Loftware professional services agreement
THIS PROFESSIONAL SERVICES AGREEMENT (THIS "AGREEMENT") IS A BINDING LEGAL CONTRACT BETWEEN YOU (DEFINED BELOW) AND LOFTWARE, INC., A MAINE CORPORATION, WITH ITS REGISTERED ADDRESS AT 249 CORPORATE DRIVE, PORTSMOUTH, NEW HAMPSHIRE AND ITS AFFILIATES (COLLECTIVELY, "LOFTWARE"). BY CLICKING THE "ACCEPT" BUTTON OR PROVIDING AN ORDER OR STATEMENT OF WORK TO LOFTWARE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS, AND (B) REPRESENT AND WARRANT THAT, IF YOU ARE ACTING ON BEHALF OF YOUR ORGANIZATION, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO, AND DO, ACCEPT THESE TERMS AND CONDITIONS ON ITS BEHALF. IN THE EVENT AN INDIVIDUAL IS ENTERED INTO AN AGREEMENT ON BEHALF OF (I) HIMSELF OR HERSELF, "YOU" (OR "YOUR") REFERS TO SUCH INDIVIDUAL, OR (II) A CORPORATE OR OTHER PUBLIC OR PRIVATE ENTITY, "YOU" (OR "YOUR") REFERS TO THAT ENTITY, AND SUCH INDIVIDUAL CERTIFIES THAT HE/SHE IS AN AUTHORIZED REPRESENTATIVE OF SUCH ENTITY.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, LOFTWARE WILL NOT AND DOES NOT AGREE TO THE PROVISION OF ITS SERVICES.
Loftware and You, as “Company”, are referred to herein individually as a “Party” and, collectively, as the “Parties.”
WHEREAS, Company or its Affiliates would like to retain Loftware or its Affiliates to provide certain installation, configuration, implementation, consulting, engineering, training or other services (collectively, the “Professional Services”); and
WHEREAS, Loftware or its Affiliates are prepared to provide Professional Services to Company or its Affiliates pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the adequacy of which consideration is hereby acknowledged by the Parties, Loftware and Company, intending to be legally bound, hereby covenant and agree as follows:
1. Scope of Professional Services Agreement.
1.1 Terms and Conditions of Service. Loftware’s, or its Affiliates’, provision of Professional Services to Company or its Affiliates shall be governed by the terms and conditions set forth in this Agreement and individual Statement(s) of Work. Terms not otherwise defined in the main body of this Agreement shall have the meanings ascribed to such terms in Exhibit A hereto.
1.2 Statements of Work. Loftware and Company or any Affiliate may enter into Statements of Work under this Agreement. To be effective, each Statement of Work must be signed by Loftware and Company or the applicable Affiliate. An Affiliate that executes (or is deemed to have executed) a Statement of Work shall be considered “Company” for all purposes of the Statement of Work; provided, however, that Company and such Affiliate shall remain jointly and severally liable and responsible for such Affiliate’s compliance with the terms of this Agreement and the Statement of Work. Each Statement of Work shall be deemed to incorporate the provisions of this Agreement as though such provisions were set forth therein in their entirety, and shall set forth: (i) a project overview; (ii) a description of the Professional Services and deliverables to be provided by Loftware; (iii) the fees to be paid by Company or an Affiliate for the Professional Services and deliverables; (iv) any project-specific assumptions; and (v) such additional terms and conditions as may be mutually agreed upon by Loftware and Company or the applicable Affiliate.
1.3 Change Orders. A “Change Order” will be the vehicle for communicating and approving any desired changes to the Professional Services, deliverables or other terms of a Statement of Work. A proposed Change Order will describe the proposed change, the reason for the change, the effect the change is expected to have and the effective date the change will commence. Loftware will submit a written proposed Change Order to Company. Each Party will review the proposed Change Order and either mutually approve it, approve it with modification, or reject it. The amount and payment of any additional fees and/or costs, and any impact on the Professional Services or project schedule, will be agreed upon in writing by both Parties in a final approved mutually-signed Change Order.
