1        General

Definitions

PCS Expertise is Management and Enterprise Solutions Integration Consulting specializing in the Program Management of enterprise solutions on various platforms.

Services – are performance of a task, provision of advice and counsel, assistance, or use of a resource we make available to you. 

Order of Precedence – in the event of a dispute between multiple documents, the dispute would be resolved in favor of the document with the highest order of precedence.

Completion Criteria – are the detailed, written conditions, stated in the Statement of Work, that PCS is required to meet to satisfy Customer requirements.

Deliverable – is any item, specified in the Statement of Work, that you provide (for example Equipment, Program Products, or Materials).

Equipment – is a machine, its features, elements, cables, or accessories, or any combination of them.  The item “Equipment” includes the documentation required to install, support, use, and maintain equipment.

Materials – are work products such as programs, program listings, programming tools, documentation, reports, schematics, and drawings.  The term “Materials” does not include Program Products but does include modifications of a Program Product.

Program Product – is your commercially available software product and the documentation required to install, support, use, and maintain it. 

Identified Systems – all information, data, documents and other records delivered, supplied or made available to PCS requiring PCS services and solutions.

Fitness For a Particular Purpose – Also called warranty of fitness, this is one of the three implied warranties under the Uniform Commercial Code (UCC) from seller to buyer.  A fitness warranty means that goods or services sold for a particular purpose are fit for that purpose, provided the buyer is relying on the skill, judgement, or experience of the seller (the later part of the definition is critical).

As-Is Code – the term As-Is applies only to code that does not meet the criteria for licensing by other methods or processes, such as Program Product, and has been qualified through the PCS-Customer agreed upon As-Is registration process.

Waiver or Breach – waivers, to be binding, must be in writing and signed by the party whose right is waived. No waiver of the terms of this Agreement or failure by either party to exercise any option, right or privilege on any occasion or through the course of dealing shall be construed to be a waiver of the same on any other occasion.

Hiring – Resource Partner/Subcontractor agrees not to hire PCS Associates, consultants or employees on a contract or employment basis for a period of three (3) years the Resource Partner/Subcontractor may have come in contact with whether directly or indirectly. If the Resource Partner/Subcontractor does hire PCS consultant on a contract or employment basis within the three- (3) year period, the Resource Partner/Subcontractor will pay PCS a placement fee of 50% of the annual starting salary or PCS consultant gross contract amount effective immediately to the hiring of the PCS Associate, consultant or employee. 

Notices: No Mailbox Acceptances – All acceptance notices required or permitted to be given by Resource Partner/Subcontractor to PCS under this Agreement shall be sufficient, if sent by an overnight courier service (Federal Express, Airborne, USPS, UPS or DHL).

Document Originality – An Adobe signed, executed signed, or a facsimile of this document may constitute an original in the absence of the actual Agreement, and as such will be fully executable and enforceable under the law.

Domestic Governing Law – The laws of the Commonwealth of Virginia without regard to conflict of laws hereunder shall govern this Agreement and performance. PCS and the Resource Partner/Subcontractor hereby agree on behalf of themselves and any person claiming by or through them that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in the Commonwealth of Virginia.

Survival – All provisions of this Agreement relating to confidentiality, indemnity, non-disclosure and non-solicitation shall survive the termination of this Agreement.

Corporate Lead – For purposes of this Agreement, the projects Corporate Lead shall be that party that has fiduciary obligations to the end Customer, and duty delegating responsibilities, employees, consultants, and contractors.  And the Corporate Lead organization has the final approval over all deliverables to the end Customer.

1. Scope of Services/ Term of Agreement

Services – Prior to disclosure of PCS Confidential Information regarding the use of it Service Practice’s, Customer must execute the PCS Non-Disclosure Agreement.

Transaction Documents

For each business transaction, we will provide you with the appropriate “Transaction Document” that confirm the specific details of the transaction.  Some Transaction Documents require signature, and others do not.  Unless otherwise stipulated in writing, the following are examples of Transaction Documents that must be signed by both of us:

1. Exhibits (Consulting Service or Permanent Placement defined scope); and Statements of Work (scope of Services, responsibilities, deliverables, Completion Criteria, estimated schedule duration, and charges).
2. Letter Agreement or Memorandum of Understandings
3. Statement of Work Addendum’s
4. Change/Stop Orders
5. Agreements-Non-Disclosure, Software/Hardware Licensing, and Maintenance Agreements

1.1.1. Conflicting Terms

If there is a conflict among the terms in the various documents, those of an Attachment prevail over all documents to include PCS Agreement for Services.

