Professional Services Agreement - ARIS Corp. and Quebecor Printing (USA) Corp.
ARIS Corporation Professional Services Agreement
This Professional Services Agreement (the "Agreement") is between ARIS
Corporation ("ARIS") and Quebecor Printing (USA) Corp. ("Client").
1. Services
ARIS Corporation will provide to Client the Services specified on a standard
ARIS Work Order, ARIS Proposal or Client Purchase Order, under the terms of this
Agreement. Each Work Order, Proposal or Purchase Order shall specify the
Services and applicable fees, and will be governed by the terms of this
Agreement. To the extent that the terms and conditions of any ARIS Work Order,
Proposal (or any customer purchase order) entered into between the parties
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, Proposal or Purchase
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 or Proposal. If a dollar limit is stated in the applicable Work
Order, Proposal or Purchase 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, Proposal or Purchase Order for continuation of the Services is signed by
the parties. Unless otherwise stated in a Work Order or Proposal, any T&M Work
Order or Proposal 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. [Deleted: "plus a 10% administrative fee for such
expenses." Initialed by Kendall Kunz and Paul Song]
4. Invoicing and Payment
ARIS shall invoice Client semi-monthly, unless otherwise expressly specified in
a Work Order or Purchase 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. Either party may terminate
this Agreement at any time by providing the other party with at least 14 days
written notice. Any
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Work Order outstanding at the time of termination shall continue to be governed
by this Agreement as if it had not been terminated.
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. THE WARRANTY HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF 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 ARIS BE LIABLE
FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM ANY SERVICES PROVIDED
HEREUNDER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR LOST PROFITS OR OTHER
ECONOMIC DAMAGES. [Added: "THE FOREGOING LIMITATION SHALL NOT BE APPPLICABLE IN
THE EVENT OF A BAD FAITH OR WILLLFUL REFUSAL OF ARIS TO PERFORM THE SERVICES."
Initialed by Kendall Kunz and Paul Song]
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.
13. Assignment of Contract
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The Client may not assign the Agreement or its responsibility for payments
to any organization, without written approval by ARIS [added: ", such approval
not to be unreasonably delayed or withheld." Initialed by Kendall Kunz and
Paul Song] 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
[Replacement language: "ARIS shall indemnify and hold Client harmless from and
against any and all losses, claims, or damages, including reasonable attorneys'
fees, for patent or copyright infringement and any other claims that any rights
have been infringed by the Services provided by ARIS. Client shall promptly
notify ARIS of any and all losses, claims, or damages, referred to above and
shall afford ARIS opportunity to defend the same for and on behalf of Client.
ARIS shall pay the cost of such defense, whether it shall be conducted by ARIS
or by Client at ARIS's request, provided that notice of suit and the opportunity
to defend it shall have been given as aforesaid. If ARIS elects to defend such
suit, Client may participate in such defense at its own discretion."]
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.
[Note written by Paul Gaboury: "See attached "Confidentiality and
Disclosure Agreement."]
[Deleted: "17. Insurance and Risk of Loss
The Client bears all responsibility for damages to their equipment and
facilities." Initialed by Kendall Kunz and Paul Song]
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.
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20. Governing Law; Attorney's Fees; Venue
This Agreement shall be governed by and construed in accordance with the laws of
the state of Washington [changed to "Massachusetts"; initialed by Kendall Kunz
and Paul Song]. In the event of a dispute over this Agreement, the prevailing
party shall recover its reasonable attorneys' fees and costs from the breaching
party. Venue shall be in King [changed to "Suffolk"; initialed by Kendall Kunz
and Paul Song] County, Washington [changed to "Massachusetts"; initialed by
Kendall Kunz and Paul Song].
21. 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: no other act, document, usage, or custom shall be deemed to amend
or modify this Agreement, a Work Order, or Purchase Order. It is expressly
agreed that any terms and conditions of Client's purchase order shall be
superseded by the terms and conditions of this Agreement and the applicable Work
Order.
The Effective Date of this Agreement shall be April 30, 1996.
The following individuals, by signing agree to enter into this consulting
agreement and to be bound by its provisions.
ARIS Corporation Quebecor Printing (USA) Corp.
Authorized Signature: /s/ Kendall Kunz Authorized Signature: /s/ Paul M. Gaboury
Name: Kendall W. Kunz Name: Paul Gaboury
Title: Vice President of Consulting Title: Director, I.S.
["Note change to paragraph #3 above"-note
written by Paul Gaboury under his signature
block.]
[ARIS logo]
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
This Agreement is entered into as of June 10, 1996, between Applied Relational
Information Systems, Inc. d/b/a ARIS Corporation ("ARIS") and Quebecor Printing
(USA) Corp.("Quebecor"). The parties recognize that certain trade secrets and
confidential information of each party may be disclosed to or discovered by the
other party in the course of their
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discussions and negotiations concerning ARIS' possible provision of computer and
systems consulting services to QUEBECOR. The parties are willing to enter into
such discussions, provided each party agrees to protect the other party's
secrets and confidential information according to the terms of this Agreement.
