Example of Business Contract

1. Your Relationship with PCFS Solutions.

A. Introduction.

The sale and performance of Professional Services (defined below) hereunder is subject to the terms of this Professional Services Agreement (the “Agreement“) between you (hereinafter “you” or “Client“) and PCFS Solutions, Inc. and its affiliates (hereinafter “PCFS Solutions“). PCFS Solutions’s sale and performance of Professional Services under this Agreement shall be solely for Client’s own internal use and not for resale.

B. Definitions.

“Deliverables” means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by PCFS Solutions or its suppliers, licensors or subcontractors in the course of performing the Professional Services.

“Materials” means all content and other items included with or as part of the Professional Services, Software or Deliverables.

“Professional Services” means the services performed by PCFS Solutions as described in one or more Statements of Work.

“Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by PCFS Solutions to you in connection with the Professional Services. Software includes software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, the PCFS Solutions Platform, and cloud-based solutions).

“Statements of Work” are separately signed mutually agreed upon documents that outline the scope of the Professional Services, time period for service delivery (including any milestone requirements), requisite service steps, and payment terms.

“Third-Party Products” means any non-PCFS Solutions-branded products, software or services.

C. Additional Agreements.

This Agreement together with any accompanying Statements of Work, forms a legally binding contract between you and PCFS Solutions in relation to your purchase and PCFS Solutions’ performance of Professional Services. Each Statement of Work will be interpreted as a single agreement, independent of any other Statement of Work, so that all of the provisions are given as full effect as possible. In the event of a conflict between these agreements, the terms of these documents will be interpreted in the following order of precedence: (1) Statement of Work; (2) this Agreement.

D. Payment.

I. Payment Terms. Unless otherwise agreed to by PCFS Solutions, payment of invoices must be received by prior to commencement of the Professional Services. Client will pay PCFS Solutions fees for the Professional Services calculated using the rates set forth in the Statement of Work within 30 days after receiving invoice(s) for such fees. Client (1) will reimburse PCFS Solutions for reasonable, actual travel, meals, lodging, and other out-of-pocket expenses incurred by PCFS Solutions in connection with the Professional Services, and (2) will pay or reimburse PCFS Solutions for all taxes, however designated or levied, on the Professional Services or Deliverables provided by PCFS Solutions hereunder. Additional charges may apply if Client requests Professional Services that are performed outside of contracted hours or are beyond the normal coverage for the particular Service, such as customized invoicing, consolidated invoicing and statements.

II. Suspension and Termination. PCFS Solutions reserves the right to suspend or terminate any or all Professional Services until PCFS Solutions’s receipt of all overdue amounts. PCFS Solutions shall have no liability to Client for any such suspension or termination of Professional Services. PCFS Solutions further reserves the right to seek collection of all overdue amounts (including by referral to third-party collectors), plus all reasonable legal fees (including reasonable attorney’s fees) and costs associated with such collection, and Client agrees to pay the same.

III. Taxes. Unless otherwise expressly stated, any fees charged to Client do not include Taxes (as defined below). Client is required to pay any and all Taxes associated with the fees charged by PCFS Solutions (“Transaction Taxes”), regardless of how or upon whom they are imposed on. These Transaction Taxes exclude income taxes but may include, but are not limited to, local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value added taxes, consumption taxes, Goods and Services taxes, GST/HST, excise, sales, use or similar taxes and any withholding taxes (together “Taxes”). All amounts invoiced pursuant to this Agreement are payable in full and without reduction for Taxes. If PCFS Solutions has a legal obligation to pay or collect Taxes for which Client is responsible under this section, the appropriate amount shall be invoiced to and paid by Client, unless Client provides PCFS Solutions with a valid tax exemption certificate authorized by the appropriate taxing authority.

IV. Prices. The prices charged for Software and Professional Services purchased under this Agreement shall be the amounts set forth in the Statement of Work.

2. Scope of this Agreement.

This Agreement authorizes you to purchase Professional Services from PCFS Solutions in accordance with one or more Statements of Work that explicitly incorporate this Professional Services Agreement.

