These Professional Services Terms and Conditions ("Terms") set forth the general terms and conditions under which You have engaged Redgate to provide certain Services to You pursuant to the applicable Statement of Work ("SOW"). These Terms, the SOW, the Redgate Quote and the Statement of Services together constitute the "Professional Services Agreement". Unless expressly agreed otherwise in writing by the Parties, any use of Our Services is subject to the terms of the Professional Services Agreement. Please read the full Professional Services Agreement carefully.
You confirm that You accept and agree to be legally bound by all terms and conditions of the Professional Services Agreement. Where an individual places an order for the Services, such individual represents that they have the authority to agree to the terms of this Professional Services Agreement on behalf of their employer.
IMPORTANT NOTICE:
The Professional Services Agreement shall prevail over and shall operate to the exclusion of Your standard terms and conditions (if any) attached to, enclosed with, or referred to in, Your purchase order or any other order confirmation and/or written acceptance of the Redgate Quote.
1.1 We shall supply the: (a) Configuration Service; and/or (b) Guided Installation; and/or (c) Training; and/or (d) Miscellaneous Services to You in accordance with the SOW in all material respects, subject to the Professional Services Agreement.
1.2 We shall use all reasonable endeavors to meet any performance dates specified in the Statement of Services but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
1.3 We reserve the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and We shall notify You in any such event.
1.4 For the avoidance of doubt, Your use of the Software shall be governed by the EULA Terms whether configuration or installation of the same was facilitated by the Configuration Service or the Guided Installation or otherwise.
1.5 The following services shall not be provided under the Professional Services Agreement and any such services purchased shall be governed by the EULA Terms:
1.5.1 ongoing support relating to the Software following completion of the Services; and
1.5.2 any maintenance updates or upgrades to the Software.
2.1 You shall:
2.1.1 consume the Services within the Completion Window unless You fail to do so as a direct result of a breach by Us of the terms of the Professional Services Agreement;
2.1.2 comply with Your Responsibilities;
2.1.3 ensure that the terms of the Redgate Quote and Statement of Services and any information You provide to Us is complete and accurate;
2.1.4 cooperate with Us in all matters relating to the Services;
2.1.5 obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start; and
2.1.6 be wholly responsible and liable for the configuration and installation of the Software.
2.2 For the avoidance of doubt, We shall not be configuring or installing the Software on Your behalf and We shall have no liability for Your actions or omissions in relation to Your use of the Software during any Configuration Service and/or Guided Installation except for any liability arising as a direct result of following Our instructions (and providing You have carried out Your own assessment on the suitability and impact of Our instructions on Your own infrastructure and procedures).
2.3 If the performance by Us of any of Our obligations under the Professional Services Agreement is prevented or delayed by Your act or omission or Your failure to perform any relevant obligation ("Your Default"):
2.3.1 without limiting or affecting any other right or remedy available to Us, We shall have the right to suspend performance of the Services until You remedy Your Default, and to rely on Your Default to relieve Us from the performance of any of Our obligations in each case to the extent Your Default prevents or delays Our performance of any of Our obligations;
2.3.2 We shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Our failure or delay to perform any of Our obligations as set out in this clause 2; and
2.3.3 You shall reimburse Us on written demand for any costs or losses sustained or incurred by Us arising directly or indirectly from Your Default.
3.1 We shall invoice You for the Fees payable in respect of the:
3.1.1 Configuration Service; and/or
3.1.2 Guided Installation; and/or
3.1.3 Training; and/or
3.1.4 Miscellaneous Services.
after Your acceptance of the Redgate Quote; this may be under the same invoice as submitted to You by Us for the license fee and any other fees applicable to the Software (as governed by the EULA Terms).
3.2 Any Fees (together with any levies, duties and/or taxes imposed on You in Your jurisdiction (including but not limited to, value added tax, sales tax and withholding tax)) shall be paid by You on the payment due date as set out in Our invoice issued to You.
3.3 You may not deduct any amounts from any Fees.
3.4 We reserve the right to charge interest of 2% above the Bank of England base rate in force from time to time on any late payments due under the Professional Services Agreement until such amount is paid.
3.5 Where You have obtained the Services through a Reseller, the terms You have agreed with such Reseller solely in relation to payment and invoicing will apply instead of clauses 3.1 to 3.4, however, all other terms of the Professional Services Agreement shall apply to You and will remain in full force and effect.
