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EXHIBIT 10.6
[EMERALD SOLUTIONS LOGO]
PROFESSIONAL SERVICES AGREEMENT
CLIENT: xxxxxxxxxxx.xxx
ADDRESS: 0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
A. Client is a Delaware corporation.
B. Emerald Solutions, Inc., a Washington corporation ("Emerald")
provides systems integration and professional services in information
technology.
C. Client desires to retain Emerald to provide certain services as
described in the attached Statement of Work and all future Statements of Work.
NOW THEREFORE, for and in consideration of the mutual representations,
warranties, covenants and agreements set forth below, the parties agree as
follows:
1. SERVICES.
(a) Statement of Work.
Emerald shall perform for Client the services (the "Services")
described in the Statement of Work attached hereto for the period of time set
forth in the Statement of Work unless this Agreement is earlier terminated
pursuant to Section 10(b) hereof (the "Term").
(b) Additional or Replacement Services.
The parties may agree upon additional or replacement Services and
the terms and conditions upon which Emerald shall perform such additional or
replacement Services. Upon such agreement as to the additional or replacement
Services, the parties shall consider the additional or replacement Services to
be "Services" for all purposes of this Agreement and shall modify the Statement
of Work to reflect the additional or replacement Services.
(c) Emerald's Personnel and Obligations.
(i) Emerald shall staff the Services initially with those
individuals specified on the Statement of Work. Emerald may in its reasonable
discretion substitute or add other personnel, including subcontractors, and will
notify Client of such changes in writing and amend the Statement of Work hereto.
(ii) Client shall provide qualified personnel adequate to perform
those tasks for which Client is responsible as set forth in the Statement of
Work.
(iii) In developing estimates and time schedules, Emerald
considers all of its available consultants, regardless of location and including
Emerald's subcontractors. Emerald also plans that its consultants will work as
much as possible at Emerald's locations; therefore, Emerald's consultants may
perform billable work for Client even though they are not at Client's locations.
(iv) Emerald does not undertake to perform any obligation of
Client, whether regulatory or contractual, or to assume any responsibility for
Client's business or operations. Emerald has the sole right and obligation to
supervise, manage, contract, direct, procure, perform or cause to be performed
all Services.
(v) Client shall inform and Emerald shall comply with all
reasonable workplace standards and policies, applicable to Client's employees,
while Emerald personnel are physically located at Client's premises.
(vi) Emerald may subcontract the performance of any of the
Services. Emerald shall be responsible for
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all performances under this Agreement by its subcontractors as if they were
Emerald employees. For purposes of this Agreement, references to "Emerald
personnel" or similar words shall be deemed to include any subcontractor or any
subcontractor's personnel.
(d) Conformance to Law.
Emerald shall perform the Services in material compliance with all
applicable federal, state and local laws, regulations, ordinances and other
legal requirements applicable thereto (collectively, the "Laws").
(e) Changes in Laws Affecting Services.
During the Term, Client shall advise Emerald of any proposed law,
regulation or other requirement of which Client becomes aware which, if adopted,
would require modification of or change to any advice, program, plan,
specification, recommendation, report or other services to Client previously
made during the course of this Agreement. Emerald shall have the right to modify
or change the Services to conform to all Laws.
(f) Access to Facilities and Technical Materials.
Client shall provide access to Client's facilities for all
Emerald's personnel as required to perform the Services, and all source code,
associated macros and other relevant materials on which the Service is to be
performed. Client shall also provide work space, workstations, computer machine
time, software, security arrangements, modem and telephone connections, access
to photocopiers and facsimile equipment, and materials necessary for Emerald to
perform the Services at Client's facilities.
(g) Project Leaders.
Emerald and Client shall each designate a project leader (the
"Project Leader"), who shall act as the authorized representatives of the
parties for issues arising with respect to the Services and the "Procedures" (as
defined in Section 2(a)). The parties agree that directions given by any person
other than the Project Leader of a party shall be binding on the other party
only with the written approval of that party's Project Leader.
2. PROCEDURES.
(a) Procedures.
