Professional Services Agreement
This Professional Services Agreement ("Agreement") is entered into by
and between Predictive Systems, Inc. ("Predictive"), a Delaware corporation with
offices at 417 Fifth Avenue, New York, NY 10016, and RiverSoft Inc ("Customer")
with offices at 650 Fifth Avenue, 21st Floor, New York, NY 10019.
1. SERVICES
1.1. Statements of Work
All services to be provided by Predictive to Customer under the
terms of this Agreement (interchangeably referred to as "Projects" or
"Services") must be set forth in a written statement signed by both
parties (each a "Statement of Work"). All Statements of Work shall
state the Services to be provided, the applicable fees of Predictive,
and such other terms as the parties shall agree. The initial Statement
of Work is set forth in Attachment A hereto. Customer may, from time to
time, identify services which Customer desires to be provided by
Predictive and, upon mutual agreement of both parties about the details
of the services to be provided and the applicable fees, the parties
shall execute a Statement of Work. Upon execution by both parties,
Statements of Work shall become an integral part of this Agreement for
purposes of the Services/Projects set forth in such Statements of Work.
1.2. Qualified Personnel
Predictive shall provide qualified personnel to perform the
Services, and expressly reserves the right to replace such personnel
with other qualified personnel with notification to the Customer within
a reasonable time period, provided it does not materially adversely
affect the Project completion schedule. Customer has the right to
request a replacement for any such personnel who do not perform to the
required standards or who the Customer believes is insufficiently
qualified for the role under this Agreement and Predictive shall
provide such a replacement within a reasonable time period.
Project Delay
Predictive shall not be responsible for any delay in the
performance of Services due to causes beyond the reasonable control of
Predictive. Predictive must notify the Customer as soon as it becomes
aware of any likely performance delays and advise on the expected
impact of the said delay.
1.3. Subcontracting
Predictive reserves the right to subcontract to third parties
any or all Services or Deliverables (as defined below) to be provided
by Predictive under this Agreement. The use of any and all third party
subcontracts must be approved by the Customer prior to their use, such
approval shall not be unreasonably withheld. In the case of any such
subcontracting, Predictive shall retain the responsibility for the work
that is subcontracted.
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2. TERM
This Agreement is effective on the later of the dates on which the
parties execute this Agreement ("Effective Date"). The initial term of this
Agreement ("Initial Contract Period") shall commence on the Effective Date and
shall continue in effect according to the schedule in the initial Statement of
Work (Attachment A) unless sooner terminated pursuant to Paragraphs 10.1 through
10.3 hereof. After the Initial Contract Period, this Agreement shall continue in
effect for the duration specified in any other Statement of Work, or if no such
period is specified, on a monthly basis until terminated pursuant to Paragraph
10.4 hereof.
3. IMPLEMENTATION
By execution of this Agreement, Customer authorizes Predictive to begin
implementing the Project set forth in the initial Statement of Work (Attachment
A).
4. CHARGES AND PAYMENT
4.1. Fees
The fees for the initial Statement of Work (Attachment A) are
based on a scale as set forth in Attachment A. If Predictive is
required to provide Services beyond the agreed upon term or scope of
any Statement of Work, Predictive may with the mutual agreement of the
Customer make revisions to any part of such Statement of Work,
including, without limitation, the right to increase the fees, provided
that this change is in accordance with the scales in Attachment A, and
provided that Predictive gives Customer at least thirty (30) days prior
written notice describing the changes. Upon receipt of such notice,
Customer shall cooperate with Predictive in promptly making any
necessary written modifications to the applicable Statement of Work.
Any changes to the standard rates must be mutually agreed between
Predictive and the Customer prior to their use.
4.2. Travel And Living Expenses
Customer shall be charged and agrees to pay for any reasonable
travel or living expenses incurred by Predictive while performing the
required Services in any location beyond a 50 mile radius of a
Predictive office.
