Professional Services

RETAINING CONCEPT INTERACTIVE INC. FOR THE IMPLEMENTATION OF THE CONCEPT SUITE SOLUTION


THIS AGREEMENT is made as of (but if no specific date is inserted, the date of this Agreement shall be the date of the execution and delivery of the Schedule A between the parties therein that references its attachment as Schedule A to the Customer Agreement found at http://www.schoolbundle.ca/062017-agreement/customer-agreement.html

BETWEEN:

(but if no specific name is inserted, the Customer Name shall be the party named as the Customer in the said Schedule A between the parties therein that references its attachment as Schedule A to the Customer Agreement found at http://www.schoolbundle.ca/062017-agreement/customer-agreement.html (the "Customer")

- and -

CONCEPT INTERACTIVE INC.,

a corporation incorporated pursuant to the laws of the Province of Ontario, Canada ("Concept")
WHEREAS:
  1. A. Concept and the Customer have executed and delivered or are deemed to have executed and delivered a Customer Agreement in relation to the implementation by the Customer of the Concept Suite Solution, all of the provisions of which Customer Agreement shall apply to and be incorporated by reference into this Agreement; and
  2. B. The Customer wishes to retain Concept to carry out certain work and services in relation to the Concept Suite Solution, all as described in and subject to the terms below;
    NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby irrevocably acknowledged, the parties agree as follows:

1. DEFINITIONS

Capitalized terms used in this Agreement or in any Schedule to this Agreement, except as specifically defined herein, shall have the respective meanings ascribed to them in the Customer Agreement between the parties. In this Agreement and in any Schedule or Exhibit to this Agreement, the following words have the following meanings:
  1. 1.1 “Change Order Request” has the meaning ascribed in Section 3.7.

  2. 1.2 "Customer Agreement” means the duly executed Customer Agreement, or the Customer Agreement that is deemed to have been duly executed, between Concept and the Customer in relation to the Concept Suite Solution, and if there is no such duly executed agreement and no such agreement that is deemed to have been duly executed, shall be deemed to mean the form of customer agreement in general use by Concept for the Concept Suite Solution as at the date of this Agreement.

  3. 1.3 “Deliverable” or "Deliverables" has the meaning ascribed in each Statement of Work.

  4. 1.4 “Delivery Certificate” has the meaning ascribed in Section 5.1.

  5. 1.5 "Development Project" means and includes the Project Work and services described in all Statements of Work relating to the design, testing and production of Deliverables.

  6. 1.6 “Milestones” has the meaning ascribed in Section 3.8.

  7. 1.7 “Phase” has the meaning ascribed in Section 3.5.

  8. 1.8 “Plan of Development” has the meaning ascribed in Section 3.4.

  9. 1.9 “Project Coordinator” has the meaning ascribed in Section 3.1.

  10. 1.10 “Project Documents” in addition to what is provided in the Customer Agreement, includes each Statement of Work under this Agreement.

  11. 1.11 "Project Work" means and includes the work and services, as well as the Deliverables, specified to be provided to the Customer by Concept in each Statement of Work.

  12. 1.12 "Specifications" has the meaning ascribed in Section 3.4.

  13. 1.13 "Statement of Work" means and includes, in relation to the Project Work to be provided by Concept to the Customer pursuant to this Agreement, each Statement of Work executed by the parties and all services to be provided by Concept herein and therein, including each subsequent Statement of Work executed by the parties and which shall be attached as a consecutively numbered Exhibit to Schedule A to this Agreement and which thereupon shall be governed by all of the provisions of this Agreement.

  14. 1.14 "Statement of Work Request" has the meaning ascribed in Section 2.2.

  15. 1.15 “Technical Coordinator” has the meaning ascribed in Section 3.3.

  16. 1.16 “Testing” has the meaning ascribed in Section 5.4.

2. SERVICES, STATEMENT(S) OF WORK

  1. 2.1 Services/Initial Statement of Work. The initial Statement of Work, when executed by the Customer and Concept, contains details of the Project Work initially to be undertaken hereunder by Concept for the Customer. A copy of the initial Statement of Work shall be attached hereto as Schedule A and numbered as Exhibit 1.

