Professional Services Agreement - DLB Systems and Breast Cancer International Research Group
DLB SYSTEMS
PROFESSIONAL SERVICES AGREEMENT
Agreement Date:_July 31,1999
FOR AND IN CONSIDERATION of the mutual benefits accruing and expected
to accrue hereunder, DLB Systems, (a business unit of Premier Research
Worldwide, Ltd., a Delaware corporation) with principal offices at 1200 Route 22
East, Bridgewater, New Jersey 08807 (hereinafter referred to as "DLB"), and
Breast Cancer International Research Group, with principal offices in Edmonton,
Alberta, Canada (hereinafter referred to as "Customer"), intending to be legally
bound, hereby enter into this Professional Services Agreement (the "Agreement"):
WHEREAS, DLB employs personnel ("Employees") who possess the skills to provide
professional services and deliverables (collectively "Services") commonly
defined in the computer industry to include, without limitation, consulting,
education, installation, data entry and conversion, training, error correction
and software modifications to address the general needs and requirements
expressed by DLB's clients; and
WHEREAS, DLB often contracts to provide its clients with theses Services; and
WHEREAS, Client wishes to secure Services from DLB from time to time for one or
more engagements, each of which be set forth in a separate Work Order or
Engagement Letter the form for which is attached as Schedule A; and
WHEREAS, DLB desires to provide the Services as required by Client from time to
time in accordance with the terms and conditions set forth hereinafter.
NOW, THEREFORE, DLB and Client, intending to be legally bound, hereby agree as
follows:
1. SERVICES
Client authorizes DLB to provide Services from time to time in accordance
with the specific provisions designated in a Work Order or Engagement Letter
signed by authorized officers of DLB and Client. Each Work Order or
Engagement Letter shall incorporate the terms of this Agreement and will
constitute a separate agreement binding upon the parties. However, in the
event of any conflict between this Agreement and the Work Order or Engagement
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Letter, the provisions of the Work Order or Engagement Letter shall prevail.
2. TERM OF AGREEMENT
2.1 This Agreement shall commence on the date it has been executed by both
parties and shall continue until terminated in accordance with Paragraph
6, "Default and Termination".
3. PROFESSIONAL SERVICES
3.1 If the Work Order or Engagement Letter provides for a fixed amount of
time, once the number of days or hours allocated to a particular Work
Order or Engagement Letter has been used, Customer must sign a new Work
Order or Engagement Letter within ten (10) business days or DLB reserves
the right to discontinue working on the project. If no new Work Order or
Engagement Letter is signed, the Customer is responsible for the ten-
(10) additional day's work.
3.2 DLB will expend reasonable efforts in the performance of the
Professional Services specified in each Work Order or Engagement Letter
and represents that its Professional Services hereunder will be of
professional quality conforming to generally accepted industry
standards. If necessary, DLB will engage subcontractors to assist in
performing the Professional Services.
3.3 Customer must promptly notify DLB if there is a justifiable problem with
a person assigned by DLB to the Customer's project, or the work being
performed is not justifiably satisfactory.
3.4 Ownership of work produced under a Work Order or Engagement Letter shall
be set forth in the specified Work Order or Engagement Letter. If no
such designation is made, ownership of the work produced under a Work
Order or Engagement Letter shall remain with DLB.
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3.5 Customer shall provide DLB's employees with adequate work areas, access
to computer terminals, data, software and personnel. And all other
reasonable facilities as may be required for performance of the
Professional Services set forth in the Work Order or Engagement Letter.
3.6 DLB shall be paid monthly for Professional Services rendered under a
Work Order or Engagement Letter. Charges will be based upon the fees
agreed to in the Work Order or Engagement Letter and any amendments or
additions thereto, which have been agreed to by both parties.
3.7 If no Work Order or Engagement Letter is in place and the Services are
verbally requested by Customer, then Services will be at a rate verbally
agreed to by the parties, or if no rate has been verbally agreed to
between the parties, DLB's standard rates for such Professional
Services. Payment of invoices produced for Professional Services work
performed under a verbal agreement shall be considered agreement on the
part of Customer as to the existence of the verbal agreement.
