CONFIGURATION AND IMPLEMENTATION SERVICES AGREEMENT
Updated: March 2022
- Configuration and Implementation ServicesWe will perform the Professional Services Services for you as set forth in each applicable Statement of Work. You will pay us the Fees as set forth in each applicable Statement of Work and in accordance with this Professional Services Services Agreement, or as we may otherwise expressly agree in an applicable Statement of Work.
- Our PersonnelPoint of Contact. In each Statement of Work, we will designate a primary point of contact to you for all matters relating to the applicable Professional Services Services (which point of contact we may change upon notice to you).
Qualifications. The Personnel we assign to perform the Professional Services Services will be qualified, skilled, experienced, and otherwise fit for the performance of the Professional Services Services. If you, in your reasonable judgement, determine that Personnel assigned to your project are unfit, we will in good faith discuss alternatives, and we will replace Personnel as reasonably necessary. You acknowledge that any replacement of Personnel may cause delay in the performance of the Professional Services Services.
Personnel Conduct. Our Personnel are subject to our Qmulos Code of Conduct and Ethics https://www.qmulos.com/code-of-business-conduct-and-ethics/, which includes, without limitation, an obligation to comply with our policies on protecting customer information, prohibitions on illegal drugs and any impaired job performance, avoiding conflicts of interest, and acting ethically at all times. We also background check our employees, per the Section below.
Use of Subcontractors. We reserve the right to use subcontractors in performance of the Professional Services Services. All such subcontractors will meet the applicable requirements set forth in this Professional Services Services Agreement and the applicable Statement of Work. We will be responsible for our subcontractors’ compliance with this Professional Services Services Agreement and the applicable Statement of Work. Upon your request, we will identify any subcontractor that we are using or plan to use to provide Professional Services Services to you, and will cooperate in good faith to provide you with all relevant information regarding such subcontractors.
Employee Benefits. We acknowledge and agree that our Personnel are not eligible for or entitled to receive any compensation, benefits, or other incidents of employment that you make available to your employees. We are solely responsible for all employment related taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between us and our Personnel and the performance of Professional Services Services by such Personnel.
- Our Background Checks, Security, and Compliance ObligationsCompliance with Your Security Program. While on your premises, our Personnel will comply with your security practices and procedures generally prescribed by you for onsite visitors and service providers, provided however that any requirement that is in addition to the compliance requirements set forth in this Section, including any background checks different from those stated below, must be expressly set forth in a Statement of Work. We agree to discuss in good faith any condition or requirement you may have for our Personnel that are different from our standard policies as set forth in this Section; however you acknowledge and agree that any additional requirement may delay Professional Services Services, and must be vetted and implemented by mutual agreement of the parties and expressly set forth in a Statement of Work. Qmulos does not guarantee that it will be able to meet any such additional requested requirements.
Our Security Practices. We implement and follow an enterprise security program, with the policies, plans, and procedures set forth here www.Qmulos.com/prof-serv-isa. Our Personnel will be subject to the data protection and confidentiality obligations set forth in this Professional Services Services Agreement with respect to any of your data that we may have access to in connection with the Professional Services Services.
Background Checks. For U.S.-based projects, we will not assign an employee to perform Professional Services Services unless we have run the following background check on the employee: Criminal Felony & Misdemeanor; SSN Validation; Federal Criminal; SSN Trace; Employment Report – Three (3) Employers; Education Report – One (1) Institution; Global Sanctions & Enforcement; Prohibited Parties; Widescreen Plus National Criminal Search. You acknowledge that such background checks may not be permitted or customary outside the United States.
Permissions for Access. If you require any Personnel to sign any waivers, releases, or other documents as a condition to gain access to your premises for performance of the Professional Services Services (“Access Documents”), you agree that: (a) Personnel who will be required to sign Access Documents will sign on behalf of Qmulos, (b) any additional or conflicting terms in Access Documents with this Professional Services Services Agreement will have no effect, and (c) you will pursue any claims for breach of any terms in the Access Documents against Qmulos and not the individual signing such Access Documents.
- Your MaterialsWe will not obtain any rights in or to your Customer Materials, except that you grant us the right to use Customer Materials in order to provide the Professional Services Services. Nothing in this Professional Services Services Agreement will be deemed to transfer to us any ownership of Customer Materials.