4.1 We shall own all Intellectual Property Rights in or arising out of or in connection with:
4.1.1 Our Materials;
4.1.2 the Training; and
4.1.3 the Software.
4.2 We shall own all Intellectual Property Rights in the Services (including Intellectual Property Rights in and to all Deliverables) save for Intellectual Property Rights created by You arising out of or in connection with Your use of the Configuration Service and/or Guided Installation (excluding Our Materials), which shall be owned by You.
4.3 We grant to You a non-exclusive, non-transferable, non-sublicensable license, subject to and in accordance with the terms of the Professional Services Agreement, to:
4.3.1 where We are providing Training to You:
(i) grant access to the Training Package to the Users as set out in the SOW for completion of the Training only;
(ii) access and use the Platform and/or Virtual Machine for the purposes of Users accessing the Training Package and completing the Training only;
(iii) use of Our Materials (including any recordings of Training sessions that We may provide to You and use of any such recordings that We, at Our sole discretion, may allow You to make) solely for Your internal training purposes in relation to Your ongoing use of the Software during the applicable license term under the EULA; and/or
4.3.2 where We are providing the Guided Installation to You: use and copy the Deliverables for the purpose of receiving and using the Guided Installation Services only.
4.3.3 where We are providing the Configuration Service to You:
(i) use and copy the Deliverables for the purpose of receiving and using the Configuration Service only; or
(ii) where We have created any Deliverables as part of the Services for Your continued use, We grant You a perpetual license for such Deliverables on an AS IS basis.
5.1 We warrant to You that the Services will be provided using reasonable care and skill.
5.2 Subject to clause 5.1, all other terms, conditions, representations and warranties expressed or implied whether by statute or otherwise are hereby expressly excluded.
6.1 Nothing in the Professional Services Agreement shall limit or exclude either Party’s liability for: (a) personal injury or death resulting from negligence; (b) fraud; or (c) any other matter for which liability cannot be excluded by law.
6.2 Subject to clause 6.1, neither Party shall be liable to the other Party for any indirect, special or consequential loss or damage whatsoever arising under or in relation to the Professional Services Agreement (whether in contract, tort (including negligence), or otherwise). We shall not be liable to You for any of the following types of loss or damage arising under or in relation to the Professional Services Agreement: (a) any loss of profits, business, contracts, anticipated savings, goodwill, or revenue; or (b) any loss, or corruption, of software or data; or (c) any loss of use of hardware, software or data.
6.3 Subject to clauses 6.1 and 6.2, Our total liability to You in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise arising in connection with the Professional Services Agreement shall be limited to the total Fees paid under the Professional Services Agreement.
6.4 The provisions of this clause 6 allocate risks under the Professional Services Agreement between You and Us, and the Fees reflect this allocation of risks and these limitations of liability.
7.1 The Professional Services Agreement shall commence on the date the invoice is issued to You and shall expire on completion of the Services unless earlier terminated in accordance with clauses 7.2 or 10.8.
7.2 We may terminate the Professional Services Agreement immediately upon written notice to You if: (a) You fail to make payments when due and You do not make a payment within 10 days of being notified in writing to do so; (b) You breach any of the provisions of the Professional Services Agreement other than payment, which are either not capable of being remedied or where they are capable of being remedied and You fail to remedy within 30 days of being notified in writing to do so; or (c) You take or have taken against You (other than in relation to a solvent restructuring) any step or action which could result in You: (i) entering into bankruptcy, administration, provisional liquidation or any composition or arrangement with Your creditors; (ii) being wound up (whether voluntarily or by order of the court); (iii) being struck off the register of companies; (iv) having a receiver appointed to any of Your assets; or (v) You entering a procedure in any jurisdiction with similar effect to the provisions in this subclause (c).
7.3 On termination or expiry of the Professional Services Agreement You shall:
7.3.1 immediately pay to Us any outstanding Fees which are applicable to the Services and any interest which has accrued under the Professional Services Agreement. For Services supplied but for which no invoice has been submitted as at termination, We shall submit an invoice, which shall be payable by You immediately on receipt. You shall not be entitled to a refund for any Fees (or part thereof) paid prior to the date of termination; and
7.3.2 immediately cease use of all licenses granted under the Professional Services Agreement and destroy or put beyond use all of Our Materials and any copies in Your possession.
