General Terms

20210408

These General Terms, as well as any applicable Product-Specific Terms (SaaS, Software License, or both), Maintenance and Support Terms, and Professional Services Terms, and the applicable Order Form (which are expressly incorporated by reference), govern the agreement between Customer and Deltek. By accepting an Order Form for an expansion or addition of existing Products that references these terms, Customer agrees that existing Products of the same type shall become subject to these terms and conditions.

GT1 Definitions. Capitalized terms have the meaning described in Section GT1.

GT1.1 “Affiliate” means any entity that is controlled by Customer, or is under common control with Customer, through more than fifty percent (50%) ownership.

GT1.2 “Agreement” means the Order Form with the General Terms and any Product-Specific Terms.

GT1.3 “Asia-Pacific Customer” means a party that has ordered Products from a Deltek office or an authorized Deltek Partner located in Australia or Asia (except for the Middle East).

GT1.4 “Confidential Information” means any information which one party (“Discloser”) provides, either directly or indirectly, to the other (“Recipient”) in connection with this Agreement, the terms of this Agreement, or information related to the business of the Discloser that is reasonably understood to be confidential or proprietary information, whether or not marked.

GT1.5 “Correction” means, without limitation, workarounds, support releases, component replacements, patches and/or documentation changes made available by Deltek.

GT1.6 “Custom” or “Customization” means programming language that enhances, adds to, or modifies software functionality or behavior.

GT1.7 “Customer” means the party identified on an Order Form.

GT1.8 "Customer Data" means all electronic data or information that Customer or any Authorized User loads or enters into the Services and all results from processing such data.

GT1.9 “Defect” means a failure to operate substantially in accordance with the Documentation.

GT1.10 “Dispute” means any dispute or claim arising out of or related to this Agreement.

GT1.11 “Documentation” means the user instructions, user guides, training guides, manuals, or educational materials for the Products provided by Deltek for Customer’s use.

GT1.12 “Effective Date” means the date of the last signature of an Order Form unless or otherwise defined in an Order Form.

GT1.13 “EMEA Customer” means a party that has ordered Products from a Deltek entity or an authorized Deltek Partner located in Europe, the Middle East, or Africa.

GT1.14 “Marks” means registered or unregistered trademarks, service marks, trade names, logos, service names, or other proprietary markings.

GT1.15 “Misuse” means any use of the Products in disregard of any Documentation, other written instructions, warning messages, or known or reasonably anticipated adverse consequences.

GT1.16 “Order Form” means a document executed by Customer and accepted by Deltek to purchase Deltek Products and/or Professional Services, which will take precedence over any conflicting terms unless otherwise specified in this Agreement.

GT1.17 “Products” means collectively, Deltek’s Software and Services offered to Customers.

GT1.18 “Professional Services” means Deltek consulting services, as identified on an Order Form.

GT1.19 “Sanctioned Person” means any person or entity on the U.S. Department of Commerce’s Denied Persons List, the U.S. Department of Treasury’s List of Specially Designated Nationals and Blocked Persons, or with which dealings are restricted under Trade Controls.

GT1.20 “SaaS” means the Deltek application or applications provided as a service by Deltek but excluding Professional Services.

GT1.21 “Services” means, collectively, any Deltek applications provided as SaaS that are ordered by Customer, including services provided under a maintenance plan but excluding Professional Services.

GT1.22 “Software” means the Deltek software products licensed to Customer by Deltek.

GT1.23 "Subscription Period" means the period during which Customer may use the Services, as specified in the Order Form. The Subscription Period begins on the Effective Date of the Order Form.

GT1.24 “Term License” means a license to use Software for a fixed period of time identified in an Order Form; the fixed period of time is the “Term.”

GT1.25 “Trade Controls” means export control and sanction requirements including without limitation the U.S. Export Administration Regulations, economic sanctions administered by the U.S. Department of the Treasury and export control and economic sanction requirements of other jurisdictions as applicable to the parties.

GT2 Invoicing; Payment; Taxes. (SECTION GT2 APPLIES ONLY TO TRANSACTIONS BETWEEN DELTEK AND CUSTOMER AND DOES NOT APPLY TO TRANSACTIONS BETWEEN CUSTOMER AND DELTEK PARTNERS.)

GT2.1 Payments and Payment terms.

