Terms and Conditions

1  PREAMBLE

1.1  PA is an IT solutions provider of information technology Products, Professional Services and Support.  PA solutions may be delivered either OnPremise, or hosted online.

1.2  Client engages PA to procure or subscribe one or more Products, Professional Services or Support from PA.

2  DEFINITIONS

2.1  "Agreement" means this document, these terms and conditions along with Schedules or Addendums.

2.2  “Cancellation Fee” means the fees associated with cancelling a Subscription.

2.3  “Client Data” means all data and information (including Confidential Information) relating to Client and its operations, facilities, personnel, assets, products, sales and transactions in whatever form whether entered, stored, generated or processed as part of the Hosted Service, and includes any:

2.3.1  database in which such data or information is stored;

2.3.2  documentation or records related to such data or information.

2.4  “Cloud Provider” means the Microsoft Azure environment, data centers facility comprising computer servers, associated hardware, software and IT networks that are established, operated and maintained by Microsoft Corporation (“Microsoft”).

2.5  "Customizations" means changes, modifications, amendments to Products.

2.6  "Help Desk" means the provision of telephone, internet or email assistance. Refer to Addendum B.

2.7  “Hosted Service” means the provision by PA of software applications via the Cloud Provider environment which may be accessed by the Client during Planned Service Hours for the period for which Subscription Fees have been paid to PA.  Refer to Addendum C.

2.8  “Intellectual Property Rights” means:

2.8.1  any patent, trade mark, trade name, business name, company name, copyright, registered design or other design right, Eligible Layout and any corresponding property or right under the laws of any jurisdiction throughout the world, together with any right to apply for the grant or registration of the same; and

2.8.2  any rights in any jurisdiction in the world in respect of an invention, discovery, trade secret, data, algorithm or formula.

2.9  "Maintenance" means software releases, updates, fixes and enhancements.

2.10  “Online Microsoft Dynamics 365” means an online environment managed by Microsoft running Microsoft’s software for which the Client has paid Subscription Fees

2.11  “OnPremise” means software that is deployed onto the IT infrastructure located on the Client’s premises or a data center managed by the Client.

2.12  “Order Form” means a document defining the Products, Professional Services or Support the Client purchases from PA.

2.13  “Perpetual” means the version of perpetual software license(s) paid for in full.

2.14  "Products" means third party vendor software applications, PA-developed software applications ("PA Products"), or a Hosted Service.

2.15  "Professional Services" means the provision of consulting and development activities, including Customizations. This may include but not limited to: project management, business analysis, training, technical configuration, IT Infrastructure engineering.

2.16   “SLAAS” means software-license-as-a-subscription (“SLAAS”), where the Client has purchased Software license(s) on a rental basis. For the sake of clarity this is not software-as-a-service. 

2.17  “Software” means the version of PA Products paid by the Licensee and invoiced by PA or an authorized PA reseller. 

2.18  “Subscription” means Products that are purchased on rental basis, with payments made on a regular basis.

2.19  “Subscription Fees” means the set fees associated the Subscription, plus any variable fees associated with excess consumption (such as storage, bandwidth traffic, etc).

2.20  "Support" means Maintenance and Help Desk.

2.21  “Support Fees” means the fees associated with a contracted period of time, during which PA provides the Client with Support.  A Support contract may be purchased directly or be bundled with other Products.

3  ENGAGEMENT

3.1  The provision of Products, Professional Services and Support from PA are governed by this Agreement.

3.2  Software may be sold and licensed under the following models:

3.2.1  Perpetual 

3.2.2  SLAAS

3.3  Software may be deployed either OnPremise, via a Hosted Service or an Online Microsoft Dynamics 365 environment.

3.4  Products are governed by product-specific license agreements or Terms of Use (“TOU”) or Terms of Service (“TOS”) agreements.  All PA Products are governed by PA’s Software End User License Agreement (EULA), refer to Addendum A.

3.5  PA will provide Professional Services to Client as described in written form such as a Statement of Work (“SOW”), engagement letter, project scope agreement, implementation planning study, solution design document, development order, change requests or statements of work which will form exhibits to this Agreement (collectively, the “Exhibits”) and unless stated to be fixed, these are provided on a time and materials basis.  The Exhibits are incorporated into this Agreement by reference.

3.6  Professional Services may be provided either at a Client site or off-site.

3.7  Retention of Title: Risk of Products transfers to the client at time of delivery, but PA retains title of ownership and the Client does not have a claim on any license to use any Products until all amounts due have been paid. PA reserves the right to enter client premises to remove unpaid goods.