- Professional Services Services Materials and CustomizationsProfessional Services Services Materials. The Professional Services Services we perform (e.g., configuration of our Offerings), and the Professional Services Services Materials we offer, create, and deliver to you in connection with the Professional Services Services, are generally applicable to our business, and therefore we need to be able to re-use the Professional Services Services Materials we create for one customer in connection with all of our customers. For the avoidance of doubt, our use of the Professional Services Services Materials created for you in connection with Professional Services Services will comply with our ongoing obligations and restrictions with respect to your Customer Materials and your Confidential Information, and we will not identify you in any way in connection with our further use of such Professional Services Services Materials.
Customer Owned Work Product. However, in the unlikely event that the parties agree that Professional Services Services Materials for a project are custom work product unique to your business, and not applicable to other customers generally, we will transfer ownership to those agreed Professional Services Services Materials to you under the applicable Statement of Work. Professional Services Services Materials must be expressly identified as “Customer Owned Work Product” under a Statement of Work for ownership to pass to you. Subject to payment of applicable Fees under the Statement of Work, we hereby assign to you all rights, title and interest (including all Intellectual Property Rights therein) in and to all Professional Services Services Materials identified as Customer Owned Work Product (but excluding all Pre-Existing Qmulos IP incorporated into the Customer Owned Work Product). At your request and expense, we will assist and cooperate with you in all reasonable respects and will execute documents, and take such further acts reasonably requested by you to enable you to acquire, transfer, maintain, perfect and enforce your ownership rights in such Customer Owned Work Product.
Our Ownership. Subject to your ownership rights in Customer Owned Work Product and Customer Materials, we will own all rights in and to all Professional Services Services Materials.
License Rights. For those Professional Services Services Materials that are not Customer Owned Work Product, you will have the right to access and use those Professional Services Services Materials in connection with your applicable Offerings, and those rights will be of the same scope and duration as your rights to the underlying Offering.
- Change Statement of Work ProcessYou may submit written requests to us to change the scope of Professional Services Services under an existing Statement of Work (each such request, a “Change Statement of Work Request”). If we elect to consider a Change Statement of Work Request, then we will promptly notify you if we believe that the Change Statement of Work Request requires an adjustment to the fees or to the schedule for the performance of the applicable Professional Services Services. In such event, the parties will negotiate in good faith a reasonable and equitable adjustment to the fees and/or schedule, as applicable. We will continue to perform Professional Services Services pursuant to the existing Statement of Work and will have no obligation to perform any Change Statement of Work Request unless and until the parties have executed an applicable change order.
- WarrantyWe warrant that the Professional Services Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services Services. As your sole and exclusive remedy and our entire liability for any breach of the foregoing warranty, we will, at our option and expense, promptly re-perform any Professional Services Services that fail to meet this warranty or refund to you the Fees paid for the non-conforming Professional Services Services.
Except as expressly set forth above, the Professional Services Services are provided “as is” with no warranties or representations whatsoever, express or implied. Qmulos and its suppliers and licensors disclaim all warranties and representations with respect to the Professional Services services, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, noninfringement, or quiet enjoyment, and any warranties arising out of course of dealing or trade usage.
- Your CooperationYou acknowledge that your timely provision of (and our access to) your facilities, equipment, assistance, cooperation, data, information and materials from your officers, agents and employees (the “Cooperation”) is essential to Qmulos’s performance of the Professional Services Services. We will not be liable for any delay or deficiency in performing the Professional Services Services if you do not provide the necessary Cooperation. As part of the Cooperation, you will (1) designate a project manager or technical lead to liaise with us while we perform the Professional Services Services, (2) allocate and engage additional resources as may be required to assist us in performing the Professional Services Services, and (3) make available to us any data, information and any other materials reasonably required by us to perform the Professional Services Services, including any data, information or materials specifically identified in an applicable Statement of Work.
- InsuranceThroughout any period of Professional Services Services we perform for you, we will maintain insurance policies in the types and amounts described below at our own expense:
Commercial General Liability Insurance with a limit of not less than $1,000,000 per occurrence and a general aggregate limit of not less than $2,000,000.
Business Auto Insurance with a limit of not less than $1,000,000 per accident. Such Insurance will cover liability arising out of “hired and non-owned” automobiles.
Worker’s Compensation Insurance as required by workers’ compensation, occupational disease and occupational health and safety laws, statutes and regulations.
Technology Errors & Omissions Insurance with a limit of not less than $3,000,000.
Umbrella/Excess Insurance with a limit of not less than $3,000,000.
