SEFAIRA PROFESSIONAL SERVICES AGREEMENT

Revised:  June 26, 2012

This Professional Services Agreement (this “Agreement“), effective as of the later of the dates beneath the parties’ signatures on the initial Statement of Work (the “Effective Date“), is made and entered into by and between:

All Sefaira Professional Services Customers:
Anyone who signs a Statement of Work or Order Form that references this Agreement, provided such Statement of Work or Order Form is counter- signed by Sefaira. (“Customer” or “You” throughout the remainder of this document).

and

For Customers and Users in Europe, the Middle East or Africa, Asia, the Pacific, South America and elsewhere outside of the United States and Canada
Sefaira UK Limited
33 Glasshouse Street
London W1B 5DG
United Kingdom
A company incorporated in England and Wales with company number 7001997
(“Sefaira” throughout the remainder of this document)
For Customers and Users in the United States and Canada
Sefaira Inc.
419 Lafayette Street, 2nd Floor
New York, NY 10003
United States
(“Sefaira” throughout the remainder of this document)

BY EXECUTING A STATEMENT OF WORK OR ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BECOME A CUSTOMER UNDER THIS AGREEMENT AND CONSENT TO BE BOUND BY ALL OF ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER” “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THESE AGREEMENT, AND MAY NOT USE THE SERVICES HEREUNDER.

Customer desires to retain Sefaira as an independent contractor to perform certain consulting, design, development, or other services for Customer; and

Sefaira is willing to perform such services for Customer according to the terms of this Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Services.

Sefaira agrees to perform for Customer the services and deliver the deliverables (the “Services“) as the parties may from time to time agree and specify in Statement of Works or Order Form (each a “Statement of Work“) signed by both parties. Any changes to the scope of work under a Statement of Work shall be made by written change order or amendment to the Statement of Work signed by an authorized representative of each party prior to implementation of such changes.

Acceptance.

Upon completion of each deliverable under a Statement of Work, Sefaira will provide a complete copy thereof to Customer; and, upon request, demonstrate to Customer its functionality in conformance with the relevant specifications. Customer is responsible for conducting any additional review or testing of such deliverable pursuant to any applicable acceptance criteria or test agreed upon by the parties for such deliverable. If Customer, in its reasonable and good faith judgment, determines that any submitted deliverable does not meet the applicable functional requirements set forth for such deliverable in the relevant Statement of Work, Customer must notify Sefaira within ten (10) business days after Sefaira’s submission of the deliverable to give written notice to Sefaira specifying any deficiencies in detail. Sefaira shall use commercially reasonable efforts to promptly cure any such deficiencies within twenty (20) business days of such notice, and then resubmit the deliverable for further review and acceptance testing in the same manner. Should any deliverable fail to satisfy the applicable functional requirements after the second resubmission of such deliverable to Customer, Customer may: (a) again reject the deliverable, and return it to Sefaira for further cure and resubmission; or (b) terminate the relevant Statement of Work for cause immediately upon written notice, and recover all amounts associated with such deficient deliverable. Notwithstanding the foregoing, in the event the applicable functional requirements as stated in the Statement of Work are subsequently determined by the parties to be inappropriate or to require modification due to changed circumstances, incorrect assumptions or other reasons at the time of actual delivery and testing of a deliverable, the parties shall cooperate in good faith to appropriately modify such requirements. Customer shall provide Sefaira a written acceptance of each deliverable promptly upon acceptance. Failure to reject a deliverable within the applicable acceptance period shall be deemed acceptance of such deliverable.

Invoicing and Payment.