4  FEES, PAYMENT

4.1  All amounts paid pursuant to this Agreement are payable in US Dollars (USD) and are non-refundable.

4.2  All charges, or other amounts described by PA 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”). Client is responsible for paying all Taxes associated with Client purchases hereunder. If PA has the legal obligation to pay or collect Taxes for which Client is responsible under this clause, PA will invoice Client and Client will pay that amount unless Client provides PA with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, PA is solely responsible for taxes assessable against PA based on PA income, property and employees.

4.3  All Perpetual software licenses fees must be paid in full prior to delivery.

4.4  Subscription Fees must be paid in advance as per the schedule on the Order Form.  The minimum term for any Subscription is 24 months.  

4.5  All Professional Services are provided on a fee for service basis at prevailing rates.  Time and materials Invoices are issued weekly in arrears.  Fixed Price invoice are issued upon completion of the relevant milestone.

4.6  Support Fees are payable in advance.

4.6.1  Support Fees associated with Perpetual software licenses are sold with a minimum 12 month term.

4.6.1  Subscription Fees include a Support Fee.

4.7  A Cancellation Fee for cancelling a Subscription is calculated as follows:

4.7.1  If the Subscription, in whole or part, is cancelled in the first 12 months, 100% of all amounts which would have been payable in respect of the Subscription Fees for the period between the date cancellation takes effect and 12 months after the Subscription Commencement Date or, 3 months Fees, whichever is the greater; or  

4.7.2  If the Subscription, in whole or part, is cancelled after the first 12 months, the cancellation fee will be the equivalent of 3 months fees of all amounts which would have been payable in respect of the Subscription Fees; but in any event the Client agrees to pay for all invoices within 30 days following date of the invoice unless stated otherwise on the invoice

4.8  Perpetual and Subscription Fees must be paid prior to commencement of Professional Services.

4.9  Travel Charges are applicable for on-site visits to Client premises in accordance with Addendum D.

4.10  PA may refuse and withhold provision of Hosted Service, Support and Professional Services where Client account is not maintained within payment terms.

4.11  Any overdue amounts may be charged interest at the lesser of 2% per month and the highest rate permitted by applicable law. The client will be liable for all collection and legal costs. Any amounts due in respect of this agreement may not be offset against any other claims the client may have against PA.

5  TERM AND TERMINATION

5.1  This Agreement shall endure until termination or expiry date.

5.2  In the event of any breach of any term or provision of the Agreement by either party, which is incapable of being rectified, the other party may terminate the Agreement by giving 30 days prior written notice and opportunity to cure said breach.

5.3  Client may, at any time, terminate the Agreement for the Client’s convenience and without cause, except for any applicable Cancellation Fee, by providing 90 days written notice.  Upon receipt of written notice from Client of such termination for Client’s convenience, PA shall cease operations as directed by Client and, except for work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders, and enter into no further subcontracts or purchase orders.  PA shall be entitled to receive payment for work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the work not executed.

5.4  Upon expiry or termination of this Agreement, Client must (within 30 days of expiry or termination) deliver to PA any PA Products or Confidential Information of PA in Client’s possession or, if requested by PA destroy or erase all copies of the same.   Any Confidential Information of Client in PA’s possession will be returned to Client or, if requested by Client, PA will destroy or erase all copies of the same.

5.5  Either party may terminate this Agreement immediately upon written notice to the other party if the other party becomes insolvent or is the subject of a proceeding in bankruptcy, is placed in receivership, or enters into an arrangement for the benefit of its creditors.

5.6  Client shall be responsible for payment of all Professional Services rendered prior to the date of termination.  

5.7  PA may terminate the Agreement immediately with written notice if any invoice is unpaid for a period greater than 30 days following its due date. 

5.8  PA reserves the right to suspend the provision of Professional Services and Support if the Client engages any other party for similar Professional Services or Support.

5.9  Upon expiry or termination of a Hosted Service, Client may request (within 30 working days of expiry or termination) PA deliver to Client an extraction of any Client Data.  Any Professional Services associated with extraction, preparation or delivery of Client Data will be charged on a time and materials basis.  

6  REPRESENTATION AND DISCLAIMER

6.1  PA represents that: (i) it has the authority to enter into this Agreement; (ii) it will comply with all applicable law; (iii) Professional Services will be provided in a professional and workmanlike manner; and (iv) to the best of its knowledge, Products, Professional Services and Support will not violate the copyright or proprietary rights of any third party, provided, however, that PA expressly disclaims any warranty relating to infringement resulting from PA’s use of tools, instructions, specifications, or other materials provided by Client to PA (“Client Materials”) and provided, further, that the foregoing warranty shall not apply where Client or its agents make modifications to any aspect of the results of the Professional Services.

