Professional Services Addendum.
Last updated on November 25, 2020.
PROFESSIONAL SERVICES ADDENDUM
This Professional Services Addendum (“Services Addendum”) supplements and is incorporated by reference into and made a part of the Agreement between Customer and Traction Guest. Capitalized terms not defined in this Services Addendum shall have the meaning ascribed to them in the Agreement. In the event of a conflict between this Services Addendum and the Agreement, the terms of the Agreement shall govern unless this Services Addendum expressly states the terms of the Services Addendum shall control.
- Application. This Services Addendum governs the Customer’s purchase and receipt of Professional Services as described in one or more Order Forms or Statements of Work, as applicable (each an “Ordering Document”), executed by the parties from time to time. Upon execution by authorized representatives of each party, the Ordering Document shall be governed by the terms and conditions of this Services Addendum and will form part of the Agreement.
- Scope. Traction Guest will provide to Customer the Professional Services specified in each Ordering Document, subject to Customer’s payment of Professional Services Fees (as defined below) in accordance with the terms of this Services Addendum. Any modification to the Professional Services, including but not limited, the scope, delivery schedule, or fees, shall be agreed to by the parties in writing pursuant to a change request to the applicable Ordering Document (each a “Change Request”). A Change Request must be signed by parties prior to the implementation of such changes.
- Traction Guest’s Obligations. Traction Guest shall perform the Professional Services for Customer as described in any Ordering Document. Traction Guest shall perform such Professional Services in a reasonable, professional and workmanlike manner in keeping with industry standards and practices. Traction Guest shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services. Customer acknowledges and agrees that Traction Guest may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Traction Guest in performing the Professional Services. Traction Guest personnel or Subcontractors shall remain under the direction and control of Traction Guest. Traction Guest shall use reasonable efforts to comply with all Customer procedures and rules that have been communicated to Traction Guest in writing prior to the commencement of the applicable Ordering Document.
- Customer’s Obligations. Customer acknowledges and agrees that performance of Professional Services is heavily dependent upon information and responses to be provided by Customer. Accordingly, in addition to any specific responsibilities set out in writing between the parties, Customer shall: (i) allocate sufficient resources and provide any information, documentation, or any other support as reasonably necessary to enable Traction Guest to perform its obligations under each Ordering Document; (ii) carry out reviews and respond to requests for approval or information in a timely manner; (iii) deliver all Customer deliverables or other obligations as specified in an Ordering Document in a timely manner; (iv) ensure that Traction Guest has available to them personnel familiar with Customer’s requirements and with the expertise necessary to permit Traction Guest to undertake and complete the Professional Services; (v) designate an internal project manager for each Ordering Document to serve as a primary point of contact for Traction Guest; (vi) make available to Traction Guest all equipment, material, information, data, network access and/or facilities that Traction Guest may reasonably require to carry out its obligations; and (vii) if applicable, make all commercially reasonable efforts to maintain and comply with the project plan as agreed to between the parties in any Ordering Document. Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on Traction Guest’s performance of the Professional Services and Traction Guest shall not be liable for any delay to the extent caused by Customer’s failure to fulfill any of its requirements under the Agreement, this Services Addendum and/or any Ordering Document. In the event Professional Services are performed on Customer’s premises, Customer shall provide to Traction Guest such workspace, computers, equipment and software as is reasonably required by Traction Guest for the performance of its obligations.
- Delays. If the performance of Traction Guest’s obligations under this Agreement are prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, then Traction Guest shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Fees. Customer shall pay Traction Guest the fees set forth in the applicable Ordering Document (“Professional Services Fees”). All Professional Service Fees shall be paid within thirty (30) days of the date of the invoice unless otherwise agreed to in writing by the parties. Customer shall reimburse Traction Guest for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Traction Guest in the performance of any Professional Services, provided that such expenses are approved in advance in writing by Customer. The Professional Services Fees shall exclude all applicable federal, state, provincial, value-added, goods and services, harmonized and local taxes (other than taxes on Traction Guest’s net income).
- Term and Termination. This Services Addendum shall remain in effect until the expiry or termination of the all applicable Ordering Documents hereunder. Each party shall be entitled to immediately terminate an Ordering Document for cause in the event of: (i) the material breach by the other party of its obligations under this Services Addendum or an Ordering Document, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign the Agreement to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate this Services Addendum or any Ordering Documents hereunder, and any pre-paid fees for Professional Services will be non-refundable, unless expressly stated otherwise in an Ordering Document. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
- Intellectual Property Rights. Except as set forth in the Agreement or otherwise set forth in the relevant Ordering Document, Traction Guest shall own all right, title and interest and all intellectual property rights to any Deliverables created by Traction Guest pursuant to this Services Addendum or any Ordering Document hereunder. Traction Guest shall retain all right, title and interest and all intellectual property rights to any and all Traction Guest proprietary information and Traction Guest software (including, without limitation, any modifications to the Services and/or Deliverables). Subject to payment of the applicable fees set forth in the Ordering Document, Traction Guest grants to Customer a perpetual, worldwide, fully-paid, royalty-free, non-exclusive, non-transferable (except as provided in the Agreement) license to use the Deliverables created pursuant to this Services Addendum or any Ordering Document for the purposes described in the accompanying Ordering Document.
- Warranty. Traction Guest warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with the generally accepted industry standards. EXCEPT AS PROVIDED UNDER THIS SECTION 9, TRACTION GUEST EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE PROFESSIONAL SERVICES, WHETHER EXPRES OR IMPLIED, STATUTORY OR OTHERWISE, AND TRACTION GUEST SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.