- ExpensesUnless otherwise specified in an applicable Statement of Work, we will not charge you for the expenses we incur in connection with providing Professional Services Services. Our daily Professional Services Services rates are inclusive of any expenses. In the event the parties agree that expenses are reimbursable under an applicable Statement of Work, we will mutually agree on any applicable travel policy and required documentation for such reimbursement.
- ConfidentialityConfidential Information. Each party will protect the Confidential Information of the other. Accordingly, Receiving Party agrees to: (i) protect the Disclosing Party’s Confidential Information using the same degree of care (but in no event less than reasonable care) that it uses to protect its own Confidential Information of a similar nature; (ii) limit use of Disclosing Party’s Confidential Information for purposes consistent with this Professional Services Services Agreement, and (iii) use commercially reasonable efforts to limit access to Disclosing Party’s Confidential Information to its employees, contractors and agents or those of its affiliates who have a bona fide need to access such Confidential Information for purposes consistent with this Professional Services Services Agreement and who are subject to confidentiality obligations no less stringent than those herein.
Compelled Disclosure of Confidential Information. Notwithstanding the foregoing terms, the Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law enforcement agencies or regulators to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- PaymentFees. You will receive invoices on a regular basis for all applicable Professional Services Services, or as otherwise set forth in a Statement of Work. You agree to pay all Fees for Professional Services Services specified in the Statement of Works within 30 days from the date of Qmulos’s invoice or as otherwise stated in a Statement of Work. Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in this Professional Services Services Agreement. Without limiting any of our other rights or remedies herein, overdue charges will accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower.
Taxes. All Fees quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. You are responsible for paying any taxes or similar government assessments (including, without limitation, value-added, sales, use, or withholding taxes). We will be solely responsible for taxes assessable against us based on our net income, property, and employees.
- Prepaid Professional Services ServicesUnless otherwise expressly stated in an applicable Statement of Work, all prepaid Professional Services Services must be redeemed within twelve (12) months from the date of purchase. At the end of the twelve (12) month term, any remaining pre-paid unused Professional Services Services will expire; no refunds will be provided for any remaining pre-paid unused Professional Services Services. Unless otherwise specifically stated in a Statement of Work, training and education services are invoiced and payable in advance.
- Term and TerminationTerm and Renewal. This Professional Services Services Agreement will commence upon the Effective Date and will remain in effect for as long as Qmulos is providing Professional Services Services under any Statement of Works between you and Qmulos, unless earlier terminated pursuant to this Section.
Termination. Either party may terminate this Professional Services Services Agreement by written notice to the other party in the event of a material breach of this Professional Services Services Agreement that is not cured within 30 days of receipt of such notice.
Survival. The termination or expiration of this Professional Services Services Agreement will not affect any provisions herein which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, ownership of intellectual property, confidentiality, payment obligations, effect of termination, limitation of liability, and the “Miscellaneous” section in this Professional Services Services Agreement.
Effect of Termination. Upon the expiration or termination of this Professional Services Services Agreement or a Statement of Work: (a) each party will promptly return to the other party all Confidential Information of the other party in its possession and control; and (ii) Customer will, within 30 days after receipt of Qmulos’s invoice, pay all accrued and unpaid Fees. Notwithstanding the foregoing, copies of routinely backed-up information constituting Confidential Information may be retained subject to destruction in the ordinary course of such retaining party’s business, subject in all cases to the restrictions on use and disclosure under this Professional Services Services Agreement.
- Limitation of LiabilityNeither party shall be liable to the other or to any third party for any special, incidental, punitive or consequential damages (including loss of use, data, business or profits or, for customer, costs of procuring substitute services) arising out of or in connection with this agreement or the services or any work product, however caused and regardless of the theory of liability, even if the other has been advised of the possibility of such damages. Neither party’s total liability, from all causes of action and all theories of liability, will exceed the amounts paid under the statement of work giving rise to any liability hereunder.
The limitation of liability herein will not apply to a party’s indemnification obligations, or the fraud, gross negligence or willful misconduct of a party.
The foregoing disclaimers of damages will also not apply to the extent prohibited by law. Some jurisdictions do not allow the exclusion or limitation of certain damages. To the extent such a law applies to you, some or all of the exclusions or limitations set forth above may not apply to you, and you may have additional rights.
