Professional Services Agreement
The "Services Agreement - Terms and Conditions" on the following pages of this document form an integral part of this Agreement. These documents and any Services Statement which the parties may from time to time agree to in writing constitute the entire agreement between the parties with respect to the subject matter hereof and cancel and supersede any prior understandings and agreements between the parties hereto with respect thereto. There are no provisions, representations, undertakings, agreements, or collateral agreements between the parties other than as set out herein and the parties agree that no obligations or duties not set out expressly herein shall be imposed upon the parties or implied by law.
TERMS AND CONDITIONS
In this Agreement the following words and terms shall have the respective meanings ascribed to them as follows:
- "Confidential Information" means the confidential, secret or proprietary information of one party (the "Disclosing Party"), including technical, financial, and business information and software of the Disclosing Party which has been or may hereafter be disclosed, directly or indirectly to the other party (the "Recipient"), either orally, in writing or in any other material form, or delivered to the Recipient.
- "Effective Date" means the date of the service statement and or the work order.
- "Intellectual Property" means all intellectual and industrial property created, developed or reduced to practice by a party under this Agreement including, without limitation, software, compilations of data and computer databases, mapping data, algorithms, business and technical rules, specifications, designs and industrial designs, know-how, confidential information, works of authorship, inventions and improvements.
- "Intellectual Property Rights" includes all intellectual and industrial property rights in Intellectual Property including all rights to copyrights, copyright registration applications, copyright registrations, trademarks, trademark registration applications, trademark registrations, patents, inventions, discoveries, patent applications, industrial designs, design rights, trade secrets and information of a confidential nature.
- "License Agreement" means the eBridge Software License Agreement provided to Customer upon the acquisition of any eBridge software.
- "Services" means the services to be provided by eBridge described in the Services Statements or in the work order.
- "Services Statement" means each document so designated and executed by the parties in the form of a work order acknowledge by customer.
During the term of this Agreement eBridge will provide Customer and Customer will accept from eBridge the Services to be described in any Services Statement to be separately executed by eBridge and Customer. Each Services Statement shall automatically incorporate the provisions of this Agreement. The service s tatement shall describe the Services to be provided, the price to be paid by Customer, and such additional provisions as the parties may agree upon.2.2 Contrary Terms
Unless otherwise agreed to in writing by the parties, Customer's orders for Services shall be governed by the terms of this Agreement and the applicable Services Statement and nothing contained in any purchase order, letter or other instrument shall in any way modify, vary, change or add any term or condition hereto unless agreed to in writing by eBridge. Services Statements shall not be binding on eBridge until accepted by it in writing by the execution and acceptance of Services Statement and eBridge shall have no liability to Customer with respect to orders that are not accepted.3.1 Price and Payment
Customer agrees to pay eBridge 's charges for the Services in accordance with the provisions of any Services Statement. Unless stated otherwise in a Services Statement, Customer shall be responsible for and shall reimburse eBridge for all travel, lodging, meals and other reasonable out-of-pocket expenses incurred by eBridge . The charges are exclusive of all taxes and Customer shall pay any sales, use, goods and services, personal property, consumption or other tax and any duties or tariffs that may be assessed, except for tax based on the net income of eBridge . If the Customer is required to withhold any taxes of other charges pursuant to any laws to which the Customer is subject, the Customer will pay as additional fees such additional amounts as will result in eBridge receiving the same amounts it would have otherwise received if no such tax or charge had been imposed.4.1 Intellectual Property
Ownership of and Intellectual Property Rights in Intellectual Property shall be owned as follows: (a) if created solely by Customer, it shall be the sole property of Customer and eBridge shall have and Customer hereby grants to eBridge a non-exclusive license to use, copy and adapt the said Intellectual Property for the sole purpose of providing Customer with Services under this Agreement, and (b) if created solely by eBridge (or its agents or contractors) or if created jointly by eBridge (or its agents or contractors) and Customer, it shall be the sole property of eBridge and upon payment of all amounts due to eBridge under this Agreement, Customer shall have a non-exclusive personal, nontransferable license to use same for its own internal business purposes.4.2 Confidentiality Obligation
- Each party acknowledges that Confidential Information will be exchanged between the parties pursuant to this Agreement. Each party shall use no less than the same means it uses to protect its similar confidential information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other party. Each party agrees that it will not use the Confidential Information of the other party except for the purposes of this Agreement and as authorized herein.