2. Division of Labor. Loftware shall, in its sole discretion, determine which of its employees, subcontractors and/or agents shall provide Professional Services pursuant to this Agreement and each Statement of Work. Company acknowledges and agrees that Loftware shall have no obligation to provide and will not provide any Professional Services except for those expressly set forth in Statements of Work that have been executed by the Parties. Company acknowledges and agrees that Loftware has the right to exercise its discretion in regards to when and how Loftware allocates its resources to Company pursuant to any Statement of Work.
3. Assumptions and Risks. The general assumptions and risks associated with Loftware’s performance of any Professional Services are set forth in Exhibit B hereto. Additional, project-specific assumptions and risks may be set forth in individual Statement(s) of Work, as applicable.
4. Pricing and Payment.
4.1 Terms of Payment. Except as otherwise provided in a Statement of Work, Loftware shall invoice Company on a monthly basis, in arrears, for all fees, taxes and Expenses that have been earned or incurred by Loftware or its personnel during that month in connection with its performance of such Professional Services. Company agrees to pay such invoiced amounts within thirty (30) days of the date of the applicable invoice. If Company fails to pay any invoiced amount when and as due, Loftware shall have the right (in addition to all other rights Loftware may hold under this Agreement, at law or in equity) to (i) charge interest on such unpaid and overdue amounts at the rate of one and one-half percent (1.5%) per month or the highest rate allowed under applicable law, whichever is less, and/or (ii) cease providing to Company (including all Affiliates) any and all Professional Services under all outstanding Statements of Work.
4.2 Taxes. Company is responsible for the payment of any federal, state, county, local or governmental taxes, duties, or excise taxes, with respect to Loftware’s provision of the Professional Services and delivery of any products or other deliverables in connection therewith. This provision does not apply to franchise taxes, taxes based upon Loftware’s income or any taxes for which Company is exempt.
5. License, Warranties and Ownership.
5.1 License to Company Works. Company grants to Loftware a license to use the Company Works as Loftware deems necessary to provide the Professional Services contemplated by this Agreement and each Statement of Work.
5.2 Company Warranties. Company warrants that: (i) it is the owner or licensee of all rights necessary and appropriate to grant the license set forth in Section 5.1 above; and (ii) the Company Works do not and will not, as a result of use by Loftware, infringe any Intellectual Property Rights or other rights of any third party.
5.3 License. Company will have a non-exclusive, non-transferable, royalty-free, perpetual license to use deliverables developed by Loftware in the performance of Professional Services and delivered to Company, upon Company's payment in full of all amounts due hereunder, solely in conjunction with, and consistent in scope with, Company’s permitted use of the software.
5.4 Ownership. Loftware retains all right, title, interest and ownership of all information, software, Loftware Technology (where “Loftware Technology” means Loftware’s technology used to provide Professional Services to Company, including without limitation software tools, hardware designs, algorithms, software, architecture, class libraries, objects and documentation, network designs, know-how, trade secrets and any related Intellectual Property Rights (whether owned by Loftware or licensed to Loftware from a third party) and derivatives, improvements, enhancements or extensions during or after this Agreement by or for Loftware whether or not in connection with the Professional Services provided to Company but excluding any Company Works or other Confidential Information of Company) and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all work product received, compiled or developed by Loftware in the performance of this Agreement. Loftware may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by Loftware while providing the Professional Services and may incorporate the work product in future releases of any of its software. Company agrees that Loftware retains the right to use, without right of accounting, generalized knowledge, experience, and know-how (including processes, ideas, modifications, suggestions, concepts and techniques) relating to the Loftware software and Professional Services acquired in the course of performing Professional Services hereunder. Company retains all right, title, interest and ownership of all information, Company Works, data, intellectual property and other property owned by it prior to this Agreement.
