INTERNATIONAL DECISION SYSTEMS

PROFESSIONAL SERVICES AGREEMENT (US)

BY SIGNING A STATEMENT OF WORK REFERENCING THESE TERMS OR PAYING AN INVOICE REFERNCING THESE TERMS, CUSTOMER AGREES TO THE FOLLOWING TERMS AND CONDITIONS OF THIS PROFESSIONAL SERVICES AGREEMENT, INCLUDING ALL STATEMENTS OF WORK, ATTACHMENTS, EXHIBITS AND SCHEDULES HERETO (COLLECTIVELY THE “PSA”) GOVERNING THE PROVISION OF SERVICES (DEFINED BELOW) OFFERED BY INTERNATIONAL DECISION SYSTEMS, INC. (DBA SOLIFI), A COMPANY INCORPORATED IN DELAWARE, U.S.A., HAVING ITS PRINCIPAL OFFICE AT 220 S. 6TH STREET, SUITE 700, MINNEAPOLIS, MN 55402 U.S.A. (“SUPPLIER”).

1. DEFINITIONS

1.1 “API” means any application programming interface for the Software provided by Supplier to Customer.

1.2 “Authorized Purpose” is defined in Section 6.1.

1.3 “Confidential Information” means the terms of this PSA and any trade secrets or other nonpublic information of a party to this PSA, whether of a technical, business, or other nature (including information relating to a party or its affiliate’s technology, products, product documentation, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a Receiving Party during the term of this PSA and that such Receiving Party knows or has reason to know is confidential, proprietary, or trade secret information of the Disclosing Party. Supplier’s confidential information shall also include the Software, including all algorithms, methods, techniques, and code and processes revealed or utilized therein plus any personally identifiable information of Supplier’s employees and contractors. Personal Data is among the Confidential Information of Customer. Supplier Technology is among the Confidential Information of Supplier. Notwithstanding the foregoing, and other than with respect to Personal Data, Confidential Information does not include any information that: (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this PSA; (b) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; (c) acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party;

1.4 “Contractor(s)” is defined in Section 12.5.

1.5 “Custom Enhancement” means an addition or modification to the Software Source Code or Object Code made by Supplier pursuant to a Statement of Work.

1.6 “Disclosing Party” means the party to this PSA disclosing Confidential Information to the Receiving Party.

1.7 “Effective Date” means the date of the Statement of Work as set forth by both parties. If the Effective Date is not specified, then the last date noted on the signature blocks shall be the Effective Date of such document.

1.8 “Intellectual Property Rights” means any and all rights in patents, patent applications, copyrights, copyright registrations, trade secrets, trademarks and service marks (including, where applicable, all derivative works of the foregoing).

1.9 “Object Code” means computer programs assembled, compiled, or converted to magnetic or electronic binary form, which are readable and useable by computer equipment.

1.10 “Personal Data” means nonpublic information provided to Supplier by or at the direction of Customer, or to which access was provided to Supplier in the course of Supplier’s performance of Services that identifies or can be used to identify an individual or authenticate an individual (including without limitation names, addresses, telephone numbers, account numbers, biometric or health data, demographic, passwords or PINs, credit report information, financial and transactional information). Personal Information includes any non-public personal information regarding any individual that is subject to applicable laws and regulations governing the confidentiality and protection of non-public personal information.

1.11 “Receiving Party” means the party to this PSA receiving Confidential Information from the Disclosing Party.

1.12 “Residual Knowledge” is defined in Section 4.3.

1.13 “Services” means consulting, project management, systems design, conversion, programming, system training, implementation and data entry services, Supplemental Support Services or other services that Supplier will provide Customer as contemplated under this PSA and/or any Statement of Work, including services to provide Services Materials and Custom Enhancements. Services shall not include, hosting, application management, support and maintenance for the Software, or other nonstandard services offerings.

1.14 “Services Material(s)” means all and any material(s) delivered with, or generated from, the performance of the Services (including Custom Enhancements) and/or Supplemental Support Services and any derivative works of the same (but excluding Software and Third Party Software).

1.15 “Software” means the computer software programs described in a separate license agreement (referred to therein as either “Product” or “Application Service(s)” depending on Customer’s license), product schedule, or order form licensed by Supplier or its Third Party Software provider(s) to Customer. The definition of Software does not include Custom Enhancements.