3.8 DLB will be reimbursed for all reasonable out of pocket expenses
incurred and travel time, whether or not these are specifically stated
on a Work Order or Engagement Letter.
3.9 DLB and Customer are independent contractors and no employment, agency,
association, partnership, joint venture or relationship,
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inconsistent with that of an independent contractor shall be created by
performance of the Professional Services specified in a Work Order or
Engagement Letter.
3.10 Upon termination of a Work Order or Engagement Letter by either party,
DLB shall be paid for all undisputed Professional Services rendered to
the date of termination.
4. FEES
4.1 Payment shall be made in accordance with the payment schedule attached
to a Work Order or Engagement Letter. Invoices are payable within thirty
(30) days of invoice.
4.2 After thirty (30) days from the date of invoice, unpaid invoices are
subject to a late payment charge of one and one half percent (1.5%) per
month, or the highest legal rate, if less.
4.3 All amounts mentioned in this Agreement are payable in US dollars. All
taxable charges, if any, referred to in this Agreement and payable under
any Work Order or Engagement Letter are net of any applicable sales,
use, property and other taxes and import or other duties, however
designated or levied. Payment of all such taxes and duties (excluding
taxes assessed upon the profit or gain of DLB) shall be the sole
responsibility of Customer.
5. CONFIDENTIALITY;
DLB PROPRIETARY RIGHTS
5.1 Each party agrees to keep confidential all technical, product, business,
financial and other information regarding the business of the other
party ("Confidential Information").
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5.2 Each party shall at times protect and safeguard the Confidential
Information of the other and shall not disclose, give, transmit or
otherwise convey any Confidential Information, in whole or in part, to
any third party.
5.3 Confidential Information will not include information that (1) is or
becomes generally known or available through no fault of the recipient;
(2) is known to the recipient at the time of its receipt from the
disclosing party; (3) the disclosing party provides to a third party
without restriction on disclosure; (4) is subsequently rightfully
provided to the recipient by a third party without restriction on
disclosure; (5) is independently developed by the recipient, without
reference to the disclosing party's Confidential Information; (6) is
required to be disclosed pursuant to a governmental agency or court
subpoena, provided the recipient promptly notifies the disclosing party
of such subpoena to allow it reasonable time to seek a protective order
or other appropriate relief; or (7) is approved for release by written
authorization of the disclosing party.
5.4 Because of the unique nature of the Confidential Information, each party
agrees that the disclosing party may suffer irreparable harm in the
event the recipient fails to comply with its obligations under this
Section, and that monetary damages will be inadequate to compensate the
disclosing party for such breach. Accordingly, the recipient agrees that
the disclosing party will, in addition to any other remedies available
to it at law or in equity, be
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entitled to seek injunctive relief to enforce the terms if this Section.
6. DEFAULT AND TERMINATION
6.1 DLB may terminate this Agreement and any Work Order or Engagement Letter
under it, if one or more of the following occur; 1) upon fifteen (15)
days prior written notice, if Customer breaches the provisions of
Section 5; 2) upon thirty (30) days written notice, if Customer shall
fail to pay any fee for the work set forth under this Agreement or any
current or future Work Order or Engagement Letter to it, when due, but
such termination shall not take effect if Customer makes such payment
prior to the expiration of the notice period; 3) upon thirty (30) days
written notice, if Customer is in material default of any other
provision of this Agreement, but such termination shall not take effect
if Customer shall cure such default prior to the expiration of the
notice period; or 4) immediately, if Customer enters into liquidation,
whether voluntarily or compulsory, or compounds with its creditors, or
has a receiver appointed, or commits an act of bankruptcy, or becomes
insolvent, or enters into any arrangement with its creditors, or takes
or suffers any similar action in consequence of debt, or ceases or
threatens to cease to carry on business.
