MASTER AGREEMENT FOR PROFESSIONAL
SERVICES
THIS MASTER
AGREEMENT FOR PROFESSIONAL SERVICES (the “ Agreement
”) is made and entered into as of May 29, 2008
(the “ Effective Date ”), by and between
Syncroness, Inc., a Colorado corporation (“
Vendor ”) and Cardiac Science Corporation, a Delaware
corporation (“ CSC ”). For and in consideration
of the mutual promises and covenants contained hereinafter, the
Vendor and CSC (the “ Parties ”) agree as
follows:
1.1
Statement of Work Vendor agrees to assist CSC with
professional services including consulting, engineering, design,
development and implementation, and related services as set forth
in an applicable Statement of Work (“ Services
”) executed from time to time by both Parties under this
Agreement substantially in the form attached hereto as
Exhibit A (“ SOW ”). Each SOW shall
reference this Agreement and, when executed by both Parties, shall
be deemed to incorporate all of the provisions of this Agreement. A
SOW may provide for provision of Services and Deliverables covered
by it on a time and materials basis or on a fixed price basis as
agreed by the Parties and set forth in the applicable
SOW.
1.2
Change Orders If CSC desires to modify the scope of Services
to be performed under any SOW or the Deliverables to be delivered
thereunder, CSC shall describe the modified Services to Vendor.
Promptly following Vendor’s receipt of CSC’s written
notice, Vendor shall submit a written change order proposal to CSC.
Such change order proposal shall include, among other items, an
estimate of additional charges to CSC for the modified Services, if
any, and any expected impact the change will have on the scheduled
date(s) for completion of such Services. On CSC’s written
approval of the change order proposal, the change order proposal
will become a part of the relevant SOW. No change to any SOW shall
be binding on the Parties unless the change is embodied in a
writing that has been signed by an authorized representative of
each Party.
1.3
Contract Managers: Reports Each Party shall appoint a
qualified staff member or other representative to act as project
manager (each, a “Contract Manager”) for the
Services to be performed under each SOW. Each Contract Manager
shall act as the principal contact between the Parties in
connection with the performance of such Services. Vendor agrees to
submit written reports on the progress of the Services performed
under each SOW as may be reasonably requested from time to time by
CSC’s Contract Manager.
1.4
Vendor Personnel The persons assigned by Vendor to perform
the Services shall have appropriate technical and professional
skills to enable them to perform their duties in a professional
manner, consistent with generally accepted industry standards.
Vendor shall use commercially reasonable efforts to maintain
continuity with respect to such persons and shall keep the
employees turn over rate to a minimum. CSC in turn will make
reasonable efforts to minimize the frequency and duration of work
stoppages. In the event that Vendor, absent frequent and
significant work stoppages, replaces any person performing Services
under a SOW with another person, CSC shall not be responsible for
any costs associated with any training, orientation or other steps
to bring such replacement person to the same level as the replaced
person and Vendor shall be responsible for all such costs. Even if
CSC requests a Vendor personnel change, CSC shall not be
responsible for such costs if CSC’s request for a replacement
arises from CSC’s assessment that the person provided by
Vendor to perform the services lack the requisite skill, education,
and experience required for the applicable task.
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While at
CSC’s facilities, all persons assigned by Vendor to perform
the Services shall observe and follow CSC’s reasonable work
rules, policies and standards as the same are communicated to
Vendor. Vendor shall cooperate with CSC in promptly removing from
performance of the Services any Vendor personnel who performs the
Services in an unsatisfactory manner.
1.5
Facilities The Services will be performed by Vendor at
locations as set forth in applicable SOW. If the identified
locations include CSC facilities, CSC will provide, at no cost to
Vendor, office space, computer time and communication facilities
(phone, fax, e-mail, data communication etc.) as reasonably
required for Vendor personnel to perform the Services on site at
CSC’s facilities. CSC agrees to grant access to its premises
and systems, during its normal business hours, as reasonably
necessary for the performance of the Services under this Agreement
and the applicable SOW.
1.6
CSC Policies and Procedures Vendor shall comply with all CSC
policies and procedures, as indicated and provided by CSC,
applicable to the Services rendered under this Agreement or any
SOW, including without limitation, those applicable to on-site work
and off- site work (e.g., SOP-00058-01 titled “ Management
of Off-Site Product Development ”).
