SERVICES AGREEMENT
between
THINKING TOOLS, INC.
and
SHL SYSTEMHOUSE INC.
Agreement No. EC00170
THIS SERVICES AGREEMENT (the "AGREEMENT"), is made this 8th day of March between
SHL SYSTEMHOUSE INC., with it principal offices at 00 X'Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxx, Xxxxxx XXX 6L2 ("SHL Systemhouse"), and Thinking Tools,
Inc., with its principal offices at One Lower Xxxxxxxx Drive, Suite 1-250,
Monterey, California, USA 93940 ("Thinking Tools") who agree as follows:
1.0 TERM
The term of this Agreement shall commence on the last date entered
below by the parties signing this Agreement (the "Effective Date") and unless
otherwise terminated pursuant to Section 14, shall terminate on August 31, 1995
(the "Expiration Date").
2.0 GOODS AND SERVICES TO BE SUPPLIED
2.1 Thinking Tools agrees to provide to SHL Systemhouse, on the terms
and conditions hereinafter stated, those deliverables described in Schedule A
(the "Services") attached hereto and incorporated herein.
2.2 The Schedule(s) attached to this Agreement shall specify the
following for the Services included therein, as applicable:
(a) the Statement of Work;
(b) the assumptions;
(c) the payment schedule.
2.3 In addition to the Schedule(s), also incorporated into this
Agreement is Thinking Tools' Proposal. In the event of a conflict, the order of
precedence for these documents shall be as follows:
(1) This Services Agreement;
(2) The Schedule(s);
(3) Thinking Tools' proposal.
3.0 FEES AND PAYMENT
3.1 SHL Systemhouse agrees to pay to Thinking Tools the amounts
specified in the Schedule(s) for the provision of the Services specified
therein. SHL Systemhouse and Thinking Tools agree that the Project Schedule and
associated charges specified in the Schedule(s) are subject
to adjustment at any time that SHL Systemhouse and Thinking Tools mutually agree
to change, add to or delete any previously agreed upon work as described in the
Statement of Work. It is understood that any and all such changes shall require
the written consent of both parties.
3.2 Thinking Tools will xxxx SHL Systemhouse on a monthly basis, or as
otherwise specified in the attached Schedule(s). Payment in full of each invoice
shall be due within forty-five (45) days of receipt of that invoice. Amounts
invoiced but not paid by SHL Systemhouse within forty-five (45) days of receipt
of an invoice shall bear interest at the lesser of one and one-half percent
(1.5%) per month, calculated monthly not in advance, or the highest rate
permitted by law.
3.3 Unless otherwise provided, SHL Systemhouse shall reimburse Thinking
Tools for all reasonable receipted out-of-pocket expenses identified in this
Agreement, as follows:
a. Travel and Living expenses of Thinking Tools project
members including airfare, local transportation, hotels and meals. It is
understood that all such Travel and Living expenses shall be as required to
conduct business directly with SHL Systemhouse employees, or their designates.
Travel and Living expenses incurred by Thinking Tools to conduct business
without the direct involvement of SHL Systemhouse employees are not
reimbursable. All such expenses shall be in accordance with SHL Systemhouse's
then current expense account guidelines.
SHL Systemhouse shall pay the expenses in full within forty-five (45)
days of receipt of an invoice therefore accompanied by supporting vouchers and
receipts.
Notwithstanding the above Thinking Tools shall not incur any
reimbursable expenses for this Agreement without the prior consent of SHL
Systemhouse. In addition, Thinking Tools shall maintain complete and accurate
accounting records in accordance with sound business practices to substantiate
reimbursable expenses. Such records will be available to SHL Systemhouse upon
request.
4.0 CHANGE PROCEDURES
4.1 A Change Control Document in the form attached to this Agreement as
Exhibit A shall be used to accommodate changes to the Services specified in the
Schedule(s). Request by SHL Systemhouse for changes to the Services specified in
a Schedule are subject to the procedure specified in this Section 4.0.
4.2 SHL Systemhouse shall advise the Thinking Tools Project Manager, in
writing, of the desired change, with the same degree of specificity as in the
relevant Schedule.
