Service Provider Professional Services Agreement between EMS-Cortex Ltd and [Company]

EMS-Cortex Professional Services Agreement

SERVICE PROVIDER PROFESSIONAL SERVICES AGREEMENT

Agreement dated: [Day Month Year]
This Service Provider Professional Services Agreement is between [Company] (the Service Provider, Customer, Client, you or your) and EMS-Cortex Limited (EMS , we, our or us).

A.Background
This agreement sets out the framework for the delivery of software-related services including implementation, configuration, development and other services. All pricing is as per the pricing documents in Appendix A. These must be initialled and returned with the contracts.

B. Operative Part
What comes first - priority in the documents
We use this agreement in concert with other documentation. In the event of a conflict between one or more of these documents, the conflict will be resolved by giving priority to the document highest on the following list: Any Special Conditions Addendum; This Agreement; and The Statements of Work. and any Software customisation work undertaken by EMS under the Services Agreement, licensed to Service Provider
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EMS-Cortex Professional Services Agreement

If things go wrong
Dealing with problems in the future requires us both to acknowledge today that we may be faced with challenges that have no easy answers. If we find ourselves in that situation those problems will be resolved by us both: (a) communicating with each other on the problem; (b) committing to a plan of action; and (c) acting with good faith and best endeavours. This agreement sets out in detail how the process of resolving problems (including termination) is undertaken.

Finding out what a Special Term means

These terms and conditions contain many definitions. Defined words or phrases and the rules governing how this agreement is to be interpreted are set out in clause 1. You will know when a term is a defined term because the term is capitalised.

1. Definitions and Interpretation

1.1 Definitions:
In this agreement, unless the context requires otherwise: Agreement means this Service Provider Professional Services Agreement and all Statements of Work agreed and signed off between the parties. Business Day means any day other than a Saturday or Sunday or statutory holiday in Auckland, New Zealand; Change Variation means any request made by either Party to the other for any changes to a Statement of Work. Change Variation Specification means the detailed specifications of a Change Variation.
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Contract Details means the information specified in the Contract Details; Fees means the amounts payable by the Service Provider for the Services as specified in the relevant Statement of Work. Intellectual Property means any intellectual property, including without limitation trade marks, service marks, rights in inventions, patents, brand names, registered designs, copyright, know how, trade secrets and any other proprietary rights which may arise from intellectual activity. Project Plan means a project plan which forms part of a Statement of Works; Parties means EMS-Cortex Limited and the Customer; Services means the services specified in a Statement of Work which could include without limitation implementation and integration of the Software, providing documentation and training or custom development work. Software means the EMS-Cortex software (including without limitation the EMS-Cortex table structures) and including all updates and new releases and accompanying on-line or printed documentation, but excludes the source code. Special Conditions Addendum means a Special Conditions Addendum and any other special conditions as agreed in writing by the Parties. Statement of Work means a document in the form attached as schedule 1 to this agreement specifying the Services that we are to supply to you under this agreement, our charges, payment terms, timetable, the respective responsibilities of each Party and the criteria by which each Service shall be considered to have been completely delivered to you.

1.2 Interpretation
In this agreement, unless the context otherwise requires: (a) Words (including words defined in this agreement) denoting the singular number only shall include the plural and vice versa; (b) Any period shall (unless the contrary is expressly stated or defined) include the whole of the day on which the period commences and the whole of the day on which it expires; (c) Any reference to legislation, statute, regulation, ruling, code, rules or ordinance includes reference to any modification, substitute for, consolidation or re-enactment of it and any regulation, order in
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council or other instrument from time to time made or issued under such legislation, statute, regulation, ruling, code, rules or ordinance; (d) A document or agreement between the Parties to this agreement (including this agreement) includes such document or agreement as modified varied, supplemented, novated, replaced or substituted from time to time; (e) Any reference to the Parties shall include their assignees or purchasers; and (f) Headings, marginal notes, the table of contents, introduction and index are included for convenience only and shall not affect the interpretation of this agreement except where the headings are used to indicate a cross reference between clauses.

2. Scope
2.1 Details of all work performed under this Agreement is as specified in Statements of Work. A Statement of Work will be prepared and must be approved in writing by the Service Provider before EMS will commence work under the Statement of Work. 2.2 We agree to supply you with our Services in accordance with the terms and conditions contained in this agreement and as specified in the Our Responsibilities section of each Statement of Work. 2.3 You agree to perform the tasks and functions specified in the Your Responsibilities section of each Statement of Work. 2.4 Where either of us wish to alter the Services as specified in the Statements of Work we each agree to utilise the Change Variation procedure. 2.5 The prices for Services are based on the pricing information in schedule 2. Specific price and payment terms for the Services shall be as specified in the Statements of Work (with Statements of Work referring back to the pricing in schedule 2 where applicable).