6. Third Party Software. Company understands and agrees that its right to use any software products owned by third parties (“Third Party Software”) that are recommended or required by Loftware in connection with the Professional Services shall be subject to a separate written license agreement between such owner(s) and Company. Company shall be responsible for all fees and costs associated with the licensing of any such Third Party Software.
7.1 Duty of Care. During the negotiations leading up to the execution of this Agreement and during the Term of this Agreement, each Party may find it necessary to reveal to the other Party Confidential Information. The recipient of Confidential Information will not be given any right, title, interest or license in or to any Confidential Information except as provided in this Agreement and will use all reasonable means to protect and maintain the secrecy of such Confidential Information. All Confidential Information will be returned upon request or once this Agreement is terminated. The recipient of Confidential Information will take all reasonable steps to ensure the compliance of its directors, officers, employees and subcontractors with these confidentiality provisions.
7.2 Equitable Relief. Each Party acknowledges that the failure to perform its duties under this Section 7 may cause the other Party to suffer irreparable injury for which the injured Party will not have an adequate remedy available at law. Accordingly, the injured Party may seek to obtain injunctive or other equitable relief to prevent or curtail any such breach, without posting a bond or security and without prejudice to such other rights as may be available under this Agreement or under applicable law.
8. Loftware Warranty. Loftware warrants that the Professional Services shall be delivered in a competent, professional and workmanlike manner, and in conformity with standards generally accepted in Loftware’s industry. Except as EXPRESSLY stated in this section 8, Loftware expressly and specifically disclaims AND REJECTS ANY AND all warranties, express or implied, with respect to THE PROFESSIONAL SERVICES and any goods or other deliverables provided incidental to the professional services, including, WITHOUT LIMITATION, THE implied warranties of merchantability, fitness for a particular purpose, TITLE AND NON-INFRINGEMENT. COMPANY UNDERSTANDS AND AGREES THAT LOFTWARE’S CUMULATIVE LIABILITY TO COMPANY (INCLUDING ITS AFFILIATES) FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES AND DAMAGES (“COLLECTIVELY, “COMPANY DAMAGE”) FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL BE LIMITED TO THE AMOUNT PAID TO LOFTWARE BY COMPANY PURSUANT TO THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT THAT CAUSED ANY SUCH COMPANY DAMAGE. UNDER NO CIRCUMSTANCES SHALL LOFTWARE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF LOFTWARE HAD BEEN PREVIOUSLY ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY OR BASIS FOR SUCH CLAIM. IN PARTICULAR, LOFTWARE SHALL HAVE NO LIABILITY FOR ANY COSTS (INCLUDING ANY RECOVERY COSTS) RELATED TO ANY LOSS, CORRUPTION, OR INACCURACY OF DATA USED IN CONJUNCTION WITH THE PROFESSIONAL SERVICES OR ANY GOODS OR OTHER DELIVERABLES PROVIDED INCIDENTAL TO THE PROFESSIONAL SERVICES.
9. Term and Termination.
9.1 Term of Agreement. This Agreement will commence on the Effective Date and continue unless and until terminated pursuant to these terms (the “Term”).
9.2 Termination of Agreement. Either Party may terminate this Agreement if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach.
9.3 Term of Statements of Work. Each Statement of Work will commence as of the date set forth thereon and will continue in effect thereafter until the earliest of: (i) the expiration date designated thereon (if any); (ii) the date the Professional Services described therein have been completed; or (iii) the date of termination specified by either Party in accordance with Section 9.4 below.
9.4 Termination of Statements of Work. Either Party may terminate a Statement of Work if the other Party breaches any material term or condition of such Statement of Work and fails to cure such breach within thirty (30) days after written notice of such breach. The termination of any Statement of Work shall not affect any of the Parties’ rights or obligations pursuant to this Agreement other than with respect to such Statement of Work. In the event of any termination of a Statement of Work, Loftware shall send Company its final invoice for such Statement of Work and Company shall pay Loftware for all Professional Services performed and Expenses incurred up through the effective date of termination.
