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These terms and conditions govern the provision of the consulting services (“Consulting Services”) set forth on the applicable order form (“Order Form”) provided by NetexpressUSA Inc. d/b/a Reliabilityweb.com on behalf of itself and its affiliates (“Reliabilityweb”) to an individual who has authority to act for the customer (hereinafter referred to as “you” or “Customer”). These terms and conditions and the Order Form are collectively referred to as this “Agreement”. This Agreement is not effective until the Order Form is signed by an authorized representative of Customer. Execution by Customer may take the form of an electronic signature, which shall be considered binding as if it were signed by hand. In the event of a conflict between the Order Form and these terms and conditions, the terms of the Order Form shall apply.
- Consulting Services. Reliabilityweb shall provide the Consulting Services described in the applicable Order Form. Consulting Services are provided to Customer solely for Customer’s internal use, and Customer may not use the Consulting Services to supply any consulting services to any third party. Customer agrees to provide Reliabilityweb with such cooperation, materials, information, access and support which Reliabilityweb deems to be reasonably required to allow Reliabilityweb to successfully provide the Consulting Services, including, without limitation, as may be set forth in an applicable Order Form. While on premises owned, controlled or hired by Customer, all Reliabilityweb personnel will conduct themselves in accordance with the standard health, safety and security policies of Customer applicable to its staff generally that have been provided to Reliabilityweb in writing prior to the effective date of the applicable Order Form.
- Ownership. Customer acknowledges that in the course of performing any Consulting Services, Reliabilityweb may create works of authorship delivered to Customer pursuant to or in connection with the performance of the Consulting Services (a “Deliverable”). Subject to Customer’s rights in Customer’s Confidential Information (as defined in Section 7 below), Reliabilityweb shall own all right, title and interest in such Deliverables, including all intellectual property rights therein and thereto. Reliabilityweb grants to Customer a nonexclusive, non transferable, royaltyfree license to use any Deliverables for Customer’s internal purposes. During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees that it will not create any materials or systems which could directly or indirectly compete with the Deliverables.
- Warranties and Disclaimer. Reliabilityweb represents and warrants that it will provide the Consulting Services in a professional and workmanlike manner. In the event of a breach of the foregoing warranty, Reliabilityweb shall, as its sole obligation and Customer’s sole remedy, reperform the Consulting Services; provided that this remedy is only available if Reliabilityweb receives notice of such breach within three (3) days of delivery with respect to the Consulting Services. EXCEPT FOR THE WARRANTIES IN THIS SECTION 3, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED “ASIS” AND RELIABILITYWEB AND ITS SUPPLIERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
- Limitation of Liability. IN NO EVENT WILL RELIABILITYWEB OR ITS SUPPLIERS BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED. IN NO EVENT WILL RELIABILITYWEB’S CUMULATIVE LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID TO RELIABILITYWEB BY CUSTOMER FOR THE RELEVANT CONSULTING SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. IN NO EVENT WILL RELIABILITYWEB’S SUPPLIERS HAVE ANY LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 4 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER, RELIABILITYWEB AND RELIABILITYWEB’S SUPPLIERS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
- Indemnity. Each party will indemnify, defend and hold harmless the other party from and against all claims arising out of or alleged to have arisen out of: (a) the gross negligence or willful misconduct of such party, its employees or agents; or (b) bodily injury or death of any person or damage or destruction to any real or tangible personal property resulting from the negligent performance of such party's obligations under this Agreement.
- Term and Termination. This Agreement shall commence on the date that Customer signs the Order Form and will continue until the completion of the Consulting Services and receipt of payment therefor unless earlier terminated as set forth in this Agreement (“Term”). Either party may terminate this Agreement upon notice to the other party in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days of written notice. Sections 29 shall survive expiration or termination of this Agreement. During the Term and for two (2) years following termination or expiration (but no more than once in a calendar year), Reliabilityweb and its auditors may inspect Customer’s records relating to its use of the Deliverables for the purposes of verifying Customer’s compliance with this Agreement. Customer shall cooperate fully with Reliabilityweb and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer shall promptly pay such amount. If an underpayment of more than ten percent (10%) for the period audited is discovered, Customer shall promptly reimburse Reliabilityweb for the cost of the audit.
