Professional Services Agreement - ARIS Corp. and Gates Rubber Co.
ARIS CORPORATION PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is between ARIS
Corporation ("ARIS") and The Gates Rubber Company, ("Client").
1. SERVICES
ARIS Corporation will provide to Client the Services specified in ARIS work
orders or Client purchase orders from time to time made a part of this
Agreement. To the extent that the terms and conditions on the back of any
ARIS work order or any customer purchase order conflict with or are
inconsistent with the terms and conditions of the Agreement, the terms and
conditions of this Agreement shall control.
2. FEES FOR SERVICES AND TERMINATION
Unless otherwise specified in the applicable Work Order, Services shall be
provided to Client on a time and material basis ("T&M"). Rates must be
specified on the attached Rate Structure or on a standard Work Order. If a
dollar limit is stated in the applicable Work Order, the limit shall be
deemed an estimate for Client's budgeting and ARIS' resource scheduling
purposes; after the limit is expended, ARIS will continue to provide the
Services on a T&M basis if a Work Order for continuation of the Services is
signed by the parties. Unless otherwise stated in a Work Order, any Work
Order may be terminated by providing to ARIS 14 days written notice of such
termination.
3. INCIDENTAL EXPENSES
Unless otherwise stated in the Work Order, Client shall reimburse ARIS for
reasonable travel, communications, and out-of-pocket expenses incurred in
conjunction with the services.
4. INVOICING AND PAYMENT
ARIS shall invoice Client semi-monthly, unless otherwise expressly specified
in a Work Order. Charges shall be payable thirty (30) days from the date of
invoice and shall be deemed overdue if they remain unpaid thereafter. All
overdue invoices are subject to an interest charge of 1.5% per month.
5. TAXES
The charges do not include taxes. If ARIS is required to pay any federal,
state, or local taxes based on the Services provided under this Agreement,
the taxes shall be billed and paid by Client; this shall not apply to taxes
based on ARIS' income.
6. TERM
This Agreement shall commence on its Effective Date and terminate one year
later. This Agreement may be renewed for additional one (1) year terms by
mutual written agreement of the parties. Client may terminate this Agreement
at any time by providing ARIS with at least 30 days written notice. Any work
order or purchase order outstanding at the time of termination shall
continue to be governed by this Agreement as if it had not been terminated.
Upon termination, ARIS shall deliver to Client: all documents, plans, data,
drawings or papers originally provided by Client to ARIS which relate in any
way to the Services and all work product produced for Client, whether
complete or in process.
7. WARRANTY
ARIS warrants that the Services will be performed consistent with generally
accepted industry standards.
8. LIMITATIONS ON WARRANTY
CLIENT MUST REPORT ANY DEFICIENCIES IN THE SERVICES TO ARIS IN WRITING
WITHIN THIRTY (30) DAYS OF COMPLETION OF THE SERVICES IN ORDER TO RECEIVE
WARRANTY REMEDIES; PROVIDED, HOWEVER, THAT THE WARRANTY PERIOD SHALL BE
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EXTENDED TO ONE HUNDRED AND EIGHTY (180) DAYS OF COMPLETION OF THE SERVICES
FOR ANY LATENT DEFICIENCIES WHICH ARE NOT REASONABLY DISCOVERABLE WITHIN
SUCH THIRTY (30) DAY PERIOD. THE WARRANTY HEREIN IS EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS SET
FORTH IN PARAGRAPH 9 OF THIS AGREEMENT.
9. EXCLUSIVE REMEDY
For any breach of the above warranty, Client's exclusive remedy, and ARIS'
entire liability, shall be the reperformance of the Services. If ARIS is
unable to reperform the Services as warranted, Client shall be entitled to
recover the fees paid to ARIS for the deficient services. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING
FROM THEIR PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT, INCLUDING BUT
NOT LIMITED TO CLAIMS FOR LOST PROFITS OR OTHER ECONOMIC DAMAGES.
10. RELATIONSHIP BETWEEN THE PARTIES
ARIS is an independent contractor; nothing in this Agreement shall be
construed to create a partnership, joint venture, or agency relationship
between the parties. Each party will be solely responsible for payment of
all compensation owed to its employees, as well as employment related taxes.
Each party will maintain appropriate worker's compensation for its employees
as well as general liability insurance.
11. AUTHORITY TO ENTER INTO AGREEMENT
Each party to this Agreement has the authority to enter into and form this
Agreement. The individuals signing the Agreement have the authority to act
as agents of their respective organizations. Each party acknowledges that
they have read this Agreement and will abide by it.
