This Professional Services Addendum (this “Professional Services Addendum”) supplements and is hereby made a part of those certain Aegis General Terms and Conditions executed by Aegis Industrial Software Corporation (“Aegis”) and Customer (the “GTCs”) to which this Professional Services Addendum is incorporated by reference. This Professional Services Addendum applies to any Professional Services under the Agreement. Capitalized terms used in this Professional Services Addendum without definition shall have the same meanings ascribed to them in the GTCs.
1. ADDITIONAL DEFINITIONS.
1.1 “Customer System” means any computer, network, application programming interface (API) or other system of any kind that Customer permits Aegis to access in connection with the Professional Services.
1.2 “Deposit” means the amount owed by Customer to Aegis prior to Aegis beginning to provide Professional Services under any Transaction Document or Project.
1.3 “Open Source” means any open source code or libraries of any type, including, but not limited to, any code licensed under any version of the Apache, BSDf, Eclipse, GPL or LGPL, MIT or Mozilla licenses.
1.4 "Payment Period" means thirty (30) days after the date of invoice unless a different “Payment Period” is specified in an applicable Transaction Document (including with respect to any specific Project).
1.5 "Professional Services” means the project management services, implementation services, and/or software development services performed by Aegis and provided to Customer under an applicable Transaction Document, including any project management, implementation, deployment, training, and software development services specified as part of any Project.
1.6 “Projects” means requests made by Customer to Aegis for the provision of Professional Services under an applicable Transaction Document or as otherwise requested by Customer and subsequently agreed to and memorialized by Aegis in an update to the applicable Transaction Document.
2. PROVISION OF PROFESSIONAL SERVICES AND PERSONNEL.
2.1 General. Aegis will perform the Professional Services in accordance with the Agreement, including the GTCs and the applicable Transaction Document(s) for the Professional Services. All Professional Services to be performed will be invoiced and charged to Customer in accordance with the terms of the Agreement (including the applicable Transaction Document(s)). Section 3 (General Categories of Professional Services) of this Professional Services Addendum includes further details on the three different general categories of Professional Services that may be available for purchase by Customer and additional information regarding the performance of such Professional Services if purchased by Customer. However, each category of Professional Service provided to Customer will be governed by the applicable documents that are specific to such category of Professional Services, as such documents may be provided by Aegis to Customer and as may be updated from time to time in Aegis’ sole discretion.
2.2 Transaction Documents. Customer and Aegis will enter into one or more Transaction Document(s) for mutually agreed upon Professional Services, with such Professional Services being set forth as Projects under such Transaction Document(s). Each Transaction Document may contain one or more Projects. The Projects will each follow their own lifecycle and be tracked, fulfilled, and invoiced individually unless otherwise specified on a Transaction Document. From time to time, Customer and Aegis may mutually agree to add one or more additional Project(s) to a Transaction Document and will mutually execute an update to such Transaction Document to reflect such additional Project(s). Notwithstanding the foregoing, Customer and Aegis may elect to limit the total number of Project(s) that may be included in an applicable Transaction Document or to otherwise require an individual Transaction Document for each Project.
2.3 Scope of Professional Services and Ongoing Changes. Customer agrees and acknowledges that additional or modified Professional Services may be required in connection with the performance of any Project. Customer understands that additional or modified Professional Services may be required for any number of reasons, including, but not limited to, (a) Customer providing insufficient information, details, requirements, or materials for Aegis to scope the Professional Services or (b) Customer’s decision to change the direction, requirements, or specifications for a Project. Although Aegis will attempt to accommodate any additional or changed Professional Services, there is no guarantee that Aegis will be able to accommodate such additional or changed Professional Services (and if Aegis is able to accommodate such additional or changed Professional Services, Customer may incur increased costs relating to the Project and the Project timeline may be delayed). Notwithstanding anything to the contrary set forth in this Section 2.3 (Scope of Professional Services and Ongoing Changes), Aegis will not be bound or obligated to perform any additional or modified Professional Services unless and until Aegis accepts any such changes.
2.4 Software Development Projects. For software development Projects:
(A) Aegis will work with Customer to build the specifications documentation for each software development project under a Transaction Document. In all matters of software development performed by Aegis at the request of Company, compliance to the requirements of the resulting deliverable shall be assessed only against the explicit written content within the Customer-approved specification. In no case shall Aegis be held to requirements that were not documented and approved via the sole mechanism of a mutually executed engineering specification provided by Aegis. Prior discussion content pre-sale or post-sale, brainstorming or other discussions with Aegis fulfilment staff, customer RFP’s or any other documents shall not establish any expectation for an Aegis deliverable beyond that which is documented within the approved specification. Customer accepts that a deliverable compliant with the content of the engineering specification the Customer approved constitutes success in full and without qualification, and that any change or augmentation to their requirements necessitates a written change order approved by both Parties.