Emerald and Client shall establish the order in which Emerald will
perform the Services, the priorities with respect to each separate project
within the Services and other procedures to be followed by the parties
(collectively, the "Procedures"). The parties shall set forth the Procedures on
Exhibit A. Emerald and Client agree that they will hold regular meetings to
discuss the status of the projects and the priorities for the Services as set
forth on Exhibit A.
(b) Procedure Amendments.
The parties shall each retain the right to propose from time to
time amendments, modifications, changes, additions or other alterations (an
"Amendment") to the Procedures, which Amendments shall become effective only
upon the mutual agreement of the parties hereto. The parties shall add any
Amendment to Exhibit A. Client acknowledges that, due to the various factors and
requirements imposed on Emerald by fixed price or performance terms, Emerald
may, in its sole discretion, agree to an Amendment of any such fixed term in the
Agreement.
3. INDEPENDENT CONTRACTORS.
Emerald's relationship with Client shall be that of an independent
contractor and not that of an employee of Client or any affiliate. Each party
shall be solely responsible for wages, salaries and other amounts due to its
respective employees or subcontractors. Each party shall be responsible for all
reports and obligations respecting its employees concerning social security,
income tax, unemployment insurance, workers' compensation and security matters.
Neither party shall have the authority to enter into contracts that bind the
other party or create obligations on the part of the other party without the
prior written authorization of such other party.
4. PAYMENT FOR SERVICES.
(a) Payment Schedule.
Client shall pay to Emerald the rates (the "Rates") as set forth
in the payment schedule attached hereto as Exhibit B. The Rates cover Emerald's
fee, all costs of operations, including benefits attributable to payroll,
overhead, wages and salaries of employees. The Rates do not include, and Client
shall pay or reimburse Emerald separately for, the gross amount of any
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sales, use, excise, occupation, privilege, value-added or other similar tax
applicable to the price, sale or furnishing of any Services or associated
materials hereunder or to their use by either Client or Emerald. Emerald
reassesses the Rates from time to time and adjustments are made when Emerald
believes such adjustments are appropriate. These adjustments may be reflected in
the Rates utilized to determine Emerald's charges to Client during the Term.
(b) Terms of Payment.
Client shall pay Emerald for the Services performed within [*]
after receipt of an invoice from Emerald. Emerald shall submit invoices weekly
(or less often at Emerald's discretion) for reimbursable costs and expenses as
those costs and expenses are incurred by Emerald and Client shall reimburse
Emerald for such costs and expenses (without markup) within [*] after receipt of
such invoice. Client shall pay interest at the rate of [*] on any balance
outstanding beyond [*] after delivery of the invoice to Client.
Emerald retains the right to establish and enforce credit terms
that it deems prudent in its sole determination. These terms may include
guarantees and/or dollar limits and may be changed with 60 days written notice
to Client. Client agrees to abide by Emerald's terms and promptly cure credit
term defaults. Emerald retains the right (in addition to all other available
remedies) to cease work on any or all projects in progress until all applicable
credit terms are fully complied with. Client specifically waives the right to
all course of action at its disposal in the event of such work stoppage.
(c) Books and Records.
Emerald agrees to keep and maintain any directly pertinent books,
documents, papers and records of Emerald involving transactions related to this
Agreement for two (2) years after the expiration of the Term.
5. SECURITY AND CONFIDENTIALITY
(a) Security.
In providing the Services under this Agreement, Emerald shall
comply with all Client systems security, virus protection and other written
policies and procedures provided to Emerald by Client. Emerald shall be
responsible for the safekeeping of data, documentation and computer media
provided to Emerald by Client, and Emerald shall adhere to a standard of care no
less than the standard of care exercised by Client.
(b) Confidentiality.
(i) In connection with their respective obligations under this
Agreement, each party may disclose certain information to the other that
includes confidential or proprietary information, trade secrets, confidential
customer information, and other information concerning operations, policies and
procedures (collectively, "Information") pertaining to past, present and future
activities. Since it is often difficult to separate confidential and proprietary
information from that which is not, each party will regard all information
gained as a result of this Agreement as confidential, solely for the purpose of
carrying out its respective obligations under this Agreement, and not to be
disclosed to any third party. Further, each party shall not disclose the terms
and conditions of this Agreement, except as may be required by law or by
governmental regulation or order, or as may be necessary to assert its rights
hereunder.
