will bear all taxes, fees, duties, and other governmental charges (collectively, "taxes") resulting from this Agreement. Subscriber will pay any additional amounts as are necessary to ensure that the net amounts received by Yaguara after all such taxes are paid are equal to the amounts that Yaguara would have been entitled to in accordance with this Agreement as if the taxes did not exist.

6. TERM AND TERMINATION

6.1 Term. This Agreement will commence upon the Effective Date specified in the Service Order and will continue until each party's obligations under the Service Order have been fulfilled or the Service Order is terminated as provided in this Section 6.

6.2 Notice of Material Breach. If either party commits a material breach in the performance of any of its obligations under this Agreement, then the other party may give the breaching party written notice of the breach (including without limitation a description of the Professional Services with respect to which the breach has occurred, a statement of the facts relating to the breach, the applicable provisions of these Professional Services Terms and Conditions or the applicable Service Order, and the action required to cure the breach) and the non-breaching party's intent to terminate this Agreement pursuant to this Section 6.2 if the breach is not cured within 30 days after the date of the notice (or a later date as may be specified in the notice). Without limitation, any failure by Subscriber to timely pay to Yaguara any amounts to be paid under the Service Order will constitute a material breach of this Agreement, and Yaguara may, without limitation of any of its other rights and remedies available, suspend performance of any Professional Services then in progress during any time that Subscriber fails to pay any amounts owed to Yaguara.

6.3 Notice of Termination. If the breaching party fails to cure any material breach specified in any notice under Section 6.2 within 30 days after the date of the notice (or a later date as may be specified in the notice), then the non-breaching party may terminate this Agreement by giving the breaching party written notice of termination.

6.4 Effect of Termination. If the Service Order is terminated in accordance with this Section 6, then, unless otherwise specifically provided for in the Service Order, the following will apply: (a) Yaguara will have no obligation to perform any Professional Services after the effective date of the termination; (b) Subscriber will pay to Yaguara any Professional Service Fees and other amounts payable for the Professional Services performed through the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of the termination will survive; and (d) the parties' respective rights and obligations under Sections 5, 6.4, 6.5, 7, 8.2, 9, and 10 of this Agreement, including the obligation to pay for the Professional Services that were to be performed, will survive. If this Agreement is terminated by Yaguara pursuant to Section 6.2 or by Subscriber otherwise than pursuant to Section 6.2 (i.e., other than as a result of a material breach by Yaguara that is not cured as provided above), Subscriber will pay to Yaguara the amount of Professional Service Fees that Yaguara would have been paid under the Service Order had this Agreement not been terminated and had the Professional Services been fully performed in accordance with the schedule then in effect, based on the expected budget to completion then in effect and taking into account any changes previously agreed to by the parties, which amount owing will be evidenced in a final termination invoice to be provided by Yaguara to Subscriber. The amount of Professional Service Fees specified in the foregoing termination invoice will be final and binding on the parties, absent manifest error.

6.5 Return of Materials. Upon the termination of this Agreement, or upon Subscriber's earlier request, Yaguara will deliver to Subscriber all Subscriber Materials (as defined in Section 7.1) that are in Yaguara’s possession or control.

7. PROPRIETARY RIGHTS

7.1 Subscriber Materials. Any materials provided by Subscriber to Yaguara ("Subscriber Materials") will be used and disclosed solely as required to perform the Professional Services. Subscriber will own the Subscriber Materials. Yaguara will take reasonable steps to maintain the confidentiality of any non-public Subscriber Materials that are marked as "Confidential".

7.2 Deliverables. Except as expressly set forth to the contrary in the Service Order, all works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information that form all or part of a deliverable provided as part of the Professional Services, whether developed as part of the Professional Services or separately, and including without limitation the Software and any modifications, updates, customizations, key performance indicators (KPIs), or other add-ons to the Software but excluding Subscriber Materials (as defined in Section 7.1) (collectively, "Deliverables"), will be the sole property of Yaguara. Upon and subject to final payment by Subscriber of all amounts owing to Yaguara under this Agreement, Subscriber may use the Deliverables in the manner Subscriber is permitted to use the Software under the terms of the applicable Software Agreement.

7.3 Third Party Products. Any third party products that are provided by Yaguara in connection with the Professional Services are provided pursuant to the terms of the applicable third party agreement as provided by Yaguara to Subscriber, and Subscriber's use of any such third party product constitutes agreement to comply with the terms of the applicable third party agreement. Yaguara assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products.

8. WARRANTIES AND DISCLAIMER

8.1 Mutual Warranties. Each party represents and warrants to the other that: (a) the Service Order has been duly executed and delivered and this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution and delivery of the Service Order, or performance of this Agreement; and (c) the execution and delivery of the Service Order, and performance of this Agreement, does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

8.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, YAGUARA MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. YAGUARA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. YAGUARA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY DELIVERABLES, OR AGAINST INFRINGEMENT. YAGUARA DOES NOT WARRANT THAT ANY DELIVERABLES ARE ERROR-FREE OR THAT OPERATION OF THE DELIVERABLES WILL BE SECURE OR UNINTERRUPTED. YAGUARA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE SUBSCRIBER'S USE OF THE DELIVERABLES.

9. LIMITATIONS OF LIABILITY

9.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, YAGUARA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF YAGUARA IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL YAGUARA’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO YAGUARA UNDER THE SERVICE ORDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.

9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY YAGUARA TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

10. GENERAL

10.1 Relationship. Yaguara will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.

10.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party's prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party's consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning party's obligations under this Agreement.

10.3 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person or (b) sent by overnight air courier with some sort of tracking mechanism, in each case properly posted and fully prepaid to the appropriate address as set forth below. Either party may change its address for notices by notice to the other party given in accordance with this Section 10.3. Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

10.4 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

10.5 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Colorado, U.S.A, without reference to its choice of law rules. Except as specified in Section 10.6, the parties agree that any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in Colorado County, Colorado, U.S.A., and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.

10.6 Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in Colorado County, Colorado, U.S.A. under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. All other disputes (excluding the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm) will be resolved by a court specified in Section 10.5. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys' fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.

10.7 Mitigation. Each party must mitigate the impact of any damage arising out of or related to this Agreement.

10.8 Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party's right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.

10.9 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.

10.10 Counterparts. The Service Order may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Service Order may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.

10.11 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.

10.12 Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Professional Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being accepted by Subscriber, nor does it affect the validity of the Software Agreement. No employee, agent, or other representative of Yaguara has any authority to bind Yaguara with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of both parties. Yaguara will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Yaguara specifically agrees to such provision in writing and signed by an authorized agent of Yaguara. [End of Professional Services Terms and Conditions]