Professional Services Agreement

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THIS TEKION PROFESSIONAL SERVICES AGREEMENT - CANADA ("AGREEMENT") IS BETWEEN TEKION CANADA ULC ("WE," "US," "OUR," OR "TEKION") AND THE ENTITY LISTED IN THE ORDER FORM, INCLUDING ANY AFFILIATES AVAILING THE PROFESSIONAL SERVICES ("YOU") AND SETS FORTH THE TERMS AND CONDITIONS GOVERNING ORDERS PLACED UNDER THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ACCEPTED BY YOU ("EFFECTIVE DATE").

THIS AGREEMENT GOVERNS YOUR PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES ONLY AND DOES NOT APPLY TO SUBSCRIPTION PRODUCTS OR SERVICES PROVIDED BY US. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. EACH SOW OR ORDER FORM ENTERED INTO BY THE PARTIES DURING THE TERM OF THIS AGREEMENT FOR THE PURCHASE AND RECEIPT OF TEKION PROFESSIONAL SERVICES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

DEFINITIONS
1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party.
2. "Agreement" means this Professional Services Agreement and any exhibits, schedules and addenda, including without limitation any SOWs and Order Forms attached hereto.
3. "Change Order" means an amendment to an SOW or Order Form, as applicable, as described in Section 4.1 below. Change Orders will be deemed incorporated by reference in the applicable SOW or Order Form, as applicable, in the absence of an SOW.
4. "Deliverable" means any output of the Professional Services that is identified as a Deliverable under an SOW or Order Form.
5. "Force Majeure Event" means circumstances beyond either party’s reasonable control, including without limitation (a) acts of God, (b) acts of government, such as any changes in law or regulations or any action taken by a governmental or public authority including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, (c) acts or omissions of third parties, (d) civil unrest, wars, acts of terror, invasions, riots or other civil unrest, epidemics or pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, transportation, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within an impacted party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the impacted party’s reasonable control.
6. "Order Form" means an ordering document specifying the Professional Services to be provided hereunder and that is entered into between You and Us, including any addenda and supplements thereto. Order Forms governed, in whole or in part, by this Agreement must have a SOW attached thereto or expressly state that the Order Form or certain Professional Services provided thereunder are governed by this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
7. "Professional Services" or "Services" means work performed by Tekion, its Affiliates, or its or their respective authorized subcontractors under an SOW or Order Form that expressly references this Agreement, including the provision of any Deliverables specified in such SOW or Order Form.
8. "SOW" means a statement of work describing Professional Services to be provided hereunder, that is entered into between You and Us or which is incorporated into an Order Form that is entered into between You and Us. A Tekion Affiliate that executes an SOW with Customer will be deemed to be "Us" or "Tekion" as such term is used in this Agreement. SOWs or Order Forms will be deemed incorporated herein by reference.
9. "Tekion Products" means any cloud-based products offered by Us on a subscription basis that You order under Tekion’s Master Subscription Agreement, including any associated offline and mobile components.
PROFESSIONAL SERVICES
1. Scope of Professional Services and Delivery. We will provide you the Professional Services and Deliverables in accordance with the Agreement and the applicable SOWs or Order Forms, subject to Your payment of all applicable fees as set forth in the "Fees" section of this Agreement.
2. Affiliate Participation. You authorize Your Affiliates to procure Professional Services under the terms and conditions of this Agreement by executing an SOW or Order Form. Each Affiliate that executes a SOW under this MSA shall be deemed a party to this Agreement and shall be bound by all the terms and conditions herein to the same extent as the Customer.
3. Relationship to Tekion Products. This Agreement is limited to Professional Services and does not convey any right to use Tekion Products. Any use of Tekion Products by Customer or its Affiliates will be governed by a separate agreement. You agree that Your purchase of Professional Services is not contingent on the delivery of any future Tekion Products, functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form, or on any oral or written public comments by Us regarding future Tekion Products functionality or features.
4. Protection of Confidential Information. We will maintain appropriate technical and organizational measures for the protection of the security, confidentiality and integrity of Your Confidential Information in accordance with Our Data Processing Agreement, which is available online at Data Processing Agreement, and the Master Subscription Agreement. The terms of these agreements between Tekion and Customer are hereby incorporated by reference into this Agreement.
YOUR COOPERATION
1. Cooperation. You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by, without limitation:
  1. Resources. Assigning an internal project manager as Your primary point of contact for each project and allocating sufficient resources to perform Your obligations under this Agreement and each SOW or Order Form;
  2. Actions. (i) Promptly responding to Our inquiries and providing Your deliverables including accurate information, data, and feedback as necessary for the project, and ii) actively participating in scheduled meetings and performing other obligations required under each SOW or Order Form;
  3. Facilities and Equipment. To the extent necessary for the applicable project, providing at no charge to Us, office workspace and access to other facilities, and suitably configured computer equipment with Internet access.
2. Delays. If We are unable to perform the Professional Services due to a delay by You, including Your failure to comply with Section 3.1 above, You may be responsible for additional fees.
CHANGE ORDERS
1. Change Orders. Changes to a SOW or Order Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
FEES, INVOICING AND TAXES
1. Fees. You will pay Us for the Professional Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Our standard rates in effect at the time the Professional Services are to be provided. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form.
2. Incidental Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with the Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, We will not exceed such estimate without Your written consent.
3. Invoicing and Payment. Charges for Professional Services sold on a SOW or Order Form will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Invoiced amounts will be due net 30 days from the invoice date unless otherwise stated in the applicable SOW or Order Form. You are responsible for providing Us with Your complete and accurate billing and contact information and notifying Us of any changes to such information.
4. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future purchases of Professional Services on payment terms shorter than those specified in Section 5.
5. Suspension of Professional Services. If any amount You owe Us under this Agreement is 30 days or more overdue, We may, without limiting Our other rights and remedies, suspend Our performance of Professional Services until such amounts are paid in full and/or terminate this Agreement in accordance with Section 11.2.
6. No Offset. All amounts that You owe to Us under this Agreement must be paid in full without any set-off, counterclaim, deduction, or withholding.
7. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this section, We will invoice You and You will pay that amount, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
PROPRIETARY RIGHTS AND LICENSES
1. Your Intellectual Property. You do not grant Us any rights in or to Your intellectual property except such licenses as may be required for Us to perform Our obligations hereunder and which shall be expressly set forth in an SOW or Order Form.
2. Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.
3. License for Contract Property. Subject to Your payment of fees due under an applicable SOW or Order Form, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Your internal business purposes associated with Your use of Tekion Products, anything developed by Us for You, including Deliverables, under this Agreement ("Contract Property"). Each party retains all right, title and interest in its respective intellectual property and We retain all ownership rights in the Contract Property.
CONFIDENTIALITY
1. Definition of Confidential Information. "Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all SOWs or Order Forms (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any SOW or Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this "Confidentiality" section.
3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
2. Warranty. We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Tekion for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Professional Services in order to receive warranty remedies.
3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
INDEMNIFICATION
1. Our Indemnity. We will defend You against any claim, demand, suit or proceeding ("Claim") made or brought against You by a third party (i) arising out of death, personal injury or damage to tangible property to the extent caused by Our personnel in their performance of the Professional Services, and (ii) alleging that any information, design, specification, instruction, software, data or material furnished by Us hereunder ("Material") infringes or misappropriates such third party's intellectual property rights, and will indemnify You and will indemnify You from any damages, including actual and statutory damages, fines, and penalties, reasonable attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim provided You (x) promptly give Us written notice of the Claim , (y) give Us sole control of the defense and settlement of the Claim (except that We may not settle any Claim unless it unconditionally releases You of all liability), and (z) give Us all reasonable assistance, at Our expense. We will have no liability for any such Claim described in subsection (ii) above to the extent that (1) it arises from specifications or other Material provided by You, or (2) such claim is based on modifications to the Material by anyone other than Us. In the event that some or all of the Material is held or is reasonably believed by Us to infringe or misappropriate, We may, in Our discretion and at no cost to You, (A) modify or replace the Material so it is no longer claimed to infringe or misappropriate, (B) obtain a license for Your continued use of the Material in accordance with this Agreement, or (C) require return of the affected Material and all rights thereto from You. If We exercise option (C), either party may terminate the relevant SOW or Professional Services purchased under an Order Form upon 10 days’ written notice given within 30 days after Our exercise of such option, subject to Section 11.3 below. The above defense and indemnification obligations do not apply to the extent a Claim arises from Your breach of this Agreement or the applicable SOW or Order Form.
2. Exclusive Remedy. This Section 9 states Our sole liability to You, and the Your exclusive remedy against Us, for any third-party claim described in this section.
LIMITATION OF LIABILITY
1. Limitation of Liability. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS IN SECTION 9, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND/OR ITS AFFILIATES HEREUNDER FOR THE STATEMENT OF WORK OR ORDER FORM OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR OR YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 5.
2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
TERM AND TERMINATION
1. Term. This Agreement commences on the Effective Date and will remain in effect until all Statements of Work or Order Forms governed by this Agreement have terminated or expired in accordance with this section.
2. Termination for Cause. A party may terminate this Agreement and/or any SOW or Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Payment Upon Termination. Upon any termination of an SOW or Order Form, You will pay, in accordance with Section 5, any unpaid fees and expenses incurred on or before the termination date (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). If You terminate an SOW or Order Form under Section 11.2(i) and You have pre-paid any fees for Professional Services not yet received, We will refund such pre-paid fees. If We terminate an SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.
4. Surviving Provisions. Sections 5, 6.3, 7, 8, 9, 10, 11, 12, and 13 will survive any termination or expiration of this Agreement.
INSURANCE. Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.
GENERAL
1. Compliance with Laws. Each party will comply with all laws and governmental rules and regulations that apply to such party in its performance of its obligations and exercise of its rights, under this Agreement.
2. Export Compliance. Neither party will access or use any Deliverables or Confidential Information provided to it hereunder in a United Kingdom or U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, Syria), as may be updated from time-to-time or in violation of any U.S. export law or regulation.
3. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@tekion.com.
4. Force Majeure. Neither party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from a Force Majeure Event. However, this Section does not excuse a party’s delay or failure to perform because of a change in economic conditions or an increase in that party’s costs to perform. Additionally, this Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).
  