4.3. Payment
a) Customer shall pay Predictive all fees and expenses under this
Agreement without deduction or setoff. All payments shall be mailed
to Predictive's address stated on the invoice.
b) Invoices shall be issued monthly unless otherwise stated in
Attachment A or other applicable Statements of Work. Customer shall
pay invoices within thirty (30) days from the date stated on the
invoice
c) Customer shall be held liable for any late fees or assessments for
any invoices not paid within thirty (30) days from the date stated
on the invoice. The thirty-first day after the date stated on the
invoice shall be considered the first day of delinquency, and late
fees shall be assessed at the rate of 1.5% per month, or, if lower,
the maximum rate allowed by law. In the event payment is not made
and Customer's account is referred to a collection agency, Customer
will pay all costs of collection.
4.4 Taxes
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Customer shall be solely responsible for the payment, when and
as due, of any and all taxes due on the Projects regardless of how such
taxes may be designated (excluding taxes on Predictive's net income).
5. CUSTOMER'S RESPONSIBILITIES CONCERNING THE PROJECT
5.1. General Responsibilites
a) Customer shall provide Predictive with any information, data,
designs, or documentation required by Predictive to perform the
Services.
b) Customer shall ensure that appropriate personnel of Customer are
available to provide information and other support to Predictive
during the term of this Agreement.
c) Customer shall make the following resources available to Predictive
if the Services are to be performed at Customer's facility:
i) A secure work space with telephone.
ii) Access to Customer's computer system, software, and ancillary
equipment, if applicable.
iii) Operating supplies.
iv) Adequate storage space for work materials.
v) Any project-specific training to Customer's employees that is
necessary for Predictive to perform the required Services.
d) Customer shall make available the further resources, facilities and
personnel, and shall have the further responsibilities, if any, set
forth in the applicable Statement of Work.
5.2. Use Of Services
Customer shall use the Services only for lawful purposes.
Customer will defend, indemnify and hold harmless the Predictive Group
(as defined for purposes of indemnification in Paragraph 11.2 hereof),
from and against any and all liabilities, judgments, losses, costs
(including, without limitation, reasonable fees and disbursements of
counsel incurred by the Predictive Group in any action or proceeding
between the Predictive Group and Customer or between the Predictive
Group and any third party or otherwise), damages, expenses, claims and
demands by any person that result from a breach of this Paragraph
5.3. Customer Contact
The parties shall each designate in Attachment A and in each
subsequent Statement of Work a single point of contact to be the
project administrator (the "Project Administrator") for the Project.
The parties shall provide to the other party ten (10) business days
prior written notice of any changes in the Project Administrator
describing the changes.
5.4. Testing
Customer shall cooperate with Predictive in Predictive's Project
implementation and testing.
5.5. Changes
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Customer shall notify Predictive in advance concerning any
changes that may affect Predictive's ability to provide the Services.
5.6. Project-Specific Obligations
In order for Predictive to render the Services contemplated by
this Agreement, Customer must perform its obligations as identified in
this Agreement, the schedules and attachments hereto. Predictive shall
not be responsible for any delay or failure of performance arising out
of Customer's failure to perform such obligations.
6. CUSTOMER REQUESTS FOR ADDITIONAL OR MODIFIED SERVICES
All subsequent additions, deletions or changes to the Services desired
by Customer under a specific Statement of Work, including use by third parties,
shall be subject to mutual agreement between Customer and Predictive and shall
be set forth in a written schedule or addendum to the applicable Statement of
Work which will become an integral part of such Statement of Work upon the later
of the dates on which the parties execute such schedule or addendum.
7. RESTRICTIONS REGARDING EMPLOYEES
7.1. Restrictions Against Solicitation And Hiring.
While this agreement is in effect, and for a period of twelve
months subsequent to the termination of this agreement, neither
Predictive nor Customer (including either party's subsidiaries and
affiliates) shall (i) solicit for employment any of the other party's
employees, without the prior written consent of such other party or
(ii) employ, either directly or indirectly (as a consultant,
independent contractor or otherwise), any of the other party's
employees.