(ii) Each party shall take whatever steps are necessary to
safeguard the confidentiality of all Information, including but not limited to,
(i) limiting the availability of the Information to only those employees or
personnel who have a need to know the Information, (ii) storing the Information
and any physical embodiments of it in a reasonably secure place when it is not
being used, (iii) returning all information removed from the premises of Client
or Emerald as soon as is reasonably possible, and (iv) maintaining reasonable
security procedures to safeguard the Information from theft or access by any
unauthorized person. Each party agrees to notify the other party immediately and
fully, in writing, of all circumstances surrounding any access to or possession
of the Information (or any physical embodiment thereof) by any person other than
those authorized by this Agreement.
(iii) Each party's duty of confidentiality shall not extend to
information that (i) is already known or has been developed independently by
such party prior to disclosure by the other party, (ii) is received from a third
party who has the right to hold and disclose it, (iii) is released in writing
from confidentiality protection by the other party, or (iv) is in the public
domain, except if as a result of a breach of this Agreement.
(iv) Upon the termination of this Agreement, each party shall
return all physical embodiments of the
* We have requested confidential treatment by the Commission of those
portions of the exhibit omitted and marked with an asterisk.
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Information immediately to the other party and shall keep no copies of the
Information, except with the other party's specific written consent.
(v) Until two (2) years after the termination of this Agreement,
the parties hereby agree not to disclose the Information to any third party
without the other party's express written consent, and not to otherwise use the
Information for any purpose. The parties further agree to protect the
Information by using the same degree of care, but no less than a reasonable
degree of care, as the other party uses to protect its own similar confidential
information.
6. WARRANTIES.
(a) General Client Representations and Warranties.
Client represents and warrants that it has full power and
authority under any software licenses or other contracts relating to computer
software with regard to which Emerald is to deliver the Services, to permit
Emerald to provide such Services without liability to any third party. The
parties hereto recognize and agree that in providing the Services contemplated
hereunder, Emerald may have access to certain computer software licensed to
Client by third party licensors, and Client hereby agrees that, to the extent
necessary, Client shall be responsible for obtaining the written consent of any
licensors or other third parties necessary in connection with any software
licenses or other agreements to which Client is a party. If any such licensors
or third parties require the execution of a nondisclosure agreement or license
terms as a condition to allow Emerald to have access to computer software with
regard to which Emerald is to provide Services, Emerald shall execute, and
require any of its employees, subcontractors, consultants and contractors to
execute, any such reasonable nondisclosure or license terms.
(b) Software and Services Warranties.
(i) Developed Software.
Where the Services include tasks related to the development
of new software systems for Client, Emerald warrants that the programs developed
will perform in all material respects in accordance with the specifications
published by Emerald and approved by xxxxxxxxxxx.xxx.
(ii) Year 2000 Remediation Services.
Where the Services include tasks related to year 2000
analysis and remediation services, Emerald warrants that the computer software
performing "windowing logic" shall perform in accordance with that software's
published documentation.
(iii) General.
Emerald shall have no responsibility for performance problems
caused by alterations or modifications made by Client or a third party, or
arising out of the malfunction of Client's equipment or other software products
not supplied or analyzed and remediated by Emerald. Further, the warranties
provided only apply to the copy or version of source code upon which Emerald has
performed remediation services. If Client subsequently enhances or modifies the
program or copy books used in the program, Emerald's warranties will not apply,
to the extent the malfunction is caused by Client's enhancement or modification
or the programs affected.
(c) Services Warranties.
Emerald shall perform the Services in a professional and workmanlike
manner.
(d) WARRANTY EXCLUSION.
(i) THIS AGREEMENT PROVIDES FOR SERVICES AND IS NOT A SALE OF
GOODS.
(ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(e) Exclusive Remedies.