(B) Aegis will perform the software development project in three (3) phases:
(i) Phase 1 – Quick Preliminary Estimate:
a. Customer acknowledges and agrees that the initial Project estimate for the cost of such software development project (also referred to as a Quick Preliminary Estimate) is developed rapidly and with only limited understanding of the context, objectives, and requirements and therefore will require refinement. Following the initial Project estimate (the Quick Preliminary Estimate), Customer will then be required to confirm that Customer requires Aegis to continue with the next phase of the software development project, which will be the gathering of project details and requirements.
b. Customer will not be charged for Aegis’ provision of the initial Quick Preliminary Estimate.
(ii) Phase 2 - Functional Requirements Specification Development:
a. Once Customer has approved the gathering of project details and requirements, Aegis will develop a functional specification document, which may go through multiple iterations with Customer until Customer approves the functional specification document as the official functional specification document for the project (the “Functional Specifications”). Once Customer’s approval is provided for the Functional Specifications, Aegis will task out the project and update the initial Project estimate. Once the updated Project estimate has been approved by Customer (the “Updated Proposal”, together with the Functional Specifications, the “Project Specifications”), then Aegis will begin work for the Project as set forth in Phase 3 below.
b. Aegis will bill Customer during this phase for all time spent by Aegis during development of such specifications (including, but not limited to, any requirements gathering, revisions, and time spent with Customer to adjust such specifications) and Customer will be invoiced for such billings once per month (or as otherwise specified in the applicable Transaction Document).
c. If, following Customer’s approval of the Functional Specifications, Aegis determines that a project is unable to be completed on a fixed fee basis, then Aegis will offer Customer the right to not proceed with such project. If Customer elects not to proceed with such project, then Aegis will offer to Customer a seventy percent (70%) discount on the fee amounts owed by Customer to Aegis for this Phase 2 pursuant to Section 2.4(B)(ii)(b) above.
(iii) Phase 3 – Project Development Based on Project Specification Document:
a. Following Customer’s approval of the Project Specifications as set forth in Phase 2, Aegis will begin performing the development work in accordance with the requirements of the Project Specifications.
b. Aegis will bill Customer for this Phase 3 either on a fixed fee basis or a time and materials (“T&M”) basis. If Aegis bills Customer on a fixed fee basis, then the fixed fee will be based on the number of days where work will be performed as set forth in the Project specification document. For fixed fee billing and unless otherwise set forth in an applicable Transaction Document, Aegis will bill Customer (1) twenty percent (20%) of the fixed fee upon approval of the Project Specification document as set forth in Phase 2, (2) seventy percent (70%) of the fixed fee upon Aegis notifying Customer that the Project is available for commissioning (and does not require commissioning commencement or commission completion), and (3) ten percent (10%) once the site acceptance test has confirmed that the project is working inline with the Project Specifications . For the avoidance of doubt, the fixed fee amount may be subject to change as set forth elsewhere in this Professional Services Addendum. If Aegis bills Customer on a T&M basis, then Aegis will bill Customer as set forth in Section 4 (Fees and Estimates) below.
c. If a software development project is terminated at any time during this Phase 3, then (i) if such project was billed on a fixed fee basis, then Customer will be billed and will be required to pay to Aegis for all Professional Services provided through the date of termination (based on Aegis’ T&M rates for the work performed) plus fifty percent (50%) of the remaining amount that would otherwise be owed for such project based on the fixed fee for such project (after deducting the amounts charged by Aegis for its T&M amounts) and (ii) if such project was billed on a T&M basis, then Customer will be billed and will be required to pay to Aegis for all Professional Services provided through the date of termination plus an additional amount equal to thirty percent (30%) of the fees for the Professional Services performed through the date of such termination.
2.5 Third-Party Materials. Customer acknowledges and agrees that during the performance of the Professional Services, Aegis may use Open Source code or “free” code, as well as third-party proprietary products or programs, including, but not limited to, testing, tracking and assessment tools (collectively “Third-Party Materials”) to provide the Professional Services and that Customer’s rights to any such Third-Party Materials shall be governed by the terms of the applicable license agreement. AEGIS PROVIDES THE THIRD-PARTY MATERIALS “AS IS”, “WHERE IS”, AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND.