6.2  Client represents that: (i) it has the authority to enter into this Agreement; (ii) it will comply with all applicable law; (iii) it has or has obtained the right to permit PA to supply any of the Products, Professional Services or Support contemplated by this Agreement; and (iv) in entering into this Agreement it has relied upon its own experience, skill and judgement to evaluate the Products, Professional Services and Support and that it has satisfied itself as to the suitability of the Products, Professional Services and Support to meet its requirements.

6.3  Except as expressly provided herein, the Products, Professional Services and Support are provided as-is.  PA does not warrant that Products and Professional Services will be fit-for-purpose, accurate, complete or error-free. There are no warranties which extend beyond those expressed in this Agreement.

7  INDEPENDENT CONTRACTOR STATUS

7.1  The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create any form of partnership, principal-agent relationship, employer-employee relationship, or joint venture between the parties hereto.

8  INDEMNIFICATION

8.1  PA agrees to indemnify, hold harmless and defend Client from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and legal fees) incurred by Client and for which Client provides notice to PA within thirty (30) days of such claim which relate to the violation of any third party’s copyright or proprietary rights arising in the provision of Professional Services or PA Products, except where such violation arises from PA’s reliance on Client’s instructions or specifications or where Client or its agents modify any aspect of the results of the Professional Services, in which case Client shall indemnify PA. 

8.2  In the event of any infringement or claimed infringement, Client’s sole remedy shall be that PA shall in its sole discretion: (i) modify infringing materials to be non-infringing; (ii) obtain a license for Client to use the infringing materials; or (iii) subject to the limitation of liability provisions of this Agreement, provide monetary compensation to Client under this indemnity.

8.3  Client agrees to indemnify, hold harmless and defend PA from and against any and all judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and legal fees) incurred by PA and for which PA provides notice to Client within thirty (30) days of such claim which relate to the violation of any third party’s copyright or proprietary rights arising in connection with the provision of Professional Services where such violation arises from PA’s reliance on Client’s instructions or specifications or where Client or its agents modify any aspect of the results of the Professional Services.

9  LIMITED LIABILITY

9.1  To the full extent allowed by applicable law, the parties mutually waive all claims and rights of recovery against each other for any special, exemplary, consequential or indirect damages related to this Agreement or otherwise.  Consequential and indirect damages include loss of data, use, income, anticipated profits on unperformed work or other contracts or projects, loss of business, goodwill or reputation or other consequential or indirect damages as defined by applicable law.

9.2  Under any State or Federal Law when implied conditions and warranties cannot be expressly excluded, PA limits its liabilities in the case of Professional Services, to the supplying of the Professional Services again, or the payment of the cost of having the Professional Services supplied again at the discretion of PA.

9.3  To the full extent allowed by applicable law, PA's total liability to Client for any and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any way related to this Agreement from any cause or causes of action including but not limited to PA’s negligence, strict liability, breach of contract or breach of warranty shall not exceed the amount of the fees paid by Client to PA under this Agreement during the previous 12 month period in which such claim arises.

10  INTELLECTUAL PROPERTY AND PRIVACY

10.1  All rights in any intellectual property relating to the PA-Products, Professional Services, Support, Customizations, related documentation, or background material remain the property of PA. 

10.2  PA retains all rights to intellectual property created in connection with its performance of Professional Services, Support and Customizations hereunder or elsewhere.

10.3  Subject to this clause PA grants to the Client a non-exclusive, irrevocable, perpetual, global license to use the Intellectual Property Rights in any Customizations and result of Professional Services provided to the Client for its own internal purposes. For the avoidance of doubt, the Client is not entitled to exploit the intellectual property referred to in this clause.

10.4  All Client data stored within the Products or its related components remains the property of the Client.  The Client warrants that any logo or copyright material supplied by it to PA are its own and may be used with its authorization.  PA accepts no responsibility for the accuracy or protection of Client Data except to the extent imposed by privacy legislation.  The Client warrants that it has complied with all such legislation and will continue to ensure it does so.

11  PRIVACY NOTICE

11.1  PA will comply, and will ensure that all its representatives comply with privacy legislation in respect of all personal information collected, used, disclosed and otherwise handled by them under or in connection with this Agreement. 

11.2  Subject to the privacy legislation, PA uses Client information to provide Client with information relating to PA or promotional details about Products, Professional Services and Support that may be of interest to Client, unless Client has previously advised PA not to be contacted for those purposes. Should Client no longer wish to receive information such as this, please notify PA using the contact details in section 11.3.

