The following are the terms and conditions for the provision of Professional Services by Varicent to Customer pursuant to the Varicent Cloud Services Agreement (the “Agreement”) at https://www.varicent.com/legal_documents. Capitalized terms shall have the meanings set forth in the Agreement or elsewhere herein.
1. PROVISION OF PROFESSIONAL SERVICES
1.1. Provision. Varicent shall provide the Professional Services in accordance with the applicable SOW, this Schedule and the Agreement. Varicent shall have no obligation to commence any Professional Services unless and until an SOW for such services has been executed by both Parties. Customer agrees that Varicent may engage Third Party subcontractors in addition to its Affiliates to perform the Professional Services as outlined in a SOW or agreed-upon in writing with Customer.
1.2. Compliance with Customer Policies. While onsite at Customer’s facilities or accessing Customer’s networks or the Customer Systems, Varicent shall comply with, and require its Personnel to comply with, all applicable safety, security, and other rules and procedures of Customer provided by Customer to Varicent in writing in advance (“Customer Policies”). “Customer Systems” means the networks systems, and workstations from which Customer and its Authorized Users access and use the Cloud Service.
1.3. Fees and Payment. For the purposes of the Agreement, all fees set forth in each SOW shall be deemed “Professional Services Fees”.
2. CHANGE ORDERS
If either Party wishes to make any changes to an SOW, it shall notify the other Party in writing and Varicent shall prepare a “Change Order”. If Customer approves the Change Order, the SOW shall be amended to include such Change Order upon both Parties’ execution thereof; otherwise, the Professional Services shall continue pursuant to the original SOW. Customer acknowledges that modifications made in a Change Order may result in additional Professional Services Fees which will be charged in accordance with the fee structure outlined in the relevant SOW.
3. ACCEPTANCE OF DELIVERABLES
Each SOW shall set forth the delivery and acceptance criteria, if any, for each item to be delivered to Customer by Varicent under such SOW (each, a “Deliverable”). If no acceptance criteria are specified, the acceptance criteria for a Deliverable shall be such Deliverable’s conformance to the description of it set forth in the SOW, if any. Unless otherwise stated in an SOW, Customer must accept or provide a written explanation as to how it believes the Deliverable does not conform to the applicable acceptance criteria within five (5) Business Days of receiving a copy; otherwise, the Deliverable will be deemed accepted. Varicent shall have a reasonable period of time in which to correct the Deliverable and resubmit it to Customer. This process shall be repeated until the Deliverable is accepted by Customer.
4. PROPRIETARY RIGHTS
Except as may otherwise be set forth in a SOW, Varicent shall hold all rights, title and interest to the Deliverables. Varicent hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use each Deliverable only with the Software for internal business purposes. Each such license shall commence on acceptance of the Deliverable to Customer and shall automatically terminate on expiration or termination of Customer’s license to the Software with which such Deliverable is intended to be used. Each such license shall be subject to the same restrictions as apply to Customer’s license to use the Software pursuant to the Agreement.
5. PROJECT MANAGEMENT
5.1. Project Managers, Business Sponsors. Each Party shall designate (a) a “Project Manager” for each SOW who shall be the principal point of contact between the Parties for all matters relating to such SOW and (b) a “Business Sponsor” who shall be the principal point of contact between the Parties for all matters relating to the Parties overall relationship with respect to Professional Services. Each Party may designate a new Project Manager or Business Sponsor by notice to the other Party.
5.2. Issue Resolution.
5.2.1. If an issue arises with respect to the Professional Services (an “Issue”), the Project Managers shall meet to resolve the Issue in good faith. If the Issue is not resolved within three (3) Business Days after such meeting, the Parties’ Business Sponsors shall meet to resolve the Issue. If the Parties’ Business Sponsors are unable to resolve the Issue within ten (10) Business Days after it is submitted to them for resolution, the Issue shall be escalated to a senior executive of each Party identified by notice to the other Party. If the executives are unable to resolve the Issue within ten (10) Business Days after submission to them, either Party may pursue dispute resolution in accordance with the Agreement. If resolution of an Issue requires changes to the applicable SOW, the Parties shall enter into a Change Order with respect thereto.