6.2 Customer may terminate this Agreement and any Work Order or engagement
Letter under it, if one or more of the following occur; 1) upon thirty
(30) days written notice, if DLB is in material default of any provision
of this Agreement, but such termination shall not take effect if DLB
shall cure such default prior to the expiration of the notice period; or
2) immediately following written notice, if DLB enters into liquidation,
whether voluntarily or compulsory, or compounds with its creditors, or
has a receiver appointed, or commits an act of bankruptcy, or becomes
insolvent, or enters into any arrangement with its creditors, or takes
or suffers any similar action in consequence of debt, or ceases or
threatens to cease to carry on business.
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6.3 Termination shall be without prejudice to the right of DLB to retain any
fees paid before termination; to be paid any fees or charges that were
due and unpaid or not yet invoiced at the effective date of termination;
or seek equitable relief, damages, or both, for breach of any provision
hereof.
7. LIMITATION OF LIABILITY
7.1 IN NO EVENT WILL DLB BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY
REASON WHATSOEVER, WHETHER IN CONTRACT OR TORT, FOR ANY FORM OF
INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL LOSS, DAMAGE OR EXPENSE
(INCLUDING, BUT NOT LIMITED TO, LOSS DUE TO INABILITY TO OBTAIN DATA,
LOSS OF BUSINESS, OR LOSS OF ANTICIPATED PROFITS) IN CONNECTION WITH OR
ARISING OUT OF THE FURNISHING OF THE PROFESSIONAL SERVICES OR THE
FUNCTIONING OR USE OF ANY SOFTWARE OR WORK PRODUCED UNDER THIS AGREEMENT
OR ANY WORK ORDER OR ENGAGEMENT LETTER ENTERED INTO
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PURSUANT TO IT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
7.2 DLB INDEMNIFIES CUSTOMER FROM LIABILITY FOR PERSONAL INJURY OR PROPERTY
DAMAGE CAUSED SOLELY BY DLB'S NEGLIGENCE OR WILLFUL MISCONDUCT WHILE
PERFORMING OBLIGATIONS PURSUANT TO THIS AGREEMENT.
7.3 IN ANY EVENT, DLB'S LIABILITY FOR DAMAGES SHALL NOT EXCEED THE PRICE
PAID BY CUSTOMER FOR THE PARTICULAR WORK ORDER OR ENGAGEMENT LETTER
UNDER WHICH DLB'S LIABILITY ARISES.
8. ASSIGNMENT
Neither this agreement nor any Work Order or Engagement Letter issued under
it shall be transferred or assigned, in whole or in part, by Customer without
the prior written consent of DLB. In the event of a sale of all or
substantially all of the assets of Customer, a merger, acquisition,
reorganization or other transaction which involves a change in control of
Customer or any part of Customer, this Agreement may be assigned to the party
acquiring control of Customer's assets as long as the new party is not a
direct competitor of DLB (in which case Customer must obtain DLB's written
consent) and the new party agrees in writing to be bound by the terms and
conditions of this Agreement and any Work Order or Engagement Letter under
it;provided, no such consent shall be required if the new party is an
affiliate or subsidiary who's stock is at least fifty-one (51%) owned by
Customer. Customer shall notify DLB of any such transaction within five (5)
business days after its occurrence.
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9. NON-SOLICITATION AND HIRING OF EMPLOYEES
Neither party shall knowingly solicit for employment, hire or utilize the
services of any employee, agent, representative or consultation of the other
party during the term of this Agreement or of any Work Order or Engagement
Letter under it, or for one year after the completion of the performance of
services hereunder, or assist any third party in so doing.
10. GENERAL
10.1 Law to be Applied - This Agreement and all Work Orders and Engagement
Letters under it shall be governed by and interpreted under the laws
of the State of Delaware.
10.2 Customer acknowledges and accepts that the role of DLB is solely that
of a supplier of the Professional Services to be provided under this
Agreement and any Work Orders or Engagement Letters to it.