1.1.2. Our Acceptance of Requirements

A Service becomes subject to this Agreement when we accept your request.  We accept your request by doing any of the following:

1. Receiving Customer Yearly Calendar setting for Customer: fiscal close, key project rollout dates, back up schedules, etc.
2. sending you a Transaction Document
3. providing the service against a Purchase Order (PO) submitted to PCS by Customer

Customer Acceptance of Additional Terms

You accept the additional terms in an Attachment or Transaction Document by doing any of the following:

1. signing the Attachment or Transaction Document;
2. using the Service, or allowing others to do so;
3. Making any payment for the Service.
4. Sending an email transmission authorizing service.
5. Submitting a Purchase Order to PCS outlining the scope of services, duration, deliverables, completion criteria, estimated schedule and applicable changes.

1. Fee Structure/ Taxes

PCS will invoice Customer at a rate of specified in each Transaction Document with term & conditions for the specified services. Any reasonable and actual out-of-pocket expenses will be billed separately.

If any authority imposes a duty, tax, levy, or fee, excluding those based on our net income, upon any transaction under this Agreement, then you agree to pay that amount as specified in the invoice or supply exemption documentation.

Customer agrees that invoices will be paid upon receipt. We specify that all invoices/fees are cured on a Net-30 basis via ACH or wire transfers to PCS financial institution logistics provided on each respective invoice.  

For all services completed by PCS, the Customer will pay PCS the fees for Professional Services under this Agreement with the rates set forth in each Statement of Work(s). agrees to make payment in full for all amounts due according to a submitted invoice on or before the agreed upon due date. Invoices will be submitted weekly.  PCS will substantiate invoices by individual weekly Time Records and appropriate substantiation of out-of-pocket expenses.

The Customer also agrees to pay interest on all amounts that are past due at the lesser of 1 ^1/2% per month or the highest rate allowed by law and all collection costs and attorney’s fees, with or without lawsuit, required to collect delinquent fees.

We may increase recurring charges for Services (including hourly rates and minimums) by giving you three months’ written notice.  An increase applies on the first day of the applicable invoice period on or after the effective date we specify in the notice.

2. Reporting Standards and Oversight

Approvals and Similar Actions

Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld.

Status Reports

Each party shall submit a detailed written progress report to the other party’s designated project manager during the term of this Agreement.  Such progress reports will detail the current status of each party’s own activities, indication of the progress of the work being performed and resources expended since the last report, as well as a cumulative total to date, and identification of actual and anticipated problem areas, the impact thereof on the work effort, and action being taken or alternative actions to be taken to remedy such problems.

Status Meetings

Either party may request a status meeting be held at any time and a status meeting shall be held at least once per month, to review the status of activities performed by PCS hereunder.

3. Customer Liaison; PCS Liaison; Management Committee

During the term of this Agreement, Customer and PCS will each designate an employee with sufficient knowledge and background to act as the primary liaison between Customer and PCS (the “Customer Liaison” or “PCS Liaison” as the case may be). The Customer Liaison will have primary operational responsibility for Customer responsibilities hereunder and will serve as Customer’s primary liaison with PCS.

We will try and honor your requests regarding the assignment of your personnel to your project.  However, we reserve the right to determine the assignment of our personnel.

4. Statement of Work & Procedures to Change Statement of Work

Statement of Work

A separate Statement of Work will be signed by both of us for each Professional Service engagement not covered by another Transaction Document. When we accept your request to fulfill your Professional Service requirement, we agree to provide the Services described in the Statement of Work. In addition, to the extent not inconsistent with this Agreement, once the Statement of Work has been established, PCS may introduce additional resources to the scope of work in order to meet Customer deliverable time table.

The Statement of Work includes, for example:

• our respective responsibilities;
• description of the engagement
• the specific conditions, if any, that PCS is required to meet to fulfill our obligations;
• a contract duration for Professional Services;
• type of service;
• expected start date and estimated completion date; and
• applicable charges (daily/hourly rate, fixed-rate basis, or a combination of both), and any other terms.