- Notwithstanding Section 4.2(a), the Recipient of Confidential Information may use or disclose the Confidential Information to the extent that such Confidential Information is (i) already known by the Recipient without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the Recipient, (iii) rightfully received from a third party, (iv) independently developed by the Recipient without use of the information of the Disclosing Party, (v) approved by the Disclosing Party for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental agency or law so long as the Recipient provides the other party with notice of such requirement prior to any such disclosure and takes all reasonable steps available to maintain the information in confidence.
Upon the termination or expiration of this Agreement, each party will return to the other all documents and information, however recorded, including but not limited to drawings, specifications, descriptions, or other papers, tapes, or any other media which contain any of the other's Confidential Information.4.4 Third Party Information
Each party agrees not to disclose or deliver to the other any proprietary, confidential, secret or private information or intellectual property including any software of any third person which it is under a duty or has contracted not to disclose, without the prior written consent of such third person and the other party.4.5 Right to Perform Services for Others
Customer recognizes that eBridge is in the business of providing computer and information technology services and may perform services for other persons similar to the Services.5.1 Customer Assistance
Customer shall assist eBridge in the performance of the Services in the manner described in any Services Statement. Customer shall make available all equipment, software, documentation, customer data, information and personnel required by eBridge on a timely basis. Customer shall also ensure that those of its personnel who are assigned to assist eBridge are familiar with Customer's requirements and have the expertise and capabilities necessary to permit eBridge to undertake and complete the Services.6.1 Quality of Services
eBridge warrants that the Services will be performed with reasonable skill and care and by qualified persons authorized by eBridge to perform the Services. For any breach of this warranty or the failure of eBridge to perform Services as required (a "Claim"), Customer's sole and exclusive remedies and eBridge 's entire obligations hereunder shall be, at eBridge’s sole discretion, to perform or re-perform the Services that are the subject of the Claim, or refund to Customer amounts paid to eBridge for the Service that is the subject of the Claim. The remedies in this Section 6.1 are expressly in lieu of any or all other remedies which may be available to Customer resulting from the furnishing, the failure to furnish or the quality of any Service. eBridge does not warrant the accuracy of any data or information furnished to Customer which is created from Customer data or soft ware supplied by Customer unless expressly agreed to in writing by eBridge.6.2 Disclaimer
THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE THE ONLY WARRANTIES MADE BY eBRIDGE HEREUNDER OR WHICH APPLY HERETO. BRIDGE SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, DURABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.6.3 Limit of Liability
- For breach or default by eBridge of any of the provisions of this Agreement, or any other liability in any other way relating to this Agreement, eBridge 's entire liability, regardless of the form of action, whether based on contract or tort, including negligence, including, without limitation the furnishing, the failure to furnish or the quality of any Service shall in no event exceed the amount paid by Customer for the Service that is the subject of the claim, or in the aggregate, in respect of all claims under or related to this A greement, the amount paid by Customer under this Agreement. eBridge's liability for death or personal injury arising from either the negligence of eBridge or its employees or contractors while acting in the course of their employment shall in no event exceed the sum of one million ($1,000,000) dollars.
- IN NO EVENT WILL eBRIDGE BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE (EVEN IF eBRIDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE) INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, CHARGE BACKS FROM TRADING PARTNERS, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON.
- Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
The term of this Agreement will commence on the Effective Date and end on completion of the work as provided in the statement of work. The agreement will continue following the expiry of the said time period until terminated by either party by giving the other no less than thirty (30) days prior written notice in writing. Subject to the provisions of this Agreement, all Services Statements executed by the parties, during the term hereof which require performance beyond the term hereof shall be so performed and shall continue to be subject to the terms and conditions of this Agreement until each party's performance under the Services Statement is completed or until each party's obligations under the Services Statement is otherwise discharged.7.2 Termination for Cause
- In the event either party: (i) materially breaches any of its duties, obligations or responsibilities under this Agreement, which breach shall not be cured within ninety (90) days after written notice is given to the breaching party specifying the breach, or (ii) commits an Act of Insolvency (as defined below), then the party not in breach or insolvent, as the case may be, may, by promptly giving notice thereof to the other party, terminate this Agreement as of the date specified in such notice of termination. eBridge shall have the right, at its sole option in lieu of giving notice to terminate this Agreement, to cancel or delay the performance by eBridge of its obligations under this Agreement. For the purposes of this Section 7.2, a party shall be deemed to have committed an Act of Insolvency if the party is dissolved, becomes insolvent, passes a resolution for its winding up (or an order is made by a court of competent jurisdiction for the winding up of the party), an administration order is made in relation to the party or a receiver or liquidator is appointed over, or takes possession of, any of the party's assets, the party makes an arrangement or composition with its creditors generally, the party makes an assignment for the benefit of its creditors or an application to a court of competent jurisdiction for protection from its creditors generally, or the party ceases operations.
