MC+A Professional Services Agreement

Revised Feb 4, 2016

This Professional Services Agreement (“Agreement”) is entered into this on the date of the order form or referencing document (“Effective Date”), between Michael Cizmar & Associates Ltd (“MC+A”), an Illinois corporation with offices at 332 S. Michigan Ave, 9th FL, Chicago, IL 60604, and customer referenced in the order form (“Customer”) for professional and related services to be provided to Customer by MC+A subject to the terms and conditions of this Agreement

Definitions
1. “Confidential Information” means any confidential or proprietary information of economic value including, without limitation, Customer Products, MC+A Products, terms of an SOW, Deliverables, designs, processes, layouts, plans or any other information relating to work in process, software, computer programs in any form or format, database designs, marketing or business plan or financial or customer lists, and information relating to either party, its present or future products, sales, customers, or suppliers, identified and marked by the disclosing party as confidential whether in oral, written, graphic or electronic form.
2. “Customer Product” means the software and technology owned or licensed by Customer to be used by MC+A in providing the Services hereunder.
3. “Deliverables” mean the work product produced for Customer as a result of the Services under the applicable SOW.
4. “Services” are the work performed by personnel to complete tasks described in a Statement of Work. Deliverables may result from such work.
5. “Statement of Work” or “SOW” means the document executed by an authorized representative of each party that includes information such as, a description of the Services. Each SOW shall be substantially of the form of Attachment A, attached hereto, It shall be effective upon the SOW effective date and shall thereafter become a part of this Agreement. Each SOW shall be consecutively numbered with the last two digits of the year and the SOW sequence number (e.g., 11-01) and shall include, but is not limited to, a description of the scope of Services to be provided, estimated fees, payment terms and Deliverables.
Relationship of Parties
Customer and MC+A expressly recognize and agree that they are each independent contractors and that Customer shall have no right to control or direct MC+A personnel in such a manner and detail so as to adversely affect the independent contractor status of MC+A. This Agreement shall not constitute or be construed as a partnership, employer-employee relationship, joint venture or agency agreement between the parties hereto, and neither of the parties hereto nor any of their employees or agents shall have the power or authority to bind or obligate the other party. MC+A shall have the right to enter into agreements with other clients to perform similar services provided such agreements do not adversely impact MC+A’s performance under this Agreement.
Scope of Services
MC+A will use commercially reasonable efforts to provide Services and Deliverables to Customer as specified in the applicable SOW and will do so in a commercially reasonable manner. Customer acknowledges and agrees that MC+A may, in performing its obligations pursuant to this Agreement, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that MC+A shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Where an SOW provides that MC+A will make recommendations or provide advice and Customer will make decisions based upon the recommendations or advice, MC+A shall be entitled to rely on all such decisions of Customer. In the event the parties agree to expand or change the scope of the project or pricing estimates, the parties shall prepare and sign a document acknowledging the agreed changes (“Change Notice”). No Change Notice shall be effective until signed by both parties. Either party may propose a change and MC+A shall notify Customer if it believes that an adjustment in the fees or work schedule with respect to the applicable SOW is required. The parties shall then negotiate in good faith a reasonable and equitable adjustment in each or any of the applicable fees, Deliverables, Services, schedule or specifications. During the Change Notice negotiations, neither party shall be bound by any change requested by a party, until such change has been accepted in writing by both parties.
Project Reporting
On the SOW, each party shall name and appoint a qualified project manager. All communications will be directed to the project managers appointed by the respective parties. The Customer’s project manager will have the authority to act for the Customer in all aspects of the Project. MC+A shall, at the frequency specified on the applicable SOW, submit periodic progress reports to Customer. Customer acknowledges that when an SOW provides that Customer’s personnel are to work with MC+A’s personnel in connection with an engagement, Customer’s failure to assign or make available Customer personnel, on a timely basis, having skills set forth in the SOW could adversely affect MC+A’s ability to provide the Services.
Access to Customer Facilities and Technology
MC+A shall provide the Services at the facilities identified in the applicable SOW. When Services are provided at a Customer facility, Customer shall provide appropriate work space including telephones, work area, copier access and customary office supplies, computer support and computer access including network access consistent with the requirements of the Services to be provided under the SOW. Customer will ensure that MC+A has reasonable and safe access to the project site, as MC+A reasonably requests. Prior to commencement of a SOW, Customer shall advise MC+A’s project manager as to MC+A’s access requirements and Customer shall promptly provide information regarding the rules and policies that apply to the scope of access required. In the event MC+A requires access to or use of software licensed to Customer, Customer shall ensure that Customer has the necessary rights and permissions allowing MC+A to use such software as necessary to perform the Services.