Changes to the Statement of Work

When both of us agree to change a Statement of Work other than as permitted in the Scope of Services Section of this Agreement, we will prepare a written description of the agreed change, which both of us must sign.  The terms of a change prevail over those of the Statement of Work and any other previous change.

Changes to the Agreement

For a change to be valid, both of us must sign it. Additional or different terms in any order or written communication from you are void.

5. Customer Responsibilities

In addition to its other obligations hereunder, Customer will, on a timely basis,

• Carefully inspect and review all reports and other output provided by PCS hereunder and all other PCS work products delivered hereunder, as set forth in the Customer Acceptance of Additional Terms Section herein.
• Deliver input and output data to and from the processing site accompanied by control totals and batch tickets, and provide supplies of the necessary input and output forms.
• Establish appropriate priorities for Customer that relate to PCS Services and communicate the same to PCS. Customer recognizes that changes in such priorities may result in additional fees hereunder for additional staff or reordering of other priorities to provide PCS Services within the current fee structure.
• Cooperate with PCS by, among other things, making available, as reasonably requested by PCS, timely management decisions, information, approvals, and acceptance in order that PCS may properly accomplish its obligations and responsibilities hereunder.
• Train applicable Customer personnel to properly prepare input for and to effectively utilize output from the systems operated by PCS hereunder.
• Pay all costs of acquisition, installation and use of equipment and services, as required for the performance of the PCS Professional Services.
• Properly maintain the Customer Equipment and Customer Systems to be provided by Customer to PCS pursuant to this Agreement or to be used by PCS in providing its Professional PCS Services hereunder.
• It is Customer’s responsibility to always check their software license agreements to make sure that Customer does not infringe the intellectual property rights of others. And to assure that Customer has the consent of its licensor or owner of the software before accessing or modifying it.
• Customer is solely responsible for the installation and implementation of any Product Temporary Fix, Customer Service Diskette(s) or other related Year 2000 modification required for any hardware and/or software product to be considered Year 2000 Ready or compliant. PCS shall not in any way be responsible for your failure to apply such corrections.
• For non-PCS products, whether or not obtained from PCS, it is Customer’s responsibility to consult directly with their third party product supplier, developer or manufacturer for information about whether products are Year 2000 ready or compliant.

Customer agrees that to the extent its failure to meet its obligations set forth in this Scope of Services/Terms of Agreement Section adversely affects the ability of PCS to perform PCS’s obligations under this Agreement, PCS shall be relieved of such obligations and such failure may give rise to additional fees payable to PCS should PCS continue to perform under this Agreement.

6. Customer Data

PCS may accept as correct, accurate and reliable, without any further inquiry, all information, data, documents and other records delivered, supplied or made available to PCS hereunder, and may assume full disclosure to PCS hereunder in the performance of its services. PCS shall have no responsibility or liability for any error, inadequacy or omission, which results from inaccurate or incomplete information, data, documents or other records provided to PCS hereunder. 

7. Proprietary and Related Rights

Any original documents or files provided to PCS hereunder by Customer (“Customer Data”) are and shall remain Customer’s property and, upon the termination of this Agreement for any reason, such Customer Data will be returned to Customer by PCS, subject to the terms hereof. Customer data will not be utilized by PCS for any purpose other than those purposes related to rendering services to Customer under this Agreement, nor will Customer Data or any part thereof be disclosed to third parties by PCS, its employees or agents except for purposes related to PCS’s rendering of services to Customer under this Agreement or as required by law, regulation, or order of a court or regulatory agency or other authority having jurisdiction thereover. PCS will establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer Data in the possession of PCS. In the event that additional safeguards for Customer Data are reasonably requested by Customer, PCS will provide such additional safeguards and Customer will reimburse PCS for any additional costs thereby incurred by PCS. Customer shall have the right to establish backup security for data and to keep backup data and data files in its possession if it so chooses; provided, however, that PCS will have access to such backup data and data files as is reasonably required by PCS. Notwithstanding the foregoing, PCS shall have the right to retain in its possession all workpapers and files prepared by it in performance of its services hereunder which may include necessary copies of Customer Data. PCS shall have access to Customer Data, at reasonable times, during the term of this Agreement and thereafter for purposes related to PCS’s rendering of services to Customer under this Agreement, or as required by law, regulation or order of a court or regulatory agency or other authority having jurisdiction thereover. 