11.3  If Client has any questions or feedback about privacy, or wish to make a complaint about the way in which PA has handled Client personal information, contact PA as follows: (i) profad@profad.com; (ii) +1 701 235 2363; (iii) The Privacy Officer, Professional Advantage Software Solutions Inc. at Suite 201, 4820 30th Avenue South, Fargo, ND 58104.

12  CONFIDENTIALITY 

12.1  Each party to this Agreement (each, a “Recipient”) shall protect and keep confidential all non-public information disclosed by the other party (each a “Discloser”) and identified as confidential by the Discloser (“Confidential Information”), and shall not, except as may be authorized by Discloser in writing, use or disclose any such Confidential Information for a period of three (3) years from the completion, termination or abandonment of the Agreement Upon termination or completion of this Agreement, Recipient shall return to Discloser all written materials which contain any Confidential Information. The obligations of confidentiality shall not apply to any information which: (i) was previously known to Recipient; (ii) is or becomes publicly available, through no fault of Recipient; (iii) is disclosed to Recipient by a third party having no obligation of confidentiality to Discloser; (iv) is independently developed by Recipient; or (v) is required to be disclosed as a matter of law.

12.2  Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of the Agreement may cause the non-disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the non-disclosing party may request injunctive or other equitable relief seeking to restrain such use or disclosure.

13  SOLICITATION

13.1  Both parties agree not to hire or attempt to hire employees or subcontractors of the other party without prior written consent, during the term of this Agreement and during the one (1) year period commencing upon completion, termination, expiry or abandonment of this Agreement.  If consent is provided, then the ‘hiring’ party agrees to pay the other party a recruitment fee equivalent to four months of the salary package as compensation.  This restriction also applies for a period of 12 months from the date of resignation/termination of any employee or subcontractor.

14  DELAYS

14.1  Neither party shall be liable for delays caused by fire, accident, labor dispute, war, insurrection, riot, act of government, act of God, or any other cause reasonably beyond its control; but each party shall use all reasonable efforts to minimize the extent of any such delay. PA shall not be liable to Client (or Client’s customers) for any delay in performance or any failure in performance hereunder caused in whole or in part by reasons beyond the control of PA and resulting from Client’s failure to furnish in a timely manner information, equipment, or materials necessary to perform the Hosted Service, Professional Services or Support.

15  AMENDMENTS

15.1  Changes to this Agreement need to be agreed in writing by both parties.

16  ASSIGNMENT

16.1  Neither party may assign its rights or obligations hereunder (except to subsidiaries or affiliates) without prior written consent of the other party, which consent will not be unreasonably withheld.

17  ARBITRATION & GOVERNING LAW

17.1  This Agreement shall be governed by and construed in accordance with the laws of the State of North Dakota without regard to the choice of law or conflict of law principles.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

17.2  Any dispute, controversy, cause of action, or claim, of any kind or nature whatsoever, whether legal or equitable, including, but not limited to, claims sounding in contract, torts or products liability and claims based upon alleged violations of consumer protection laws, which arise out of or relate to (1) this Agreement, or the breach, termination or invalidity of this Agreement, (2) the sale, installation, modification or use of the Software sold, or (3) any services rendered in connection with the sale, installation, modification or use of the Software shall be finally and exclusively settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement by one (1) arbitrator appointed in accordance with such Rules.  The place of arbitration shall be Fargo, North Dakota.  Judgment upon the award of the arbitrators may be entered in any court having jurisdiction thereof.

17.3  This Agreement shall be governed by and construed in accordance with the laws of the State of North Dakota without regard to the choice of law or conflict of law principles.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

 

Addendum A – EULA (“End User License Agreement”)

1  PREAMBLE

1.1  YOUR (“Licensee”) USE OF THE LICENSED SOFTWARE IS CONDITIONED UPON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT MAKE ANY USE OF THE LICENSED SOFTWARE. ANY USE BY YOU OF THE LICENSED SOFTWARE, OR ANY PORTION THEREOF, CONSTITUTES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT

2  DEFINITIONS

2.1  “Documentation" means any user and technical documentation for the Software in electronic or printed format that is delivered to Licensee with the Software.

2.2  “Licensee" means the end user of the Software.

2.3  “PA Products” means 1Staff Back Office , 1Staff Front Office, Webhouse/1StaffAnalytics, 1Staff Utilities (including: Imaging, Electronic File Import, Time Entry Express, XML Import Service, 1StaffConnect),  ESS, Candidate Search, Collections Management, National Accounts, Company Data Archive, Webtime, Retail Analytics and Merchandise Planning /RAMP, RMS ConnectPro, Upbeat, EmailPro, Smartask, CheckPro.

