These Professional Services Terms (PSA Terms) form part of the Master Agreement between Client and 9326839 CANADA INC. dba CloudStack Services (CSS) and set out the terms and conditions on which CSS will provide professional services to Client. Capitalized terms used in these PSA Terms and not defined herein have the meanings given to them in the Software Terms or other addenda to the Master Agreement.
1.1. Professional Services consist of either (i) Basic Implementation Services (as defined in Section 1.2); or (ii) Custom Implementation Services (as defined in Section 1.2) all subject to and in accordance with the terms and conditions of these PSA Terms.
2. Implementation Services
2.1. Custom Implementation Services means those software implementation services, training, and additional support services as described in a statement of work as may be agreed upon between the parties in writing (each a Statement of Work or SOW).
2.2. Statements of Work. Each SOW shall contain, unless the parties hereto agree otherwise, a description of the Professional Services to be provided. A SOW may also contain additional terms and conditions as may be mutually agreed by the parties hereto. Each SOW shall be incorporated into and form part of these PSA Terms and the Master Agreement. CSS shall commence the provision of the Professional Services pursuant to the dates specified in such SOW, and the Professional Services shall continue until completed or earlier terminated in accordance with the terms of these PSA Terms or an applicable SOW if additional or different termination terms are included. CSS agrees to use commercially reasonable efforts to complete the Professional Services in accordance with any delivery schedule specified in each SOW. Client agrees that the Professional Services and delivery timetable shall be adjusted to proportionately and reasonably reflect: (a) mutually agreed upon delays confirmed in writing by each party; (b) delays to the extent attributable to Client’s failure to: (i) respond to or answer any reasonable questions and inquiries of CSS or (ii) provide CSS with such information or data that is reasonably requested by CSS and/or necessary for the performance of the Professional Services; and (c) delays to the extent attributable to a request by Client for changes to the Professional Services, and consideration and potential implementation by CSS, of any such requested change(s). A party may terminate any SOW in progress if: (i) the other party has breached any material provision of the Master Agreement (including the PSA Terms) or a SOW, and such breach continues unremedied for a period of thirty (30) days after written notice thereof; or (ii) the other party becomes the subject of bankruptcy, insolvency, reorganization, receivership or other similar proceedings; or (iii) to the extent expressly provided for in a particular SOW.
CSS shall not be obligated or responsible for making any changes, additions or deletions to the Professional Services. Client may, from time to time, request changes to the scope of the Professional Services described in a SOW in accordance with the applicable SOW. In response to any such request from Client, CSS shall determine the feasibility of providing such changes and shall estimate the increase in the total fees payable for providing such changes to the Professional Services. Following receipt of CSS’s response to Client’s request, the parties hereto shall negotiate an amended SOW (or written change order) which sets outs the changes to the Professional Services and the additional fees payable in respect thereof.
4. Client Responsibilities
Client shall for the purpose of enabling CSS to perform the Professional Services be responsible to: (a) provide or make available all information reasonably required by CSS; (b) provide access to any Client facilities, Client Data, Client Systems and Client personnel who possess skills and knowledge appropriate to the service obligations to be performed by such personnel; (c) provide CSS with any and all of Client’s staff, office space, items and materials that are reasonably required by CSS to perform the Professional Services, including as may be expressly specified in a SOW. Client shall (only if and to the extent necessary); (d) perform its obligations and responsibilities set out and described in a SOW, if any; and (e) provide reasonable assistance, cooperation and to facilitate the provision of the Professional Services, including the prompt provision of information and assistance that CSS may request and reasonably require in order to perform its obligations hereunder. In the event that Client fails to provide to CSS elements in subsections (a) through (e) above, sufficient for CSS to progress on an agreed to or otherwise reasonable delivery schedule, CSS will reserve the right to invoice up to 10% of the total project hours on a monthly basis to compensate for retained resources and project management. CSS will not be liable for loss or damage or errors arising from reliance on any such information supplied by Client.
4.1. Client Performance. The parties agree and acknowledge that CSS’s performance of the Professional Services shall be conditional upon, and subject to, Client’s performance of its obligations hereunder (including any obligations specified in a SOW), and that CSS shall not be liable or responsible, in any manner or to any extent, for any failure of CSS to perform all, or any part of, the Professional Services to the extent that any such failure is caused by, due to or contributed to a failure of Client to perform its obligations.
5. INTELLECTUAL PROPERTY
5.1. Client Materials. Client Materials means all of the materials, data and documents that may be provided by Client to CSS in connection with the performance of the Professional Services, and as may be more particularly described in a SOW.
5.2. CSS Property. CSS Property means: (a) any methods, concepts, inventions (whether patentable or not), discoveries, systems, software, processes, techniques, methodologies, concepts, know-how, data, databases, tools, templates, technology, documentation, specifications, designs, or any other information, data or materials, and any expressions of the foregoing, either developed by, owned by, or licensed to, CSS prior to the provision of the Professional Services or developed or created by CSS in the course of the provision of the Professional Services, inclusive of all proposals and materials provided to Client by CSS in connection with the SOW; (b) all improvements, enhancements or derivatives to the items described in (a) that are developed by CSS for the purposes of providing Professional Services under a SOW; and (c) the Deliverables (as defined herein). Client agrees that CSS and its licensors shall remain the sole and exclusive owners of all right, title and interest in and to the CSS Property, including all copyright, trademarks, patents, trade secrets and all other intellectual property or proprietary rights therein.