8. System Rights

Each Customer System is and will remain the property and confidential information of Customer or the third party licensor of that Customer System, and PCS will have no rights or interests therein, except as provided in this Agreement. For the purposes of this Agreement, “PCS Systems” shall mean all software owned, developed or otherwise provided by PCS or used by PCS in the performance of the PCS Professional Services and include all programs and documentation therefor and the tangible media on which such programs are recorded. Each PCS System is and will remain the property and confidential information of PCS or the third party licensor of that PCS System, and Customer will have no rights.

9. Confidentiality

Each party agrees that it shall not disclose to any third party or use any information proprietary to the other including information concerning contact information, trade secrets, methods, processes, procedures, copyrights, methodologies or any other confidential information of the other party which it learns during the course of its performance of this Agreement, and the terms and conditions of this Agreement, without the prior written consent of the other party, or as required by law, regulation, or order of a court or

regulatory agency or other authority having jurisdiction thereof. Notwithstanding the foregoing, the confidentiality obligations set forth in this section will not apply to any information, which the recipient party can establish to have:

• become publicly available without breach of this Agreement,
• been independently developed by the recipient party outside the scope of this Agreement and without reference to the confidential information received under this Agreement, or
• been rightfully obtained by the recipient party from third parties, which are not obligated to protect its confidentiality.

This Confidentiality clause shall remain in effect until the information included herein is no longer a trade secret or until PCS sends written notice releasing the Customer from the obligations of this confidentiality clause, whichever event occurs first.

PCS does not want to receive confidential or proprietary information from you through PCS web site.  Please note that any information or material sent to PCS will be deemed NOT to be confidential.  By sending PCS any information or material, Customer grant PCS an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute those materials or information, and Customer also agree that PCS is free to use any ideas, concepts, know-how or techniques that Customer sends PCS for any purpose.  However, PCS will not release Customer name or otherwise publicize the fact that Customer submitted materials or other information unless: (a) PCS obtain Customer permission to use Customer’s name; (b) PCS first notifies Customer that the materials or other information Customer submitted to a particular part of this site will be published or otherwise used with Customer name on it; or (c) PCS is required to do so by law.

10. PCS Intellectual Property

PCS Services (Global, Management, Account) Divisional Practices Proprietary Data

Notwithstanding the foregoing, PCS shall have the right to retain in its possession all of its approaches, methodology, templates, drafts, sketches, schematics, repository, other trade secrets or confidential information relating to PCS and its past and present PCS Service Practice engagements. All uses of information spawned from PCS current and prior engagements or the data therefrom, whether express, implied or otherwise is subject to the provisions as stated in the above paragraph “Proprietary Rights”.

11. Materials Ownership and License

We will specify Materials to be delivered to you.  We will identify them as being “Type I Materials” or “Type II Materials”, or otherwise as we both agree.  If not specified, Materials will be considered Type II.

Type I Materials are those, created during the Service performance period, in which you will have all right, title and interest (including ownership of copyright).  We will retain one copy of the Materials.  You grant us 1) an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, distribute (internally and externally) copies of, and prepare derivative work based on Type I Materials and 2) the right to authorize others to do any of the former.

Type II Materials are those, created during the Service performance period or otherwise (such as those that preexist the Service), in which we or a third party have all right, title, and interest (including ownership of copyright).  We will deliver one copy of the specified Materials to you.  We grant you an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform, and distribute, within your Company only, copies of Type II Materials.

Customer acknowledges that any PCS copyrighted and/or trademarked material, whitepaper, proposal, business model, etc. is to be considered the exclusive and proprietary material of PCS and should be regarded as such within the Customer’s company and in the marketplace.

12. Dispute Resolution

In the event of any dispute between the parties hereto arising from or relating to this Agreement, then, upon the written request of either party, each of the parties will appoint a designated representative to endeavor to resolve such dispute. The designated representatives will negotiate in good faith to resolve the dispute. Except for those disputes where injunctive relief may be an appropriate remedy, no formal proceedings relating to such dispute may be commenced until the designated representatives conclude in good faith that amicable resolution through continued negotiation of the matter in issue does not appear likely.