3  GRANT OF LICENSE

3.1  PA grants Licensee the non-exclusive and non-transferable right to:

3.1.1  Copy the server portion of the Software on only one server computer designated (“Designated Computer”) or in a “Cluster” which includes the Designated Server Computer.  A “Cluster” shall mean two or more server computers which are interconnected. Use in a Cluster is only permitted if no module of the Software is active on more than one server computer at any given time. Licensee shall notify PA in advance in the event that it intends to relocate or change the Designated Server Computer.  Licensee may maintain separate non-productive disaster recovery and testing sites provided that the installation is used solely for the purposes of backup and emergency use. Licensee may not have more than one active installation of the Software on the Designated Server Computer or a Cluster unless Licensee purchases additional Software licenses;

3.1.2  Copy the client portion of the Software onto an unlimited number of computers provided that (1) all software so installed references a single database on the Designated Server Computer; and (2) the number of client portion users accessing the Designated Server Computer is limited to the number of users purchased;

3.1.3  Execute and use the Software for Licensee’s internal business operations; and,

3.1.4  Use the associated Documentation and make a reasonable number of copies or printouts thereof for Licensee’s internal use.

3.1.5  Use the Software in perpetuity, unless the Software has been purchased on a Subscription basis.  Right to use the Software purchased under a Subscription will be limited to the period in which Subscription Fees have been paid. 

3.2  Database Software.  Licensee is required to license the appropriate database software, including the appropriate number of user licenses, from the corresponding third party provider.

3.3  Sublicensing/Transfer. Licensee shall not grant sublicenses, rent, transfer, provide commercial hosting service or otherwise assign the Software or Documentation or the right to use the same to benefit any third party.  Any attempt to grant sublicenses, transfer any rights, rent or otherwise assign or deal in the Software or Documentation shall be considered a breach of this Agreement by Licensee.

3.4  Backup Copy.  Licensee may make a reasonable number of backup copies of the Software which shall also be subject to the terms and conditions of this Agreement.  Licensee must maintain an accurate record of the location of such backup copies at all times. Such record may be inspected and verified by PA at any time during Licensee’s business hours upon notice by PA. Licensee acknowledges the need to maintain regular back-up copies and to adopt other such management procedures to avoid the consequence of loss of data in the event of any equipment or software malfunction.

3.5  Restrictions on Use.  Licensee may use the Software and Documentation only in the conduct of its internal business operations and those of a Company as defined in this Section.  "Company" shall mean a business entity which is “Controlled” by or under common “Control” with Licensee.  "Control" of any entity for the purposes of this section means ownership of at least 50% of the shares of an entity or entitlement to elect a controlling interest of the board of directors of such entity or other management relationship sufficient to control the entity's business policies and activities.  The Software may not be used directly or indirectly by the Licensee to operate a service bureau or provide hosting, outsourcing or subscription services. Any unauthorized use of the Software will automatically void this license and subject Licensee and others to legal claims by PA for copyright infringement and unauthorized use, including claims for injunctive relief and monetary damages.

3.6  Ownership.  All title and rights of ownership in the Software and Documentation remain with PA and/or its suppliers or licensors and are protected by applicable copyright, patent, trademark and trade secret laws.  Licensee agrees to take any reasonable step necessary to protect the proprietary rights of PA and its suppliers or licensors in the Software and Documentation, including, but not limited to, the proper display of copyright, trademark, trade secret and other proprietary notices on any copies of the Software or Documentation. Licensee must keep the Software free and clear of any claims or liens by third parties. All rights and licenses granted under or pursuant to this Agreement are and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to “intellectual property” as defined under section 101(56) of the U.S. Bankruptcy Code.

3.7  De-compilation. Licensee shall not disassemble, decompile or otherwise reverse engineer the Software except and only to the extent that such activity is expressly permitted by applicable law.

4  LIMITATIONS AND EXCLUSIONS

4.1  PA does not warrant that the functions contained in the Software will meet Licensee's requirements or that the operation of the Software will error-free or be uninterrupted.

4.2  Licensee must (i) use the Software in accordance with the Documentation; (ii) use the Software on the hardware and with the operating system for which it was designed and in accordance with operating requirements and procedures for such hardware and operating systems; and (iii) allow only personnel trained on the Software to operate the Software.

4.3  Licensee or any third party must not reverse engineer, de-compile, or disassemble modify or change the Software in any way beyond the scope of the customization options contained in the Software, or otherwise than in accordance with the requirements or procedures for such customization. 

