Professional Services Agreement
THE FOLLOWING TRANZTEC SOLUTIONS, INC (“TRANZTEC”) PROFESSIONAL SERVICES AGREEMENT (the “PSA”) WILL BE LEGALLY BINDING ON THE CUSTOMER UPON EXECUTION OF AN APPLICABLE STATEMENT OF WORK OR SUBCRIPTION ORDER FORM FOR PROFESSIONAL SERVICES.
CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TRANZTEC PROFESSIONAL SERVICES AGREEMENT BEFORE EXECUTING THE APPLICABLE SOW OR SUBCRIPTION ORDER FORM.
If the hyperlink location of this Professional Services Agreement is referenced in a Statement of Work (“SOW”) signed by both an authorized representative of the procuring party (the “Customer”) and Tranztec Solutions, Inc. (“Tranztec”); or is referenced in the Subscription Order Form signed by Customer, then the Professional Services procured by Customer shall be subject solely to the terms and conditions of this PSA and not the Main Terms (as defined below).
In addition to any Tranztec Professional Services provided to Customer pursuant to this PSA, Tranztec may also provide Customer with access to its Software-as-a-Service application (the “Service”) if the Customer has entered into a License Agreement, Subscription Services Agreement or similar agreement (or in the absence of any such agreement under the then current version of Tranztec Terms of Service Agreement ), such agreement is the “Main Terms”).
1. SCOPE OF SERVICES
2.1 Subject to the terms and conditions of this PSA, Tranztec will provide Customer with Professional Services as set forth in applicable statements of work executed by Tranztec and Customer and/or Subscription Order Forms executed by Customer (each, a “Statement of Work” or “SOW”). From time to time, the parties may enter into Statement of Work that specify the professional services to be provided to Customer hereunder (the “Professional Services”). Each Statement of Work will include, at a minimum: (i) a description of the Professional Services and any work product or other deliverables and/or training materials to be developed and/or provided to Customer (each, a “Deliverable”); (ii) the scope of Professional Services; and (iii) the applicable fees and payment terms for such Professional Services, if not elsewhere specified. All Statements of Work shall be deemed part of and subject to this PSA.
2. CHANGE MANAGEMENT PROCESS
3.1 In the event that Customer or Tranztec requests a change in any of the specifications, requirements, deliverables, or scope (including drawings and designs) of the Professional Services described in any Statement of Work, the party seeking the change shall propose the applicable changes by written notice. Within forty-eight (48) hours of receipt of the written notice, each party’s project leads shall meet via telephone conference, to discuss and agree upon the proposed changes. Tranztec will prepare a change order describing the proposed changes to the Statement of Work and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this PSA. In the event that the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management officers for resolution.
3. PROJECT MATERIALS
3.1 Deliverables. Tranztec shall own all rights, title and interest in and to the Deliverables (excluding any Customer Property), and related intellectual property rights. Deliverables are Tranztec Confidential Information and Customer may not reverse engineer, decompile, disassemble, translate, copy, reproduce, display, publish, create derivative works of, assign, sell, lease, rent, license, sublicense or grant a security interest in all or any portion of the Deliverables. Subject to terms and conditions of this PSA, and during the Term, Tranztec hereby provides Customer with a limited, non-exclusive, non-transferable (except in connection with an assignment under Section 10.6 of the PSA) and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the applicable Service.
3.2 Tools. Notwithstanding any other provision of this PSA: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Tranztec to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools. Tools are Tranztec Confidential Information.
3.3 Customer Property. Customer shall own all rights, title and interest in and to any Customer Property. “Customer Property” means any Customer technology, or Customer-specific business processes, specifically as designated as customer-owned property in a Statement of Work. Tranztec shall have the right to use any such Customer Property solely for the purpose of providing the Professional Services to Customer hereunder.
