Professional Services Addendum

This Professional Services Addendum (“PSA”) forms part of the Master Subscription or Managed Service Provider Agreement between Customer and Axcient or other written or electronic agreement between Axcient and Customer for the purchase of online services and software licensing from Axcient (the “Agreement”) to reflect the parties’ agreement with regard to the Professional Services (defined below). All capitalized terms not defined herein shall have the meaning set forth in the Agreement.


  1. Professional Services Provisions


  1. Description of Professional Services. We will provide the services (“Professional Services”) and deliverables (“Deliverables“) to You as described in one or more separate “Statements of Work” executed by an authorized representative of each party.


  1. Your Obligations. You agree to provide assistance, cooperation, information, equipment, data, a suitable work environment and resources reasonably necessary to enable Us to perform the Professional Services. You acknowledge that Our ability to provide Professional Services as set forth herein may be affected if You do not provide reasonable assistance as set forth above.


  1. Project Management. Each party shall designate a Project Manager who shall work together with the other party’s Project Manager to facilitate an efficient delivery of Professional Services.


  1. Change Order. In order to change the scope Professional Services in a Statement of Work, You will submit a written request to Us specifying the proposed changes in detail and We will provide an estimate of the charges and anticipated changes in the delivery schedule that will result from the proposed change in Professional Services. We will continue performing the Professional Services in accordance with the applicable Statement of Work until the parties agree in writing on the change in scope of work, scheduling, and fees.


  1. Proprietary Rights. We shall retain all title, copyrights, patents, patent rights, trade secrets, trademarks and other proprietary or intellectual property rights in the Deliverables, except as otherwise stated in the Agreement.


  1. Warranty. We warrant for ninety (90) calendar days from the performance of any Professional Services by Us pursuant to this Exhibit A, that such Professional Services shall be performed in a manner consistent with generally accepted industry standards. You must report in writing any breach of the warranty contained in this Section to Us during the relevant warranty period, and Your exclusive remedy and Our entire liability for any breach of such warranty shall be the re-performance of the Professional Services, or if We are unable to perform the Professional Services as warranted, You shall be entitled to recover the fees paid to Us for the nonconforming Professional Services.


  1. Acceptance. Upon completion of any Deliverable, We shall submit the Deliverable to You. At Your request, We will demonstrate to You the functionality of the Deliverable. You shall be responsible for any additional review and testing of such Deliverable in accordance with any applicable acceptance criteria and test suites. If You, in Your reasonable discretion, determine that any submitted Deliverable does not perform the functional requirements specified for such Deliverable in the applicable Statement of Work, You shall have five (5) calendar days after Our submission of the Deliverable (“Acceptance Period”) to give written notice thereof to Us specifying the deficiencies in detail. We shall use reasonable efforts to promptly cure any such deficiencies. After completing any such cure, We shall resubmit the Deliverable for review and testing as set forth above. Upon accepting any Deliverable submitted by Us, You shall provide to Us a written acceptance of such Deliverable. Notwithstanding the foregoing, if You fail to reject any Deliverable within the Acceptance Period in the manner described above, such Deliverable shall be deemed accepted at the end of the Acceptance Period. In the event any Deliverable is not accepted by You as specified above after the third submission and Acceptance Period, either of us (You or Us) may terminate the applicable Statement of Work without further liability to either party, provided however, that You shall not be relieved of Your payment obligations with respect to the accepted Professional Services delivered prior to any such termination.


  1. Axcient Service and Software. The Professional Services provided under this Addendum are provided in support of Your license, under the Agreement, to use the Axcient Service and Software and the Agreement shall govern Your use of the Axcient Service and Software. Neither this Addendum nor any Statement of Work hereunder grants You any license or rights to use such Axcient Service and Software.  In addition, You agree that Your purchase of Professional Services under this Addendum is not contingent upon the delivery of any future functionality or features in the Axcient Service or Software, nor is it dependent upon any oral or written public comments made by Axcient with respect to future functionality or features.


  1. Third Party Sub-contractors. We reserve the right to use third parties (who are under a strict covenant of confidentiality with Us), including, but not limited to, offshore sub-contractors to assist with the data migration, configuration, implementation and custom code development processes.


  1. Payment Provisions


  1. Fees. Professional Services shall be provided under this Exhibit A at the rates and terms set forth in the applicable Order Form.


  1. Expenses. You will also be responsible for reimbursing Us for all of Our customary travel and living expenses (“Expenses”) incurred in each services engagement. All Expenses will be pre-authorized in writing by You, invoiced promptly and due upon receipt.


  1. Miscellaneous


  1. Product Mix. You acknowledge that the Professional Services acquired hereunder were ordered separately from the Axcient Services described on Our Order Form and You may acquire either Axcient Services or Professional Services without acquiring the other.


  1. Independent Contractor. Both parties agree that We are an independent contractor and, as such, neither We nor Our personnel shall be considered Your employee(s). As a consequence, You are neither liable nor responsible for withholding or deducting any sums for federal or state income taxes, social security, health, workers’ compensation, and disability insurance coverage, pension or retirement plan, or the like.


  1. Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, You agree that You will not solicit for hire, on behalf of You or any other organization, any employee or sub-contractor of Ours, unless You have first obtained Our written consent. The foregoing shall not apply to general solicitations for employment.