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HomeMy WebLinkAboutIntelex Technologies Inc; 2015-07-29; (2)fNTELEX Intelex Technologies Inc. Professional Services Agreement THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made as of tjie*^^^ dav o^-Juiy , 2015 (the "Effective Date") between Intelex Technologies Inc., a Canadian corporation having offices at 905 King Street West, Suite 600, Toronto, Ontario, Canada, M6K 3G9 ("Intelex") and The City of Carlsbad, a municipality having registered offices at 799 Pine Ave., Carlsbad, CA 92008, United States of America ("Client"). WHEREAS, Intelex provides installation, implementation and configuration services related to the Software. WHEREAS wishes to obtain such services NOW THEREFORE, in consideration of the mutual covenants, promises and obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acl<nowledged, the Parties hereto agree as follows: 1. DEFINITIONS 1.1 "Applicable Taxes" means any applicable sales, use, consumption, goods and services and value-added taxes imposed by the appropriate governments arising out of the provision of Services, except taxes imposed on Intelex's income. 1.2 "Confidential Information" means information that is confidential and otherwise proprietary that is disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"). Subject to the exceptions listed below. Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential or confirmed as confidential in writing within thirty (30) days of disclosure, as well as Deliverables, Worl< Product and any information that, due to the circumstances under which it is disclosed, a reasonable person would infer as confidential. Confidential Information does not include any information that: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party's lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (d) is independently developed by the Receiving Party by employees or agents without access to the Disclosing Party's Confidential Information; or (e) required to be disclosed pursuant to applicable federal, state or local regulation, statute or law. 1.3 "Deliverables" means the deliverables specified in the applicable SOW. 1.4 "Expenses" means the travel, accommodation, lodging and out-of-pocket expenses reasonably incurred by Intelex in the course of providing the Services. 1.5 "Services" means the professional services provided by Intelex to Client as described in the applicable SOW and any applicable change order 1.6 "Service Fees" means the fees for the Services as set forth in the applicable SOW. 1.7 "SOW" means a statement of work signed by both parties, referencing this Agreement and incorporated into this Agreement. 1.8 "Work Product" means any work product created in connection with this Agreement, including Deliverables, software, documentation, training or educational materials, inventions, innovations and developments. 2. SCOPE OF SERVICES 2.1 Order of Precedence: The terms of this Agreement shall govern the Services provided under the SOWs. In the event of any conflict or inconsistency between the Agreement and the applicable SOW, the terms of this Agreement will prevail unless otherwise explicitly stated in the SOW that the SOW shall prevail over this Agreement. 11ntelex FGRM-FIN-OOS VI INTELEX Intelex Technologies Inc. Professional Services Agreement 2.2 Provision of Services: Intelex, in its sole discretion will determine the manner and means by which it will provide the Services. Intelex may sub-contract the whole or any part of its obligations under this Agreement or any applicable SOW, but Intelex will remain responsible for the performance of all its sub-contractors. 2.3 Schedules and Delivery Dates: The dates related to performance described in a SOW are intended as estimates only, and are not binding completion dates. Adjustments to these estimates may be necessary for changes in scope or circumstances beyond Intelex's control. 2.4 Licensing of Intelex Software: Except for the Deliverables, Intelex does not provide Client a license or access to any Intelex software programs or products under this Agreement. Client may acquire licenses or access to other Intelex software and products under the terms of a separate agreement and on payment of any applicable fees. 2.5 Co-operation: Both parties shall co-operate in good faith to compiete the Services in a timely and professional manner. Client acknowledges that failure to adhere to schedules or complete tasks within Client's control, or failure to provide timely access to facilities, equipment, technology or complete and accurate information may delay completion of the Services and Intelex shall not be liable for any delays or inability to complete the Services to the extent caused by Client's non-compliance with this section. 2.6 Right to Perform Services for Others: Nothing in this Agreement shall restrict or limit Intelex from providing services similar to the Services to any other third party, provided that Intelex complies with the confidentiality provisions of this Agreement. SERVICE FEES, INVOICING AND PAYMENT 3.1 Service Fees will be set out in the applicable SOW. Client agrees to pay all Service Fees, Expenses and Applicable Taxes related to the applicable SOW. 3.2 Service Fees, Expenses and Applicable Taxes will be invoiced as set forth in the applicable SOW. Intelex may, at its option, suspend ongoing work on any SOW until all overdue invoices under this Agreement have been paid in full. 3.3 If invoices are required to be submitted against a purchase order, Client is responsible for issuing such purchase order prior to the commencement of the Services. The parties agree that any purchase order terms and conditions which purport to amend or modify the terms of this Agreement, or which conflict with this Agreement shall have no force and effect. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP 4.1 Intellectual Property Rights: Each party will retain all ownership to its previously existing intellectual property (including but not limited to trademarks, copyrights, patent rights, trade secrets, confidential or proprietary information, techniques, methods, software, technology, plans, designs and business processes). Intelex will retain all ownership rights to any Work Product, excluding any of Client's previously existing intellectual property contained in the Work Product. 