3. Confidentiality.

In connection with this Agreement, each party may have access to or be exposed to information of the other party that is not generally known to the public, such as Software, Materials, product plans, pricing, marketing and sales information, Client lists, “know-how,” or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, should be treated as confidential (collectively, “Confidential Information”). Confidential Information may not be shared with third parties unless such disclosure is to the receiving party’s personnel, including employees, agents and subcontractors, on a “need-to-know” basis in connection with this Agreement, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall continue for two years from the date of disclosure.

4. Term; Termination.

A. Term of this Agreement.

This Agreement shall be effective from the Effective Date and shall continue until it is terminated as set forth below (the “Term”).

B. Termination.

Either party may terminate an individual Statement of Work hereunder if the other party commits a material breach of such agreement and the breach is not cured within 90 days of receipt of written notice from the injured party. PCFS Solutions may terminate this Agreement immediately, if (1) you fail to make any payment when due; (2) you are acquired by or merge with a competitor of PCFS Solutions; (3) you declare bankruptcy or are adjudicated bankrupt; or (4) a receiver or trustee is appointed for you or substantially all of your assets. Either party may terminate this agreement with (30) days written notice provided as set forth in Section 9(N). Upon termination of this Agreement, all rights and obligations of the parties under this Agreement and any accompanying Statements of Work will automatically terminate except for rights of action accruing prior to termination, payment obligations accruing pursuant to any Statements of Work, and any obligations that expressly or by implication are intended to survive termination.

5. Proprietary Rights.

You irrevocably acknowledge that, subject to the license granted herein or any separate license agreement referenced in Section 8 below, you have no ownership interest in the Software, the Materials, the methods by which the Professional Services are performed or the processes that make up the Professional Services (the “PCFS Solutions IP“). PCFS Solutions owns all right, title and interest in the PCFS Solutions IP, subject to any limitations associated with the intellectual property rights of third parties. PCFS Solutions reserves all rights not specifically granted herein.

6. Deliverables.


Subject to payment in full for the applicable Professional Services, PCFS Solutions grants you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country or countries in which you do business, solely for your internal use, and solely as necessary for you to enjoy the benefit of the Professional Services as stated in the applicable Statements of Work. PCFS Solutions and its applicable suppliers or licensors will retain exclusive ownership of all Deliverables, and will own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation and techniques associated with such Deliverables.

7. Suspension or Modification of Software or Professional Services.

PCFS Solutions may suspend, terminate, withdraw or discontinue all or part of the Professional Services or your access or one or more users’ access to the Software upon receipt of a subpoena or law-enforcement request, or when PCFS Solutions believes, in its sole discretion, that you (or your users) have breached any term of this Agreement or an applicable Statement of Work or are involved in any fraudulent, misleading or illegal activities.

8. Software.

A. Accompanying License.

Software and Materials may be provided subject to a separate software license agreement, product guides, operating manuals or other documentation included with the software or presented to you during the installation or use of the Software. You agree to be bound by such license agreements.

B. Software License from PCFS Solutions.

If no license terms accompany the Software, then subject to your compliance with the terms set forth in this Agreement, PCFS Solutions hereby grants you a personal, nonexclusive license to access and use such Software only during the term of the Professional Services and solely as necessary for you to enjoy the benefit of the Professional Services as stated in the applicable Statement of Work.

I. Restrictions. You may not copy, modify or create a derivative work, collective work or compilation of the Software, and may not reverse engineer, decompile or otherwise attempt to extract the code of the Software or any part thereof. You may not license, sell, assign, sublicense or otherwise transfer or encumber the Software; may not use the Software in your own delivery of managed-services to third-parties or in a service bureau arrangement; and may not use the Software in excess

of the authorized number of licensed seats for concurrent users, sites or other criteria specified in the applicable Statements of Work. In addition, Client may not access the Software or monitor its availability, performance or functionality, or for any other benchmarking or competitive purpose.
You are further prohibited from (1) attempting to use or gain unauthorized access to PCFS Solutions’ networks or equipment; (2) permitting other individuals or entities to use the Software or copy the Software or Professional Services; (3) attempting to probe, scan or test the vulnerability of Software or a system, account or network of PCFS Solutions or any of its Clients or suppliers; (4) interfering or attempting to interfere with service to any user, host or network; (5) transmitting unsolicited bulk or commercial messages; (6) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (7) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any PCFS Solutions facilities used to deliver the Professional Services.