For any breach of warranties contained in Section 6 of this
Agreement, Client's exclusive remedy shall be as follows:
(i) For any new software systems Emerald develops for Client,
Client shall have ninety (90) days (the "Warranty Period") following delivery of
the software to Client's designated site to verify that the software conforms in
all material respects with specifications published by Emerald and approved by
xxxxxxxxxxx.xxx. Client shall provide written notice of any material
nonconformance to Emerald within the Warranty Period, including in such notice
sufficient detail to
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allow Emerald to duplicate the nonconformance. Emerald shall, at no additional
charge, provide a correction or workaround approved by xxxxxxxxxxx.xxx in the
software. Should Emerald fail to provide such correction or workaround approved
by xxxxxxxxxxx.xxx or reach a mutually acceptable plan for correction or
workaround with Client within sixty (60) business days after receipt of Client's
notice, Client's sole and exclusive remedy shall be to terminate this Agreement
as a default incapable of cure by written notice in accordance with the
termination provisions hereof delivered within ten (10) business following the
date for correction, workaround or plan for correction or workaround.
Notwithstanding the payment provisions hereof, Client shall be entitled to
receive a refund of any license or other fees paid to Emerald for the software.
(ii) For the Services, Client is entitled to re-performance of the
Services, or if Emerald cannot perform the Services as warranted, Client is
entitled to a refund of the fees paid to Emerald for the Services not in
conformance with the warranty.
EXCEPT FOR CLIENT'S REPRESENATIONS AND WARRANTIES SET FORTH IN SECTION 6(a), THE
REMEDIES SET FORTH IN THIS SECTION (`WARRANTY') SHALL BE THE SOLE AND EXCLUSIVE
REMEDY OF ANY PARTY FOR ANY BREACH BY THE OTHER PARTY OF WARRANTIES CONTAINED
HEREIN. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION, EMERALD EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN RELATION TO THE SOFTWARE
OR THE PROGRAMS DEVELOPED UNDER THIS AGREEMENT, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER ITS EMPLOYEES,
AGENTS, OR REPRESENTATIVES HAS ANY RIGHT TO MAKE ANY REPRESENTATION, WARRANTY,
OR PROMISE ON BEHALF OF EMERALD WITH RESPECT TO THE SOFTWARE OR THE PROGRAMS. IN
NO EVENT SHALL EMERALD BE LIABLE TO CLIENT FOR A MONETARY AMOUNT GREATHER THAN
THE AMOUNTS PAID OR DUE PURSUANT TO THIS AGREEMENT. THE LIMITATIONS SET FORTH IN
THIS SECTION SHALL APPLY EVEN IF ANY OTHER REMEDIES FAIL OF THEIR ESSENTIAL
PURPOSE.
7. OWNERSHIP.
All work product, documentation, computer programs, source code,
software products or system design specifications reduced to writing or other
tangible form that are produced by Emerald for xxxxxxxxxxx.xxx pursuant to this
Agreement ("Software Product), shall be the exclusive property of
xxxxxxxxxxx.xxx.
All ideas, concepts, techniques, inventions, procedures, methods,
utilities, tools, discoveries or improvements, whether patentable or not, that
are conceived of or reduced to practice by Emerald or by one or more Emerald
employees or agents in the performance of services for Emerald or
xxxxxxxxxxx.xxx under this Agreement, whether acting alone or in conjunction
with xxxxxxxxxxx.xxx's employees, or others ("Inventions"), shall be the
exclusive property of Emerald. With respect to any Invention, Emerald hereby
grants to xxxxxxxxxxx.xxx and to any entity that directly, or indirectly through
one or more intermediaries, controls or is controlled by, or is under common
control with, xxxxxxxxxxx.xxx, a non-exclusive, non-transferable, limited,
perpetual, royalty-free license to use such Inventions in the normal course of
xxxxxxxxxxx.xxx's business.
8. INSURANCE.
Emerald will secure and maintain reasonably adequate worker's
compensation insurance in accordance with the law of the work site. Emerald will
also maintain comprehensive general liability and property damage insurance in
accordance with generally accepted industry standards.
