Professional Services Agreement

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Professional Services Agreement Contract No.: This Professional Services Agreement (“Agreement”) is entered into between [Automic Entity], a company with its registered office at _______________________ (“Automic”) and _______________________, a company with its registered office at _______________________ (“Customer”) as of the Effective Date. The Agreement shall include (i) any initial order or proposal, and (ii) any subsequent order or proposal; which are accepted in writing by Automic for Services (each hereafter referred to as “Order”), and the terms of this Agreement apply to and are incorporated in any such Order. An Order may include a Statement of Work. WHEREAS, Customer agrees to engage Automic to provide certain Services and any resulting Deliverables as expressly described herein. NOW THEREFORE, the parties for good and valuable consideration and intending to be legally bound agree as follows as of the Effective Date.

1.

Definitions

3.

1.1.

"Deliverables" means the items, including any custom software, data processing techniques, template libraries, software tools, protocols, development schedules and related Documentation, delivered to Customer hereunder.

1.2.

“Direct Damage” means actual realized monetary loss incurred by a party as a direct result of the other party’s breach of its performance obligations under this Agreement.

Automic retains the entire right, title and interest in and to all Deliverables and Intellectual Property developed by Automic (alone or with Customer) or provided by Automic in connection with the performance of the Services. Customer shall obtain a perpetual, non-exclusive, non-transferable and non-assignable license to use such internally as specified by the applicable Order.

1.3.

“Documentation” means any user information or operating instructions, including, but not limited to, training materials and instruction manuals, provided by Automic for use with the Deliverables.

1.4.

“Effective Date” means the calendar date specified as such in the initial Order or the date of final execution of the initial Order, whichever is earlier.

1.5.

“Intellectual Property” means knowledge, ideas, inventions, discoveries, processes, works of authorship, marks, names, concepts, know-how, trade secrets, copyrights, patents all goodwill associated with the foregoing, data-processing techniques, template libraries as well as any and all rights in all of the foregoing throughout the world.

1.6.

“Personnel" means all workers, including Automic’s employees and others employed or contracted by Automic for providing the Services hereunder.

1.7.

"Services" means the services provided, or contracted to be provided, by Automic as defined in the Order, including the Deliverables, and may include, but are not limited to, consulting, implementation, and educational services.

2.

Automic agrees to provide the Services as specified in the Order.

2.2.

Automic has the right to assign Personnel, who are, in its sole judgment, qualified to render the Services. The parties acknowledge that performance by Automic is subject to the disposability of qualified Personnel, and that the time required for the performance cannot be accurately assessed in advance. Consequently, all dates or time quoted with respect to the Services or Deliverables are estimates only and are subject to alteration.

2.3.

4.

Payments

4.1.

Any payments to be made to Automic shall be due, in full, within thirty (30) days of the relevant invoice date, and if not paid when due, shall be subject to interest at the lower of sixteen percent (16%) per annum, or the maximum rate permitted by applicable law, calculated from the date when payment becomes overdue, until the date when payment is received. In the event of any past due payment by Customer, Automic may suspend its performance and shall be entitled to recover from Customer legal fees and other costs of collection.

4.2.

Customer shall pay or reimburse Automic, for all applicable sales, use, value added, services or other taxes by virtue of this Agreement or Order under this Agreement, exclusive of taxes based on the net income of Automic. Unless otherwise agreed in writing, prices do not include sales, use, property (ad valorem), customs, excise, value added, federal, state, provincial, municipal and other similar taxes, duties or fees, all of which are additional and such items are the sole obligation of Customer, regardless of the method of delivery or whether such items were included in any invoice previously sent to Customer by Automic.

5.

Customer Responsibilities

5.1.

Customer shall provide all such information, data, documentation, equipment and other physical and human resources as may be reasonably required by Automic to enable Automic to meet its obligations under this Agreement.

5.2.

Customer shall provide a coordinator familiar with and knowledgeable in the system environment, business model and procedures of Customer, who has authority to make definite decisions relating to the Services.

5.3.

Change Control Process: If there are any changes to the Services to be provided by Automic, the parties must mutually agree to such by amending the respective Order in writing. If the change is caused or originated by the Customer, its employees, representatives or agents, the Customer shall pay for any additional works in accordance with the then current Automic time and materials rates.

6.

Non-Solicitation

Services and Deliverables

2.1.

The Deliverables are either pre-existing content or the outcome of the Services performed by Automic and are not Automic standard software and therefore not covered by any license and/or maintenance agreement concluded between the parties. Customer is solely responsible for safeguarding and maintaining the Deliverables. Should Customer seek assistance with regards to the support of the Deliverables, Customer may purchase Services from Automic on a time and material basis, subject to availability.

2.4.

Automic shall not be liable for any delays or claims of whatsoever nature, which result, directly or indirectly, from the failure by Customer to comply with the reasonable requests of Automic or the breach by Customer of any provision of this Agreement or any license and/or maintenance agreement concluded between the parties.

2.5.

Automic may offer similar Services to other customers.

Intellectual Property

Neither party shall directly or indirectly, solicit, induce to terminate, employment or otherwise entice away, whether directly or indirectly, through another firm or company any employees of the other party and/or enter into any business relationship, on its own behalf or on behalf of a third party, with such other party’s employees or contractors or accept work therefrom or cause or influence any such employees or contractors, now or in the future, to diminish their dealings with the other Party for so long as Customer is actually actively using any Deliverables.

7.

Warranty

7.1.

For a period of six (6) months from delivery of the Services, Automic warrants that all material parts of the Services will substantially (i)

conform to generally accepted industry standards, (ii) be performed in a professional and workmanlike manner, and (iii) conform to the material requirements of an Order. 7.2.

THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED APPLIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7.3.

