Professional Services Agreement

THIS PROFESSIONAL SERVICES AGREEMENT (“services AGREEMENT”) IS BETWEEN SEAGULL SOFTWARE, LLC (“SEAGULL” OR “WE”, “US” OR “OUR”) AND THE CUSTOMER THAT IS ENTERING INTO A STATEMENT OF WORK (AS DEFINED BELOW) DIRECTLY WITH SEAGULL (“CUSTOMER”). this services agreement may be updated from time to time by seagull and customer’s continued use of services (as defined below) shall constitute customer’s acceptance thereof.

The parties agree as follows:

1. Definitions.

(a) “Affiliate” means any entity, directly or indirectly, controlling, controlled by, or under common control with, Seagull.

(b) “Confidential Information” means non-public information of an Affiliate or a party to this Agreement that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation; or (iv) is independently developed by the Recipient without access to Confidential Information.

(c) “Discloser” means the party providing Confidential Information to the Recipient.

(d) “Effective Date” means the date identified on the signature page of this Services Agreement as the Effective Date.

(e) “Intellectual Property Rights” means any and all rights in patents, patent applications, copyrights, copyright registrations, trade secrets, trademarks and service marks (including, where applicable, all derivative works of the foregoing).

(f) “Recipient” means the party receiving Confidential Information of the Discloser.

(g) “Residual Knowledge” means ideas, concepts, know-how or techniques related to the Discloser's technology and Confidential Information that are retained in the unaided memories of the Recipient who had rightful access to Confidential Information.

(h) “Services” means the IT-related professional services that Seagull will provide Customer as contemplated under this Services Agreement and/or any SOW.

(i) “Statement of Work” or “SOW” has the meaning ascribed to such term in Section 2(a) of this Services Agreement.

2. Services.

(a) Statement of Work. Seagull will provide Customer with Services as set forth in one or more mutually agreed to and signed work order(s) which shall contain without limitation, a description of the Services, the Services rate(s) and payment terms (each a “Statement of Work” or “SOW”). The parties agree that SOWs may not be complete statements of Services required by Customer and additional Services may be required which would be difficult to determine as of the date of this Services Agreement or of the applicable SOW. At Customer’s request, the SOW may include an estimate of charges for the Services, but such estimate shall not be binding on Seagull or convert the SOW into a fixed price contract with respect to such Services. Unless expressly stated otherwise: (i) the Services rates are for an 8-hour person-day and will not include the expenses and charges referred to in Section 3(a) of this Services Agreement; (ii) the quoted rates shall represent Seagull’s current rates applicable to Customer (i.e., the rates applicable to Customer as of the effective date of the SOW) for the resources specified; and (iii) to the extent that Seagull raises the rates charged for Services during the course of a project, Customer shall be required to pay Seagull at the increased rates. Seagull is under no obligation to perform any Services other than pursuant to a SOW. Notwithstanding the foregoing, if Seagull performs Services at the direction of Customer and the parties have not signed a SOW for such Services, then such Services shall be subject to all terms and conditions of this Services Agreement, and Seagull’s then-current rates for such Services shall apply. Seagull may provide Services through its third-party contractors (“Contractors”), but, in all such cases, Seagull will remain subject to the obligations hereunder. To the extent that any of the Services relate to Seagull-proprietary material or any derivative works thereof, Seagull shall retain title and ownership over the deliverables provided as a result thereof.

(b) Conditions On Providing Services. Customer must assign a project manager who will assume responsibility for management of the project for which the Services are provided. Customer will establish the overall project direction, including assigning and managing the Customer’s project personnel team. Customer must provide Seagull with such facilities, equipment and support as are reasonably necessary for Seagull to provide Services, including remote access to Customer’s equipment. Seagull owns and will own all right, title and interest to the Services and any work product generated from the Services (“Work Product”), and Customer will execute and deliver to Seagull any documents reasonably necessary to vest in Seagull all right, title and interest therein. Subject to the terms and conditions of this Services Agreement, Seagull grants Customer a perpetual, non-exclusive, non-transferable license (without the right to sublease or sublicense) to use and copy for use the Work Product for Customer’s own, internal computing operations.