Confidentiality
Each party receiving Confidential Information hereunder from the disclosing party shall restrict disclosure of that Confidential Information to its consultants and employees with a “need to know” and shall not disclose it to any other person or entity without the prior written consent of the disclosing party. The receiving party shall use the Confidential Information only for purposes of performing under this Agreement. Each receiving party shall advise those employees and consultants who access the Confidential Information of disclosing party of their obligations with respect thereto. The receiving party shall copy the Confidential Information only as necessary for those employees and consultants who are entitled to use it and shall ensure that all confidentiality notices are not removed or altered on such copies. Each receiving party shall return or destroy and certify destruction of all copies of such Confidential Information to the disclosing party at the disclosing party’s request or upon termination of this Agreement whichever is earlier.
Confidential Information shall not be considered confidential and shall not be subject to the foregoing if the information (a) is or becomes available to the public through no breach of this Agreement; (b) was previously known by the receiving party without any obligation to hold it in confidence; (c) is received from a third party free to disclose such information without restriction; or (d) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information. In the event any Confidential Information is required to be disclosed by receiving party under the terms of a valid subpoena or order issued by a court of competent jurisdiction or by a demand or information request from an executive or administrative agency or other governmental authority, the receiving party shall notify the disclosing party as far in advance of its requested disclosure as is practical of the existence, terms and circumstances surrounding such demand or request, and shall cooperate with the disclosing party in taking legally available steps to resist or narrow such demand or request.
The receiving party recognizes and agrees that the unauthorized use or disclosure of the disclosing party’s Confidential Information would cause irreparable harm to the disclosing party for which it would have no adequate remedy at law, and the disclosing party may seek immediate injunctive relief, in addition to any other rights or remedies available to it. The obligations herein contained shall expressly survive the termination or expiration of this Agreement.
Rights in Work Product
MC+A acknowledges and agrees that Customer and its licensors retain all right, title and interest in Customer Products. Upon completion of Deliverables and receipt of payment as set forth in the applicable SOW, MC+A will deliver a copy of the Deliverables to Customer. Upon Customer’s receipt of the Deliverables, MC+A grants Customer a perpetual, nontransferable license to those Deliverables to use them for Customer’s internal business purposes. All right, title and interest in and to the Deliverables and work product developed or produced by MC+A under this Agreement including, without limitation, all specifications, drawings, sketches, models, samples, data, source and object codes, images, graphics, graphic user interfaces, reports, documentation, derivative works, notes or technical information and all right, title and interest in all patents, copyrights, trade secrets, trademarks and other intellectual property derived from such work product, including all copies thereof on any medium in any format, are and shall remain the exclusive property of MC+A. Customer recognizes and agrees that Deliverables and MC+A work product, where interfaced with Customer’s technology, do not create any Customer interest therein notwithstanding any other provision of this Agreement.
Warranty
1. Customer warrants that (i) it has the right to enter into this Agreement and has the ability to perform all its obligations hereunder; (ii) it will not use the Deliverables other than (a) in a manner consistent with applicable documentation or (b) in its internal business operations; (iii) Customer shall not distribute, market, or use the Deliverables for the benefit of any third party; (iv) computer programs, specifications, content or other materials provided by Customer shall not infringe any third party’s trade secret, trademark, copyright or patent rights; and (v) it has the rights, including MC+A access rights, to the Customer Product necessary for MC+A to perform Services in the applicable SOW and provide Deliverables as specified in an SOW.
2. MC+A warrants that it has the right to enter into this Agreement and to perform the Services in a professional and workmanlike manner.
3. Disclaimer of Warranty. MC+A MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES AND DELIVERABLES, IN WHOLE OR IN PART, OR ANY OTHER MATTER UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MC+A DOES NOT WARRANT THAT THE DELIVERABLES, SOFTWARE, OTHER MATERIALS OR SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, WILL MEET CUSTOMER’S REQUIREMENTS, OR WILL BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE OTHER THAN THE EQUIPMENT SPECIFIED IN THE APPLICABLE SOW. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND ARE INTENDED SOLELY FOR THE BENEFIT OF, CUSTOMER.
Indemnification
MC+A will indemnify Customer against any claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) (collectively, “Liabilities”) finally awarded or agreed pursuant to a written settlement arising out of claims that any Deliverable, as delivered by MC+A under the applicable SOW, infringes or otherwise violates any rights of a third party with respect to any patent, trade secret, copyright, trademark, service mark, trade name or other proprietary rights (collectively, “Intellectual Property Rights”); provided, that Customer (a) notifies MC+A promptly in writing of any such action, (b) grants MC+A sole authority and control of the defense or settlement of the claim, (c) cooperates with MC+A in the defense of same, at MC+A’s expense, and (d) complies with MC+A’s direction to cease any use of the Deliverables which, in MC+A’s reasonable judgment, is likely to be ruled an infringement of a third party’s Intellectual Property Rights. The foregoing indemnity shall not apply to any infringement arising out of: (i) use of the Deliverables other than in accordance with applicable documentation supplied by MC+A; (ii) any alteration, modification or revision of the Deliverables not expressly authorized in writing by MC+A; (iii) distribution, marketing, or use of the Deliverables for the benefit of third parties; (v) the combination of the Deliverables with materials not supplied by MC+A; or (vi) information, materials or specifications provided by or on behalf of Customer or by a third party directed by Customer.