9. INDEMNIFICATION
Each party will defend, indemnify, and hold the other party, its
officers, directors, agents and employees, harmless from any claims or
liabilities brought against it or its licensors, including attorneys' fees,
costs and expenses at trial, on appeal or on any petition for review, based on
any claim that any work or materials delivered to the party pursuant to this
Agreement violate or infringe upon the intellectual property rights of any other
party or a breach of the delivering party's contractual obligations hereunder;
provided, however, this subsection shall not apply where such injury or damage
is caused by the negligence or willful misconduct of the party claiming
indemnification, or that party's agents or employees. Notwithstanding the
foregoing, whether or not the possibility of such damages has been disclosed or
is reasonably foreseeable, neither party shall be liable to the other for
special, incidental, exemplary or consequential damages, including, but not
limited to, loss of data, sales, profits or revenue, loss of use of equipment or
data, cost of capital, cost of substitute equipment,
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facilities or services, downtime costs, or claims of customers of either party
for such damages.
10. TERM, EXTENSION AND TERMINATION.
(a) Term.
The term of the Agreement shall commence on the date set forth
above and shall remain in effect for the period set forth in one or more
Statements of Work.
(b) Extension.
In the event that Emerald has not completed the Services during
the Term, Emerald and Client shall extend this Agreement on the terms and
conditions mutually agreed to by the parties. If the parties cannot agree on the
terms of such extension, then this Agreement will expire on its terms.
(c) Termination.
(i) Either party may terminate this Agreement in the event of a
material breach by the other party of any representation, warranty, condition or
covenant of this Agreement. The non-breaching party shall give the breaching
party [*] prior written notice with an opportunity to cure the breach within
such [*] period. In the event that the breaching party fails to cure the breach
within the [*] period, the non-breaching party shall have the right to terminate
this Agreement.
(ii) This Agreement may be terminated by either party without
prior notice if:
(A) the other party files a petition for bankruptcy or is
adjudicated a bankrupt;
(B) a petition in bankruptcy is filed against the other
party;
(C) the other party becomes insolvent or makes an
assignment for the benefit of its creditors or an arrangement for its creditors
pursuant to bankruptcy law;
(D) the other party discontinues its business; or
(E) a receiver is appointed for the other party or its
business.
(iii) An individual Statement of Work may be terminated by
xxxxxxxxxxx.xxx at its discretion, at any time, provided that a reasonable ramp
down period is established and agreed to by both parties.
11. NONCOMPETITION, NONSOLICITATION, AND EXCLUSIVITY
(a) Noncompetition.
Each party agrees that during the Term and for a period of twelve
(12) months thereafter, neither it nor any person or entity affiliated with it,
will (i) induce or attempt to induce the other party or any customer, supplier,
licensee or business relation (each, a "Customer") of the other party to alter
in any way its business relationship with the other party, including without
limitation any attempt to induce a Customer to decrease the quantity of business
conducted with the other party or induce or encourage a Customer to not enter
into an expanded business relationship with the other party, or (ii) interfere
in any way with the relationship of the other party or any customer, supplier,
licensee or business relation.
(b) Nonsolicitation.
Each party agrees that during the term of this Agreement and for a
period of twelve (12) months thereafter, neither it nor any person or entity
affiliated with it, will directly or indirectly employ or otherwise engage in
any capacity any person who is or has been an employee of the other party at any
time during the term of this Agreement, nor will a party or any affiliate
solicit or encourage any such person of the other party to leave the employ of
the other party for any reason, unless authorized, in writing, by Emerald. Each
party agrees that the harm to the other party from any breach of this Section
11(b)may be difficult to determine and may be wholly or partially irreparable.
(c) Exclusivity
Based on xxxxxxxxxxx.xxx paying all invoices, in full, within 30
days of receipt, throughout the life of this agreement, both parties agree to
the following exclusivity provision. Both parties recognize that the
relationship between Emerald and xxxxxxxxxxx.xxx provides a critical competitive
advantage to xxxxxxxxxxx.xxx in their market. In recognition of this competitive
advantage Emerald agrees to not engage in consulting and project work for
xxxxxxxxxxx.xxx's competitors, [*]
* We have requested confidential treatment by the Commission of those
portions of the exhibit omitted and marked with an asterisk.
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[*]
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12. DISPUTE RESOLUTION.