Customer shall make all payments for the Products and Professional Services within fifteen (15) days after the invoice date

Fees for any renewal will be at Deltek's then-current rates and will be due within fifteen (15) days after the invoice date.

For any Products added to a Customer’s existing Products, fees will be prorated to coincide with Customer’s existing Products.

All fees and other charges referred to in the Agreement will be paid in the currency specified in the Order Form. If no currency is specified, the currency is US Dollars. All payments made under this Agreement are non-refundable, except as specifically provided in this Agreement.

GT2.2 Disputed Invoices. Customer will notify Deltek within fifteen (15) days after the date of an invoice if there is a dispute regarding that invoice. Deltek will work in good faith with Customer to promptly correct errors or resolve disputes.

GT2.3 Taxes. Customer fees, costs and expenses do not include applicable taxes. Customer shall pay and/or reimburse Deltek for all taxes (other than taxes based on Deltek's income). Deltek will invoice taxes unless Customer has provided adequate evidence of exemption. Deltek shall not issue credits for taxes billed before Customer provides evidence of a valid exemption. Customer shall be liable to Deltek for any costs, fees and taxes that Deltek incurs due to any invalid tax exemption claimed by Customer.

Customer shall remit any government-imposed withholding taxes in accordance with applicable law, gross up the applicable payment amounts to ensure that Deltek receives the full amount of fees invoiced, and provide Deltek with applicable evidence of withholding.

GT2.4 Late Payments. Late payment interest is one and one-half percent (1½%) per month, eighteen percent (18%) per annum, from the date due until paid, whether before or after judgment. Ten (10) days after written notice to Customer, Deltek may suspend performance if Customer fails to make full payment of any undisputed amount owed under this Agreement. If Deltek suspends performance, Customer will have no access to any Customer Data and Deltek will have no obligation to provide Customer with copies of Customer Data.

GT2.5 Vendor Management System and Payments.

  1. Deltek’s use of any Vendor Management System (as defined below) at Customer’s request shall be for administrative purposes only and shall not in any way affect or modify the terms of this Agreement. Customer must notify Deltek and provide reasonable time for Deltek to review any Vendor Management System terms and establish an account prior to invoicing. Customer shall indemnify and hold Deltek harmless from any Claims arising from Deltek’s use or access of the Vendor Management System. For purposes of this section, “Vendor Management System” shall mean any Customer or third party billing, invoice or vendor management service.
  2. Customer may separately arrange with a third party to make payments to Deltek. Customer must notify Deltek and provide reasonable documentation to Deltek of the arrangement requested before Deltek will invoice a third party directly. If a third party fails to make any undisputed payment when due, Customer remains liable and shall promptly pay Deltek all amounts due. Third party payors shall have no right, title or interest in or to the Product, including any right to use, sublicense, assign or otherwise transfer the Product to itself or a third party.

GT3 Confidentiality.

GT3.1 Recipient agrees to protect and hold all Confidential Information in confidence and in the same manner as Recipient protects the confidentiality of its own proprietary and confidential materials of similar kind, but in no event with less than a reasonable standard of care. Recipient will only use Confidential Information for the purposes of this Agreement and related internal administrative purposes. Recipient may only disclose Confidential Information to its affiliates, employees, contractors and business partners on a "need to know" basis, provided that they are bound by written confidentiality obligations no less stringent than those in this Agreement.

These confidentiality restrictions and obligations will remain in effect until the information ceases to be Confidential Information. If Customer participates in a Deltek-sponsored group event, this Confidentiality section shall apply to Confidential Information disclosed by any group participant, and Deltek may provide a copy of this Confidentiality section to any Discloser to enforce its provisions.

GT3.2 Upon the request of Discloser, the Recipient shall promptly return all copies of the Confidential Information, and any documents derived from the Confidential Information, or at the Discloser's option, shall certify in writing that all copies of the Confidential Information and derivative documents have been destroyed. This obligation to return or destroy materials or copies thereof does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of Recipient's information systems procedures, provided that Recipient shall make no further use of Confidential Information contained in those copies.

GT3.3 The Confidentiality obligations described above do not apply to information that:

  1. is already known to Recipient at the time of disclosure,
  2. is or becomes publicly known through no wrongful act or failure of the Recipient,
  3. is independently developed by Recipient without benefit of Discloser's Confidential Information, or
  4. is received from a third party which is not under and does not thereby breach an obligation of confidentiality.

GT4 Compliance with Law.