If any of the Deliverables or any portion thereof are held, or in MC+A’s reasonable opinion are likely to be held, to constitute infringement, MC+A shall notify Customer and Customer shall discontinue use and shall immediately return the allegedly infringing item to MC+A. MC+A’s maximum liability for such infringement shall be to refund to Customer the amount paid to MC+A for the Deliverable less any depreciation as calculated on a five-year straight-line basis. The provisions of this section state MC+A’s entire liability and Customer’s’ sole and exclusive remedies with respect to any infringement or claim of infringement.
Limitation of Liability
IN NO EVENT SHALL MC+A OR ANY OF ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUES, DATA, OR USE, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISEEVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES NOR SHALL ANY OF THE TERMS OF THIS AGREEMENT BENEFIT OR CREATE ANY RIGHT OR CAUSE OF ACTION IN OR ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN CUSTOMER AND MC+A. REGARDLESS OF THE CLAIM, MC+A’S TOTAL LIABILITY FOR DAMAGES ARISING OUT OF OR ASSOCIATED WITH THE AGREEMENT OR ANY SOW SHALL NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER TO MC+A UNDER THE SOW THAT GAVE RISE TO THE CLAIM. ANY ACTION AGAINST MC+A MUST BE BROUGHT WITHIN ONE (1) YEAR FROM OCCURRENCE OF THE EVENT GIVING RISE TO THE CAUSE OF ACTION.
Fees and Expenses
Customer shall pay MC+A fees and expenses for all Services and Deliverables in accordance with the payment terms stated herein and in the applicable SOW. Customer shall pay MC+A for Services and Deliverables on the date as defined in the appropriate SOW. All payments are due within thirty (30) days from receipt of invoice. All payments shall be in United States dollars. Customer will reimburse MC+A for reasonable expenses incurred from travel and/or professional services provided hereunder. Customer shall provide MC+A a copy of its travel policy and MC+A will use commercially reasonable efforts to conform to Customer’s policy. Customer has sole responsibility for paying any taxes based upon Services or Deliverables provided by MC+A including without limitation, any sales, use, excise or other similar taxes excluding applicable taxes based on MC+A’s net income. Customer agrees to indemnify, defend and hold MC+A harmless against any failure by Customer to report or pay any such taxes.
Any payment not received within thirty (30) days shall accrue late charges at the lesser of one and one-half percent (1½ %) per month or the maximum amount permitted by law. MC+A, at its sole option and upon three (3) days prior notice, may suspend performance of any and all its duties and obligations under this Agreement and all SOWs until the total outstanding balance due is paid in full (including all accrued late charges). Upon receipt of payment following a suspension of Services, any and all due dates for performance of Services shall automatically be extended for a time period equal to the time reasonably necessary for MC+A to perform the Services.
Term & Termination
This Agreement shall commence on the Effective Date and shall remain in effect until terminated as provided herein.

Termination of Agreement. Either party may terminate this Agreement for any or no reason upon at least fifteen (15) days prior written notice to the other party provided there is no uncompleted SOW outstanding. Upon any such termination, Customer will pay MC+A all fees and expenses which have been earned or incurred in connection with the performance of Services through the effective date of such termination.
Termination of SOW. In the event that Customer wishes to terminate an SOW for purposes of convenience or for any reason other than as provided in 12.3 below, Customer shall provide MC+A with minimum prior written notice of (i) ten (10) days where such SOW is for a duration of less than sixty (60) days; or (ii) forty-five (45) days for all other SOWs. Upon any such termination, Customer will pay MC+A all fees and expenses which have been earned or incurred in connection with the performance of Services through the effective date of such termination.
Termination for Breach. Either party may terminate this Agreement or any outstanding SOW, upon thirty (30) days written notice to the other party, in the event such other party breaches a material term of this Agreement or any SOW and such breach remains uncured at the end of such thirty (30) day period. Upon any such termination, MC+A will be paid all fees and expenses for the performance of the Services through the effective date of such termination.