Customer must report immediately in writing any warranty claims under this Agreement. IN ANY EVENT, CUSTOMER HEREBY WAIVES ANY SUCH CLAIM, WHICH IS NOT MADE IN WRITING WITHIN A PERIOD OF 12 MONTHS FROM DELIVERY OF THE SERVICES.

8.

Limitation of Liability

8.1.

To the maximum extent permitted by applicable law the limitations of liability under this Agreement shall apply, except that nothing in this Agreement shall limit either party’s liability for personal injury or death, breach of confidentiality, breach of license terms or any IP infringement caused by a party’s acts or omissions.

8.2.

Neither party shall under any circumstances be liable towards the other party for any indirect, incidental, consequential, exemplary, special or punitive damages, or any other loss not defined as Direct Damage.

8.3.

The total liability of either party in respect of all claims under this Agreement or otherwise shall not exceed the amount paid for the Services by Customer to Automic.

8.4.

Automic shall not be liable for any acts or omissions of Customer or any third party.

9.

Severability

The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity of the other provisions. The parties shall in such case agree on a valid, legal and enforceable provision, which most closely corresponds to said provision.

10.

Assignment / Subcontracting

Customer shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Automic. Notwithstanding the foregoing, in case of an assignment without Automic’s consent, Customer (as assignor) shall remain jointly and severally responsible with the assignee for the due and punctual fulfillment of any assigned obligation. Automic may assign this Agreement or its rights and/or obligations hereunder upon written notice to Customer. Automic may subcontract any Services under this Agreement provided Automic remains obligated for the due and punctual fulfillment of any subcontracted obligation.

inform the other party of such prior to any required disclosure and cooperate with the other party in seeking any relief sought, and shall only make such limited disclosure of Protected Content as necessary, and not more, to be compliant therewith. The parties shall similarly ensure that their employees and other representatives are legally bound by confidentiality obligations similar to those set out herein. The Deliverables are confidential and proprietary to Automic and the provisions of this Agreement protecting such are in addition to and not in lieu of the protections afforded under applicable law, including patent, trade secret, copyright protection and otherwise.

14.

Term and Termination

14.1. This Agreement is in full force and effect from the Effective Date and will continue until terminated. 14.2. This Agreement and any or all Orders may be terminated by either party upon thirty (30) days written notice if the other party fails to comply with any provision of this Agreement or any Order and does not cure such non-compliance within the thirty (30) day notice period. 14.3. Any provision that is intended to continue after termination shall not be affected by the termination of this Agreement.

15.

Governing Law, Jurisdiction & Arbitration

15.1. The laws of the country and province/state in which the respective contracting Automic entity is incorporated shall govern this Agreement unless otherwise set out under section 15.2. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. 15.2. Any action or claim brought in connection with this Agreement shall be brought only in the courts having jurisdiction for this Automic entity, except that, without limiting the application of the arbitration clause below, i) in the United Kingdom, English Law governs this Agreement and the parties will be subject to the to the jurisdiction of the English courts, ii) in the United States, the laws of the State of Washington govern this Agreement and the parties will be subject to the jurisdiction of the state or federal courts having jurisdiction for Seattle, Washington, iii) in Canada, the laws of the Province of Ontario govern this Agreement and the parties will be subject to the jurisdiction of the courts having jurisdiction for Toronto, Ontario, and iv) in Hong Kong and in the United Arab Emirates, English law governs this Agreement and the arbitration clause shall apply.

Unless otherwise agreed hereunder, failure by either party to assert any of its rights under this Agreement shall not be construed as a waiver thereof.

15.3. When the Customer is incorporated neither in the European Union, Switzerland, Norway, the United States, Canada, Australia nor in Singapore, the parties agree that any dispute arising out of or relating to this Agreement which cannot be resolved by attempts made in good faith by and between the parties, shall be submitted to the International Court of Arbitration of the International Chamber of Commerce for final settlement in accordance with its Rules of Arbitration as in force when the dispute arises. The place of arbitration shall be Seattle, Washington, if the Customer is incorporated in the Americas; and Vienna, Austria, in all other cases. The procedure shall be conducted in the English language.

12.

16.

11.

Waiver

Force Majeure

Each party shall be excused from performance and shall not be liable for any delay caused by force majeure only for so long as such condition prevails. These contingencies include, but are not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure or delay in transportation, changes of law or any other act of any government affecting the performance hereunder, accident, fire, explosion, flood, severe weather or other acts of God.

13.

Confidentiality

Both parties agree to protect the confidential and/or proprietary information and materials (“Protected Content”) of the other party and not to distribute, disclose, or allow access to Protected Content, in whole or in part, to any other entity or person, without the prior written consent of the other party. The parties agree not to use Protected Content, except as expressly authorized by this Agreement. If a party is required by law, regulation or court order to disclose Protected Content, disclosing party shall promptly

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Entire Agreement

This Agreement and any documents expressly referenced or incorporated herein, constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. This Agreement supersedes and replaces any previous agreement, oral or in writing, between Automic and Customer. No amendments or modifications of this Agreement or any Order may be made except in writing and signed by both parties. Where permitted by applicable law, this Agreement or any Order may be executed, transmitted and/or stored in electronic form. In the event of any conflict between the terms of this Agreement and the terms of any Order, the terms of the Order shall prevail.

17.

Specific Performance / Injunctive Relief

In the event of any violation of the rights of Automic as to the Deliverables by Customer, in addition to any rights or remedies otherwise expressly provided by this Agreement, Automic shall be entitled to injunctive relief and/or specific enforcement against the Customer from any court having jurisdiction.

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Signature Section – Only Where Executed In Paper Form. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.

[Customer]

[Automic]

Name, Title

Name, Title

Signature

Signature

Date

Date

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