1.16 “Source Code” means computer programs written in higher-level programming languages and readable by humans.

1.17 “Statement of Work” or “SOW” is defined in Section 2.1.

1.18 “Supplemental Support Services” means software support requested by Customer for Custom Enhancements that is outside of that which is typically provided for the Software as part of standard support and maintenance under a separately executed license and/or maintenance agreement.

1.19 “Supplier Personnel” means employees of Supplier and its Contractors.

1.20 “Supplier Technology” means, collectively, the Software, API’s, and related documentation, and all derivative works of the Software, API’s, and related documentation.

1.21 “Third Party Software” collectively means third party owned Software (including any Customer created software, third party databases and Open Source Product) used with the Software for which Supplier has a license to sublicense, regardless whether a separate fee is charged or collected from the Customer.

2. SERVICES

2.1 Scope of Services Services will be provided as specified in one or more mutually agreed to and signed Statements of Work as amended, which shall be in the form of Supplier’s then current standard SOW and attached Change Request as applicable, which will contain a description of the Services, Services rates and payment terms, as well as other mutually agreed to provisions (each a “Statement of Work” or “SOW”).

2.2 Postponed or Cancelled Services.

  • (a) Customer may elect to postpone scheduled Services twice under a Statement of Work, but each time that Customer provides Supplier with less than twenty-one (21) days advance written notice of rescheduling, Customer shall pay to Supplier fees for Services as if Supplier had performed such Services at the rate listed in the applicable Statement of Work for each day that Supplier did not receive twenty-one (21) days advance written notice (“Postponement Fees”).
  • (b) In the event Customer provides notice of cancellation of a Statement of Work, postpones Services more than twice under a Statement of Work, or delays any Statement of Work for more than twenty-one (21) days at any time during the term of a Statement of Work, then Supplier may deem such Statement of Work to be cancelled and terminated (“Cancellation”).  In the event of such deemed Cancellation (other than for Supplier’s breach) under this paragraph, Supplier will invoice Customer and Customer will pay to Supplier 20% of the total services fees estimated and not consumed under such Statement of Work, but only to the extent such fees exceed any unearned Postponement Fees paid by Customer under Section 2.2(a) (“Cancellation Fees”).
  • (c) Supplier will invoice Customer for any related travel and living expenses to the extent such travel and living expenses are non-refundable. Any Cancellation Fees or Postponement Fees shall not exceed the total of the estimated Services Fees set forth in the applicable Statement of Work. Customer shall pay all invoices issued by Supplier under Section 2.2 within thirty (30) days of the invoice date. The parties agree in advance that the terms of this Section 2.2 are reasonable damages for the postponement or cancellation of the project described in the applicable Statement of Work, and that therefore, the remedies set out in this Section 2.2 are in lieu of any and all other claims related to this subject matter.


2.3 Custom Enhancements
. Customer may purchase available Supplemental Support Services for Custom Enhancements and certain Supplier customizations, as described in, and for the fees set forth in, a Statement of Work. The initial term of the Supplemental Support Services procured by Customer shall continue for the term as described below (the “Initial Supplemental Support Term”). Thereafter, unless otherwise terminated in accordance with this SOW, the Supplemental Support term shall be automatically renewed on an annual basis (each successive renewal term, a “Supplemental Support Term”). If the Initial Supplemental Support Term is less than or more than 12 months, the fee for Initial Supplemental Support Term represents a proportional amount of the annual Supplemental Support Fee based on the anticipated delivery date of the Custom Enhancement or customization. If Customer or Supplier elects to cancel Supplemental Support, the party cancelling Supplemental Support must provide the other party with notification of cancellation in writing at least ninety (90) days prior to the expiration of the then current Initial Supplemental Support Term or Supplemental Support Term. In the event of any expiration or cancellation of Supplemental Support by Customer, Supplier will remove the Custom Enhancement pursuant to a Professional Services engagement, performed on a time and materials basis, at Supplier’s then-current fees.