1.7
CSC Equipment If CSC provides any equipment, hardware,
products, prototypes, tooling or other personal property (“
Equipment ”) to Vendor in connection with this
Agreement or any SOW, Vendor shall use commercially reasonable
efforts to protect and maintain such Equipment during the period of
its custody thereof. Vendor shall notify CSC immediately if it
suspects or believes that any of the Equipment has been damaged,
tampered with, is unfit for use, broken or is malfunctioning in any
respect. Vendor shall not harm, modify, tamper with or open any of
the Equipment or modify, deface or otherwise interfere with any of
the Equipment except as expressly authorized by CSC as part of the
Services.
2.1
Provision of Deliverables All items and materials identified
in the applicable SOW to be created or developed by Vendor for CSC
(“ Deliverables ”) shall be provided to CSC as
specified in the applicable SOW, or as may be otherwise mutually
agreed to by the Parties in writing. Deliverables that do not
constitute the final, completed work product under a SOW shall be
considered “Interim Deliverables.” Parties may
agree in such SOW for review and testing by CSC of each Interim
Deliverable for acceptance or the review and testing of only the
Final Deliverable.
2.2
Review and Testing of Deliverables Upon Vendor’s
completion of each Deliverable, CSC shall review and, if
appropriate, test such Deliverable to determine whether it conforms
to its corresponding specifications under the applicable SOW (the
“ Specifications ”), and to otherwise determine
whether the Deliverable meets CSC’s acceptance criteria. CSC
shall perform its review and testing of each Deliverable promptly
following the date on which Vendor provides CSC with the
Deliverable and notifies CSC that the Deliverable is ready for such
review and testing (the “ Commencement Date ”).
CSC shall report to Vendor any failures of the Deliverable to
conform to its corresponding Specifications or acceptance criteria
(“ Non-Conformities ”) within the mutually
agreed period, not to exceed 90 days following the
Commencement Date unless Parties specifically agree for a longer
review period (the “Review and Testing Period
”).
2.3
Revision of Deliverables Vendor shall promptly remedy all
Non-Conformities reported by CSC in writing during the Review and
Testing Period for each Deliverable in
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accordance with
the relevant SOW. In the event Non-Conformities occur with respect
to a Deliverable during the Review and Testing Period, Vendor shall
remedy such Non-Conformities at no cost to CSC if the SOW is based
on a fixed price model. Upon Vendor’s revision of the
Deliverable to address all Non-Conformities Vendor shall provide
CSC with the revised Deliverable, whereupon CSC shall review and,
if appropriate, test the revised Deliverable in accordance with the
provisions of Section 2.2. The Commencement Date for
CSC’s Review and Testing Period for the revised Deliverable
shall be the date on which Vendor provides CSC with the revised
Deliverable and notifies CSC that the revised Deliverable is ready
for such review and testing.
2.4
Acceptance of Deliverables With respect to each Deliverable,
the process described in Section 2.2 and Section 2.3
shall be repeated until Vendor remedies all reported
Non-Conformities or CSC reports no additional Non-Conformities
during the applicable Review and Testing Period, whereupon such
Deliverable shall be deemed accepted by CSC. CSC shall have the
right to terminate this Agreement if any Deliverable fails to meet
the Review and Acceptance Test after two rounds of the process
described in Sections 2.2 and 2.3 above.
3. PROPRIETARY
RIGHTS IN DELIVERABLES
3.1
CSC Ownership of Inventions Subject to Section 3.2 and
Section 3.3, Vendor agrees that all copyrightable material,
notes, records, drawings, designs, inventions, improvements,
developments, discoveries, reports, emails, data, information,
Deliverables, and trade secrets (collectively, “
Inventions ”) conceived, made or discovered by Vendor,
solely or in collaboration with others, during the period of this
Agreement which arise directly or indirectly from the business of
CSC that Vendor may be directed to undertake, investigate or
experiment with, or which Vendor may become associated with in
work, investigation or experimentation in the line of business of
CSC in performing the Services hereunder, shall be deemed a
“work made for hire” and shall be the sole property of
CSC. Vendor further agrees to assign (or cause to be assigned) and
does hereby assign fully to CSC all Inventions and any copyrights,
patents, mask work rights or other intellectual property rights
relating thereto. Vendor agrees to assist CSC, or its designee, at
CSC’s expense, in every proper way to secure CSC’s
rights in the Inventions and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto in
any and all countries, including the disclosure to CSC of all
pertinent information and data with respect thereto, the execution
of all applications, specifications, oaths, assignments and all
other instruments which CSC shall deem necessary in order to apply
for and obtain such rights and in order to assign and convey to
CSC, its successors, assigns and nominees the sole and exclusive
right, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual
property rights relating thereto. Vendor further agrees that
Vendor’s obligation to execute or cause to be executed, when
it is commercially reasonable for Vendor to do so, any such
instrument or papers shall continue after the termination of this
Agreement.