II. Audit. You hereby grant PCFS Solutions, or an agent designated by PCFS Solutions, the right to perform an audit of your use of the Software during normal business hours; you agree to cooperate with PCFS Solutions in such audit; and you agree to provide PCFS Solutions with all records reasonably related to your use of the Software. The audit will be limited to verification of your compliance with the software licensing terms of this Agreement.

9. Additional Terms.

A. Limited Warranty.

PCFS SOLUTIONS WARRANTS THAT ITS SERVICES SHALL BE PERFORMED BY QUALIFIED PERSONNEL IN A MANNER CONSISTENT WITH GOOD PRACTICE IN THE INFORMATION TECHNOLOGY SERVICES INDUSTRY. IF PCFS SOLUTIONS BREACHES THIS WARRANTY, IT SHALL SUPPLY SERVICES TO CORRECT OR REPLACE THE WORK AT NO CHARGE. THE REMEDY SET FORTH IN THIS SECTION IS CLIENT’S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.

PCFS SOLUTIONS WARRANTS THAT IT HAS THE RIGHT TO GRANT THE LICENSES TO THE SOFTWARE LICENSED IN SECTION 8 ABOVE, AND SUCH SOFTWARE WILL SUBSTANTIALLY CONFORM TO THE FUNCTIONAL SPECIFICATIONS AND CURRENT DOCUMENTATION PROVIDED BY PCFS SOLUTIONS. THIS WARRANTY DOES NOT COVER SERVICE NOT PERFORMED OR AUTHORIZED BY PCFS SOLUTIONS (INCLUDING INSTALLATION OR DE-INSTALLATION), USAGE NOT IN ACCORDANCE WITH SOFTWARE INSTRUCTIONS, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE SOFTWARE OR SERVICES.

EXCEPT AS EXPRESSLY STATED IN THE THIS SECTION 9(A), PCFS SOLUTIONS, (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS (COLLECTIVELY, THE “PCFS SOLUTIONS PARTIES”) MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE SOFTWARE OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THIRD-PARTY PRODUCTS; (3) RELATING TO THE PERFORMANCE OF SOFTWARE OR PCFS SOLUTIONS’S PERFORMANCE OF THE SERVICES OR WHETHER THE SOFTWARE OR SERVICES ARE SUITABLE FOR HIGH-RISK ACTIVITIES; OR (4) REGARDING THE RESULTS TO BE OBTAINED FROM THE SOFTWARE OR SERVICES OR THE RESULTS OF ANY RECOMMENDATION BY PCFS SOLUTIONS.

B. Limitation of Liability.

TO THE EXTENT PERMISSIBLE BY LAW, PCFS SOLUTIONS WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR SERVICES PROVIDED HEREUNDER. EXCEPT FOR YOUR BREACH OF SECTION 1.D.I. OR SECTION 8, OR ANY CLAIM BROUGHT PURSUANT TO SECTION 9(C), NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (1) LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; (2) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (3) LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; (4) BUSINESS INTERRUPTION OR DOWNTIME; OR (5) DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE.

IN NO CIRCUMSTANCES, SHALL PCFS SOLUTIONS’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO PCFS SOLUTIONS UNDER THE APPLICABLE STATEMENT OF WORK.

THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PCFS SOLUTIONS’S SALE OF SOFTWARE OR SERVICES TO CLIENT, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.