In the event that Supplier makes any Custom Enhancement developed under this PSA generally available to customers as part of its then currently available standard support offering, then Supplier may provide support and maintenance for such Custom Enhancement under its support agreement with Customer and may increase support fees based on the value of the Custom Enhancement.  Provided Customer has paid all fees for the Custom Enhancement and any related Supplemental Support Fees and is otherwise not in breach of this PSA, with respect to any Custom Enhancement made under a Statement of Work, the license granted to such Custom Enhancement and any related documentation shall survive termination of this PSA

3. PAYMENT AND TAXES

3.1 Services Fees and Charges. Unless otherwise set forth in a Statement of Work, Customer shall pay Supplier for Services on a time and materials basis according to Supplier’s then current rate card, and will also reimburse Supplier for actual expenses reasonably incurred in connection with the provision of Services, including travel and lodging according to Supplier’s then current travel policy, which is available upon request.  Supplier will invoice Customer monthly and Customer shall pay Supplier within thirty (30) days of the invoice date, or as otherwise agreed upon in the Statement of Work. Customer shall not have the right to offset any fees due and owing to Supplier.  Customer shall be responsible for and expressly acknowledges Supplier’s right to bill and collect any fees associated with electronic interchange in payment processing.

3.2 Currency. All payments will be in U.S. dollars, unless otherwise specified in a Statement of Work.

3.3 Taxes. Other than net income taxes imposed on Supplier, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this PSA. Supplier shall invoice Customer the amount of the applicable taxes and Customer shall make payment under the invoice to Supplier within thirty (30) days of the invoice date and acknowledge that Customer remains responsible for any adjustments arising from audits. Customer will provide Supplier with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Supplier to establish that such taxes have been paid or verify the Customer is exempt from such taxes.

3.4 Disputed Expenses, Fees or Charges. Customer shall have thirty (30) days after the date of an invoice to dispute in good faith an expense, fee or charge, by providing sufficient communication in electronic form, or otherwise, to allow Supplier to respond, or Customer shall be deemed to have otherwise waived its right to object.  Customer shall not withhold payment of any undisputed amounts included in an invoice and shall pay those undisputed amounts within the original payment terms of the invoice.  Payment of expenses, fees or charges for which a dispute has arisen shall be paid no later than sixty (60) days after the date of the invoice.

3.5 Records; Audit. Supplier shall maintain, in accordance with generally acceptable accounting principles, complete and accurate records sufficient to substantiate Supplier’s expenses, fees and charges to Customer hereunder.  Supplier shall, upon fourteen (14) days advance written notice by Customer, and not more than once every twelve (12) months, permit reasonable inspection of such records by Customer or its accountants during normal working hours. Customer shall comply with Supplier’s confidentiality and security policies as [part of any such inspection. Supplier shall maintain such records for a period of twenty-four (24) months following the later of: (i) the date of final payment by Customer for Services under a Statement of Work, or (ii) the expiration or termination of the applicable Statement of Work. Upon five (5) business days advance written notice to Customer, Supplier shall have the right to audit Customer’s use of Services Materials to ensure compliance with this PSA.

3.6 Late Fees.  Customer agrees to pay a late payment charge at the rate of one and one-half percent (1.5%) per month, or the highest rate permitted by law for failure to pay when due any amount payable hereunder.  In addition, Supplier, at its option, may enforce Customer’s obligation to pay such amount(s), and pending such enforcement, declare Services and/or the license granted to the Services Materials provided to Customer pursuant to the applicable Statement of Work suspended or terminated.

4. OWNERSHIP AND LICENSE

4.1 Supplier Ownership. Supplier shall retain all right, title, ownership and interest, all proprietary and Intellectual Property Rights to the Supplier Technology and Services Materials. Such ownership shall extend, without limitation, to any modifications, derivatives, innovations or improvements of the Supplier Technology, and Services Materials, even if created by Customer. Customer will provide reasonable assistance and execute and deliver to Supplier any documents reasonably necessary to vest in Supplier all right, title and interest therein.

4.2 Customer Ownership. All Personal Data, Customer Confidential Information, data, software, hardware, customer lists and information, manuals, policies and procedures, pass keys, passwords and other access information, and all Customer property, materials and tools of any kind provided by Customer and used by Supplier Personnel in the performance of the Services are, and remain at all times, the sole and exclusive property of Customer, including all Intellectual Property Rights therein.

4.3 Residual Knowledge. Supplier is entitled to use any generalized knowledge, skills, experience or expertise, including any ideas, concepts, know-how, and techniques that Supplier acquires during performance of Services and the resultant provision of the Services (“Residual Knowledge”) to the extent that the same does not contain any of Customer’s Confidential Information, or Personal Data. Customer shall be obligated to inform Supplier of any third-party ownership rights, of which it has knowledge, that impact Supplier’s ownership rights in Services provided to Customer.