GT4.1 Each party will be responsible for its own compliance with applicable law, as well as all legal requirements related to (a) use of the Products and Professional Services, (b) Trade Controls, and (c) disclosure of data. Customer warrants to Deltek that it will collect, use, transfer and otherwise Process any Personal Data collected by or through the Products or that Customer discloses to Deltek under this Agreement in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.

GT4.2 For purposes of Processing Personal Data subject to additional legal requirements, including, but not limited to Privacy Laws as defined in the Privacy Terms, Deltek and Customer agree that such Processing will be in accordance with the Deltek General Privacy Terms ("Privacy Terms") located at https://www.deltek.com/DeltekGPT. In the event of conflict between this Agreement and the Privacy Terms, the Privacy Terms shall prevail with respect to the parties' relative obligations under applicable Privacy Laws pertaining to the collection, Processing, and transferring of Personal Data. The capitalized terms in this Section have the meaning described in the Privacy Terms.

GT5 Limitation of Liability.

GT5.1 EXCEPT FOR CUSTOMER'S VIOLATION OF THE TERMS OF ITS LICENSE OR THE USE RESTRICTIONS TERMS, OR INFRINGEMENT OF DELTEK'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR DELTEK'S LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, BUSINESS INTERRUPTIONS, LOSS OF REVENUE OR PROFITS, LOST MANAGEMENT TIME, SAVINGS, DATA OR GOODWILL, OR ANY PENALTIES, FINES OR EXPENSES.

GT5.2 EXCEPT FOR DELTEK'S OBLIGATIONS REGARDING INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, DELTEK'S AND ITS LICENSORS' TOTAL LIABILITY ON ANY CLAIM FOR ANY LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS OR THE PROFESSIONAL SERVICES PROVIDED HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO DELTEK IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY WITH RESPECT TO THE PRODUCTS OR PROFESSIONAL SERVICES, RESPECTIVELY, GIVING RISE TO THE LIABILITY.

GT5.3 THE LIMITATIONS OF LIABILITY APPLY TO DAMAGES ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, STRICT LIABILITY, TORT, OR NEGLIGENCE, EVEN IF SUCH LOSS OR DAMAGE WAS FORESEEABLE OR CONTEMPLATED BY THE PARTIES. NOTWITHSTANDING THE FOREGOING, WITH RESPECT TO EVALUATION SERVICES AND EVALUATION SOFTWARE PROVIDED TO CUSTOMER, DELTEK'S AND ITS LICENSORS’ TOTAL LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EVALUATION SERVICES OR EVALUATION SOFTWARE DURING THE EVALUATION PERIOD SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00).

GT5.4 EXCEPT FOR DELTEK'S LICENSORS, WHO ARE THIRD PARTY BENEFICIARIES ONLY WITH RESPECT TO THEIR PORTION(S) OF THE PRODUCT OR SERVICE, ANY PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL HAVE NO RIGHT TO ENFORCE ANY TERM OF THIS AGREEMENT.

GT5.5 NOTHING IN THIS LIMITATION OF LIABILITY SECTION OR OTHERWISE IN THE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR (1) FRAUD, (2) DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY'S NEGLIGENCE, OR (3) ANY LIABILITY TO THE EXTENT THAT IT MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.

GT5.6 FOR EMEA CUSTOMERS. The language below is added to the Agreement ONLY for Customers where the Choice of Law is for a country in the EMEA region. If the Choice of Law is not from a country in EMEA, this language is deemed deleted from the Agreement. If EMEA is the Choice of law, then the following is added:

    IN ADDITION TO SECTION GT5.5 ABOVE, NOTHING IN THIS LIMITATION OF LIABILITY SECTION OR OTHERWISE IN THE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT EITHER PARTY’S LIABILITY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE (INCLUDING NEGLIGENCE AS DEFINED IN THE UK S. 1 UNFAIR CONTRACT TERMS ACT 1977), OR (2) BREACH OF TERMS REGARDING TITLE IMPLIED BY THE UK S. 12 SALE OF GOODS ACT 1979 AND/OR S. 2 SUPPLY OF GOODS AND SERVICES ACT 1982.

GT6 Governing Law & Dispute Resolution.

GT6.1 Governing Law.