3.2
License to Vendor Property To the extent any Vendor Property
or a portion thereof is incorporated or contained in a Deliverable
under any SOW, such Vendor Property shall be and remain the sole
and exclusive property of Vendor, except as stated in this
Section 3.2 or in any applicable SOW. Unless an applicable
separate license agreement provides otherwise, if Vendor Property
or a portion thereof is incorporated or contained in a Deliverable
under a SOW under this Agreement, Vendor hereby grants to CSC a
non-exclusive, perpetual, irrevocable license, with the right to
sublicense through multiple tiers, to use, copy, install, perform,
display, modify and create derivative works of any such Vendor
Property for CSC’s
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business
purposes, and for the business purposes of CSC’s subsidiaries
and affiliates. “Vendor Property” means the
items listed on the SOW, if any.
3.3
Third Party Components Vendor shall specify in each SOW any
third-party products or materials to be incorporated into or
provided as any Services, Deliverables or Inventions prepared under
such SOW (“ Third-Party Components ”), and shall
seek prior approval from CSC prior to the incorporation of such
Third-Party Components. Vendor shall be responsible for securing
all necessary licenses required from third Parties for CSC’s
use of any such Third-Party Components and shall provide copies of
such licenses upon request.
4.1
Fees for Services CSC shall pay Vendor for the Services and
Deliverables provided by Vendor hereunder as specified in each
applicable SOW. The price for Services agreed to be provided on a
fixed price basis and the rates for any Services agreed to be
performed on a time and materials basis shall be as set forth in
the applicable SOW.
4.2
Taxes. All fees quoted on the attached SOW, unless otherwise
mutually agreed, are inclusive of any sales, use or value added tax
imposed by any applicable taxing jurisdiction. Where applicable,
Vendor shall invoice such taxes as a separate line item in
applicable invoices and shall pay such amount of tax to the
appropriate taxing authority upon receipt of such amount from CSC.
Vendor agrees to cooperate with CSC’s specific directions in
order to minimize the tax impact under this Agreement. If any
Deliverable is software, Vendor shall provide the Deliverable by
electronic mail.
4.3
Invoices Vendor shall submit invoices to CSC on a monthly
basis (or more or less frequently as may be specified in the
applicable SOW) detailing the amounts payable by CSC hereunder.
Except as otherwise expressly set forth in the applicable SOW, CSC
shall remit payment to Vendor within thirty (30) days
following its receipt of each such invoice; provided that
CSC may withhold payment of any amounts that are disputed by CSC in
good faith pending resolution of the dispute. In the event that CSC
disputes any invoiced amount, CSC shall notify Vendor of the
reasons for disputing such amount as soon as practicable after
receipt of the applicable invoice, whereupon the Parties shall
promptly seek to resolve the dispute by mutual discussion. Any such
dispute shall not relieve CSC from paying when due any undisputed
portion of the invoice.
5. REPRESENTATIONS
AND WARRANTIES
5.1
Title and Non-Infringement Vendor represents and warrants to
CSC that, as of the date each Service, Invention or Deliverable is
accepted by CSC, Vendor shall have obtained all right, title and
interest in and to such Service, Invention or Deliverable that any
Vendor personnel or third party have or may have with respect
thereto, to the extent necessary for Vendor to grant to CSC the
ownership rights and licenses granted hereunder. Vendor further
represents and warrants to CSC that such Service, Invention or
Deliverable does not and will not infringe or misappropriate the
patent, copyright, trademark, trade secret or other rights of any
third party. This non-infringement warranty shall not apply to the
extent that an infringement claim arises as a result of
(a) modification, alteration or revision of the Service,
Invention or Deliverable made by CSC, (b) use of the Service,
Invention or Deliverable in combination with other products or
systems which is not specifically identified in the Specifications,
(c) components or materials provided to Vendor by CSC in
connection with the development of the
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Service,
Invention or Deliverable, or (d) any Service, Invention or
Deliverable defined in the SOW as the responsibility of CSC to
determine non-infringement.
5.2
Compliance with Specifications Vendor warrants to CSC that
at the time of acceptance by CSC, each Deliverable will conform to
its corresponding Specifications. This warranty shall not apply in
the event that failure of the Deliverable to conform to its
corresponding Specifications has resulted from
(a) modification of the Deliverable by CSC, (b) use of
the Deliverable in combination with other products or systems which
is not specifically identified in the Specifications,(c) components
or materials provided to Vendor by CSC in connection with the
development of the Deliverable, or (d) deficiency of design
inputs provided to Vendor by CSC, where correction of the resulting
non-co
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