  2. 2.2 Statement of Work Requests for Additional Services. Each request by the Customer for additional Project Work or for new development work additional to the Development Project shall be set forth in writing in a “Statement of Work Request”. The parties each shall endeavour in good faith to reach agreement on the scope of Project Work in each Statement of Work Request and the Fees relating thereto. Upon agreement between the parties regarding all of the terms and scope of Project Work involved in a Statement of Work Request, such Statement of Work Request shall be executed by both parties and shall become a new Statement of Work hereunder, and shall be attached and numbered as a consecutive Exhibit to Schedule A. Each new Statement of Work, when executed by the parties, is sufficient authorization for the implementation by Concept of the Project Work referred to therein.

  3. 2.3 No Commencement of Project Work. Until execution of a Statement of Work by both parties, Concept shall not commence any work pursuant to the applicable Statement of Work Request.

  4. 2.4 Priority of Project Documents. In the event of any conflict or inconsistency between the provisions of a Statement of Work and the provisions of this Agreement, the provisions of this Agreement shall supersede and prevail. The provisions of this Agreement shall apply to and be incorporated by reference into every executed Statement of Work.

3. DEVELOPMENT COORDINATION

  1. 3.1 Appointment of Project Coordinators. Each party shall designate and notify the other party of an individual appointed by it to act on its behalf as its "Project Coordinator" herein. Each Project Coordinator will represent the interests of the party that appointed him or her hereunder. The Project Coordinators shall communicate with each other on a regular periodic basis to ensure the smooth implementation of the Project Work and the coordination of activities hereunder between the parties. Promptly upon appointment, the Project Coordinators shall establish contact with each other and mutually develop guidelines for completing the Project Work. Each party agrees to make every reasonable attempt to maintain consistency of its appointed Project Coordinator and its Development Project staff throughout the Development Project, but either party may replace its Project Coordinator and members of its said staff at any time and thereupon shall promptly give written notice to the other party of any such replacement, and shall on a best efforts basis attempt to provide not less than two (2) weeks prior written notice of the pending replacement.

  2. 3.2 Functions of Project Coordinators. The Project Coordinators shall be the primary contacts on a day to day basis between the parties relating to implementing the Development Project. The Project Coordinators shall arrange all non-technical meetings between the parties and shall be the primary points of contact relating to the progress made and decisions to be made in respect of implementing day to day work under the Development Project. Each of the Project Coordinators shall be responsible for communicating the progress of the Development Project to the party by whom he or she is appointed.

  3. 3.3 Technical Coordinators. Each party further shall designate and notify the other party of an individual with an appropriate technical background appointed by it to act on its behalf as its "Technical Coordinator". Each Technical Coordinator will represent the interests of the party that appointed him or her hereunder. The Technical Coordinators shall communicate with each other on a regular periodic basis regarding technical issues involved to ensure the smooth technical implementation of the Project Work and the coordination of related activities hereunder between the parties. Each party agrees to make every reasonable attempt to maintain consistency of its appointed Technical Coordinator and technical project staff throughout the Development Project, but either party may replace its Technical Coordinator and members of its said technical staff at any time and thereupon shall promptly give written notice to the other party of any such replacement, and shall on a best efforts basis attempt to provide not less than two (2) weeks prior written notice of the pending replacement. The Project Coordinator and the Technical Coordinator designated by a party may be one and the same individual.

  4. 3.4 Specifications and Plan of Development. Following the execution by the parties of a Statement of Work, the Project Coordinators and Technical Coordinators shall communicate and meet if and when necessary to further define the precise scope of work required and to develop and agree upon detailed final specifications for the Project Work under such Statement of Work (the "Specifications") and a plan of development (the "Plan of Development").