5.2.2. During negotiation of an Issue, the Parties shall continue to perform their obligations under the Agreement; provided however, that Varicent may, without liability and without prejudice to any other right or remedy Varicent may have, suspend performance of any Professional Services related to or dependent on the resolution of such Issue until such time as the Issue is resolved.
5.2.3. Meetings shall occur in person, by telephone or by video, as the Parties agree.
6. CUSTOMER RESPONSIBILITIES
6.1. Access to Customer Facilities and Systems. Customer shall provide Varicent with access to Customer’s data and telecommunications networks and Customer Systems as required for Varicent to perform the Professional Services. Customer shall, if Professional Services are to be performed onsite at Customer’s facilities, provide Varicent’s Personnel with reasonable workspace and other resources at such facilities, as reasonably required for Varicent to perform such Professional Services.
6.2. Data Security. Notwithstanding Varicent’s and its Personnel’s material compliance with the Customer Policies, Customer is solely responsible for the protection and security of Customer’s networks, the Customer Systems, and all Customer Data made available to Varicent or its Personnel for use in the Professional Services.
6.3. Cooperation. Customer shall provide Varicent with reasonable cooperation with respect to the Professional Services and as further described in each SOW, including providing prompt review and feedback with respect to all Deliverables.
6.4. Delays. Varicent shall not be in breach of this Professional Services Schedule or any SOW to the extent such breach results from Customer’s failure to: (a) provide Customer Data, information, approvals, or feedback as specified in the applicable SOW; (b) provide other reasonable assistance as requested by Varicent; or (c) perform any of its obligations set forth in the Agreement. If Varicent is delayed in the performance of any of its obligations under any SOW for any of the causes described in the preceding sentence, the due dates for all subsequent milestones and Deliverables shall be extended day for day for the number of days that Customer is late in fulfilling its obligations. Customer acknowledges that any delays caused by Customer as set out in subsections (a)-(c) above may result in additional Professional Services Fees which will be charged in accordance with the fee structure outlined in the relevant SOW.
6.5. Compliance. Customer shall be responsible for the identification of, interpretation of, and compliance with, any applicable laws, regulations, and statutes that affect its existing systems, applications, programs, or data to which Varicent will have access during the performance of the Professional Services, including applicable Data Protection Laws, export and import laws and regulations, and product safety and regulatory compliance for non-Varicent products. Customer is solely responsible for obtaining legal advice as to the compliance with such laws and regulations.
7. TERM AND TERMINATION
7.1. Term of SOWs. The term of each SOW shall commence on the SOW Effective Date set forth therein and continue for the applicable period set forth therein or until completion of the Professional Services set forth therein, whichever occurs earlier (the “SOW Term”), unless extended in accordance with the SOW or earlier terminated in accordance with Section 7.2 or the Agreement.
7.2. Termination by Either Party. Either Party may terminate any SOW immediately upon written notice if the other Party is in material breach of such SOW or the Agreement and the breaching Party has failed to cure such breach within thirty (30) days after receipt of notice from the non-breaching Party describing the breach in reasonable detail.
7.3. Effect of Termination. Upon the expiration or termination of any SOW, (a) the license for the Deliverable granted in Section 4 shall terminate, and (b) Customer shall immediately pay to Varicent all outstanding Professional Services Fees and other amounts due under such SOW. In the event where the Professional Services Fees due under a SOW are milestone based, Customer shall pay all completed milestones and a pro-rated amount for partially completed milestones. The pro-ration of partially completed milestones shall be based on the effort hours worked as compared to the planned effort hours. For the avoidance of doubt, termination of a SOW (and not the whole Agreement) shall not automatically result in termination of Customer’s access to the Cloud Service or of any other SOW and the terms and conditions of the Agreement shall continue to apply to the Cloud Service and any other SOWs until they themselves, or the Agreement as a whole, are terminated.
7.4. Survival. All provisions that by their plain meaning are intended to survive shall survive the expiration or termination of each SOW.