(c) Scheduling and Cancellation of Scheduled Services. In connection with any SOW, Customer should make staffing requests at least four (4) weeks in advance to increase the likelihood that the request can be filled for the date requested. While it is possible to secure staffing within this time frame (and Seagull will make commercially reasonable efforts to comply with such staffing requests), the probability of obtaining the requested resources decreases the closer the request is made to the need date. The parties agree that once Customer and Seagull have scheduled a specific time during which Seagull will provide Services under the terms of this Services Agreement and/or a SOW, Customer will be obligated to pay Seagull for such Services as if Seagull had performed such Services on the date scheduled and any related travel and living expenses to the extent such travel and living expenses are non-refundable, unless Customer has notified Seagull that Customer would like to reschedule or cancel the provision of such Services at least twenty one (21) days prior to the date which Seagull is scheduled to perform such Services.

3. Payment and Taxes.

(a) Payment. Unless otherwise stated in the applicable SOW, Seagull will invoice Customer for all Services and applicable charges on a bi-weekly basis, as Seagull renders the Services or Customer incurs the charges, as applicable. Customer will also reimburse Seagull for actual travel and living expenses that Seagull incurs in providing Customer with Services under this Services Agreement, with reimbursement to be on an as-incurred basis. Customer will also reimburse Seagull for all charges incurred in connection with accessing Customer’s equipment, if any. Customer will pay each Seagull invoice within fifteen (15) days of the date of invoice. Late payments are subject to a late charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable law.

(b) Taxes. Customer is responsible for paying all taxes (except for taxes based on Seagull’s net income or capital stock) relating to this Services Agreement, and any Services provided and payments made hereunder. Applicable tax amounts (if any) are not included in the fees set forth in this Services Agreement and any SOW. In each instance, Seagull will invoice Customer for applicable tax amounts and such invoices are due upon Customer’s receipt thereof.

4. Limited Warranty and Disclaimer of Warranties.

(a) Limited Services Warranty and Remedy For Breach. Seagull warrants to Customer that, for the period beginning on the specific date of the applicable SOW and continuing for ninety (90) days after the completion of Services pursuant to that SOW, Seagull will render all Services under such SOW with reasonable care and skill and that the Services shall materially conform with the specifications related thereto set forth in the applicable SOW. If Customer notifies Seagull within the warranty period of a breach of the foregoing warranties, Seagull will re-perform such Services in compliance with the foregoing warranty. If despite its reasonable efforts, Seagull is unable to provide Customer with Services in compliance with the foregoing warranties, then, subject to the limitations set forth in Section 12 of this Services Agreement, Customer may pursue its remedy at law to recover direct damages resulting from the breach of these limited warranties. These remedies are exclusive and are in lieu of all other remedies, and Seagull’s sole obligations for breach of these limited warranties are contained in this Section 4(a).

(b) Disclaimer of Warranty. The limited warranties in Section 4(a) are made to Customer exclusively and are in lieu of all other warranties. SEAGULL MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO ANY SERVICES PROVIDED UNDER THIS SERVICES AGREEMENT AND/OR ANY WORK ORDER, IN WHOLE OR IN PART. SEAGULL EXPLICITLY DISCLAIMS ALL WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. SEAGULL EXPRESSLY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS.

(c) FAILURE OF ESSENTIAL PURPOSE. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 4 AND 12 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS SERVICES AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER CUSTOMER HAS ACCEPTED ANY SERVICE UNDER THIS SERVICES AGREEMENT.

5. Confidential Information. Except as otherwise permitted under this Services Agreement, the Recipient will not disclose to any third party, or make any use of the Discloser’s Confidential Information. The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. The non-disclosure obligations of this Services Agreement will remain in full force with respect to each item of Confidential Information for a period of five (5) years after Recipient’s receipt of that item. Notwithstanding the foregoing, this Section is not intended to prevent a Recipient from using Residual Knowledge, subject to any Intellectual Property Rights of the Discloser.

6. Term and Termination.

(a) Right of Termination. If either party materially breaches any material obligation in this Services Agreement or a SOW (including, without limitation, any obligation to pay fees), and fails to remedy such breach (if such breach can be remedied) within thirty (30) days of receipt of written notice of such breach, the other party may terminate this Services Agreement (including all SOWs hereunder). Notwithstanding the foregoing, to the extent such material breach cannot be remedied through efforts of the breaching party, the other party has the right to terminate this Services Agreement (including all SOWs hereunder) on less than thirty days’ written notice. Notice to Seagull of an alleged breach of warranty will not constitute a notice of termination of this Agreement.