10.1 Independent Contractor. It is expressly agreed that Loftware and Company are acting under this Agreement as independent contractors, and the relationship established hereunder shall not be construed as a partnership, joint venture or other form of joint enterprise, nor shall one Party be considered an agent of the other. Neither Party is authorized to make any representations or create any obligation or liability, expressed or implied, on behalf of the other Party, except as may be expressly provided for in this Agreement.
10.2 Headings. The headings of the paragraphs of this Agreement are for convenience only and shall not be a part of or affect the meaning or interpretation of this Agreement. The Parties acknowledge and agree that they have had the opportunity to fully negotiate this Agreement and that, as such, this Agreement should not be read more or less favorably for either Party.
10.3 Entire Agreement. This Agreement (including all Exhibits and Statements of Work executed by the Parties) contains the entire agreement between the Parties with respect to the subject matter set forth herein, and supersedes all prior and contemporaneous proposals, purchase orders, requests for proposal, quotes, discussions, understandings and writings by and between the Parties and relating to such subject matter. In no event shall any Company purchase order or other purchasing document (whether issued prior to or after the Effective Date of this Agreement), or Loftware’s acceptance thereof, modify or supplement the terms of this Agreement or any Statement of Work.
10.4 Binding Effect; Assignment. This Agreement and any interest hereunder shall inure to the benefit of and be binding upon the Parties and their respective successors, legal representatives and permitted assigns. Loftware may assign this Agreement: (i) to any legal entity in connection with the merger or consolidation of Loftware into such entity or the sale of Loftware, its stock or of all or substantially all of the assets of Loftware to such entity, or (ii) to an Affiliate. Except as stated in the previous sentence, neither Party may assign or delegate this Agreement without the other Party’s prior written consent. Any attempt to assign or otherwise transfer this Agreement in violation of this Section is voidable by the other Party.
10.5 Force Majeure. Neither Party shall be responsible or considered in breach of this Agreement for any delay or failure in the performance of any obligation of this Agreement to the extent that such failure or delay is caused by acts of God, fires, explosions, labor disputes, accidents, civil disturbances, material shortages or other similar causes beyond its reasonable control (each, a “Force Majeure Event”), even if such delay or failure is foreseeable. Provided, however, that the non-performing Party provides notice of the Force Majeure Event preventing or delaying performance and resumes its performance as soon as practicable and provided further that the other Party may terminate the whole or any part of any affected Statement(s) of Work upon written notice if such non-performance continues for a period of ninety (90) consecutive days. For the avoidance of doubt, no Force Majeure Event shall excuse Company’s payment obligations under this Agreement when and as due.
10.6 Governing Law. The validity and construction of this Agreement shall be governed by, subject to and construed in accordance with the laws of the State of Delaware, without reference to its conflicts of law provisions.
10.7 Dispute Resolution. In the event of a dispute between Loftware and Company where the Parties are unable to reach a mutually agreeable resolution, the dispute shall be submitted to binding arbitration under the expedited commercial arbitration rules of the American Arbitration Association (“AAA”) then in effect; provided, however, that the Parties shall be entitled to avail themselves of injunctive and other equitable powers of a court of appropriate jurisdiction located in the State of Delaware. Arbitrations shall take place in Dover, Delaware. There shall be one (1) arbitrator mutually agreed to by both Parties (or in the event the Parties are unable to agree on an arbitrator, the arbitrator shall be chosen in accordance with the rules of the AAA). The arbitrator shall have experience in the area of software technology. After the hearing, the arbitrator shall decide the controversy and render a written decision setting forth the issues adjudicated, the resolution thereof and the reasons for the award. The award of the arbitrator shall be conclusive. Payment of the expenses of arbitration, including the fee of the arbitrator and attorneys’ fees, shall be assessed by the arbitrator based on the extent to which each Party prevails. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
10.8 Notices. All notices, requests, demands and other communications hereunder shall be deemed to have been duly given if the same shall be in writing and shall be (i) delivered personally, or (ii) sent by (a) registered or certified mail, postage prepaid, return receipt requested, (b) receipted electronic mail transmission, or (c) commercial express courier (with tracking capabilities); and sent to the person executing this Agreement on behalf of the receiving Party at the mailing addresses provided above or provided electronic mail addresses:
To Loftware: Loftware, Inc.