4.4  Licensee acknowledges that PA is not required to maintain compatibility between the Software and software not specified in this Agreement.  

4.5  EXCEPT AS STATED ABOVE, PA MAKES NO WARRANTIES REGARDING THE SOFTWARE OR DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND ANY OTHER WARRANTY, EXPRESS OR IMPLIED.  THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.

4.6  Any statements made by a dealer or any other third party other than PA are not warranties and cannot be relied on by Licensee.

4.7  PA shall not be liable for any claimed non-conformance of the Software under Article 35(2) of the United Nations Convention on Contracts for the International Sale of Goods, even if that Convention were to be determined applicable to this Agreement and the underlying transactions.

5  GENERAL

5.1  Assignment.  Licensee shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of PA which consent shall not be unreasonably withheld; provided, however, that no consent shall be required for any assignment or transfer in the event of an initial public offering, merger, acquisition, consolidation, sale of all or substantially all of Licensee’s assets or stock except that Licensee shall notify PA in writing prior to such assignment or transfer.  This Agreement shall inure to the benefit of and shall be binding on the successors of the parties.  This Agreement and the rights and obligation arising hereunder shall not be affected by any change in the corporate structure or ownership of the parties except where Licensee goes into liquidation, or becomes subject to administration or is voluntarily or involuntarily wound up, in which case this Agreement and Licensee’s rights and obligations arising hereunder automatically terminate.

5.2  Export Controls.  Licensee agrees that no technical data received from PA, nor the direct product thereof, will be shipped, transferred or exported, directly or indirectly, to any country in violation of any applicable law, including the United States Export Administration Act and the regulations thereunder.

5.3  Québec. The parties declare that they have required that this agreement and all documents related hereto, either present or future, be drawn up in the English language only. Les parties déclarent par les présentes qu'elles exigent que cette entente et tous les documents y afférents, soit pour le présent ou le futur, soient rédigés en langue anglaise seulement.

License issued by authors and owners of the Intellectual property:
PROFESSIONAL ADVANTAGE PTY LTD, Level 16, 124 Walker Street, North Sydney 2060, Australia. Phone +61 2 9919 8900, enquiries@pa.com.au
And
PROFESSIONAL ADVANTAGE SOFTWARE SOLUTIONS, INC. , 4820 30th Avenue South, Fargo, ND 58104, USA. Phone +1 701 235 2363, profad@profad.com

 

Addendum B: Support

1  PREAMBLE

1.1  In addition to the initial purchase of Products, PA provides ongoing Support, which comprise Maintenance and access to a Help Desk. 

 2  DEFINITIONS

2.1  “Support Hours” means the hours between 7.30am and 7.00pm USA Central Standard Time (“CST”), Monday to Friday, excluding national holidays (New Year’s Day, Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day). 

3  MAINTENANCE

3.1  For Products which the Client has licensed and has paid the relevant Support Fees, the vendor will from time to time, provide at no additional charge, new software versions, updates, updates, patches and fixes (“Maintenance Items”).  

3.2  Notwithstanding the availability of Maintenance Items in clause 3.1, the charge for any Professional Services associated with Maintenance Items, including the installation and/or upgrading of Software, the re-application or modification of Customizations, will be based on current standard rates.

3.3  Support Fees for any future contracted periods, if made available by PA are based on the then current list price for the Products.

4  HELP DESK OPERATIONS

4.1  The Help Desk operates during Support Hours.  

4.2  Provided Client has paid the relevant Support Fees, Client can contact the Help desk for assistance regarding the Products they have licensed. 

4.3  The Help Desk can be contacted via:

Portal: https://portal.profad.com/
Email: support@profad.com
Phone: 1-887-987-1209

4.4  Client may contact the Help Desk 24 hours per day, however call responses will be provided during Support Hours.

4.5  All issues are given a case number. All cases will be managed to conclusion and cases will be closed following notification from the Client, or after two attempts to contact the Client have been made by PA.

4.6  A case logged with the Help Desk will be assigned a severity level by PA.  Client may request PA to review this severity level.  PA will use the severity level to prioritize all outstanding cases.  All cases, irrespective of severity level will follow the same resolution pathway.

4.7  In instances where the case is unable to be resolved by PA, and is escalated to the relevant third party vendor, PA is subject to the 3rd party escalation and response times of that organization, details of the response times of third party vendors will be provided to the client.  

4.8  The Client can nominate two representatives who are entitled to contact the Help Desk on behalf of the Client. These representatives are required to be trained by PA in the use of the Products.