4.1 Warranty. Tranztec warrants that (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Professional Services has the knowledge, skills, experience, qualifications, and resources reasonably necessary to provide and perform the Professional Services in accordance with the applicable SOW; and (b) the Professional Services will be performed for and delivered to Customer in a good, diligent, workmanlike manner in accordance with industry standards, laws and governmental regulations applicable to the performance of such services. Tranztec’s ability to successfully perform hereunder is dependent upon Customer’s provision of timely information, access to resources, and participation. If through no fault or delay of Customer the Professional Services do not conform to the foregoing warranty, and Customer notifies Tranztec within sixty (60) days of Tranztec’s delivery of the Professional Services, Customer’s sole and exclusive remedy is to have Tranztec re-perform the non-conforming portions of the Professional Services.
4.2 Disclaimer. EXCEPT AS STATED IN SECTION 4.1 ABOVE, TRANZTEC DOES NOT REPRESENT THAT THE CUSTOMER’S USE OF THE PROFESSIONAL SERVICES, DELIVERABLES, AND/OR TOOLS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE PROFFESSIONAL SERVICES, DELIVERABLES, AND/OR TOOLS WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE PROFESSIONAL SERVICES, DELIVERABLES AND/OR TOOLS WILL BE CORRECTED OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 4.1 ABOVE ARE THE SOLE WARRANTIES AND REMEDIES FOR CUSTOMER AND EXCLUSIVE OBLIGATIONS OF TRANZTEC RELATED TO THE PROFESSIONAL SERVICES, DELIVERABLES AND/OR TOOLS TO BE PROVIDED FOR AND DELIVERED TO CUSTOMER PURSUANT TO THIS PSA AND ANY STATEMENT OF WORK HEREUNDER. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. EXCEPT AS PROVIDED HEREIN, THE PROFESSIONAL SERVICES, DELIVERABLES, AND/OR TOOLS PROVIDED TO CUSTOMER ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ARE FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PROFESSIONAL SERVICES, DELIVERABLES, AND/OR TOOLS OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
5. PAYMENT PROVISIONS
5.1 Fees and Payment. Fees and expenses for each applicable project shall be set forth in the applicable Statement of Work. Customer shall pay the fees and expenses as specified in the applicable Statement of Work.
5.2 Taxes. Tranztec fees do not include any local, state, federal or foreign taxes, VAT, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this PSA, excluding only taxes based on Tranztec’s income. If Tranztec has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Tranztec with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. TERM AND TERMINATION
6.1 Term. This PSA shall commence on the date signed by both parties and shall continue in effect until terminated as provided herein. Each Statement of Work shall commence on the date it is last signed, and shall expire upon completion of the project set forth in the applicable Statement of Work, or as otherwise set forth in the applicable SOW. Once signed by both parties, a Statement of Work shall be non-cancellable, except as otherwise explicitly stated in such Statement of Work. Sections 4.2, 5 and 7 through 10.7 shall survive termination of this PSA.
6.2 Termination. This PSA will terminate automatically when Customer’s subscription to Tranztec’s web-based services terminates or expires. Either party may terminate this PSA for convenience upon written notice in the event there are no active Statement of Works hereunder. Upon termination or expiration of this PSA, Customer shall have no rights to continue use of the Deliverables.
7. LIMITATIONS OF LIABILITY
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF TRANZTEC) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS PSA, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES ACTUALLY PAID BY CUSTOMER UNDER THIS PSA DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S BREACH OF CONFIDENTIALITY OR WITH REGARDS TO AMOUNTS DUE BY CUSTOMER UNDER THIS PSA OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
8. INDEPENDENT CONTRACTOR
Tranztec’s ’s relationship with Customer pursuant to this PSA will be that of an independent contractor. Neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other. Nothing in this PSA shall be deemed to create any agency, partnership or joint venture relationship between the parties. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this PSA. Tranztec reserves the right to use third-parties (who are under a covenant of confidentiality with Tranztec ), including, but not limited to, offshore subcontractors to assist with the Services, including, without limitation, any data migration, configuration, implementation and custom code development processes.
9.1 Definition. “Confidential Information” means the terms of this PSA including the pricing and other terms reflected in all SOWs, Tranztec technology and technical information, product designs, business and marketing plans and business processes, and all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is clearly identified in writing or verbally at the time of disclosure as confidential.