The parties, intending to become legally bound, agree as follows:
1. As used in this Agreement, the term "Trade Secrets" shall mean and include
all trade secrets and confidential information of any nature of either party or
any of its affiliates, whether presently existing or developed hereafter, and
whether communicated orally, in writing, or learned by observation or otherwise,
including without limitation, inventions; formulae; patterns; compilations;
programs (including software object and source codes); devices; designs;
methods; techniques; processes, discoveries and improvements; customer and
supplier lists; non-public financial information; buying and marketing plans and
methods; pricing policies; product ideas; and other nonpublic business,
technical, marketing, or operating information. "Trade Secrets" shall also
include any information obtained by either party from third parties which the
receiving party is obligated to protect as trade secrets or confidential
information hereunder. Trade Secrets shall not include any information that (i)
was in the public domain prior to disclosure to the receiving party, or becomes
so available through no fault of the receiving party; or (ii) is independently
developed by receiving party; or (iii) is received from a third party with no
breach of a duty owned hereunder.
2. The receiving party acknowledges the importance of preserving the
confidentiality of the disclosing party's Trade Secrets and agrees not to use or
disclose at any time, and to prohibit its employees or agents from using or
disclosing at any time, any disclosing party's Trade Secrets to any third party
(other than employees or agents of the receiving party with a need to know such
Trade Secrets) unless and to the extent directed in writing in each instance by
an officer of the disclosing party. The receiving party shall restrict access
and use of the disclosing party's Trade Secrets solely to such of its employees
or agents who need to know such information.
3. The receiving party shall not without the consent of the disclosing party
make or have made or use any copies of any materials containing any disclosing
party's Trade Secrets, and any notices or legends used by the disclosing party
shall be reproduced in all copies. All tangible items embodying or disclosing
any portion of the disclosing party's Trade Secrets, including copies or partial
copies and reproductions thereof, shall remain the property of the disclosing
party and must be returned upon the termination of the panties' business
relationship or the earlier request of an officer or manager of the disclosing
party.
4. No license or right in or to any of the disclosing party's Trade Secrets
or any other trade secrets, confidential information or other rights is granted
hereunder.
5. The receiving party acknowledges that the disclosing party will be
irreparably harmed if any disclosing party's Trade Secrets are disclosed by the
receiving party to third parties or used by the receiving party or others except
as contemplated hereunder, agrees that any remedy at law would be inadequate in
the event of a breach or threatened breach of this Agreement, and agrees that
the disclosing party shall be entitled to injunctive relief, in addition to
money damages or any other remedies, in the event of breach or threatened breach
of this Agreement. Any amounts or property received by the receiving party
through a violation of this Agreement shall be held in constructive trust for
the benefit of the disclosing party.
6. In the event that the receiving party should be requested or required (by
oral questions, interrogatories, requests for information or documents,
subpoena, civil investigative demand or
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similar process) to disclose any of the disclosing party's trade Secrets, it is
agreed that the receiving party will provide the disclosing party with prompt
notice of such requests so that the disclosing party may seek an appropriate
protective order. It is further agreed that, if the receiving party is, in the
opinion of its counsel, compelled to disclose information concerning the
disclosing party's Trade Secrets to any tribunal or else stand liable for
contempt or suffer other censure or penalty, the receiving party may disclose
such information to such tribunal without liability hereunder.
7. This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts. Each party hereby consents to the personal jurisdiction of the
state and federal courts sitting in Suffolk County, Massachusetts, which courts
shall be proper venue for any action hereunder. Each party agrees the other
shall be awarded its reasonable attorneys' fees and costs if it prevails in any
action to enforce this Agreement.
8. If any provision of this Agreement is found to be unenforceable or invalid in
any context or to any extent, it shall nevertheless be enforced to the fullest
extent allowed by law in that and other contexts and the validity and force of
the remainder of this Agreement shall not be affected thereby.
9. This Agreement shall bind and inure to the benefit of the parties and their
respective successors, assigns directors, officers, shareholders, and parent,
subsidiary and related entities. This Agreement shall not reduce, limit or
supersede any trade secret rights or remedies of either party under applicable
laws, but shall be deemed to supplement same.
10. This Agreement and the obligations arising hereunder shall survive the
expiration or termination of any relationship between the parties. Upon
expiration or termination of any such relationship, each party shall return to
the other all tangible copies of the other's Trade Secrets, wherever located,
including copies or partial copies contained on any computer hard drive, tapes,
floppy disks, other magnetic media or other medium.
11. This Agreement contains the entire agreement of the parties with respect
to its subject matter and supersedes any prior or contemporaneous agreements or
statements relating to the subject matter hereof. Any waiver of either party's
rights under this Agreement must be by a specific written waiver signed by an
officer of such party, and no waiver shall apply to any instance other than
that for which it is given. Any modifications or amendments to this Agreement
must be in a writing signed by an officer of both parties.
Executed by authorized representatives of the parties as of the date first
written above.
ARIS CORPORATION QUEBECOR PRINTING (USA) CORP.
By: /s/ Paul Song, President By: /s/ Paul M. Gaboury, Director, I.S.