4.3 The Thinking Tools Project Manager will assess the impact of
the desired change on:
(a) The total cost of the Services to be provided under
this Agreement;
(b) the milestones to be reached;
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(c) the time frame for completion; and
(d) any further areas which, in the opinion of the
Thinking Tools Project Manager, are likely to be affected by the desired change.
Thereupon, Thinking Tools will prepare a Change Control Document
incorporating the description of the change requested.
4.4 Thinking Tools shall provide SHL Systemhouse with the Change
Control Document. The Change Control Document from Thinking Tools shall
constitute an offer by Thinking Tools to provide the Services requested by SHL
Systemhouse at the prices stated in the Change Control Document. This offer
shall be irrevocable for ten (10) business days following receipt by SHL
Systemhouse.
4.5 If SHL Systemhouse accepts Thinking Tools' offer by signing the
Change Control Document, the Schedule(s) affected by the change shall be deemed
amended to incorporate the change in question. The price stated in the Change
Control Document shall be recoverable from SHL Systemhouse by Thinking Tools
outside any limit of maximum expenditure in the relevant Schedule(s) and/or this
Agreement.
5.0 WARRANTIES AND LIMITATIONS OF LIABILITY
5.1 Thinking Tools warrants that (i) the Services which it is providing
under this Agreement will be of professional quality conforming to generally
accepted data processing and consulting practices; (ii) the deliverables
provided to SHL Systemhouse shall conform in all material respects to the
specifications for such item included in this Agreement; and (iii) Thinking
Tools is able to perform the services and provide the deliverables specified in
this Agreement and Thinking Tools does not have any agreement with any third
party which would restrict its ability to perform under this Agreement.
Thinking Tools further represents and warrants that the services and/or
deliverables provided hereunder shall meet or exceed the requirements specified
in this Agreement. In the event of a breach of this warranty, Thinking Tools
shall without charge and without delay, repair, replace or modify the products
or services so as to correct said warranty breach. If Thinking Tools fails to
remedy a defect or nonconformity, SHL Systemhouse shall without prejudice to its
other rights and remedies under this Agreement, at law or in equity, have the
right by contract or otherwise to correct or replace with similar equipment,
materials or services and charge to Thinking Tools the cost incurred by SHL
Systemhouse, or exercise any other right reserved in this Agreement.
6.0 PROPERTY RIGHTS
6.1 Thinking Tools acknowledges and agrees that SHL Systemhouse has
worldwide, unlimited, exclusive rights to use, copy, market, and distribute the
Concept Paper, Final Design and Prototype produced or authored by Thinking Tools
in performance of this contract. Thinking Tools shall retain intellectual
property rights to all pre-existing Thinking Tools materials and materials
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produced or authored by Thinking Tools in the course of performing services for
SHL Systemhouse. SHL Systemhouse shall retain intellectual property rights for
all pre-existing SHL materials and for all SHL Systemhouse ideas regarding
project management know-how and methodologies generated during the course of
this contract. In the event Thinking Tools utilizes any independent contractors
in performing work for SHL Systemhouse, Thinking Tools shall obtain for SHL
Systemhouse ownership of, and all rights of copyright in, the writings or other
works of authorship created by an independent contractor.
All pre-existing proprietary materials of SHL Systemhouse will be
marked as such as disclosed to Thinking Tools prior to their inclusion in any
deliverable provided hereunder.
6.2 In the event that this agreement terminates, and the parties have
not entered into an agreement to develop and deliver a production-ready project
simulation of software product, Thinking Tools shall not use or reproduce the
Concept Paper, Final Design, or Prototype to create a project management
simulation product for any party other than SHL Systemhouse.
7.0 PROJECT MANAGEMENT
7.1 Each party shall appoint a Project Manager who shall be fully
responsible for coordinating the activities of the appointing party. Each party
shall direct all performance-related inquiries to the Project Manager of the
other party.
7.2 SHL Systemhouse Project Manager shall be the sole representative of
SHL Systemhouse with authority to request or approve amendments to the Services
to be provided under this agreement.