7.4 The termination of the Professional Services Agreement howsoever arising shall not affect the rights, duties and liabilities of either Party accrued prior to termination.
7.5 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Professional Services Agreement shall remain in full force and effect including without limitation clauses 4, 5, 6 and 9.
8.1 In connection with this Professional Services Agreement, each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). Subject to clause 8.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, product information, software, pricing and other information of any kind whatsoever, developed or acquired by either Party in connection with this Professional Services Agreement, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". The Services and any information related thereto in any documentation are Confidential Information of Ours or Our licensors.
8.2 Subject to clause 8.3, Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Professional Services Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives’ non-compliance with this Professional Services Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3 Each Receiving Party recognizes and agrees that the Confidential Information of the Disclosing Party is critical to the Disclosing Party's business and that neither Party would enter into this Professional Services Agreement without assurance that such information and its value will be protected as provided in this clause 8 and elsewhere in this Professional Services Agreement. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
8.3.1 not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Professional Services Agreement;
8.3.2 not use or permit the use of any of the Disclosing Party's Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or to obtain any competitive advantage over the Disclosing Party;
8.3.3 except as may be permitted by and subject to its compliance with clause 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (a) need to know such Confidential Information for the purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Professional Services Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this clause; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this clause;
8.3.4 safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care;
8.3.5 ensure its Representatives comply with, and shall be responsible and liable for any of its Representatives' noncompliance with, the terms of this clause 8; and
8.3.6 notify the Disclosing Party in writing promptly of any unauthorized disclosure or use of the Disclosing Party's Confidential Information and cooperate with the Disclosing Party to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights, and other rights therein.
8.4 If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under clause 8.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this clause, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. No such compelled disclosure by the Receiving Party will otherwise affect the Receiving Party's obligations hereunder with respect to the Confidential Information so disclosed.
8.5 If You provide any ideas, suggestions or other input to Us relating to any of Our Software and/or the Services ("Feedback"), We may use such Feedback at Our sole discretion including in the development and licensing of Our Software and/or Services, without any obligations or restrictions.
9.1 Information collected by Us will only be used for the purposes described in the Professional Services Agreement. Please see Our Privacy Notice, for further information on how We collect and use data which can be viewed at: https://www.red-gate.com/privacy.
10.1 Governing law and settlement of disputes. The Professional Services Agreement (and any dispute or claim relating to it, or its formation, existence, construction, performance, validity or termination) will be governed by and construed in accordance with the laws of England and Wales. The courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Professional Services Agreement or its subject matter or formation (including non-contractual disputes or claims). Without prejudice to any other rights or remedies that We may have, You acknowledge and agree that damages alone would not be an adequate remedy for any breach of clauses 4, 8 and 10.5. Accordingly, We shall be entitled to seek an injunction or other equitable relief for any threatened or actual breach of those clauses.
10.2 Severability. If any provision or part of any provision in the Professional Services Agreement is found to be illegal, invalid or unenforceable for any reason then the remaining provisions or part provisions remain unaffected and the Parties shall meet promptly to discuss in good faith and agree an alternative provision or part provision that provides, as closely as possible, the same commercial effect as the original.
10.3 No waiver. No failure or delay by any Party to exercise any right, power or remedy will operate as a waiver of it, nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
10.4 No third party rights. We and You do not intend that any of the Professional Services Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a Party to it and all rights by virtue of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded.
10.5 No Assignment. You are not permitted to assign or transfer the Professional Services Agreement or any rights granted to You to any third party without Our prior written consent. If We consent to the assignment, the Professional Services Agreement will be binding on Your successors and assigns.
10.6 Force majeure. Neither Party shall be in breach of the Professional Services Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Professional Services Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
10.7 Entire agreement. The Professional Services Agreement contains all the terms which the Parties have agreed in relation to the subject matter of the Professional Services Agreement and supersedes any prior oral agreements, representations or understandings between the Parties in relation to such subject matter.
10.8 Revisions to terms. We reserve the right to revise the terms of this Professional Services Agreement by updating this Professional Services Agreement on Our website. You are advised to check the website periodically for notices concerning such revisions. If You do not agree with any such revision, You may terminate this Professional Services Agreement within 10 days of the relevant revision without liability to Us. Your continued use of the Services shall be deemed to constitute acceptance of any revised terms. No revisions will apply retrospectively.
10.9 Notices. References to notices being "written" or "in writing" includes email. Any legal notices to Redgate must be emailed to: legal@red-gate.com.