4.4 License Grant. Subject to the terms and conditions of this PSA, upon payment for the Services, Supplier grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, non-subleasable right to use the Services Materials, and to copy the Services Materials, solely in connection with Customer’s use of the Software for Customer’s own, internal computing operations within in accordance with Customer’s License and Support Agreement or Master Software as a Service Agreement as applicable and Order Form. If the period during which Customer is licensed to use the Software related to the particular Services Materials is for a specified term or terminates, then the license grant provided to Customer hereunder for such Services Materials shall only be granted for the duration of such license term.

4.5 Outsourced IT Providers. Customer may provide copies of the Services Materials to a third party so long as such third party is authorized by Supplier to host the Software on Customer’s behalf or provide other outsourced information technology services to Customer for the Software.

4.6 Supplier reserves any rights not expressly granted to Customer under this PSA.

5. CHANGE REQUEST

5.1 Change Request. At any time prior to the completion of the Services described in a Statement of Work, either party may request a change in such Statement of Work to reflect; (a) additional scope; (b) modification to the allocation of resources; or (c) additional effort required. Each party, to the extent applicable, should assess the change request as appropriate for its potential impact.

6. CONFIDENTIALITY

6.1 Permitted Uses or Disclosures. Confidential Information is being provided solely for the purpose of enabling Customer to purchase Services from Supplier and for Supplier to provide such Services to Customer under the terms of this PSA (“Authorized Purpose”). Receiving Party, in connection with the Authorized Purpose, shall only disclose Confidential Information to individuals who will reasonably need to know and who agree in writing to confidentiality obligations that are substantially similar to the terms contained in this Section 6 to protect Supplier’s Confidential Information, and then are limited to its officers, employees, agents, consultants, contractors and professional advisors who will reasonably need to know.  In the event of disclosure to an agent or advisor, the Receiving Party, upon request, shall provide the Disclosing Party with the identity of the same. The Receiving Party will use at least the same standard of care to maintain the confidentiality of the Disclosing Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care.  No Confidential Information of Supplier may be disclosed to i) an equipment finance and/or leasing software or services provider or ii) a third party with direct access to Supplier’s Technology or without prior express written permission from an authorized representative of Supplier.

6.2 Authorized Purpose. Without the prior written consent of the Disclosing Party, the Receiving Party shall not disclose to a third party any Confidential Information or use Confidential Information for any other purpose other than the Authorized Purpose, or as otherwise agreed to herein. Receiving Party will promptly provide Disclosing Party with written notice of any actual breach of Personal Data or other personal information of which it is aware. Except as may otherwise be expressly set forth in a separate definitive agreement between Supplier and Customer, no party shall be deemed to make, or shall be deemed to have made any representation or warranty as to the accuracy or completeness of Confidential Information, or any item(s) thereof.

6.3 Authorized Disclosure. Notwithstanding the above, nothing herein shall prevent a Receiving Party from disclosing Confidential Information that the Receiving Party is required to disclose by court order pursuant to the rules and regulations of a governmental agency or body having jurisdiction over the Receiving Party, to the extent so required; provided, however, that prior to any such disclosure, the Receiving Party shall, when legally permissible (a) notify the Disclosing Party promptly in writing of any order or request to disclose, and of the facts and circumstances surrounding such order or request, so that the Disclosing Party may seek an appropriate protective order and (b) cooperate with the Disclosing Party, at Disclosing Party’s sole cost and expense, in any proceeding to obtain an appropriate protective order.

6.4 Destruction of Confidential Information. Upon termination of this PSA: (a) Customer shall return or destroy, at Supplier’s option, all materials relating to Confidential Information of Supplier and shall de-install and delete all copies of Services Materials, and (b) Supplier shall return or destroy, upon Customer’s request, all Confidential Information of Customer relating thereto.  If either party chooses destruction, a certificate of destruction shall be provided evidencing compliance with this section, each party retaining always the right to maintain the books and records necessary to satisfy its auditors, regulators and other reasonable legal requirements. To the extent it is impossible to destroy or return the Confidential Information as required under this Section 6.4, such Confidential Information will remain subject to the confidentiality obligations herein.

