BY ACCEPTING AN ORDER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOLLOWING PROFESSIONAL SERVICES ADDENDUM SHALL BE GOVERNED BY THE TERMS AND CONDITIONS OF THIS ADDENDUM AND THE CAYOSOFT SUBSCRIPTION AGREEMENT (“CSA”) BETWEEN CAYOSOFT AND CUSTOMER.
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Professional Services
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As used in this Addendum are defined below. Capitalized terms that are not defined below or in the Addendum shall have the meanings ascribed to them in the CSA.
“Acceptance Criteria” means the criteria (including the applicable Specifications, test data, test conditions and exception conditions) that constitute the basis for determining the completion of all tasks and any sub-tasks comprising all project milestones, and for evaluating the Deliverables for acceptance.
“Acceptance Period” means five (5) Days following the completion of Services, providing Customer time to dispute conformance of the Services.
“Customer” means the entity identified in the Order.
“Day” means eight (8) hours.
“Deliverable(s)” means items created for Customer by Cayosoft in connection with Cayosoft’s performance of this Addendum and any associated Orders.
“Fixed Price Order” is an Order in which Deliverables are provided for a fixed fee, regardless of the Time required to perform or create them.
“Package Offering” is a prepaid Fixed Price Order represented by a discreet SKU on an Order.
“Services” means and includes all services provided to Customer by Cayosoft or by any parent, subsidiary or legal affiliate of Cayosoft (a “Cayosoft Affiliate”) pursuant to an Order, including, but not limited to, training, third-party program installation and integration, staff augmentation services, conversion and implementation planning, installation, and other consulting services.
“Services Offering Description” is a document incorporated into the Order by reference which contains a description of the planned Services and/or Deliverables, as well any applicable terms such as scope, delivery schedule, Acceptance Criteria, Specifications, pricing, Package Offering (if applicable), tasks to be performed by the parties and the roles and responsibilities of the parties.
“Specifications” means (i) with respect to any software, the description of functional, technical, design and performance characteristics for the software, and (ii) with respect to any other item, the description of such characteristics of the item as may be necessary or relevant for determining that the item is complete and otherwise free of errors or defects.
“Time” is the quantity of Days or hours stated on an Order and referenced in a Time and Materials Order.
“Time and Materials” is an Order in which Services are provided on a per hour or per Day basis.
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Cayosoft will perform the Services and provide the related Deliverables (if any) as specified and described in one or more separate “Orders,” “Statements of Work”, “Services Order Form”, “Cayosoft Quotation”, “Service Offering Description” or “Services Order Confirmation” or other document (whether electronic or hardcopy) serving a similar function (each a “Order” and collectively the “Orders”). Each Order will set forth a Services Offering Description. If a Services Offering Description is not set out in the Order, then the terms posted at http://cayosoft.com/legal/service-offering-descriptions.aspx on the date the Order is executed by Customer shall apply to the applicable Order.
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Each Order, when executed by an authorized representative of both parties, shall be deemed to incorporate therein all of the terms and conditions of this Addendum and the CSA. In the event of any ambiguity or conflict between any of the terms and conditions contained in this Addendum and the terms and conditions contained in an Order or the CSA, the terms and conditions of this Addendum shall control, unless the parties have expressly provided in such Order that a specific provision in this Addendum is amended, in which case this Addendum shall be so amended, but only with respect to such Order; and any such amendment shall have no application to Services provided pursuant to other Orders.
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Except as otherwise stated in the Order, Cayosoft shall process an Order upon receipt of Customer’s purchase order (“PO”) for the Services and the estimated travel and living expenses (if any), each as stated in the fees table of the Order. The estimated travel and living expenses stated in the Order shall be included as a separate line item on the PO. Cayosoft, in its sole discretion, may waive the requirement for a PO if Customer confirms in writing that it does not issue POs for services.
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Customer requests for any change in Services must be in writing; this requirement pertains to all such requests including but not limited to requests for changes in project plans, scope, specifications, schedule, designs and requirements. Cayosoft will not be obligated to perform tasks described in Customer’s request until the parties mutually agree in writing to the proposed change.
