Appnovation Master Service Agreement

 

Background

APPNOVATION is a global digital solutions and managed services provider delivering strategy, application development, enterprise integration and on-going services on industry leading progressive technologies. Client desires to have such services or managed services provided, to be used in connection with Client’s business.  APPNOVATION has agreed to provide those services to Client and Client has agreed to the same in accordance with the terms and conditions specified herein.

 

Agreements

NOW, THEREFORE, in consideration of the premises and the mutual promises of the Parties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound hereby agree as follows:

 

1. Definitions.  As used in this Agreement:

1.1. “Acceptance Date” means the date on which Client accepts a Deliverable as set forth in Section 2.3 herein.

1.2. “Agreement” means this MSA together with: (a) any Statement of Work; (b) Change Order; (c) all other exhibits, attachments or schedules referenced herein; and (d) any and all amendments thereto which are incorporated by reference herein and made a part hereof as may be modified or amended from time to time in accordance with the terms hereof.

1.3. “Application” means individually and collectively any computer software application or any portion thereof, each including all Source Code and Object Code therefore, developed and delivered as a Deliverable by APPNOVATION to Client in accordance with the requirements set forth in this Agreement.

1.4. “Appnovation Property” means all accelerators, work products, documents, code, works of authorship, programs (including without limitation commercially available software that APPNOVATION licenses to users pursuant to a separate license agreement), manuals, tools, user interfaces, deliverables, developments, processes, formulae, data, specifications and inventions, and all Intellectual Property therein, provided, created, owned, licensed, developed, authored or invented by APPNOVATION (collectively referred to as “Development”) (including by its employees and contractors) prior to or independently of performing the Services and developing the Deliverables, as well as any  Derivative Works to the foregoing even where such Development is made under the terms of, or during the course of this Agreement, except as otherwise set forth herein.

1.5. “Change Order” shall mean any writing that has been executed by the Parties and which modifies, adds, deletes, alters or otherwise changes any of the terms or conditions contained in a Statement of Work.  The Change Order shall be substantially in the form set out in Exhibit B.

1.6. “Deliverable” means any portion(s) or the entire Application developed and delivered to Client from time to time by APPNOVATION and any engineering reports, analyses, software, or other written or electronic documentation or media or hardware that is specifically identified as a deliverable in a Statement of Work.

1.7. “Derivative Works” shall mean a work: (i) that is derived from or based upon one or more items of Appnovation Property, such as a modification, improvement, enhancement or any other form in which such Appnovation Property may be recast, transformed, or adapted, and (ii) that, if prepared without authorization of the owner of the applicable Intellectual Property in such Appnovation Property, would constitute an Intellectual Property infringement. For purposes of this Agreement, a Derivative Work shall also include any compilation that incorporates such Appnovation Property.

1.8. “Force Majeure” shall have the meaning set out in Section 12.4.

1.9. “Initial Service Term” means the first time period covered under a Statement of Work at the end of which the SOW will either terminate or be automatically renewed under set conditions.

1.10. “Intellectual Property” means any patent, trademark, copyright, service mark, trade secret, know-how or any other intellectual property rights arising by operation of law, contract, license or otherwise.

1.11. “Object Code” means instructions (whether in machine-readable or other form) that can be directly executed by a computer.  The term “Object Code” specifically excludes Source Code.

1.12. “Person” means a natural person or any corporation, limited liability company, limited partnership, limited liability partnership, trust, association or any other legal person or legally constituted entity.

1.13. “Services” shall have the meaning given to it by Section 2.1 hereof.

1.14. “Source Code” means instructions (whether in machine-readable or other form) that must be compiled, assembled, translated or interpreted before they can be executed directly by a computer.  The term “Source Code” specifically excludes Object Code.  All Source Code shall be accompanied by documentation or programmers notes sufficient to enable a reasonably experienced programmer to modify the Application.

1.15. “Specifications” means any written specification, standard, instruction, or description provided by Client to APPNOVATION with reference to which APPNOVATION will perform the Services, deliver Deliverables (including the development of Applications), as the case may be, under this Agreement.

1.16. “Statement of Work” means one or more written descriptions of and authorizations for APPNOVATION to provide specified Services and Deliverables to the Client or to develop a specified Application for the Client, each of which shall contain the Specifications, executed in a form and pursuant to the processes and requirements set forth in this Agreement, including, but not limited to exhibits, schedules and attachments thereto, as the same may be amended by an amendment thereto or by a Change Order executed by the Parties hereto from time to time. 