5  EXCLUSIONS

5.1  The following list of activities, which is not exhaustive, do not fall within the scope of Help Desk operations:

5.1.1  Training

5.1.2  Configuration and system setup

5.1.3  Solution installation

5.1.4  SQL Server database management

5.1.5  Report writing

5.1.6  Software development

5.1.7  Data repair

5.1.8  Data or system reconciliation

5.1.9  Cleaning devices of malware and viruses requiring more than 1 hour

5.1.10  Resolution of issues caused by incompatible or unstable software

5.1.11  Troubleshooting computer devices at the Clients locations, i.e. machines (computers, printers, devices) which do not form part of the Service

5.2  The following scenarios are not considered Help Desk operations, in these circumstances PA will provide Professional Services on a chargeable time and materials basis:

5.2.1  Where the Client requests support outside of Support Hours

5.2.2  Where Client chooses to contact a PA consultant directly rather than contacting the Help Desk.  Furthermore, PA will not provide any assurances regarding response times under these circumstances.

5.2.3  Activities are listed as Help Desk exclusions – refer section 5 on page 12

 

Addendum C: Hosted Service

1  PREAMBLE

1.1  Client will access the Hosted Service using an Internet connection.

1.2  PA will maintain availability to the Hosted Service in accordance with Service Levels.

1.3  Client appoints PA as its exclusive supplier of the whole or any part of the Hosted Service during the Term.  

2  DEFINITIONS

2.1  “Actual Service Hours” means the number of hours that a Hosted Service is Available.

2.2  “Available” means access to a Hosted Service is operational and accessible over the Internet using a computer that is not part of the Hosted Service.

2.3  “PA Business Hours” means the hours between 7.30am and 7.00pm USA Central Standard Time (“CST”), Monday to Friday, excluding national holidays. 

2.4  “Down Time” means any period of time where the Hosted Service is not Available.

2.5  “Excusable Down Time” means any Down Time due to an Excusable Failure or any Scheduled Down Time.

2.6  “Excusable Failure” means any failure due to a force majeure or any failure due to reasons beyond the control of PA.

2.7  “Force Majeure Event” means any event or circumstance beyond the control of a party.

2.8  “Planned Service Hours” for the Hosted Service means 24 hours per day.

2.9  “Scheduled Down Time” means a period of Down Time that is agreed between PA and Client. 

2.10  “Service Availability” means the ratio of Actual Service Hours, adjusted for Excusable Down Time, to Planned Service Hours over a rolling three month period, calculated as follows:

Service Availability % = (Actual Service Hours + Excusable Down Time) * 100

Planned Service Hours

2.11  “Service Levels” means the service levels set out clause 6 of this Addendum.

2.12  “Working Hour” means an hour during Planned Service Hours.  

3  ACCEPTABLE USAGE POLICY

3.1  Neither Client, nor those that access the Hosted Service through Client, may use the Hosted Service:

3.1.1  in a way prohibited by law, regulation, governmental order or decree;

3.1.2  to violate the rights of others; 

3.1.3  to try to gain unauthorized access to or disrupt any service, device, data, account or network;

3.1.4  to spam or distribute malware;

3.1.5  in a way that could harm the Hosted Service or impair anyone else’s use of it; or 

3.1.6  in any application or situation where failure of the Hosted Service could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage.

3.2  Violation of the terms in this section may result in suspension of the Hosted Service. PA will suspend the Hosted Service only to the extent reasonably necessary. Unless PA believes an immediate suspension is required, PA will provide reasonable notice before suspending the Hosted Service.

4  PA RESPONSIBILITIES

4.1  Provision of access to the Hosted Service during Planned Service Hours.

4.2  Deploy and manage software applications that monitor server systems and Microsoft Windows operating system 24 hours per day, 7 days per week to monitor that the Hosted Service is available. 

4.3  Notify the Client of appropriate issues arising from the use of the Hosted Service to ensure smooth and uninterrupted operations can continue.

4.4  Install and manage anti-virus technology to monitor unauthorized access to the Hosted Service.

4.5  Schedule backups of the database information that is stored on relevant Microsoft Azure environment. This Agreement does not include backups on individual Personal Computers or Client Data held outside the Hosted Service.

4.6  Restore data from backups upon demand from the most recent successful backup. There will be no recovery of Client Data captured after the time of the most recent successful backup. 

4.7  Carry out maintenance, updates and enhancements to the Hosted Service during planned Scheduled Down Time.

4.8  Carry out emergency remedial work as required, which may occur outside of Scheduled Down Time.

4.9  Provision of a “Help Desk” for Client to log calls for assistance.

5  CLIENT RESPONSIBILITIES

5.1  Nominate an administrator for ongoing management and co-ordination.

5.2  Purchase and support of all internet, hardware and software required at the Client’s office locations to enable connectivity to the Hosted Service. 

