This Pharos STATEMENT of WORK TERMS and CONDITONS, “the Agreement”, is made and entered into as of the date on the SOW Signature page by and between Pharos Systems International, Inc. (“Pharos”), a Delaware Corporation with a place of business located at 80 Linden Oaks, Suite 310, Rochester, New York 14625, USA and the “Customer”.
- Services. Pharos shall provide to Customer, on a non-exclusive basis, such services and deliverables as are requested (collectively the “Work”) by Customer and agreed to by Pharos in the Pharos STATEMENT of WORK (“SOW”) signed by all parties in the form set forth in the SOW. In the event Customer disputes the incorporation of certain terms and conditions related to this contract, Customer shall promptly provide Pharos with its reasons, in writing. If Customer and Pharos are unable to agree on the inclusion of any terms and conditions, either party shall have the right to terminate the SOW. Pharos shall not delegate its responsibilities for the Work without the prior written consent of Customer.
- Change Orders. All change orders (“Orders”) to the SOW and acceptance or rejection of such Orders, shall be in writing, refer to the SOW Change Order form, pursuant to the following procedure.
Upon Customer’s submission of an Order, Pharos will promptly advise the Customer of the impact on cost and delivery schedule and will provide such additional information as will permit Customer to determine the reasonableness of the cost and delivery schedule impact. Customer and Pharos will, in good faith, negotiate reasonable cost and delivery terms. Pharos will promptly proceed with the Order upon written agreement of such terms in the Order.
- Term. Subject to the provisions with respect to termination set forth in Section 16 Termination, herein, the term of the SOW for this installation is for thirty (30) days from the date on the cover page of the SOW.
- Compensation. Customer shall be invoiced for Work as stated in the SOW which will set forth the acceptance criteria, if any, required to be satisfied prior to payment being made. Where no acceptance criteria are specified, such criteria shall be the full compliance of the Work with the SOW.
Where pricing is daily, Pharos shall provide a written invoice to Customer for Work performed during the prior month and billing shall be recorded in increments of one day.
Where pricing is on a project basis, Pharos shall provide a detailed invoice upon completion of the SOW, unless progress payments are agreed to be paid by Customer after milestone objectives are accomplished as noted in the SOW.
- Expense Forms. Pharos will charge Customer for Pharos’ reasonable and customary expenses while fulfilling the SOW. Upon request Pharos will provide copies of applicable receipts.
- Payment. Customer shall pay any undisputed fees and expenses of Pharos within 30 days, unless specified otherwise in the SOW, after receipt of Pharos' invoice. Customer shall notify Pharos of any questions regarding any fees or expenses on Pharos’ invoice within 30 days of receipt of Pharos’ invoice, and the parties will work diligently and in good faith to resolve any billing questions or disputes.
- Non-Exclusive Services. During the term of the Agreement, Pharos may provide its services to others, including competitors of Customer, provided that Pharos acknowledges that it is at all times subject to the terms and conditions of the SOW, including, without limitation, Sections 9 and 10 regarding confidentiality and proprietary rights, and that such other work does not conflict or interfere with Pharos fulfilling its responsibilities for the SOW.
- Equipment. Customer will furnish all equipment required for Pharos to perform the Work to the extent specified in the SOW; in all other cases Pharos will furnish its own equipment necessary to perform the Work.
- Confidential Information. Customer recognizes and acknowledges that, during the course of its engagement with Pharos, it or its employees and/or contractors will have access to valuable and important confidential and proprietary information of Pharos, (collectively “Confidential Information”) which includes, but is not limited to: i) Any technical information, design, process, procedure, formula, research, invention, methods, know-how or improvement and other data or documentation relating to the development, production, packaging, marketing, use and sale of the Pharos’ products and services and any work specifically done for any client of Pharos that have not been made available to the general public; and ii) the business plans, financial information, or the listing of names, addresses or telephone numbers of and other information relating to Pharos’ employees, which have not been published or disseminated or otherwise become a matter of general public knowledge; and iii) other proprietary information of Pharos or its clients. Excluded from such Confidential Information shall be: i) information which at the time of disclosure is, or without fault of Customer becomes, available to the public by publication or otherwise and (ii) information which Customer can show was in its possession at the time of disclosure or independently developed by it, without reference to Pharos’ information and was not acquired directly or indirectly from Pharos. Customer acknowledges that unauthorized disclosure or misuse of Confidential Information will cause irreparable damage to Pharos and that covenants by Customer not to make unauthorized disclosures of the Confidential Information are essential to the growth and stability of Pharos. Therefore, Customer agrees that, except as authorized by Pharos or as required by court order, law or regulation, in which case Customer will provide Pharos with prompt notice for Pharos to seek a protective order, Customer and its employees and contractors will not use or disclose any Confidential Information during the term of this Agreement and thereafter. Customer agrees that it is responsible for unauthorized disclosure and use of Confidential Information by its employees and contractors.
