Professional Services Agreement
SE-371 34 Karlskrona
including its subsidiary,
City Network Education Services GmbH
Karl Theuer Strasse 21
1. Technical Services in General
1.1. Engagement of Services
From time to time during the term of this Agreement, Customer may request services from City Network in accordance with the procedures established by City Network. Subject to the terms of this Agreement, City Network will use its good faith and commercially reasonable efforts to perform the services in a timely and professional manner. City Network will choose one or more of its employees, independent contractors, or partners (collectively, "Consultants") to perform the services. Customer will make its facilities and equipment available to City Network, including via remote internet access, when necessary.
1.2. Nature of Services
Services may be for technical support, consulting, architecture and design, installation and system configuration, performance optimization, systems administration, troubleshooting, or anything else needed in Customer’s computing environment, as directed by the Customer from time to time.
Customer will pay City Network a fee for Services rendered under this Agreement according to the rates and terms set forth in the applicable quote or Statement of Work.
2. Billable Time
All work of whatever nature done by a Consultant for the direct benefit of the Customer constitutes billable time. Such work includes, without limitation, orientation to the Customer’s problems and environment, establishing logins, monitoring, research, experimentation, consultations with other persons, composing emails, editing documentation, and drafting reports.
2.2. Billable Units
Billable time shall accrue as determined by City Network’s current published policies as regards minimum increment of billable time and rounding of billable time. Minimum charges apply to any task so identified on City Network's web site, or in the applicable quote or Statement of Work.
2.3. Notice of Rates
Rates and fees are available on City Network's web site in the product information page for Professional Services, at https://www.citycloud.com/professional-services/.
2.4. Reports on Billable Time
City Network shall provide periodic reports ("timesheets") of actual time spent performing services. These reports shall itemize in reasonable detail dates, number of hours spent, and a brief description of services rendered.
3. Scheduling of Services
3.1. Advance Scheduling
All non-emergency tasks are required to be scheduled with City Network at least one full business day in advance (24 business hours). Tasks are accepted on a first come, first served basis. City Network reserves to itself all final decisions on Consultant work schedules.
3.2. Scheduling & Rates
City Network reserves the right to charge a 3-hour minimum for any professional services delivered remotely, if not scheduled more than one full business day in advance.
City Network further reserves the right to charge a 2-day minimum for any professional services delivered on-site, if not scheduled more than five business days in advance.
Emergencies are any request for work which has not been pre-scheduled with City Network at least one full business day (24 business hours) in advance. City Network will use its good faith and commercially reasonable effort when helping with emergencies.
5.1. Late Payments
Any payment not made when due shall accrue late payment fees in the amount of 1.5% per month or the highest amount allowable by law, whichever is lower, such interest to accrue on a daily basis after as well as before any judgment relating to collection of the amount due; late fees shall not constitute an election of, or City Network’s exclusive, remedy. Late payment shall entitle City Network to terminate this Agreement for cause, immediately. Customer agrees to pay any and all legal fees, collection fees or other expenses incurred by City Network due to Customer’s failure to pay any amounts due.
All rates on City Network's web site are exclusive of local, state, federal and international sale, value added, excise and other taxes and duties of any kind. Customer agrees to pay any and all taxes and duties arising out of or in connection with this Agreement, other than taxes levied or imposed based upon City Network’s net income. If Customer is required to withhold an amount for taxes before remitting payment to City Network, City Network may gross up its rates and the amount due in an original or amended invoice to ensure that the net amount actually received by City Network equals the gross amount due.
5.3. Unpaid Work
If any fees or expenses required to be paid in advance are not made, City Network reserves the right to immediately suspend or discontinue any or all services to Customer until payment has been received, regardless of the technical circumstances of the Customer at the time.
5.4. Disputed Billings
Any Customer claims, including (without limitation) disputes in connection with billings, work performance or similar concerns, must be presented to City Network in writing no later than 90 days after the applicable invoice date or the date the applicable work was performed by City Network, whichever is later. Failure to timely present a claim in accordance with this section shall constitute a waiver of that claim.
6. Relationship of Parties
6.1. Authority to Perform and Engage
Each party warrants that it has the right and power to enter into this Agreement and an authorized representative has executed this Agreement.