13. Fraud and Misrepresentations

Solely, this Agreement and the Statement of Work(s) under which it is performed govern PCS obligations and responsibilities regarding PCS Services.  Any reference to a PCS Professional Service or Service Practice is not intended to imply that only a PCS Professional Service or Service Practice may be recommended or used.

PCS will at all times use Industry Best Practices in supplying Customer with Information Technology related recommendations, based on all information, data, documents and other records delivered, supplied or made available to PCS by Customer.

14. Breach of Implied Warranty of Merchantability

PCS will only recommend solutions that fall in line with Customer’s Statement or Work requirements.  Customer ultimately reserves the right to exercise the recommendation options.  PCS will warrant all recommendations made to Customer based on Customer’s Statement of Work requirements and the Customer Data Section herein.

15. Breach of Implied Warranty of Fitness for Particular Purpose

PCS will not breach any Warranty of Fitness for Particular Purpose to you, PCS End Customer under any circumstance.  PCS provides Products and Services in response to the Customer’s statement of their requirements.  PCS obligation is to meet the completion criteria in the Statement of Work(s), and we provide specific warranties for our efforts.  The UCC’s general warranties are not necessary because PCS will provide specific ones.

16. Independent Contractor Status

PCS and any and all PCS personnel, employees, consultants or agents in performance of this Agreement, are acting as independent contractors and are not employees or agents of Customer. PCS shall be solely responsible for the payment of compensation of PCS personnel assigned to perform services hereunder and such personnel are not entitled to the provisions of any Customer employee benefits. Customer shall not be responsible for payment of worker’s compensation, disability benefits and unemployment insurance or for withholding and paying employment taxes for any PCS personnel performing services hereunder, but such responsibility shall be that of PCS.

We may subcontract a Service or delegate a duty, or any part of it, we provide to you, to subcontractors selected by us.

PCS reserves the right to replace any PCS consultant during a performance of any Statement of Work(s) provided that the replacement consultant shall possess the training, skill and level of competence required to perform the assigned duties as defined in the Statement of Work.

Services for Others

Customer understands and agrees that PCS may perform for third parties and other PCS Consulting similar services using the same personnel, subject to PCS’s confidentiality obligations hereunder, that PCS may utilize such personnel for rendering services for Customer hereunder.

17. Liability Issues-Warranty; Limitation of Liability

Warranty Disclaimer

 PCS warrants that all services shall be performed in a workmanlike manner and in accordance with the specifications and descriptions of such services as set forth herein. EXCEPT AS SET FORTH IN THIS, PCS MAKES NO WARRANTIES WITH RESPECT TO ITS SERVICES OR WORK PRODUCT HEREUNDER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Limitation on Liability

Circumstances may arise where, because of default on our part or other liability, you are entitled to recover damages from us.  In each such instance, regardless of the basis on which you are entitled to claim damages from us (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), we are liable only for:

1. Payments referred to in our patents and copyright section;
2. Damages for bodily injury (including death) and damage to real property and tangible personal property; and
3. The amount of any other actual direct damages or loss, up to the greater of $100,000 or the charges 9if recurring, 12 months’ charges apply) for the Product or Service that is the subject of the claim.

Items for Which We are not Liable

Under no circumstance are we liable for any of the following:

1. third party claims against you for losses or damages.
2. Loss of, or damage to, your records
3. Special, incidental, or indirect damages or for any economic consequential damages (including lost profits or savings), even if we are informed of their possibility.

Indemnities

18.1      Customer Indemnity

 Customer agrees to indemnify, defend and hold PCS harmless from any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses arising out of or relating to

 (i) any and all acts or omissions of Customer and its officers, directors, shareholders, employees, and agents occurring prior to the Effective Date of this Agreement, (ii) actions or positions taken by Customer, whether prior to or during the term of this Agreement, which are relied upon by PCS or which form the basis for any services or work product of PCS hereunder, (iii) any Customer instruction, approval, election, decision, action, inaction, omission or nonperformance relating to the PCS Services, or (iv) any information or data provided to PCS.

