Professional Services Agreement
Last Modified: Mar 24, 2024
THIS AGREEMENT GOVERNS THE CUSTOMER’S PURCHASE AND RECEIPT OF BASELINE GENERAL PROFESSIONAL SERVICES AND OTHER SERVICES, EXCEPT THE BASELINE CLOUD SERVICES, WHICH ARE GOVERNED BY THE BASELINE MASTER SERVICES AGREEMENT.
BY ACCEPTING MSA, THIS PROFESSIONAL SERVICES AGREEMENT (THE “PSA”), SHALL AUTOMATICALLY COME INTO EFFECT.
The Customer may not receive General Consulting Services if it is a direct competitor, except with prior written consent. This Agreement is effective between the Customer and Provider as of the date of the Customer accepting the Master Services Agreement (The “MSA”) the “Professional Services Starting Date”.
1. DEFINITIONS
For the purpose of this document, the Parties hereby understand and agree that the definitions in the MSA shall govern.
2. Professional Services
2.1 Scope of General Consulting Services
Any and all Resident Services to be provided to Customer from time to time by Resident, other than the Resident Online Services, shall be deemed to be general consulting services governed by this Professional Services Agreement (the “General Consulting Services”).
2.2 Relationship to Resident Online Services
This Professional Services Agreement is limited to General Consulting Services and does not convey any right to use Resident Online Services. Any use of Resident Online Services by the Customer will be governed by the Resident Master Services Agreement. The Customer agrees that the purchase of General Consulting Services is not contingent on the delivery of any future Resident Online Service functionality or features, other than Deliverables, subject to the terms and conditions of the applicable SOW, Special Feature Request, or Purchase Order, or on any oral or written public comments by Resident regarding future Resident Online Services functionality or features. Notwithstanding any language to the contrary in any SOW, Special Feature Request, or Purchase Order, all General Consulting Services purchased under such SOW, Special Feature Request, or Purchase Order are purchased separately from the Resident Online Services and all references to “Purchase” herein shall not apply in any way to any Resident Online Services, including without limitation, with respect to payment obligations and termination rights.
2.3 Exclusion of Core Software Services
The Resident Solutions expressly excludes Core Software and Resident does not provide any services related to any Core Software to the Customer. Any such Core Software used by the Customer, as well as any and all services related thereto, shall be deemed to be Third-Party Products.
2.4 Duly Authorized Representative
The Customer hereby undertakes and agrees to appoint, and maintain appointed at all time, via any means made available by Resident for such appointments, one or more representatives authorized to negotiate, finalize, enter into, and execute any and all SOWs, Special Features Request, and Purchase Order, in the name and on behalf of the Customer, as well as any and all other agreements and documents such authorized representative may deem necessary, useful or required to execute in the name and on behalf of the Customer, with regards to any and all matters relating to any and all Resident Agreements in Force and Effect (the “Duly Authorized Representatives”). The Customer hereby understands and agrees that each and every such agreement and document executed, and any such software and/or services terms and conditions accepted through a “click wrap” consent functionality, by any one of its Duly Authorized Representatives, shall bind the Customer.
2.5 Cooperation
The Customer will cooperate reasonably and in good faith with Resident in its performance of General Consulting Services by, without limitation: (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Resident to perform its obligations under each SOW, Special Feature Request, or Purchase Order ; (b) timely delivering any materials and other obligations required under each SOW, Special Feature Request, or Purchase Order; (c) timely responding to Resident inquiries related to the General Consulting Services; (d) assigning an internal project manager for each SOW, Special Feature Request, or Purchase Order to serve as a primary point of contact for Resident; (e) actively participating in scheduled project meetings; (f) providing, in a timely manner and at no charge to Resident, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, access to the Customer’s appropriate and knowledgeable employees and agents, and continuous administrative access to the Customer service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Resident; and (g) complete, accurate and timely information, data and feedback all as reasonably required.
2.6 Exclusivity for Provider
Customer hereby acknowledges and agrees that Customer shall retain Resident on a non-exclusive basis for all services relating to any and all web and mobile GovTech solutions for constituent relationship management solutions, the whole except only as may be specifically agreed otherwise in writing by the Parties.
2.7 Freedom in the Performance of General Consulting Services
There is no relationship of subordination between Resident and the Customer, Resident retains the freedom to choose (i) the modalities of performance of its Resident Services; (ii) the organization of his availability time and (iii) the place where the Resident Services shall be performed.
2.8 Sub-Contractors, Sub-Processors
a) The Customer hereby acknowledges and agrees that Resident may retain the services of various Sub-Contractors in order to provide, in whole or in part, any General Consulting Services having to be provided to the Customer pursuant to this Professional Services Agreement, and hereby consent to any such Sub-Contractors providing such services, provided however that Resident shall remain liable for the acts and omissions of any such Sub-Contractors to the same extent Resident would be liable if it were performing such services directly under the terms and conditions of this Professional Services Agreement.
b) The Customer hereby acknowledges and agrees that Resident may retain the services of various Sub-Processors in order to provide in whole or in part its Resident Online Services, including without limitation Cloud Hosting Services, and hereby consent to any such Sub-Processors providing such services, provided however that Resident shall remain liable for the acts and omissions of any such Sub-Processors to the same extent Resident would be liable if it were performing such services directly under the terms and conditions of any Resident Agreements in Force and Effect.
