EXHIBIT 10.46
ARIS Corporation Professional Services Agreement
This Professional Services Agreement (the "Agreement") is between ARIS
Corporation ("ARIS") and Oregon Health Sciences University, ("Client").
1. Services
ARIS Corporation will provide to Client the Services specified on a standard
ARIS Work Order, ARIS Proposal or Client Purchase Order, under the terms of
this Agreement. Each Work Order, Proposal or Purchase Order shall specify the
Services and applicable fees, and will be governed by the terms of this
Agreement. To the extent that the terms and conditions of any ARIS Work Order,
Proposal (or any customer purchase order) entered into between the parties
conflict with or are inconsistent with the terms and conditions of the
Agreement, the terms and conditions of this Agreement shall control.
2. Fees for Services and Termination
Unless otherwise specified in the applicable Work Order, Proposal or
Purchase Order, Services shall be provided to Client on a time and material
basis ("T&M"). Rates must be specified on the attached Rate Structure or on a
standard Work Order or Proposal. If a dollar limit is stated in the applicable
Work Order, Proposal or Purchase Order, the limit shall be deemed an estimate
for Client's budgeting and ARIS' resource scheduling purposes; after the limit
is expended, ARIS will continue to provide the Services on a T&M basis if a
Work Order, Proposal or Purchase Order for continuation of the Services is
signed by the parties. Unless otherwise stated in a Work Order or Proposal,
any T&M Work Order or Proposal may be terminated by providing to ARIS 14 days
written notice of such termination.
3. Incidental Expenses
Unless otherwise stated in the Work Order, Client shall reimburse ARIS for
reasonable travel, communications, and out-of-pocket expenses incurred in
conjunction with the services, plus a 10% administrative fee for such expenses.
4. Invoicing and Payment
ARIS shall invoice Client semi-monthly, unless otherwise expressly specified
in a Work Order or Purchase Order. Charges shall be payable thirty (30) days
from the date of invoice and shall be deemed overdue if they remain unpaid
thereafter. All overdue invoices are subject to an interest charge of 1.5% per
month.
5. Taxes
The charges do not include taxes. If ARIS is required to pay any federal,
state, or local taxes based on the Services provided under this Agreement, the
taxes shall be billed and paid by Client; this shall not apply to taxes based
on ARIS' income.
6. Term
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This Agreement shall commence on its Effective Date. Either party may
terminate this Agreement at any time by providing the other party with at least
14 days written notice. Any Work Order outstanding at the time of termination
shall continue to be governed by this Agreement as if it had not been
terminated.
7. Warranty
ARIS warrants that the Services will be performed consistent with generally
accepted industry standards.
8. Limitations on Warranty
CLIENT MUST REPORT ANY DEFICIENCIES IN THE SERVICES TO ARIS IN WRITING
WITHIN THIRTY (30) DAYS OF COMPLETION OF THE SERVICES IN ORDER TO RECEIVE
WARRANTY REMEDIES. THE WARRANTY HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AS SET FORTH IN PARAGRAPH
9 OF THIS AGREEMENT.
9. Exclusive Remedy
For any breach of the above warranty, Client's exclusive remedy, and ARIS'
entire liability, shall be the reperformance of the Services. If ARIS is
unable to reperform the Services as warranted, Client shall be entitled to
recover the fees paid to ARIS for the deficient services. IN NO EVENT SHALL
ARIS BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM ANY
SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO CLAIMS FOR LOST
PROFITS OR OTHER ECONOMIC DAMAGES.
10. Relationship between the Parties
ARIS is an independent contractor; nothing in this Agreement shall be
construed to create a partnership, joint venture, or agency relationship
between the parties. Each party will be solely responsible for payment of all
compensation owed to its employees, as well as employment related taxes. Each
party will maintain appropriate worker's compensation for its employees as well
as general liability insurance.
11. Authority to Enter Into Agreement
Each party to this Agreement has the authority to enter into and form this
Agreement. The individuals signing the Agreement have the authority to act as
agents of their respective organizations. Each party acknowledges that they
have read this Agreement and will abide by it.
12. Force Majeure
Neither party will be considered to be in default of this agreement as a
result of events beyond their reasonable control. For purposes of this
Agreement, such acts shall include, but are not limited to, acts of God,
catastrophe, or other "force majeure" events beyond the parties' reasonable
control.
13. Assignment of Contract
The Client may not assign the Agreement or its responsibility for payments
to any organization, without written approval by ARIS. ARIS may not assign its
responsibilities for performance under the Agreement to any
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organization without written approval of the Client.
14. Hold Harmless; Indemnity
Client asserts it possesses all the rights and interests in the licensed
software necessary to enter into this agreement, and shall indemnify and hold
ARIS, its agents and employees harmless from any loss, damage or liability for
infringement of any United States patent right or copyright with respect to the
use of the licensed software; provided that Client is notified in writing
within ten calendar days of suit or claim against ARIS, that ARIS permits
Client to defend, compromise or settle said claim of infringement and give
Client all available information, assistance and authority to enable Client to
do so, provided ARIS fully observes all terms and conditions of this Agreement.
15. Confidentiality and Non-Disclosure
Except as legally required, the parties agree that neither party shall
directly or indirectly disclose or use any Confidential Information without
prior written permission from the other party.
"Confidential Information" means any type of confidential or proprietary
information or material disclosed to or known by the recipient of such
information ("Recipient") as a consequence of or through its relationship with
the party disclosing such information, and consisting of information conceived,
originated, discovered, or developed in whole or in part by Recipient, which is
not part of the public domain or otherwise generally available to the Recipient
from independent sources, including but not limited to information which
relates to research, development, trade secrets, know-how, inventions,
technical data, hardware, software, source codes, object codes, manufacture,
purchasing, accounting, engineering, marketing, merchandising and selling,
business labs or strategies, and information entrusted by third parties to the
party disclosing such information.
16. Nonsolicitation of Employees
During the period that this Agreement is in effect and for a period of
six (6) months after termination or expiration thereof, each party agrees not to
solicit for employment any technical or professional employees of the other
party assigned to work on the Project without the prior written approval of the
other party.
17. Insurance and Risk of Loss
The Client bears all responsibility for damages to their equipment and
facilities.
18. Survival of Rights
The rights and responsibilities of sections 14, 15, and 16 shall survive
the termination of this Agreement.
19. Severability
All provisions of this Agreement are severable and no provision hereof shall
be affected by the invalidity of any other such provision.
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20. Governing Law; Attorney's Fees; Venue
This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington. In the event of a dispute over this
Agreement, the prevailing party shall recover its reasonable attorneys' fees
and costs from the breaching party. Venue shall be in King County, Washington.
21. Entire Agreement
This Agreement constitutes the complete agreement between the parties and
supersedes all previous and contemporaneous agreements, proposals, or
representations, written or oral, concerning the subject matter of this
Agreement. Neither this Agreement nor a Work Order or Purchase Order may be
modified or amended except in writing signed by a duly authorized
representative of each party: no other act, document, usage, or custom shall
be deemed to amend or modify this Agreement, a Work Order, or Purchase Order.
It is expressly agreed that any terms and conditions of Client's purchase order
shall be superseded by the terms and conditions of this Agreement and the
applicable Work Order.
The Effective Date of this Agreement shall be December 5, 1996.
The following individuals, by signing agree to enter into this consulting
agreement and to be bound by its provisions.
ARIS Corporation Client
Authorized Signature:_______________________________ Authorized Signature:_______________________________
Name: ____________________________________________ Name: ____________________________________________
Title: ____________________________________________ Title: ____________________________________________
[ARIS Corp logo]
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