 

2. Scope and Authorization of Application.

2.1. Development.

a) Services.  Subject to the terms and conditions set forth in this Agreement, APPNOVATION shall perform services for Client in accordance with this Agreement, including, but not be limited to, developing the Application for and delivering the Deliverables to Client and providing support, maintenance and other related services (collectively, the “Services”).

b) Specifications.  The Services provided hereunder shall be provided only when the Specifications are set forth in and authorized by a written Statement of Work, as may be amended from time to time, and in substantially the form set forth in Exhibit A or in such other form as is agreed to by the Parties in writing.  The terms and conditions of each Statement of Work and any related Services provided by APPNOVATION in connection with this Agreement shall be part of and shall be governed by this Agreement unless otherwise provided therein.  No Statement of Work shall be legally binding unless and until it is executed by a duly authorized representative of each Party.  APPNOVATION shall, in accordance with the terms and conditions in any applicable Statement of Work or within five (5) days following a written request by Client, provide to Client a status report indicating APPNOVATION’s status with respect to its performance of the Services provided hereunder and such status report shall include the following information: (i) a general description of the Services provided by APPNOVATION since APPNOVATION’s delivery of the then preceding status report, (ii) the number of billable hours incurred by Client since the then preceding status report,  (iii) APPNOVATION’s current work plan and schedule for completion of the applicable Statement of Work, and (iv) such other information as Client reasonably requests in writing.  APPNOVATION shall provide Client with full access to the then-current fully functioning and operating version of any Application at appropriate project phases pursuant to the applicable Statement of Work.

c) Schedule Service Dates.  The Parties will negotiate in good faith to indicate all delivery, implementation, and performance dates or time frames with respect to the Deliverables in a Statement of Work.  Notwithstanding the foregoing, in no event shall APPNOVATION have any liability by reason of any commercially reasonable delay in delivery or non-delivery or for any other commercially reasonable delay in performing its obligations under this Agreement caused, in whole or in part, by the occurrence of any contingency beyond the control of either APPNOVATION or its vendors, if any.  If any such contingency occurs, APPNOVATION shall inform Client as soon as possible of the reason for impact on the schedule agreed upon with Client and the impact itself with revised dates as applicable.

 

2.2. Statement of Work and Fees.

a) Statement of Work.  The contents of each Statement of Work shall include at least the following information:  (i) a reference to this Agreement; (ii) type and the Specifications of the Services; (iii) Deliverables and related schedule; (iv) performance period; (v) Application; (vi) term; and (vii) Fee schedule.  Each executed Statement of Work shall be deemed incorporated by reference into this Agreement under Schedule A. 

b) Fees.  The Parties shall agree on the specific terms relating to the fees payable by Client to APPNOVATION with respect to performing the Services that shall be provided by APPNOVATION to Client and which shall be set forth in a Statement of Work (the “Fees”). 

c) Expenses.  In addition, Client shall reimburse APPNOVATION for reasonable travel expenses directly related to the performance of the Services under this Agreement, provided that they are approved in writing by email or otherwise by Client in advance of the travel. 

d) Invoice.  APPNOVATION shall, either once per month or at such other time period provided for in the applicable Statement of Work, deliver an invoice to Client, requesting payment for the Services and Deliverables incurred by Client and for the reimbursement of expenses incurred during the immediately preceding billing period.  Such invoice shall contain a general description of the Services provided and the hours billed for such Services (when payment for the Services is on a Time and Expense basis), and the receipts associated with the reimbursement of expenses and shall be mailed or emailed by APPNOVATION to Client in accordance with Section 12.7 or as otherwise directed by Client.

e) Payment.  Client shall pay the full amount as set forth in the invoice to APPNOVATION within thirty (30) days from the date such invoice is mailed or emailed by APPNOVATION to Client, subject to Sections 2.2f). Late payments shall bear a carrying charge of two percent (2%) per month or proportionate fraction thereof or the maximum amount permitted by law, whichever is less. Client’s failure to fully pay any invoice in full in accordance with the terms set forth in this Section 2.2 shall constitute a material breach of this Agreement entitling APPNOVATION to suspend performance or terminate this Agreement, as provided in Section 10.2.

