Professional Services Addendum (the “PSA” or “Addendum”), effective September 30, 2014
THIS PROFESSIONAL SERVICES ADDENDUM GOVERNS CUSTOMER’S PURCHASE AND RECEIPT OF HC1.COM’S PROFESSIONAL SERVICES. WHEN ACCEPTING THIS ADDENDUM, EITHER BY A CUSTOMER REPRESENTATIVE (I) CLICKING A BOX INDICATING ACCEPTANCE; OR (II) EXECUTING AN AGREEMENT FOR A SUBSCRIPTION TO THE HC1® HEALTHCARE RELATIONSHIP CLOUD® (THE “SERVICE”) WITH HC1.COM, CUSTOMER SHALL BE BOUND BY THE TERMS AND CONDITIONS OF THIS ADDENDUM. FOR PURPOSES OF THIS ADDENDUM, ANY SUCH AGREEMENT DESCRIBED ABOVE THAT GOVERNS CUSTOMER’S SUBSCRIPTION TO THE SERVICE (AS DEFINED IN THE AGREEMENT) SHALL HEREINAFTER BE REFERRED TO AS THE “AGREEMENT”. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE EXECUTING THE AGREEMENT WITH HC1.COM.
Capitalized terms not defined in this Addendum have the meaning given to them in the Agreement or the Main Terms of Service posted at www.hc1.com or such other URL as specified by hc1.com.
1.Scope of Services. Subject to the terms and conditions of the Agreement and this Addendum, hc1.com will provide Customer with Professional Services as set forth in the applicable statements of work (each, a “Statement of Work”or “SOW’). hc1.com and Customer shall, from time to time, execute Statements of Work that specify the professional services to be provided to Customer hereunder (the “Professional Services”). Unless otherwise specified in a SOW, fees for Professional Services and related expenses shall be invoiced by hc1.com as incurred and shall be due upon receipt. Customer will cooperate with and assist hc1.com in performing the Professional Services.Customer’s failure to do so will relieve hc1.com of responsibility for any related deficiencies in its performance.
2. Change Management Process. In the event Customer or hc1.com requests a change in any of the specifications, requirements, Deliverables, or scope of the Professional Services described in any Statement of Work, the party seeking the change shall propose the applicable changes by written notice. Within forty-eight (48) hours 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. hc1.com will prepare a change order describing the proposed changes to the Statement of Work and the applicable change in fees and expenses, if any (each, a “Change Order”). Executed Change Orders shall be deemed part of, and subject to, this Addendum.
3. Project Materials.
3.1. Deliverables. hc1.com shall own all rights, title and interest in and to the work product or other deliverables and/or training materials to be provided to Customer hereinafter referred to as the “Deliverables” (excluding any Customer Property) and related intellectual property rights. Subject to terms and conditions of the Agreement and this Addendum, and during the Term, hc1.com hereby provides Customer with a limited, non-exclusive, non-transferable (except in connection with an assignment under the General Provisions section of the Agreement applicable to assignment), non-sublicensable, and terminable license to use the Deliverables solely for Customer’s internal operations in connection with its authorized use of the applicable Service.
3.2. Tools. Notwithstanding any other provision of this Addendum: (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 hc1.com 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; and (ii) the term “Deliverables” shall not include the Tools.
4. Services Warranty.
4.1. Warranty. hc1.com warrants that (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Professional Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Professional Services in accordance with this Addendum and any Statement of Work; and (b) the Professional Services will be performed for and delivered to Customer in a good, diligent, workmanlike manner in accordance with industry standards and applicable laws and governmental regulations. If through no fault or delay of Customer, the Professional Services do not conform to the foregoing warranty, and Customer notifies hc1.com within sixty (60) days of hc1.com’s delivery of the Professional Services, Customer’s sole and exclusive remedy is to have hc1.com re-perform the non-conforming portions of the Professional Services.
4.2. Disclaimer. THE WARRANTIES STATED IN SECTION 4.1 ABOVE ARE THE SOLE REMEDIES FOR CUSTOMER AND EXCLUSIVE OBLIGATIONS OF HC1.COM RELATED TO THE PROFESSIONAL SERVICES AND DELIVERABLES TO BE PERFORMED FOR AND DELIVERED TO CUSTOMER PURSUANT TO THIS ADDENDUM AND ANY STATEMENT OF WORK. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT. EXCEPT AS PROVIDED HEREIN, THE PROFESSIONAL SERVICES AND DELIVERABLES PROVIDED TO CUSTOMER ARE ON AN “AS IS”AND “AS AVAILABLE” BASIS.
5. Limitations of Liability for Professional Services. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM OR IN CONNECTION WITH THIS ADDENDUM OR A STATEMENT OF WORK.
Notwithstanding anything to the contrary in this Addendum, a Statement of Work or the Agreement, the maximum liability of hc1.com to any person, firm or corporation whatsoever arising out of or in connection with any Professional Services or Deliverables shall be the amount paid by Customer for the Professional Services giving rise to the liability.
6. Term. This Addendum shall be effective the date the terms of this Addendum are accepted and shall continue in effect during the Term of the Agreement. Each SOW shall commence on the date it is last signed, and shall expire upon completion of the project set forth in the applicable Statement of Work, or as otherwise set forth in the applicable Statement of Work. Sections 3.2, 4 and 5 hereof shall survive termination of this Addendum.
7. Non-Solicitation/Non-Hire. Customer agrees that, during the Term, it will not directly or indirectly solicit, employ or engage the services of any of the employees and/or contractors of hc1.com who were involved in providing Professional Services under or relating to this Agreement without prior written permission of hc1.com.