8. OWNERSHIP AND USE OF INFORMATION AND MATERIALS
Upon receipt of full payment from Customer, Predictive hereby assigns
to Customer all rights, title and interest, including, without limitation,
copyrights, trade secrets and other intellectual property rights, to the
deliverables, if any, prepared by Predictive specifically for Customer under
this Agreement (the "Deliverables"). Predictive hereby agrees to provide
Customer with reasonable assistance, at Customer's sole expense, in perfecting
the foregoing assignment. Notwithstanding the foregoing, the assignment under
this Section 8 shall not include any third party works and products used in
developing or within the Deliverables. Further, the Deliverables shall not
include any technology, techniques, methodologies, programs, code, objects,
inventions, data, designs, graphics, specifications, and other reusable
components (the "Underlying Components") owned or developed by Predictive prior
to, in the course of, or independent of the Project. Customer understands and
agrees that the Underlying Components shall be solely owned by Predictive. In
the event that any Underlying Components are embedded in any Deliverables,
Predictive hereby grants to Customer a personal, perpetual, non-exclusive,
non-transferable and fully paid-up limited license to use such Underlying
Components solely in relation to its use of the corresponding Deliverables. In
addition, Predictive at all times retains the right to use its knowledge,
skills, experience, ideas, concepts, processes and techniques developed in the
course of performing the Services.
9. THIRD PARTY USE
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The following provisions shall apply to any Third Party to whom
Customer grants, or is required to grant, rights to use the Services (the "Third
Party"):
a) Customer shall be solely responsible for obtaining from each such
Third Party any information, access to premises, and other
cooperation reasonably needed by Predictive in connection with this
Agreement.
b) Predictive's performance obligations under this Agreement shall be
solely to Customer, and not to any Third Party. Customer will
indemnify, defend, and hold harmless the Predictive Group, against
any and all liabilities, judgments, losses, costs (including,
without limitation, reasonable fees and disbursements of counsel
incurred by the Predictive Group in any action or proceeding between
the Predictive Group and Customer or between the Predictive Group
and any third party or otherwise), damages and expenses arising from
any and all claims or actions by any Third Party in connection with
the Project, regardless of the form of claim or action, whether in
contract, tort, warranty, or strict liability.
10. TERMINATION
10.1. Termination For Convenience By Customer
Customer may terminate this Agreement or a particular Statement
of Work by giving thirty (30) days advance written notice to
Predictive. The Customer shall then pay within (30) days all unpaid
amounts that have been incurred as of the date of termination plus a
termination charge equal to thirty percent (30%) of the total remaining
fees that would have been due under the terminated Statement(s) of
Work, if the remainder of the Services described therein had been fully
performed The remainder balance shall be computed by subtracting the
value of paid invoices from the total value of the Services under the
terminated Statement(s) of Work. The parties agree that such
termination charge shall constitute consideration for Predictive's
time, effort and expense in preparing to perform its obligations,
hereunder, as actual damages are difficult to ascertain.
10.2. Termination For Breach By Customer
If Customer fails to pay any outstanding charges within
forty-five (45) days after receipt of written notice of delinquency, or
if Customer fails to perform or observe any other material term or
condition of this Agreement for forty-five (45) days after receipt of
written notice from Predictive of such failure, Customer shall be in
default and Predictive may, without prejudice to any other right or
remedy, suspend performance under, or terminate, this Agreement in its
entirety, or in relation to a particular Statement of Work. Any unpaid
charges or other obligations accrued prior to such termination shall
survive termination of this Agreement or Statement of Work, as
applicable.
10.3. Termination For Breach By Predictive
If Predictive fails to perform or observe any material term or
condition of this Agreement for forty-five (45) days after Predictive's
receipt of written notice from Customer of such failure and has not
commenced performance or observance of such material term or condition
within such 45-day period, Customer may terminate this Agreement in its
entirety, or in relation to a particular Statement of Work. Following
termination, Customer shall pay within forty-five (45) days all unpaid
charges that have been incurred as of the date of termination.