All disputes involving this Agreement, except actions arising under the
patent and copyright provisions of the U.S. Code, shall be submitted to a panel
of three (3) arbitrators appointed and operating under Uniform Arbitration Act
and the procedural rules of the American Arbitration Association. Such panel
shall include only persons with experience in the areas of information
technology or computer software licensing, installation or implementation. Each
party shall choose one (1) arbitrator, and the third arbitrator shall be chosen
by the two- (2) arbitrators thus selected by the parties. The place of the
arbitration shall be Seattle, Washington. The written decision of the
arbitrators shall be final, binding and convertible to a court judgment in any
appropriate jurisdiction.
13. MISCELLANEOUS
(a) The section headings used in this Agreement are for convenience only
and are not intended to limit or to extend the meaning of any part of this
Agreement.
(b) Except as otherwise expressly provided in this Agreement, this
Agreement may not be amended, modified, altered or supplemented other than by
means of a written instrument duly executed and delivered on behalf of Emerald
and Client. The parties agree that the terms and conditions included in each
parties standard printed forms which purport to amend, alter, modify, change, or
supplement all or any part of this Agreement shall be of no force and effect.
(c) This Agreement, all associated Statements of Work, and
Nonsolicitation Exemptions, if any, constitute the entire agreement of the
parties hereto with respect to the matters contemplated hereby, and no other
agreement, statement or promise, made by any party hereto, that is not contained
herein shall be binding or valid.
(d) Each of the parties acknowledges and agrees that the other party
would be damaged irreparably in the event any of the provisions of Sections 5
and 11(a) are not performed in accordance with their specific terms or otherwise
are breached. Accordingly, each of the parties agrees that the other party shall
be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court located in the
state of Washington, in addition to any other remedy to which they may be
entitled, at law or in equity. Each of the parties submits to the jurisdiction
of any federal court, sitting in the state of Washington, in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court.
(e) Any notice required or permitted to be given under this Agreement,
including, without limitation, all requests for approval or consent, shall be
personally delivered or sent by registered or certified first class U.S. Mail,
return receipt requested, by a recognized overnight courier service, by hand
delivery, or by confirmed facsimile transmission and shall be deemed given upon
receipt. All such notices shall be delivered to the Client at the address
following its signature, and to Emerald as follows:
If to Emerald: Emerald Solutions, Inc.
000 - 000xx Xxxxxx XX,
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx,
Vice President and Chief
Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
00000 XxxXxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esquire
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(f) The waiver by any party hereto of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. Any waiver of a term, covenant or
condition in this Agreement shall be valid only if in writing.
(g) In the event of any action or proceeding at law or in equity between
Client and Emerald to enforce or interpret any provision of this Agreement or to
protect or establish any right or remedy of either party hereunder, the party
not prevailing in such action or
* We have requested confidential treatment by the Commission of those
portions of the exhibit omitted and marked with an asterisk.
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proceeding shall pay to the prevailing party all costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses, incurred therein by
such prevailing party and if such prevailing party shall recover judgment in any
such action or proceeding, such costs, expenses and attorneys' fees shall be
included in and as part of such judgment.
(h) The language in all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning and not strictly for or
against either party. The parties acknowledge that each party and its counsel
have reviewed this Agreement and participated in its drafting and therefore that
any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be applied in the construction or
interpretation of this Agreement. In this Agreement, the neuter gender includes
the feminine and masculine, and the singular number includes the plural wherever
the context so requires.
(i) In the event that either party is unable to perform any of its
obligations under the Agreement or to enjoy any of its benefits because of, or
if loss of the product is caused by, natural disaster, actions or decrees of
governmental bodies or communications line failures not the fault of the
affected party ("Force Majeure Event"), the party who has been so affected
immediately shall give notice to the other party and shall do everything
possible to resume performance. Upon receipt of such notice, the Agreement shall
be immediately suspended. Delays in delivery due to a Force Majeure Event shall
automatically extend the delivery date(s) for the period equal to the duration
of such Force Majeure Events; any warranty period affected by a Force Majeure
Event shall likewise be extended for a period equal to the duration of such
Force Majeure Event.