6.5 Personal Data. Where Supplier handles Personal Data in the course of providing the Services, Supplier will handle such Personal Data solely for the purpose of providing the Services in accordance with this PSA and the reasonable written instructions of Customer and will do so in accordance with the Privacy Laws applicable to Supplier. Supplier will cooperate and comply with any mandatory and binding laws issued by any privacy or data protection authority applicable to Supplier.

7. LIMITED WARRANTIES

7.1 Warranty by Each Party. Each party represents and warrants to the other that this PSA has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms.

7.2 Services Warranty. Subject to Section 7.3 belowSupplier warrants that during the ninety (90) days after the date of delivery of the Service(a), the Services Materials as delivered by Supplier shall be materially in accordance with any specifications and/or designs provided in the Statement of Work for such Services, and (b) Services be performed in a professional and workmanlike manner during the performance of such Services. Customer must provide notice to Supplier of any warranty claim within the warranty period.

7.3 Exceptions to Warranties. TO THE EXTENT PERMITTED BY ANY APPLICABLE LAW, SUPPLIER SHALL HAVE NO OBLIGATION UNDER THESE WARRANTIES TO THE EXTENT A CLAIM RESULTS FROM (A) CUSTOMER’S OR ANY THIRD PARTY’S MODIFICATION OF THE SERVICES; (B) A COMBINATION OF THE SERVICES WITH ANYTHING NOT EITHER PROVIDED OR RECOMMENDED BY SUPPLIER; (C) CUSTOMER USE OF SERVICES THAT FAILS TO CONFORM WITH SUPPLIER’S OPERATIONAL RECOMMENDATIONS OR GUIDELINES THAT ARE DESIGNED TO SUPPORT THOSE SERVICES; OR (D) ANY THIRD PARTY SOFTWARE.

7.4 Disclaimer. THE LIMITED WARRANTIES IN SECTIONS 7.1, AND 7.2 ARE MADE BY SUPPLIER TO CUSTOMER EXCLUSIVELY AND ARE IN LIEU OF ALL OTHER WARRANTIES.  EXCEPT AS SPECIFICALLY SET FORTH IN SECTIONS 7.1 AND 7.2, NEITHER SUPPLIER NOR ANY AGENT OR PERSON ACTING FOR OR WITH SUPPLIER HAS MADE OR DOES MAKE ANY STATEMENTS, AFFIRMATIONS, REPRESENTATIONS OR WARRANTIES WHATSOEVER TO CUSTOMER, WHETHER EXPRESS OR IMPLIED, AS TO THE SERVICES, AS TO THE QUALITY OR CONDITION OF THE SERVICES, NONINFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THE OPERATING CHARACTERISTICS OR RELIABILITY OF THE SERVICES OR THEIR SUITABILITY FOR ANY GENERAL OR PARTICULAR PURPOSE, OR AS TO ANY OTHER MATTER WHATSOEVER. ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH APPLICABLE TAX LAWS OR TAX RULINGS, AS WELL AS ANY WARRANTIES IMPLIED BY LAW, SUCH AS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.  CUSTOMER MUST NOTIFY SUPPLIER WITHIN THE APPLICABLE WARRANTY PERIOD UPON LEARNING OF ANY CLAIMED BREACH OF ANY WARRANTY AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, CUSTOMER’S REMEDY FOR BREACH OF ANY WARRANTY SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY IN THIS PSA.  THIS DISCLAIMER AND EXCLUSIONS SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL THEIR ESSENTIAL PURPOSE.

8. INDEMNITY

8.1 Supplier’s Indemnity Obligations. Supplier shall defend, indemnify and hold harmless Customer, its subsidiaries, parents and affiliates from and against any loss, cost and expense (including reasonable attorneys’ fees) that Customer incurs because of a third party claim:

  • (a) Resulting from the death or personal bodily injury of Customer or any of its officers, employees, agents, consultants, contractors and professional advisors or any third party to the extent directly caused by a breach of this PSA or the negligent acts or omissions or willful misconduct of Supplier or its officers, employees, agents, consultants, Contractors or professional advisors.
  • (b) Resulting from the damage, loss, or partial loss, or destruction of any real or personal tangible property of Customer or its officers, employees, agents, consultants, contractors and professional advisors to the extent directly caused by a breach of this PSA or the negligent acts or omissions or willful misconduct of Supplier or its officers, employees, agents, consultants, Contractors or professional advisors.


