Professional Services Terms and Conditions
Last Updated: November 23, 2020
The following are the Professional Services Terms and Conditions (the “Professional Services Terms”) that govern the delivery of the consulting services provided by Land Intelligence Enterprise, LLC. (“Land Intelligence”) to the client noted in the applicable Services Agreement (“Client”) that is executed by and between the parties and references these Professional Services Terms.
The “Services” provided under these Professional Services Terms will be those set forth in any mutually agreed services schedule, Land Intelligence proposal (“Proposal”), order form, statement of work, or other document executed by the Parties and referencing these Professional Services Terms (each, a “Services Agreement”). The Services may include (a) configuration, implementation, training, or other consultation related to a Land Intelligence product or service that Client has received rights to use under a separate agreement; (b) strategic, advisory, design, or other consulting services related to land development projects; or (c) services related to the acquisition and hosting of private data sets. Each Services Agreement shall be governed by these Professional Services Terms. Client warrants that the individual executing the Services Agreement is a duly authorized representative of Client..
Services fees are invoiced in full upon receipt of an order, with payment terms of Net 15, except as otherwise specified in the applicable Services Agreement. The fees specified in the Services Agreement are the total fees and charges for the Services and will not be increased during the term of the Services Agreement except as the parties may agree in writing. Client is responsible for all applicable federal, state, and local sales, use, or other taxes due on the Services rendered hereunder, except for taxes based on Land Intelligence’s income. If any change affects the time or cost of performance under the applicable Services Agreement, an adjustment in the time and/or compensation to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective. Land Intelligence shall be reimbursed for the travel expenses specified in any Services Agreement, if any. If dates Land Intelligence is scheduled to be onsite are changed or cancelled by Client within fourteen (14) days of the scheduled date, Client shall be assessed a cancellation fee in addition to any travel related fees and penalties.
If any invoiced amount is not received by Land Intelligence by the due date specified in these Professional Services Terms or the applicable Services Agreement, then without limiting Land Intelligence’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum permitted by law, whichever is lower. If any amount owing by Client is 30 days or more overdue, Land Intelligence may, without limiting its other rights and remedies, suspend its performance of Services until such amounts are paid in full.
These Professional Services Terms shall remain in effect from the effective date specified in the Services Agreement through the completion of the Services contemplated in the Services Agreement. Each Services Agreement, with respect to the Services, shall become effective on the date specified in the applicable Services Agreement (“Services Effective Date”) and shall expire on the date that Services are completed thereunder (“Services Completion Date”). Either party may terminate the Services Agreement upon written notice to the other party if the other party materially breaches the Services Agreement and fails to cure such breach within thirty (30) days following receipt of notice describing the breach.
Upon termination of a Services Agreement, Client shall pay any unpaid fees and expenses incurred on or before the termination date (such fees to be paid on a time-and-materials or percent-completion basis, as appropriate). If Client terminates a Services Agreement for cause and Client has pre-paid any fees for Services not yet received, Land Intelligence will refund such pre-paid fees. If Land Intelligence terminates a Services Agreement for cause, any pre-paid fees
for Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in the applicable Services Agreement.
Land Intelligence will perform Services based on a schedule mutually agreed by the parties. Services will expire unless the Services are scheduled and delivered within six (6) months from the date that they were ordered. Services will ordinarily be performed by a Land Intelligence service representative or other authorized representative of Land Intelligence. Client agrees, however, that Land Intelligence, in its sole discretion, may provide the Services through a third-party representative.
Client shall provide Land Intelligence with access to data, materials, software, and hardware as reasonably required for Land Intelligence to perform the Services (“Client Materials”). Client hereby gives Land Intelligence a limited right to use such Client Materials solely for the purpose of performing Services hereunder. Client represents and warrants that it has all rights necessary in the Client Materials to provide them to Land Intelligence for such purpose. Client shall provide Land Intelligence with safe access to Client’s premises as reasonably required for Land Intelligence to perform the Services, if onsite performance of Services is needed and agreed to by Client. Land Intelligence shall comply with reasonable written rules and regulations of Client related to use of its premises, provided that such written rules and regulations are provided to Land Intelligence prior to the commencement of Services. Land Intelligence is not responsible for failures or delays in performing the Services due to Client’s failure or delay to provide access to Client Materials or Client premises or due to Client-imposed or government-imposed security requirements.
Client has and will retain sole and exclusive right, title, and interest in and to all Client Confidential Information, Client Materials, Third Party Data, and Third Party Account Information (collectively, “Client Property”), including any and all intellectual property rights therein. Land Intelligence has and will retain sole and exclusive right, title, and interest in and to all Land Intelligence Confidential Information, Land Intelligence products, Land Intelligence service, and all Land Intelligence technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements, or derivative works of the foregoing, including any and all intellectual property rights therein (collectively, “Land Intelligence Property”). However, Land Intelligence’s ownership rights do not extend to Client Property embedded or incorporated into the foregoing items.