Sefaira is entitled to receive the compensation for performing the Services as provided in the Statement of Work. Sefaira shall invoice Customer monthly, unless otherwise expressly stated in the applicable Statement of Work. Charges shall be due and payable thirty (30) days from the date of the invoice and shall be deemed overdue if unpaid thereafter. Except for charges being disputed reasonably and in good faith, amounts remaining unpaid after the due date shall be subject to interest at 2% per month, or the highest rate allowed by law if lower, from the due date until the amounts are paid. Customer shall issue a purchase order or alternative document acceptable to Sefaira, on or before commencement of Services under the applicable Statement of Work. Charges for Services hereunder do not include taxes, duties or levies of any nature (“Taxes“). Any Taxes required to be paid by Sefaira as a result of the Services rendered hereunder (other than Taxes based on Sefaira’s income) shall be billed to and paid by Customer.

Proprietary Rights.

With respect to any work product created by Sefaira in connection with the Services (in whatever stage of completion), including, without limitation, concepts, works, inventions, information, drawings, designs, programs, or software (whether developed by Sefaira or any of its employees, representatives, agents, contractors, or subcontractors (collectively, “Personnel”), either alone or with others, and whether completed or in-progress) (collectively “Work Product”), Sefaira will own, all right, title, and interest (including, without limitation, all copyrights, trade secrets, patents, trademarks, and any other intellectual property or proprietary rights) (collectively, “Proprietary Rights”) in such Work Product. Customer acknowledges and agrees that the Work Product is not a “work made for hire”, and all Proprietary Rights embodied in the Work Product shall be owned exclusively by Sefaira. To the extent that Customer provides any feedback or otherwise contributes to the Work Product, Customer hereby irrevocably assigns to Sefaira all of Customer’s right, title, and interest in and to the Work Product, including, without limitation, all rights in and to any inventions, designs and Proprietary Rights embodied in the Work Product or developed in the course of Sefaira’s creation of the Work Product. Customer will execute any documents in connection with such assignment that Sefaira may reasonably request.

Relationship to Sefaira Cloud-based Services.

The Services provided under this Agreement may be in support of existing or new Sefaira Cloud-based Services to be provided to the Customer pursuant to Sefaira’s Master Subscription Agreement. For purposes of this Agreement, “Sefaira Cloud-based Services” means the software, support, and related services that Sefaira generally makes available to end users pursuant to the Sefaira Master Subscription Agreement (available at: www.sefaira.com/info/terms-of-service). By way of example, without limitation, Customer may engage Sefaira under this Agreement to perform certain consulting, discovery, design, pilot, and other Services that the parties intend to lead to a new or customized Sefaira Cloud-based Service that Sefaira will, upon reaching steady-state, make available to Customer by subscription pursuant to Sefaira’s Master Subscription Agreement.

Co-operation; Delays.

Each party agrees to cooperate reasonably and in good faith with the other in the performance of the Services and acknowledges that delays may otherwise result. Customer agrees to provide, or provide access to, the following: office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, complete and accurate information and data from its employees and agents, coordination of onsite, online and telephonic meetings, and other resources as reasonably necessary for satisfactory and timely performance of the Services. Customer is also responsible for the following: (a) assigning a dedicated internal project manager for each Statement of Work to serve as a single point of contact for Sefaira; (b) defining and maintaining its business objectives and requirements that will guide its use of any applicable Sefaira Cloud-based Service; (c) reviewing customizations made to any applicable Sefaira Cloud-based Service for conformance with relevant requirements; (d) training its users generally in the use of any applicable Sefaira Cloud-based Service; and (e) administering any applicable Sefaira Cloud-based Service generally for its own internal business purposes. Each party agrees its respective employees and agents will reasonably and in good faith cooperate with each other in a professional and courteous manner in the performance of their duties under this Agreement. Either party may suspend performance hereunder immediately upon written notice should the other party’s employees or agents fail to act accordingly.

Warranties.

Customer.Customer represents, warrants, and covenants that: (a) Customer has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and (b) it owns or controls the necessary rights in order to make the grant of rights, licenses, and permissions made herein, and that the exercise of such rights, licenses, and permissions by Sefaira shall not violate, misappropriate, or infringe the rights of any third party.