6.2. Work Assignments
Specific Work Assignments may be agreed to define the type of billing structure and specific hourly rates applicable to work done. Such Work Assignments may be executed in writing and signed by authorized representatives of both parties.
Either party may terminate this Agreement at any time, with or without cause, upon fifteen (15) days' prior written notice to the other. City Network shall be paid in full for all Services rendered and reimbuseable expenses incurred prior to the effective date of termination or expiration. If at the initiative of City Network this Agreement is terminated before expiration, any amounts pre-paid for unused hours shall be refunded to the Customer.
The rights and obligations contained in
Section 6.7, “Non-Solicitation”, Section 7.1, “License (New Software Works)”, Section 7.2, “License (Modified & Pre-Existing Works)”, Section 8.2, “Restrictions/Obligations”, Section 9.3, “Limitation of Liability” and Section 10, “General Agreement Conditions” will survive any termination or expiration of this Agreement.
6.5. Independent Contractor Relationship
The parties are independent contractors. Nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Customer and City Network or its Consultant(s). City Network is not the agent of Customer or vice versa; neither party is authorized to make any representation or commitment on behalf of the other. Neither party is or will be entitled to any of the benefits that the other party may make available to its employees, such as group insurance, profit sharing or retirement benefits.
6.6. Work by Subcontractor Partners of City Network
City Network may utilize selected third-party subcontractor partners of City Network for specialized technical services, if needed, when approved by the Customer. Rates are to be the same as provided under this agreement for work done directly by City Network. City Network will handle all administration and billing. City Network shall be liable for all acts, omissions, or work performed by the partner to the same extent as if the work had been performed by City Network itself under this Agreement.
Without the other party’s express written consent, neither party shall, during the Term and for one (1) year after its expiration or termination, solicit for hire, as an employee or independent contractor, any of the other party’s employees, contractors or subcontractors. Notwithstanding the foregoing, nothing in this Agreement shall prevent either party from hiring any person who responds to a general solicitation not personally directed to him.
6.8. Acceptance As Customer
City Network may decline to accept as a customer, at its sole discretion, any party which it believes is engaged in unlawful activities, or which may conflict with its prior customer relationships, or which it determines is otherwise incompatible with City Network’s business.
6.9. Use of the Customer as a Reference
During the term of this Agreement, the Customer agrees that City Network may use the Customer in good faith as a reference in marketing materials, web sites, discussions, case studies and white papers. After termination or expiration of this Agreement, City Network’s use of the Customer as a reference may continue indefinitely unless City Network is notified otherwise in writing.
6.10. No Endorsement of Customer
The Customer may not claim or otherwise state that City Network or any of its employees or contractors have endorsed Customer’s technology, products, services or business endeavors without prior written permission in writing from the CEO of City Network; such permission shall be in the sole and absolute discretion of City Network.
7. Software Ownership & Licenses
7.1. License (New Software Works)
Subject to payment hereunder, all wholly original software programs or products conceived, written, or created for the Customer by City Network in the performance of the Services that do not constitute or include derivative or collective works, customizations, enhancements or new modules or components of existing software or applications (the "Assigned Work Product") shall be the sole and exclusive property of the Customer, and all right, title and interest to such Assigned Work Product shall be assigned to Customer. To the extent allowable under applicable law, Assigned Work Product shall constitute a "work made for hire" under copyright law. If ownership is not able to be vested with the Customer for any reason, City Network hereby grants to Customer a nonexclusive, royalty free, worldwide, perpetual license to use the Work Product and to copy, modify, translate, reverse engineer, decompile, disassemble, create derivative works of and use the Work Product to build any product.
