Professional Services Agreement

Consulting Agreement Terms

IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THESE CONSULTING AGREEMENT TERMS (THIS “AGREEMENT”). BY AGREEING TO PURCHASE A PROFESSIONAL SERVICES SUBSCRIPTION, CLICKING “I ACCEPT”, OR PROCEEDING WITH THE REGISTRATION OF AN ACCOUNT FOR A PROFESSIONAL SERVICES SUBSCRIPTION AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY ON WHOSE BEHALF YOU RECEIVE THE SERVICES (“CLIENT”) ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH AVIATRIX SYSTEMS, INC. (“AVIATRIX”), AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR AN ACCOUNT FOR A PROFESSIONAL SERVICES SUBSCRIPTION. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT CLIENT ACCEPTS THIS AGREEMENT.

1. SERVICES.

Aviatrix will provide to Client a subscription for up to the number of hours of professional services per month indicated in Client’s subscription (the “Services”). Services will be scheduled as the parties agree upon from time to time.

2. FEES.

Client will pay the recurring subscription charge per month as shown on payment page. If Client makes a purchase, Client is expressly agreeing that Aviatrix is permitted to bill Client the applicable fees, any applicable tax and any other charges Client may incur with Aviatrix in connection with Client’s purchase of a professional services subscription (“Charges”). The Charges are as set forth on the payment page. Charges will be billed to the credit card account Client provide in accordance with the billing terms in effect at the time the Charges are due and payable. If payment is not received or cannot be charged to Client’s credit card account for any reason, Aviatrix reserves the right to either suspend or terminate Client’s order and Client’s access to the Services and terminate this Agreement. All purchases are non-cancellable and all charges are non-refundable except as expressly set forth herein.

Client consent to receiving electronic communications from Aviatrix. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services. These electronic communications are part of Client’s relationship with Aviatrix and Client receive them as part of Client’s purchase. Client agrees that any notices, agreements, disclosures or other communications that Aviatrix sends Client electronically will satisfy any legal communication requirements, including that such communications be in writing.

3. CONFIDENTIALITY.

Neither party will disclose to any third party the terms of this Agreement or confidential information received from the other party without the prior written consent of the other party, provided, however, that each party may disclose the existence of this agreement or the existence of a business relationship with the other party.

4. WARRANTIES

4.1 Aviatrix Warranties.

Aviatrix represents and warrants that the Services provided hereunder shall be provided in a professional and workmanlike manner. In the event of a breach of this warranty, Aviatrix shall re-perform the applicable Services within a reasonable time provided that Client notifies Aviatrix within ten (10) days following the date of completion of the Services. The foregoing shall be Client’s sole and exclusive remedy, and Aviatrix’s sole and exclusive obligation, for a breach of the warranty set forth in this Section 4.1.

4.2 Disclaimer.

EXCEPT AS SPECIFICALLY PROVIDED FOR IN SECTION 4.1, THERE ARE NO WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.

5. TERM & TERMINATION.

This Agreement shall commence on the Effective Date and shall continue in full force and effect, renewing on each month from the date Client initially subscribed, unless and until terminated in accordance with the provisions of this Agreement. Client may terminate this Agreement at any time in advance of the upcoming monthly renewal date and the Agreement will not renew for the subsequent month. Aviatrix may terminate this Agreement on thirty (30) days’ notice or if Aviatrix generally ceases providing the professional services subscriptions. Sections 3, 4.2, 7 and 8 shall survive termination or expiration of this Agreement for any reason.

6. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO BREACH OF THE OBLIGATIONS SET FORTH IN SECTION 3: (I) NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) IN NO EVENT SHALL AVIATRIX’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AMOUNTS PAID TO AVIATRIX BY CLIENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE CAUSE OF ACTION. THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

7. GENERAL.

Neither party shall be liable for delay in performance hereunder due to causes beyond its control, including but not limited to acts of God, fires, strikes, acts of war, or intervention by governmental authority. Client may assign this Agreement in its entirety to (i) any entity under the common control of Client; or (ii) any successor in interest to Client by way of merger or consolidation located in the United States; or (iii) a purchaser of all or substantially all of the assets of Client, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement. Aviatrix is acting in performance of this Agreement as an independent contractor. Any notices or communication under this Agreement shall be in writing and shall be hand delivered or sent by registered mail return receipt requested at the address set forth in Client’s account and to Aviatrix’s corporate address, or such other address as either party may in the future specify to the other party. This Agreement will be governed by the laws of the State of California in the United States of America. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the courts in Santa Clara County, California. The parties agree that this Agreement is written and construed in the English language. A failure of either party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder. This Agreement sets forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by both parties. Any terms or conditions on a Client purchase order are hereby rejected and shall be of no force or effect. In the event any one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

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