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3. Estimated Timetable
3.1 The start date for the Services: (a) the signature date of the applicable Statement of Work; or (b) the execution date of the Contract Details; or (c) the start date specified in the Project Plan, whichever is the later. 3.2 We will use our reasonable endeavours to complete the Services within the time estimates and cost estimates contained in the Statements of Work. However, you acknowledge that: (a) while we will use our reasonable endeavours to accurately estimate our time and costs to provide the Services, we shall not be bound by these estimates unless they are expressed to be fixed; and (b) changes in your plans or unforeseen circumstances may adversely impact on our ability to deliver the Services on schedule and that in such circumstances, unless the relevant Statement of Work provides otherwise, we shall not be liable for delays in the delivery of the Services. 3.3 The dates continued within the Statements of Work represent our and your best efforts to estimate the time required for the completion of the tasks. Either of us may request changes to these dates by submitting a Change Variation.

4. Completion Criteria
4.1 Each Statement of Work includes a description of documents or actions which must take place to indicate completion of each Service. 4.2 We shall notify you in writing when we are satisfied that one or more of the Services have been completely delivered. You agree to undertake the necessary tests on the document or action and to confirm the outcome of the tests in writing to us within 5 Business Days of notice from us that the document or action is completely delivered. If we have not received written notice of the outcome of

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any test within 5 Business Days of notification by us that a document or action is available for testing then the document or action shall be deemed to be accepted. 4.3 If the document or action is not accepted by you then: (a) your notice to us shall set out in detail the factors which resulted in the document or action as set out in the Statement of Work being unacceptable; and (b) If we agree that the document or action is not in accordance with the Statement of Work, we shall repair the defect(s) and resubmit the document or action for acceptance. This process shall continue iteratively until the document or action is accepted. Any document or action identified by you that is not set out in the Statement of Work will be dealt with using the Change Variation Process. 4.4 You shall give us notice in writing of when and where any test will occur. We shall be entitled to have an observer present at any test.

5. Personnel
5.1 You agree to provide our personnel with adequate access to your premises or computer systems to allow them to provide the Services. 5.2 If either Party considers that one of the other Party's employees should be removed from the performance of this agreement then that Party shall submit its request to the other giving reasons. The Parties shall communicate via phone, email or in person to consider that Party's request and if it considers that Party's reasons are reasonable order the withdrawal of the employee. 5.3 You acknowledge that our employees are critical to servicing our customers. You shall not employ or otherwise engage any employee of ours for a period of six months following that employee providing you with our services. In the event that this prohibition is violated you shall pay us half any such employee's annual salary as a contribution towards recruitment and/or training for a replacement(s), in addition to any other rights and remedies that we may have.

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6. Implied Terms
6.1 The Parties agree that any condition or warranty (statutory, express or implied) that would otherwise be implied in this agreement is excluded to the maximum extent permitted by law, including, without limitation, implied warranties of merchantability and fitness for purpose. 6.2 Where a condition or warranty cannot legally be excluded the liability for a Party breaching that condition or warranty shall be limited, if permitted by law, to one or more of: (a) The supplying of the Services again; or (b) The payment of the cost of having the Services supplied again.

7. Addition and Deletion of Tasks

7.1 The Parties may only add or delete tasks in the Statement of Work if the addition or deletion is: (a) agreed on unanimously; and (b) the tasks do not materially or substantially alter the Services or any other thing governed by this agreement.

8. Change Variations
8.1 Change Variations may be required where you determine that the requirements set out in the agreed scope of work in a Statement of Work have changed. These changes must be dealt with using the change variation process. 8.2 The Parties shall meet regularly to consider Change Variations and prepare Change Variation Specifications for Change Variations. 8.3 If you determine that you have insufficient information or resources to prepare a Change Variation Specification, you may request that we prepare the Change Variation Specification.
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9. Change Variation Specifications

9.1 You agree to prepare a Change Variation Specification if required to do so by us. 9.2 If the Change Variation is submitted by you then you shall bear the cost of preparing the Change Variation Specification. 9.3 If requested we shall submit an estimate of our costs to prepare a Change Variation Specification to you for approval prior to commencing work on the Change Variation Specification.