(b) Effect of Termination. Upon termination of this Services Agreement by either party, Seagull will discontinue the provision of all Services and Customer will promptly pay Seagull for all Services rendered through the effective date of such termination. Termination of this Services Agreement will not release either party from making payments which may be owing to the other party under the terms of this Services Agreement for all Services rendered through the effective date of such termination.

(c) Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination of this Services Agreement.

(d) Termination Without Prejudice to Other Rights and Remedies. Termination of this Services Agreement will be without prejudice to the terminating party’s other rights and remedies pursuant to this Services Agreement.

7. Notices. All notices and other communications required or permitted under this Services Agreement or required by law must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; or sent by overnight courier. Notices must be sent to a party at its address shown on the signature page of this Services Agreement, or to such other place as the party may subsequently designate for its receipt of notices in accordance with this Section.

8. Force Majeure. Except with respect to the payment of fees under this Services Agreement or a SOW, neither party will be liable to the other for any failure or delay in performance under this Services Agreement due to circumstances beyond its reasonable control, including Acts of God, acts of war, terrorist acts, natural disasters, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing.

9. Assignment. Customer may not assign or transfer any of its rights or obligations under this Services Agreement, whether by law or otherwise, and any attempt at such assignment will be void without the prior written consent of Seagull.

10. No Waiver. A party’s failure to enforce its rights with respect to any single or continuing breach of this Services Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach.

11. Choice of Law; Severability. This Services Agreement will be governed by and construed under the laws of the State of Washington, as applicable to agreements executed and wholly performed therein, but without regard to the choice of law provisions thereof. Any claim arising hereunder shall be brought in a state or federal court located in Seattle, Washington. This Services Agreement is originally written in the English language and the English language version shall control over any translations. If any provision of this Services Agreement is illegal or unenforceable, it will be deemed stricken from the Services Agreement and the remaining provisions of the Services Agreement will remain in full force and effect. The United Nations Convention on the International Sale of Goods (CISG) shall not apply to the interpretation or enforcement of this Agreement.

12. LIMITATIONS OF LIABILITY.

(a) LIMITED LIABILITY OF SEAGULL. THE TOTAL LIABILITY OF Seagull, ITS AFFILIATES and contractors IN CONNECTION WITH THE SERVICES, OR ANY OTHER MATTER RELATING TO THIS SERVICES AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) SHALL not EXCEED THE FEE THAT CUSTOMER ACTUALLY PAID TO Seagull FOR THE SERVICEs GIVING RISE TO THE LIABILITY under the applicable work order.

(b) EXCLUSION OF DAMAGES. IN NO EVENT SHALL Seagull, ITS AFFILIATES OR CONTRACTORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER Seagull HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.Compliance With Laws. Customer will comply with all laws, rules and regulations applicable to the use of the Services and the Work Product.

14. Non-Solicitation of Employees. During the period that Seagull is providing Services pursuant to this Services Agreement and for a period of one (1) year following the completion of such Services, neither Seagull nor Customer will offer to hire, hire, Solicit for employment or retention as an independent contractor, or in any way employ any Resource of the other party without the prior written consent of the other party. “Solicit” as used in this Section does not include general solicitations, such as advertisements in newspapers, trade publications or on the internet. “Resource” for purposes of this Section means: (a) employees of the non-hiring party who directly worked on the Services project at Customer’s location (the “Project”), and (b) former employees of the non-hiring party who directly worked on the Project and whose employment with that party ended less than six (6) months prior to the date of such offer to hire, hire, Solicitation, or employment.

15. Entire Agreement. This Services Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document, which may be issued by Customer in connection with this Services Agreement does not modify this Services Agreement. This Services Agreement and any signed agreement or instrument entered into in connection herewith or contemplated hereby, and any amendments hereto or thereto, to the extent signed and delivered by means of digital imaging, electronic mail or a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. This Services Agreement and all SOWs may be signed in counterparts.