18.2      Intellectual Property Rights Indemnity

 PCS and Customer each agree to indemnify, defend and hold the other harmless from any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising out of any third party claims of infringement of any United States patents, or a trade secret, or any copyright, trademark, service mark, trade name or similar proprietary rights alleged to have occurred related to property provided, or work performed, by the indemnitor.

 18.3     Personal Injury and Property Damage Indemnity

 PCS and Customer each agree to indemnify, defend and hold harmless the other from any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising out of third party claims for bodily injury or damage to physical property, to the extent caused directly and proximately by the negligence or willful misconduct of the indemnitor, its employees or agents and, in the case of PCS as the indemnitor, in the performance of PCS Services hereunder.

 18.4     Indemnification Procedures

 For purposes of this Indemnities Section, the term PCS shall include PCS, its partners, principals, employees and agents. The indemnities set forth in Sections hereof will not apply to the extent the party claiming the indemnification was responsible for giving rise to the matter upon which the claim for indemnification is based and will not apply unless the party claiming indemnification promptly notifies the other of any matters in respect of which the indemnity may apply and of which the notifying party has knowledge and gives the other full opportunity to control the response thereto and the defense thereof, including without limitation any agreement relating to the settlement thereof. The indemnified party’s failure to promptly give notice shall affect the indemnifying party’s obligation to indemnify the indemnified party only to the extent the indemnifying party’s rights are materially prejudiced by such failure. The indemnified party may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice.

19. Termination

19.1      Termination for Cause

In the event that either party hereto materially or repeatedly defaults in the performance of any of its duties or obligations hereunder (except for a default in payments to PCS) and does not substantially cure such default within five (5) working days after being given written notice specifying the default, or, with respect to those defaults which cannot reasonably be cured within five (5) working days, if the defaulting party fails to proceed promptly after being given such notice to commence curing the default and thereafter to proceed to cure the same, then the party not in default may, by giving notice thereof to the defaulting party, terminate this Agreement as of a date specified in such notice of termination.

19.2      Termination for Nonpayment

In the event that Customer defaults in the payment when due of any amount due to PCS hereunder and does not cure such default within five (5) days of the date of the

invoice, then PCS may suspend services and/or terminate the Agreement in the event that Customer fails to make timely payment.  Termination shall not alter Customer’s obligation to make full payment under this Agreement.

19.3      Termination for Insolvency

In the event that either party hereto becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other party hereto may, by giving written notice thereof to such party, terminate this Agreement as of a date specified in such notice of termination.

19.4      Termination Assistance

 Upon the termination of this Agreement for any reason, PCS will provide to Customer such termination assistance relating to PCS Services provided pursuant hereto, at PCS commercial rates, as may be reasonably requested by Customer. If this Agreement is terminated by PCS, then Customer will pay PCS, on the first day of each month and as a condition to PCS’s obligation to provide termination assistance to Customer during that month, an amount equal to PCS’s reasonable estimate of the total amount payable to PCS for such termination assistance for that month.

19.5      Continuation and Project Support Services

Customer shall have the option, exercisable upon termination, to request that PCS Services and this Agreement continue on a month-to-month basis after the termination date or the expiration date, as applicable, for the then applicable fees set forth in Transaction Document (i.e. Exhibit- Statement of Work, Purchase Order, Letter Agreement) herein. Customer shall have the right to have this Agreement continue on a monthly basis pursuant for up to ninety (90) days. If this Agreement is terminated by PCS, then Customer will pay PCS, on the first day of each month and as a condition to PCS’s obligation to continue to provide PCS Services to Customer during that month, an amount equal to PCS’s reasonable estimate of the total amount payable to PCS for such PCS Services for that month.

19.6      Termination Costs

The parties agree that, in the event of termination by PCS pursuant to Termination Sections hereof, in addition to any other rights or remedies available to PCS hereunder, or at law or in equity, PCS shall have the right to recover from Customer, in addition to all amounts then due and owing hereunder (i) all charges for the PCS Services and Additional PCS Professional Services which would have been payable by Customer with respect to this Agreement from the effective date of the termination to the end of the term hereof less PCS’s costs of performance for such period, and (ii) any and all claims, actions, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and expenses, incidental to such termination, including but not limited to, those arising out of or related to relocation, termination or other disposition of employees, equipment, software, third party services, and facilities used by PCS to perform services hereunder. 