Effects of Termination. Any and all documents or other material in any fixed and tangible form, including written or electronic, provided to receiving party which comprise Confidential Information, and all copies or tangible recording thereof shall be returned to the disclosing party by receiving party within ten (10) days from the termination or expiration of this Agreement. Customer may retain Deliverables which Customer accepted and for which MC+A has been paid in full.

Notice
All notices required or permitted to be given hereunder shall be deemed duly given if in writing and either sent by facsimile transmission or hand delivered or deposited in the United States mail with postage prepaid, certified return receipt requested, addressed to MC+A or Customer, as the case may be, at the address set forth above, or to such other address as the parties may direct by notice as herein provided.
Captions
The paragraph captions contained herein are intended for purposes of convenience or reference only and shall not be considered in construing this instrument.
Governing Law
This Agreement is made in the Cook County, Illinois and shall be construed and interpreted in accordance with the laws of the State of Illinois, notwithstanding any conflicts of law principles.
Force Majeure
Except for payment of amounts due hereunder, neither party shall be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including, without limitation, fire or other casualty, act of God, acts or threatened acts of terrorism, pestilence or epidemic, war or other violence, or any law, order or requirement of any governmental agency or authority.
Rights and Remedies; Waivers
All rights and remedies hereunder shall be cumulative and may be exercised singularly or concurrently. In any such action at law or in equity that may be necessary to enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements in addition to any other relief to which they may be entitled. A waiver of a breach or default under this Agreement shall not be a waiver of any other breach or default. Failure of either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition unless accompanied by a written statement signed by the waiving party that such term or condition is waived.
Severability
If any provision of this Agreement is determined to be unenforceable for any reason, then the remaining provisions hereof shall remain unaffected and in full force and effect.
Survival
The following sections shall survive termination or expiration of this Agreement: Section 6 (Confidentiality), Section 10 (Limitation of Liability), Section 11 (Fees and Expenses), Section 12.4 (Effects of Termination), Section 15 (Governing Law), Section 17 (Rights and Remedies; Waivers), Section 22 (Informal Dispute Resolution) and Section 23 (Arbitration).
Assignment
Neither party shall assign, in part or in whole, their rights and obligations under this Agreement to any person or entity without the prior written consent of the non-assigning party, which consent shall not be unreasonably withheld or delayed.
Notice to Government End users
The Deliverables are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (A) only as Commercial Items and (B) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Informal Dispute Resolution
The parties agree to attempt in good faith to settle any dispute, controversy or claim, whether based on contract, tort, statute or other legal or equitable theory arising out of or related to this Agreement including the SOWs (collectively, a “Claim”) by conferences between the parties, which may be initiated upon written notice by either party to the other. If the parties’ project managers cannot come to a mutually agreeable resolution of the Claim within ten (10) business days, then such Claim will be referred to members of each party’s executive management which referral shall be by written notice from one party to the other. The parties’ executives shall meet within five (5) business days of a referral, or as otherwise agreed, to attempt to resolve the Claim. If the representatives have not met within such period, or have not reached a mutually agreeable resolution of the Claim within ten (10) business days after their initial meeting regarding such Claim, then one party by written notice to the other, may submit the Claim to arbitration.
Arbitration
Any Claim arising out of or relating to this Agreement shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. The arbitration shall be heard by the AAA and determined by a single arbitrator with experience with information technology disputes The arbitration proceeding shall occur in the Chicago, Illinois metropolitan area, each party shall bear its own costs relating to such arbitration, and the parties shall equally share the arbitrators’ fees, and the arbitration and all related proceedings and discovery shall take place pursuant to a protective order entered by the arbitrators that adequately protects the confidential nature of the parties’ proprietary and confidential information. In no event shall any arbitration award provide a remedy beyond those permitted under this Agreement, and any award providing a remedy beyond those permitted under this Agreement shall not be confirmed, no presumption of validity shall attach, and such award shall be vacated. Either party may, without waiving any remedy under this Agreement, seek from any court of competent jurisdiction any interim or provisional relief that such party deems necessary to protect its Confidential Information and property rights pending the establishment of the arbitral tribunal or pending the arbitral tribunal’s determination of the merits of the Claim.
Entire Agreement
THIS AGREEMENT, INCLUDING THE EXECUTED SOWS AND CHANGE NOTICES, CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL OTHER PRIOR REPRESENTATIONS, UNDERSTANDINGS AND AGREEMENTS, WHETHER WRITTEN OR ORAL. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED IN ANY MANNER EXCEPT IN A WRITING SIGNED BY THE PARTIES HERETO. NO TERMS, PROVISIONS OR CONDITIONS OF ANY ORDER OR BUSINESS FORM OR PURCHASE ORDER WILL MODIFY THIS AGREEMENT UNLESS IT IS SIGNED BY THE PARTIES.