8.2 Customer’s Indemnity Obligations.
 Customer shall defend, indemnify and hold harmless Supplier, its subsidiaries, parents and affiliates from and against any loss, cost and expense (including reasonable attorneys’ fees) that Supplier incurs because of a third party claim:

  • (a) Resulting from the death or personal bodily injury of, any of Supplier’s officers, employees, agents, consultants and professional advisors or any third party to the extent caused by a breach of this PSA or the negligent acts or omissions, or willful misconduct of Customer or its officers, employees, agents consultants, contractors or professional advisors.
  • (b) That customer’s use of the Services Materials miscalculated or otherwise mistakenly charged such third party for taxes, payments or other amounts that were not otherwise properly


8.3 Notice and Obligations to Receive Indemnity. 
A party seeking indemnity agrees to no later than thirty (30) days after it receives notice of the claim (or sooner if required by applicable Laws):

  • (a) promptly notify the indemnifying party in writing as to any such third party claim or action;
  • (b) give the indemnifying party sole control of the defense and any settlement negotiations, provided, that the indemnifying party will not agree to any settlement without the indemnified party’s prior written consent, unless such settlement includes a release of all claims by the claiming party against the indemnified party, does not require payment of any money by the indemnified party, and does not require the indemnified party to admit any wrongdoing; and
  • (c) provide the indemnifying party with the information, authority, and assistance reasonably necessary to defend against or settle any such claim or proceeding.

If the indemnified party chooses to represent its own interests in any such action, it may do so at its own expense, but such representation must not prejudice the indemnifying party’s right to control the defense of the claim and negotiate its settlement or compromise.

9. REMEDIES

9.1 Services Breach.   Customer’s sole and exclusive remedy and Supplier’s sole and exclusive liability for a breach of section 7.2 or for material errors or omissions of Supplier or its employees or agents in connection with such Services Materials provided to Customer, or for any cause related to Services whatsoever, whether such liability is based in contract, tort or any other theory of liability, shall be that Supplier shall, at its option, either (a) re-perform the Services affected by the error or omission in compliance with the warranty without charge to Customer, or (b) refund to Customer the fees paid to Supplier for the Services Materials affected by the error or omission under the applicable Statement of Work. These remedies are exclusive and are in lieu of all other remedies, and Supplier’s sole obligations for breach of Section 7.2 are contained in this Section 9.1.

9.2 Confidentiality.  Each party acknowledges and agrees that the other party’s remedy at law for a breach or threatened breach of confidentiality would be inadequate, and in recognition of this fact, each party agrees that in addition to its remedy allowed under these terms and conditions, the non-breaching party shall be entitled to seek an injunction or any other equitable remedy which may then be available.

10. LIMITATIONS OF LIABILITY

10.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS PSA, IN NO EVENT WILL SUPPLIER, ITS AFFILIATES, CONTRACTORS, OR THIRD PARTY LICENSORS BE LIABLE FOR ANY CLAIM FOR INDIRECT, SPECIAL, RELIANCE, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, REVENUE, DATA, OR DATA USE, OR ANY PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS PSA OR ANY OBLIGATION RESULTING THEREFROM, WHETHER ANY SUCH CLAIM IS BASED ON BREACH OF WARRANTY (EXPRESS OR IMPLIED), BREACH OF CONTRACT, DELAY, NEGLIGENCE  (ACTIVE OR PASSIVE), STRICT TORT LIABILITY OR OTHERWISE, EVEN IF THE POSSIBILITY THEREOF MAY BE KNOWN IN ADVANCE TO ONE OR MORE PARTIES.

10.2 Limited Liability of Supplier. TO THE EXTENT PERMITTED BY ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL SUPPLIER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS PSA FROM ANY CAUSE WHATSOEVER EXCEED THE FEE THAT CUSTOMER PAID TO SUPPLIER FOR THE SERVICES GIVING RISE TO THE LIABILITY UNDER THE APPLICABLE STATEMENT OF WORK.

10.3 Statute of Limitations. EXCEPT FOR ACTIONS FOR CUSTOMER’S NONPAYMENT, BREACH OF PROPRIETARY RIGHTS, OR WHERE NOT STATUTORILY ABLE TO SHORTEN, NO ACTION OR PROCEEDING AGAINST EITHER PARTY PURSUANT TO THIS PSA MAY BE COMMENCED MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION ARISES, UNLESS THE BREACH IS ONGOING.