10.3 Publicity - The parties may collaborate on publicity, advertising,
brochures, literature and the like as regards this Agreement and their
business relationship. Prior to any distribution, both parties will
approve all such material in writing.
10.4 Notices - Notices under this Agreement, any Work Order, Engagement
Letter or Amendment shall be deemed given when sent one (1) day after
being presented to Federal Express or the equivalent for delivery to a
party at the addresses specified below or such new address as either
party shall communicate to the other in writing from time to time.
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To Customer:
Breast Cancer International
Research Group
Edmonton, Alberta, Canada
ATTN:
To DLB Systems:
DLB Systems
1200 Route 22 East
Bridgewater, New Jersey 08807
ATTN:
10.5 Force Majeure - No party to this Agreement or any Work Order or
Engagement Letter under it shall be liable for delay or failure in the
performance of its contractual obligations arising from any one or
more events which are beyond its reasonable control. Upon such delay
or failure affecting one party, that party shall notify the other
party and use all reasonable endeavors to cure or alleviate the cause
of such delay or failure with a view to resuming performance of its
contractual obligations as soon as practicable.
10.6 Waiver - The failure of any party to enforce or exercise, at any time
or for any period of time, any term of or any right arising pursuant
to this Agreement or any Work Order or Engagement Letter under it,
does not constitute and shall not be construed as, a waiver of such
term or right and shall in no way affect that party's right to later
enforce or exercise it. The waiver by either party of the breach of
any provision of this Agreement shall not constitute a waiver of the
breach of any other provision or of the subsequent breach of the same
or any other provision.
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10.7 Severability - The invalidity or unenforceability of any term of or
any right arising pursuant to this Agreement or any Work Order or
Engagement Letter shall in no way affect the remaining terms or
rights.
10.8 Binding Effect - This Agreement shall be binding upon and ensure to
the benefit of the parties, and their heirs, successors and assigns.
10.9 Inconsistencies Between Agreement, Work Order or Engagement Letter and
other Documents - Unless a Work Order or Engagement Letter expressly
provides otherwise, in the event of any inconsistency between the
terms of this Agreement and any Work Order or Engagement Letter, the
terms of the most recent Work Order or Engagement Letter shall govern
and control for the work specified under that specific Work Order or
Engagement Letter. This Agreement and any Work Order or Engagement
Letter shall govern and control in the case of any inconsistency
between it and any purchase order, confirmation or other document
issued by either party.
10.10 Plural and Singular Usage - As used herein, the singular of any term
includes the plural and the plural means the singular, whenever the
context so requires.
10.11 Headings - The section headings in this Agreement are inserted for
convenience only and are not intended to affect the meaning or
interpretation of this Agreement.
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10.12 Notwithstanding the general rules of construction, both DLB and
Customer acknowledge that both parties were given an equal opportunity
to negotiate the terms and conditions contained in this Agreement and
agree that the identity of the drafter of this Agreement is not
relevant to any interpretation of the terms and conditions of this
Agreement.
10.13 Amendment - This Agreement and its terms may not be modified, amended,
waived, or superceded except by a written instrument signed by an
authorized representative for DLB and an authorized representative of
the Customer.
10.14 The entire understanding between the parties is contained in this
Agreement and all Work Orders and Engagement Letters under it. This
Agreement and all Work Orders and Engagement Letters under it
supersede all prior agreements, statements, representations,
understandings and negotiations, whether written or oral, and in all
cases takes precedence.