- Proprietary Rights. All deliverables created hereunder, including, without limitation, development, modification or enhancement of systems, source codes, object codes, operating
instructions, writings, information, data, formulae, models, drawings, photographs and design concepts, and all other inventions, discoveries, creations or documentation developed for or relating to Customer or its clients by Pharos, including its employees and contractors, hereunder shall be and remain the sole and exclusive property of Pharos, depending upon the terms of the applicable contract, if any, between Customer and such client.
- No Hiring. Pharos and Customer agree not to hire, solicit or accept solicitation for the services of, through employment or otherwise, directly or indirectly, any of the other party’s employees, agents or independent contractors with whom either has had direct contact in the course of any of the Work which is performed under the SOW throughout the term of the SOW and for a period of one year thereafter, without the express written consent of the other party.
- Warranty. Pharos warrants and covenants that the Work to be performed under the SOW hereto shall be performed in accordance with the SOW in a skillful, professional and first-class manner by personnel qualified and skilled to perform the duties assigned. After completing the Work, Pharos does not warrant that all features or functionality of the product will be available as before, since customization may render some features or functions unavailable or inoperable.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT HERETO, PHAROS DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Future Releases. Pharos does not warrant that the Work will function, in part or in full, on future releases of Pharos products. In addition, Pharos does not warrant that the Work will function with new functionality of future releases. The Customer is responsible to test the Work in a test environment prior to upgrading from the release for which the Work was originally completed. If changes are required to the Work to allow it to function with a new release, Pharos may charge for the time and resources required to perform the changes.
- Limitation of Liability. EXCEPT WHERE ONE PARTY INDEMNIFIES THE OTHER UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING LOST PROFITS OR OTHER ECONOMIC DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS LIMITATION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT, INCLUDING NEGLIGENCE.
- Indemnification. Customer shall indemnify, defend and hold harmless Pharos for: i) Any damage or injury caused by or arising from the acts or omissions or misconduct of Customer, its employees or agents, in the performance of or relating to the Work for which Pharos was retained by Customer ii) any breach by Customer of the SOW or this Agreement hereto, and iii) any claim of infringement of any patent, trademark, copyright, trade secret or other intellectual property right by any third party against the Customer related to or arising out of the Work provided by Pharos.
- Termination. Either party may terminate the SOW for any reason upon 30 days prior written notice to the other party. If either party pursuant to this Section terminates the SOW, Pharos shall be paid for services rendered, products delivered, and expenses through the date of termination. Pharos shall submit invoices in accordance with Section 4, Compensation.
- Order of Priority. In the event of inconsistency of terms the order of priority shall be the End User Software License, the SOW and then the Solution Design Document.
- Notices. Any notice required or permitted to be given under the SOW shall be sufficient if in writing, and shall be given by personal or commercial delivery service, by sending such notice by certified mail, postage pre-paid, or by facsimile with a confirmation copy by regular mail, to the other party at its address or facsimile number, as the case may be, set forth below or at such other address or facsimile number designated by notice in the manner provided in this Section. Such notice shall be deemed to have been received: if personally or commercially delivered, then upon the date of actual delivery; if mailed, then three (3) days after deposit in the mail; and if sent by facsimile, then upon transmittal with documented facsimile transmission confirmation.
IF TO PHAROS IF TO CUSTOMER Pharos Systems International, Inc. ATTN: Office of the Chief Executive ATTN: 80 Linden Oaks, Suite 310 Rochester, New York 14625, USA Facsimile No: (585) 249-9229 Facsimile No:
- General. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach. The rights and obligations of Customer and Pharos under this Agreement are not assignable by either party without prior written consent of the other party. Notwithstanding Section 17-Order of Priority of this Agreement, this instrument contains the entire agreement of the parties and may not be changed orally but only by a written agreement signed by the party against whom enforcement of any waiver, change, or modification, extension or discharge is sought. This Agreement shall be interpreted and enforced in accordance with the laws of the State of New York. Pharos and Customer agree that the provisions of Sections 10-Proprietary Rights, 11–No Hiring, 12-Warranty, 13–Future Releases, 14–Limitation of Liability, and 15–Indemnification hereof shall survive the termination of this Agreement.