THIS PROFESSIONAL SERVICES ADDENDUM ("Professional Services Addendum") is an addendum to the MotionHall Software-as-a-Service Terms of Service (the “Agreement”) between MotionHall Inc. (“MotionHall”) and Customer, as defined in the Agreement.
Customer has entered into the Agreement for the provision of the MotionHall Services (as defined therein). If Customer procures Professional Services from MotionHall, under a Work Order, then all such services shall be provided pursuant to the terms and conditions herein.
Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement. The terms and conditions of this Professional Services Addendum are hereby incorporated by reference into the Agreement.
Subject to the terms and conditions of the Agreement and this Professional Services Addendum, MotionHall may perform professional services and provide deliverables as outlined in a statement of work ("SOW"). All SOWs shall be deemed part of and subject to this Professional Services Addendum. Each SOW, will be in the form of SOW set out in Exhibit A and is incorporated into and subject to this Professional Services Addendum. In the event of a conflict or inconsistency between any SOW and this Professional Services Addendum or the Agreement, this Professional Services Addendum or the Agreement will govern, as applicable; provided, however, that the provisions of the applicable SOW will prevail over this Professional Services Addendum or the Agreement to the extent the SOW expressly refers to the provisions of the Professional Services Addendum or the Agreement over which it prevails. The terms in the SOWs 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 SOW.
4.1 Services and Deliverables. Subject to terms and conditions of the Agreement, and during the Term: (i) MotionHall grants to Customer, a non-exclusive, non transferable, non sublicensable, worldwide, limited right to use any deliverables and/or training materials delivered by MotionHall to Customer as part of the Professional Services (“Deliverables”) solely for Customer’s internal business operations in connection with its authorized use of the applicable MotionHall SaaS Services; and (ii) MotionHall will use commercially reasonable efforts to perform all professional services expressly set out in a SOW ("Professional Services"). All Professional Services will be performed remotely unless otherwise indicated in the SOW as being an on-site provided service. Unless otherwise agreed to by the parties in the SOW or in a separate written agreement or addendum to the Agreement, MotionHall will have no obligation to provide support and maintenance services for Deliverables.
4.2 No Assignment or Transfer of Intellectual Property. Without limiting Section 2 of the Agreement, MotionHall retains all ownership and intellectual property rights in and to: (a) the Professional Services; (b) the Deliverables; (c) anything developed or delivered by or on behalf of MotionHall under this Professional Services Addendum or any SOW; and (d) any modifications or enhancements to (a), (b) or (c). All rights not expressly granted by MotionHall to Customer under this Professional Services Addendum or any SOW are reserved.
MotionHall will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. MotionHall's resources may include employees of MotionHall or subcontractors. The delegating or subcontracting of MotionHall's obligations set out in this Professional Services Addendum will not relieve MotionHall from any obligation or liability under this Professional Services Addendum.
6.1 Addendum Term. This Professional Services Addendum shall be effective as of the Effective Date of the Agreement and shall continue in effect during the Term of the Agreement, unless earlier terminated in accordance with the terms of the Agreement.
6.2 SOW Term. Each SOW will become effective on the effective date set out therein (the "SOW Effective Date") and, unless otherwise provided in the SOW, will continue for the term indicated in the SOW or upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW, unless earlier terminated in accordance with the terms of the Agreement (the "SOW Term"). Once signed by both parties, a SOW and/or a Work Order shall be non-cancellable, except as otherwise explicitly stated in such SOW or Work Order or the Agreement.
6.3 Suspension. In addition to MotionHall's termination rights set out in the Agreement, upon any breach by Customer of a SOW, MotionHall will be entitled, in its discretion, to suspend the Professional Services under the applicable SOW until such time as such breach or default is remedied by Customer
7.1 Milestones. For any Deliverable, Service, or other performance obligation of MotionHall described as a milestone in an applicable SOW (each, a "Milestone"), MotionHall will use commercially reasonable efforts to complete such Milestone on or before the deadline specified for such Milestone in the applicable SOW (“Milestone Deadline”). Any delay in receiving Customer Resources or Customer's performance of Customer Dependencies will cause MotionHall a delay in performing the Professional Services and will result in a delay in MotionHall's ability to meet the Milestones and Milestone Deadlines.