3. GENERAL CATEGORIES OF PROFESSIONAL SERVICES.
3.1 General Categories. The three primary categories of Professional Services that are offered by Aegis are:
3.1.1 Project Management Services – this category of Professional Service involves project management by Aegis, which may include: (a) planning and scheduling, (b) Project monitoring and communications, and (c) periodic status report with project updates estimated v. current v. estimated completion.
3.1.2 Implementation Services – this category of Professional Service involves implementation of Software or SaaS Product(s) by Aegis, which may include: (a) solution blueprinting, (b) training and consulting on use of Software or SaaS Product system, and (c) Technical installation, troubleshooting, configuration, and commissioning of Software
3.1.3 Software Development Services – this category of Professional Service involves development of software by Aegis, which may include: (a) technical consulting services with respect to custom engineering projects, (b) design specifications creation by Aegis and accepted by Customer, (c) software development to create new, or modify existing FactoryLogix software, and (d) authoring and execution of quality assurance procedures and plans
3.2 Additional Processes and Procedures. Each of the above three categories of Professional Services involves specific processes and procedures that Customer and Aegis will follow in the course of their fulfilment. These processes and procedures are governed by documents specific to the category of Professional Service selected and are available for review from Aegis at Customer’s request.
4. FEES AND ESTIMATES.
4.1 Fees and Invoices. Except as otherwise set forth in this Professional Services Addendum or otherwise in an applicable Transaction Document, invoices will be issued monthly in arrears as Professional Services are performed, based on the T&M rates (or the fixed fee, as applicable) set forth in the applicable Transaction Document for such Professional Services. For Professional Services billing on a T&M rate, the invoices for such Professional Services will be based on time spent on performing the Professional Services. Customer shall pay for the Professional Services as invoiced. Unless the applicable Transaction Document states otherwise, all amounts are due within the Payment Period. All fees are non-cancellable and nonrefundable.
4.2 Fee Estimates. Although Aegis will provide Customer with an initial Project estimate for the cost of Professional Services for a Project, Aegis is unable to guarantee that the cost of the Professional Services for a Project will not exceed the provided estimates. Aegis will prepare each Project estimate in good faith based on the details, information, requirements, specifications, and requests provided by Customer. Customer acknowledges and agrees that Project estimates may be based on limited information and therefore may not be accurate. If the fees for Professional Services for a Project exceed one hundred and thirty percent (130%) of the estimate for such Project, Aegis will provide Customer with notice of such overages.
4.3 Expenses. Customer will reimburse Aegis for its actual, reasonable, out-of-pocket expenses in connection with Professional Services.
4.4 Payment Disputes. If Customer disputes an invoice in good faith, it will notify Aegis within the Payment Period and the parties will seek to resolve the dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but Customer will pay all undisputed amounts before the expiration of the Payment Period. After the discussion period, Customer and Aegis may pursue any available remedies.
4.5 Deposits. Unless otherwise provided in a Transaction Document for a Professional Service, Customer will pay Aegis a Deposit for each requested Project prior to Aegis commencing any Professional Services. Aegis will have no obligation to begin its performance of the Professional Services until such Deposit is received. Except for termination due to a breach by Customer, if Aegis terminates any applicable Transaction Document or Project, Aegis will refund any unused portion of the Deposit paid to Aegis by Customer.
4.6 Suspension. Aegis is not required to deliver or otherwise provide any Professional Services (including any Work Product) to Customer until Customer has made full and complete payment of all fees and charges for such Professional Services invoiced to Customer. In addition to any other rights and remedies under the Agreement, Aegis has the right to suspend all Professional Services if payment is not received by the end of the Payment Period. Aegis may, in its sole discretion, continue to provide Professional Services despite an overdue invoice; however, such continued performance shall not constitute a waiver of the right to suspend Professional Services at any time until payment on the invoice is received. While Professional Services are suspended, Customer shall not accrue any credit for fees on any current or subsequent invoice. Aegis has the right to continue to suspend Professional Services until such time that Customer brings all past due amounts current.
5. CUSTOMER’S RESPONSIBILITIES.
5.1 Additional Customer Obligations. Customer will make the necessary arrangements to allow Aegis to perform the Professional Services. Customer shall provide and make available all Customer personnel that Aegis reasonably requires in connection with performance of the Professional Services and as may be further addressed in an applicable Transaction Document. If the Professional Services are performed at Customer's site, Customer will provide necessary access to its site, including appropriate access to Customer's premises, personnel, computer systems, and other facilities. Customer shall appoint a contact person with the authority to make decisions and to supply Aegis with any necessary or relevant information expeditiously. Customer shall ensure that it has all necessary rights, including third-party license rights, required to allow Aegis to perform the Professional Services. If any Professional Services, in whole or in part, cannot be performed by Aegis due to a Customer responsibility, and Customer fails to provide Aegis with reasonable advance notice, the time spent by Aegis on such Professional Services will be charged to Customer.
