Professional Services Terms and Conditions

  1. Professional Services.
  1. WFMSG will provide the professional services described in the Statement of Work (“SOW”) or an ordering document acceptable to WFMSG (the “Services”). A separate document will be required for each project, assignment or task requested by End User. Neither party shall be obligated or required to enter into or execute any additional SOW’s. Each SOW shall expire upon the completion of the Services under the SOW. Each SOW will become part of this Agreement by this reference when executed by authorized representatives of WFMSG and End User and shall include: (a) a detailed description of WFMSG’s and End User’s respective responsibilities; (b) an estimated performance schedule including milestones, if applicable; (c) the Deliverables to be provided to End User; and (d) pricing and payment terms. A SOW may only be amended or modified by a written document signed by authorized representatives of WFMSG and End User. WFMSG will retain the sole and exclusive right to control or direct the manner or means by which the Services are performed and may subcontract any or all of the Services.
     
  2. Data and Information. End User shall make available in a timely manner, at no charge to WFMSG, all applicable technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources reasonably required by WFMSG for the performance of the Services. End User reasonably will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by End User to WFMSG.
     
  3. Equipment. If required by WFMSG in the applicable SOW, End User shall provide, at no charge to WFMSG, office space, services, and equipment (such as copies, fax machines, and modems) as WFMSG reasonably requires to perform the Services.
     
  4. Contact Person. Each party will appoint, in writing, an employee or agent of such party to act as the “Contact Person” for all communication between the parties related to the Services. The Contact Person will be responsible for monitoring the status of the Services and will schedule regular meetings with both technical and management personnel of each party to review the status of the Services. This Contact Person is listed in the Exhibit 2, as amended from time to time by mutual agreement of WFMSG and the End User.
     
  5. Ownership. WFMSG shall exclusively own all rights, title and interest into the Deliverables (as defined below), including any Pre-Existing Works (as defined below) incorporated into the Deliverables. WFMSG grants End User a non-exclusive, non-transferable license, without the right to sublicense, to use the Pre-Existing Works which are incorporated into the Deliverables. No deliverables shall be considered “Works for Hire” as defined under any applicable law under this Agreement unless specifically agreed to in a Statement of Work between the parties.
     
  6. Additional Definitions.

  (i)            “Deliverable(s)means the specific software and other tangible work product provided to End User by WFMSG pursuant to a SOW.

 (ii)           “Pre-Existing Works means any and all programming tools, design aids, software programs, source and object code, specification, designs, processes, techniques, concepts, improvements, discoveries, and inventions which are made or developed by WFMSG either (i) prior to the Effective Date or (ii) outside the scope of this Agreement.

 

  1. Payment; Taxes.
  1. Professional Service Fees. Except as provided herein, End User shall pay WFMSG on a time and materials basis for the Services in accordance with the fees for professional services and set forth in the Statement of Work. WFMSG will invoice End User on a monthly basis or some other billing period as defined in the SOW as Services are performed. End User shall reimburse all reasonable travel and other related expenses incurred by WFMSG in performance of the Services. All payments for Services must be made within thirty (30) days of the date of invoice.
     
  2. Conflicting Documents. No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by either party will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of either party to object to such terms, provisions, or conditions.
     
  3. Late Payments. Late payments shall accrue interest at a rate of .5% per month, or the maximum legal rate, if less. End User shall pay for all costs (including reasonable attorneys’ fees) incurred by WFMSG in connection with the collection of late payments. In the event that any fees due under this Agreement are more than thirty (30) days late, WFMSG shall have the right to suspend performance under this Agreement until all fees are made current. All payments hereunder shall be made in United States Dollars.
     
  4. Taxes. Amounts payable to WFMSG under this Agreement are payable in full to WFMSG without deduction and are net of taxes (including any sales, use, excise, ad valorem, property, withholding, value added tax, or other tax and any income tax withheld at source), tariff, duty or assessment levied or imposed by any government authority (including without limitation any country, state, city, county, province, department, or other subdivision of government) that may be applicable to any Services under this Agreement. End User shall pay and shall indemnify and hold WFMSG harmless from all such taxes and customs duties payable with respect to the sale and purchase of any Services under this Agreement.