7.2 Deliverables and Acceptance. Unless otherwise stated in an SOW, within ten (10) business days of MotionHall's completion of any Milestone or Deliverable, Customer will provide MotionHall with written notice of its acceptance or rejection of such Milestone or Deliverable. Customer may not reject any Milestone or Deliverable that substantially complies with the requirements set out in the applicable SOW, and Customer's failure to respond within such ten (10) day period will constitute Customer's acceptance of the applicable Milestone or Deliverable and MotionHall may invoice Customer the Fees for completion of such Milestone and/or Deliverable in accordance with the SOW. If Customer rejects a Milestone or Deliverable, MotionHall will use commercially reasonable efforts to correct the deficiencies set out in Customer's notice of rejection for such Milestone or Deliverable. Once MotionHall has notified Customer that it has completed such corrections, Customer will have seven (7) days from the date of such notice to re-test the Milestone or Deliverable. Customer's failure to respond within such seven (7) day period will constitute Customer's acceptance of the applicable Milestone or Deliverable and MotionHall may invoice Customer the Fees for completion of such Milestone and/or Deliverable in accordance with the SOW. The process set out in this Section 7.2 will continue until Customer notifies MotionHall of its acceptance of a Milestone or Deliverable, or until a Milestone or Deliverable is deemed accepted as set forth herein, but will in no event repeat more than three (3) times. If Customer has provided three rejection notices for the same Milestone or Deliverable, then the parties will treat the matter as a Dispute and will resolve such Dispute in accordance with Section 22 of the Agreement. Notwithstanding anything to the contrary in this Agreement, if Customer uses any Deliverable in a production or commercial environment (e.g., "go live" with the Deliverable), Customer will be deemed to have accepted such Deliverable as of the date such Deliverable was first used in such production or commercial environment and MotionHall may invoice Customer the Fees for completion of such Milestone and/or Deliverable in accordance with the SOW.
8.1 Customer will cooperate with MotionHall in the performance of the Professional Services and in the development of Deliverables, including by providing access (whether onsite or remotely, as specified in the applicable SOW) to Customer's personnel, systems, equipment, or communications facilities, as reasonably requested by MotionHall from time to time and perform other applicable customer responsibilities set out below and in a SOW ("Customer Dependencies"). If Customer has not performed its Customer Dependencies including but not limited to providing provided all necessary cooperation or information to MotionHall, or MotionHall is otherwise denied or delayed access or information by Customer, then MotionHall will be excused, without liability, from performing any further Professional Services. Such failure to perform the Professional Services resulting from Customer's failures will not relieve Customer from its payment obligations to MotionHall.
8.2 Unless otherwise set out in the applicable SOW, for each SOW, Customer will:
9.1 Changes. Any service or deliverable not specifically set out in a SOW will be considered out-of-scope and not included in the Professional Services or Deliverables. The parties may request any change to the nature or scope of any Professional Services or Deliverables then-currently provided (each, a "Change") pursuant to this Section 9.
9.2 Change Order Process. If, after MotionHall's commencement of Professional Services set out in a SOW, either party requires a Change, such party will set out the new requirements in writing and deliver such request to the other party. Following a request made by Customer (or, in the case of a request made by MotionHall, concurrently with such request), MotionHall will use commercially reasonable efforts to describe in writing the estimated impact of such Change to the costs, Milestones, timeline, Customer responsibilities, and other relevant aspects of the Professional Services or Deliverables. If Customer agrees with such written description of the estimated impact, then the parties will negotiate in good faith a Change order setting out the detailed terms and conditions pursuant to which the Change will be implemented ("Change Order"). If Customer disagrees with such written description of the estimated impact and the parties are unable to reach agreement on the impact of such proposed Change, then no such Changes to the SOW will be effective, and MotionHall will perform the Professional Services in accordance with the original SOW.
Notwithstanding Section 10 of the Agreement, in no event will the total aggregate liability of MotionHall in connection with or under this Professional Services Addendum, whether in contract, tort (including negligence or gross negligence), or otherwise, exceed the amount of Fees paid by Customer under the specific SOW out of which the liability arose. MotionHall's liability will be further limited as provided in the Agreement.
Without limiting Section 8.2 of the Agreement: (a) MotionHall will have no liability for loss or recovery of data or programs or for Customer's failure to properly back-up any data or programs; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Resources and Customer Dependencies.
In consideration for the Professional Services or Deliverables performed or provided to Customer under this Professional Services Addendum, Customer will pay to MotionHall the amounts set forth in each applicable SOW. Unless otherwise agreed to by the parties in writing, MotionHall must receive all prepayment amounts listed in a SOW before the commencement of any services thereunder. Any suspension of the Professional Services by MotionHall pursuant to the terms of the Agreement will not excuse Customer from its obligation to make payments under the Agreement. Customer agrees to pay all reasonable, pre-approved in writing, out-of-pocket expenses incurred by MotionHall in connection with performing the Professional Services or delivering any Deliverables, including all reasonable travel expenses.
Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum, including Sections 10, 11, 12 and this Section 13 will survive.