f) Fee Dispute.  In the event Client disputes the amount of a given invoice, it shall promptly notify APPNOVATION of such dispute and attempt to resolve such dispute immediately and amicably.  Such disputes shall only be made in good faith.  In the event no resolution occurs, the Parties hereby agree to submit to binding arbitration pursuant to Section 12.3.

g) Renewal.  In the event that the Statement of Work includes a recurring monthly or yearly fee, and unless: (i) terminated in accordance with the MSA and SOW or (ii) Client or Appnovation gives written notice of non renewal sixty (60) days in advance of the expiration of the Term, the service will be automatically renewed for successive periods of similar length as the Initial Service Term specified on the SOW on the same terms and conditions therein (each such renewal term will be deemed the “Service Renewal Term”). Appnovation may change the Fees for a Service Renewal Term by providing the Client with at least ninety (90) days advance written notice of the change before the end of the current Initial Service Term or Service Renewal Term, as the case may be.

2.3. Acceptance.

a) General.  Client’s acceptance of each of the Deliverables provided by APPNOVATION to Client pursuant to a Statement of Work shall occur following Client’s receipt of each Deliverable specified in the applicable Statement of Work; and, if a fixed fee engagement then only upon Client’s verification, in its reasonable discretion, that each Deliverable conforms in all material respects to the Specifications set forth in the applicable Statement of Work and such acceptance shall not be unreasonably withheld, delayed or conditioned by Client; provided, however, except as otherwise set forth in a Statement of Work, when payment for the Services is on a time and expense basis, Deliverables will be deemed accepted upon delivery to Client. 

b) Constructive Acceptance/Rejection.  Notwithstanding Section 2.3a), if a fixed fee Services engagement or other acceptance right is set forth in the Statement of Work, Client’s acceptance of a Deliverable shall be deemed to have occurred if Client does not:  (i) notify APPNOVATION to the contrary in writing within fifteen (15) days from the date the Deliverable was delivered to Client, and (ii) specify in reasonable detail all deficiencies and nonconformities in the Deliverable of which Client knows or should know through reasonable inspection following Client’s receipt of each Deliverable as provided in the applicable Statement of Work. If a Deliverable is rejected, APPNOVATION will within a commercially reasonable period of time (or as otherwise may be agreed to by the Parties) correct the noted deficiencies and nonconformities at APPNOVATION’s cost and expense and deliver the corrected Deliverables to Client.

 

3. Ownership.

3.1. General.  APPNOVATION hereby grants to Client a nonexclusive, royalty-free, revocable (becoming irrevocable upon payment in full for the related Services), worldwide, perpetual license to use, reproduce and modify the Applications furnished under the Statement of Work.  Upon payment to APPNOVATION for an Application by Client and if applicable, the Services, APPNOVATION shall assign all of its rights, title, and interest in and to the Applications (excluding the Appnovation Property or open source works) including all intermediate and partial versions thereof and upon assignment all Applications shall be owned by and shall be the exclusive property of Client or its customer, as applicable, and considered a "work made for hire" as that term is defined for copyright and other purposes under applicable laws. 

3.2. Appnovation Property.  All right, title and interest in the Appnovation Property shall remain vested with APPNOVATION or its licensors, as the case may be.  For avoidance of doubt, the Parties agree that any part of the Deliverables consisting of  Appnovation Property or open source works shall not be deemed “work made for hire” and Client and each of Client personnel hereby waives, and agrees not to assert, any rights, title, and interest in and to such works.  In the event that any rights to an Application cannot be transferred by APPNOVATION hereunder or if any Appnovation Property is incorporated into an Application, subject to Section 3.3 below, APPNOVATION hereby grants to Client a nonexclusive, royalty-free, perpetual, worldwide, revocable (becoming irrevocable upon payment in full for the related Services) license to use, reproduce, and modify, such Appnovation Property solely as part of such Application and solely in conjunction with Client’s use of the Application that contains such Appnovation Property.

3.3. Third Party Software.

a) APPNOVATION may provide as part of or in connection with the Application: (i) third party software subject to separate third party license terms and conditions ("Third Party License Terms"); and/or (B) "open source" software subject to the terms and conditions of publicly available licenses (the "Open Source License Terms").

b) Client acknowledges and agrees that: (i) such third party and open source software are governed exclusively by the applicable Third Party License Terms and Open Source License Terms; and (ii) such terms are solely between Client and the applicable licensor and APPNOVATION has no obligation or liability with respect to such software under the Agreement.

c) Client agrees that Client will not (and will not permit or encourage any third party to) use such open source software in a manner that would require the Application (or portion thereof not already subject to Open Source License Terms) be distributed or made available free of charge, in source code form, or under any Open Source License Terms.