4.2 License Granted to Client: Intelex grants Client a perpetual, global, non-exclusive, non- transferable license to the Work Product or other Intelex-owned intellectual property that may be provided under a SOW for the sole purpose of allowing Client to make use of the Services for its own internal business purposes in the manner contemplated in the SOW. Such license is subject to Client's payment of all fees and related expenses under the related SOW. 2lntelex FORM-FIN-006 VI I WLM [3 I Ea Intelex Technologies Inc. I 1^1 I Cl //m Professional Services Agreement 5. LIMITED WARRANTY 5.1 Limited Warranty: Intelex warrants that Services provided under this Agreement will be performed using reasonable skill and care consistent with generally accepted practices in the software industry. 5.2 Disclaimer: Other than the express warranty set out in sub-section 5.1 above, Intelex disclaims all other express, implied or statutory warranties, including but not limited to warranties related to title, compatibility with software or hardware, non-existence of errors, non-existence of viruses, merchantability or fitness for a particular purpose. 5.3 Warranty Remedy: Client's sole and exclusive remedy with respect to the Services Warranty will be that Intelex shall correct the breach of the Services Warranty within a commercially reasonable period of time, provided that Client reports any warranty claims to Intelex within thirty (30) days of the delivery of the related Services. Any modification ofthe Services not authorized by Intelex will cause immediate termination ofthe Services Warranty with respect to the modified Services. 6. LIMITATION OF LIABILITY 6.1 In no event shall Intelex be liable or obligated to Client, or to any other persons for any indirect, incidental, special, consequential, aggravated, exemplary, or punitive damages; any lost sales, lost revenue, lost profits, lost data, or re-procurement amount, arising out of the use of or inability to use any Deliverable, or from breach of this Agreement. The liabilities limited by this sub-section 6.1 apply (i) regardless ofthe form of action, whether in contract, tort, strict product liability, or otherwise; (ii) even if Intelex is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (iii) even if Licensee's remedies fail of their essential purpose. If applicable law limits the application of the provisions of this sub-section 6.1, Intelex's liability will be limited to the maximum extent permissible by such law. 6.2 Limitation of Liability. In no event shall Intelex's liability under or in connection with this Agreement or any SOW exceed the amount of fees paid by Client under the applicable or most closely related SOW. The limitation in this sub-section 6.2 apply to all liability (i) whether for breach, failure of essential purpose of any remedy contained in this Agreement, termination or any other act, omission or event related in any way to the Agreement or to the use of the Software, and (ii) regardless of form of action, whether in contract, tort, equity, or otherwise Notwithstanding the foregoing, the limitation in this sub-section 6.26.2 does not apply to liability related to bodily harm or injury and damage to physical property to the extent prohibited by law of the jurisdiction. 6.3 Client agrees that Intelex would not have entered into this Agreement without this section on Limitation of Liability being included in this Agreement. 7. CONFIDENTIALITY 7.1 Confidentiality: Each party agrees for the term of this Agreement for five (5) years after its termination, to hold the other party's Confidential Information in strict confidence, not to disclose such Confidential Information to third parties (other than sub-contractors who are bound by appropriate obligations of confidentiality, and only to the extent required) unless authorized to do so by the Disclosing Party, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. 7.2 Each party agrees to take reasonable steps to protect the other party's Confidential Information to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement. 7.3 The foregoing prohibition on disclosure of Confidential Information shall not apply to the extent Confidential Information is required to be disclosed by the Receiving Party as a aintelex FORM-FIN-006 VI INTELEX Intelex Technologies Inc. Professional Services Agreement matter of law or by order of a court or by a regulatory body, provided that the Receiving Party promptly notifies the Disclosing Party so that it may seek an appropriate protective order or waive compliance with this section. 8. TERM AND TERMINATION 8.1 Term: The term of this Agreement shall commence on the Effective Date and will continue until terminated in accordance with the terms herein. 8.2 Termination for Convenience: Either party may terminate this Agreement or any individual SOW for convenience by providing at least 30 days advance written notice. 8.3 Termination for Default: Either party may terminate this Agreement for default ifthe other party commits a material breach of the Agreement and does not cure such breach within ten (10) days ofthe non-breaching party's notification ofthe breach. 8.4 Effect of Termination: (a) Upon termination of this Agreement, any SOW that is not expressly terminated at the same time shall continue to be governed by this Agreement as if the Agreement had not been terminated. (b) Upon termination of a SOW, Intelex may immediately invoice Client for all applicable Services Fees, Expenses incurred and Applicable Taxes related to the Services provided by Intelex up to the date of termination and Client shall pay such invoices in accordance with the terms of this Agreement. 