  The affected party must notify the other party in writing within ten (10) business days of the Force Majeure Event's occurrence, providing details of the event and its anticipated impact on performance. Affected performance deadlines (other than payment obligations) will be extended for a period equal to the time lost due to the delay.
  
  Upon cessation of the Force Majeure Event, the affected party shall promptly resume performance under this Agreement.
5. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding the provision and receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no inconsistent or additional terms contained in a purchase order, voucher, invoice or other similar document issued by either party will be incorporated into or form any part of this Agreement, and all such terms or conditions will be void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW or Order Form, (2) any exhibit, schedule or addendum to this Agreement and (3) the body of this Agreement. This Agreement may be executed in counterparts and by electronic signatures.
6. No Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.
7. No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
8. Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
9. Assignment. Neither party may assign any of its rights or obligations hereunder to any other party, including a corporate affiliate, parent, or subsidiary, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld) except that We may assign this Agreement (together with all Order Forms) without Your consent to the surviving entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10. Governing Law. This Agreement, and any disputes arising out of or related to this Agreement, its formation, interpretation or enforcement, or in any way related to Your Data or Your use of the Services, will be governed exclusively by the Laws of the province of Ontario, Canada, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11. Venue; Waiver of Jury Trial; Fees. The provincial and federal courts located in Ontario, Canada will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement, its formation, interpretation or enforcement, or in any way related to the Professional Services and any Deliverables. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
12. No Joint and Several Liability. Only We are responsible and liable for Our obligations to You under this Agreement, and nothing in this Agreement should be interpreted to create joint or joint and several liability between Us and Our Affiliates for any of Our obligations to You or Your Affiliates.
13. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement, except for notices of termination or an indemnifiable claim ("Legal Notices") which shall clearly be identifiable as Legal Notices and sent to Our Legal Department at legal@tekion.com, will be in writing and will be effective upon: (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email. Legal Notices will be effective the day of sending by email as required above. Billing-related notices to You will be addressed to the relevant billing contact designated by You.
  
  Our address for notices is:
  
  Tekion Canada ULC
  1103 - 11871 Horseshoe Way, Richmond, British Columbia V7A 5H5