  5. 3.5 Plan of Development, Phases. The Plan of Development referred to in the preceding Section shall include, at a minimum, a description of the various phases (each a "Phase") involved in the Development Project, a description of the Milestones (as defined in Section 3.8) to be achieved at each Phase, an allocation of tasks for each Phase and a listing of items and input to be provided by the Customer for each Phase, a definition of the Deliverables for each Phase (as described in each Statement of Work) and such other matters deemed necessary or prudent by the Project Coordinators. The Project Coordinators shall periodically review the Plan of Development and agree upon any necessary revisions thereto.

  6. 3.6 Failure to Agree on Specifications. In the event that the parties cannot agree upon the Specifications after execution of the applicable Statement of Work, either party upon notice in writing to the other party shall be entitled to suspend the work under that applicable Statement of Work until the parties, acting reasonably, arrive at a resolution. Concept shall issue an invoice to the Customer for all work performed by Concept up to the date of suspension that remains unbilled on such Statement of Work. Upon delivery to or by Concept of the notice of suspension, Concept shall suspend all further work under the applicable Statement of Work.

  7. 3.7 Changes to Statements of Work and Specifications/Change Order Requests. The parties acknowledge that from time to time and after work has begun on the Development Project, or after the execution of a Delivery Certificate for applicable Deliverables, either party may request changes to a Statement of Work and/or Specifications or a new feature or service. In the event that either party desires a change to a Statement of Work or to any Specifications or requests a new feature or service, it shall issue a "Change Order Request" in writing to the other party, substantially in the form attached hereto as Schedule B. A Change Order Request shall describe the desired changes to the Statement of Work and/or Specifications or the new feature or service in detail. The parties each shall endeavour in good faith to reach agreement on the requested changes and the Fees relating thereto, and the effect on Milestones, scheduling and deadlines. Upon agreement between the parties regarding all of the terms and scope of the Change Order Request, such Change Order Request, as amended if applicable, shall be executed by both parties and shall thereupon be deemed to amend the applicable Statement of Work and/or Specifications, and shall be attached to the relevant Exhibit to Schedule A. Such executed Change Order Request is sufficient authorization for the implementation by Concept of the Project Work referred to therein.

  8. 3.8 Project Timetable, Milestones and Scheduling. The Project Coordinators and Technical Coordinators of the parties shall mutually establish and set out in writing an estimated timetable for achievement of milestone goals at each Phase of the Development Project (the "Milestones"). Concept shall not be in default for failure to meet any such Milestones provided that the overall Development Project is proceeding in a reasonable fashion and Concept is substantially achieving Project objectives in a reasonable amount of time. Concept shall not be held responsible in the case of an Event of Force Majeure, or for delays caused by the Customer or the Customer’s own systems or hardware from time to time. Concept shall make reasonable efforts to keep the Customer informed of factors that may lead to delays to the Development Project, such as labour shortages, technical difficulties, competing projects for the Customer or others, mechanical problems and other factors, and shall not be in default due to such delays.

  9. 3.9 Termination of Statement of Work. The Customer may terminate any Statement of Work before it is completed by giving Concept not less than thirty (30) days prior written notice of termination specifying which Statement of Work so terminates. That Statement of Work shall terminate upon the expiration of such notice period. Upon receiving notice of any early termination of a Statement of Work, Concept shall, unless otherwise agreed by the parties, immediately cease work under that Statement of Work. Notwithstanding the foregoing, each other Statement of Work not yet completed at the date of termination of a specific Statement of Work shall, provided that it is not dependent upon the terminated Statement of Work, continue in effect and this Agreement and the other Project Documents shall continue in effect in accordance with their terms.

  10. 3.10 Invoicing on Termination of Statement of Work. Upon termination of any Statement of Work before it is completed, Concept shall issue an invoice to the Customer for all work performed by Concept up to the date of termination that remains unbilled on such Statement of Work. If the party terminating the Statement of Work is the Customer, such invoice shall also include an early termination fee equal to 25% of all remaining Fees that would otherwise be billed and owing from the time of termination to the completion of the Statement of Work being terminated. Such invoice shall be due and payable in accordance with the provisions of the Customer Agreement. Notwithstanding any such termination, Fees payable under each of the other Project Documents shall remain due and payable in accordance with the respective provisions of each such agreement.