Sefaira. Sefaira represents, warrants, and covenants that: (a) Sefaira will perform the Services in a competent and workmanlike manner in accordance with the level of professional care customarily observed by professionals rendering similar services; (b) Sefaira has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and (c) the Services and Work Product will not violate any applicable laws or regulations or cause a breach of any agreements with any third parties.

Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE SKILL AND CARE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

THE SERVICE IS PROVIDED ON THE BASIS THAT THE CUSTOMER RETAINS ITS OWN PROFESSIONAL LICENSED ENGINEERING, ARCHITECTURE, QUANTITY SURVEYOR, COST CONSULTANT AND CONSTRUCTION ADVICE, AS THE SERVICE IS NOT THE PROVISION OF AND IS NO SUBSTITUTE FOR QUALIFIED AND LICENSED PROFESSIONAL ENGINEERING, ARCHITECTURAL, STRUCTURAL, QUANTITY SURVEYOR, COST CONSULTANT OR CONSTRUCTION ADVICE OBTAINED BY CUSTOMER AT ITS OWN COST AND EXPENSE.

SEFAIRA DOES NOT PROVIDE PROFESSIONAL OR LICENSED ARCHITECT, ENGINEERING, OR CONSTRUCTION SERVICES, WHICH ARE THE RESPONSIBILITY OF THE CUSTOMER OR CUSTOMER’S LICENSED PROFESSIONALS. THE CUSTOMER AGREES THAT SEFAIRA SHALL NOT BE THE ENGINEER OR ARCHITECT OF RECORD ON ANY PROJECT, AND THAT THE CUSTOMER ALWAYS MUST HAVE ITS PLANS SIGNED OFF BY APPROPRIATE STRUCTURAL, ARCHITECTURAL, MECHANICAL OR OTHER ENGINEERS OR ARCHITECTS PROVIDING INDEPENDENT ADVICE ON ALL DESIGN AND/OR CONSTRUCTION-RELATED MATTERS.

Confidentiality and Non-Disclosure.

Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party“) may share certain information of a confidential nature during the term of this Agreement. “Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that should reasonably have been understood by the Receiving Party due to legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the Disclosing Party, including, without limitation, source code for the Software; any other non-public source code of either party; and any non-public product, service, technical, marketing, business, financial, or other information. The Receiving Party agrees, for itself and any Affiliate, agents, and employees, that it will not publish, disclose, or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the confidentiality of the other party’s Confidential Information as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. Without granting any right or license, the Disclosing Party agrees that the foregoing will not apply with respect to information that the Receiving Party can document: (i) is in the public domain and is available at the time of disclosure or which thereafter enters the public domain and is available, through no improper action or inaction by the Receiving Party or any Affiliate, agent, or employee (provided, however, that an item of Confidential Information shall not be considered in the public domain due to the fact that the individual elements that comprise that item can be found in the public domain); (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it by a third party without violating any obligations to the Disclosing Party; (iv) is independently developed by the Receiving Party without reference to such Confidential Information; or (v) is compelled to be disclosed pursuant to any statutory or regulatory authority, court order, or legal process, provided the Disclosing Party is given prompt notice of such requirement, and the scope of such disclosure is limited to the extent possible.

Indemnity.

Each party hereby agrees to indemnify and defend the other party, and its parent companies, subsidiaries, affiliates, shareholders, member, manager, officers, directors, employees, agents, and representatives from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of any of representations, warranties, or covenants in this Agreement by the indemnifying party.

Limitation of Liability.

No Consequential or Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Limitation on Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO SEFAIRA DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY UNDER THE APPLICABLE STATEMENT OF WORK.

Term; Termination.

This Agreement begins on the Effective Date; and, unless earlier terminated pursuant to this Agreement, continues for a period of one (1) year; provided, however, that the terms of this Agreement shall survive and apply to any Statement of Works outstanding as of the effective date of termination. Upon expiration of such period, this Agreement will automatically renew on a month-to-month basis until either party gives at least sixty (60) days prior written notice of termination. Upon any such termination, Customer is only liable to pay for Services performed and liabilities incurred prior to expiration or termination; provided that if the fee set forth in the Statement of Work is a fixed amount, Customer will pay the fee to the extent the Statement of Work is substantially complete. Sefaira may terminate this Agreement immediately upon written notice if Customer fails to cure a nonpayment of amounts due within twenty (20) days after written notice of such nonpayment to Customer.