10.4. Termination Following Expiration of all Periods Specified in
Statements of Work
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If this Agreement is continuing on a monthly basis after the
expiration of all periods specified in any Statement of Work, either
party may terminate this Agreement with or without cause by giving
thirty (30) days advance written notice to the other party. Following
termination, Customer shall pay within forty-five (45) days all unpaid
charges that have been incurred as of the date of termination.
10.5. Termination For Insolvency
Either party may terminate this Agreement if the other party
becomes insolvent, files a Petition in Bankruptcy, or ceases doing
business. Following termination, Customer shall pay within forty-five
(45) days all unpaid charges that have been incurred as of the date of
termination.
11. WARRANTY AND LIMITATION OF LIABILITY
11.1 Warranty And Disclaimer
PREDICTIVE WARRANTS THAT IT WILL PERFORM THE SERVICES IN A
WORKMANLIKE MANNER. PREDICTIVE MAKES NO OTHER WARRANTY OR GUARANTEE,
EXPRESSED OR IMPLIED, UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK,
AND PREDICTIVE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation Of Liability
FOR PURPOSES OF INDEMNIFICATION BY CUSTOMER, "THE PREDICTIVE
GROUP" SHALL MEAN PREDICTIVE, PREDICTIVE'S PARENT AND ANY AFFILIATED
AND SUBSIDIARY COMPANIES, AND THE EMPLOYEES, OFFICERS, AGENTS, AND
SUBCONTRACTORS OF ALL OF THEM.
a) TO THE EXTENT NOT PROHIBITED BY LAW, PREDICTIVE'S TOTAL LIABILITY TO
CUSTOMER, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED IN THE
AGGREGATE TO THE DIRECT DAMAGES THAT ARE PROVEN OR, IF LESSER, TO
THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO PREDICTIVE UNDER THE
STATEMENT OF WORK UNDER WHICH SUCH LIABILITY ARISES.
b) IN NO EVENT SHALL EITHER PARTY BE LIABLEFOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES, INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR HARM TO BUSINESS, LOST PROFITS, LOST SAVINGS
OR LOST REVENUES, WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
c) THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY OR TORT,
INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OF ANY KIND WHETHER ACTIVE
OR PASSIVE.
d) FURTHERMORE NEITHER PARTY SHALL BE LIABLE FOR (1) IMPAIRMENTS CAUSED
BY ACTS OR OMISSIONS OF CUSTOMER, ITS AGENTS, EMPLOYEES, OR
LICENSEES, OR (2) THE LACK OF INTEROPERABILITY OF SPECIFIC CUSTOMER
APPLICATIONS.
12. INFRINGEMENT INDEMNIFICATION
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Predictive will indemnify, defend, and hold harmless Customer from and
against any and all liabilities, judgments, losses, costs (including, without
limitation, reasonable fees and disbursements of counsel incurred by Customer in
any action or proceeding between Customer and Predictive or between Customer and
any third party or otherwise), damages, and expenses arising from any third
party claims that any Deliverable infringes or misappropriates a patent,
copyright or trade secret; provided, however, that the foregoing indemnification
obligation shall not apply to any alleged infringement or misappropriation based
on: (i) use of the Deliverable in combination with products or services not
provided by Predictive to the extent that such infringement or misappropriation
would have been avoided if such other products or services had not been used;
(ii) any modification or enhancement to the Deliverable made by Customer or
anyone other than Predictive or its subcontractors; or (iii) use of the
Deliverable other than as permitted under this Agreement.