3. Requests, Purchase Orders, DELIVERY, and ACCEPTANCE
3.1 Requests for General Consulting Services
Unless the Special Features Request Process or a Purchase Order applies, General Consulting Services are ordered by Customer upon simple written request or acceptance of offer by Resident (a “SOW”). The Customer may, but only through its Duly Authorized Representative, request General Consulting Services from Resident, or accept any offer from Resident to provide such General Consulting Services, via any means made available by Resident for such requests and acceptance, including via email exchanged between any Resident Representatives and Duly Authorized Representatives of the Customer, without having to refer to this Professional Services Agreement nor having to mention that such services are requested as General Consulting Services. Affiliates and Internal Users of the Customer may not request General Consulting Services.
3.2 Special Features Requests
(a) For any General Consulting Services the purpose of which is to create and/or customize a Special Feature for the Customer, the Parties hereby agree to follow this, and only this, request and proposal process:
(i) Special Feature summary written request or proposition presented by either Resident or Customer explicitly referring to this Special Features Request Process;
(ii) Request for quotation presented to Resident by Customer when Special Features are proposed by Resident;
(iii) Detailed written quotation provided by Resident, stating (i) the specifications, (ii) the budget, (iii) the timetable for testing and delivery, and explicitly referring to (iv) the Special Feature summary written request;
(iv) Approval of said detailed written quotation by a Duly Authorized Representative of the Customer.
(b) Without limiting the generality of any other provision relating to Resident Background IP in any Resident Agreement in Force and Effect, Special Features developed pursuant to this Special Features Request Process shall be deemed to be an IP Modification to the Resident Background IP.
3.3 Order of Precedence
In the event of any conflict or inconsistency between the provisions of this Professional Services Agreement and any Special Feature Request or a Purchase Order (as applicable), the provisions of such Special Feature Request or Purchase Order will prevail. In the event of any conflict or inconsistency between the provisions of this Professional Services Agreement and any SOW (as applicable), the provisions of this Professional Services Agreement will prevail.
3.4 Delivery of Services
Resident will provide the General Consulting Services and their Deliverables, in accordance with this Professional Services Agreement and the applicable SOWs, Special Features Request or Purchase Order.
3.5 Time of Performance, Delays
Resident will perform its General Consulting Services within reasonable delay following request, or within the delays expressly agreed upon in writing in the relevant Special Features Requests and Purchase Orders, if and when such delays are followed with the mention “Time is of the essence”. Any delays in the performance of General Consulting Services or delivery of Deliverables caused by the Customer may result in additional applicable charges for resource time.
3.6 Acceptance Process
a) Upon completion of each Deliverable under an SOW, a Special Feature Request, or a Purchase Order, Resident will, as applicable: (i) submit a complete copy to the Customer; and (ii) at the Customer’s request, demonstrate its functionality to the Customer.
b) The Customer is responsible for reviewing and testing all Deliverables in accordance with such SOW Special Feature Request, or a Purchase Order pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the parties for such Deliverable.
c) The Customer will provide Resident with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance.
d) If the Customer, in the Customer’s reasonable and good faith judgment, determines that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW, Special Feature Request, or Purchase Order, the Customer must so notify Resident in writing within ten (10) business days following submission of the Deliverable, specifying the deficiencies in detail. Resident will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to the Customer as soon as practicable. The Customer will again review and test the Deliverable against the agreed-upon acceptance criteria, and detail any deficiencies to Resident in writing within ten (10) business days after resubmission of the Deliverable. If a Deliverable fails to meet the functional requirements specified in the applicable SOW, Special Feature Request, or Purchase Order after its second resubmission to the Customer, the Customer may either, as the Customer sole and exclusive remedy:
(i) reject again the Deliverable and return it to Resident for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to the Customer’s executive sponsor for the project associated with the SOW, Special Feature Request, or Purchase Order and Resident’s project manager); or
(ii) terminate the relevant SOW, Special Feature Request, or Purchase Order immediately upon written notice and recover all General Consulting Fees paid under such SOW, Special Feature Request, or Purchase Order for such deficient Deliverable.
e) Notwithstanding the foregoing, no General Consulting Services provided to the Customer under the Special Features Request Process can be contested by the Customer as failing to meet the functional requirements specified in the applicable Special Feature Request on the ground that their delivery date and/or their payable General Consulting Services Fees exceeded the delivery date and/or budget targets stated in said detailed written quotation, unless it so exceeds any such targets by more than twenty-five percent (25%).