10.10 Resellers. If You purchase Professional Services through a Redgate authorized Reseller, You acknowledge that We are independent from such Reseller. Further You acknowledge that any such Reseller does not have authority to bind Redgate in any way, make any modifications to this Professional Services Agreement or to make any warranties or representations on Our behalf and that We do not have any liability whatsoever for any actions or omission of any such Reseller.
"Completion Window" means a period of 6 calendar months from the date of Your Redgate invoice or Reseller invoice as applicable, unless otherwise agreed in writing.
"Confidential Information" has the same meaning as set out in clause 8.1.
"Configuration Service" means the configuration support Services provided by Us to assist You with the configuration changes by You in the Software, as detailed in the SOW.
"Deliverables" means, in relation to Configuration Service and/or Guided Installation, the deliverables set out in the SOW.
"Disclosing Party" has the same meaning as set out in clause 8.1.
"EULA Terms" means the relevant end-user license agreement terms for Our Software as notified to You.
"Feedback" has the same meaning as set out in clause 8.9.
"Fees" means the fees payable by You in consideration for the provision of the Services by Us, which shall be in such amount as set out in the Redgate Quote and which are payable by You in accordance with the provisions of clause 3.
"Guided Installation" means the installation support services provided by Us to assist You with the installation by You of the Software, as detailed in the SOW.
"Intellectual Property Rights" means patents, utility models, rights to inventions, copyright and neighboring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Miscellaneous Services" means components of the Configuration Service and/or Guided Installation and/or Training chosen by You as set out in the Statement of Services.
"Our, "Redgate", "We" and "Us" means Red Gate Software Limited registered in England and Wales with company number 03857576.
"Our Materials" means any materials, documents, know-how and data (including without limitation the Platform and Our Virtual Machine) provided by Us to You in connection with the Services and including, as applicable, the Deliverables and any Training materials (in any format) along with recordings of the Training sessions comprising the Training Package We deliver to You, whether such recordings are provided by Us or permitted by Us to be made by You in pursuance of these Terms.
"Parties" means collectively You and Us or individually referred to as a "Party".
"Platform" means Our virtual learning environment upon which the Training Package may be uploaded for Users to access for example by webinar or equivalent.
"Professional Services Agreement" means the contract between You and Us for the supply of Services which is formed in accordance with these Terms, which comprises these Terms, the SOW, the Redgate Quote and Statement of Services.
"Receiving Party" has the same meaning as set out in clause 8.1.
"Redgate Quote" means the quotation provided to You by Us in respect of the Services to be provided hereunder as appended to the SOW.
"Reseller" means any third party authorized by Us to sell the Services to You.
"Services" means the Configuration Service and/or Guided Installation and/or Training and/or Miscellaneous Services, including the Deliverables, supplied by Us to You as set out in the Professional Services Agreement.
"Software" means the software identified as available for licensing on Our website https://www.red-gate.com/support/license/software-editions selected by You and licensed to You under the EULA Terms.
"SOW" means the terms applicable to the Services chosen by You as set out on Our website: https://www.red-gate.com/trust/professional-services-statement-of-work.
"Statement of Services" means the pre-requisite information agreed between the Parties for Service delivery.
"Training" means training developed by and provided by Us remotely via the Platform and/or Our Virtual Machine for the applicable Training Package as detailed in the SOW.
"Training Package" has the meaning given to it in the SOW.
"Terms" shall mean these Redgate Professional Services Terms and Conditions.
"Users" means those individuals You authorize to access, attend/participate and complete the Training Package, with the maximum number of Users (where applicable) set out in the SOW.
"Virtual Machine" means the virtual machine provided by Us to You for download and use for the purposes of the Training.
"You" and "Your" means either: (a) an organization or legal entity; or (i) an employee or individual contractor of such organization or legal entity, who purchases Services from Us.
"Your Default" has the meaning set out in clause 2.3.
"Your Responsibilities" means, in relation to Configuration Service and/or Guided Installation and/or Training and/or Miscellaneous Services, Your obligations, including but not limited to any of Your obligations to ensure You: (a) have access to any materials, infrastructure and equipment; and (b) comply with any other pre-requisites, which are required in relation to the Configuration Service and/or Guided Installation and/or Training and/or Miscellaneous Services as such obligations are set out in the SOW and Statement of Services or otherwise notified to You in writing.
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