10. Intellectual Property

10.1 All Intellectual Property in the Services and deliverables resulting from the provision of Services under this Agreement vests in EMS on creation. Nothing in this Agreement assigns any Intellectual Property rights to the Service Provider.

11. Limitation of Liability

11.1 This clause 11 applies if for any reason the limitation in clause 6.2 is unenforceable and it also applies in respect of any other liability that may arise under or in respect of this agreement. 11.2 EMS is only liable to the Service Provider for losses which flow directly or naturally from a breach of this Agreement, but excluding loss of profits, up to a maximum of the Fees paid by the Service Provider to EMS in the six months preceding the event giving rise to the claim. 11.3 EMS has no liability to the Service Provider for any loss, damage or injury whether arising in contract, tort (including in each case negligence), equity or otherwise which does not flow directly or naturally (i.e. in the ordinary course of events) from a breach of this Agreement including, in each case consequential loss of business or profits or other loss.

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12. Termination
12.1 Either party (terminating party) may by written notice to the other party terminate this Agreement immediately if the other party (a) breaches any of its obligations under this Agreement (including the warranties) and fails to remedy or adequately compensate for such breach within 10 Business Days after notice from the terminating party specifying the breach and requiring it to be remedied; or (b) goes into liquidation or has a receiver or statutory manager appointed of its assets or any of them or becomes insolvent, ceases to carry on its business or makes any composition or arrangement with its creditors. 12.2 Termination of this Agreement will not affect the rights or obligations of the parties which have accrued prior to termination or by their nature are intended to survive. 12.3 If any work is outstanding under a Statement of Work at the time of termination of this Agreement, such termination will only take effect on completion and payment in full by you of all such work. You may waive the requirement that we complete all work but must pay all amounts under the Statement of Work as if that waiver had not been given.

13. General Provisions

13.1 The parties are independent contractors to each other. Nothing in this Agreement is intended to make either of them a joint venturer, partner, agent or fiduciary of the other. 13.2 Any amendment, modification or variation to this Agreement must be in writing and signed by both the Service Provider and an authorized representative of EMS. 13.3 If any provision of this Agreement is found void or unenforceable, the remainder will remain valid and enforceable according to its terms. 13.4 EMS may assign its rights and obligations under this Agreement at anytime without notice to The Service Provider. The Service Provider may not assign or transfer any rights or obligations under this Agreement without prior written consent from EMS, such consent shall not be unreasonably withheld.
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13.5 This Agreement shall be construed, interpreted and governed by the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand. 13.6 Any notice given under this Agreement must be faxed or delivered to the other party's address set out below. Notices or other communications are deemed received: (a) if delivered by post: i. ii. on the third day following posting if sent and received within New Zealand; and on the tenth day following posting to or from an overseas destination.

(b) if delivered by facsimile, on production of a transmission report by the machine from which the facsimile was sent in its entirety to the facsimile number of the recipient, specifying the correct number of pages sent, the date and time of transmission and that transmission was successful, provided that the onus of proving receipt shall be on the sender.

The Service Provider: Name: Position: Postal Address:

EMS: Name: Colin Williams Position: General Manager, EMS-Cortex Postal Address: PO Box 19324, Avondale, 1746 Auckland, New Zealand

Fax:

Fax: +64 9 829 55 01

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EXECUTED as an agreement
THE SERVICE PROVIDER by: _______________________________________ Date: ________________________

_______________________________________

_______________________________________

In the presence of: _______________________________________

Name:

__________________________

Occupation:

__________________________

Address:

__________________________

EMS-CORTEX LIMITED by: ________________________________________ Colin Williams - General Manager, EMS-Cortex In the presence of: __________________________________ Name: Occupation: Address:
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Date: ________________________

Jocelyn Brittain Development Manager, EMS-Cortex 30 Copsey Place, Avondale, Auckland, New Zealand
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EMS-Cortex Professional Services Agreement

SCHEDULE 1 TEMPLATE STATEMENT OF WORK

Statement of Work

<Descriptive title for piece of work>

Cortex Dev Reference Document Authors Document Version Last Updated On <Numeric Cortex task reference> <Author, Title> <Document version, e.g. 0.1> 20 November 2008

1. Background <Short background on the problem area>

2. Scope <Main summary of the work, what is covered, can refer or attach other documents as required>

3. Payment Terms Work will be invoiced at the end of the month in which the work was completed.

4. Acceptance Please acknowledge your acceptance of this statement of work by email or fax.

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