Professional Services Agreement

THIS PROFESSIONAL SERVICES AGREEMENT (COLLECTIVELY WITH ANY DOCUMENTS INCORPORATED BY REFERENCE, THE “AGREEMENT”) IS A LEGAL CONTRACT BETWEEN THE ENTITY ENTERING INTO THIS AGREEMENT (“CUSTOMER”) AND CRITICALASSET, INC. A DELAWARE CORPORATION WITH OFFICES LOCATED AT 1007 N SEPULVEDA BLVD, #82, MANHATTAN BEACH, CA 90266, USA (“CRITICALASSET”) (EACH A “PARTY” OR COLLECTIVELY THE “PARTIES”). THIS AGREEMENT GOVERNS THE PROVISION OF PROFESSIONAL SERVICES BY CRITICALASSET.

THE EFFECTIVE DATE OF THIS AGREEMENT SHALL COMMENCE UPON CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT AND COMPLETION OF THE CUSTOMER REGISTRATION PROCESS ON CRITICALASSET’S WEBSITE AND/OR BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS AGREEMENT BY REFERENCE. UPON CRITICALASSET’S ACCEPTANCE OF CUSTOMER’S REGISTRATION OR BY EXECUTING AN ORDER FORM OR PROPOSAL, CUSTOMER (“YOU”) CONSENT AND AGREE, ON BEHALF OF YOURSELF AND THE CUSTOMER ENTITY, TO BE BOUND BY THIS AGREEMENT. FURTHER, YOU AND CUSTOMER REPRESENT THAT (I) YOU HAVE THE AUTHORITY TO LEGALLY BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (II) YOU HAVE READ THESE TERMS AND CONDITIONS, (III) HEREBY AGREE ON BEHALF OF CUSTOMER TO COMPLY AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (IV) THAT CUSTOMER IS A SOPHISTICATED ENTITY, AND HAS HAD SUFFICIENT OPPORTUNITY TO CONSULT WITH COUNSEL, PRIOR TO AGREEING TO THESE TERMS AND SUBMITTING ITS REGISTRATION.  IF YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER, OR IF YOU OR CUSTOMER DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE PRODUCTS OR SERVICES.

Now, therefore, in consideration of the mutual promises and conditions contained in this agreement the Parties agree as follows:

1. Professional Services

1.1 Professional Services

The Parties anticipate that Customer may desire to engage CriticalAsset to perform certain services which may include by way of example, plan scanning, data collection, data onboarding and running reports. Subject to the terms and conditions set forth in this Agreement, CriticalAsset shall use commercially reasonable efforts to perform the services as set forth in statements of work or Services Order(s) (as defined below) separately executed by the Parties (the “Professional Services”).

1.2 Issuance of Services Order(s)

The Customer may request that CriticalAsset perform services by delivering a written request describing the proposed Professional Services (each, a “Services Order(s)”).  Such Services Order(s) may be entered online or by execution of a separate document, and shall describe services and the fees, costs and expenses payable by the Customer to CriticalAsset in connection with the performance of such services. Until its acceptance of the proposed Services Order(s), CriticalAsset shall have no obligation to perform the proposed Professional Services, provided that this Agreement shall remain in full force and effect in  accordance with Section 8.1. The Parties may from time to time enter into additional Services Order(s). Each Services Order(s), regardless of whether it relates to the same subject matter as any previously executed Services Order(s), shall become effective upon execution (online, electronic or otherwise) by authorized representatives of both Parties. 

1.3 Modifications

Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular Services Order(s) by request to CriticalAsset specifying the desired modifications. CriticalAsset shall, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the Services Order(s). If accepted in writing by Customer, such modifications in the Services Order(s) shall be performed under the terms of this Agreement.  Modifications in any Services Order(s) shall become effective only when a written ‘Change Request’ is executed by authorized representatives of both Parties.

2. Personnel

2.1 Suitability

CriticalAsset shall assign employees and subcontractors with qualifications suitable for the work described in the relevant Services Order(s). CriticalAsset may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors. 

2.2 Customer Responsibilities

Customer shall make available in a timely manner at no charge to CriticalAsset all technical data, computer facilities, programs, files, documentation, plans, asset data, asset locations, test data, sample output, or other information and resources of Customer required by CriticalAsset for the performance of the Professional Services as specified in the applicable Services Order(s).  Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer shall provide, at no charge to CriticalAsset, office space, services and equipment (such as copiers, fax machines and modems) as CriticalAsset reasonably requires to perform the Professional Services.