9.2 Confidentiality. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party. Receiving Party agrees: (a) to keep confidential all Confidential Information disclosed to it by the Disclosing Party; (b) not to use or disclose the Confidential Information of the Disclosing Party except to the extent necessary to perform its obligations or exercise rights under this PSA, except with the Disclosing Party’s prior written consent; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this PSA. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
10. GENERAL PROVISIONS
- Tranztec will maintain at all times workers’ compensation, comprehensive general liability (including products/ completed operations and contractual liability), automobile, public liability, professional errors and omissions (if applicable), property damage and other appropriate insurance in accordance with good industry practice and in amounts sufficient to cover its activities and obligations under this PSA.
10.2 Non-Impediment. Provided that Tranztec does not use any Customer Property, nothing in this PSA shall be construed as precluding or limiting in any way the right of Tranztec to provide consulting, development, or other services of any kind to any individual or entity (including without limitation performing services or developing materials which are similar to and/or competitive with the Professional Services and/or Deliverables hereunder).
10.3 Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
10.4 Notices. Customer’s email address for communication and notice purposes relating to this PSA shall be set forth on the applicable Statement of Work (or subsequent email addresses as advised by Customer). Customer agrees to accept emails from Tranztec at the above e-mail address. Tranztec may provide any and all notices, statements, and other communications to Customer through either e-mail, posting on the Service (or other electronic transmission) or by mail or express delivery service. Tranztec recommends that the main and billing contact email addresses be group addresses (such as [email protected]) so that notices are reviewed promptly and not delayed due to the absence of one individual. In addition, Tranztec may rely and act on all information and instructions provided to Tranztec from the above-specified e-mail address.
10.5 Force Majeure. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving Tranztec employees), internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Professional Services shall be extended to the extent of any delay resulting from any force majeure event.
10.6 Assignment. This PSA shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this PSA without written consent of the other, except to a related entity or the successor of all or substantially all the assignor’s business or assets to which this PSA relates.
10.7 Non-Solicitation. To the extent permissible by applicable law, during the Term and for a period of twelve (12) months following termination or expiration of the PSA, Customer agrees that it will not directly solicit the engagement or employment of any of the employees or contractors of Tranztec who have been engaged in the provision of Professional Services, without written permission of Tranztec. The foregoing will not apply to persons who have independently responded to general solicitations (such as general newspaper advertisements and internet postings) not targeting such persons.
10.8 Entire Agreement. The parties acknowledge that they may have had previous discussions and/or communications related to the Professional Services that Tranztec may be providing to Customer. This PSA, together with the attached exhibits and/or Statement of Works, expressly revokes and supersedes any and all such prior agreements, statements, understandings and verbal and/or written communications related to the professional services to be provided by Tranztec. The parties expressly disclaim any reliance on any and all prior agreements, understandings, RFPs and RPF responses, preliminary gap analyses, and any other verbal and/or written communications related to the professional services to be provided by Tranztec. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer in connection to this PSA be deemed to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise modify, this PSA, regardless of any failure of Tranztec to object to such terms, provisions, or conditions. No other act, document, usage or custom shall be deemed to amend or modify this PSA unless agreed to in writing signed by a duly authorized representative of both parties. In the event of any inconsistency or conflict between the terms of this PSA, and a Statement of Work, the terms of the Statement of Work shall control with regards to the project described therein.
10.9 General Provisions. This PSA shall be governed in accordance with the laws of the State of Ohio and any controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this PSA (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in Ohio. In the event of any litigation of any controversy or dispute arising out of or in connection with this PSA, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this PSA shall otherwise remain in full force and effect. A waiver of any breach under this PSA should not constitute a waiver of any other breach or future breach. This PSA may be executed in counterparts and/or by facsimile or electronic signature and if so, executed shall be equally binding as an original copy of this PSA executed in ink by both parties.
CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THIS PSA, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS, AND THE PERSON SIGNING THE APPLICABLE ESTIMATE/ORDER FORM OR STATEMENT OF WORK HAS BEEN AUTHORIZED TO DO SO.