249 Corporate Drive
Portsmouth, New Hampshire 03801
Attn: Legal Department
Either Party may change the mailing address, electronic mail address, or designated person for receiving notices by providing notice in accordance with this Section. Notices shall be deemed received when actually received, one (1) business day after such notice is transmitted by electronic mail, or three (3) business days after such notice is mailed or delivered to a commercial express courier in accordance with this Agreement, whichever occurs first.
10.9 Severability. The invalidity or unenforceability of any particular provision of this Agreement, as determined by any arbitrator, any court of competent jurisdiction or any appropriate legislature, shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision had been omitted. No usage of trade or industry course of dealing shall be relevant to explain or supplement any term expressed in this Agreement.
10.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
10.11 Waiver. No course of dealing, failure by either Party to require the strict performance of any obligation assumed by the other hereunder, or failure by either Party to exercise any right or remedy to which it is entitled, shall constitute a waiver or cause a diminution of the obligations or rights provided under this Agreement. No provision of this Agreement shall be deemed to have been waived by any act or knowledge of either Party, but only by a written instrument signed by a duly authorized representative of the Party to be bound thereby. Waiver by either Party of any default shall not constitute a waiver of any other or subsequent default.
10.12 Interpretation. In the event of any inconsistency between the provisions of this Agreement and a duly executed Statement of Work, the provisions of the Statement of Work shall govern for purposes of such Statement of Work.
10.13 Cumulative Remedies. No right or remedy conferred by this Agreement is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time to time.
10.14 Soliciting for Hire. Company will not, directly or indirectly, solicit or hire any Loftware employee for employment or services while a Statement of Work is in effect, nor during the twelve (12) month period following the date the Statement of Work expires or is terminated, without paying to Loftware two (2) times the employee’s then-current annual base salary. Any such payment shall not restrict Loftware’s rights or remedies as they relate to the former employee. The Parties stipulate that this payment amount (i) has been agreed upon because the actual amount of damage to Loftware would be uncertain or difficult to prove, (ii) is reasonable and not disproportionate to the presumable loss or injury, (iii) is a liquidated damages provision, and (iv) is not intended to be a penalty.
10.15 Survival. Sections 5.2, 6, 7, 8 and 10 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means the ownership of, or the power to vote, at least fifty-one percent (51%) of the voting stock, shares or interests of such entity.
(b) “Company Works” means any and all software, hardware, databases and other materials that are owned by or licensed to Company by a third party, and which are provided to or required by Loftware in connection with its performance of the Professional Services pursuant to this Agreement.
(c) “Confidential Information” means all confidential or proprietary information, data, documentation and other materials in electronic, written, magnetic and other media of the Parties, whether or not marked as such, including, without limitation, any and all of the Parties’ respective Intellectual Property Rights and any data or information regarding the Parties’ business plans and business operations, including, without limitation, any and all information regarding the Parties’ products, product development, vendor lists, supplier lists, data and security questionnaires, reports and documentation, marketing strategies, financial information, operations, customers, customer lists, sales and internal performance information. For the avoidance of doubt, the terms and conditions of this Agreement and each Statement of Work shall be deemed to be the Confidential Information of Loftware. Confidential Information will not include information: (i) generally available to the public; (ii) already in the possession of the recipient without restriction; (iii) received from a third party without an obligation of confidentiality; (iv) developed independently by the recipient without reference to the discloser’s Confidential Information; (v) which is the subject of any written consent of the Party which supplied such information authorizing disclosure; or (vi) which is required to be disclosed by the receiving Party pursuant to applicable law or legal process, provided that the receiving Party shall immediately notify the other Party so that it can take steps to limit or prevent its disclosure.