  1. For Americas Customers: This Agreement shall be governed by the laws of the State of Delaware, U.S.A., without regard to any conflicts of laws provisions. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement.
  2. For Asia-Pacific Customers: This Agreement shall be governed by the laws of Australia and particularly the laws of South Australia, without regard to any conflicts of laws provisions.
  3. For EMEA Customers: This Agreement shall be governed by the laws of England, without regard to any conflicts of laws provisions.
  4. For all Customers: The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

GT6.2 Dispute Resolution

  1. Informal Dispute Resolution. In the event of any Dispute arising from or relating to this Agreement or the breach thereof, the parties shall endeavor to settle the Dispute. To this effect, the management-level representatives from each party shall consult and negotiate with each other in good faith and attempt to reach a just and equitable solution satisfactory to both parties. If a Dispute is not resolved within sixty (60) days, then the Dispute shall be settled by final and binding arbitration, as described below.
  2. For Asia-Pacific and EMEA Customers: The language in Section 6.2(B) is added to the Agreement, and Section 6.2(C) is deleted in its entirety, ONLY for Customers where the Choice of Law is for a country in EMEA or in Australia. If the Choice of Law is not from a country in EMEA or in Asia-Pacific, this language is deemed deleted from the Agreement. If EMEA or Asia-Pacific is the Choice of law, then the following is added:

    If a Dispute is not resolved at the end of the sixty (60) day period described in Subsection (A) above, then the Dispute shall be finally resolved by binding arbitration before a single arbitrator pursuant to the Rules of Arbitration ("Rules") and under the auspices of the International Chamber of Commerce ("ICC"). In accordance with the Rules, the parties shall select the arbitrator, and if they do not, an arbitrator shall be selected by the ICC in accordance with the Rules. The arbitrator shall be a lawyer knowledgeable in the chosen law and information technology disputes. At either party's request, the arbitrator shall give a written opinion stating the factual basis and legal reasoning for his/her decision. The arbitrator will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this Agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in Adelaide, Australia (for Asia-Pacific Customers) or London, UK (for EMEA Customers), or, with consent by the arbitrator and parties, another mutually agreeable metropolitan area.

    The arbitrator shall award appropriate fees and costs to the prevailing party. If it becomes necessary for either party to compel arbitration or to enforce an arbitration award, that party may bring an action in any court of competent jurisdiction and the prevailing party shall recover from the other party its costs and expenses, including court costs and reasonable attorneys' fees (including allocable costs of in-house counsel). The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrator that protects the confidential nature of the parties' proprietary and confidential information. No arbitration award may provide a remedy beyond those permitted under this Agreement, and any award providing a remedy not permitted under this Agreement will not be valid and will be vacated. No Dispute may be brought as a class action, and neither party may act as a class representative or participate as a member of a class of claimants with respect to any Dispute. BOTH PARTIES HEREBY WAIVE ALL RIGHT OR ENTITLEMENT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR RELATES IN ANY WAY TO THIS AGREEMENT.
  3. For all other Customers:

    If a Dispute is not resolved at the end of the sixty (60) day period described in Subsection (A) above, then the Dispute shall be settled by final and binding arbitration in accordance with the American Arbitration Association ("AAA") Commercial Arbitration Rules. A single arbitrator appointed as provided in the AAA Commercial Arbitration Rules will be an attorney experienced in computer software, licensing, and information technology disputes. The arbitrator will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this Agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in the Washington, DC metropolitan area, or, with the consent of the arbitrator and the parties, another mutually agreeable metropolitan area. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrator may be entered by any court of competent jurisdiction.

    The arbitrator shall award appropriate fees and costs to the prevailing party. If it becomes necessary for either party to compel arbitration or to enforce an arbitration award, that party may bring an action in any court of competent jurisdiction and the prevailing party shall recover from the other party its costs and expenses, including court costs and reasonable attorneys' fees (including allocable costs of in-house counsel). The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrator that protects the confidential nature of the parties' proprietary and confidential information. No arbitration award may provide a remedy beyond those permitted under this Agreement, and any award providing a remedy not permitted under this Agreement will not be valid and will be vacated. No Dispute may be brought as a class action, and neither party may act as a class representative or participate as a member of a class of claimants with respect to any Dispute. BOTH PARTIES HEREBY WAIVE ALL RIGHT OR ENTITLEMENT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR RELATES IN ANY WAY TO THIS AGREEMENT.
  4. Litigation Rights. Either party may, without waiving any remedy under this Agreement, seek temporary or permanent injunctive relief including without limitation equitable relief from any court of competent jurisdiction to protect its Confidential Information, non-solicitation rights, license rights and intellectual property rights, regardless of the arbitration requirements. Deltek reserves the right to pursue collections activity or legal action in a court of competent jurisdiction to compel payment due hereunder and, in such a case, Deltek shall be entitled to recover its costs and reasonable attorneys' fees, regardless of the arbitration requirements.