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The parties agree that transactions covered by any Order under this Addendum may be conducted by electronic means. Cayosoft may elect to electronically generate and transmit Orders to Customer through Cayosoft’s electronic system, by electronic mail (e-mail), portable document file (PDF) or other electronic means. Any such electronic transmission shall be subject to and exclusively governed by the terms and conditions set forth herein. The parties also agree that signatures for any Order transmitted by PDF scan or other means of electronic communication shall be an acceptable means of providing such signature.
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Term and Termination
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This Addendum will commence on the effective date of the applicable Order (“Effective Date”) and will remain in effect until terminated as provided herein. Completion of any Services by Cayosoft identified in any Order, or the absence of additional Orders identifying Services requested by Customer will not automatically terminate this Addendum or such Order(s) except as herein provided.
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Time purchased under this Addendum shall be available for Customer’s use from the Effective Date of the applicable Order until the earlier of (i) when the Time is consumed; (ii) one (1) year from the Effective Date of Order under which the Time was purchased; or (iii) for Package Offerings, within ninety (90) days of the Effective Date of the applicable Order.
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Either party may also terminate this Addendum and/or an Order in the event the other party fails to cure any default following written notice given under the CSA and expiration of the cure period identified therein.
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Unless otherwise agreed by the parties or earlier terminated in accordance with the provisions hereof, this Addendum and each Order will terminate upon termination of the CSA.
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Unless otherwise agreed in an Order or the CSA, prepaid fees are non-refundable and non-cancellable unless Customer terminates this Addendum pursuant to Section 2(c). Termination will not affect or limit Customer’s obligation to pay for Services and/or Deliverables. If Services under an applicable Order continue past the date of any termination, this Addendum will be deemed extended with respect to such Services.
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Charges
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Customer agrees to pay time and materials charges in accordance with Cayosoft’s established rates and minimums in effect at the time the Services are rendered, or such other rates or amounts as may be specified in an Order executed by both parties. “Time and materials charges” means that Customer will pay Cayosoft for all the time spent performing Services hereunder, plus materials, taxes and expenses. Except as otherwise specified in an applicable Order, all charges, rate classifications and minimum hours are subject to change by Cayosoft upon thirty (30) calendar days’ prior notice to Customer.
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Except as otherwise provided in an applicable Order, charges will be invoiced upon execution of the applicable Order and are due and payable within 30 days of Customer’s receipt of Cayosoft’s invoice, without deduction or setoff. Remedies for late payments are provided in the CSA. If Customer disputes Cayosoft’s charges, Customer must notify Cayosoft within 30 days of the date of the invoice containing the disputed charge. Customer acknowledges and agrees that if Cayosoft’s invoice(s) are not paid in full in a timely manner, Cayosoft shall have the right, upon five (5) calendar days’ prior notice and thereafter in its sole discretion, to immediately suspend and/or terminate Services and any work in progress under this Addendum, in addition to such other remedies it may have at law, in equity or elsewhere in this Addendum. Any such suspension or termination: (x) will not relieve Customer of its obligation to pay all charges that accrued prior to such suspension or termination, (y) shall be without liability to Cayosoft, and (z) will extend the due dates of Deliverable(s), if any, and other Services to the extent affected by such suspension or delay.
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The fees and other amounts payable pursuant to this Addendum are exclusive of, and Customer shall pay, all federal, state, local, municipal or other sales, use, transfer, excise, intangible, property and other taxes and duties imposed with respect to the Services rendered, except for taxes based on Cayosoft’s income or capital. All such taxes paid by Cayosoft (either as a matter of convenience to Customer or pursuant to a legal requirement) will be invoiced to and paid by Customer.
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Customer agrees to reimburse Cayosoft promptly for all expenses reasonably incurred in providing Services. Cayosoft will seek Customer’s prior approval for individual expenses that exceed $100. Upon request, Cayosoft agrees to promptly provide Customer with copies of receipts for expenses incurred on Customer’s behalf. Such expenses are not included in any monetary limits stated in the applicable Order unless expressly itemized therein.
