PROFESSIONAL SERVICES ADDENDUM
1. OVERVIEW
THIS PROFESSIONAL SERVICES ADDENDUM ("PSA") is an addendum to the Subscription Services Agreement (the “Agreement”) between Netgain Solutions, Inc. (“Netgain”) and Customer, as defined in the Agreement. Customer has entered into the Agreement for the provision of the Services as noted on the Customer Quote Form. If Customer procures Professional Services from Netgain, all such services shall be provided pursuant to the terms and conditions herein. Capitalized terms used in this PSA shall have the meaning defined under the Agreement. The terms and conditions of this PSA are hereby incorporated by reference into the Agreement.
2. SCOPE OF SERVICES
2.1 Professional Services Statement of Work
Subject to the terms and conditions of the Agreement and this PSA, Netgain will provide Customer with Professional Services as set forth in the applicable statement(s) of work executed by Netgain and Customer or a Quote/Order Form executed by Netgain and Customer (each, a “Statement of Work” or “SOW”). All Statements of Work shall be deemed part of and subject to this PSA. Any Professional Services not expressly included in the Quote/Order Form, this PSA or a SOW are considered out of scope for Netgain.
Subject to terms and conditions of this PSA, and during the term of this PSA, Netgain hereby provides Customer with the non-exclusive, worldwide, limited right to use any deliverables and/or training materials delivered by Netgain to Customer as part of the Professional Services (“Deliverables”) solely for Customer’s internal business operations including in connection with its authorized use of the applicable Cloud Service (as defined below).
2.2 Remote Delivery
Netgain will perform all Professional Services remotely unless otherwise agreed to and noted on the Quote/Order Form and related Statement(s) of Work.
3. CUSTOMER OBLIGATIONS
3.1 Customer Obligations and Project Assumptions
Customer acknowledges that Netgain's ability to perform the outlined Professional Services in the attached Statement(s) of Work depends upon Customer's fulfillment of the following obligations and project assumptions:
- Provide Netgain with full access to relevant functional, technical, and business resources with adequate skills and knowledge to support the performance of Professional Services.
- Provide any notices, and obtain any consents, required for Netgain to perform Professional Services.
- Timely provision of and access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from Customer's officers, agents, and employees, in advance of deadlines for delivered services.
- Supplemental Requirements for NetSuite Cloud Service Products/SuiteApps only:
- NetSuite subscription license service prior to the commencement of Professional Services under this PSA and maintain such subscription for the duration of the Professional Services provided under this PSA.
- Administrator-level access (or equivalent) to any NetSuite production and/or shared development/sandbox environments for Netgain to perform Professional Services.
- Uninterrupted access to NetSuite environment(s) during the Professional Services Period without environment refreshes that require duplication or recreation of services.
3.2 Project Timelines and Service Impacts
Project timeline Quotes are based on the availability of Customer resources and key decision makers. Lack of access or change to project stakeholders may impact project timelines and costs if decisions cannot be made in timely fashion, and Netgain will not be responsible for any deficiency in performing Professional Services if such deficiency results from Customer’s failure to meet the obligations above.
4. CHANGE ORDERS
4.1 Change Order Request Process
If Customer or Netgain requests a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Professional Services described in any Statement(s) of Work, the party seeking the change shall propose the applicable changes by written notice. Within three (3) business days 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. Netgain will prepare a change order via a Quote Form and related Statement(s) of Work describing the proposed changes to the SOW and the applicable change in fees and expenses or timeline, if any (each, a “Change Order”).
4.2 Change Order Execution
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 PSA. If the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management for resolution.
5. PROFESSIONAL SERVICES FEES, EXPENSES, & TERM
5.1 Professional Services Fees
Customer acknowledges that the Quoted total price indicated in the Quote is based solely on the information provided to Netgain and the assumptions documented in this PSA and applicable Statement(s) of Work. Any requirement(s) not included or documented here in or within the applicable Statement(s) of Work will be considered outside of the scope of this PSA and related Statement(s) of Work and will be handled through a Change Order and may result in additional cost.
5.2 Professional Services Expenses
Because Professional Services are typically performed remotely, no expenses are expected under this agreement, unless otherwise agreed to and provided for in the Quote Form and related Statement(s) of Work.
5.3 Term
This PSA is valid for the Quote/Order Forms (including Statement(s) of Work) which reference this PSA. Each SOW shall be effective as of the Effective Date of the Agreement, and shall expire upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW. In the event that any portion of the Professional Services not used within the Professional Services Period due to Customer’s failure to fulfill its obligations hereunder, such Professional Services will be forfeited by Customer, with no further action required of either party, and Customer will not be entitled to a refund, or any credit toward additional or other Professional Services, for any unused portion of the fees paid for any unused portion of the Professional Services. In order for Netgain to provide Professional Services to Customer after the Professional Services Term, Customer and Netgain must mutually agree to a Change Order, and Netgain is not obligated to perform tasks related to changes in time, scope, cost, or contractual obligations until Customer and Netgain have agreed to the proposed change to this PSA and related Statement(s) of Work.
6. GENERAL AND OTHER PROVISIONS
6.1 Entire Agreement
This PSA incorporates by reference all Statement(s) of Work, and this PSA, together with such referenced items, constitute the entire understanding between Customer and Netgain and are intended to be the final and entire expression of their agreement. The parties expressly disclaim any reliance on any and all prior discussions, emails, RFP’s and/or agreements between the parties. There are no other verbal agreements, representations, warranties undertakings or other agreements between the parties.
In the event of any inconsistencies between the terms of a SOW and this PSA, the SOW shall take precedence.
This PSA shall not be modified, or amended, except as expressly set forth herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed SOW.
6.2 Tools
Notwithstanding any other provision of this PSA: (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 Netgain 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 Customer, on the same terms as the Deliverables, or as otherwise agreed by Customer; and (ii) the term “Deliverables” shall not include the Tools. Tools are Netgain Confidential Information.
6.2 Subcontracting
Netgain's relationship with Customer pursuant to this PSA 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.
6.3 Force Majeure
Neither party shall be liable for loss, delay, non-performance (excluding payment obligations) to the extent resulting from any force majeure event including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of third parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving Netgain employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and any to resume performance as soon as possible and any delivery date shall be extended accordingly.