2.3 Non-solicitation

Customer acknowledges and agrees that the employees and consultants of CriticalAsset who perform the Professional Services are a valuable asset to CriticalAsset and are difficult to replace.  Accordingly, Customer agrees that, during the term of this Agreement, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any CriticalAsset employee or consultant who performs any of the Professional Services.  It is further agreed that in the event of violation of this restriction, as a remedy CriticalAsset shall be to require Customer to make payment, as liquidated damages and not as a penalty, in an amount equal to the individual’s then current annual salary (or in the case of a consultant, the amount of fees paid for such consultant in the past twelve (12) months), which would be payable within thirty (30) days of the start date of the employee or consultant.

3. Fees

3.1 Fees Payable

In consideration for the performance of CriticalAsset’s obligations under this Agreement, Customer shall pay to CriticalAsset, without offset or deduction, certain fees, in such amounts as may be determined by reference to a Services Order(s) executed by both Parties.  Unless otherwise provided in such Services Order(s) all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by CriticalAsset with respect thereto. 

3.2 Disputed Charges

Customer must notify CriticalAsset in writing of any dispute or disagreement with invoiced charges within seven (7) days after the date of invoice.  Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced after the expiration of such time period.

3.3 Late Charges

CriticalAsset reserves the right to charge, and Customer agrees to pay, a late charge equal to one and one-half percent (1.5%) per month on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance.

3.4 Taxes

All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges.  Customer will be responsible for payment of all such taxes (other than taxes based on CriticalAsset’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services.  Customer will make all payments required hereunder to CriticalAsset free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on any payments hereunder to CriticalAsset will be Customer’s sole responsibility, and Customer will, upon CriticalAsset’s request, provide CriticalAsset with official receipts issued by the appropriate taxing authority, or such other evidence as CriticalAsset may reasonably request, to establish that such taxes have been paid.

4. Confidentiality

4.1 Ownership of Confidential Information

The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.  For purposes of this Agreement “Confidential Information” means any material or information relating to a Party’s research, development, products, product plans, services, customer lists, markets, software, developments, inventions, processes, formulas, technologies, designs, drawings, marketing, finances, or other business information or trade secrets that such disclosing Party treats as proprietary or confidential.  Without limiting the foregoing, the software and any databases (including any data models, structures, non-Customer specific data and aggregated statistical data contained therein) of CriticalAsset shall constitute Confidential Information of CriticalAsset.  Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.

4.2 Mutual Confidentiality Obligations

Each Party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.

4.3 Confidentiality Exceptions

Notwithstanding the foregoing, the provisions of Sections 4.1 and 4.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

5. Warranties and Limitations

5.1 Warranties

CriticalAsset represents and warrants that all Professional Services shall be provided in a professional and workmanlike manner, in accordance with industry standards. Customer represents and warrants that Customer has the right to provide to CriticalAsset any of Customer’s provided data, materials, or information provided hereunder and by doing so, does not violate the rights of any third party.

5.2 Disclaimer

EXCEPT AS PROVIDED FOR IN THIS AGREEMENT, THE PROFESSIONAL SERVICES, AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY CRITICALASSET ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND CRITICALASSET EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.  NO WARRANTY IS MADE BY CRITICALASSET ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.  CRITICALASSET DOES NOT WARRANT THAT THE PROFESSIONAL SERVICES OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.  CUSTOMER ACKNOWLEDGES THAT CRITICALASSET’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY.

5.3 Limitations

IN NO EVENT SHALL CRITICALASSET BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF CRITICALASSET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  EXCEPT FOR A BREACH OF SECTION 4, THE CUMULATIVE LIABILITY OF CRITICALASSET TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID TO CRITICALASSET BY CUSTOMER UNDER SECTION 3.1 DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

5.4 Essential Basis

The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.

6. Indemnification

6.1 CriticalAsset Indemnity

CriticalAsset shall, at its own expense, defend any suit or claim instituted against Customer and shall indemnify Customer against any award of damages and reasonable costs against Customer in a final judgment by a court of competent jurisdiction, or any amount in settlement or compromise, arising out of such suit or claim brought by a third party, arising out of CriticalAsset’s gross negligence or willful misconduct.

6.2 Customer Indemnity

Customer shall indemnify, hold harmless, and, at CriticalAsset’s option, defend CriticalAsset from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Customer’s breach of this Agreement.