13. INDEMNIFICATION PROCEDURE
Any party (the "Indemnitee") that intends to claim indemnification
under this Agreement shall promptly notify the other (the "Indemnitor") of any
claim, demand, action or other proceeding ("Claim") for which the Indemnitee
intends to seek indemnification, and the Indemnitor shall have the right to
participate in, and, to the extent the Indemnitor so desires, to assume sole
control of the defense thereof with counsel selected by the Indemnitor. The
indemnity obligations under this Agreement shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the consent of
the Indemnitor, which consent shall not be unreasonably withheld or delayed. The
failure to deliver notice to the Indemnitor within a reasonable time after the
Indemnitee receives notice of a Claim, if prejudicial to Indemnitor's ability to
defend such Claim, shall relieve the Indemnitor of its indemnification
obligations to the Indemnitee under the provisions of this Agreement, but the
failure to deliver such notice to the Indemnitor shall not relieve the
Indemnitor of any other liability that it may have to the Indemnitee under this
Agreement or otherwise. The Indemnitee, its employees and agents shall cooperate
fully with the Indemnitor and its legal representatives in the investigation of
any Claim covered by an indemnification from the Indemnitor.
14. CONFIDENTIALITY
Each party agrees to maintain all Confidential Information (as defined
below) of the other party in confidence to the same extent that it protects its
own similar Confidential Information (but in no event less than a reasonable
degree of care) and to use such Confidential Information only as permitted under
this Agreement. For purposes of this Agreement, "Confidential Information" shall
mean information including, without limitation, computer programs, code,
objects, algorithms, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical, business, financial and
product development plans, forecasts and strategies, appropriately marked as
confidential or proprietary to the disclosing party, or which, under all
circumstances, ought reasonably to be treated as confidential and/or
proprietary. Each party agrees to take reasonable precautions to prevent any
unauthorized disclosure or use of Confidential Information including, without
limitation, disclosing Confidential Information only to its employees and in the
case of Predictive, its subcontractors (a) with a need to know to further
permitted uses of such Confidential Information and (b) who are parties to
appropriate agreements sufficient to comply with this Section 14, and both
parties shall take appropriate steps to implement and enforce such
non-disclosure/non-use obligations. The foregoing restrictions on disclosure and
use shall survive in perpetuity following termination of this Agreement.
Notwithstanding the foregoing, Confidential Information shall not include any
information that: (i) was or becomes publicly known through no fault of the
receiving party; (ii) was rightfully known or becomes rightfully known to the
receiving party without confidential or proprietary restriction from a source
other than the disclosing party; (iii) is independently developed by the
receiving party without access to the Confidential Information; (iv) is approved
by the disclosing party for disclosure without restriction in a written document
which is signed by a duly authorized officer of such disclosing party; or (v)
the receiving party is legally compelled to disclose; provided, however, that
prior to any such compelled disclosure, the receiving party will assert the
privileged and confidential nature of the Confidential Information against the
third party seeking disclosure and notify the disclosing party and make a
reasonable attempt in protecting against any such disclosure and/or obtaining a
protective order narrowing the scope of such disclosure and/or use of the
Confidential Information. In the event
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that such protection against disclosure is not obtained, the receiving party
will be entitled to disclose the Confidential Information, but only as and to
the extent necessary to legally comply with such compelled disclosure.
15. MISCELLANEOUS
15.1. Publicity And Advertising
Neither party shall publish or use any advertising, sales
materials, press releases or other publicity which uses the other
party's name, logo, trademarks or service marks without the prior
written approval of the other party.
15.2. Applicable Law
This Agreement shall be governed by and construed under the laws
of the State of New York without giving effect to its conflict of law
principles.
15.3. Limitations Of Actions
Any legal action arising from or in connection with this
Agreement, or any service provided or work performed hereunder, must
be brought within two (2) years after the cause of action arises, or
within the validity of this Agreement, whichever is the sooner. If
either party employs attorneys to enforce any rights arising out of or
relating to this Agreement, the prevailing party shall be entitled to
recover reasonable attorney's fees and costs.
15.4. Title
Nothing in this Agreement shall create or vest in Customer any
right, title or interest in the Project, other than the rights
expressly granted to Customer under the terms and conditions of this
Agreement.