8.5 Surviving Sections: Notwithstanding the termination or expiration of this Agreement, any obligation that either party incurred prior to the termination (including without limitation, Client's obligation to pay for Services Fees, Expenses and Applicable Taxes) and other provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement shall continue in full force. 9. GENERAL PROVISIONS 9.1 Press Release. Client agrees Intelex may use and disclose Client's name and the nature of this Agreement and associated SOWs in Intelex public press releases and marketing materials. 9.2 Independent Contractors: Intelex and Client are independent contractors. Neither Intelex nor Client shall have any authority to bind the other in any manner. 9.3 Waiver. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No waiver of any provision of this Agreement is binding on either party unless set out in a mutually signed written waiver. 9.4 Entire Agreement. This Agreement, together with each written SOW sets forth the entire agreement between Intelex and Client constitutes the sole and entire understanding between the parties with respect to the subject matter hereof and may not be altered or amended except in writing signed by both parties. This Agreement supersedes all prior communications or agreements written or oral, and is intended as a complete and exclusive statement of the terms of the Agreement between the parties. 9.5 This Agreement may not be assigned by either Party without the other Party's written consent, which shall not be unreasonably withheld or delayed, however Intelex may withhold consent if Intelex considers, at its sole discretion, such assignment not to be in Intelex's interest. Notwithstanding the foregoing, Intelex may assign this Agreement to any successor to Intelex (including but not limited to, by way merger consolidation or 4lntelex FORM-FIN-006 VI INTELEX Intelex Technologies Inc. Professional Services Agreement sale of all or substantially all of Intelex's stock or assets) without the Client's consent Any attempted assignment, delegation, or transfer in violation of this Section shall be void and of no force or effect. Subject to the provisions of this Section, this Agreement shall inure to the benefit of and be binding upon the Parties and the respective successors and assigns, if any, ofthe Parties. 9.6 This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to any conflict-of-law rules. The courts located in the State of California, USA shall have the exclusive jurisdiction to deal with all matters arising pursuant to this Agreement. The United Nations Convention for the International Sale of Goods will not apply to this Agreement 9.7 Force IVlajeure. Except for payment obligations, neither party shall be liable to the other or in breach of this Agreement due to any failure or delay in performance of its obligations to the extent the failure or delay arises (and only for the duration that the affected party is precluded from performing) as a result of acts of God, fire, disaster, explosion, vandalism, adverse weather conditions, labor disputes or disruptions, epidemics, wars, national emergencies, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause that is beyond the reasonable control of that party. 9.8 Severability. Should any provision of this Agreement be deemed contrary to applicable law or unenforceable by any court of competent jurisdiction, the provision shall be considered severed from this Agreement but all remaining provisions shall continue in full force. 9.9 Export Laws. Services may be subject to export control laws of the United States, Canada, or other applicable countries. Client agrees to comply strictly with all applicable export regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Services. 9.10 Third Party Rights. No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person or entity who is not a party to this Agreement. 9.11 Any notice, demand or other communication required or permitted to be given to either Party to this Agreement in this Agreement shall be delivered or sent to the addresses set out below: If to Intelex: Intelex Technologies Inc. 905 King Street West, Suite 600 Toronto, Ontario, Canada, M6K 3G9 Attention: Chief Financial Officer Facsimile: (416)599-6867 If to the Client: City of Carlsbad 5lntelex FORM-FIN-006 VI INTELEX Intelex Technologies Inc. Professional Services Agreement 799 Pine Ave., Ste. 200 Carlsbad, CA 92008 Attention: Parks & Recreation Director Facsimile: (760) 434-5088 9.12 This Agreement may be executed in one or more counterparts and facsimile signatures shall be sufficient to indicate acceptance by the parties, each of which shall be original and all of which shall constitute one and the same instrument named below. (Remainder of Page Intentionally Left Blanl<, Signatures Follow) eintelex FORM-FIN-006 VI INTELEX Intelex Technologies Inc. Professional Services Agreement IN WITNESS WHEREOF the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first set out above. I have wltntiiiei th» signature af after prasentaikx) of satisfactory ldenlWcattonat*Yr^<^-^lff .Ont, this <;z^*^dayof \^l^,20 6' Jonathan Blake iVIcClung Barrister and Solicitor Notary Public and Commissioner of Oaths in and for the Province of Ontario. iViy Commission is of unlimited duration, No legal advice given. EAL ICOTARY INC. 25 ADELAIDE ST. EAST. TORONTO ON MSC3A1 (88 3)922-7325 www.i«>jaKi^lHHtat7:eem INTELEX TECHNOLOGIES INC. Name/Jaso*?Titzpatrick Title: VP Sales, Government & Healthcare (Ttie individual executing ttiis Agreement and ttie instruments referenced in it on betialf of Intelex Tectinologies Inc. represents and warrants that tie/stie tias ttie legal power, rigtit and actual authority to bind Intelex Technologies Inc. to the terms and conditions of this Agreement.) CITY OF CARLSBAD, a municipal corporation of the State of California By: Title: Parks & Recreation Director (The individual executing this Agreement and the instruments referenced in it on behalfof City represents and warrants that he/she has the legal power, right and actual authority to bind City to the terms and conditions of this Agreement.) APPROVED AS TO FORM: CELIA A. BREyVER,-eity.Attorney ZIntelex FORM-FIN-006 VI