  1. Confidential Information. WFMSG and End User each agree to retain in confidence all non-public information, trade secrets and know-how disclosed pursuant to this Agreement which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the “Confidential Information”). Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees). Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known; (ii) discovered or created by the receiving party without reference to the Confidential Information of the disclosing party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order. The confidentiality obligations of this Section 6 shall survive the termination of this Agreement for a period of five (5) years. Neither party shall disclose any of the terms of this Agreement to any third party without the prior written consent of the other party; provided that either party may disclose the existence of this Agreement and either party may disclose the terms of this Agreement: (i) to legal counsel of the parties; (ii) in confidence, to accountants, banks, and financing sources and their advisors solely for the purposes of a party’s securing financing; (iii) in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction solely for use in the due diligence investigation in connection with such transaction.

 

  1. Limited Warranties.
  1. Limited Warranty for Services. WFMSG warrants that the Services provided hereunder will be performed in a professional manner consistent with the quality of WFMSG’s performance of services for similar types of agreements.
     
  2. Sole Remedy. End User’s sole and exclusive remedy and WFMSG’s sole and exclusive liability under this Limited Warranty shall be for WFMSG to reperform the Services. This sole and exclusive remedy is available only if WFMSG is promptly notified in writing within sixty (60) days of the performance of such Services that do not conform to the warranty of Section 4(a).
     
  3. Disclaimer of Any Other Warranty. EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, WFMSG PROVIDES NO WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER, AND WFMSG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.

 

  1. Limitation of Liability. END USER AGREES THAT WFMSG’S TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAID BY END USER HEREUNDER. END USER FURTHER AGREES THAT WFMSG WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. END USER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

 

  1. Term and Termination.
  1. Effective Date and Term. This Agreement and any licenses granted hereunder shall be effective as of the Effective Date and shall continue for period of one (1) year from the Effective Date.
     
  2. Termination. Either party shall have the right to terminate this Agreement and the licenses granted herein if: (i) the other party fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party, or (ii) the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors.
     
  3. Effect of Termination. The obligations of WFMSG and End User in Sections 3, 4c and 5-8 and all payment obligations accruing prior to termination, shall survive termination of this Agreement. Nothing contained herein shall limit any other remedies that WFMSG may have for the default of End User under this Agreement nor relieve End User of any of its obligations incurred prior to such termination.

 

  1. Relationship of the Parties.
  1. Independent Contractors. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venture with, the other party for any purpose related to this Agreement or the transactions contemplated by this Agreement, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, expressed or implied, on behalf of the other party.
     
  2. Non-Solicitation. Each party agrees that, during the term of this Agreement and for a period of six (6) months after the termination of this Agreement, it will not offer employment as an employee, independent contractor, or consultant to any of the other party’s employee or consultant who performs any of the Services.

 

  1. Miscellaneous.
  1. Assignment. Neither party shall assign or transfer this Agreement or any rights or obligations under this Agreement, whether voluntary or by operation of law, without the prior written consent of the other party. A party may assign or transfer this agreement to any successor by way of merger, acquisition or sale of all or substantially all of the assets relating to this agreement provide such party provides written notice of such assignment. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.
     
  2. Entire Agreement; Modification. This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings with respect to the subject matter hereof. End User agrees that it has not entered in this Agreement based on any representations other than those contained herein. This Agreement shall not be modified or amended except by written agreement of the parties.
     
  3. Force Majeure. Neither party shall be responsible for any delays or inability to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability or change in supply costs, acts of terrorism, or any other cause beyond the reasonable control of such party.
     
  4. Governing Law. This Agreement shall in all respects be governed by the laws of the State of Texas without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within Dallas County, Dallas, Texas. Each party hereby irrevocably consents to the personal and exclusive jurisdiction and venue of these courts.
     
  5. Severability. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.
     
  6. Waiver. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
     
  7. Notices. All notices required or permitted under this Agreement will be in writing and will be deemed received when (a) delivered personally; (b) when sent by confirmed telex or facsimile (followed by the actual document in air mail/air courier); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (d) one (1) day after deposit with a commercial express courier specifying next day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt.
     
  8. This Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.