DLB SYSTEMS:
Breast Cancer International Research Group:
/s/ John Bauer /s/ T. Saxton /s/H.Rhouri
------------------------------ ---------------------------------------------
Signature Signature
John Bauer, CFO T. Saxton VP Finance H.Rhouri/President
------------------------------ ---------------------------------------------
Name/Title Name/Title
September 1, 1999 Aug 23, 99 23 Aug 99
------------------------------ ---------------------------------------------
Date Date
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PROFESSIONAL SERVICES
AGREEMENT RIDER-1
Rider Date: July 31, 1999
This is a Rider to the Professional Services Agreement entered into by and
between Breast Cancer International Research Group and DLB SYSTEMS, a business
unit of Premier Research Worldwide, Ltd., dated July 31,1999 (hereinafter the
"Agreement"). DLB hereby grants to the Licensee a non-exclusive,
non-transferable, and non-assignable by either party without the consent of the
other party, which consent shall not be unreasonably withheld, except for an
assignment to an affiliate or to a purchaser of all or substantially all, of the
assets of the business to which this agreement pertains and to use the software
listed below, as provided by DLB and accepted by Licensee at the location listed
below, in accordance with the terms and conditions of the Agreement. In the
event a discrepancy should arise between the provisions of this Rider and those
of the Agreement, the provisions of this Rider shall apply.
1. IMPLEMENTATION SERVICES
RECORDER Study Implementation $150,000
This estimate is based on our prior experience in implementing the RECORDER
application for a CRO initiating a study for a sponsor. The estimate does not
reflect any understanding, on the part of DLB, of the requirements for the study
to be conducted for RPR. In order to develop a more accurate project estimate,
to include goals, objectives, scope, resources, milestones, deliverables and
cost, DLB must conduct a Pre-Implementation Review of the study requirements.
Upon completion of the Pre-Implementation Review, DLB will prepare a detail
project plan for review and approval by BCRIG prior to commencing work.
2. Payment in full on or before January 31, 2000.
The terms of the Agreement not modified by this Rider shall remain in full force
and effect. This Rider, together with the above referenced Agreement,
constitutes the entire agreement of the parties and supersedes all prior
understanding and agreements, whether written or oral.
By signature below, the parties agree to the foregoing:
Accepted By:
DLB SYSTEMS BCIRG
Signature: /s/ John Bauer Signature: /s/ T. Saxton /s/ H. Rhouri
Name: John Bauer Name: T. Saxton H. Rhouri
Title: CFO Title: VP Finance President
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PROFESSIONAL SERVICES
AGREEMENT RIDER-2
Rider Date: July 31, 1999
This is a Rider to the Professional Services Agreement entered into by and
between Breast Cancer International Research Group and DLB SYSTEMS, a business
unit of Premier Research Worldwide, Ltd., dated July 31, 1999(hereinafter the
"Agreement"). DLB hereby grants to the Licensee a non-exclusive,
non-transferable, and non-assignable by either party without the consent of the
other party, which consent shall not be unreasonably withheld, except for an
assignment to an affiliate or to a purchaser of all or substantially all, of the
assets of the business to which this agreement pertains and to use the software
listed below, as provided by DLB and accepted by Licensee at the location listed
below, in accordance with the terms and conditions of the Agreement. In the
event a discrepancy should arise between the provisions of this Rider and those
of the Agreement, the provisions of this Rider shall apply.
1. IMPLEMENTATION SERVICES
MONITOR Study Implementation $50,000
This estimate is based on our prior experience in implementing the MONITOR
application for a CRO initiating a study for a sponsor. The estimate does not
reflect any understanding, on the part of DLB, of the requirements for the study
to be conducted for RPR. In order to develop a more accurate project estimate,
to include goals, objectives, scope, resources, milestones, deliverables and
cost, DLB must conduct a Pre-Implementation Review of the study requirements.
Upon completion of the Pre-Implementation Review, DLB will prepare a detail
project plan for review and approval by BCRIG prior to commencing work.
2. Payment in full on or before January 31, 2000.
The terms of the Agreement not modified by this Rider shall remain in full force
and effect. This Rider, together with the above referenced Agreement,
constitutes the entire agreement of the parties and supersedes all prior
understanding and agreements, whether written or oral.