4. INVOICING AND FEES

  1. 4.1 Project Work Pricing and Invoicing. Each Statement of Work and Change Order Request shall set out the Fees and other amounts payable by the Customer for the Project Work to be undertaken under that Statement of Work. Concept shall deliver to the Customer written invoices for the Fees and other amounts due under each Statement of Work in accordance with the terms of each such Statement of Work and this Agreement. The Customer agrees to pay to Concept all such invoices for such Fees and other amounts payable to Concept in accordance with the provisions of the Customer Agreement.

  2. 4.2 Project Expense Reimbursement. The Customer shall reimburse Concept for all reasonable expenses incurred by Concept in undertaking the Project Work. The parties shall use their reasonable efforts to estimate such expenses when creating each Statement of Work, provided that no such expenses shall be incurred by Concept at any time without the Customer's prior written consent. Concept shall deliver to the Customer written invoices for such expenses, accompanied by receipts or other supporting documentation (or copies thereof), and the Customer agrees to pay to Concept all such invoices for such expenses in accordance with the provisions of the Customer Agreement.

  3. 4.3 Verification Records. Concept shall maintain such reasonable accounting, time, and other records in order that the Customer may verify any Fees and other amounts invoiced under any Statement of Work where such records are relevant in the determination of such Fees or other amounts. Upon delivery by the Customer to Concept of a written dispute of any Statement of Work invoice within one (1) year from the date of such invoice, where the Fees and other amounts are based on accounting, time and other records of Concept, Concept promptly upon request shall make available to the Customer copies of its records that are relevant to support the invoice that is disputed.

5. DELIVERY, TESTING AND ACCEPTANCE

  1. 5.1 Delivery of Deliverables. Upon completion of some or all of the Deliverables described in each Statement of Work, Concept shall notify the Project Coordinator appointed by the Customer of the intended delivery of such Deliverables. The Project Coordinators for the parties shall then arrange the logistics of making delivery and the demonstration of such Deliverables to the Customer (as described in the Statement of Work). Upon delivery and demonstration of such Deliverables to the Customer, Concept shall prepare and deliver to the Customer by email a "Delivery Certificate" in the form attached as Schedule C setting out the applicable Deliverables and related Milestones. The Customer shall within five (5) Business Days of receipt of a Delivery Certificate execute and deliver such Delivery Certificate to Concept by email, on which the Customer shall indicate either Full Acceptance or Non-Acceptance of such Deliverables. In the event that the Customer fails to execute or deliver the Delivery Certificate to Concept by email with its indication of either Full Acceptance or Non-Acceptance of such Deliverables within the said five (5) Business Days, the Customer shall be deemed to have confirmed its Full Acceptance of such Deliverables and the provisions of Section 5.2 shall apply.

  2. 5.2 Full Acceptance of Deliverables. In the event that the executed Delivery Certificate from the Customer indicates Full Acceptance of the applicable Deliverables, or the Customer is deemed to have confirmed its Full Acceptance of the applicable Deliverables, Concept shall prepare and deliver to the Customer an invoice dated as at the time the Delivery Certificate was delivered to the Customer for the applicable Deliverables in accordance with the applicable Statement of Work, to become due and payable in accordance with the provisions of the Customer Agreement.