- IndemnityMutual Indemnity. Each party (an “Indemnifying Party”) will defend (or settle), indemnify and hold harmless at its expense, any action brought against the other party (an “Indemnified Party”) by a third party to the extent that it is based upon a claim for bodily injury, personal injury (including death) to any person, or damage to tangible property resulting from the negligent acts or willful misconduct of the Indemnifying Party or its Personnel hereunder, and will pay any reasonable, direct, out-of-pocket costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against the Indemnified Party (or are payable in settlement by the Indemnified Party); provided that the Indemnified Party: (i) promptly notifies the Indemnifying Party in writing of the claim; (ii) grants the Indemnifying Party sole control of the defense and settlement of the claim; and (iii) provides the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The Indemnifying Party will have no obligation under this Section to the extent any claim is based on the negligent acts or willful misconduct of the Indemnified Party or its employees or subcontractors.
- Governing LawThis Professional Services Services Agreement shall be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction, the application of which is expressly excluded. Any legal action or proceeding arising under this Professional Services Services Agreement will be brought exclusively in the federal or state courts located in San Francisco, California and the parties hereby consent to personal jurisdiction and venue therein.
- MiscellaneousDifferent Terms. Qmulos expressly rejects terms or conditions in any purchase order, quote, invoice, or other similar document that are different from or additional to the terms and conditions set forth in this Professional Services Services Agreement. Such different or additional terms and conditions will not become a part of the agreement between the parties notwithstanding any subsequent acknowledgement, invoice, or license key that Qmulos may issue.
Notices. Except as set forth in this Professional Services Services Agreement, all notices required or permitted under this Professional Services Services Agreement will be in writing and delivered in person, by email, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Statement of Work or to such other address as may be specified by either party to the other party in accordance with this Section.
Assignment. Neither party may assign, delegate or transfer this Professional Services Services Agreement, in whole or in part, by agreement, operation of law or otherwise without the prior written consent of the other party; however Qmulos may assign this Professional Services Services Agreement in whole or in part in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of Qmulos’s assets to which this Professional Services Services Agreement relates. Any attempt to assign this Professional Services Services Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Professional Services Services will bind and inure to the benefit of the parties’ permitted successors and assigns.
Waiver; Severability. The waiver by either party of a breach of or a default under this Professional Services Services Agreement will not be effective unless in writing. The failure by either party to enforce any provisions of this Professional Services Services Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions.
Integration; Entire Agreement. This Professional Services Services Agreement along with any Statement of Works and additional terms incorporated herein by reference, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications, and understandings, written or oral, relating to their subject matter. Any waiver, modification, or amendment of any provision of this Professional Services Services Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
Force Majeure. Neither party will (except for the obligation to make any payments) be liable for any delay or failure to perform any obligation under this Professional Services Services Agreement where the delay or failure results from any cause beyond their reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockades, embargoes, riots, acts or orders of government, acts of terrorism, or war.
Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors. This Professional Services Services Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries of this Professional Services Services Agreement. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise.
“Confidential Information” means all nonpublic information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Professional Services Services Agreement, whether orally or in writing, that is designated as “confidential” or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Notwithstanding the foregoing, “Confidential Information” does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
“Professional Services Services Materials” means the materials and other deliverables that are provided to you as part of the Professional Services Services, and any materials, technology, know-how and other innovations of any kind that we or our Personnel may create or reduce to practice in the course of performing the Professional Services Services, including without limitation all improvements or modifications to our proprietary technology, and all Intellectual Property Rights therein.
“Customer Materials” means the data, information, and materials you provide to us in connection with your use of the Professional Services Services.
“Fees” means the fees that are applicable to the Professional Services Services, as identified in the Statement of Work.
“Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights and other rights in works of authorship; rights in trademarks, tradenames, and other designations of source or origin; rights in trade secrets and confidential information; and patents and patent applications.
“Offerings” means the products, services and other offerings that Qmulos makes generally available for purchase and use.
“Orders” means Qmulos’s quote or ordering document (including online order form) accepted by you via your purchase order or other ordering document submitted to Qmulos (directly or indirectly through an authorized reseller) to order Professional Services Services.
“Personnel” means any employee, consultant, contractor, or subcontractor of Qmulos.
“Qmulos Preexisting IP” means, with respect to any Professional Services Services Materials, all associated Qmulos Technology and all Intellectual Property Rights created or acquired: (a) prior to the date of the Statement of Work that includes such Professional Services Services Materials, or (b) after the date of such Statement of Work but independently of the Professional Services Services provided under such Statement of Work.
“Statement of Work” means the statements of work and/or any all applicable Orders that describe the specific services to be performed by Qmulos, including any materials and deliverables to be delivered by Qmulos.