Professional Services

PROFESSIONAL SERVICES TERMS AND CONDITIONS

These Professional Services Terms and Conditions (“PS Terms”) apply to the person or organization (“Customer” or “you”) purchasing professional services from VirtuSense Technologies (“VirtuSense” or “us” or “we”) pursuant to a mutually agreed to statement of work or similar document between the parties (“SOW”). These PS Terms are incorporated in and made a part of all SOWs. Each of Customer and VirtuSense may be referred to herein individually as a “Party” and collectively as the “Parties.” Except as otherwise expressly set forth herein, a SOW is governed by the terms and conditions referenced in the underlying ordering document (“Order”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Order.

1. Overview. In connection with an Order, you have requested that VirtuSense provide certain configuration and implementation services related to VirtuSense’s software-as-a-service offerings as more fully described in the applicable SOW (the “Professional Services” or “PS”). Any Professional Services not expressly described in the SOW are deemed out of scope and subject to a separate scoping exercise and mutually agreed to statement of work between the Parties, including additional charges as set forth therein. We may update these PS Terms from time to time, which will be identified by the last updated date, and may be reviewed at http://virtusense.ai/legal/professional-services
2. Customer Materials. In order to perform the Professional Services, we require access to certain Customer owned or separately licensed materials, such as content libraries, logos, trademarks, information, facilities, software, hosted platforms, APIs, personnel, systems, and infrastructure (“Customer Materials”). Customer retains ownership of the Customer Materials and grants VirtuSense a limited license to access, use and modify the Customer Materials as reasonably necessary to enable VirtuSense to provide the Professional Services. Customer represents and warrants that it has all rights and consents necessary to provide the foregoing license to VirtuSense. Our obligation to provide the Professional Services shall be contingent upon your timely provision of the Customer Materials to us.
3. Project Management and Governance. As needed based on the scope of the SOW, we will assign a project manager to proactively manage and control the scope and budget of the project as well as direct the work of our resources. We agree that all personnel who perform the Professional Services by or on behalf of VirtuSense (“Personnel”) are (and shall remain during the delivery of the PS) (i) either regular, full or part-time employees or subcontractors that have valid work authorizations to the extent required by applicable law; and (ii) bound by agreements that contain obligations related to intellectual property and confidentiality no less restrictive than those set forth herein. We retain the exclusive right to select the Personnel that will provide the Professional Services and to make changes as required in our discretion. We are fully responsible for the performance of such Personnel who are providing Professional Services in connection with the SOW.
4. Deliverables. We will provide the Professional Services in a professional and workmanlike manner in accordance with our standard procedures and methodology as outlined in the SOW. Upon Customer’s payment of all relevant fees due pursuant the SOW, VirtuSense grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, license to use the Deliverables (as defined below) provided to Customer by VirtuSense solely in connection with Customer’s access to and use of the relevant VirtuSense software-as-a-service offerings to which the Deliverables relate for Customer’s internal business purposes during the applicable subscription term set forth in the relevant Order. Subject to the foregoing license right, (i) VirtuSense owns the Deliverables (excluding any Customer Materials contained therein) and all intellectual property used by or on behalf of VirtuSense in providing the Professional Services, including without limitation, all processes, know-how, code, data, reports and related materials (and modifications or derivatives thereof); and (ii) VirtuSense reserves all rights not expressly granted herein to the Deliverables and all intellectual property rights described in subsection (i) above. Nothing contained herein limits VirtuSense’s right to develop, use, market, or sell services or products that are similar to the Deliverables or Professional Services provided pursuant to a SOW, or to use such Deliverables (excluding Customer Materials, as defined below) to perform similar services for any other purposes, including without limitation in connection with other projects and customers. “Deliverables” means any tangible or intangible work product that is created, conceived, developed or otherwise generated by or on behalf of VirtuSense in its performance of the Professional Services, including any modifications or derivatives thereof, such as documents, reports, data, models, processes, software, scripts, analysis, specifications, integrations, APIs, interfaces, programs, and other materials and results.
5. Acceptance and Completion. Unless otherwise expressly stated in the applicable SOW, all PS will be deemed completed when we provide you notification of completion of Professional Services, which may be provided via email. To the extent that the Deliverables require review by you, as determined in our discretion or as otherwise expressly agreed upon in the SOW, we will notify you at the time of completion and provide an acceptance form. You shall have no more than five business days from the date that we provide such notification (“Notice Period”) to either (i) sign and return the acceptance form to us, at which point all Professional Services will be deemed completed or (ii) notify us of any material, bona fide issues or defects in the Deliverables that render them in material noncompliance with the specifications set forth in the SOW, provided that such notice shall contain reasonable detail and must be delivered to the VirtuSense contact specified in the SOW in writing and must be received by us within the Notice Period, otherwise the acceptance form will be deemed approved and the Professional Services will be complete. You may only reject the Deliverables if they fail to materially conform to the agreed upon specifications set forth in the SOW.In the case of a notification of defect as set forth in (ii) above, if we determine in our sole and reasonable discretion that such issue or defect is material and a result of our performance of the Professional Services, we will make reasonable efforts to correct and redeliver the Deliverables promptly upon receipt of such notice, at which point the Professional Services will be deemed completed and accepted.
6. Fees and Timeline.The fees for Professional Services will be set forth in the applicable SOW or Order (the “Fees”). Unless otherwise expressly stated in the SOW or Order, all Fees are non-refundable, non-cancellable and due upon the effective date of the relevant SOW. For the avoidance of doubt, license fees or other fees related to access and use of the VirtuSense software-as-a-service offerings are outside of and in addition to the Fees due in payable in connection with the Professional Services. Any specific timeline for completion of the Professional Services shall be set forth in the SOW.
7. General Assumptions. Our obligation to perform the Professional Services is contingent upon the fulfillment of certain obligations and assumptions as follows:
   1. Prior to commencement of the Professional Services, you will designate a person known as the Customer Project Manager who will have the authority to act on behalf of you in all matters regarding the SOW.This single point of contact will be responsible for facilitating all communications between you and us and for cooperating as to issue resolution, activity scheduling, interview scheduling, and information collection and dissemination. The timeliness of communications and other activities will directly affect our ability to meet agreed upon schedule deadlines;
   2. You will ensure that we have access to the account(s) associated with the relevant VirtuSense software-as-a-service offerings and all related infrastructure, networks and facilities;
   3. If onsite work is required and agreed upon in the SOW, you will provide us with a work area for Personnel while on site, which shall include access to any required network, servers, printers, Internet connection (to support a Virtual Private Network connection), and a working telephone;
   4. Project delays resulting from Customer-owned (or licensed) software or hardware issues may result in additional fees should the timeline of the project be impacted by these delays;
   5. Professional Services are performed during our normal business hours (Monday through Friday, 8:30am to 5:00pm local time, excluding holidays). To the extent that you require PS to be provided outside of normal business hours, if acceptable to us in our reasonable discretion, we may issue a Change Order as described in the SOW, which may include an increase to the applicable Fees;
   6. The Fees are independent of any travel or other expenses incurred by us in relation to onsite work and related charges, which shall be separately invoiced by us, as applicable; and
   7. Unless expressly included in a SOW, (i) the scope of Professional Services does not include system administration activities such as creating user accounts, adding users to groups, managing attribute lookup data and related activities; (ii) we not provide hosting or operational support of any middleware logic, applications or related assets.

Last Updated: March 2020 (2020.v1)