10.4 Independent Allocation of Risk. EACH PROVISION OF THIS PSA THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS PSA BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SUPPLIER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS PSA. THE LIMITATIONS IN SECTIONS 7, 9.1 AND THIS SECTION 10 WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS PSA.

11. TERMINATION

11.1 PSA for Breach. A party may terminate this PSA or a Statement of Work: (a) if the other party does not cure its material breach of this PSA or a Statement of Work within thirty (30) days from receipt of such notice unless the breach is cured within such period or if the breach is not curable, then such termination will be effective immediately upon the giving of such notice, or (b) subject to Section 3.4, within thirty (30) days for nonpayment of an invoice. Notice to Supplier of an alleged breach of warranty will not constitute a notice of termination of this PSA.

11.2 Force Majeure. This PSA may be terminated pursuant to Section 12.3

11.3 Effect of Termination. Upon termination of this PSA by either party, Supplier will discontinue the provision of all Services and Customer will promptly pay Supplier for all Services rendered through the effective date of such termination except to the extent the Services rendered resulted in a breach by Supplier and such fees are successfully disputed by Customer in accordance with Section 3.4. Termination of this PSA will not release either party from making payments which may be owing to the other party under the terms of this PSA for all Services rendered through the effective date of such termination.

12. GENERAL

 12.1 Assignment. Customer may assign or transfer this Agreement, by operation of law or otherwise, in its entirety without consent assign, to:  (i) a parent, sister company, Affiliate, related party or wholly-owned subsidiary (each, a “Related Party”); or (ii) any person that becomes the successor entity of either party in connection with a change of control (which shall include a direct or indirect transfer of all or substantially all of such party’s stock or assets to a third party, a merger, reorganization or any other such transaction), or any such transaction by a parent corporation of a  party, provided, however, that  in no event may Customer assign, delegate or otherwise transfer this Agreement to without prior express written permission of Supplier. Any attempt at an assignment where consent is required will be void without the prior written consent of Supplier.

12.2 Export. Customer shall comply with all relevant export laws and regulations of the United States and other applicable export and import laws (including “deemed export” and “deemed re-export” regulations) which govern the use and distribution of the Services Materials (including technical data) and any Services provided under this PSA, or any Statement of Work.  Customer agrees that no information or Services Materials (or direct product thereof), will be exported, directly or indirectly, in violation of these laws, or is used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.  Customer shall be solely responsible for all fees and expenses related to a permitted export or re-export of the Services Materials. Supplier will provide reasonable assistance in Customer’s efforts to comply.

12.3 Force majeure. No party shall be in default if its delay or failure to perform any obligation hereunder is caused solely by supervening conditions, such as an act of war, hostility, or sabotage, act of nature, electrical, internet, or telecommunication outage that is not caused by the obligated party, government restrictions (including the denial or cancellation of any export or other license), or other events beyond the obligated party’s reasonable control.  If such event continues for more than ninety (90) calendar days, either party may cancel any unperformed Services upon written notice.  This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligations to pay for Services rendered to Customer according to the terms of the Statement of Work.

12.4 Independent contractors. The parties to this PSA are independent contractors and are not agents or representatives of each other. No party shall have the power to bind the other, nor shall any party misstate or misrepresent its relationship hereunder.

12.5 Contractors. Supplier may perform any of its obligations under this PSA through any of Supplier’s affiliates or subcontractors (“Contractors”), but, in all such cases, Supplier will remain subject to the obligations hereunder. Supplier will keep and have available all necessary records and make all payments, reports, collections, and deductions, and otherwise do any and all things necessary so as to fully comply with all federal, state and local laws, ordinances and regulations in regard to its Contractors. If applicable, Supplier will file a FORM 1099-MISC and all other reports required by law with respect to each Contractor assigned to Customer.  Supplier and Customer intend that this PSA will not benefit or create any right or cause of action in, or on behalf of, any person or entity other than the parties.

