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HomeMy WebLinkAboutPro-West & Associates Inc-11/14/2016STANDARD TERMS AND CONDITIONS PRO -WEST & ASSOCIATES, INC. These Standard Terms and Conditions (the "Agreement") are entered into by Pro -West & Associates, Inc., a Minnesota corporation ("Pro -West") and the City of Waterloo. IA (the "Client"), as of 11/18/2016 (Pro -West and Client are referred to herein, collectively, as the "Parties," and, individually as a "Party"). Recitals. A. Pro -West provides its customers with software development, data development, and professional services. B. Client desires that Pro -West provide certain services to Client, and Pro -West desires the same, all pursuant to the terms and provisions of this Agreement. Agreement. In consideration of the recitals above, and the mutual promises in this Agreement below, the Parties agree as follows: 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Pro -West agrees to provide the services set forth on the attached Schedule 1 (the "Services") to Client. Any request for modification of the Services will be effective only if agreed to in writing by both Parties. 2. PAYMENT TERMS. (a) Price. In exchange for the Services, Client agrees to pay to Pro -West the amounts as set forth on the attached Schedule 1 (the "Service Fees"). The Service Fees will include all amounts due from Client to Pro -West, including, but not limited to, the payment for Services, customs, duties, sales, use, excise, property taxes and similar charges, shipping, and travel, lodging and food expenses. (b) Invoicing. Unless set forth to the contrary in Schedule 1, Pro -West will invoice Client in writing or by electronic documentation on a monthly basis for the Service Fees due with respect to the Services provided by Pro -West to Client during the prior month. Invoices for time and materials projects will provide a general description of the tasks completed and time -accrued for each task. Invoices for projects with fixed Service Fees will not include any information other than the amount owed, and, where appropriate, project progress. Except as set forth to the contrary in Schedule 1., Client will pay all Service Fees set forth on an invoice within thirty (30) days after the invoice date. (c) Late Payment. In the event Client fails to pay all Service Fees due under an invoice before it is due pursuant to this Agreement, Pro -West may: (i) immediately discontinue or delay the Services without regard for any deadlines established pursuant to this Agreement, if any, and Pro -West will have no Liability whatsoever for any damages or losses incurred or suffered by Client pursuant to Pro -West's exercise of such right; and (ii) discontinue, delay, or cancel Services for pending and/or future Services, and Pro -west will have no liability whatsoever for any damages or losses incurred or suffered by Client pursuant to Pro -West's exercise of such right. Payments made after its due date pursuant to this Agreement will accrue interest at a rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is greater. (d) Changes to Payment Terms. Pro -West may adjust billing terms from time to time at Pro -West's sole discretion upon thirty (30) days written notice to Client. 3. INFORMATION. For purposes of this Agreement, "Information" shall mean: (a) any and all information or data provided by Client to Pro -West, whether created by Client or any third party, that is used by Pro -West in the provision of Services, relied upon by Pro - West in the provision of Services, input by Pro -West into its work product pursuant to the provision of Services, or incorporated by Pro -West into its work product pursuant to the provision of Services; and (b) any and all public information or data that is used by Pro - West in the provision of Services, relied upon by Pro -West in the provision of Services, input by Pro -West into its work product pursuant to the provision of Services, or incorporated by Pro -West into its work product pursuant to the provision of Services. Client acknowledges and agrees: (m) that Pro -West may rely upon, use, and incorporate the Information into its work product and deliverables pursuant to the provision of Services, and (n) that Pro -West will not, and is not bound to, investigate, verify or confirm any Information, and (o) that Pro -West is not, and will not be, a guarantor of Information, and (p) that Client assumes all risk with respect to the Information, and (q) that Client hereby represents and warrants to Pro -West that all Information is accurate, complete, and correct. 4. OWNERSHIP. (a) Client Ownership of Work Product. Except for any third party software, Know - How (as defined in Section 4(d) below) or Pro -West Tools (as defined in Section 4(c) below), the Services will be deemed a "work made for hire" (as defined by the Copyright Act of 1976). Client will acquire ownership of the Services, but only after the payment in full by Client of all Service Fees due to Pro -West. (b) Client License. Client acknowledges and agrees that Pro -West's business depends substantially upon the accumulation of learning, knowledge, data, techniques, tools, processes, and generic materials that Pro -West utilizes and develops. Accordingly, Pro -West will retain ownership and all rights to Know -How and Pro -West will be free to use all Know -How for its business purposes or in providing services to other clients. Pro -West retains the right to use the general knowledge, experience and know-how acquired by it in the course of performing work