8.0 CONFIDENTIALITY
8.1 Each party agrees to treat all information and materials received
from the other party that are labeled "Confidential" or "Proprietary" as
confidential information of the other party. Each party further agrees to use at
least the same degree of care to avoid disclosure or dissemination of the other
party's confidential information as it uses to protect its own confidential
materials, but in any event, at least a reasonable degree of care. Neither party
shall use the confidential information of the other party for its own benefit or
for the benefit of any third party, except as expressly permitted in this
agreement.
8.2 Each party agrees to advise all of its employees, agents,
subcontractors or consultants that may have access to or otherwise receive the
confidential information of the other party of all obligations pertaining to the
protection of the confidential information of the other party under this
Agreement.
8.3 Neither party shall disclose confidential information of the other
party to any third party (other than independent contractors having a
"need-to-know"), without the other party's prior written consent; provided,
however, that a party shall not be liable for disclosure of information designed
as "Confidential" or "Proprietary" by the other party if the same:
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(a) is in the public domain at the time of disclosure;
(b) becomes known to the other party from a third-party
source under no obligation to maintain confidentiality;
(c) becomes publicly available through no fault or
failure to act by the receiving party in breach of this Agreement; or
(d) is already known by the receiving party when
received, or is independently developed by the receiving party without
reference to the information provided by the other party, as established by
documentary evidence; or
(e) is required by a court or other governmental
authority to be disclosed (provided that the receiving party has used
reasonable efforts to make such disclosure subject to a protective order or
confidentiality agreement).
8.4 If, in order to fulfill the purposes of this Agreement, it is
necessary for the party receiving confidential information of the other party to
copy the same, in whole or in part, the receiving party may do so, but solely
for the purpose of enabling such party to perform under this Agreement.
8.5 Upon achieving the purpose(s) intended, or in the event of the
earlier termination of this Agreement, each party shall immediately return
and/or destroy all materials containing confidential information of the other
party. Each party shall further certify in writing to the other party that all
copies or partial copies of material containing confidential information of the
other party have been returned and/or destroyed.
9.0 ACCESS
SHL Systemhouse agrees to allow Thinking Tools and its independent
contractor sufficient working space as well aa such access to SHL Systemhouse's
personnel, files, and equipment at SHL Systemhouse's facility as is necessary
for the performance by Thinking Tools' employees and/or independent contractors
of the Services required hereunder, subject to the prior agreement of SHL
Systemhouse concerning the details of such access.
10.0 OFFERS OF EMPLOYMENT
10.1 Each party to this Agreement hereby undertakes that, without the
prior written approval of the other party, it shall not solicit for employment
any employee(s) of the other party who shall have been assigned to or worked
under this Agreement, nor shall it, either directly or indirectly, induce any
such employee to terminate his or her employment with the other party.
10.2 This Section shall be effective and enforceable until a period of
six (6) months after the date of acceptance by SHL Systemhouse of all of the
Services to be provided by Thinking Tools under this Agreement.
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11.0 INDEPENDENT CONTRACTORS
11.1 The relationship of Thinking Tools to SHL Systemhouse is that of
an independent contractor. Under no circumstances shall any employees of one
party be deemed to be the employees of the other for any purpose. Each party
shall pay all wages, salaries, and other amounts due its respective employees
relative to this Agreement and shall be responsible for all obligations
respecting them relating to income tax withholdings, unemployment insurance
premiums, pension plan contributions, and other similar responsibilities.
11.2 Neither party has the right or authority to assume or to create
any obligation or responsibility on behalf of the other party, except as may
from time to time be provided by written instrument signed by other parties.
11.3 Nothing contained herein shall be construed as implying a joint
venture or partnership relationship between the parties.
12.0 FORCE MAJEURE
Thinking Tools shall not be responsible for any failure to comply with
or for any delay in performance of the terms of this Agreement where the failure
or delay is due to acts of God or the public enemy, war, riot, embargo, fire,
explosion, sabotage, flood, accident; or, without limiting the foregoing, any
circumstances of like character beyond its control.