3.4. Further Assurances.  At the applicable time during the term of this Agreement, APPNOVATION shall use its commercially reasonable efforts, at Client’s sole expense, to assist Client in protecting the Client’s rights to the Application that Client shall acquire in accordance with this Section 3.  Such assistance shall include, without limitation, providing such assistance as may be necessary for Client to obtain copyright registrations for the underlying Intellectual Property of the Application, as the case may be.  APPNOVATION agrees to execute and deliver all documents reasonably requested by Client in connection therewith.  Notwithstanding anything contained in this Section 3.4, APPNOVATION shall not have any obligations under this Section 3.4 in the event this Agreement is suspended or terminated due to Client’s breach of this Agreement.

3.5. Specifications.  Client shall work diligently to establish the Specifications and the priorities for performing the Services to be provided to Client and APPNOVATION shall work diligently to assist Client to establish the Specifications. 

 

4. Confidential Information/Nondisclosure. 

APPNOVATION and Client agree to the Confidentiality and Non-Disclosure terms and conditions set out in Schedule B which shall be deemed incorporated by reference into this Agreement. Schedule B shall supersede any Confidentiality or Nondisclosure Agreement previously entered into by the Parties.

 

5. Hardware and Software. 

5.1. In performing the Services hereunder, Client acknowledges that APPNOVATION may use Client’s hardware and software and Client hereby grants to APPNOVATION the right to operate and to use, and during the term of this Agreement will provide to APPNOVATION access to, Client’s hardware and software solely in connection with performing the Services hereunder, all at no charge to APPNOVATION. Client is responsible for the management of all client-owned hardware and software, and ensuring that all client-owned software licences are genuine, legally licenced, and vendor supported. If any APPNOVATION personnel accesses Client’s computer network, APPNOVATION agrees they will (a) do so only for the purpose of providing services to Client and not for any other purpose; (b) not access any information that is confidential or proprietary to Client, its employees, agents, customers or suppliers unless the personnel has a “need to know” in order to perform APPNOVATION’s obligations under this Agreement; and (c) not knowingly introduce any viruses, worms, time bombs, time locks, drop dead devices, traps, access codes, trap door devices or any other code that is designed to disrupt, disable, erase, alter, harm or otherwise impair Client or its computer network.

5.2. Data Network. Either Appnovation nor the Appnovation providers control the transfer of data to or from the Internet network and elsewhere.  Such transfer depends in large part upon the performance of the services provided by third parties.  At times, actions or inactions of such third parties can impair or disrupt Client’s connections to the Internet network.  These actions may include, without limitation, deliberate attempts to disrupt services, such as denial of service attacks.  Neither Appnovation nor Appnovation providers guarantee that such events will not occur.  Appnovation and the Appnovation providers disclaim any and all liability resulting from or related to such events or third party acts or admissions. Neither Appnovation nor the Appnovation providers assume any liability arising from (i) the use of the Services by Client in combination with any other services, products or equipment provided by Client or any third parties to Client; and (ii) failure by Client to perform its obligations.

5.3. Connectivity Services. Appnovation’s offices are not carrier neutral and third party connectivity services may not be terminated at the location without Appnovation’s express consent. Additional engineering and fees may be applied at Appnovation’s discretion but with prior approval of the Client in the event that third party services are permitted.

5.4. Service Suspension. If at any time continued provision of the Services may compromise the security, integrity and effectiveness of the Services or any of Appnovation’s other services and Appnovation’s customers due, without limitation, to hacking attempts, denial of service attacks, mail bombs or other malicious activities either directed at or originating from the Client’s domains, the Client agrees that Appnovation may, in its sole discretion, temporarily suspend Client’s Services. In such an event, Appnovation will promptly inform the Client and will work with the Client to resolve such issues, reinstating Client’s Services at the earliest opportunity.

5.5. Security Where Appnovation and Client have not set out in writing specific security standards for the provision of the Services, Appnovation will design/perform and/or implement and/or operate systems and services in accordance with Appnovation security standards.  Following execution of the SOW, any requested changes by Client to the security standards pertaining to the provision of the Service will follow a change order process and shall be subject to additional charges to the Client.