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Responsibilities and Cooperation
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Each party will designate a primary contact person to manage the overall relationship contemplated by this Addendum. Each party will also designate a primary contact person for each Order, who, for that particular Order, will (i) serve as project manager, (ii) be the initial point of contact for communications between the parties, and (iii) provide overall and day-to-day project management for the tasks covered by the Order. Either party may change its contact person by notifying the other party.
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Customer will provide Cayosoft with all information relevant to the Services to be performed hereunder, will provide an environment where consultants can work efficiently, and will cooperate and provide Cayosoft with all assistance as may reasonably be required to properly perform the Services. Customer acknowledges that its timely provision of and access to office facilities, network and infrastructure facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents and employees, and suitably configured computer products (collectively, “Cooperation”) are essential to performance of any Services, and that Cayosoft will not be liable for any deficiency in providing Services if such deficiency results from Customer’s failure to provide Cooperation. Furthermore, Customer acknowledges that such delays or deficiencies in providing Services shall be subject to change orders and may result in additional charges for the Services.
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Customer will retain general supervision, management, direction and control over its tasks or functions on which Cayosoft’s personnel work or assist when providing Services.
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Intellectual Property
Unless expressly stated otherwise in an Order, all Intellectual Property Rights in and to the Deliverables except for any Confidential Information of Customer or Customer Data shall be owned by Cayosoft. Unless expressly stated otherwise in an Order, Cayosoft hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free basis to the extent necessary to enable Customer to make reasonable use of the Deliverables during the Term of Customer’s Subscription License under the CSA.
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Non-Solicitation of Employees
During the term of this Addendum and thereafter at all times through the twelve-month anniversary date that Cayosoft last invoiced Customer for services, neither party will, directly or indirectly, recruit, solicit or cause to be recruited or solicited any employees or independently contracted consultants of the other for the purpose of hiring them or inducing them to leave their employment or engagement. This restriction, however, will not prohibit a party from carrying on general industry solicitations. In the event either party hires an employee of the other in violation of this Section 6, the hiring party agrees to pay to the other party, as liquidated damages and not as a penalty, an amount equal to one year’s base compensation at the original employer, for each such person hired.
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Service Estimates and Personnel
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Cayosoft makes no estimate of cost or completion dates, other than any estimates expressly set forth in an applicable Order. The parties agree that scheduling and delivery dates contained in an Order are important objectives to achieve, but nonetheless represent estimates that are subject to revision during the course of providing Services. The dollar amount reflected in any estimate can vary, sometimes substantially. Cost estimates are made in good faith based on information furnished by Customer and do not constitute Cayosoft’s agreement to furnish time and materials for a certain price or for a “not to exceed” price, but instead are provided solely for Customer’s preliminary budgeting and Cayosoft’s resource scheduling purposes. Except as otherwise provided in an applicable Order, all Services under this Addendum are provided on a time and materials basis only. Cayosoft will update its estimates at Customer’s request.
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Cayosoft agrees to use commercially reasonable efforts to provide qualified personnel in accordance with service estimates provided to Customer in an applicable Order. Cayosoft will make every reasonable effort consistent with sound business practices to honor the specific requests of Customer with regard to the assignment of its employees; however, Cayosoft reserves the sole right to determine the assignment of its employees. Should any personnel be unable to perform Services due to any causes beyond Cayosoft’s reasonable control, Cayosoft will attempt to replace such employee within a reasonable time but will have no other liability to Customer.
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Warranty and Disclaimers
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Services Warranty: Cayosoft warrants that all Services provided hereunder will be performed in a manner consistent with generally accepted information technology consulting industry practices applicable to such Services. Customer must report any deficiencies in the Services to Cayosoft in writing within thirty (30) calendar days of the performance of such Services in order to receive corrective warranty remedies as set forth in Section 8(b) below.
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For breach of the above Services warranty, Customer’s first remedy will be Cayosoft’s re-performance of the Services. If Cayosoft is unable to re-perform the Services as warranted, Customer’s second and final remedy will be to recover the equitable portion of the fees paid to Cayosoft for the deficient Services in an amount not to exceed the total amount paid or payable for Services under the applicable Order to which such warranty claim applies. The foregoing states Customer’s exclusive remedies for breach of warranty with respect to Services provided, and Cayosoft’s entire liability therefor.