- In the event of termination by eBridge pursuant to Section 7.2, eBridge shall be paid on a time and materials basis for all Services performed, up to the date of termination and the allocated portion of the total contract price for the portions of the Services delivered or performed to the date of termination.
The parties agree that the provisions hereof requiring performance or fulfilment after the expiry or earlier termination of this Agreement, as the case may be, shall survive such expiry or earlier termination. Articles 4, 6.2, 6.3 and 7.3 shall survive the expiration or termination of this Agreement.8.1 Independent Contractor
eBridge employees shall be deemed not to be at any time employees or servants of Customer and eBridge is and shall remain an independent contractor for all purposes. eBridge does not undertake to perform any obligation of Customer, whether regulatory or contractual, or to assume any responsibility for Customer's business or operations.9.1 Headings
The division of this Agreement into Articles and Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of the Agreement, as the case may be. The terms "this Agreement", "hereof", "hereunder" and similar expressions in this Agreement refer to this Agreement and not to any particular Article, Section or other portion and include any Agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles and Sections are to Articles and Sections of this Agreement.9.2 Extended Meanings
In this Agreement words importing the singular number only shall include the plural and vice versa, and words importing persons shall include individuals, partnerships, associations, trusts, unincorporated organizations and corporations. The terms "provision" and "provisions" in this Agreement refer to terms, conditions, provisions, covenants, obligations, undertakings, warranties and representations in this Agreement, as the case may be.9.3 Notices
Notice under this Agreement shall be deemed given when delivered in hand, when transmi tted if sent by electronic mail or facsimile, or five (5) days after mailing if sent by registered mail, return receipt requested, postage paid and addressed as follows:
|To eBridge :||eBridge Software, Inc.
777 Walkers Line
|To Customer :||As provided on the service work order and delivered to customer|
If a party changes its address for notification purposes, then it shall give the other party written notice of the new address and the date on which it shall become effective.9.4 Mutual Agreement
In this Agreement, where the Agreement or consent of a party is required, such Agreement or consent shall not be unreasonably withheld.9.5 Currency All references to currency herein or in any Services Statement are deemed to mean lawful money of Canadadian/United States unless expressed to be in some other currency. 9.6 Force Majeure
If the performance of this Agreement, or any obligation thereunder except the making of payments hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labour disputes; inability to procure or obtain delivery of parts, supplie s, power or telecommunication services, equipment or software from suppliers, war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder with dispatch whenever such causes are removed.9.7Severability
If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void and does not relate to the payments to be made to eBridge . If the remainder of this Agreement, as the case may be, shall not be affected by such declaration or finding and is capable of substantial performance, then each provision not so affected shall be enforced to the extent permitted by law.9.8Assignment
Customer may not, without eBridge 's prior written consent assign or transfer this Agreement, or any of its rights or obligations under this Agreement to any third person. eBridge may assign this Agreement to any third person without the consent of Customer provided that eBridge shall notify Customer in writing of any such assignment. Any purported assignment by Customer is null and void and of no effect. eBridge may delegate to affiliates of eBridge and to agents, suppliers and contractors of eBridge any of the obligations herein imposed upon eBridge and eBridge may disclose to any such persons any information required by them to perform the d uties so delegated to them, but such delegation shall not relieve eBridge of its performance obligations hereunder.9.9 Waiver
No modification, addition to or waiver of any rights, obligations or defaults shall be effective unless in writing and signed by the party against whom the same is sought to be enforced. One or more waivers of any right, obligation or default shall not be construed as a waiver of any subsequent right, obligation or default. No delay or failure of eBridge in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder.9.10Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.9.11Language
The parties hereto have requested that this Agreement be drafted in English. Les parties aux présentes ont exigé que le présent contrat soit rédigé en langue anglaise.