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AC Professional Services Agreement

BY INDICATING YOUR ASSENT TO ENTER THIS PROFESSIONAL SERVICES AGREEMENT, YOU SUBMIT TO ANDREWS COOPER TECHNOLOGY LLC, AN OREGON LIMITED LIABILITY COMPANY (“ANDREWS COOPER”), AN OFFER TO OBTAIN THE RIGHT TO ACCESS AND USE THE SERVICES, DELIVERABLES AND/OR THIRD PARTY PRODUCTS DESCRIBED BELOW UNDER THE PROVISIONS OF THIS PROFESSIONAL SERVICES AGREEMENT (THE “AGREEMENT”) AND HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITI(IES) (COLLECTIVELY, THE “CLIENT”) WISHING TO ACCESS AND USE SUCH SERVICES, DELIVERABLES AND/OR THIRD PARTY PRODUCTS DESCRIBED ON EACH WRITTEN OR ELECTRONIC PROPOSAL, STATEMENT OF WORK OR OTHER DOCUMENT (EACH AN “SOW”) THAT ANDREWS COOPER PROVIDES TO CLIENT THAT REFERS TO THIS AGREEMENT AND IS ACCEPTED BY CLIENT.  THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE DATE ACCEPTED BY ANDREWS COOPER (THE “EFFECTIVE DATE”) AND EACH SOW WILL SET FORTH THE SPECIFIC TERMS OF THE APPLICABLE ENGAGEMENT, BUT ALL APPLICABLE TERMS AND CONDITIONS BELOW SHALL APPLY.

If YOU DO NOT HAVE THE AUTHORITY TO BIND CLIENT OR YOU OR CLIENT do not agree to any of the terms below, ANDREWS COOPER is unwilling to PROVIDE THE SERVICES, DELIVERABLES AND/OR THIRD PARTY PRODUCTS TO CLIENT, and you should discontinue the Order AND/OR registration process.

1.0 SCOPE OF AGREEMENT

This Agreement sets forth the terms and conditions under which Andrews Cooper will provide to Client the (i) consulting, engineering, development or other services (the “Services”), (ii) related tangible or intangible items deliverables (the “Deliverables”) and/or (iii) third party components, software and/or services (collectively, “Third Party Products”) described in each SOW.  No SOW will be effective unless executed by both parties.  Each SOW, and the provision of all Services and Deliverables to Client, shall be governed by and in all respects subject to this Agreement.  In the event of any conflict or inconsistency between the terms or conditions of this Agreement and any provision in an SOW, the conflicting or inconsistent provision in the SOW will have no force or effect unless expressly stated otherwise in the applicable SOW.  Each SOW will set forth the specifications, if any, that shall apply to the Services and Deliverables provided thereunder (“Specifications”).  All changes to any SOW shall be mutually agreed to by the parties in writing, which such agreement may require the payment of additional fees or changes to the development schedule set forth in the SOW.

2.0 PERFORMANCE STANDARDS AND WARRANTIES; THIRD PARTY PRODUCTS

2.1 Andrews Cooper warrants that (a) all Deliverables will be provided in accordance in all material respects with the applicable Specifications and (b) each of its employees, agents or representatives assigned to provide Services shall have the proper skill, training and background so as to be able to perform such Services in a professional, competent and workmanlike manner in accordance with the prevailing standards in Andrews Cooper’s industry. Client’s sole and exclusive remedy and Andrews Cooper’s sole liability for a breach of the foregoing warranties shall be the reperformance of such Services at no cost to Client.

2.2 Client acknowledges that the timely and successful performance of Services and delivery of the Deliverables requires good faith cooperation by Client. Therefore, Client shall (a) furnish information reasonably requested by Andrews Cooper, (b) provide access to Client personnel, working space, facilities and records that Provider or its personnel may reasonably request, and (c) timely perform its obligations as necessary to meet the schedule in any SOW.  In the event that any failure by Client to comply with the provisions of this Section 2.2 results in any delay in performance of the Services by Andrews Cooper, Andrews Cooper shall not be deemed in breach of this Agreement for such delay and Client shall be responsible for any costs incurred by Andrews Cooper in addressing and remedying such delay.