For Australian Customers only: The language below is added to the Agreement ONLY for Customers where the Choice of Law is Australia. If the Choice of Law is not Australia, this language is deemed deleted from the Agreement. If Australia is the Choice of law, then the following is added:

In the event that supply of any Products or Professional Services under this Agreement constitutes a supply of goods or services to a consumer as defined in the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or relevant State or Territory legislation (“the Acts”) nothing contained in this Agreement excludes restricts or modifies any condition, warranty, guarantee or other obligation in relation to this Agreement and any Products and Professional Services to be supplied hereunder which pursuant to the Acts or any of them may not be limited or excluded, in which event Deltek’s sole liability for breach of any such guarantee, condition, warranty or other obligation shall be limited to: (1) in relation to Products: (A) the replacement of the Products or the supply of equivalent Products or payment of the cost of replacing the Products or acquiring equivalent Products; or (B) the repair of the Products or payment of the cost of having the Products repaired; and (2) in relation to Professional Services: (A) the supplying of the Professional Services again; or (B) the payment of the cost of having the Professional Services supplied again as in each case Deltek may elect.

Mandatory statement under Regulation 90 of the Competition and Consumer Regulations: Products that we supply may come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure. These rights may be lawfully limited in respect of Products not ordinarily acquired for personal, domestic or household use or consumption. To request a replacement or a refund, please send your written request to Deltek by letter or email to warranties@deltek.com.

If Customer is an Australian business, Customer warrants that it has an ABN and has provided it to Deltek. Customer further warrants that it will maintain its ABN through the duration of this Agreement, list its ABN on any invoice, and advise Deltek in writing immediately if its ABN is cancelled. Customer will indemnify and hold Deltek harmless from and against any tax, charge, fine, penalty or other impost which Deltek incurs or becomes liable to pay as a result of the Customer's failure to maintain its ABN.

GT7.1 Products and Documentation.

  1. Deltek, its licensors and any applicable third parties retain ownership, title and all rights and interest, including, without limitation, to any intellectual property rights, Products, Documentation, Extensions, and Customizations, whether or not those rights are registered. Any copy, modification, revision, Correction, update, enhancement, adaptation, translation, or derivative work of or created from the Products or Documentation ("Derivative") shall be owned solely and exclusively by Deltek or its licensors or third parties, as applicable. To the extent permitted by applicable law, Customer assigns title, ownership, and all rights to Deltek in any Derivative. To the extent an assignment is not effective under applicable law, Customer grants Deltek an exclusive, perpetual, fully-paid, transferable, irrevocable license to use, reproduce, distribute, and commercialize the Derivative to the fullest extent permissible and effective under applicable law.
  2. Customer may not modify the Documentation except to the extent necessary to reflect more closely Customer's operations, provided, however, that Deltek shall retain all rights in any modified Documentation, and each party shall retain its confidentiality obligations with respect to any Confidential Information in the modified Documentation.

GT7.2 Marks. Customer agrees not to remove or replace any Mark from the screens on which the Software is displayed or the Services are viewed or accessed or any associated materials without Deltek's express written consent, and to reproduce all Deltek Marks on any copy or portion of any associated materials.

GT7.3 Copyright Notice and Commercial Computer Software Notice. The Products and Documentation are protected, with all rights reserved, under applicable copyright laws. Rights to use, modify, reproduce, release, perform, display or disclose the Products are as set forth in, and are subject to this Agreement.