for Client (except to the extent the same constitutes Client's proprietary property). To the extent Know - How is contained or reflected in the Services, Pro -West hereby grants Client a perpetual, worldwide, nonexclusive, nontransferable, irrevocable, royalty -free, 2 fully paid up right and license to use, copy, modify, and prepare derivative works of the Know -How but only to the extent the Know -How is embedded in the Services, or is necessary for Client to receive the benefit of the Services. Client will not copy the Know -How, in whole or in part, except for Client's own use or archival purposes. (c) Pro -West Tools. Notwithstanding anything herein to the contrary, Pro -West is and will remain the owner and/or licensee of all right, title and interest in and to any software development tools that may be used to develop any software for Client hereunder (any "Pro -West Tools"). This Agreement does not transfer or grant Client any rights, title, or interest in or to any Pro -West Tools. (d) Know -How. The term "Know -How" means any material of a general abstract character that is used in, enhanced, or developed in the course of providing Services, including, but not limited to, methodologies, delivery strategies, approaches, practices, generic software tools, routines, components, generic code libraries (both open source and proprietary to Pro -West), generic content, research and background materials, training materials, application building blocks, templates, analytical models, project tools, development tools, inventions, solutions, ideas and descriptions thereof. (e) Restriction on Transfer by Client. Client will not have the right to lease, rent, sell, pledge, assign, sublease or otherwise transfer or dispose of, in any complete, partial or modified form, the Know -How or any Pro -West Tools, notwithstanding anything herein to the contrary. Proprietary Information. The Know -How and any Pro -West Tools are the property of Pro -West, and the ideas, systems, and methods of operation and information contained within the Know -How and any Pro -West Tools are trade secret information of Pro -West. Client understands that any unauthorized copying of the Know -How and any Pro -West Tools, and any unauthorized disclosure or use of any Pro -West trade secret information, is prohibited. Client will not use, disclose, reproduce or otherwise make available any Pro -West trade secret information to any person other than employees of Client who need to know such information in order to utilize or receive the benefit of the Services, or is necessary for Client to receive the benefit of the Services. Client will advise each of its employees who are permitted access to the Know -How, any Pro -West Tools, or any Pro -West trade secret information, of the restrictions upon duplication, disclosure and use contained in this Agreement. (0 (g) Third Party Software. Notwithstanding anything herein to the contrary, the use and disclosure of any third party software is at all times subject to the terms and conditions set forth in their respective licenses with Pro -West. Pro -West makes no representations or warranties of any kind with respect to any third party software used in the provision of the Services. 3 5. WARRANTIES; DISCLAIMER OF WARRANTIES. Pro -West agrees to correct any material defects in the Services for a period of six (6) months following the completion of the Services, and such correction by Pro -West shall be Client's sole remedy for Pro -West's breach of such warranty. Defects covered under this warranty are defined as features or functionalities that operate inconsistently with the requirements set forth in the Services. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, PRO -WEST MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND SPECIFICALLY EXCLUDES AND DISCLAIMS ANY SUCH WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PRO -WEST OR ANY OF ITS REPRESENTATIVES WILL CREATE A WARRANTY OF ANY KIND. 6. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, PRO -WEST WILL NOT BE LIABLE FOR ANY GENERAL, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) UPON ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIABILITY OF PRO -WEST UNDER THESE TERMS WILL BE LIMITED TO THE SERVICE FEES PAID BY THE CLIENT TO PRO -WEST IN THE TWELVE (12) MONTHS PRIOR TO OCCURRENCE OF THE EVENT THAT GAVE RISE TO SUCH CLAIM. 7. INDEMNIFICATION. To the fullest extent permitted by law and notwithstanding anything herein to the contrary, Client will indemnify Pro -West and hold it harmless against any and all claims, costs, expenses (including reasonable attorneys' fees), damages and liabilities for damage or injury to persons or property arising out of or in any way related to (a) this Agreement or the Services, provided that such damage or injury was not caused by Pro -West's sole negligence, gross negligence, or willful misconduct, or (b) the Information. 8. TERMINATION. (a) Breach. Either Party may terminate this Agreement by delivery of written notice to the other Party of a material breach of the other Party; provided, however, that if the breach is curable such termination will not be effective unless and until such breach remains uncured for a period of thirty (30) days after the delivery of such notice. (b) Insolvency. Either Party may terminate this Agreement without notice: (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the debt of either Party; (ii) upon either Party making an assignment for the benefit of creditors; or (iii) upon the dissolution of or ceasing to do business by either Party. 