7.2. License (Modified & Pre-Existing Works)
Subject to payment hereunder, for all software programs or products that constitute or include derivative or collective works, customizations, enhancements or new modules or components of existing software or applications created by City Network, including (without limitation) existing open source tools or utilities and any pre-existing works of City Network, (the "Licensed Work Product"), City Network grants to Customer a limited, non-exclusive, royalty-free, worldwide license during and after the term to reproduce, modify, distribute, transmit, perform, display and otherwise use such Licensed Work Product (the "City Network License"). Notwithstanding the foregoing, to the extent that any Licensed Work Product is based on, derived from or otherwise subject to a third-party work or license, or any open source license, or constitutes a customization, enhancement or new module or component for software available under any open source license, such Licensed Work Product shall be subject to, and is hereby licensed to Customer pursuant to, the terms and conditions of the license that applies to such pre- existing work, even if that license is more restrictive than the City Network License; Customer agrees to consent to and comply with those license terms and conditions at all times. For example, if City Network has been engaged to fix bugs or otherwise modify or create derivatives of code that is part of the OpenStack Infrastructure-as-a-Service Platform and licensed pursuant to a version of the Apache Software License (ASL), such bug fixes or other modifications shall be subject to the applicable version of the ASL, not the City Network License.
8. Mutual Non-Disclosure
"Confidential Information" is any information disclosed by one party (the "Disclosing Party") to the other (the "Receiving Party") in connection with the Services, and clearly marked as confidential or identified in writing to the Receiving Party as confidential at the time of disclosure.
The Receiving Party shall:
- only disclose the other party’s Confidential Information to employees or contractors with a need to know or who have access to City Network’s internal web-based systems and tools;
- not disclose Confidential Information to any third party without Disclosing Party’s prior consent; and
- not use or reproduce Confidential Information except as required to accomplish the purpose discussed.
However, the Receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order. Customer acknowledges that City Network will store Confidential Information from Customer on City Network’s secure internal Wiki, Eventum, and other computer servers, which may be physically located in multiple nations, and that Contractors may be from multiple nations of citizenship and residence. The provisions of this Section shall survive for one (1) year after expiration or termination of the Agreement.
The terms of Section 8.2, “Restrictions/Obligations” shall not be construed to limit either party’s right to independently develop or acquire products or services without use of the other party’s Confidential Information. The Disclosing Party acknowledges that the Receiving Party may currently, or in the future, be developing information internally, or receiving information from other parties, that is similar to the Confidential Information, and/or working with a competitor of the other party; either Receiving Party is free to do so, provided that it maintains the confidentiality of the Confidential Information of the Disclosing Party.
All Confidential Information shall remain the property of the Disclosing Party and shall be returned (or, at the Disclosing Party’s option, destroyed) within ten (10) business days upon written request.
However, the parties acknowledge that copies of Confidential Information deleted from a Receiving Party’s systems may remain in a backup file until such a system is overwritten. Except to the extent of the copyright license described in Sections under the header Software Ownership & Licenses, no rights or licenses to trademarks, inventions, copyrights or patents are implied or granted under this Agreement.
9. Safety & Liability
9.1. Data Backup
Customer acknowledges that it is Customer’s sole responsibility at all times, including specifically during all Services performed by City Network, to protect and maintain an up-to-date and restorable backup of any and all files, utilities, software and other systems of Customer.
To the extent permitted by the parties' respective computer system infrastructures, City Network agrees to abide by written security standards delivered by Customer to City Network.
9.3. Limitation of Liability
Except with respect to Section 6.1, “Authority to Perform and Engage”, neither party will be liable for special, incidental, indirect, exemplary or consequential damages or lost profits arising out of or in connection with this Agreement (however arising, including negligence, and damages resulting from impaired or lost data, software or computer failure or any other cause), even if it has been advised of the possibility of such damages. To the extent permitted by applicable law and notwithstanding any other provision of this Agreement, except in the event of a breach of Section 6.1, “Authority to Perform and Engage” or a willful breach of Section 8, “Mutual Non-Disclosure”, in no event will either party be liable to the other party in an amount greater than the amounts paid or payable by Customer to City Network hereunder during the most recent twelve-month period. This limitation of each party’s liability is cumulative, with all payments for claims or damages in connection with this Agreement being aggregated to determine satisfaction of the limit. The existence of one or more claims will not enlarge the limit. Both parties understand and agree that the remedies and limitations herein allocate the risks between the parties as authorized by applicable laws. The fees herein reflect, and are set in reliance upon, this allocation of risk and the exclusion of consequential and other damages set forth in this Agreement.