  3. 5.3 Non-Acceptance of Deliverables. In the event that the executed Delivery Certificate from the Customer indicates Non-Acceptance of the applicable Deliverables or any of them, the Customer shall in detail provide the reasons for such Non-Acceptance on the applicable Delivery Certificate, and Concept and the Customer shall work cooperatively and in good faith to resolve the reasons for Non-Acceptance, and Concept promptly shall use all reasonable commercial efforts in attempting to resolve the reasons for the Customer's Non-Acceptance of the Deliverables. Should Concept be unable, using such reasonable commercial efforts, to resolve the Customer’s reasons for Non-Acceptance within thirty (30) days after receipt of the said Delivery Certificate indicating Non-Acceptance, either Concept or the Customer, on written notice to the other, may terminate the applicable Statement of Work, in which case Concept shall prepare and deliver to the Customer an invoice for any unbilled amounts for work actually completed by Concept in accordance with this Agreement under the applicable Statement of Work up to the date of termination, to become due and payable in accordance with the provisions of the Customer Agreement. Should Concept resolve the Customer’s reasons for Non-Acceptance, the Customer shall promptly execute and deliver the original or a new Delivery Certificate to Concept by email on which the Customer shall indicate Full Acceptance of such Deliverables and the provisions of Section 5.2 shall then apply.

  4. 5.4 Testing Procedures. If applicable for the applicable Deliverables, the Project Coordinators shall establish mutually agreeable Testing procedures (“Testing”) for the applicable Deliverables that are being delivered to the Customer and shall in writing by exchange of emails specify the period of time for the completion of such Testing. For the purposes of this Agreement, Testing shall be treated in the same manner as a separate Deliverable. Upon delivery by Concept to the Customer of any Deliverables for which Testing is applicable, the parties shall work cooperatively and in good faith to perform the agreed Testing. In no event shall the period of time for the Testing exceed the specified period of time for the completion of such Testing unless the parties agree otherwise in writing. Upon completion of the Testing, or at the end of the specified period of time for the Testing, whichever is earlier, Concept shall prepare and deliver to the Customer by email a Delivery Certificate with respect to the completion of the Testing of the applicable Deliverables. The Customer shall within five (5) Business Days of receipt of such Delivery Certificate execute and deliver such Delivery Certificate to Concept by email, on which the Customer shall indicate either Full Acceptance or Non-Acceptance of the Testing of such Deliverables and the provisions of Section 5.2 or Section 5.3, as applicable, shall then apply. In the event that the Customer fails to execute or deliver the Delivery Certificate to Concept by email with its indication of either Full Acceptance or Non-Acceptance of such Deliverables within the said five (5) Business Days, the Customer shall be deemed to have confirmed its Full Acceptance of such Deliverables and the provisions of Section 5.2 shall apply.

  5. 5.5 Failure of Customer to do Testing. In the event that the Customer for any reason does not complete its own Testing of applicable Deliverables, the Customer shall be deemed to have relied on the results of the Testing of same by Concept, in which case the warranties described in Section 7.1.2 shall be limited to only the Specifications related to the applicable Deliverables.

6. PROPRIETARY RIGHTS

  1. 6.1 Ownership. Title to and all intellectual property rights in all Deliverables and Project Work provided by Concept to the Customer under this Agreement shall be deemed to be vested exclusively in Concept unless in any Statement of Work the parties shall have expressly designated in writing that the Customer shall be the owner of any particular Deliverable.

  2. 6.2 Pre-Existing Works. Notwithstanding anything to the contrary in this Agreement or in any Statement of Work, in the event that the Deliverables or any other product provided by Concept to the Customer hereunder includes any pre-existing works created by or licensed to Concept, or any works created by any subcontractor of Concept, ownership of all such works or any interest therein shall not pass to the Customer. The foregoing provisions shall not be construed to include the Customer's pre-existing software and works, whether previously existing or to be completed by the Customer (or by any third party for the Customer) during or after this Agreement for which title to and all intellectual property rights therein shall be vested exclusively in the Customer.

7. REPRESENTATIONS AND WARRANTIES OF CONCEPT

  1. 7.1 Performance. Concept represents and warrants to the Customer that:

    1. 7.1.1 the Project Work shall be performed by Concept in a good and workmanlike manner consistent with industry standards in effect at the time that the work is done;

    2. 7.1.2 for a period of ninety (90) days from the date of Full Acceptance of any Deliverable under this Agreement, such Deliverable shall function substantially in compliance with the relevant Specifications and Statement of Work, provided that this warranty shall be void and of no effect if (i) the Customer or other third parties not under the control or direction of Concept alter in any way the Deliverable after delivery to the Customer, including but not limited to the Software programs or any source or object code provided to the Customer under the applicable Statement of Work, or (ii) the Customer uses or attempt to use the Deliverable in a manner not contemplated in the applicable Statement of Work; and

    3. 7.1.3 all Deliverables provided hereunder by Concept in respect of which the parties have expressly agreed that title vests in the Customer shall be delivered and transferred by Concept to the Customer free and clear of all liens, charges, encumbrances and security interests and rights of others except as otherwise expressly provided in this Agreement or the applicable Statement of Work.

