Attachment to Master Flexible Consumption Agreement
EMC Specific Terms-Professional Services
 
 

 

These Professional Services Terms (these “PS Terms”) sets forth the terms governing Professional Services provided by EMC to Customer during the Flexible Consumption Period relating to EMC Products.

 

1. DEFINITIONS.

A.
All definitions set forth in the main body of the Master Agreement shall also apply to these PS Terms.

B. “Deliverables” means any reports, analyses, scripts, code or other work results which have been delivered by EMC to Customer within the framework of fulfilling obligations under the SOW.

C. “Proprietary Rights” mean all patents, copyrights, trade secrets, methodologies, ideas, concepts; inventions, know-how, techniques or other intellectual property rights of a party.

2. PROFESSIONAL SERVICES.

A. Scope. Each project for Professional Services shall be governed by a separate SOW. Each SOW (excluding a Service Brief) shall (i) be signed by the parties; (ii) incorporate by reference this Master Agreement; and (iii) state the pertinent business parameters, including, but not limited to, pricing, payment, expense reimbursement, and a detailed description of the Professional Services to be provided. In case of conflict between the SOW and the terms of this Master Agreement, the SOW shall normally take precedence. However, to the extent that the SOW contains terms that conflict with terms in the Master Agreement pertaining to intellectual property and/or proprietary rights, indemnification, warranty (including remedies and disclaimers), and/or limitation of liability, the conflicting terms in the SOW shall supersede those in the Master Agreement only if the SOW clearly indicates that the parties are intentionally overriding the terms in the Master Agreement solely for purposes of such SOW. Professional Services are provided as a separate and independent service to Customer even if offered together with the sale or licensing of Products by EMC in the same EMC quote or Customer purchase order.

B. Placement of EMC Personnel. EMC shall have the sole responsibility for personnel placement as well as for all other human resources issues (e.g. vacation). EMC will only utilize employees or contractors that are sufficiently qualified. If specific EMC personnel cease to perform due to illness, resignation or any other reason, EMC shall without undue delay use reasonable efforts to provide a substantially equivalent replacement as soon as reasonably possible. EMC’s contact person responsible for liaising with Customer will exclusively be the person identified by EMC as being responsible for the project. No employee/employer relationship is intended or shall be established by any SOW.

C. Standard Work Day. The standard work day is any eight (8) hour period of work, between 8:00 AM and 6:00 PM, Monday through Friday, excluding public holidays at the EMC location providing Professional Services.

D. Customer Responsibilities. Customer shall provide EMC personnel with timely access to appropriate facilities, space, power, documentation, networks (including internet and telephone), files, information, additional software (if needed), and skilled and authorized Customer personnel to assist in the performance and cooperate with EMC. Customer shall also perform its specific obligations as described in the relevant SOW, and, if necessary, assist and support EMC in the provision of the Professional Services as reasonably requested by EMC, and shall provide all conditions in its business necessary for due performance of Professional Services by EMC.

3. PROPRIETARY RIGHTS.

A. Grant of Copyrights in Deliverables. Subject to Customer’s payment of the applicable amounts due EMC and to EMC’s Proprietary Rights in any underlying intellectual property embodied therein or used by EMC to perform Professional Services, Customer shall own all copyright rights to the portion of Deliverables that consists solely of written reports, analyses and other working papers prepared and delivered by EMC to Customer in the performance of EMC’s obligations under the SOW.

B. Grant of License Rights in Deliverables. For the portion of Deliverables that consists of scripts and code, EMC grants Customer a non-exclusive, non-transferable, irrevocable (except in case of breach of the MOA or SOW) perpetual right to use, copy and create derivative works from such (without the right to sublicense) for Customer’s internal business operations, as contemplated by the applicable SOW. The license granted in this section does not apply to (i) Customer furnished materials, and (ii) any other Products or items licensed, or otherwise provided, under a separate agreement.

C. Customer Furnished Materials. Customer does not relinquish any of its rights in materials it furnishes for use by EMC in connection with the performance of Professional Services. Pursuant to Customer’s Proprietary Rights therein, Customer grants EMC a non-exclusive, non-transferable right to use such solely for the benefit of Customer in fulfillment of EMC’s obligations under the SOW.

D. Reservation of Proprietary Rights. Each party reserves for itself all Proprietary Rights that it has not expressly granted to the other. EMC shall not be limited in developing, using or marketing services or products which are similar to the Deliverables or Professional Services provided hereunder, or, subject to EMC’s confidentiality obligations to Customer, in using the Deliverables or performing similar Professional Services for any other projects.

4. PAYMENT AND INVOICING. EMC shall submit invoices for fees and reimbursable costs and are expenses and be paid in the manner specified in the applicable SOW, and in accordance with the terms of the Master Agreement.

5. TRAINING SERVICES.

A. Courses. EMC’s standard training Services are available through the applicable catalogue or website. EMC customized training Services are available pursuant to an SOW.

B. Cancellation and Refunds. If Customer prepays and subsequently cancels standard training Services, EMC shall provide (i) a full refund, if EMC receives written notice of cancellation two (2) or more weeks before the scheduled start date; or (ii) a 50% refund, if EMC receives written notice of cancellation less than two (2) weeks before, but prior to, the scheduled start date. Cancellation charges for customized training Services shall be as mutually agreed between the parties in the applicable SOW.

6. WARRANTY.

A. Professional Services. EMC shall perform Professional Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify EMC of any failure to so perform within ten (10) days after the performance of the applicable portion of Professional Services.

B. Customer Remedies. EMC’s entire liability and Customer’s sole remedy for EMC’s failure to so perform shall be for EMC to, at its option, (i) correct such failure; and/or (ii) terminate the applicable SOW and refund that portion of any fees received that correspond to such failure to perform.

C. No Further Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO PRODUCTS, SERVICES OR ANY OTHER ITEMS OR MATTERS ARISING HEREUNDER, EMC (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.

7. TERM OF PROFESSIONAL SERVICES.

A. Term of SOW. Each SOW begins on the date stated therein, and, unless terminated for breach, continues in accordance with its terms. A termination for convenience shall only be permitted if expressly agreed in the SOW.

B. Termination for Breach of SOW. Either party may notify the other in writing in case of the other's alleged breach of a material provision of the applicable SOW. The recipient shall have thirty (30) days from the date of receipt of such notice to effect a cure (the “Cure Period”). If the recipient of the notice fails to effect a cure within the Cure Period, then the sender of the notice shall have the option of sending a written notice of termination of the applicable SOW(s), which notice shall take effect upon receipt.