 

6. Warranties. 

6.1. Mutual Warranties.  Each Party represents, warrants and covenants to the other as follows and acknowledges that the other Party has relied upon the completeness and accuracy of such representations, warranties and covenants in entering into this Agreement:

a) it has the corporate capacity to enter into this Agreement and to perform each of its obligations hereunder; and

b) it has duly authorized, executed and delivered this Agreement and this Agreement constitutes a legally valid and binding obligation of it enforceable against it in accordance with its terms except as such enforcement may be limited by applicable bankruptcy, insolvency and other laws of general application affecting the enforcement of creditors' rights and subject to general equitable principles.

6.2. Appnovation Warranties. 

APPNOVATION warrants to Client that the Services and Deliverables, as the case may be, will be performed or delivered, as applicable, by APPNOVATION in a professional and workmanlike manner.

6.3. Time of Performance.  Notwithstanding the warranties set out above, the Parties agree that APPNOVATION will not be deemed to be in breach of the warranties set out in Section 6.2 above and that APPNOVATION’s time of performance shall be enlarged or extended, if and to the extent reasonably necessary, in the event that:  (a) Client fails to submit data in the prescribed form or as required by this Agreement and any exhibits hereto, or as required by any SOW which may become associated or part of this Agreement, (b) any Force Majeure that prevents timely performance hereunder, (c) special requests by Client or any governmental agency or other regulatory authority authorized to regulate or supervise Client impact APPNOVATION’s performance of the Services; or (d) if Client fails to provide any equipment, software, premises or performance called for by this Agreement, and the same is necessary for APPNOVATION’s performance hereunder.

6.4. Disclaimer.  WITH THE EXCEPTION OF THE PROVISIONS OF SECTIONS 6.1 and 6.2 AND 8.1, APPNOVATION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6.5. Limitations.  For claims arising under Section 6.2, Client’s sole and exclusive remedy for a period of ninety (90) days after delivery of the applicable Deliverable, shall be at APPNOVATION’s option: (i) the replacement or correction of the non-conforming Service or Application, as applicable, within a commercially reasonable period of time (or another amount of time agreed to by the Parties) (ii) APPNOVATION’s refund to Client of the applicable Fees and other amounts paid by Client for such non-conforming Service or Application upon prompt return of the Application to APPNOVATION and terminate the relevant engagement.

 

7. Limitation of Liability; Remedy. 

EXCEPT WITH RESPECT TO  EACH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER AND APPNOVATION’S RIGHT TO COLLECT UNPAID FEES, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY HEREUNDER IN EXCESS OF THE FEES PAID FOR THE THEN APPLICABLE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD WITH RESPECT TO THE RELEVANT ENGAGEMENT UNDER THE STATEMENT OF WORK.   THE LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCE WHATSOEVER SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF REVENUE, PROFITS OR DATA, OR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OR AWARE OF THE POSSIBILITY THEREOF, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING OUT OF THE LOSS OF DATA.

 

8. Infringement.    

8.1. General Warranty.  APPNOVATION warrants that the Applications will not infringe, misappropriate or otherwise violate any third party copyright, patent, trademark or any trade secret. 

8.2. Warranty Exclusion.  Notwithstanding Section 8.1 above, such warranty shall not apply to the extent, and Client shall indemnify APPNOVATION pursuant to Section 9.1 in the event that the infringement (or alleged infringement) was based on or attributable to any one or more of the following: (i) any claim by a third party that the Specifications or any portion thereof, materials or content provided by or on behalf of Client or any instructions or other request provided by Client to APPNOVATION infringe, allegedly infringe or otherwise violate (or allegedly violate) such Person’s Intellectual Property or proprietary information related thereto, (ii) any use of the Application in combination with other products, equipment, software, or data, or on a platform, not supplied, specified in this Agreement or otherwise approved in writing by APPNOVATION, (iii) any modification of the Application by any Person other than APPNOVATION or APPNOVATION’s personnel, (iv) any use, reproduction, or distribution of any release of the Application other than the most current release made available to Client, unless the infringing portion is identical to such infringing portion as contained in the then current, unaltered release, (v) any Application provided by Client to APPNOVATION for use in the Services, or (vi) any unlawful or improper use of any Application (each such infringement (or alleged infringement) described in (i) to (v) referred to as a “Client Breach” and collectively referred to as “Client Breaches”).