8. TERM AND TERMINATION

  1. 8.1 Termination of Agreement. This Agreement shall be effective upon execution or deemed execution hereof by both parties and, conditional upon there being no Statement of Work remaining in full force and effect, and conditional upon there being no remaining payment obligations by the Customer to Concept under this Agreement, may be terminated only by written acknowledgement by the parties that this Agreement is terminated.

9. MISCELLANEOUS PROVISIONS

  1. 9.1 Provisions of Customer Agreement to Apply. It is understood and agreed that the provisions of the Customer Agreement between the parties shall apply to and be incorporated by reference into this Agreement.
  2. SCHEDULE A , EXHIBIT 1

    INITIAL STATEMENT OF WORK [NOTE: The Initial Statement of Work will need to be developed and attached to this Agreement prior to commencement of the Services.]

    SCHEDULE B

    CHANGE ORDER REQUEST
    General Information Change Request #: Project Name: Related Change Request #s:
    Change Request Submitted By: Phone: Date Submitted:
    Person Requesting Change: Phone: Date Requested:
    Proposed Change Description of Change Reason for Change
    Impacts Scope or Requirements Impact Technical Impact Budget Impact Schedule Impact Performance Impact Impact (impact to other projects) Other Impacts Concept Interactive Inc. - Project Coordinator Review Name:
    Title/Role:
    Signature and Date:
    Approved ☐ Denied ☐ Approved with Specified Conditions ☐
    If denied - reason for denial If approved with conditions - list specific conditions (i.e. list specific actions, attaching documents if necessary) Date conditions met
    Customer - Project Coordinator Review
    Name: Title/Role: Signature and Date:
    Approved ☐ Denied ☐ Approved with Specified Conditions ☐
    If denied - reason for denial If approved with conditions - list specific conditions Date conditions met

    SCHEDULE C

    DELIVERY CERTIFICATE
    Delivery Certificate – Concept Suite Solution Milestone Payment:
    ## X WBS X.X.X Implementation - "Client Review - Release I - Step 1" $XXX.XX ##

    Please use “Reply All” to reply to this email within five (5) Business Days, confirming either the Customer’s Full Acceptance or Non-Acceptance of the work and Deliverables for which this Delivery Certificate is being delivered. In the event that the Customer fails to execute and deliver its confirmation of Full Acceptance or Non-Acceptance of such work and Deliverables within the five (5) Business Days, the Customer shall be deemed to have confirmed its Full Acceptance of such work and Deliverables
    By a reply or deemed reply of Full Acceptance, the Customer is confirming its Full Acceptance of the above work and Deliverables, and agrees that payment for same is due upon receipt from Concept Interactive Inc. of an invoice for the above Milestone Payment. The Customer further agrees that Concept Interactive Inc. has no further obligations with respect to such work and Deliverables except as expressly set forth in the Professional Services Agreement between the parties.
    By a reply of Non-Acceptance, the Customer is confirming its Non-Acceptance of the above work and Deliverables. To be included in such reply are the Customer’s detailed reasons for such Non-Acceptance. Concept Interactive Inc. and the Customer shall work cooperatively and in good faith in attempting to resolve the reasons for Non-Acceptance. The Customer acknowledges that Project Work that is dependent upon the Full Acceptance of the above work and Deliverables will not proceed until the reasons for the Customer's Non-Acceptance of the Deliverables are resolved. The parties shall schedule a meeting to discuss the Customer’s concerns before the next project tasks can proceed.