C. Indemnification.

PCFS Solutions shall defend and indemnify you against any third-party claim or action that Software, Professional Services or Deliverables (excluding Third-Party Products and open source software) prepared or produced by PCFS Solutions and delivered pursuant to this Agreement infringe or misappropriate that third party’s U.S. patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims“). In addition, if PCFS Solutions receives prompt notice of an Indemnified Claim that, in PCFS Solutions’s reasonable opinion, is likely to result in an adverse ruling, then PCFS Solutions shall, at its option, (1) obtain a right for you to continue using such Software, Deliverables or allow PCFS Solutions to continue performing the Professional Services; (2) modify such Software, Professional Services or Deliverables to make them non-infringing; (3) replace such Software, Professional Services or Deliverables with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Professional Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverables or Software. Notwithstanding the foregoing, PCFS Solutions shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Software, Professional Services, or Deliverables that were not performed by or on behalf of PCFS Solutions; (2) the combination, operation, or use of the Software, Professional Services or Deliverables in connection with a Third- Party Product (the combination of which causes the claimed infringement); or (3) PCFS Solutions’s compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. PCFS Solutions’s duty to indemnify and defend under this Section 9.C. is contingent upon: (1) PCFS Solutions receiving prompt written notice an Indemnified Claim, (2) PCFS Solutions having the right to solely control the defense and resolution of such Indemnified Claim, and (3) your cooperation with PCFS Solutions in the defense and resolution of such Indemnified Claim. This Section 9.C. states Client’s exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate PCFS Solutions to provide any greater indemnity to Client.

You shall defend and indemnify PCFS Solutions against any third-party claim or action arising out of (1) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be installed or integrated as part of the Software, Professional Services or Deliverables; (2) your breach of this Agreement; (3) any inaccurate representation regarding the existence of an export license or any allegation made against PCFS Solutions due to your violation or alleged violation of applicable export laws, regulations, or orders; or (4) your providing of (or providing access to) Excluded Data (defined below) to PCFS Solutions.

Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.

D. Independent Contractor Relationship; Assignment; Subcontracting.

The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between PCFS Solutions and Client, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. PCFS Solutions has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that PCFS Solutions shall remain responsible for the performance of Professional Services under this Agreement. Otherwise, neither party may assign this Agreement, in whole or in part, without the permission of the other.

E. Force Majeure.

Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, cyber warfare, including, but not limited to, Internet-based conflict and attacks on information systems designed to or resulting in the disabling of websites and networks, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure“). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Statement of Work by giving written notice to the delayed party.

G. Entire Agreement; Severability.

This Agreement, together with any Statement of Work, is the entire agreement between you and PCFS Solutions with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between you and PCFS Solutions. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.

H. Governing Law.

This Agreement, any related Statement of Work, and ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CLIENT AND PCFS SOLUTIONS, including their affiliates, contractors and agents, and each of their respective employees, directors and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement) any related purchase (a “Dispute“) shall be governed by the laws of the State of California, without regard to conflicts of law.

I. Venue.

The parties agree that any Dispute shall be brought exclusively in the state or federal courts located in Orange County, California. Client and PCFS Solutions agree to submit to the personal jurisdiction of the state and federal courts located within Orange County, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.

J. Bench Trial.

The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.

K. No Class Actions.

NEITHER CLIENT NOR PCFS SOLUTIONS SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CLIENTS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

L. Limitation Period.

NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.

M. Dispute Resolution.

Client and PCFS Solutions will attempt to resolve any Dispute through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a state or federal court in Orange County a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or in equity.

N. Scope of Services.

Subject to the terms and conditions of this Agreement, Company will perform those services (“Services”) with respect to the Company products separately purchased by Client (“Company Commercially-Available Software”) as set forth in one or supplemental document(s) (“Statement of Work”), attached hereto as Exhibit A and as amended and/or supplemented from time to time by the mutual written agreement of the parties and incorporated herein by reference. A Statement of Work will be, at a minimum, a written document that (i) references this Agreement, (ii) describes the Services to be performed (and if said Services shall include the creation of object code, such object Code is defined herein as “Deliverable”), (iii) specifies the corresponding rate schedule or other fee information, and (iv) is signed by both parties or is issued by one party and signed by the other party. Company will use commercially reasonable efforts to complete the Services by the applicable dates set forth in the attachment (“Target Dates”).

O. Change Orders.

Any changes to the scope of the Services must be made in writing and signed by both parties (“Change Order”) or if the Change Order is made via email to the other party’s designated contact person, the receiving party will have five business days to reject the Change Order. If said rejection is not made within the 5 business day period, the Change Order is deemed mutually accepted. Each accepted Change Order will be incorporated herein by reference and subject to the terms and conditions of this Agreement.

P. Execution

This Agreement may be executed and delivered by facsimile/PDF and the parties agree that such facsimile execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used. IN WITNESS WHEREOF, the parties by their duly authorized representatives have executed this Agreement as of the Effective Date.