13.0 TERMINATION
13.1 If either party shall at any time neglect, fail, refuse to perform
under, or otherwise breach any of the material provisions of this Agreement,
then the other party may serve upon the defaulting party notice of intention to
terminate this Agreement (including its Schedule(s)). If, within ten (10) days
of the date of service of such notice, the defaulting party has not fully cured
all the defaults indicated therein, or presented a plan acceptable to the other
party to cure such defaults, then upon expiration of the ten (10) days, this
Agreement shall terminate.
14.0 ENTIRE AGREEMENT
14.1 This Agreement (including the Schedule(s) attached hereto)
constitutes the entire understanding between the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations, and discussions, whether oral or written, of the
parties. There are no warranties, representations, promises, covenants, or other
agreements between the parties other than those expressly set forth herein.
14.2 No supplement, modification, or amendment of this Agreement or any
Schedule shall be binding unless executed in writing by an authorized
representative of each party.
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15.0 APPLICABLE LAW
This Agreement (including the Schedule(s) attached hereto) shall be
governed by and construed according to the laws of the Province of Ontario
without regard to its choice of law rules.
16.0 WAIVER
No term or condition of this Agreement shall be deemed waived, and no
breach or omission excused, unless in writing and signed by the party against
whom enforcement of such waiver or consent is sought. A waiver of any condition
or term of this Agreement in any regard shall not constitute a waiver or consent
to any different or subsequent breach or omission, and either party may invoke
any remedy available at law or in equity despite any such prior waiver or
consent.
17.0 SEVERANCE
If any provision of this Agreement or the accompanying Schedule(s) is
held to be void, illegal, unenforceable, or otherwise in conflict with the law
governing this Agreement, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the parties in
accordance with applicable law, and the other provisions shall remain in full
force and effect.
18.0 TAXES
The amounts payable to Thinking Tools under this Agreement are
exclusive of any taxes, however designated, levied or based on this Agreement or
the Services furnished by Thinking Tools hereunder, including, without
limitation, any personal property, sales and use taxes. SHL Systemhouse agrees
to pay and be responsible for all such taxes (excluding taxes based on Thinking
Tools' net income). SHL Systemhouse shall promptly reimburse Thinking Tools for
any such taxes which Thinking Tools pays directly.
19.0 SURVIVAL
Notwithstanding the termination of this Agreement, it is acknowledged
and agreed that the following provisions shall survive:
(a) Section 3.0 Fees and Payment
(b) Section 6.0 Property Rights
(c) Section 8.0 Confidentiality
(d) Section 10.0 Offers of Employment
(e) Section 11.0 Independent Contractors
(f) Section 13.0 Termination
(g) Section 14.0 Entire Agreement
(h) Section 15.0 Applicable Law
(i) Section 18.0 Taxes
(j) Section 20.0 Notices
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20.0 NOTICES
20.1 Any notices required or permitted to be sent under this Agreement
shall be sent by registered mail, return receipt requested or by express mail,
telecopy, or hand delivery to the address of the party in this Section. Notices
sent by registered mail shall be deemed effective on the third business day
following mailing and if sent by express mail, telecopied, or hand delivery,
shall be deemed effective on receipt.
20.2 Any notice required to be delivered to SHL Systemhouse shall
be sent to:
SHL Systemhouse Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
20.3 Any notice required to be delivered to Thinking Tools shall
be sent to:
Thinking Tools, Inc.
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0-000
Xxxxxxxx, XX XXX 00000
Attn: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
20.4 Either party may change its address and/or recipient for notices
by notifying the other party in accordance with this Section 20.
21.0 ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of Thinking Tools, its successors and assigns, and SHL Systemhouse's successors
and assigns permitted. Thinking Tools may not assign its rights or obligations
under this Agreement (including its rights under the Schedule(s)), without the
prior written consent of SHL Systemhouse.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
last date entered below:
THINKING TOOLS, INC.
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xx. Xxxx Xxxxx
Title: President
Date: March 17, 1995
SHL SYSTEMHOUSE, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xx. Xxxxx Xxxxxxx
Title: Director, Integration Methods
Date: 8 March 1995
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xx. Xxxx Xxxxxx
Title: President, Systems Integration
and Transformational Services
Date: 4/10/95
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