GT7.4 Extensions. Deltek may provide tools with certain products to assist Customer in creating code to extend the functionality of the SaaS or Software, including custom reports or independently developed code extensions (“Extensions”). Whether developed by Customer, Deltek, or a third party on behalf of Customer, Extensions may not function properly after the underlying SaaS or Software is updated. Customer is responsible for testing Extensions following updates to the SaaS or Software and for all necessary corrections to the Extension to function with updated versions of the SaaS or Software. Deltek has no obligation to fix, repair or otherwise make functional any Extensions that do not function properly after a SaaS or Software update; and Deltek shall retain ownership of Extensions created by Deltek, subject to Deltek’s confidentiality obligations to Customer. In addition, Deltek may develop and incorporate into the core product functionality similar to or the same as Extensions created by or for a Customer, and Customer has no right or remedy against Deltek for Deltek’s development of such functionality. SaaS and Software Extensions are excluded from the maintenance and support, warranty, and infringement terms in the Agreement.

GT8. Deltek Indemnification for Infringement.

  1. Deltek will defend Customer with counsel of Deltek’s choosing against any action based on a third party claim (“Claim”) alleging that the Product or Documentation infringes or misappropriates a patent, copyright, trade secret, or other intellectual property right in the applicable jurisdiction of any third party. Customer may retain counsel at its own expense subject to GT8(B).
  2. Deltek will indemnify Customer for damages finally awarded against Customer, arising from any such Claim; provided, however, that
    1. Customer gives Deltek prompt written notice of such Claim,
    2. Customer fully cooperates with Deltek in the defense and settlement thereof,
    3. Deltek is given full control of the defense of such Claim and any settlement or compromise thereof, and
    4. Customer complies with Deltek's direction to cease using any Product that in Deltek's reasonable judgment may be ruled to cause an infringement of a third party's intellectual property rights.
  3. Customer may retain counsel at its own expense subject to GT8(B) but such expense shall not be included in Deltek’s indemnity obligation. Deltek will not agree to any settlement of any claim that requires payment by Customer to a third party, without Customer’s consent.
  4. If Customer's use of the Product or Documentation is impacted as a result of an infringement or misappropriation Claim or if Deltek believes such a Claim is likely, then Deltek may, at its option and expense, either (i) procure for Customer the right to continue using the Product or Documentation, or (ii) replace or modify the Product or Documentation so that it no longer infringes or misappropriates a patent, copyright, or trade secret. If Deltek deems (i) or (ii) not feasible, Deltek will terminate all Software licenses or Services rendered unusable and return the unused portion of the fees paid (determined, in the case of Software licenses, by depreciating the license fees paid on a straight-line basis over thirty-six (36) months) by Customer for the Product or Documentation.
  5. Deltek shall have no liability to Customer if the Claim is based upon or arises out of
    1. use of any third party products or services,
    2. modification of the Product or Documentation by Deltek based on Customer's specifications,
    3. Customer's violation of the terms of this Agreement, or
    4. third party content.
  6. THIS SECTION STATES CUSTOMER'S SOLE REMEDY AND DELTEK'S SOLE LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

GT9 Termination.

GT9.1 Termination for Breach. Either party may terminate this Agreement as a result of a material breach by the other party, if (a) the non-breaching party provides written notice to the other party of the breach, and (b) such breach, if remediable, is not cured within fifteen (15) days of receipt of notice. However, Deltek may terminate this Agreement immediately upon written notification to Customer in the case of Customer’s breach of Deltek’s intellectual property rights or restrictions on Customer’s use of Products.

GT9.2 Upon termination for any reason, all Products granted under this Agreement shall immediately terminate. The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected. Termination shall not release Customer from any obligation to pay for the full term of the Agreement.

GT10 Miscellaneous.

GT10.1 Excusable Delays. In no event shall either party be liable to the other for any delay or failure to perform hereunder due to causes beyond the reasonable control of that party. Failure to make payment under this Agreement shall not be considered an excusable delay.

GT10.2 Publicity. Neither party will issue any press release, advertising, nor other public materials that use the Marks or refer to the other party or Deltek’s licensors, the existence of this Agreement, the Products or the Professional Services provided without the other party's prior written consent. However, Deltek may identify Customer on its client list and may use a mutually-agreed general description of the nature of the relationship in promotional materials, presentations, and proposals to current and prospective clients. Notwithstanding anything to the contrary herein, either party may identify the other party or disclose the existence of this Agreement to its attorneys, auditors and in connection with regulatory filings.

GT10.3 Feedback. Customer's comments, suggestions, or other feedback are provided voluntarily, and Deltek may use any feedback as it sees fit.

GT10.4 Binding Effect. This Agreement shall be binding upon the parties and their respective legal successors and permitted assigns.