5.3  Ensuring that use of the Hosted Service is for appropriate business use only. Refer Acceptable Usage policy.

5.4  Client must not configure or adapt the Products in the manner that causes performance degradation to the Cloud Provider environment. 

6  SERVICES LEVELS

6.1  Service Availability

6.1.1  The Hosted Service will be available during Planned Service Hours less any Excusable Down Time, provided Client has paid the applicable Subscription Fees.

6.1.2  Access may be available during Excusable Down Time, but such access is not part of the conditions defined in this Agreement.

6.1.3  Client will be given prior notice for Scheduled Down Time.

6.1.4  In the event of an emergency shutdown is required, PA will attempt to contact the Client beforehand, but failure to make contact will not preclude PA from continuing with an emergency procedure.

6.1.5  Notification from PA could be in the form of a telephone call, voice message, fax or e-mail.

6.1.6  PA will notify Client as soon as practical if the Hosted Service is unavailable.

6.1.7  Client should promptly notify PA if Client is unable to access the Hosted Service.

6.1.8  The Hosted Service will be deemed unavailable when PA’s records show that it is not possible for Client to access a Product or view content.

6.1.9  Unless notified by PA to contrary, the Hosted Service ceases to be unavailable once the Client can gain access to the Hosted Service.

6.1.10  The Hosted Service will not be considered Down Time and Client will not be entitled to claim a Hosted Service rebate in accordance with this clause, if PA determines that the delay or unavailability of the Hosted Service was caused by:
• an Excusable Failure;
• Scheduled maintenance to the extent it does not exceed the maximum period (if any) that PA allows for scheduled maintenance of the Hosted Service; or
• Hosted Service suspension in accordance with the Agreement.

6.1.11  The Hosted Service availability target for each 3 month quarter is set out in Table 1 below. 

Table 1: Service Availability Targets

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6.2  Hosted Service Rebates

6.2.1  The Hosted Service rebate entitlement for the Hosted Service being unavailable is calculated in accordance with Table 2

6.2.2  A Hosted Service rebate is not redeemable for cash and in any month is capped at the relevant specified percentage of the monthly Subscription Fees. The Client must claim any Hosted Service rebate in writing within 10 Business Days from the date on which it becomes possible to calculate the amount of the Hosted Service rebate.

6.2.3  Once a claim is made in accordance with this clause, PA will calculate the Hosted Service rebate (if applicable) for the Hosted Service and credit to your account the amount equal to the Hosted Service rebate.

Table 2 - Hosted Service Rebates for unavailability to the Hosted Service

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6.3  "Service Levels" for the Hosted Service 
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7  EXCUSABLE FAILURE

7.1  PA will not be responsible for any failure (“Excusable Failure”) to meet the Service Levels to the extent such failure is caused by:

7.1.1  any failure caused by Client;

7.1.2  any failure attributable to telecommunications carrier services;

7.1.3  any catastrophic failure attributable to the Cloud Provider;

7.1.4  unauthorized changes made to the operating environment used to deliver the Hosted Service (for example, installation of applications that are not tested and approved for production use); or

7.1.5  circumstances that constitute a Force Majeure Event.

8  ESCALATION

In the event that a problem remains unresolved for an extended period, PA will notify senior levels of PA and Client management as follows:

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Addendum D: Professional Services

9  STANDARD SERVICE FEES

9.1  PA reserves the right to amend rates from time-to-time.

9.2  Minimum Charges

9.2.1  Minimum charge of 2 days for on-site work 

9.2.2  Minimum charge of 1 hour for remote services work, 

9.2.3  Billed in minimum 30minute increments after minimum charge.

9.3  Weekend, Public Holiday or out of hours.

9.3.1  Professional Services performed on a weekend, public holiday or out of hours will be charged at double rates.  Out of hours is deemed to be between the hours of 5pm to 8am Central Standard Time and applies for work that is worked during this time.

10  CANCELLATION

10.1  If a client cancels a services booking the following cancellation fees will apply:

10.1.1  Less than 5 business days’ notice, 50% cancellation fee

10.1.2  Less than 2 business days’ notice, 100% cancellation fee

10.1.3  Cancellation fee will not exceed 5 days’ worth of consulting.

11  TRAVEL CHARGES

11.1  PA will pass on expenses at cost plus charge the time taken to travel to and from the Client’s premises.  Travelling time will be charged at 50% of the standard rate. Maximum of 8 hours travel time each way