1. Definitions
For purposes of these Professional Services Terms, the following terms shall have the meanings set forth below:
“Custom Development Work” means any Deliverables that the parties explicitly agree upon in writing as being owned by Customer.
“Customer IP” means (i) all Intellectual Property and Intellectual Property Rights that are in existence and owned by Customer as of the Effective Date, or (ii) any Intellectual Property or Intellectual Property Right that is supplied or independently developed solely by Customer without the use and/or benefit of, and that does not relate to or arise out of, any of Platform Science’s products, services, technologies, intellectual property rights, or Confidential Information.
“Deliverables” means all work product and Intellectual Property, whether in tangible or electronic format, that is expressly identified as a deliverable in a Statement of Work, including any analyses, reports, manuals, supporting materials, test results, recommendations and drawings. Deliverables do not include any Products and/or any Customer IP.
“Derivative Work” means a derivative work as defined under applicable Intellectual Property laws.
“Intellectual Property” shall include, without limitation, any inventions, technological innovations, discoveries, designs, formulas, know-how, processes, business methods, patents, trademarks, service marks, copyrights, computer software, ideas, creations, writings, illustrations, photographs, improvements to all such property, and all recorded material defining, describing, or illustrating all such property, whether in hard copy or electronic form.
“Platform Science IP” means all (i) Intellectual Property resulting from any Services or otherwise conceived, reduced to practice, created, or developed during performance under this Agreement and/or any Statement of Work except for Custom Development Work, (ii) derivatives, enhancements and/or modifications of the Platform or any of Platform Science's products or services, (iii) Intellectual Property supplied, conceived, reduced to practice, created or developed by or on behalf of Platform Science on or prior to the Effective Date of this Agreement, or after the Effective Date of this Agreement except expressly to the extent for Custom Development Work, (iv) all Deliverables except those Deliverables that are Custom Development Work, and (v) all Intellectual Property Rights in or to any of the foregoing.
“Products” means the Platform and any of Platform Science’s generally available products or services or technologies, including without limitation hardware, software, services and any related Platform Science documentation.
"Services" means the professional services provided by Platform Science to Customer under these Professional Services Terms or any applicable Statement of Work issued here under.
"Statement of Work" or “SOW” means a statement of work entered into between Platform Science and Customer pursuant to these Professional Services Terms.
2. Services
(a) From time to time during the Term, Customer may request Platform Science to perform certain Services pursuant to Statement(s) of Work, which will expressly incorporate the terms and conditions of the Agreement (including these Professional Services Terms) and which shall be substantially in the form of the representative Statement of Work set forth in Annex 1 to these Professional Services Terms or such other form as may be mutually agreed upon in writing by the parties. Each Statement of Work will specify: (i) Platform Science’s specific obligations, including all Deliverables and Custom Development Work (if any), improvements, and works of authorship Platform Science shall perform, develop or provide in the course of performing the Services; (ii) the performance timeline relating to such Services; (iii) the applicable fees and payment terms for the Services; and (iv) any other pertinent terms and conditions. Neither Customer nor Platform Science will be obligated to enter into any Statement of Work. In the event of a conflict between the provisions of these Professional Services Terms and the specific provisions set forth in a Statement of Work, the provisions of these Professional Services Terms shall control unless the provisions of the Statement of Work specifically state that the Statement of Work will control, in which case the Statement of Work shall control for that engagement only.
(b) Each party shall designate a project manager who shall be the principal point of contact between the parties for all matters relating to Services provided under a particular Statement of Work. A party may designate a new project manager by written notice to the other party.
(c) Customer may request changes (a “Change Order”) that affect the scope or duration of the Services relating to any Statement of Work, including, but not limited to, changes in the specifications, in any Deliverables, and/or the project timeline. If a Change Order becomes necessary, Platform Science shall notify Customer of what, if any, adjustment in the fees to be paid to Platform Science with respect to the applicable Statement of Work, and/or an adjustment to the applicable performance or delivery timeline, is required. In either case, the parties shall negotiate in good faith a reasonable and equitable adjustment in the applicable fees, timeline and specifications. Platform Science shall continue work pursuant to the existing Statement of Work and shall not be bound by any Change Order, until such Change Order has been agreed upon in writing by the parties through an amendment to the Statement of Work.
(d) The Services performed under this Agreement may require the use of one or more APIs provided by a third-party with or without source code. In any such event, the parties will mutually agree upon which APIs will be used in a Statement of Work and applicable timeline for Deliverables which may be dependent on such third-party APIs.
(e) Acceptance criteria for Services and Deliverables will be set forth in the applicable SOW
(f) Platform Science may subcontract Services hereunder, provided it shall be responsible to Customer hereunder for such subcontractors to the same extent as if such subcontractors breaches of this Agreement were committed by Platform Science.