5.3. Deliverables. Deliverables mean the consulting reports and materials and work product developed, provided and produced by CSS, directly or indirectly through its subcontractors, agents, employees or independent contractors, specifically for Client in the performance of the Professional Services under a SOW, to the extent expressly described in the SOW, but excluding any Client Materials included therein. CSS hereby grants to Client a limited, perpetual, non-exclusive, non-transferable, non-sublicensable, royalty-free (subject to payment of all the Professional Services Fees) right to copy and use the Deliverables and any CSS Property incorporated in the Deliverables solely for Client’s own internal business purposes in conjunction with its use of the Deliverables for their intended purpose and for no other reason or purpose. For certainty, Deliverables do not include any CSS Software or third party software.
6. RISK MANAGEMENT
6.1. Client Warranties. Client represents and warrants to CSS that: (a) it is the owner or lawful custodian of the Client Materials and has the full right and authority and all necessary consents to provide CSS with the Client Materials for the purposes of this PSA Terms and any SOW; and (b) the provision of the Client Materials to CSS for the purposes of this PSA Terms and any SOW is in compliance with all applicable laws.
6.2. CSS Warranties. CSS warrants to Client that it shall perform the Professional Services in a workmanlike manner.
6.3. No Other Warranties. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE REPRESENTATIONS, WARRANTIES AND COVENANTS EXPRESSLY CONTAINED IN THESE PSA TERMS AND ANY SOW ARE THE ONLY REPRESENTATIONS, WARRANTIES, AND COVENANTS PROVIDED BY CSS CONCERNING THE PROFESSIONAL SERVICES AND ANY DELIVERABLES AND THERE ARE NO OTHER REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, THAT THE PROFESSIONAL SERVICES OR ANY DELIVERABLES WILL BE ERROR FREE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DENIED AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. CLIENT CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION OR PROMISE MADE BY CSS WHICH HAS NOT BEEN EXPRESSLY STATED IN THESE PSA TERMS OR APPLICABLE SOW.
6.4. No Indirect Damages. CSS SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITH RESPECT TO LOSS OF OR DAMAGE TO CLIENT MATERIALS OR DATA, LOST PROFITS OR SAVINGS OR REVENUE OR BUSINESS INTERRUPTION) OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY CLIENT OR ANY THIRD PARTY HOWSOEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR UNEFI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.5. Limitation of Liability. CSS IS NOT LIABLE TO CLIENT FOR ANY LOSS OR DAMAGES SUFFERED BY CLIENT IN CONNECTION WITH ANY ACT OR OMISSION OR FAILURE BY ANY THIRD PARTY, INCLUDING ANY SERVICE PROVIDER. CSS’ TOTAL LIABILITY AND OBLIGATION TO CLIENT, IN THE AGGREGATE, IN RESPECT OF ANY PARTICULAR STATEMENT OF WORK, AND PROFESSIONAL SERVICES PERFORMED THEREUNDER AND ANY DELIVERABLES, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED AN AMOUNT THAT IS EQUIVALENT TO THE PROFESSIONAL SERVICES FEES PAID BY CLIENT. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY IN RESPECT OF ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE) AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THESE PSA TERMS AND/OR SOW AND/OR THE MASTER AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN OR THEREIN. CLIENT AGREES THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN SECTIONS 3.4 AND 3.5 ARE REASONABLE BASED UPON THE COMMERCIAL CIRCUMSTANCES, AND CSS WOULD NOT HAVE ENTERED INTO THE MASTER AGREEMENT BUT FOR THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN.
7.1. Professional Services Fees. In consideration of the performance of the Professional Services by CSS, Client agrees that it shall pay to CSS the fees specified in the Order Form and/or a SOW (the Professional Services Fees). Professional Services Fees for Custom Implementation Services may be calculated on a time and materials basis, at the rates specified in the applicable SOW or on such other basis as may be specified and agreed in a particular SOW.
7.2. Expenses. If specified in an a SOW, Client agrees that it shall reimburse CSS for expenses incurred by CSS in the performance of the Professional Services as specified in a SOW. Any and all costs or expenses incurred by Client in connection with CSS’s performance of the Professional Services and its activities pursuant thereto shall be the sole responsibility of and shall be borne by Client.
7.3. Taxes. The Professional Services Fees are exclusive of, and Client agrees that it is solely responsible to pay or reimburse CSS for, all applicable duties and taxes imposed or due in connection with the Professional Services Fees, including sales tax, goods and services tax, use, withholding or excise tax and all other like or similar taxes applicable to the provision of the Professional Services.
7.4. Payment Terms. CSS shall invoice, and Client shall pay to CSS the Professional Services Fees either as set out in the Order Form or according to the invoice and payment terms specified in a SOW. No additional term or condition included in any Client purchase order or other document issued by Client that has not previously been agreed to in writing by CSS shall bind CSS. All Professional Services Fees are non-refundable.
7.5. Suspension. In the event that Client fails to pay any of the Professional Services Fees within thirty (30) calendar days of their due date, such failure shall be deemed to be a material breach of the Master Agreement and in addition to any other remedies available to CSS, CSS shall be entitled to suspend the performance of the Professional Services until Client has paid all outstanding amounts in full.
8. OTHER PROVISIONS
8.1. Paramountcy. In the event of any inconsistencies or conflicts between the terms of these PSA Terms and the terms of any Statement of Work, the terms of these PSA Terms will prevail, unless otherwise specifically and expressly stated in the agreed to Statement of Work.