(j) In the event that any provision of this Agreement, or the
application of any such provision to any person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected and
shall continue to be valid and enforceable to the fullest extent permitted by
law.
(k) This Agreement shall be interpreted and construed under and pursuant
to the laws of the State of Washington, other than those laws that would require
the application of the laws of another forum.
(l) Client shall neither assign its rights nor delegate its duties under
this Agreement without prior written consent of Emerald. This prohibition of
assignment and delegations extends to all assignments and delegations that
lawfully may be prohibited by agreement. Assignment for purposes of this
Agreement shall include transfers by operation of law, merger, cessation of
operations, liquidation, acquisition or consolidation. Subject to the foregoing,
the provisions of this Agreement shall be binding upon and inure to the benefit
of both parties and their respective legal representatives, successors and
assigns.
(m) Unless otherwise specifically indicated, all provisions set forth in
this Agreement are independent of one another, and the obligations or duty of
either party hereto under any one provision is not dependent on either party
performing under the terms of any other provision.
(n) Time is hereby expressly declared to be of the essence of this
Agreement and of each and every term, covenant, agreement, condition and
provision hereof.
(o) Neither party shall publicly announce or disclose the terms and
conditions of this Agreement except that Emerald may use Client's name as a
reference in Emerald's sales calls and in lists of Emerald's customers. Emerald
shall be entitled to disclose detailed project related information and system
functionality descriptions as may be useful in sales presentations.
xxxxxxxxxxx.xxx agrees to allow Emerald an automated link (URL) on their website
denoting Emerald as the site developer. Such link will be designed and
maintained by Emerald. The size, location, and appearance of the automated link
must be approved by xxxxxxxxxxx.xxx. In the event this Agreement is terminated,
the provisions of this section shall survive only upon written consent of
xxxxxxxxxxx.xxx.
(p) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
(q) The parties agree that this Agreement is not subject to and shall
not be interpreted by the United Nations Convention on Contracts for the
International Sale of Goods.
(r) This Agreement or schedule or exhibit thereto may be accompanied by
Client's purchase order or other instrument covering the subject matter of this
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Agreement. Such purchase order or other instrument is for Client's internal use
and shall affect this Agreement.
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IN WITNESS WHEREOF, the parties have hereunto set their hands by
proper persons duly authorized, the day and year first above written.
EMERALD SOLUTIONS, INC. CLIENT:
By: /s/ XXXXX X. XXXXX By: /s/ XXXX X. XXXXXXXXX
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Print: Print: Xxxx X. Xxxxxxxxx
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Its: CFO Its: CFO
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Dated as of September 15, 1999
Address for Notices:
0000 X. 00xx Xxxxxx
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Suite 150
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Xxxxxxxxxx, Xxxxxxx 00000
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11
EXHIBIT A
PROCEDURE
PROJECT PRIORITIES:
- Web Based, Golf Tee Time Reservation SySTEm
- Golf School Module
- ONYX Implementation
All three projects may be worked simultaneously.
11
12
EXHIBIT B
1999 BILLING RATES
FOR XXXXXXXXXXX.XXX
JOB LEVEL HOURLY RATE
--------- -----------
EXECUTIVE/VP [*]
DIRECTOR [*]
PRINCIPAL
SENIOR MANAGER [*]
SENIOR TECHNICAL ARCHITECT
MANAGER [*]
TECHNICAL ARCHITECT
SENIOR CONSULTANT [*]
CONSULTANT [*]
ASSOCIATE [*]
THE CLIENT WILL BE INVOICED WEEKLY FOR ACTUAL HOURS WORKED ON THE RESPECTIVE
PROJECTS ACCORDING TO THE RATES ESTABLISHED IN THE APPLICABLE STATEMENT OF WORK
OR AS LISTED ABOVE. EMERALD SOLUTIONS RESERVES THE RIGHT TO ADJUST CONSULTANT
BILLING RATES AFTER PROVIDING 30 DAYS NOTICE TO CLIENT.
* We have requested confidential treatment by the Commission of those
portions of the exhibit omitted and marked with an asterisk.
