This Professional Services Addendum (“Addendum”) forms part of the agreement governing the use of WeCP services (the "Agreement") between WeCP and the customer agreeing to this Addendum ("Customer") and applies to WeCP's provision of Professional Services to Customer. Capitalized terms used but not defined in this Addendum will have the meaning given elsewhere in the Agreement.
Scope of Professional Services. “Professional Services” within this Addendum means services WeCP provides as scoped customized services for Customer. Professional Services do not include WeCP’s subscription-based licensed software services or support or maintenance related thereto (“Software Services”).
SOW. The Professional Service and applicable terms will be specified in a statement of work or other ordering document entered into between WeCP and Customer (“SOW”).
Fees and Expenses.
(a) Fees. Customer will pay WeCP all undisputed (in good faith) Fees payable for the Professional Services under the SOW (“Fees”). Fees are payable in accordance with the terms of the SOW. Fees are nonrefundable except as expressly set forth in the Agreement
(b) Expenses. WeCP is responsible for all expenses it incurs in performing the Professional Services, unless otherwise specified in the SOW.
Customer Dependencies. Customer agrees to promptly provide all necessary cooperation, information, and assistance reasonably requested by WeCP to facilitate the provision of the Professional Services. Additionally, WeCP’s provision of the Professional Services or a portion thereof may be dependent on Customer timely performing certain obligations or providing WeCP with certain information to the extent specified in an SOW (each, a “Dependency”). Without prejudice to the rights a party may have under the Agreement, Customer acknowledges that delays in fulfilling a Dependency, may result in corresponding delays in WeCP’s performance of the portions of the Professional Services affected by the Dependency delay.
Intellectual Property Rights.
(a) Definition. “Intellectual Property Rights” within this Addendum means as that term or its substantially equivalent term is defined in the Agreement or, if not defined in the Agreement, all copyright, patent, trade secret, trademark, and other intellectual property rights of any kind (and any applications, extensions, and renewals therefor).
(b) Ownership of Deliverables. Except for WeCP Works (defined below) or as may be otherwise expressly provided in an SOW, the tangible end result of Professional Services rendered (“Deliverables”) will be “works made for hire” as defined by the U.S. Copyright Act, with Customer owning all Deliverables and all right, title, and interest therein, including but not limited to, Intellectual Property Rights. If any Deliverables do not qualify as works made-for-hire in favor of Customer, WeCP irrevocably assigns to Customer all rights, title, and interests in and to the Deliverables and all Intellectual Property Rights therein, with WeCP waiving any “moral rights” WeCP may otherwise have in the Deliverables.
(c) WeCP Works. As between WeCP and Customer, WeCP owns and retains all right, title, and interest in and to the Software Services and any other works or materials owned or created by WeCP prior to or independently of the Professional Services provided to Customer (collectively, “WeCP Works”). To the extent WeCP Works may be incorporated into or made part of any Deliverables, WeCP grants to Customer a non-exclusive, royalty-free, irrevocable, worldwide, transferable, perpetual right and license (with right to sublicense through multiple tiers) to make, have made, sell, use, import, export, execute, reproduce, distribute, modify, adapt, publicly display, publicly perform, prepare derivative works of, and disclose those WeCP Works as incorporated into or made part of the Deliverables.
6. Acceptance. To the extent the SOW provides that any Deliverables are subject to Customer acceptance, the provisions of this Section will apply.
(a) Acceptance Period. Following receipt of each Deliverable subject to acceptance, Customer will have 10 business days, or any different period specified in the SOW, (the “Acceptance Period”) to review the Deliverable for material conformance with the applicable specifications of the SOW. If Customer determines in good faith that a Deliverable does not materially conform to the SOW specifications (a “Non-Conformance”), Customer will provide WeCP with a written notice and description of the Non-Conformance.
(b) Remediation. Following receipt of a Non-Conformance notice, WeCP will have 10 business days, or any different period specified in the SOW, to remedy the Non-Conformance and resubmit the Deliverables to Customer for another review. If, after resubmission, Customer determines in good faith that the Deliverables still constitute a Non-Conformance, then Customer may elect to: (i) receive a refund of prepaid Fees or a credit toward unpaid fees, as applicable, of the pro-rata amount of Fees attributable to the Non-Conformance, or (i) terminate the SOW in accordance with the termination for cause provisions of this Addendum. The foregoing will be Customer’s exclusive remedy and WeCP’s sole liability arising from or related to a Non-Conformance.
(c) Deemed Acceptance. If Customer does not provide WeCP with a notice of Non-Conformance during the Acceptance Period as specified above, the applicable Deliverable will be deemed accepted.
7. Professional Services Warranties. WeCP warrants that: (i) it will perform the Professional Services in a timely, professional, and workmanlike manner and with a degree of quality equal to or higher than applicable industry standards for similar services; (ii) the Professional Services and each Deliverable will conform in all material respects with the applicable specifications of the SOW; and (iii) the Professional Services and Deliverables will not infringe on the copyright, trademark, patent, trade secret, privacy, publicity, or other Intellectual Property Rights of a third party. EXCEPT FOR THE EXPRESS WARRANTIES UNDER THIS ADDENDUM, WECP DISCLAIMS AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL SERVICES OR DELIVERABLES.
8. Change Requests. A party may request a change to the scope of the Deliverables or Professional Services by providing the other party with written notice of the request (“Change Request”). Within 10 business days of receipt of a Change Request, the parties’ authorized representatives will confer in good faith to discuss the terms of the proposed Change Request. If the parties mutually agree to the terms of a Change Request, the parties will enter into a written document, signed by the parties, providing for the agreed-upon changes.
9. Additional Authorizations.
(a) Subcontracting. To the extent such consent may be required under the Agreement, Customer consents to WeCP's use of any subcontractors and/or Sub-processors as may be designated under an SOW to perform applicable portions of the Professional Services.
(b) Data Processing Categories. If the performance of the Professional Services requires WeCP to process any new categories of personal data or personal information (as each is defined by applicable law) not previously identified in the Agreement, Customer authorizes WeCP to process those applicable categories of personal data solely as necessary to perform the Professional Services.
10. Further Assurances. Each party will take such actions requested by the other party as may be reasonably necessary for the requesting party to effectuate the purpose of each SOW and this Addendum.
11. Termination.
(a) Termination for Cause. In addition to any termination a party may have under the Agreement, either party may terminate a Professional Services SOW if the other party fails to cure a material breach of the SOW or this Addendum within 30 days after receiving notice of the breach.
(b) Termination for Subscription Expiration. If Customer’s subscription to the applicable Software Services terminates or expires while Professional Services are in progress, then any SOWs for Professional Services then in progress will automatically terminate. If an SOW terminates in accordance with the foregoing, Customer will be responsible only for payment of the pro-rata amount of Fees commensurate with Professional Services performed through the date of termination, and WeCP will refund Customer the pro-rata amount of any prepaid Fees in excess of that pro-rata amount.
(c) Effect of Termination. Upon termination of an SOW: (i) WeCP will cease providing the Professional Services under the terminated SOW and will promptly deliver to Customer all completed and then in-progress Deliverables; and (ii) all rights granted under the terminated SOW will terminate. The termination of an SOW will not thereby alone result in the termination of any other SOW, the Agreement, or of any Software Services or agreements related thereto then in effect between the parties or their affiliates.
12. Entire Agreement. Each SOW (and any documents that incorporate or incorporated into SOW) sets forth the complete and final agreement between the parties with respect to the subject matter of the SOW and supersedes all prior or contemporaneous agreements, understandings, negotiations, or discussions between the parties, whether oral or written, related to the subject matter of the SOW.