5.2 Customer Systems. Customer will make available to Aegis the Customer Systems in order for Aegis to perform the Professional Services. Aegis may access and use Customer Systems (a) to the extent necessary to provide the Professional Services to Customer and for no other purpose and (b) in accordance with any reasonable access control policies or instructions issued by Customer. Customer represents and warrants that Customer has all necessary rights and consents to provide Aegis with the rights to use the Customer Systems,
5.3 Responsibility and Issue Escalation. Customer will designate a contact (“Designated Company Contact”) to assume overall project management responsibility for the Professional Services. Aegis will appoint a Project manager to be Customer’s primary contact for the Project. Customer will advise Aegis’ operations director as soon as possible should any possible issues with the management of a Project arise.
6. TERM AND TERMINATION.
6.1 Duration of Transaction Documents and Projects. Each Transaction Document for Professional Services will commence on the effective date specified in such Transaction Document and will continue until the end of the term as specified in such Transaction Document. Each Project set forth in a Transaction Document will commence on the effective date specified for such Project in such Transaction Document and will continue until the end of the term for such Project as specified in the applicable Transaction Document.
6.2 Termination for Convenience. In addition to any other termination rights set forth in the GTCs, either Party may terminate a Transaction Document with respect to Professional Services or any Project for Professional Services for any reason upon fourteen (14) days’ written notice to the other Party.
6.3 Termination for Cause. In addition to any other termination rights set forth in the GTCs, either Party may terminate any or all applicable Transaction Document(s) with respect to Professional Services and any or all of the applicable Project(s) for cause if the other Party commits a material breach of the Agreement and fails to cure such breach within thirty (30) days (or with respect to Customer’s payment failure, within ten (10) days) of receipt of a notice of breach or default from the non-breaching. Additionally, if at any point Customer is nonresponsive to a Project or any Professional Services for a period of sixty (60) days or more, then Aegis may immediately terminate the Project and such Professional Services by providing written notice to Customer.
6.4 Effect of Termination. Termination of the GTCs will automatically terminate all underlying Transaction Document(s) for Professional Services (including all Projects set forth in such Transaction Document(s)). Expiration of the GTCs will not terminate underlying Transaction Document(s) for Professional Services that are still active and such GTCs shall continue in effect to govern such Transaction Document(s) until termination or expiration of such Transaction Document(s). Termination of a Transaction Document for Professional Services only applies to that specific Transaction Document (including the Projects set forth in that Transaction Document) and does not terminate the GTCs or any other Transaction Document. Termination of an individual Project only applies to that specific Project and does not terminate other Project(s), any other Transaction Document, or the GTCs. Upon termination or expiration of GTCs, any Transaction Document, or any Project for any reason: (a) Customer shall immediately pay to Aegis all amounts owed to Aegis for Professional Services performed and expenses incurred prior to the applicable termination (including, but not limited to, any additional fees and termination amounts owed in connection with any such termination as may be set forth in Section 2.4) and (b) Customer shall immediately cease all use of and return to Aegis all Confidential Information, Work Product, and materials provided or made available by Aegis and all copies, portions and abstracts thereof, that are in its possession or under its control. If Customer paid a Deposit in connection with any Project or Transaction Document, Customer hereby acknowledges and agrees that such Deposit will not be refunded to Customer upon termination except as set forth in Section 4.5 (Deposits).
7. WARRANTIES AND DISCLAIMERS.
7.1 Limited Warranty of Aegis. Aegis represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. If a Professional Service fails to satisfy this warranty, then Customer must notify Aegis within five (5) days of the completion of such Professional Service, which notification shall include detailed particulars regarding any nonconformance and any additional information necessary to assist Aegis in verifying the nature and cause of any such nonconformity. If Customer notifies Aegis of such nonconformity in accordance with the time period set forth in this Section 7.1 (Limited Warranty) and Aegis validates such nonconformity, then Aegis will use commercially reasonable efforts to reperform or correct such nonconforming Professional Service. Customer agrees and acknowledges that this is Customer’s sole and exclusive remedy for any breach of such warranty for the Professional Services.
7.2 DISCLAIMER OF ALL OTHER WARRANTIES. FOR THE AVOIDANCE OF DOUBT, THE DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 7 (DISCLAIMER OF WARRANTIES) OF THE GTCS IS INCORPORATED INTO THIS PROFESSIONAL SERVICES ADDENDUM BY REFERENCE.