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Professional Services Addendum

This Professional Services Addendum (“PSA”) sets forth the master terms and conditions under which Kantata will provide Professional Services to Client as mutually agreed upon and set forth in one or more SOWs hereunder and is hereby incorporated by reference into the Hosted Services Agreement (“Agreement”) to which this PSA is attached as Exhibit 2. Capitalized terms used but not defined herein will have the meanings set forth in the Agreement.

1. Definitions

  • 1.1 “Assigned IP” means the Client-specific (a) written project reports and other status documents, (b) written project and process plans that specifically track the business processes and work flows provided by Client describing its operations, (c) documentation regarding the configuration settings specific to Client’s operations and (d) training materials specific to Client’s operations produced by Kantata for Client under this PSA that are (x) dependent on and specific to Client’s specifications, systems and the Client Data and (y) defined as a “Assigned IP” in any SOW.
  • 1.2 “Pre-Existing IP” means inventions, processes, ideas, concepts, know-how, software, software as a service, platforms, tools, technology, designs, product roadmaps and all related copyrights, patents, trade secrets, trademarks and other proprietary rights related thereto, or any improvements, modifications and derivative works thereof that existed before the commencement of the Professional Services or that are developed outside the scope of the Professional Services.
  • 1.3 “Kantata IP” means (a) Kantata’s Pre-Existing IP (including, but not limited to, the Hosted Services) and (b) any customizations, improvements, modifications and derivative works thereof produced on or after the commencement of or in connection with the Professional Services (including, but not limited to, customizations, improvements, modifications and derivative works of and integrations, connectors and pages to the Hosted Services developed in connection with or resulting from or related to the Professional Services provided by Kantata to Client under this PSA).
  • 1.4 “Professional Services” means the consulting, design, implementation, configuration, training and other services that Kantata will provide Client as described in each SOW.
  • 1.5 “SOW” means a mutually approved Statement of Work that describes the Professional Services and, if applicable, any Assigned IP, including the specifications therefor.
  • 1.6 “Third-Party Material” means any software, hardware, products, components, services, development tools, documentation, or other materials owned or licensed by an entity other than Kantata and Client. For clarity, the Hosted Services are not Third-Party Material.

2. Performance of Professional Services and Payment of Service Fees

  • 2.1 Kantata will perform the Professional Services and deliver the Assigned IP set forth in each SOW in consideration for the service fees therefor. Kantata will provide experienced and qualified personnel to provide the Professional Services and such personnel will provide the Professional Services in a professional and workmanlike manner by appropriately qualified personnel and in accordance with the specifications therefor set forth in each SOW. The Kantata employees providing the Professional Services will have passed commercially reasonable background checks in connection with their initial employment by Kantata. SOWs will include commercially reasonable details for all Professional Services and Assigned IP to be provided, including specifications for the Professional Services and Assigned IP, start and end dates, estimated delivery dates, milestones and other applicable terms of each Professional Services project.
  • 2.2 The payment terms for the Professional Services to be provided under each SOW will be set forth in one or more mutually agreed upon Order Form or SOW for such Professional Services and Client will pay all service fees for the Professional Services as set forth therein.
  • 2.3 Client will also reimburse Kantata for all reasonable and necessary out-of-pocket expenses Kantata incurs in providing the Professional Services and Assigned IP. All material costs and expenses are subject to Client’s pre-approval (which will not be unreasonably withheld) and will be subject to Client’s expense reimbursement policies; provided, that such policies are provided to Kantata in writing.
  • 2.4 Client hereby acknowledges and agrees that (a) the termination of this PSA or any SOW or the Professional Services described herein or therein or (b) Kantata’s breach of the terms of this PSA or any SOW will not terminate the Agreement or any other obligation that Client has under the Agreement, including the Client’s obligation to pay all subscription fees for the Hosted Services for the Term set forth in each Order Form for such Hosted Services. This PSA is limited to Professional Services and does not convey any right to access or use the Hosted Services or any other Kantata online or web-based services.