4 (c) Late Payment. Pro -West may terminate this Agreement pursuant to Section 2(c). (d) Effect of Termination. Upon termination of this Agreement pursuant to its terms, Pro -West will perform no Services thereafter. Client will pay for all Services rendered through the date of Termination. Termination of the Agreement will not relieve a Party in breach of this Agreement of its liability and obligations related to such breach. Notwithstanding anything herein to the contrary, the following Sections of this Agreement shall survive the termination of this Agreement and remain enforceable: 3, 4, 5, 6, 7, 8, 9, 0, and 11. 9. NONSOLICITATION OF EMPLOYEES. For that period of time beginning on the date of this Agreement and ending on the 12 -month anniversary of the date when all of the Services are completed and finished, Client will not, without the prior written consent of Pro -West, either directly or indirectly, on Client's own behalf or in the service or on behalf of others, solicit, attempt to solicit, divert, hire away, or attempt to hire away any person employed by Pro -West that in any way, whether directly or indirectly, worked on or assisted in Pro -West's provision of any portion of the Services. 10. FORCE MAJEURE. Pro -West will not be liable to Client for any delay or failure of delivery or other performance caused in whole or in part by any contingency beyond Pro - West's reasonable control, including without limitation, acts of God, acts of any government or any agency or subdivision thereof, or any acts of terrorism. 11. MISCELLANEOUS. (a) Independent Contractor. Pro -West is an independent contractor. Nothing in this Agreement will be construed as creating any joint venture, partnership, employment or agency relationship between the Parties. Assignability; Binding Effect. Pro -West may transfer or assign this Agreement, or Pro -West's rights or obligations hereunder, to any successor or assign, or to any person or entity which purchases substantially all of the assets of Pro -West. Client may not assign this Agreement, or Client's rights or obligations hereunder, except by Pro -West's prior written consent. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. (b) (c) Notice. All notices, requests, demands and other communications which are required or may be given under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when transmitted if transmitted by confirmed facsimile, electronic or digital transmission method; the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and upon receipt, if sent by certified or registered mail, return receipt requested. In each case notice will be sent pursuant to the notice information set forth on the signature page to this Agreement. Any Party may change such Party's notice information by notice to 5 the other given as set forth in this paragraph above, and such change will be effective when received pursuant to the prior provisions of this paragraph. (d) Entire Agreement. This Agreement, together with the Schedules, constitutes the entire agreement between Pro -West and Client regarding the Services and may not be amended or modified except by a writing signed by both Parties. This Agreement supersedes any and all prior representations, proposals, agreements, negotiations, advertisements, statements or understandings, whether written or oral, relating to the Services or to any subject covered by this Agreement. For the avoidance of doubt. (e) Purchase Orders. The Parties agree: (i) that orders for Services may be made or modified pursuant to a purchase order from Client that is agreed to by Pro -West, in writing, and (ii) that any pre-printed terms and conditions on any such purchase order from Client shall not be applicable or enforceable, even if Pro -West has agreed to the purchase order. Use of Definitions in Schedules. Unless defined to the contrary in the Schedules, terms used in the Schedules that are defined in this Agreement will have the same meaning as given in this Agreement. Severability. Any invalidity, in whole or in part, of any provision of this Agreement will not affect the validity of any other provisions in this Agreement, which will remain in full force and effect. Waiver and Modification. No provision of this Agreement will be deemed waived, modified or amended, and no breach excused, unless such waiver, modification, amendment or excuse is made in a writing signed by the Parties. The waiver of one default under this Agreement will not constitute a waiver of any subsequent default. Limitation of Actions. Client may not bring any claim or counterclaim upon any cause of action arising out of or related to this Agreement or the Services more than ninety (90) days after such cause of action arises. Governing Law. This Agreement will be construed and enforced in accordance with the laws of the State of Minnesota, without regard to its conflict of law principles. The Minnesota State court in Cass County and the Federal court in Duluth, Minnesota, will have exclusive jurisdiction, and the Parties will submit to such jurisdiction, in the event of any action, suit or proceeding arising out of or related to this Agreement. [Signature Page Follows] 6 The Parties have entered into this Agreement as of the date set forth in the preface of this Agreement. Pro -West: Pro -West & Associates, Inc. signature: Ke()6(LN I name: Kendis Scharenbroich title: Vice President date: 11-18-16 Client: client name: signature: erij 04 6,vi-erlob OvCbtsqrstL4-- name: CIA( CS Vo u n5‘4 title: L-vc o -C date: It'f8) <fp eto R9