PROFESSIONAL SERVICES SUPPLEMENTAL TERMS (PS Terms)
These PS Terms are provided under and supplemental to an applicable Order between the Licensee and Licensor that incorporates an End User Software License Agreement (EULA).
Capitalized terms not defined here are defined in the EULA or in any Maintenance and Support Terms (the M&S Terms) and are incorporated herein.
These PS Terms describe certain professional services to be performed by Licensor for Licensee and certain terms associated with these services. These PS Terms control over any conflicting or different terms or conditions in the EULA or M&S Terms.
In consideration of payment of the Fees in the applicable Order for these PS Terms, and provided Licensee is not in breach of the EULA, the M&S Terms, or any Order, Licensor agrees, during the term of the Order for Professional Services, as follows:
PROFESSIONAL SERVICES TYPES
Licensor provides two types of Professional Services:
- Professional Services based on Time & Materials (T&M Services)
T&M Services will be performed to assist Licensee in its use of Licensor technology and products, based on the number of days of Professional Services set forth in the Order and subject to the following:
- Each day (or portion thereof) of Professional Services performed during Licensor Business Days and Hours (on-site or Remotely) by a Consultant shall count with a factor 1 against the number of days ordered
- Each day (or portion thereof) of Professional Services performed outside of Licensor Business days (on-site or Remotely) by a Consultant needs to be approved by Licensor and shall count with a factor 2 against the number of days ordered. Example: 8 hrs (1 day) of Professional Services are performed on a Saturday. This constitutes use of 2 days of Professional Services.
- For Orders up to 20 Professional Services days, the days will expire twelve (12) months after the date Licensee or Third-Party sends the Order.
- For Orders of 21 Professional Services days or more, the days will expire twenty four (24) months after the date Licensee or Third-Party sends the Order.
- There are no refunds of prepaid, unused Professional Services fees.
One Day of service includes eight (8) Hours. Service hours are billed in not less than 2 hour blocks – meaning that any Service hour started will count for two (2) Hours, regardless of whether the actual amount of time spent after Service commencement was 2 hours.
No deliverables are included within the scope of T&M Services. The overall responsibility regarding the successful use of Licensor technology and products by Licensee rests with the Licensee.
- Professional Services based on a Fixed Price (Fixed Price Services)
Fixed Price Services will be performed to assist Licensee with predefined operations as stated in Licensor’s Services catalog and are subject to the following:
- Fixed Price Services will be performed during Licensor’s Business Days and Hours. Any work performed outside of such Business Days and Hours must be discussed and approved by Licensor in advance, at Licensor’s sole and absolute discretion.
- The Fixed Price Service will expire twelve (12) months after the date Licensee or Third-Party sends the Order.
- Fixed Price Services are based upon reasonable and prompt responsiveness and cooperation from Licensee, and Licensee performing in all material respects, all Licensee Responsibilities set out herein and in any Order for Professional Services. If Licensee fails to promptly respond and otherwise reasonably cooperate in completion of the Fixed Price Services, after notice by Licensor, such engagement may be converted to a T&M Services and billed as such.
- There are no refunds of prepaid, unused Professional Services on Fixed Price Services fees, regardless of whether such Fixed Price Services were converted to T&M Services.
Fixed Price Services will be considered complete once the Professional Services as described in Licensor’s catalog have been delivered to Licensee.
LICENSOR RIGHTS AND OBLIGATIONS
Licensor will assign one Project Manager, who will coordinate with Licensee´s project manager or other designated point of contact regarding the overall management of the Services performed, thereby assisting a timely execution of the Services and may use the following guidelines:
- Coordinate kick-off and onboarding meetings with Licensee and Consultant(s)
- Assist in defining the work process
- Assist in defining the communication plan
- Scope, plan, monitoring
- Align with Licensee to determine the key objectives and schedule
- Define and manage the Licensor resource plan, in accordance with the Order Form
- Assist with change request
- Regularly monitor progress of the Services
- Prepare regular briefings on the project status
- Assist Licensee in managing project risks
- Assist in overcoming Services-related issues or blockers
- Governance & communication
- Coordinate with Licensor resources to align the project schedule
- Coordinate with Licensee and team members
- Prepare progress reports at regular intervals (frequency to be agreed with Licensee)
- Prepare a close down report: technical and non-technical (as applicable)
Licensor may, at its sole discretion, choose to engage different consulting personnel for different portions of the Professional Services.
Licensor may use sub-contractors for providing all or part of the Professional Services.
Licensor may collaborate with the Licensee to define a Scope of Work for the Services performed.
Licensee acknowledges and agrees that, while providing the Services, Licensor will use commercially reasonable efforts to complete the tasks identified in the applicable work plan.
LICENSEE RIGHTS AND OBLIGATIONS
Licensee is responsible for (“Licensee Responsibilities”):
- Providing a timely access to reasonably requested accurate and complete information relative to the Professional Services.
- Communicating in writing requirements, expectations and/or objectives.
- Communicating in writing any desired changes in the scope of the Professional Services.
- Providing adequate workspace, network connectivity and telephone, or internet access. VPN access to Licensor internal network from the Consultant’s laptop is required in order to provide the Professional Services to the Licensee.
Licensee is responsible for ensuring that it has appropriate backup, security and virus-checking procedures in place for any computer facilities Licensee provides or which may be affected by the Professional Services.
Licensee is responsible for ensuring that all software and other materials and data provided by Licensee in connection with the project is properly licensed to Licensee and that Licensor’s use thereof to provide Professional Services to Licensee do not and will not violate any rights (including any intellectual property or personal rights) of the owners of such software, materials or data.
Licensor may charge the Licensee on a Time & Material basis, based on the current Licensor’s List Price, for any delay or additional work caused by a failure of the Licensee to comply with the obligations set forth in this section. Licensor may interrupt the Services if any unreasonable delay or additional work is caused by a failure of the Licensee to comply with the obligations set forth in this section.
Licensee acknowledges and agrees that (i) it has received from Licensor all the necessary information pertaining to the scope, the provision and performance of the Professional Services related to Licensee’s intended use; and that (ii) Licensee has brought to Licensor’s attention all necessary information in order to allow Licensor to comply with its duty to perform the Professional Services.
Business Days and Hours as referred to in those PS Terms are the local working (i.e. non holiday, non-weekend) days and hours in the country the Consultant of Licensor work from. If no local working days and hours are otherwise stated , then working days and hours are Monday through Friday (excluding government recognized holidays), 9am to 5pm, local time.
Professional Services will be performed at the Licensee site located at the “Ship-to” address shown in the Order or a remote location (Remote or Remotely). If applicable, any documentation related to the Professional Services may be completed Remotely at Licensor’s discretion.
FEES (when applicable)
This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Resellers and authorized Distributors).
For Orders for Professional Services that also includes other products and services (including but not limited to Licenses, Support Services), fees shall be paid in advance, in accordance with the payment terms on the Order.
For stand-alone Orders for T&M Services up to 20 Professional Services days, fees shall be paid in advance, in accordance with the payment terms on the Order.
For stand-alone Orders for Fixed Price Services and T&M Services of 21 Professional Services days or more, fees shall be paid:
- 50% in advance, in accordance with the payment terms on the Order;
- 50% after twelve (12) months, in accordance with the payment terms on the Order.
If no time for payment is stated in the Order, fees shall be paid within thirty (30) calendar days after an invoice is issued by Licensor.
Licensor shall charge the Licensee for 100% of the T&M Services or Fixed Price Services that are postponed without a written notice at least five (5) working days before the Consultant is to begin.