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Deliverables Warranty: With respect to any Deliverable (excluding any Customer-provided or third-party materials), Cayosoft warrants that at the time of delivery and for a period of thirty (30) days following acceptance by Customer of the particular Deliverable (“Warranty Period”), the Deliverable will materially conform to the applicable Specifications and Acceptance Criteria (if any). Customer must report any alleged defects or other deficiencies in any Deliverable within five (5) calendar days of Cayosoft’s completion and submission of the applicable Deliverable. Unless otherwise specified in an applicable Order, all Deliverables are deemed accepted unless expressly rejected by Customer within five (5) calendar days after submission for approval, and after acceptance any subsequent Services provided with respect to such alleged warranty defects or otherwise shall be provided at Customer’s expense and on a time and materials basis at Cayosoft’s then-current rates.
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For breach of the above Deliverables Warranty and during the Warranty Period, Customer’s first remedy will be for Cayosoft (as soon as reasonably practical and at no charge to Customer) to furnish such materials and services as may be required to correct any nonconformity or defect in the Deliverable(s) and to maintain the Deliverable(s) in good working order in accordance with the applicable specifications. If within a commercially reasonable period of time Cayosoft is not able to correct the nonconformity or defect as warranted, Customer’s second and final remedy will be to recover the fees paid to Cayosoft for the deficient Deliverable in an amount not to exceed the total amount paid or payable for such Deliverable under the applicable Order to which such warranty claim applies. The foregoing states Customer’s exclusive remedies for breach of warranty with respect to any Deliverable, and Cayosoft’s entire liability therefor.
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THE WARRANTIES IDENTIFIED IN THIS SECTION 8 ARE THE SOLE AND EXCLUSIVE WARRANTIES AVAILABLE FOR SERVICES AND/OR DELIVERABLE(S), AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES. CAYOSOFT DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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CAYOSOFT DOES NOT WARRANT AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND WILL NOT BE LIABLE OR OTHERWISE RESPONSIBLE FOR THE PRODUCTS OR SERVICES OF ANY THIRD PARTY. CAYOSOFT IS NOT RESPONSIBLE FOR MODIFICATIONS BY CUSTOMER OR ANY THIRD PARTY TO ANY DELIVERABLE PROVIDED BY CAYOSOFT HEREUNDER. If Cayosoft has been engaged by Customer to install, implement, integrate, maintain or upgrade a third-party software program or application (“Third Party Software”), Customer acknowledges that Cayosoft is not the author, developer, provider or seller of such Third Party Software, but instead has been retained by Customer solely to install, implement, integrate, maintain or upgrade such Third Party Software in Customer’s current computing environment. As such, Customer agrees that Cayosoft will not be liable or otherwise responsible for any defects, flaws, programming errors, inefficiencies or malfunctions in any such Third Party Software, or for any lack of functionality in or non-performance of the Third Party Software. Customer agrees: (i) that its exclusive remedies with respect to any Third Party Software will be against the vendor or provider thereof; (ii) not to assert against Cayosoft any claim based on or related to Customer’s use of any Third Party Software; and (iii) that its use of any Third Party Software will be governed solely by the terms of Customer’s license agreement with the provider of such Third Party Software.
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General
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This Addendum and any Orders executed pursuant to this Addendum cannot be altered, amended or modified except in writing referencing the express intent to modify or waive the provisions of this Addendum, executed by an authorized representative of each party.
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All provisions of this Addendum that, by their nature and content, should survive the completion, rescission, termination or expiration of this Addendum in order to achieve the fundamental purposes of this Addendum, shall so survive and continue to bind the parties. Each party represents and warrants to the other that the individuals executing this Addendum and all other documents to be executed pursuant hereto have the full power and authority to do so.
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It is expressly agreed that the terms and conditions of this Addendum and any applicable Order supersede the terms of any Customer purchase order, request for proposal (RFP) or other communications, which shall have no legal force or effect unless accepted, executed and delivered as an amendment hereto.
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