8.3. Remedies for Certain Instances of Infringement.  Client shall promptly notify APPNOVATION of any claim made or action brought against it alleging or otherwise relating to any such infringement or violation.  Subject to Section 8.2, APPNOVATION shall have the option, at its sole discretion and at its sole expense, (i) to promptly secure Client’s right to continue to use the Application, (ii) to promptly replace or modify the Application so that it becomes non-infringing and retains equivalent functionality, or (iii) to promptly substitute the Application of equivalent functionality which does not so infringe in place of the infringing Application.

 

9. Indemnification. 

9.1. Mutual Indemnification.  Each Party shall defend, indemnify and hold harmless (such Party referred to as “Indemnifying Party”) the other Party and shall pay, as incurred, all direct damages, costs, fees and expenses (including reasonable attorney’s fees) relating to any third party claim, action, suit or other proceeding alleging facts which, if true, would cause, in the case of the Indemnifying Party being:

a) APPNOVATION, to be in breach of Section 8.1; and

b) Client, to be in breach as a result of any of the Client Breaches listed in Section 8.2.

9.2. Cooperation. Neither Party will be required to indemnify the other Party unless the Party seeking indemnification: (i) notifies the other Party promptly in writing of the claim; (ii) cedes sole control of the defense and all related settlement negotiations to the other Party; and (iii) provides the other Party with all necessary assistance in the defense (at the indemnifying Party’s expense).

 

10. Termination; Suspension of Performance.

10.1. Term.  This Agreement shall be effective as of the Effective Date and remain in full force and effect for so long as either Party hereto is bound by one or more Statements of Work and shall terminate upon fulfillment and duties of the Parties in all of the Statements of Work or as provided for in Section 10.2 below.

10.2. Early Termination.  Either Party shall have the right to immediately terminate this Agreement or any Statement of Work or suspend performance hereunder without prejudice to any rights or recourse it may have in connection therewith, upon any of the following events, each of which shall be deemed to be a default under this Agreement:

a) material breach by the other Party of any provision of this Agreement including, but not limited to, failure of Client to make any payment for Services then due and payable, and such breach is not remedied by such other Party within thirty (30) days of receipt of written notice from the non-defaulting Party with respect thereto;

b) the termination of the business of the other Party; or

c) if the defaulting Party makes an assignment for the benefit of its creditors generally, is declared bankrupt or files an assignment in bankruptcy or makes a proposal to its creditors or takes, or attempts to take, advantage of any legislation for the relief of bankrupt or insolvent debtors, or if a receiver, trustee, manager or any official having similar powers is appointed or assumes direction with respect to the defaulting Party or any portion of its business affairs or property.

10.3. Accrued Rights; Remedies.  In the event this Agreement or any Statement of Work is terminated, Client shall remain liable for all Fees and all other amounts payable hereunder up to the date of termination, including, but not limited to, Fees that have been incurred as of the date this Agreement is terminated.  In the event that this Agreement is deemed terminated pursuant to Section 10.2, the Parties shall have available to them the remedies set forth in this Agreement, as applicable. 

10.4. Survival.   All provisions of this Agreement which, by their nature, ought reasonably to survive the termination or expiration of this Agreement, including without limitation sections 2.2b), 2c) 2e) and 2.2f), 3.1-3.4, 4, 6.4, 7, 8.2 and 8.3, 9, 10.3, 10.4, 11.4, and 12 shall survive any termination of this Agreement.

 

11. APPNOVATION Personnel.

11.1. Project Manager.  For the term of this Agreement, APPNOVATION shall designate a project manager, who is an employee, independent contractor or other agent of APPNOVATION (the “Project Manager”).  The Project Manager shall serve as the primary point of contact on behalf of APPNOVATION in dealing with Client with respect to the Services.  The Project Manager shall be responsible for coordinating, insofar as Client is concerned, all activities of Client affecting the Services.  The Project Manager shall also work with Client to establish Client’s priorities for the Services.  Client shall have the right to reasonably object to the appointment of a Project Manager and in such event, APPNOVATION shall appoint a new Project Manager with substantially equivalent or better skills and qualifications.  Project Manager shall be available, as reasonably required, to be on-site at the appropriate Client location during progress and review meetings and at other times reasonably requested by Client. In such event, Client shall be solely responsible to pay to APPNOVATION all reasonable expenses arising from or relating thereto including, but not limited to, travel expenses.