15.5. Severability
If any portion of this Agreement is found to be invalid or
unenforceable, the remaining portions shall remain in effect, and the
parties will negotiate in good faith for a replacement of the invalid
and unenforceable portion.
15.6. Conflict
In the event of a conflict between or among the documents listed
below, the following shall be the order of precedence: (i) this
Agreement; and (ii) Statements of work (except as to terms
specifically identified in a Statement of Work as superseding the terms
of this Agreement, in which case such terms shall take precedence over
this Agreement for such Statement of Work only).
15.7. Assignment
This Agreement may not be assigned by either party without the
written consent of the other party, which consent shall not be
unreasonably withheld.
15.8. No Third Party Beneficiaries
This Agreement shall not be deemed to provide third parties with
any remedy, claim, right of action, or other rights.
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15.9. Force Majeure/Delays
NEITHER PREDICTIVE NOR THE CUSTOMER SHALL HAVE LIABILITY FOR
DAMAGES OR DELAYS DUE TO FIRE, EXPLOSION, LIGHTNING, PEST DAMAGE, POWER
SURGES OR FAILURES, STRIKES OR LABOR DISPUTES, WATER, ACTS OF GOD, THE
ELEMENTS, WAR, CIVIL DISTURBANCES, ACTS OF CIVIL OR MILITARY
AUTHORITIES OR THE PUBLIC ENEMY, INABILITY TO SECURE RAW MATERIALS,
PRODUCTS OR TRANSPORTATION FACILITIES, FUEL OR ENERGY SHORTAGES, ACTS
OR OMISSIONS OF CUSTOMER, COMMUNICATIONS CARRIERS OR SUPPLIERS, OR
OTHER CAUSES BEYOND PREDICTIVE'S CONTROL WHETHER OR NOT SIMILAR TO THE
FOREGOING.
15.10. Notices
All notices, requests, demands and other communications required
or permitted under this Agreement shall be in writing unless otherwise
specified in this Agreement and shall be deemed to have been duly made
and received when personally served, or when mailed by first class
mail, postage prepaid, to the address indicated on the second page. The
parties may change the address on ten (10) days prior written notice.
15.11. Survival Of Obligations
Any provision of this Agreement which by its content is intended
to apply after termination of this Agreement shall survive its
termination.
15.12. Entire Agreement.
This Agreement, including all attachments hereto and any
subsequent Statements of Work, is the entire agreement between the
parties with respect to the subject matter hereof and it supersedes all
prior agreements, proposals, representations, statements, or
understandings, whether written or oral, concerning the same. No
change, modification or waiver of any of the terms of this agreement
shall be binding unless set forth in writing and signed by both
parties. The parties represent that they have read this agreement,
understand it and agree to be bound by its terms and conditions. There
are no understandings or representations, express or implied, which are
not expressed herein.
15.13. High Risk Activities
Customer understands and agrees that any software code that may
be provided to Customer under this Agreement is not fault-tolerant and
is not designed, manufactured or intended for use or resale as control
equipment in hazardous environments requiring fail-safe performance,
such as in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, direct life support
machines, or weapons systems, in which the failure of such software
product could lead directly to death, personal injury, or severe
physical or environmental damage ("High Risk Activities"). Predictive
specifically disclaims any express or implied warranty of fitness for
High Risk Activities.
15.14. Independent Contractors
The parties expressly agree that the relationship between them
is that of independent contractors and nothing in this Agreement shall
be deemed to create a partnership, joint venture or employment
relationship between the parties.
15.15. Binding
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This Agreement shall be binding upon and inure to the benefit of
the respective parties and their successors.
15.16. Counterparts
This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be one original.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their duly authorized representatives as of the date written below:
PREDICTIVE SYSTEMS, INC. COMPANY:
sd/-
By:-------------------------------- By:-----------------------------
SECRETARY, RIVERSOFT, INC.
Title: ----------------------------- Title: -------------------------
1 MARCH 2001
Date: ------------------------------- Date: --------------------------
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