By signature below, the parties agree to the foregoing:
Accepted By:
DLB SYSTEMS BCIRG
Signature: /s/ John Bauer Signature: /s/ T. Saxton /s/ H. Rhouri
Name: John Bauer Name: T. Saxton H. Rhouri
Title: CFO Title: VP Finance President
Confidential Page 9
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PROFESSIONAL SERVICES
AGREEMENT RIDER-3
Rider Date: July 31, 1999
This is a Rider to the Professional Services Agreement entered into by and
between Breast Cancer International Research Group and DLB SYSTEMS, a business
unit of Premier Research Worldwide, Ltd., dated July 31, 1999(hereinafter the
"Agreement"). DLB hereby grants to the Licensee a non-exclusive,
non-transferable, and non-assignable by either party without the consent of the
other party, which consent shall not be unreasonably withheld, except for an
assignment to an affiliate or to a purchaser of all or substantially all, of the
assets of the business to which this agreement pertains and to use the software
listed below, as provided by DLB and accepted by Licensee at the location listed
below, in accordance with the terms and conditions of the Agreement. In the
event a discrepancy should arise between the provisions of this Rider and those
of the Agreement, the provisions of this Rider shall apply.
1. IMPLEMENTATION SERVICES
ALERT Study Implementation $50,000
This estimate is based on our prior experience in implementing the ALERT
application for a CRO initiating a study for a sponsor. The estimate does not
reflect any understanding, on the part of DLB, of the requirements for the study
to be conducted for RPR. In order to develop a more accurate project estimate,
to include goals, objectives, scope, resources, milestones, deliverables and
cost, DLB must conduct a Pre-Implementation Review of the study requirements.
Upon completion of the Pre-Implementation Review, DLB will prepare a detail
project plan for review and approval by BCRIG prior to commencing work.
2. Payment in full on or before January 31, 2000.
The terms of the Agreement not modified by this Rider shall remain in full force
and effect. This Rider, together with the above referenced Agreement,
constitutes the entire agreement of the parties and supersedes all prior
understanding and agreements, whether written or oral.
By signature below, the parties agree to the foregoing:
Accepted By:
DLB SYSTEMS BCIRG
Signature: /s/ John Bauer Signature: /s/ T. Saxton /s/ H. Rhouri
Name: John Bauer Name: T. Saxton H. Rhouri
Title: CFO Title: VP Finance President
Confidential Page 10
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PROFESSIONAL SERVICES
AGREEMENT RIDER-4
Rider Date: July 31, 1999
This is a Rider to the Professional Services Agreement entered into by and
between Breast Cancer International Research Group and DLB SYSTEMS, a business
unit of Premier Research Worldwide, Ltd., dated July 31, 1999(hereinafter the
"Agreement"). DLB hereby grants to the Licensee a non-exclusive,
non-transferable, and non-assignable by either party without the consent of the
other party, which consent shall not be unreasonably withheld, except for an
assignment to an affiliate or to a purchaser of all or substantially all, of the
assets of the business to which this agreement pertains and to use the software
listed below, as provided by DLB and accepted by Licensee at the location listed
below, in accordance with the terms and conditions of the Agreement. In the
event a discrepancy should arise between the provisions of this Rider and those
of the Agreement, the provisions of this Rider shall apply.
1. IMPLEMENTATION SERVICES
Implementation and Education for 400 Single $100,000 for every 100 single
User Licenses of RECORDER Remote user license increment or
fraction thereof
Services to Include:
Technical Architecture Definition
- Network
- Communications
- PC
Technical Architecture Validation
Software Installation and Distribution Plan
Backup and Recovery Plan
End User Education
Scope of Services assumes standard/identical PC and/or network configurations
at all sites.
2. Payment in full on or before March 31, 2000.
The terms of the Agreement not modified by this Rider shall remain in full force
and effect. This Rider, together with the above referenced Agreement,
constitutes the entire agreement of the parties and supersedes all prior
understanding and agreements, whether written or oral.
By signature below, the parties agree to the foregoing:
Accepted By:
DLB SYSTEMS BCIRG
Signature: /s/ John Bauer Signature: /s/ T. Saxton /s/ H. Rhouri
Name: John Bauer Name: T. Saxton H. Rhouri
Title: CFO Title: VP Finance President
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