12.6 Non-Solicitation.  During the term of the Services and for a period of twelve (12) calendar months after the Supplier has ceased supplying Services to the Customer for any reason, the Customer must not, and will procure that any affiliate of Customer does not, directly or indirectly Solicit for employment or retention as an independent contractor, or in any way employ or allow any Resource of Supplier to perform services that are the same or similar to Services performed by Supplier in connection with Supplier’s products without the prior written consent of Supplier.  For purposes of this Section: “Resource” means: (a) employees or independent contractors of Supplier who performed Services or demonstrations of the Supplier’s products for Customer, and (b) former employees of Supplier who have performed Services in connection with the Products and whose employment with Supplier ended less than twelve (12) months prior to the date of such offer to hire, hire, Solicitation, or employment; and “Solicit” does not include: (1) general solicitations, such as advertisements in newspapers, trade publications or directed at a broad audience, or (2) referrals to Customer by a search firm, employment agency or similar firm, provided, however, that such firm was not specifically directed by Customer.  Notwithstanding the foregoing, Customer is not permitted to hire or offer for hire any Supplier Resource to perform services that are the same or similar to Services performed by Supplier in connection with Supplier’s products if such Resource responds to a general solicitation or referral as described in (1) and (2) above. In the event a court or competent jurisdiction deems any term, obligation, or condition of this section unenforceable, the other terms, obligations, and conditions of this section shall remain in full force and effect, and the unenforceable term, obligation, or condition shall be deemed to have been amended so that it shall be enforceable.

12.7 Counterparts. This PSA and any signed agreement or instrument entered into in connection with this PSA, and any amendments hereto or thereto may be executed in counterpart. Any such counterpart, to the extent delivered by means of digital imaging, facsimile machine, or electronic mail will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.

12.8 Survivorship. Provisions that survive termination or expiration are those relating to confidentiality, limitation of liability, indemnity, payment and others, which by their nature are intended to survive. 

12.9 Governing law and dispute settlement. The validity, interpretation, and performance of this PSA shall be controlled by and construed under the laws of New York as if performed wholly within the state and without the principles of conflicts of laws.  The parties expressly reject the application of the United Nations Convention on the International Sale of Goods to this PSA.  Any dispute arising under these terms and conditions shall be settled amicably and, if such shall not be successful, the dispute shall be referred to a competent court in Minnesota.  To the extent permitted by applicable law, the parties agree to waive any right to a jury trial.

12.10 Controlling language. The controlling language of this PSA is English.  Translation of this PSA to any other language is prohibited, except where to do so is expressly prohibited by law.

12.11 Notices. All notices pursuant to this PSA shall be deemed sufficiently given, if in writing, and if personally delivered or sent by commercial express mail or other commercially appropriate means providing prompt delivery and proof of delivery to the notice address provided below.  All other correspondence, including invoices, payments, and other documents and communications may be sent electronically or via regular mail. Notices must be sent to a party at its address shown on the signature page of this PSA, or to such other place as the party may subsequently designate for its receipt of notices in accordance with this Section.  Customer must promptly send copies of any notice of material breach and/or termination of this PSA to Supplier, Attention: Legal Department 220 S. Sixth St., Suite # 700, Minneapolis, MN 55402, USA, or to such other place as Supplier may subsequently designate for its receipt of notices.

12.12 No waiver. Except as provided herein, the waiver by a party of a particular breach of this PSA by the other shall not be construed as nor constitute a continuing waiver of such breach or of breaches of the same or similar nature or other terms of this PSA.

12.13 Publicity. Supplier may publicly disclose Customer name when included in lists of Supplier customers including but not limited to general marketing materials, website, press releases, user-conferences and customer lists.

12.14 Severability.  Whenever possible, each section of this PSA will be interpreted in such a manner as to be effective and valid under applicable law, and shall be modified to the extent possible and necessary to preserve the original intentions of the parties, and the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.  However, should any section(s) of this PSA be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining sections shall not in any way be affected or impaired thereby.

12.15 Entire agreement.   This PSA and Statements of Work, including all schedules and exhibits attached thereto are the complete and exclusive statement of the PSA and supersede all prior understandings and other prior or contemporaneous oral or written communications or services obligations between the parties relating hereto, all of which are terminated.  There are no conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein.  This PSA may be amended only by a subsequent writing that specifically refers to this PSA, and that is signed by the parties.  Headings are for convenience only and shall not be used to interpret or define the provisions of this PSA.  Notwithstanding the foregoing, no additional or conflicting terms in a purchase order, even if signed by the parties to this PSA, shall have any effect on the terms of this PSA, or any software delivered hereunder.