6.3 Indemnity Procedures

The obligations of this Section 6 are conditioned upon the indemnifying Party receiving (i) prompt written notice of any claim; (ii) reasonable cooperation from the indemnified Party in the defense or settlement of the claim; and (iii) sole control of the defense of the claim and any settlement thereof; provided that the indemnifying Party shall not make any settlement admitting the other’s liability without its consent, not to be unreasonably withheld, conditioned, or delayed.

7. Proprietary Rights

Customer shall own any deliverable that embodies its Confidential Information to the extent that it embodies Customer’s Confidential Information.  Unless otherwise expressly agreed in any particular Services Order(s), except to the extent that the same constitutes or embodies Customer’s Confidential Information, ownership of all work product, developments, inventions, technology or materials provided under this Agreement shall be solely owned by CriticalAsset, subject to the usage rights granted to Customer under the relevant Services Order(s).

8. Terms; Termination

8.1 Term

This Agreement shall commence on the Effective Date and shall remain in effect until the earlier to occur of (a) completion of all outstanding Services Order(s) hereunder; or (b) termination in accordance with Section 8.2.  Notwithstanding the foregoing, this Agreement shall remain in effect for a period of not less than one (1) year from the Effective Date unless earlier terminated in accordance with Section 8.2.  Unless otherwise stated in the applicable Services Order(s), the term of each Services Order(s) shall last until performance thereunder is completed.

8.2 Termination for Breach

Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party.  Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based.  The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement shall terminate in the event that such cure is not made within such thirty (30)-day period.  Without limiting the foregoing, CriticalAsset may immediately terminate this Agreement upon written notice in the event that Customer becomes insolvent or enters bankruptcy during the term of this Agreement.

8.3 Termination of Individual Services Order(s)

Either Party may, at its sole option and for its own convenience, terminate any or all Services Order(s) in effect upon thirty (30) days prior written notice.  Upon such termination, the Parties shall inform each other of the extent to which performance has been completed through such date, and collect and deliver all work in process.  In the event of termination, the Parties agree to wind up their work in a commercially reasonable manner and to preserve and deliver items of value created prior to termination. CriticalAsset shall be paid for all work performed and expenses incurred through the date of termination.

8.4 Effect of Termination

Upon any termination of this Agreement, each Party shall (i) immediately discontinue all use of the other Party’s Confidential Information; (ii) delete the other Party’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; (iii) shall return to the other Party or, at the other Party’s option, destroy, all copies of such other Party’s Confidential Information then in its possession; and (iv) shall promptly pay all amounts due and remaining payable hereunder.

8.5  Survival

The provisions of Sections 3, 4, 5, 6, 7, 8.4, 8.5, and 9 will survive the termination of this Agreement.

9. Miscellaneous

9.1 Applicable Law

THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS.  CUSTOMER AGREES THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN THE STATE OF CALIFORNIA.

9.2 Force Majeure

CriticalAsset shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of CriticalAsset.  Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.

9.3 Notices

All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed to such address as that Party may have given by written notice in accordance with this provision.  All notices required by or relating to this Agreement may also be communicated by email, provided that the sender receives and retains confirmation of successful transmittal to the recipient.  Such notices shall be effective on the date indicated in such confirmation.  In the event that either Party delivers any notice hereunder by means of email transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.

9.4 Assignment; Delegation

Customer shall not assign its rights or delegate its obligations under this Agreement without CriticalAsset’s prior written consent, which consent may not be unreasonably withheld or delayed, and, absent such consent, any purported assignment or delegation by Customer shall be null, void and of no effect. This Agreement shall be binding upon and inure to the benefit of CriticalAsset and Customer and their successors and permitted assigns.

9.5 Independent Contractors

Customer and CriticalAsset acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.

9.6 Amendment

No amendment to this Agreement or any Agreement shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.

9.7 Waiver

No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought.  Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.

9.8 Severability

If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

9.9 Export

Each Party agrees not to export, directly or indirectly, any data acquired from the other Party or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations or the laws and regulations of any other applicable jurisdiction.

9.10 No Third Party Beneficiaries

The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns.  Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

9.11 Counterparts

This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.

9.12 Headings

The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.

9.13 Entire Agreement

This Agreement, and any relevant Services Order(s) referencing this Agreement, sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein.

9.14 Order of Precedence

In the event that a conflict is deemed to arise between the provisions of this Agreement and the provisions of any Services Order(s), the provisions of this Agreement shall govern.