Unless expressly stated in the Services Agreement, Land Intelligence will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services of the type described in Section 1(a) above, excluding any and all Client Property,
including any and all intellectual property rights therein (“Configuration Services Results”). Upon full and final payment of all fees and expenses owing to Land Intelligence under the applicable Services Agreement, Land Intelligence hereby grants Client the same rights to use the Configuration Services Results as the rights granted to Client under the Land Intelligence agreement with respect the Land Intelligence “software as a service” product to which such
Configuration Services Results pertains. Unless expressly stated otherwise in the applicable Services Agreement, Land Intelligence hereby assigns to Client, upon full and final payment of the Feeds due hereunder, a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use, and run (as applicable) solely for its internal business purposes associated with its use of Land Intelligence’s online and offline services anything developed by Land Intelligence for Client, (“Contract Property”). Land Intelligence retains all ownership rights in the Contract Property.
Provided that Client performs its obligations to Land Intelligence under these Professional Services Terms and the applicable Services Agreement, Land Intelligence warrants to Client that the Services performed by Land Intelligence will performed consistent with generally accepted industry practice. Land Intelligence’s warranty shall expire thirty (30) days after the applicable Services Completion Date or earlier termination. Land Intelligence’s warranty shall only be effective if Client notifies Land Intelligence of the breach of warranty within 30 days after the applicable Services Completion Date. Land Intelligence’s sole and exclusive obligation for breach of warranty shall be, at Land Intelligence’s option, to (a) use commercially reasonable efforts
to perform the Services in a manner that conforms to the warranty; or (b) refund to Client the fees paid by Client to Land Intelligence for the nonconforming Services. The remedies set forth in this paragraph are Client’s exclusive remedies for any breach of warranty.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 8 OF THESE TERMS AND CONDITIONS, THE SERVICES ARE PROVIDED “AS IS”. LAND INTELLIGENCE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, OR QUALITY OF SERVICE. WITH RESPECT TO THE PROJECT OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY LAND INTELLIGENCE, LAND INTELLIGENCE DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. NO WARRANTIES SHALL ARISE UNDER THESE TERMS AND CONDITIONS FROM COURSE OF DEALING OR USAGE OF TRADE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF LAND INTELLIGENCE’S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO THIRD PARTY DATA OR THIRD PARTY PLATFORMS. LAND INTELLIGENCE MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY DATA, INCLUDING THE ACCURACY OR LEGALITY OF ANY THIRD PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD PARTY PLATFORMS AND THIRD PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND MAY BE DISCONTINUED AT ANY TIME BY LAND INTELLIGENCE.
NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CLIENT TO LAND INTELLIGENCE UNDER THE APPLICABLE SERVICES AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE
Land Intelligence is willing to enter into these Professional Services Terms and the Services Agreement and perform Services for Client only in consideration of and in reliance upon the provisions of these Professional Services Terms limiting Land Intelligence’s exposure to liability, including by not limited to the provisions contained above. Such provisions constitute an essential part of the bargain underlying these Professional Services Terms and the Services Agreement and have been reflected in the consideration specified therein.
Client shall indemnify, defend, and hold Land Intelligence, its directors, officers, shareholders, agents, and affiliates harmless from and against any and all losses, costs, liabilities, damages, and expenses (including legal and other expenses incident thereto) of every kind, nature, and description, (collectively “Losses”) that result from or arise out of (i) the breach of any representation or warranty of Client set forth under these Professional Services Terms and applicable Services Agreement; or (b) any third party claims arising out of any acts or omissions of Client in connection with the subject matter of the Services.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party shall be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Each party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). “Confidential Information” shall include any and all technical and non-technical information of each party, including but not limited to: (a) patent and patent applications; (b) trade secrets; and (c) proprietary information–mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, Client lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and any other information of a similar nature. Each party agrees not to make Confidential Information available in any form to any third party except to such party’s employees, contractors, agents, or service providers who are required to know to allow such party to exercise its rights or perform obligations under these Professional Services Terms or to use the Confidential Information for any purpose other than in the performance of the Services. Each party agrees to take all reasonable steps to ensure that Confidential Information is secure and not disclosed or distributed by such party’s employees or agents in breach of this Section 13. Upon request of the disclosing party, the receiving party will destroy the disclosing party’s Confidential Information, other than archival back-up copy. The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Professional Services Terms, or is disclosed to a third party without similar restriction on the third party’s rights, or is already known in the relevant industry. This Section 12 will survive termination of these Professional Services Terms and the applicable Services Agreement.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), provided however, that a “change of control” transaction shall not be deemed an assignment or delegation under these Professional Services Terms.
Land Intelligence, in its reasonable discretion, may use subcontractors inside or outside the United States to perform any of its obligations under these Professional Services Terms or applicable Services Agreement. Land Intelligence will be responsible for the performance of the Services by its personnel (including employees and contractors) and their compliance with Land
Intelligence’s obligations under these Professional Services Terms and applicable Services Agreement, except as otherwise specified herein or in the applicable Services Agreement.
These Professional Services Terms shall be governed by and construed under the laws of the State of South Carolina, exclusive of its choice of law rules. Any controversy or claim arising out of or in any way connected with these Professional Services Terms or a Services Agreement, or the alleged breach thereof, shall be brought in the state and federal courts located in Richland County, South Carolina. Each party agrees to the governing law and exclusive jurisdiction stated above without regard to conflicts of law rules.
These Professional Services Terms, together with the applicable Services Agreement executed by the parties, constitute the entire agreement of the parties, and supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Professional Services Terms shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of these Professional Services Terms, and all such terms or conditions shall be null and void. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.