11.2. Personnel.  To the extent that any APPNOVATION personnel are identified by Client in writing, it is the Services and not the personnel that are subject to this Agreement and any derivative Statement of Work.  APPNOVATION agrees that it shall use commercially reasonable efforts to retain the retention of its personnel who perform the Services.  However, Client acknowledges that it is foreseeable that one or several of APPNOVATION’s personnel who perform the Services hereunder may cease performing the Services.  In the event that any APPNOVATION personnel ceases to perform the Services hereunder, APPNOVATION shall allocate substitute personnel of similar skills, expertise, and qualifications to perform the Services for Client.

11.3. Personnel Reassignment.  Client, in its discretion, may from time to time reasonably request that APPNOVATION remove one or more of APPNOVATION’s personnel performing the Services on APPNOVATION’s behalf, and in such event, APPNOVATION shall substitute another individual to perform such Services within a reasonable time from the date Client makes such a request.

11.4. Non-solicitation.

a) Non-Solicitation.  Each of the Parties recognizes that the employees, independent contractors, and other agents of the other Party, and such individuals’ loyalty and service to such other Party, constitute a valuable asset of such other Party.  Accordingly, during the term of this Agreement and for one (1) year after the expiry of termination of this Agreement, each Party hereby agrees not to (directly or indirectly):  (i) make any offer of employment to, (ii) hire or enter into a consulting relationship with, or (iii) otherwise solicit for hire, or encourage any Person who was employed by or retained as an independent contractor of the other Party or its affiliates (directly or indirectly). Notwithstanding the foregoing, Client shall not be considered in breach of this clause for generalized, non-targeted searches for employees through the publication of an advertisement or other public announcement.    

b) Injunctive Relief.  Each Party understands and acknowledges that any material breach of this Section 11.4 will cause the other Party irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the non-breaching Party shall have the right to seek injunctive relief with the applicable court of appropriate jurisdiction.

11.5. Training, Technical Support and Maintenance.  Client may from time to time request that APPNOVATION provide user training, system training, general consulting services, maintenance or other related services.  These services may be provided by APPNOVATION in accordance with the terms and conditions set forth in a Statement of Work or subsequent agreements that may be executed by duly appointed representatives of APPNOVATION and Client.  The Parties acknowledge and agree that such training and related services described in this Section 11.5 shall be separate and distinct from the Services, and the fees relating to such training and related services shall be at commercially reasonable rates agreed to by the Parties in writing and shall be separate and distinct from the Fees under this Agreement.

11.6. Loss/Theft.  APPNOVATION shall have no responsibility or liability whatsoever arising from loss or theft of the Deliverables or Application after its delivery to Client or of any copy protection device with which such Deliverable or Application, as applicable, is supplied.  In particular, APPNOVATION shall not be obligated to replace any lost or stolen software or copy protection device after its delivery to and acceptance by Client.  Client shall be solely responsible for safeguarding the Deliverables and Application and any copy protection device from loss or theft and protecting its investment through insurance or otherwise.

 

12. Miscellaneous.

12.1. Conflicts.  In the event any of the terms or conditions contained in a Statement of Work contradicts the terms and conditions of this Agreement, the applicable Statement of Work shall govern to the extent of such contradiction.

12.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the USA that apply to New York, excluding its conflict of laws provisions. The Parties hereby consent to the exclusive venue and jurisdiction for actions hereunder in the courts in New York, New York, USA. In the event of any litigation or other proceedings before an adjudicative authority regarding the construction hereof or any breach hereof, the non-prevailing Party shall pay the reasonable attorney’s fees and expenses of the prevailing Party

12.3. Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, or any other dispute, controversy or claim between the Parties (other than seeking injunctive or similar relief in which either Party shall have the right to apply to a court having appropriate jurisdiction to seek injunctive or other non monetary relief, on either an interim or permanent basis), shall be referred to and finally resolved by arbitration administered by the American Arbitration Association (“AAA”) under its Arbitration Rules. The Parties shall choose arbitrator(s) experienced in software development and related service agreements within 30 days of instituting the arbitration; otherwise the AAA shall choose the arbitrator(s). There shall be one arbitrator for any claim or set of claims that in the aggregate total(s) less than $100,000; otherwise there shall be three arbitrators. The arbitration shall be held in New York, New York. Any arbitral award may be entered and enforced in any court of competent jurisdiction. In the event a dispute arises from this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees and court costs from the losing Party.