2.3 Andrews Cooper will pass through and make available to Client all warranties, indemnities and support and maintenance terms offered by applicable third party providers in connection with applicable Third Party Products (the “Third Party Terms”), which such Third Party Terms shall be provided by Andrews Cooper to Client upon request. Subject to the foregoing, Andrews Cooper shall have no liability in connection with any Third Party Products.

2.4 EXCEPT AS EXPRESSLY SET FORTH ABOVE, ANDREWS COOPER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THE DELIVERABLES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND THOSE THAT MAY ARISE FROM ANY COURSE OF DEALING OR PERFORMANCE.

3.0 TERM AND TERMINATION

3.1 This Agreement shall continue in effect until terminated as set forth herein.

3.2 This Agreement may be terminated by either party if (a) the other party materially breaches this Agreement or any SOW and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party, or (b) there is no SOW outstanding at the time that the terminating party delivers written notice of termination to the other party. In addition, either party may terminate this Agreement or any SOW for convenience upon not less than thirty (30) days’ prior written notice; provided that, in such event, Andrews Cooper will invoice Client, and Client will pay Andrews Cooper, for all third party expenses and the Services performed through the effective date of the termination as follows:  (a) for time and expense SOWs, Client will pay for all hours actually worked through the effective date of termination; and (b) for fixed price SOWs, Client will pay a pro-rated amount based on the milestones completed or the percentage of Services completed as of the effective date of the termination.

3.3 Upon any such termination, without prejudice to any other rights or remedies which the parties may have (a) all rights and obligations of the parties shall immediately cease, and (b) Client shall pay to Andrews Cooper the full amount of any outstanding fees due hereunder. Sections 2.3 and 4.0 through 13.0 shall survive termination of this Agreement for any reason.

4.0 FEES AND PAYMENTS

Fees for all Services, Deliverables and Third Party Products provided under this Agreement will be as set forth in the applicable SOW.  If a particular SOW does not specify a specific payment due date, Client agrees to pay to Andrews Cooper all amounts owed under such invoices within thirty (30) days of their issuance.  All payments shall be made in currently available funds payable at either the address set forth on the invoice or such other address as Andrews Cooper may specify in writing.  All amounts payable shall be in the currency of the United States and specifically exclude (and Client is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Andrews Cooper’s income).  Any amounts due under this Agreement which are not paid within thirty (30) days of their due date shall be subject to a late payment charge of one and one half percent (1-1/2%) and shall thereafter bear interest at a rate of eighteen percent (18%) per annum until paid.  Each party is responsible for its own expenses under this Agreement except that when travel is requested and/or approved by Client in an SOW, Andrews Cooper shall be reimbursed for actual, reasonable travel and travel-related expenses, approved in advance in writing by Client, and incurred during the course of performing Services.

5.0 SUPPLIES AND EQUIPMENT

Each party shall retain and own all right, title and interest to any and all technology, content, Confidential Information, works of authorship, and other intellectual property owned or licensed by such party before the Effective Date or acquired or developed by such party at any time thereafter other than in the course of performing such party’s obligations under this Agreement.

6.0 PROPRIETARY RIGHTS

Unless expressly stated otherwise in an SOW, except with respect to Andrews Cooper Tools (as defined below), from the moment they are first fixed in tangible form, all Deliverables will be works-made-for-hire as work specially ordered or commissioned for use as a contribution to a collective work, as a part of an audiovisual work, with Client being the employer-for hire.  Client will own all right, title and interest in and to all such Deliverables (including any and all intellectual, property rights therein) and if, for any reason, it were to be determined that the Deliverables do not constitute works-made-for-hire, Andrews Cooper hereby irrevocably assigns to Client any and all ownership rights it may have in or to such Deliverables (including any and all intellectual, property rights therein).  Client’s rights to any Third Party Products shall be solely as set forth in applicable Third Party Terms.  Notwithstanding the foregoing Andrews Cooper retains all right, title and interest in and to all general ideas, concepts and know-how which are developed or created by Andrews Cooper in the course of performing the Services hereunder (“Andrews Cooper Tools”).