GT10.5 Assignment and Transfer. Except as otherwise stated, Customer may not in whole or part, assign, transfer, novate, subcontract or sublicense this Agreement or any right or obligation under it except with Deltek’s prior written consent, and any assignment made in violation of this provision shall be invalid. Transfer or assignment requests are at Deltek’s discretion.

However, Customer may assign all Products acquired under this Agreement, without Deltek's written consent, to any successor in interest by way of merger or the acquisition of substantially all of Customer’s assets; provided that

  1. assignor's account with Deltek is current at the time of assignment,
  2. assignee is not a direct competitor of Deltek, and
  3. assignee will be bound by Deltek’s standard then-current terms and conditions of this Agreement, including any Product-Specific Terms applicable to the Product transferred.

GT10.6 Export Regulations. Customer acknowledges that Trade Controls may restrict use, disposition, export, reexport, transfer or other action taken with respect to the Products and any other goods, services, software and technical information provided in connection with this Agreement. Customer warrants and represents that it, its Affiliates, and anyone who uses the Software or Services on behalf of the Customer, (1) are not a Sanctioned Person and (2) none of Customer, its Affiliates, and anyone who uses the Software or Services on behalf of the Customer shall provide any items under this Agreement to a Sanctioned Person.

GT10.7 Entire Agreement. This Agreement is the entire agreement between Customer and Deltek relating to the specific Products and/or Professional Services described in an Order Form, and supersedes all prior or contemporaneous oral or written communications, proposals and representations relating to such. Notwithstanding the foregoing, this Agreement does not affect any prior or separate agreement between the parties for any other Products or Professional Services. Any purchase order, terms, Vendor Management System terms or other document issued by the Customer will be for administrative purposes only and any such terms will not alter or supplement this Agreement. Except as explicitly set forth herein, this Agreement will not be modified by any other act, usage, custom, or course of dealing and any document seeking to modify this Agreement must be agreed to by both parties. In no event is Deltek’s agreement to use a Vendor Management System at Customer’s request an agreement to modify the terms and conditions of this Agreement. Unless otherwise agreed in writing or as otherwise set forth herein, this Agreement (1) does not terminate or change the Customer's rights or obligations of any prior Deltek agreement for Deltek Products of another type that have not been ordered under this Agreement, and (2) supersedes any "clickwrap" license incorporated in the Software.

GT10.8 Severability. If any provision of this Agreement is illegal or unenforceable in any jurisdiction, that provision shall remain effective with respect to any jurisdiction in which it is legal and enforceable, and the remainder of this Agreement will remain valid and enforceable anywhere.

GT10.9 Notices. Notices will be deemed effectively given:

  1. when received, if delivered by hand, with signed confirmation of receipt;
  2. when received, if sent by a nationally recognized overnight courier, signature required;
  3. when by e-mail, with confirmation of receipt, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and
  4. on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

Notices to Deltek must be sent to Deltek, Inc., 2291 Wood Oak Drive, Herndon, VA 20171, Attention: General Counsel, or by email to contractsgroup@deltek.com and to Customer via email to the primary contact with Deltek.

All communications and notices pursuant to this Agreement must be in the English language.

GT10.10 Deltek Amendments to Agreement. Deltek may amend the Agreement from time to time when required by changes to applicable law or additions or modifications to the Products that Deltek makes available to all Customers. Any subsequent Order Form, Term License, Subscription Period, or maintenance term, or renewal of the foregoing Services, will be governed by Deltek’s then-current terms.

GT10.11 Waiver. A failure or delay of either party to this Agreement to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any provision of this Agreement. No waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.

GT10.12 Survival. Terms regarding payment, termination, ownership, intellectual property rights, warranties, limitations of liability, governing law, dispute resolution, confidentiality, severability, waivers, and audit will survive the expiration or termination of this Agreement.

GT10.13 E-mail Communications. Each party shall comply with the U.S. CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701-7713 (“CAN-SPAM Act”) and similar legislation when applicable. Customer consents to receiving email messages from Deltek that may constitute “commercial e-mails” under the CAN-SPAM Act. Customer may at any time “opt out” of receiving future emails from Deltek.

GT10.14 Independent Contractor. Each party is at all times acting as an independent contractor under this Agreement and not as an agent, employee, joint venturer or partner of the other.

GT10.15 Customer agrees to the terms of this Agreement and represents that the signatory signing on behalf of Customer has authority to enter into this Agreement.

 

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