This addendum, together with our Master Subscription Agreement, governs your acquisition of consulting services from us.
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 October 21, 2016. It is effective between You and FinanicalForce.com as of the date You accept it.
“Change Order” means any change to an SOW or Order Form, as applicable, as described in the “Change Orders” section below. Change Orders will be deemed incorporated by reference in the applicable SOW or Order Form, as applicable in the absence of an SOW.
“Consulting Services” means work performed by Us, Our Affiliates, or Our or their respective permitted subcontractors under an SOW or Order Form, including Our provision of any Deliverables specified in such SOW or Order Form.
“Deliverable” means a deliverable under an SOW or Order Form.
“Online Services” means the “Services” as defined in the MSA.
“SOW” means a statement of work describing Consulting 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. CONSULTING SERVICES
2.1 Scope of Consulting Services. We will provide to You the Consulting Services specified in each SOW.
2.2 Relationship to Online Services.This Addendum is limited to Consulting 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 Consulting Services are bid separately from the Online Services, and neither is conditional on the other. You agree that Your purchase of Consulting 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.Our personnel may access Your Data as necessary to perform the Consulting Services. We will protect the confidentiality of Your Data in accordance with the Confidentiality section of the MSA.
3.1 Cooperation.You will cooperate reasonably and in good faith with Us in Our performance of Consulting Services by, without limitation, (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Us to perform Our obligations under each SOW or Order Form, (b) timely delivering any materials and other obligations required under each SOW or Order Form, (c) timely responding to Our inquiries related to the Consulting Services, (d) assigning an internal project manager for each SOW or Order Form 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 We are performing Consulting Services on Your premises, providing office workspace and Internet access.
3.2 Delays.Any delays in the performance of Consulting Services or delivery of Deliverables caused by You may result in additional charges for resource time.
4. CHANGE ORDERS
4.1 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. FEES AND INVOICING
5.1 Fees.You will pay Us for the Consulting Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Our standard rates in effect at the time the SOW or Order Form is executed. Consulting Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form. Any amount set forth in a time-and-materials SOW is solely a good-faith estimate for Your budgeting and Our resource-scheduling purposes and is not a guarantee that the work will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, We will continue to provide Consulting Services under the same rates and terms. We will periodically update You on the status of the Consulting Services and the fees accrued under SOWs or Order Forms.
5.2 Incidental Expenses. You will reimburse Us for reasonable travel and out-of-pocket expenses incurred in connection with Consulting Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, We will not exceed such estimate without Your written consent.
5.3 Invoicing. Charges for time-and-materials engagements will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Charges for fixed fee engagements will be invoiced in advance in the manner as provided in the SOW or Order Form, as applicable, unless otherwise expressly stated therein.
5.4 Suspension of Consulting Services. If any charge owing by You is 30 or more days overdue, We may, without limiting Our other rights and remedies, suspend Our performance of Consulting 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 Consulting Services. We will not exercise such right if You are disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
6. PROPRIETARY RIGHTS AND LICENSES
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 or Order Form, 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. WARRANTIES AND DISCLAIMER
7.1 Warranty. We warrant that the Consulting 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 Consulting Services. If We are unable to re-perform the Consulting Services as warranted, You will be entitled to recover the Consulting Services fees paid to Us for the deficient Consulting Services. You must make any claim under the foregoing warranty to Us in writing within 90 days of performance of such Consulting 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 Consulting 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. TERM AND TERMINATION
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 this Section 9.
9.2 Termination for Convenience. In addition to the parties’ termination rights in the MSA, either party may terminate this Addendum at any time for convenience upon 10 days’ written notice to the other. Any SOWs in effect shall continue to be governed by this Addendum as if it had not been terminated. Any right to terminate an SOW will be as provided in the SOW.
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 (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.
Subject to the above modifications, the MSA remains in full force and effect.