This addendum, together with our Master Subscription Agreement, governs your acquisition of consulting services from us. “We,” “Us”, “Certinia” and “Our” mean the contracting party identified in the MSA.
By accepting this addendum, through execution of a statement of work referencing this addendum or through other means, you agree to the terms of this addendum. If you are entering into this addendum on behalf of a company or other legal entity, you represent that you have the authority to bind that entity and its affiliates to these terms and conditions, in which case the terms “You” and “Your” in this addendum refer to that entity and its affiliates. If you do not have that authority, or if you do not agree with these terms and conditions, you must not accept this addendum and may not acquire consulting services from Us.
You may not receive consulting services or deliverables from Us if You are our direct competitor, except with our prior written consent. In addition, You may not use our consulting services to monitor the availability, performance or functionality of our products or for any other benchmarking or competitive purposes.
This Agreement was last updated on November 2, 2023. It is effective between You and Certinia as of the date You accept it.
“Change Order” means any change to an SOW, as applicable, as described in the “Change Orders” section below. Change Orders will be deemed incorporated by reference in the applicable SOW, as applicable in the absence of an SOW.
“Professional Services” means professional services performed by Us, Our Affiliates, or Our or their respective permitted subcontractors under an SOW, including Our provision of any Deliverables specified in such SOW.
“Deliverable” means a deliverable specified in an SOW.
“Online Services” means the “Services” as defined in the MSA.
“SOW” means a statement of work, or other mutually-agreed ordering document, describing Professional Services to be provided hereunder, that is entered into between You and Us or any of Our Affiliates. An Affiliate of Ours that executes an SOW with You will be deemed to be “Us” as such term is used in this Addendum. SOWs will be deemed incorporated herein by reference.
2.1 Scope of Professional Services. We will provide to You the Professional Services specified in each SOW. Each SOW shall be governed by the terms of this Addendum and the MSA, (as amended by this Addendum). References to “Order Form” in clauses tilted “Taxes”, “Confidentiality” and “General Provisions” of the MSA shall be deemed to refer to “SOW or Order Form” for the purposes of this Addendum.
2.2 Relationship to Online Services. This Addendum is limited to Professional Services and does not convey any right to use Online Services. Any use of Online Services by You will be governed by a separate agreement. You acknowledge that the Professional Services are bid separately from the Online Services, and neither is conditional on the other. You agree that your purchase of Professional Services is not contingent on the delivery of any future Online Service functionality or features, other than Deliverables, subject to the terms of the applicable SOW, or on any oral or written public comments by Us regarding future Online Service functionality or features.
2.3 Access to Your Data. To perform the Professional Services, We may be required to access Your Data in, or export Your Data from, Your instance of the software. We will implement appropriate security measures to protect such Your Data and to terminate such access and securely delete exported Your Data when no longer needed to perform the Professional Services. Any access to Your Data hereunder shall be subject to the Data Protection and Confidentiality obligations as set out in the MSA.
3.1 Cooperation. You will cooperate reasonably and in good faith with Us in Our performance of Professional Services by, without limitation, (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Us to perform its obligations under each SOW, (b) timely delivering any materials and other obligations required under each SOW, (c) timely responding to Our inquiries related to the Professional Services, (d) assigning an internal project manager for each SOW to serve as a primary point of contact for Us, (e) actively participating in scheduled project meetings, (f) in a timely manner and at no charge to Us, access to Your appropriate and knowledgeable employees and agents, continuous administrative access to Your Online Service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Us, (g) complete, accurate and timely information, data and feedback all as reasonably required, and (h) if Us is performing Professional Services on Your premises, providing office workspace and Internet access.
3.2 Delays. Any delays in the performance of Professional Services or delivery of Deliverables caused by You may result in additional charges for resource time. We may terminate an SOW upon 15 days written notice to You if such delay renders Us unable to perform the Professional Services for a period of more than 30 days.
4.1 Changes to a SOW will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
5.1 Fees. You will pay Us for the Professional Services at the rates specified in the applicable SOW, or if no rate is specified in the SOW, Our standard rates in effect at the time the SOW is executed. Professional Services are provided on a time-and-materials as provided in an SOW. Any estimated amounts described in an SOW are solely good-faith estimates for budgeting and resource-scheduling purposes, and are not a guarantee that the scope of the SOW will be completed within such amounts. You will be invoiced for actual hours of Professional Services performed under any time-and-materials SOW. If the estimated amount is expended, We will continue to provide Professional Services under the same rates and terms, and Your prior approval shall be required for any hours exceeding the estimate by more than 10% (email is acceptable). We will periodically update You on the status of the Professional Services and the fees accrued under SOWs.