12.4. Force Majeure.  Neither Party shall be deemed in default or liable for any delay in or failure of its performance under this Agreement due to any act of God, act of war or terrorism, fire, natural disaster, accident, riot, act of government, strike or labor dispute, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party.

12.5. Headings.  The headings and captions set forth herein are for convenience of reference only and shall not affect the construction or interpretation hereof.

12.6. Notices.  Except for invoices and related payment documents (which shall be mailed and/or emailed to Client as specified by Client), any notice or other communication required or permitted hereunder shall be hand delivered (including delivery by a commercial courier service) or sent by facsimile or sent by registered or certified mail, postage prepaid, addressed as follows:

APPNOVATION:     

Appnovation USA Inc.

200 Madison Avenue, Ste 2100

New York, NY 10016

 

to Client:

Client Address Line 1

Client Address Line 2

Client City, Client Province/State

Client Postal Code/Zip

 

or such other destination as may be specified in writing by the Parties.  Any such notice or communication shall be deemed to have been given as of the date so delivered in person or five (5) days after being deposited in the mail, return receipt requested.

12.7. Entire Agreement.  This Agreement sets forth the entire agreement and understanding of the Parties and their respective affiliates and subsidiaries with respect to the subject matter hereof, and supersedes any prior or contemporaneous written or oral agreements, undertakings, promises, warranties, or covenants not specifically referred to, attached hereto, or contained herein.

12.8. Performance.  Client hereby acknowledges and agrees that the Services and Deliverables pursuant to this Agreement and/or one or more Statement(s) of Work may be provided by one or more subsidiaries of APPNOVATION.

12.9. Taxes.  Client shall, in addition to the payments required hereunder, pay all sales, use, transfer or other taxes, whether federal, state, provincial or local, however designated, that are levied or imposed by reason of the transactions contemplated hereby; excluding, however, income taxes that may be levied against APPNOVATION.  Client shall reimburse APPNOVATION for the amount of any such taxes paid or accrued by APPNOVATION as a result of these transactions; excluding, however, taxes that may be levied against APPNOVATION.

12.10. Counterparts.  This Agreement may be executed in two or more counterparts and delivered by facsimile or other electronic means, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. 

12.11. Amendments.  This Agreement may be amended only by a written instrument signed by the Parties hereto.  In order to become legally binding on the Parties and constitute an amendment to or modification of a Statement of Work, all proposed changes to the Specifications, Services, Deliverables and the Application that are to be provided by APPNOVATION must be set forth in a written agreement, in the form of an amendment to this Agreement, the applicable Statement of Work, Change Order or other agreed-upon document, signed by an authorized representative of each Party in advance of performance of the tasks required by the changes.  All such amendments and modifications will specify any associated Fees or adjustment of the Fees, if any, as well as any modification in any associated delivery date, if any.  The Parties shall negotiate in good faith any modification or change to such Fees.

12.12. Successors and Assigns.  This Agreement shall not be assignable by Client without the prior written consent of APPNOVATION, which consent shall not be unreasonably withheld, delayed, or conditioned.

12.13. Waiver - Failure by a Party at any time to enforce any of the terms and conditions of this Agreement shall not affect or impair such terms or conditions in any way, or the right of such Party at any time to avail itself of such remedies as it may have for any breach of such terms or conditions under the provisions of this Agreement, in equity or at law.

12.14. Severability.  Any article, section, or other subdivision of this Agreement or any other provision of this Agreement which is, or becomes, illegal, invalid or unenforceable shall be severed herefrom and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions hereof.

12.15. Relationship.  The relationship between APPNOVATION and Client is that of an independent contractor and a customer, respectively, and under no circumstances shall either Party, its agents or employees be deemed agents or representatives of the other Party.  Neither Party shall have the right to enter into any contracts or commitments in the name of or on behalf of the other Party in any respect whatsoever. 

12.16. Good Faith.  Each Party shall act in good faith in connection with its performance of its respective obligations contemplated by this Agreement by, among other things, making available, as reasonably requested by the other Party, such facilities, management decisions, personnel, information, approvals, authorizations, and acceptances as may be necessary so that the Services provided by APPNOVATION under this Agreement may be accomplished in a proper, timely, and efficient manner.