Miscellaneous.

Independent Contractors. The parties are independent contractors, and nothing in this Agreement shall be deemed or construed to create, or have been intended to create a partnership, joint venture, employment, or agency relationship between the parties.

Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party; provided, however, that Sefaira may assign this Agreement: (a) to an affiliate, or (b) as part of a merger, consolidation, corporate reorganization, sale of all or substantially all assets, sale of stock, change of name, or like event. Any purported assignment, transfer, delegation, sale, or other disposition, except as permitted herein, shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Notwithstanding the foregoing, Sefaira may, in its reasonable discretion, use third party contractors inside or outside the United States to perform any of its obligations hereunder.

Notices. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by certified mail (return receipt requested), electronic mail, or facsimile, to the other party’s current or last known address. Notices shall be deemed effective upon receipt if personally delivered, three (3) business days after it was sent if by certified mail, or one (1) business days after it was sent if by electronic mail or facsimile.

Amendments. This Agreement, and all Statement of Works, cannot be modified or amended in any way except by a written instrument signed by both parties.

Governing Law and Jurisdiction; Remedies.

For Customers and Users in Europe, the Middle East,Africa, Asia, the Pacific, South America and elsewhere outside of the United States and Canada: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, whether of a contractual or non-contractual nature, shall be governed by and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement, except that Sefaira may pursue legal and equitable remedies in any jurisdiction.

For Customers and Users in the United States or Canada: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, whether of a contractual or non-contractual nature, shall be governed by and construed in accordance with the law of New York, United States of America. The parties irrevocably agree that the courts of New York, New York, United States of America shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement, except that Sefaira may pursue legal and equitable remedies in any jurisdiction.

The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement.

Arbitration Agreement. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules“) by one arbitrator appointed in accordance with the ICC Rules. For Customers and Users in Europe, the Middle East, Africa,  Asia,  the Pacific, South America and elsewhere outside of the United States and Canada, the place of arbitration will be London, England. For Customers and Users in the United States or Canada, the place of arbitration will be New York City, New York, United States of America. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The language used in the arbitration, including the language of the proceedings, the language of the decision, and the language of all written statements of the reasons supporting it, shall be English. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs, documents, or other evidence submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies. This arbitration provision shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.

Non-Solicitation. During the term of this Agreement, the Customer shall not recruit, solicit or hire for employment or as an independent contractor, any Sefaira employee, or induce or attempt to induce a Sefaira Employee to terminate his or her employment with Sefaira.

Severability. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in full force and effect. If no enforceable provision can be substituted for any such invalid or unenforceable provision, then that provision shall be deemed severable from the Agreement and shall not affect the validity and enforceability of any remaining provisions in this Agreement.

Waiver. Any failure of a party to enforce, for any period of time, any of the provisions under this Agreement shall not be construed as a waiver of such provisions or of the right of said party thereafter to enforce each and every provision under this Agreement.

Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

Entire Agreement. This Agreement and the Statement of Works, together with all associated attachments thereto, which are incorporated herein by this reference, constitute the complete and final agreement of the parties pertaining to the Services and supersede the parties’ prior agreements, understandings, and discussions relating to the Services.

YOU REPRESENT AND WARRANTY THAT YOU HAVE READ THE TERMS ABOVE AND ACKNOWLEDGE THAT BY EXECUTING ANY STATEMENTS OF WORK HEREUNDER, YOU AGREE TO BE BOUND BY THEM. PLEASE PRINT A COPY OF THIS AGREEMENT AND SUCH STATEMENTS OR WORK FOR YOUR RECORDS AND CHECK THE WEBSITE OFTEN FOR CHANGES.