- Confidentiality. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, the receiving party (“Receiving Party”) shall (i) hold the Confidential Information of the disclosing party (“Disclosing Party”) in trust and confidence and avoid the disclosure or release of such Confidential Information to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the Disclosing Party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information constitutes a trade secret under law, the Receiving Party agrees to protect such information for so long as it qualifies as a trade secret under applicable law. The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to those of its employees and contractors having a need to know such Confidential Information and shall be liable for all violations of this Section 7 by its employees and contractors. The obligations under this Section shall not apply to information that the Disclosing Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of this Agreement or other wrongful act by the Receiving Party, (c) has been received from a third party without restriction on disclosure and without breach of this Agreement by the Receiving Party, or (d) is independently developed by the Receiving Party without regard to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party gives the Disclosing Party prompt written notice if legally permitted to do so. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Reliabilityweb, its employees and agents shall be free to use and employ their general skills, knowhow, and expertise, and to use, disclose, and employ any generalized ideas, concepts, knowhow, methods, techniques or skills gained or learned during the course of fulfilling its obligations under this Agreement.
- Payment. Unless set forth in the applicable Order Form, fees shall be: (i) invoiced in full upon the effective date of the applicable Order Form, (ii) paid in US dollars, and (iii) paid within thirty (30) days of the date of the invoice. Except as provided in this Agreement, all payments are nonrefundable and shall be made without right of setoff or chargeback. Except as otherwise provided in the applicable Order Form, Customer will reimburse Reliabilityweb for all travel and living expenses incurred in the provision of the Consulting Services. If travel expenses are specified in the Order Form as a lump sum amount, then receipts for travel and living expenses are not required unless otherwise specified in the Order Form. If Customer does not pay the invoices when due, Reliabilityweb may charge interest at one percent (1%) per month on the unpaid balance. If Customer fails to pay fees in accordance with this Section, Reliabilityweb may suspend fulfilling its obligations under this Agreement until such payment is received by Reliabilityweb. All fees payable by Customer are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and that are imposed on that party with respect to the payments under this Agreement. If any taxes are required to be withheld on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Reliabilityweb is equal to the amount then due and payable under this Agreement.
- Miscellaneous. This Agreement constitutes the entire agreement between the parties concerning the subject matter of this Agreement which does not include the use of the Deliverables in violation of the terms of this Agreement. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Purchase orders shall be for the sole purpose of defining quantities, prices and describing the Consulting Services and Deliverables to be provided under this Agreement and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. Neither party shall be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Reliabilityweb and Customer and do not create any right in favor of any third party. The laws of the State of Florida will govern this Agreement. In the event of a dispute arising out of or related to this Agreement, each party will give the other prompt notice of the dispute, and both will meet promptly for good faith discussions to try to resolve the matter. If that fails, such dispute will be resolved by final and binding arbitration before a sole arbitrator, who is an attorney, and will be administered by the American Arbitration Association under its thencurrent Commercial Arbitration Rules. The decision and award of the arbitrator will be final and binding, and the award rendered may be entered in a court of competent jurisdiction located in Lee County, Florida. The arbitration will be held in Lee County, Florida. The arbitrator must enforce the terms of this Agreement and will have no authority to award any damages in conflict with or in excess of the limitations and exclusions set forth in this Agreement. All notices must be in writing and shall be effective three (3) days after the date sent to the other party’s headquarters, Attention Legal Department. Neither party may hire, or directly or indirectly solicit or employ, any employee or contractor of the other party during the term of this Agreement and for two (2) years after the termination of this Agreement; provided, however, that nothing contained herein will prevent a party from hiring any such employee or contractor who responds to a general hiring program conducted in the ordinary course of business or who approaches such party on a wholly unsolicited basis.