7.0 RELATIONSHIP

The parties acknowledge and agree that the relationship between Andrews Cooper and Client is that of an independent contractor and nothing in this Agreement or related to the Services performed in connection with any SOW shall be construed to create a partnership, joint venture, agency or employer-employee relationship between Client and Andrews Cooper or any of Andrews Cooper’s employees or agents.  Andrews Cooper, as such, is solely responsible for any and all taxes, including FICA, FUTA, and unemployment taxes, worker’s compensation coverage, and other liabilities incurred as an independent contractor.  Andrews Cooper also expressly waives employee status for all purposes, including eligibility for any and all benefits under any benefit plan of Client, its affiliates, or successors.  Client may, upon reasonable notice, request that Andrews Cooper remove or reassign certain personnel based on the individual’s skills, background, or failure to perform work in a manner consistent with Andrews Cooper’s obligations hereunder.

8.0 CONFIDENTIAL INFORMATION

8.1 “Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps, performance results, pricing, and other confidential or proprietary information.  Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such.

8.2 The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information.

8.3 The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information:

(a)   was known to the receiving party on or before Effective Date without restriction as to use or disclosure;

(b)   was in the public domain on or before the Effective Date;

(c)   came into the public domain after the Effective Date through no fault of the receiving party;

(d)   was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or

(e)   is divulged pursuant to any legal proceeding or otherwise required by law, subject to the receiving party giving all reasonable prior notice to the disclosing party to allow it to seek protective or other court orders and provided that the receiving party uses best efforts to make such disclosure under conditions of confidentiality.

9.0 INDEMNIFICATION

Andrews Cooper will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the Services or Deliverables infringe any United States copyright, or misappropriate any trade secret rights and Andrews Cooper will pay those costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.  The foregoing obligations are conditioned on Client notifying Andrews Cooper promptly in writing of such action, giving the Andrews Cooper the opportunity to exercise sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Andrews Cooper’ reasonable request and expense, assisting in such defense; provided, for clarity, that no settlement of any claim will be made by Andrews Cooper in which any liability is assessed against Client, or in which Client is required to admit to any liability or wrongdoing. This Section 9.0 states Andrews Cooper’ entire liability and Client’s sole and exclusive remedy for infringement claims and actions.

10.0 LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO BREACHES OF SECTION 8.0, IN NO EVENT SHALL ANDREWS COOPER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER ANDREWS COOPER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  ANDREWS COOPER’S AGGREGATE CUMULATIVE LIABILITY TO CLIENT AND THIRD PARTIES, IN CONNECTION WITH THE SERVICES AND DELIVERABLES PROVIDED HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE FEES ACTUALLY PAID TO ANDREWS COOPER BY CLIENT UNDER THE APPLICABLE SOW.

11.0 INSURANCE

Andrews Cooper, at its own expense, will maintain for the term of this Agreement appropriate and customary types and amounts of insurance including: (a) Workmen’s Compensation at the maximum statutory limit as required for all its employees; (b) liability for bodily injury on a per occurrence basis; (c) property damage coverage on a per occurrence basis; (d) cyber insurance coverage on a per occurrence basis and (e) automobile liability insurance for injuries, including accidental death, on a per loss basis.  Andrews Cooper agrees to provide Client with necessary documentation, including certificates of insurance, evidencing the required coverage, if requested.

12.0 PUBLICITY

During the term of this Agreement, Client hereby agrees that Andrews Cooper shall have the right, but not the obligation, to include (i) Client’s name and logo as a customer on the Andrews Cooper website and in a press release or other materials promoting its services; and (ii) a general description of the Deliverables within its marketing portfolio.

13.0 MISCELLANEOUS

Neither party shall be liable to the other party for failure or delay in performing its obligations under this Agreement when such failure or delay is due to any cause beyond the control of the party concerned, including acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.  The terms of this Agreement shall be binding on the parties, and all successors to the foregoing who take their rights hereunder. Except as expressly set forth herein, neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent.  Either party may assign this Agreement in whole pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise.  Additionally, Andrews Cooper may utilize subcontractors in the performance of Services provided that Andrews Cooper remains liable for such subcontractor’s compliance with this Agreement.  Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void.  All modifications to and waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement.  This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules.  The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.  This Agreement together with the SOWs issued hereunder and all expressly referenced documents constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications.  The terms on any purchase order or similar document submitted by Client to Andrews Cooper will have no effect and are hereby rejected.  All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth within the applicable SOW or otherwise provided by such party.

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