19.7      Terminating Continuing/Maintenance Support Services

You may terminate a Continuing Support Service by providing us one month’s written notice upon fulfillment of any minimum commitments.

The termination of Services with contract periods longer than one-year results in adjustment charges.  In this case, you agree to pay the lesser of:

1. the difference between the total charges you paid through the termination date and those you would have paid for the same period of time at the charge level of the next shorter contract period;

2. the monthly charge multiplied by the applicable adjustment charge factor; or

3. the total charges remaining to complete the contract period.

When an increase results in a change to your total monthly charge for a Service of more than the adjustment charge we specify, you may terminate that Service on the effective date of the increase.  Adjustment or termination charges do not apply in this case.

19.8      Termination of Project Support Services

Either of us may terminate a project on written notice to the other if the other does not meet its obligations concerning the Statement of Work.  Upon termination, we will stop our work in an orderly manner and any as soon as practical.

You agree to pay us for all Services we provide and any Materials we deliver through the project’s termination and any charges we incur in terminating subcontracts.

20.  Copyrights, Patents and Trademarks

If a third party that Materials we provide to you infringe that party’s patent or copyright, we will defend you against that claim at our expense and pay all costs, damages, and attorney’s fees that a court finally awards, provide that you:

1. promptly notify us in writing of the claim; and
2. allow the defense any related settlement negotiations and us to control, and cooperate with in.

If such a claim is made or appears likely to be made, you agree to permit us to enable you to continue to use Materials, or to modify them, or replace them with Materials that are at least functionally equivalent.  If we determine that none of these alternatives is reasonably available, you agree to return the Materials to us on our written request.  We will then give you a credit equal to the amount you paid us for the Materials.

Be advised that this is our binding commitment to you regarding any claim of infringement.

Information on PCS web site may contain other proprietary notices and copyright information, the terms of which must be observed and adhered to.

Information on PCS web site may contain technical inaccuracies or typographical errors.  Information may be changed or updated without notice.  PCS may also make improvements and/or changes in its products, services or service practices described in this information at any time and without notice.

21. Restriction of Hiring of Other Party’s Personnel

Both Customer and PCS agree not to make offers of employment to or enter into consultant relationships with employees or consultants of the other within a three (3) years period of the cessation of such employment or consultant engagement unless otherwise agreed to by the parties.  Customer further agrees that, during or within a period of three (3) years from the last date recorded on an invoice submitted to Customer by PCS with PCS employee or consultant’s name present, under the terms of this initial Agreement,

Customer will not, either directly or indirectly or for any other person, firm, company, or corporation, solicit, divert, or take away existing employee, consultant, or associate of PCS. If Customer does hire PCS employee or consultant on a contract or employment basis within the three-year period, Customer will pay PCS a placement fee of 50% of the annual starting salary or PCS consultant gross contract amount.

22. Force Majeure

Neither party shall be liable to the other for any delay or failure to perform any of the services or obligations set forth in this Agreement due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay. Without limiting the foregoing, PCS’s time of performance shall be enlarged, if and to the extent reasonably necessary, in the event that: (a) Customer fails to submit data or information in the prescribed form or in accordance with the agreed upon schedules; (b) special requests by Customer or any governmental agency authorized to regulate or supervise Customer or any authority having jurisdiction over Customer impact PCS’s normal schedule; or (c) Customer fails to provide any equipment, software, facility or performance called for by this Agreement, and the same is necessary for PCS’s performance hereunder. PCS will notify Customer of the estimated impact on its performance schedule, if any.

23.  Miscellaneous

This Agreement and any attached Transaction Document and Exhibit(s) represent the entire agreement and understanding of the parties and any modification thereof shall not be effective unless contained in writing signed by both parties.  No other document shall be deemed to modify any terms of this Agreement unless expressly stated in writing to do so and signed by both PCS and Customer.  Each provision of this Agreement shall be considered severable, such that, if any one provision or clause conflicts with existing or future applicable law or may not be given full effect because of such law, this shall not affect any other provision of the Agreement which can be given effect without the conflicting provision or clause.