3. Ownership; Licenses
(a) As between the parties, Customer owns all right, title and interest in and to the Customer IP and Platform Science owns all right, title and interest in and to the Platform Science IP.
(b) [INTENTIONALLY OMITTED]
(c) Customer agrees that any Deliverables will be owned by Platform Science. For the avoidance of doubt, PS Deliverables do not include Customer IP.
(d) Platform Science hereby grants to Customer a nonexclusive, nontransferable, royalty-free, non-sublicensable license to use internally any such Deliverables for Customer’s solely in connection with Customer’s exercise of its rights under the Agreement. Except to the extent as expressly permitted in an applicable Statement of Work or other written agreement signed by Platform Science and Customer, Customer shall not, and shall not allow any third-party to, (i) provide any Deliverable to any third-party or use any Deliverable for the benefit of any third-party, (ii) modify, create Derivative Works of, reverse engineer, or copy any portion of the Deliverables, (iii) incorporate or embody any Deliverables in any other Intellectual Property, or (iv) without Platform Science’s prior written consent, publish or provide to any third-party results of any benchmark or comparison tests of any Deliverable.
(e) Unless expressly agreed in a Statement of Work or otherwise in a written agreement signed by Platform Science, Platform Science is not obligated to provide support or maintenance services for any Deliverable. Platform Science does not grant Customer any rights not expressly set forth herein or in an applicable Statement of Work.
4. Fees & Expenses; Payment Terms; Survival
(a) In consideration of the Services by Platform Science and the rights granted to Customer under these Professional Services Terms, Customer shall pay the fees as follows:
i. Time and Materials. For Services provided on a time and materials basis, Customer shall pay fees (the "Fees") calculated in accordance with Platform Science’s hourly fee rates as set forth in the applicable SOW.
ii. Fixed Price. Where Services are provided for a fixed price, the total Fees shall be the amount set out in the applicable SOW. The total price shall be paid to Platform Science in installments, as set out in the applicable SOW.
iii. Expense Reimbursement. Customer shall reimburse Platform Science for all actual, documented, and reasonable travel and out-of-pocket expenses incurred by Platform Science in performing the Services that have been approved in advance in writing by Customer at Platform Science’s actual cost plus a ten percent (10%) markup. Platform Science shall obtain Customer’s written consent prior to incurring any expense greater than $500.00, which shall not be unreasonably withheld.
(b) Platform Science shall issue invoices to Customer: (a) monthly in arrears for its Fees for the immediately preceding month for time and materials Services; and (b) when any installment is due for fixed price Services. Each invoice shall also include a detailed breakdown of reimbursable expenses incurred in connection with the applicable Services. Customer shall pay all amounts due to Platform Science within thirty (30) days after Customer's receipt of such invoice, except for any amounts disputed by Customer in good faith, with no right of setoff. All payments hereunder shall be in US dollars and made by check or wire transfer. If Customer fails to timely pay an invoice, Platform Science may (a) charge interest on unpaid amounts at a rate equal to the maximum amount permitted by law, from the date such payment was due until the date paid; and (b) suspend performance for all Services until payment has been made in full, except for any amount disputed in good faith.
(c) Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder except for any taxes imposed on, or with respect to, Platform Science’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
(d) Sections 1 (Definitions), 3(a) and 3(c), 4 (Fees and Expenses; Payment Terms; Survival), and 5 (Warranty and Disclaimer) of these Professional Services Terms will survive any termination or expiration of the Agreement.
5. Warranty & Disclaimer
PLATFORM SCIENCE REPRESENTS AND WARRANTS TO CUSTOMER THAT ALL SERVICES SHALL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE WITH GENERALLY RECOGNIZED INDUSTRY STANDARDS FOR SIMILAR SERVICES AND SHALL DEVOTE ADEQUATE RESOURCES TO MEET ITS OBLIGATIONS UNDER THESE PROFESSIONAL SERVICES TERMS. EXCEPT TO THE EXTENT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT OR ANY STATEMENT OF WORK, PLATFORM SCIENCE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH, ARISING OUT OF, OR RELATED TO ANY SERVICES OR DELIVERABLES PROVIDED OR CONTRACTED FOR HEREUNDER (INCLUDING VIA A STATEMENT OF WORK) OR IN CONNECTION HEREWITH. WITHOUT LIMITING THE FOREGOING, PLATFORM SCIENCE DISCLAIMS ANY WARRANTY THAT ANY OF THE FOREGOING WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. PLATFORM SCIENCE FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO EACH OF THE FOREGOING AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. PLATFORM SCIENCE FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PLATFORM SCIENCE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