12. FORCE MAJEURE
Neither party will be considered to be in default of this agreement as a
result of events beyond their reasonable control. For purposes of this
Agreement, such acts shall include, but are not limited to, acts of God,
catastrophe, or other "force majeure" events beyond the parties' reasonable
control. If any delay in performance due to force majeure continues for a
period of thirty (30) days or more, either party shall have the right to
terminate this Agreement immediately upon written notice.
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13. ASSIGNMENT OF CONTRACT
The Client may not assign the Agreement or its responsibility for payments
to any organization, except to a successor in interest, without written
approval by ARIS. ARIS may not assign its responsibilities for performance
under the Agreement to any organization without written approval of the
Client.
14. HOLD HARMLESS; INDEMNITY
Client asserts it possesses all the rights and interests in the licensed
software necessary to enter into this agreement, and shall indemnify and
hold ARIS, its agents and employees harmless from any loss, damage or
liability for infringement of any United States patent right or copyright
with respect to the use of the licensed software; provided that Client is
notified in writing within ten calendar days of suit or claim against ARIS,
that ARIS permits Client to defend, compromise or settle said claim of
infringement and give Client all available information, assistance and
authority to enable Client to do so, provided ARIS fully observes all terms
and conditions of this Agreement.
15. CONFIDENTIALITY AND NON-DISCLOSURE
Except as legally required, the parties agree that neither party shall
directly or indirectly disclose or use any Confidential Information without
prior written permission from the other party for a period of five (5) years
from the date of any termination or expiration of this Agreement.
"Confidential Information" means any type of confidential or proprietary
information or material disclosed to or known by the recipient of such
information ("Recipient") as a consequence of or through its relationship
with the party disclosing such information, and consisting of information
conceived, originated, discovered, or developed in whole or in part by
Recipient, which is not part of the public domain or otherwise generally
available to the Recipient from independent sources, including but not
limited to information which relates to research, development, trade
secrets, know-how, inventions, technical data, hardware, software, source
codes, object codes, manufacture, purchasing, accounting, engineering,
marketing, merchandising and selling, business labs or strategies, and
information entrusted by third parties to the party disclosing such
information.
16. NONSOLICITATION OF EMPLOYEES
During the period that this Agreement is in effect and for a period of six
(6) months after termination or expiration thereof, each party agrees not to
solicit for employment any technical or professional employees of the other
party assigned to work on the Project without the prior written approval of
the other party.
17. INDEMNITY
Each party agrees to defend, indemnify and hold harmless the other from and
against any and all losses or injuries that either may incur (both personal
and property, including deaths) as a result of the other party's negligence,
intentional acts, or its performance under this Agreement. The provisions of
this indemnification, however, shall not apply to losses or injuries
incurred by one party which arise out of such party's, its employees' or
agents' sole negligence.
18. SURVIVAL OF RIGHTS
The rights and responsibilities of sections 14, 15, and 16 shall survive the
termination of this Agreement.
19. SEVERABILITY
All provisions of this Agreement are severable and no provision hereof shall
be affected by the invalidity of any other such provision.
20. GOVERNING LAW; ATTORNEY'S FEES; VENUE
In the event of a dispute over this Agreement, the prevailing party shall
recover its reasonable attorneys' fees and costs from the breaching party.
The parties agree that any dispute arising out of or relating to this
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Agreement shall be resolved in accordance with the procedures specified in
this section, which shall be the sole and exclusive procedures for the
resolution of disputes. The parties shall attempt in good faith to resolve
any disputes arising out of or relating to this Agreement promptly by
negotiation between executives who have the authority to settle the
controversy. If the matter has not been resolved within sixty (60) days of
the party's request for negotiation, either party may initiate mediation by
notifying the other party in writing. The decision to mediate shall be
binding upon the parties. Mediation shall take place under the then current
Center for Public Resources ("CPR") Model Procedure for Mediation of
Business Disputes. The neutral third party will be selected from the CPR
Panels of Neutrals, with the assistance of CPR. Mediation shall take place
in King County, Washington under Washington law, if Client initiates the
request for mediation and shall take place in Denver, Colorado, under
Colorado law if ARIS initiates the request for mediation. Unless the parties
otherwise agree in writing, if the matter has not been resolved by mediation
within sixty (60) days of the decision to mediate, either party may initiate
litigation upon ten (10) days written notice to the other party.
21. INSURANCE
During the term of this Agreement, ARIS shall maintain at its expense at
least the following insurance, covering activities performed under and
contractual obligations undertaken in this Agreement:
Coverage Limits
Worker Compensation Statutory
Employer's Liability $1,000,000 each
occurrence
Public Liability $1,000,000 combined
(bodily injury and property single limit
damage)
Automobile Liability $1,000,000 combined
(bodily injury and property single limit
damage)
ARIS shall provide Client with a certificate of insurance from its insurance
company or companies demonstrating the coverages required hereunder and
naming Client as an additional insured.