9.4. Representations and Warranties
City Network represents and warrants that all Services will be performed in a timely, professional and workmanlike manner. Except as expressly set forth in this section (Section 9.4, “Representations and Warranties”), to the extent permitted by applicable law, City Network makes no warranties whatsoever in connection with the services or any work product provided under or in connection with this Agreement, and City Network expressly disclaims, and Customer expressly waives, all warranties, whether express or implied, including (without limitation) warranties of merchantability, fitness for a particular purpose, non-infringement, system integration, and accuracy of informational content.
10. General Agreement Conditions
10.1. Term and Renewal
This Agreement has an initial one (1) year term as of the Effective Date and automatically extends by one (1) year any time a Work Assignment is agreed upon that this Agreement applies to, unless terminated by either party as specified in Section 6.3, “Termination”.
10.2. Successors and Assignees
This Agreement may not be assigned by either party without the other party’s consent, and any such attempted assignment shall be void and of no effect. However, either party may assign this Agreement to the successor-in-interest of a merger, acquisition or sale of substantially all of the party’s assets, provided that the assigning party provides written notice thereof to the other party within thirty (30) days after the effective date of such assignment. Subject to the foregoing, this Agreement will be for the benefit of each party’s successors and assignees, and will be binding on each party’s assignees.
All breach-related notices permitted or required under this Agreement shall be in writing and shall be delivered by recognized postal or courier services who provide delivery confirmation. All other notices may be sent by email with notice deemed given upon acknowledgement of receipt by a reply email.
10.4. Governing Law
This Agreement shall be governed in all respects by the laws of the Sweden. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Any claim, whether based on agreement, tort or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or relating to this Agreement, including the interpretation, performance, breach or termination thereof, shall be exclusively and finally resolved by arbitration. The arbitration shall be conducted in the English language by a single arbitrator, and every person named on all lists of potential arbitrators, shall be a neutral and impartial lawyer with excellent academic and professional credentials
- who has practiced law for at least ten (10) years, with experience in the field of software development and distribution and intellectual property law, and
- who has had experience, and is generally available to serve, as an arbitrator.
The arbitrator shall be bound by the provisions of this Agreement and base the decision on applicable law and judicial precedent, shall include in such decision the findings of fact and conclusions of law upon which the decision is based, and shall not grant any remedy or relief that a court could not grant under applicable law. The arbitrator’s decision shall be final and binding upon the parties, and shall not be subject to appeal. Notwithstanding the foregoing, either party may enforce any judgment rendered by the arbitrator in any court of competent jurisdiction. In addition, the arbitrator shall have the right to issue equitable relief, including (without limitation) preliminary injunctive relief.
Arbitration shall be conducted in Stockholm, Sweden in accordance with the Rules of Arbitration of the International Chamber of Commerce.
10.6. English Language
The parties have agreed to execute this Agreement and provide all services in the English language. Any action brought under this Agreement shall be conducted in the English language.
10.7. Force Majeure
No party is liable for failure to perform the its obligations if such failure is as a result of force majeure, including fire, flood, earthquake, storm, hurricane or other natural disaster, war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity or telephone service, or any causes beyond the reasonable control of City Network. No party is entitled to terminate this Agreement under Section 6.3, “Termination” in such circumstances.
In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, such as with respect to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it to the minimum extent necessary, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
The waiver by either party of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any other or subsequent or preceding breach. No waiver by either party of any right under this Agreement shall be construed as a waiver of any other right.
10.10. Entire Agreement
Unless explicitly specified otherwise in a separate agreement between the parties, or in a City Network Statement of Work or price quote, this Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter, including (without limitation) any non-disclosure agreement that the parties may have signed prior to the Effective Date.
The terms of this Agreement will govern all Services undertaken by City Network for Customer; any terms contained in documents provided by Customer which are inconsistent with this Agreement are invalid. No modification of or amendment to this Agreement or Work Assignment(s), nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by authorized representatives of both parties. All Customer documents, whether signed or unsigned, including purchase orders, shall not be given any effect which is inconsistent with this Agreement unless this provision is specifically referred to and waived by City Network in writing.