5.2 Change Order. Any fees due pursuant to a Change Order are due and payable in addition to the fees specified in an SOW. Unless stated otherwise, fees for Professional Services in a Change Order signed within 12 months of the Effective Date of the applicable SOW shall be based on the hourly rates specified therein.
5.3 Incidental Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with Professional Services. If an estimate of incidental expenses is provided in the applicable SOW, We will not exceed such estimate without Your written consent. You shall be responsible for any additional charges or cancellation fees levied on Us as a result of Your cancellation or request to change the schedule of the onsite services.
5.4 Invoicing. Charges for time-and-materials engagements will be invoiced monthly in arrears and payment shall be due net 30 days from the date of the invoice. Fees described in aSOW are exclusive of any Taxes that may apply; any applicable Taxes will be shown on invoices and payable pursuant to the terms of the MSA.
5.4 Suspension of Professional Services. If any charge owing by You is 30 or more days overdue, We may, without limiting its other rights and remedies, suspend Our performance of Professional Services until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with the Notices section of the MSA, before suspending Professional Services. We will not exercise such right if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.1 Your Intellectual Property. You do not grant to Us any rights in or to Your intellectual property except such licenses as may be required for Us to perform Our obligations hereunder.
6.2 Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.
6.3 License for Contract Property. Upon Your payment of fees due under an applicable SOW, We grant You a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use, modify, copy and create derivative works based on, anything developed by Us for You, including Deliverables, under this Addendum (“Contract Property”), in connection with the Online Services and for Your internal business purposes. Each party retains all right, title and interest in its respective intellectual property and We retain all ownership rights in the Contract Property.
7.1 Warranty. We warrant that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards, in conformance with the applicable SOW. For any breach of the above warranty, Your exclusive remedy and Our entire liability will be the re-performance of the applicable Professional Services. If We are unable to re-perform the Professional Services as warranted, You will be entitled to recover the Professional Services fees paid to Us for the deficient Professional Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. The disclaimer of other warranties, as set forth in the MSA, applies to this Addendum.
8.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding (“Claim”) made or brought against You by a third party (i) alleging that any design, program code, documentation or other material furnished by Us hereunder infringes or misappropriates a third party’s intellectual property rights, or (ii) arising out of death, personal injury or damage to tangible property to the extent caused by Our personnel in their performance of the Professional Services, and will indemnify You for any damages, attorneys fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement of, any such Claim. This indemnity is subject to the conditions in the “Indemnification by Us” and “Exclusive Remedy” sections of the MSA, and to the further condition that We will not be liable for any Claim to the extent it arises from specifications or other material provided by You.
8.2 Indemnification by You. You will defend Us against any Claim made or brought against Us by a third party alleging that any specification, instruction or other material furnished by You hereunder infringes or misappropriates a third party’s intellectual property rights, and will indemnify Us for any damages, attorneys fees and costs finally awarded against Us as a result of, or for amounts paid by Us under a settlement of, any such Claim. This indemnity is subject to the conditions in the “Indemnification by You” and “Exclusive Remedy” sections of the MSA.
9.1 Term. This Addendum will remain in effect until the earlier of (a) the termination or expiration of the MSA or (b) any termination under the following section.
9.2 Termination for Convenience. Either party may terminate this Addendum and all SOWs hereunder if the other party (a) materially breaches the MSA, this Addendum or an SOW and fails to cure the breach within 30 days after written notice by the non-breaching party detailing the breach, or (b) becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within 60 days. Upon such termination, You will pay any unpaid fees and expenses incurred up to the termination date. Termination of the MSA will automatically result in termination of this Addendum and all SOW’s.
9.3 Payment Upon Termination. Upon any termination of an SOW, You will pay any unpaid fees and expenses incurred up to the termination date (such fees to be calculated either on a time-and-materials or, in the case of a fixed-price SOW, on a percent-of-completion basis).
Each party will maintain, at its own expense during the term of this Addendum, insurance appropriate to its obligations under this Addendum, including as applicable general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.
The MSA, this Addendum and the applicable SOWs constitute the entire agreement between Us and You regarding the provision of Professional Services and supersede all prior and contemporaneous agreements, proposals, promises or representations, written or oral, concerning their subject matter. No modification, amendment, or waiver of any provision of this Addendum or any SOW will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in a purchase order of Yours or in any other of Your order documentation (excluding SOWs or Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW, (2) the body of this Addendum, and (3) the MSA.
Subject to the above modifications, the MSA remains in full force and effect.