22. OWNERSHIP OF MATERIALS
All data, maps, plans, specifications, drawings or other Client-furnished
property shall remain the exclusive property of Client. ARIS agrees that
such property will be used for no purpose other than for work for Client
under this Agreement. ARIS shall sign and deliver a written itemized receipt
for all such property and shall be responsible for its safekeeping. Upon
conclusion of the Services hereunder, such property and copies thereof shall
be returned to Client.
Client shall have complete and unrestricted right of ownership to all
inventions, materials, programs and documents prepared by ARIS in connection
with its performance of the Services or prepared by Client in connection
with this project. Said inventions, materials, programs and documents are to
be the property of Client, whether patented or patentable, and are not to be
used for the benefit of ARIS or any third party without the prior written
consent of Client. Any work performed hereunder is considered Confidential
Information as described in this Agreement. This section shall survive the
termination of this Agreement.
23. PUBLICITY
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No media releases, public announcements and public disclosures by ARIS or
its respective employees or agents relating to this Agreement and the
Services hereunder shall be issued by ARIS without the prior written
approval of Client. Any inquiry which ARIS may receive from third parties
concerning this Agreement will be referred to Client for response.
Any technical paper, article, publication, or announcement of advances
generated in connection with the Services under this Agreement, during the
period of performance of the Agreement or in the future, shall require
Clients' prior written approval.
24. NOTICES
All notices given hereunder shall be in writing and shall be delivered in
person or sent certified or registered mail, return receipt requested, with
postage prepaid, to the parties at the following addresses (or to such other
or further addresses as the parties may hereafter designate by like notice
similarly sent):
ARIS: ARIS Corporation
6720 Fort Dent Way, Suite 250
Seattle, WA 98188-2555
Attn: General Counsel
Client: The Gates Rubber Company
990 S. Broadway
Denver, CO 80209
Attention: John Alevras
All notices given in accordance with the foregoing shall be deemed given
when delivered in person, or three (3) days after being deposited in the
United States mail in accordance with the foregoing.
25. PROVISION OF SERVICES
The days and periods during which ARIS shall perform the Services shall be
reasonably agreed between ARIS and Client. ARIS and Client agree that any
days and periods for performing Services agreed to between the parties are
approximate and may vary depending upon reasons outside the parties'
control. In the event ARIS is not able to perform the Services during the
days and periods agree to by the parties, ARIS will so notify Client at
least thirty (30) days in advance. Client shall designate where Services are
performed. Client shall be responsible for providing the hardware and all
other necessary devices, peripheral or otherwise, to permit ARIS to perform
the Services on Client premises.
ARIS understands that time is of the essence in the performance of Services
hereunder.
26. ASSIGNMENT OF ARIS PERSONNEL
Client must approve the assignment of all ARIS personnel prior to an
individual's assignment, which approval shall not be unreasonably withheld.
Client reserves the right in its sole discretion to disapprove the
continuing assignment of ARIS personnel provided hereunder. ARIS will remove
any consultant performing work hereunder upon seven (7) days' prior written
request by Client and shall use commercially reasonable efforts to provide a
substitute consultant satisfactory to Client.
27. SUBCONTRACTORS
ARIS's employment of subcontractors to perform Services hereunder shall be
subject to the written approval of Client, which approval shall not be
unreasonably withheld. The approval by Client of any subcontractor shall not
release ARIS from any responsibility or liability in connection with said
subcontractor. ARIS shall enter into written subcontracts with all approved
subcontractors. All
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subcontracts must contain confidentiality and Client ownership of materials
provisions similar to those contained in this Agreement. Client shall be
billed for subcontractor services and expenses on the same terms and at the
same rates as for ARIS personnel.
28. NO WAIVER
The waiver by either party of any default or breach of this Agreement shall
not constitute a waiver of any other or subsequent default or breach.
29. ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties and
supersedes all previous and contemporaneous agreements, proposals, or
representations, written or oral, concerning the subject matter of this
Agreement. Neither this Agreement nor a Work Order or Purchase Order may be
modified or amended except in writing signed by a duly authorized
representative of each party:
The Effective Date of this Agreement shall be May 22, 1996.
The following individuals, by signing agree to enter into this consulting
agreement and to be bound by its provisions.
ARIS CORPORATION CLIENT
Authorized Signature: //s// Kendal Kunz Authorized Signature: //s// Randall S. Bednar
Name: Kendal Kunz Name: Randall S. Bednar
Title: Vice President Title: Vice President