3.7 No Effect on Warranty Remedies
Acceptance of General Consulting Services, including a Deliverable, will not affect the Customer’s rights or remedies under Section 6.2 (Warranties).
3.8 Change Orders
If the parties determine that a deliverable functional requirements specified in a SOW, Special Feature, Request or Purchase Order require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a change order for such revised requirements. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. Changes to a SOW, Special Feature Request, or Purchase Order will require a written change order signed by the Resident and the Customer’s Duly Authorized Representative, prior to implementation of any such changes.
4. Fees, Payments, and Taxes
4.1 Payment of General Consulting Fees
a) The Customer agrees to pay to Resident the General Consulting Fees according to the terms and conditions of this Professional Services Agreement and the applicable SOW, Special Feature Request, or Purchase Order, for any General Consulting Services provided by Resident from time to time to the Customer and/or to any of its Affiliates, the whole at the Resident’s standard rates in effect at the time the General Consulting Services are provided, if no rate is specified in the applicable SOW, Special Feature Request, or Purchase Order.
b) General Consulting Services are provided on a time-and-material basis, unless provided otherwise in the applicable SOW, Special Feature Request, or Purchase Order.
c) General Consulting Fees, together with all the applicable taxes referred to in Section 4.2 (Applicable Taxes), finance charges referred to in Section 4.4 (Late Payments), and additional costs, travel, and expenses charges referred to in Section 4.5 (Additional Costs, Travel, and Expenses), are payable on a monthly basis, within thirty (30) days following receipt of Resident's invoices to that effect.
d) General Consulting Fees will be submitted by Resident to the Customer for approval at least fifteen (15) working days prior to invoicing. General Consulting Fees which are not contested fifteen (15) working days following request for approval shall be considered accepted and payable by the Customer. In the event of a disagreement between the Parties as to any General Consulting Fees payable, Parties will try to resolve such dispute within eight (8) working days. If such dispute can’t be resolved, it will escalate to the general management of both Parties.
e) Any amount set forth on a time-and-material basis in any SOW, Special Feature Request, or Purchase Order is solely a good-faith estimate for the Customer budgeting and Resident resource-scheduling purposes and is not a guarantee that the work will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, Resident will continue to provide its General Consulting Services under the same rates and terms.
f) Any change by Resident to its applicable hourly rates for purpose of its General Consulting Fees shall be disclosed to the Customer at least thirty (30) days prior to the date it shall become applicable to a Customer's SOW, Special Feature Request, or Purchase Order. The Customer may be required to pay General Consulting Fees in advance, in arrears or both. Resident may charge the Customer at one time for more than one billing period. Invoiced amounts will be due and payable net thirty (30) days from the invoice date. Customer is responsible for providing Resident with its complete and accurate billing and contact information and notifying Resident of any changes to such information.
4.2 Additional Costs, Travel, and Expenses
Reasonable travelling expenses (including but not limited to transportation, and lodging) incurred by Resident while performing any General Consulting Services shall be reimbursed by Customer to Resident at cost, within thirty (30) days following receipt of Resident expense report to Customer, subject to pre-approbation of such travelling expenses by the Customer.
5. Warranties and Disclaimers
5.1 Warranties
All General Consulting Services provided by Resident and its Subcontractors to Customer under this Professional Services Agreement shall be performed in a professional and workmanlike manner by adequately trained and experienced personnel, in accordance with generally accepted industry standards. For any breach of the above warranty, the Customer’s exclusive remedy and Resident entire liability will be the re-performance of the applicable General Consulting Services. If Resident is unable to re-perform the General Consulting Services as warranted, the Customer will be entitled to recover the General Consulting Fees paid to Resident for the deficient General Consulting Services. The Customer must make any claim under the foregoing warranty to Resident in writing within ninety (90) days of performance of such General Consulting Services in order to receive warranty remedies.
5.2 Disclaimer
THE WARRANTY GRANTED PURSUANT TO SECTION 5 (Warranties) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. Payment Upon Termination
Upon any termination of any SOW, Special Feature Request, or Purchase Order, the Customer will pay, in accordance with Section 4 (Fees, Payments, and Taxes), any unpaid General Consulting Fees and expenses incurred on or before the termination date (such General Consulting Fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that the Customer terminates any SOW, Special Feature Request, or Purchase Order, the Customer for cause while having pre-paid any General Consulting Fees for General Consulting Services not yet received, Resident will refund such pre-paid General Consulting Fees. In the event that Resident terminates any SOW, Special Feature Request, or Purchase Order for cause, any pre-paid General Consulting Fees for General Consulting Services charged on a fixed-fee basis shall be non-refundable, unless expressly stated otherwise in the relevant SOW, Special Feature Request, or Purchase Order.
7. Entire Agreement
This Professional Services Agreement, together with the MSA any and all SOW, Special Features Requests and Purchase Order, constitutes the entire agreement between the Parties concerning the provision of professional services by Resident to the Customer and its Affiliates, and supersedes any prior or contemporaneous communications, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Professional Services Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.