(d) “Expenses” means all costs and expenses incurred by Loftware or its agents in providing any Professional Services under this Agreement, including, without limitation, all travel expenses (including transportation, lodging, and meals) and the cost of any courier services, photocopying, facsimile, long distance telephone calls, and other expenses.
(e) “Intellectual Property Rights” means: (a) all copyright rights under all copyright laws of the United States and all other countries for the full term thereof (and including all rights accruing by virtue of bilateral or international copyright treaties and conventions), including, but not limited to, all renewals, extensions, reversions or restorations of copyrights now or hereafter provided by law and all rights to make applications for copyright registrations and recordations, regardless of the medium of fixation or means of expression; (b) all rights to and under new and useful inventions, all improvements thereof and all know-how related thereto, including all Letters Patent and applications for Letters Patent in the United States and all other countries and all reissues, extensions, renewals, divisions and continuations (including continuations-in-part) thereof, for the full term thereof; (c) all trade secrets, know-how, techniques and concepts; and (d) all trademarks, trade dress, trade names and service marks.
General Assumptions and Risks
1. Company will designate a single point of contact for each Statement of Work who can provide or facilitate effective answers to reasonable technical and operational questions and requests for support that arise during the performance of the Professional Services set forth in such Statement of Work. The designated contact will be available to work with Loftware in connection with all aspects related to the completion of the Professional Services, and will have authority to act on behalf of Company.
2. Loftware is not responsible for any implementation, integration, training, technical support or troubleshooting in connection with any software or technology not licensed from Loftware. The provision of access to any Loftware software products is Company’s responsibility. Any routing, NAT, IP tunneling, DMZ, firewall or other network engineering activities necessary to provide access to the Loftware software products must be performed by Company.
3. Company will provide Loftware with access to building(s), room(s), workspace, network(s), systems administrators, database administrators, business analysts, and other resources, including telephone and Internet access, as deemed reasonably necessary by Loftware to provide and complete the Professional Services set forth in each Statement of Work.
4. Company will notify Loftware in writing of all pertinent security procedures, operations, maintenance, configuration, or systems management policies prior to the start of each project contemplated by a Statement of Work. Loftware is not responsible for compliance with any policies, procedures or requirements that are not so communicated prior to the commencement of the applicable Professional Services.
5. All hardware and/or software and licensing required to perform the Professional Services will be provided by, and are the responsibility of, Company. Company will ensure that all hardware meets any specifications recommended by Loftware and will be onsite and operable prior to commencement of the project contemplated by the applicable Statement of Work.
6. It is Company’s responsibility to perform a full working backup of Company’s environment(s) prior to the commencement of the Professional Services. Loftware is not responsible for any lost or corrupted data.
7. Loftware reserves the right to perform any of the Professional Services contemplated by a Statement of Work, at Loftware’s facilities.
8. Loftware is not responsible for any delays in, or failure to perform, any Professional Services to the extent caused (in whole or in part) by Company’s failure to supply in a timely manner access to Company personnel, materials, information or resources deemed reasonably necessary by Loftware to complete the Professional Services set forth in a Statement of Work. Company acknowledges that its failure to provide any such resources may impact project completion, project cost, completeness of the data collected by Loftware, and the quality of the final documentation. Network reliability and bandwidth between Company’s host applications and the Loftware software products may impact printing performance and robustness. Loftware is not responsible for any environments outside of its control. Company’s firewall or other security mechanisms may prevent access to Company’s printers from the Loftware software products. Not all business rules may be supported by the logic capabilities of the Loftware software products.
9. Company will be responsible for providing Loftware with its own Company user account and password for the duration of the Professional Services set forth in a Statement of Work. Loftware recommends that upon completion of such Professional Services, Company disable this account.
Each project time frame and project fee set forth in a Statement of Work is based on the assumptions outlined above. Should any element(s) of these assumptions prove to be untrue or inaccurate, additional time and/or fees and expenses may be required to complete the applicable Statement of Work. In such event, the Parties shall execute a mutually agreeable Change Order reflecting same.