FuelPlus Professional Services
THIS PROFESSIONAL SERVICES ADDENDUM (“Addendum”) is an addendum to the Application Service Agreement (the “Agreement”) between FuelPlus (“we”) and the Customer identified in the Agreement (“you”).
You have entered into the Agreement for the provision of the Service (as defined therein). Now you desire to additionally procure, and we desire to render, certain professional, educational, training, operational and/or technical services in connection with the Service pursuant to the terms and conditions herein. Capitalized terms used in this Addendum shall have the meaning defined under the Agreement. The terms and conditions of this Addendum are hereby incorporated by reference into the Agreement. In the event of conflict between this Addendum and the Agreement, the terms and conditions of this Addendum shall prevail with respect to the subject matter herein. The terms in the Statements of Work related to the actual rates to be charged and the days and description of the Professional Services to be performed thereunder shall control as to the engagement described in that Statement of Work, but conflicting or additional legal terms may only be made effective by amendment to this Addendum even if they are to apply only to one Statement of Work.
1. SCOPE OF SERVICES.
Subject to the terms and conditions of the Agreement and this Addendum, we will provide you with Professional Services as set forth in the applicable statements of work mutually executed by us and you or an Order Form (each, a “Statement of Work” or “SOW”). We and you shall, from time to time, execute Statements of Work that specify the professional services to be provided to you hereunder (the “Professional Services”). Each Statement of Work will include, at a minimum: (i) a description of the Professional Services and any work product or other deliverables and/or training materials to be developed and/or provided to you (each, a “Deliverable”); (ii) the scope of Professional Services; and (iii) the applicable fees and payment terms for such Professional Services, if not elsewhere specified. All Statements of Work shall be deemed part of and subject to this Addendum.
2. CHANGE MANAGEMENT PROCESS.
If you or we request a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Professional Services described in any Statement of Work, the party seeking the change shall propose the applicable changes by written notice. Within forty-eight (48) hours of receipt of the written notice, each party’s project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. We will prepare a change order describing the proposed changes to the Statement of Work and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Addendum. If the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management officers for resolution.
3. PROJECT MATERIALS.
3.1 Deliverables. We shall own all rights, title and interest in and to the Deliverables (excluding any your Property), and related intellectual property rights. Subject to terms and conditions of the Agreement and this Addendum, and during the Term, we hereby provide you with a limited, non-exclusive, non-transferable (except in connection with an assignment under the General Provisions section of the Agreement applicable to assignment) and terminable license to use the Deliverables solely for your internal operations in connection with its authorized use of the applicable Service.
3.2 Tools. Notwithstanding any other provision of this Addendum: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by us to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to you, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.
3.3 Customer Property. You shall own all rights, title and interest in and to any your Property. “Customer Property” means any your technology, your-specific business processes, or deliverables that are specifically designated as owned by you property in a Statement of Work. We shall have the right to use any such your Property solely for the purpose of providing the Professional Services to you hereunder.
4. PROFESSIONAL SERVICES WARRANTY.
4.1 Professional Services Warranty. We warrant that (a) we and each of our employees, consultants and subcontractors, if any, that we use to provide and perform Professional Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the services in accordance with this SOW; and (b) the Professional Services will be performed for and delivered to you in a good, diligent, workmanlike manner in accordance with industry standards, laws and governmental regulations applicable to the performance of such services. Our ability to successfully perform hereunder is dependent upon your provision of timely information, access to resources, and participation. If through no fault or delay of yours the Professional Services do not conform to the foregoing warranty, and you notify us within sixty (60) days of our delivery of the Professional Services, you may require us to re-perform the non-conforming portions of the Professional Services.
4.2 Disclaimer. THE WARRANTIES STATED IN SECTION 4.1 ABOVE ARE THE SOLE WARRANTIES AND REMEDIES FOR YOU AND EXCLUSIVE OBLIGATIONS OF OURS RELATED TO THE PROFESSIONAL SERVICES AND DELIVERABLES TO BE PERFORMED FOR AND DELIVERED TO YOU PURSUANT TO THIS ADDENDUM AND ANY STATEMENT OF WORK. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. EXCEPT AS PROVIDED HEREIN, THE PROFESSIONAL SERVICES AND DELIVERABLES PROVIDED TO YOU ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS.
5. LIMITATIONS OF LIABILITY FOR PROFESSIONAL SERVICES.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF YOUR DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, TORT, STATUTORY DUTY OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS SOW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS APPLICABLE SOW OR AGREEMENT, THE MAXIMUM LIABILITY OF OURS TO ANY PERSON, FIRM OR CORPORATION WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH ANY PROFESSIONAL SERVICES OR DELIVERABLES SHALL BE THE AMOUNT PAID BY YOU FOR THE PROFESSIONAL SERVICES. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS ADDENDUMAND ANY STATEMENT OF WORK. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH THE PROFESSIONAL SERVICES AND THAT, WERE US TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTHING IN THIS AGREEMENT EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.
This Addendum shall be effective as of the Effective Date of the Agreement and shall continue in effect during the Term of the Agreement. Each SOW shall commence on the date it is last signed, and shall expire upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW. Sections 4.2 and 5 through 11 shall survive termination of this Addendum.
7. INDEPENDENT CONTRACTOR.
Our relationship with you pursuant to this Addendum will be that of an independent contractor. Neither party will have any authority to bind the other, to assume or create any obligation, to enter into any agreements, or to make any warranties or representations on behalf of the other. Nothing in this Addendum shall be deemed to create any agency, partnership or joint venture relationship between the parties. Each party is solely responsible for all of its employees and agents and its labor cost and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of each party’s activities or those of its employees or agents in the performance of this Addendum. We reserve the right to use third parties (who are under a covenant of confidentiality with us), including, but not limited to, offshore subcontractors to assist with the Professional Services, including, without limitation, any data migration, configuration, implementation and custom code development processes.
Provided that we do not use any your Property except as permitted herein, nothing in this Addendum shall be construed as precluding or limiting in any way the right of ours to provide consulting, development, or other services of any kind to any individual or entity (including without limitation performing services or developing materials which are similar to and/or competitive with the Professional Services and/or Deliverables hereunder).
To the extent permissible by applicable law, during the Term and for a period of twelve (12) months following termination or expiration of the Agreement, you agree that you will not directly solicit the engagement or employment of any of our employees or contractors who have been engaged in the provision of Professional Services, without our written permission. The foregoing will not apply to persons who have independently responded to general solicitations (such as general newspaper advertisements and internet postings) not targeting such persons.
10. DISPUTE RESOLUTION.
Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
11. ENTIRE ADDENDUM.
The parties acknowledge that they have had previous discussions related to the performance by us of Professional Services for you and the possible strategies which may be used by us to implement the Service to achieve the requirements identified by you. This Addendum, together with the attached exhibits that are incorporated by reference, and the Agreement, constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Addendum and such exhibits. The parties expressly disclaim any reliance on any and all prior agreements, understandings, RFPs, verbal and/or written communications related to the Professional Services to be provided by us. No other act, document, usage or custom shall be deemed to amend or modify this Addendum unless agreed to in writing signed by a duly authorized representative of both parties. In the event of any conflict between the terms of this Addendum and the terms of the Agreement, this Addendum shall control.