3. Ownership

  • 3.1 Each Party retains ownership of its respective Pre-Existing IP and there is no transfer of ownership of or license granted to either Party’s Pre-Existing IP under this PSA.
  • 3.2 Client hereby grants Kantata a non-exclusive, non-sublicensable, worldwide license to access and use Client’s Pre-Existing IP solely in connection with providing the Professional Services to Client. Client represents and warrants that it has appropriate ownership or license rights to its Pre-Existing IP to provide such license to Kantata. To the extent that Client requires any Third-Party Material in connection with its implementation and integration of the Hosted Services, Kantata and Client will identify such Third-Party Material in the applicable SOW and Client will be responsible for obtaining any underlying license or ownership rights to such Third-Party Material.
  • 3.3 Subject to Client’s payment of all service fees for the Professional Services and Sections 3.4, Kantata grants a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain and use and run (as applicable) solely for its internal business purposes associated with its use of Kantata’s services the property Kantata develops for Client under this PSA (“PSA Property”). Kantata and Client each retain all right, title and interest in their respective intellectual property and Kantata retains all ownership rights to the PSA Property.
  • 3.4 Notwithstanding any other provision of this PSA, any SOW, or the Agreement, PSA Property will not include (a) Kantata IP; (b) any Third-Party Material, or (c) any software, system, concept, design, business process or work flow, functionality, feature, or product or service that is (x) generally applicable to the markets in which Kantata operates (now and in the future) and/or (y) clients within those markets.

4. Performance Warranty and Change Requests

  • 4.1 Within five days of the performance of any Professional Services, Client (in good faith and not in any unreasonable fashion) will notify Kantata in writing of any material non-conformance of such Professional Services with the requirements set forth in Section 2.1 and detailing such non-compliance in reasonable detail. If Client fails to provide such timely notice of material non-conformance detailing such non-compliance in reasonable detail, Client will be deemed to have accepted such Professional Services as delivered by Kantata. Upon receipt of Client’s written notice of material non-conformance, Kantata will, provided, that Client has provided reasonable detail thereof, at its own expense, re-perform the Professional Services within 30 days. If Kantata re-performs the Professional Services and Client rejects the Professional Services in writing as set forth in this Section 4.1 more than twice, or if Kantata does not re-perform the Professional Services within 30 days of receipt of Client’s written notice of material non-conformance, Client may, as its sole and exclusive remedy with respect to such material non-conformance (a) accept the Professional Services notwithstanding the non-conformance; (b) allow Kantata to re-perform and re-submit the Professional Services again at Kantata’s expense; or (c) terminate the applicable SOW(s) related thereto without incurring any penalties and, if Client so terminates such SOW(s), Kantata will refund any prepaid service fees with respect to the non-conforming Professional Services; provided, that Client has paid all outstanding service fees for all conforming Professional Services actually performed and is otherwise current in its payment obligations under the Agreement through the effective date of termination of the SOW.
  • 4.2 Upon receipt of a written request from Client detailing desired changes to a SOW, Kantata will, with Client’s assistance, prepare a written estimate of the cost of the proposed changes.

5. Term and Termination

  • 5.1 This PSA will commence on the Effective Date of the Agreement and will remain in effect for the Term of the Agreement unless earlier terminated pursuant to Section 5.2 of this PSA.
  • 5.2 Either Party may terminate this PSA on 15 days’ prior written notice to the other Party; provided, that the termination of this PSA will not terminate any SOW then in effect and the terms and conditions of this PSA shall continue to exist and be in effect for the duration of any such continuing SOW. Client’s right to terminate any SOW will be limited to the circumstances and subject to the steps set forth in Section 4.1.
  • 5.3 Sections 1-3, 5-6, 7.1, 7.3 and 7.4 will survive the expiration or earlier termination of this PSA.

6. Defend Trade Secrets Act

  • 6.1 Pursuant to the Defend Trade Secrets Act of 2016, Client acknowledges that Kantata will not have criminal or civil liability under any federal or state trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other legal filing, if such filing is made under seal. In addition, if Kantata files a lawsuit for retaliation by Client for reporting a suspected violation of law, Kantata may disclose the trade secret to Kantata’s attorney and may use the trade secret information in the court proceeding, if Kantata (X) files any document containing the trade secret under seal and (Y) does not disclose the trade secret, except pursuant to court order.

7. General

  • 7.1 Kantata is an independent contractor and nothing in this PSA or anything related to Kantata’s performance of the Professional Services will be construed to create an employer-employee relationship between Client and Kantata or any Kantata employee or consultant. Each party will be solely responsible for the payment of all compensation owed to its employees and consultants, as well as employment and consultant-related laws, taxes and insurance.
  • 7.2 Kantata has no authority to act on behalf of or to enter into any contract, incur any liability or make any representation on behalf of Client in connection with providing the Professional Services. Kantata will comply and will ensure that each of its employees and consultants complies with all applicable laws and regulations and all Client policies and rules provided to Kantata in writing in the course of performing the Professional Services
  • 7.3 During the term of this PSA and for six months thereafter, Client will not, whether voluntary or involuntary, on its own behalf or on behalf of any other person, organization, or entity, directly or indirectly, solicit, try to entice away, offer employment to, or employ any person employed by Kantata.
  • 7.4 To the extent the terms in any SOW conflict with any of the terms in this PSA, these PSA terms will control.