If Subscriber has engaged Aptree LLC for the provision of professional services (including any training, success, integration, development, and implementation services, “Consulting Services”) as indicated on an Order Form, or other written document such as a Statement of Work, the provision of such Consulting Services will be governed by the Agreement, including these Consulting Services terms and conditions (“Terms”). Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Aptree, intending to be legally bound, agree to the terms set forth below.
1. Scope. All Consulting Services pursuant to the Agreement provided by Aptree to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided.
2. Retention. Subscriber hereby retains Aptree to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Aptree shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed a SOW with respect to such Consulting Services. After execution of a SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
3.1 Each SOW will include reasonable details about Consulting Services, including, at a minimum, the Consulting Fees charged and the Consulting Services provided. Aptree and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Aptree’s Representative”, respectively). Any Subcontractor (defined below) designated by Aptree to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Aptree on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”).
3.3 Aptree will perform the Consulting Services through qualified employees and/or non-employee contractors of Aptree (“Subcontractors” and together with Aptree’s employees for the purposes of these Terms, “Consulting Services Personnel”). Subscriber agrees to provide, at no cost to Aptree, timely and adequate assistance and other resources reasonably requested by Aptree to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Aptree, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
3.4 In performing the Consulting Services, Aptree will provide such resources, and utilise Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Aptree’s election of Subcontractors by specifying its objection to Aptree, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Aptree may replace Consulting Services Personnel in its normal course of business, provided that Aptree will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
3.5 Aptree will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Aptree will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Aptree's obligations under the Agreement in accordance with its terms.
3.6 With Subscriber’s approval, Aptree may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services.
3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Aptree. If Aptree elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Aptree shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. Aptree shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.
3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Aptree shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) business days after the date of the Completion Notice to provide Aptree with written notice describing any material deliverables, milestones, functionality or other material items, as was agreed in writing, which Subscriber reasonably claims have not been fulfilled. The SOW shall be deemed complete and all deliverables, milestones, functionality and other items will be deemed to have been accepted absent Subscriber’s written notice as per the prior sentence (time being of the essence). Aptree undertakes to complete those deliverables, milestones, functionality or other items which are agreed in writing but are not “material”, as soon as reasonably possible, at its cost, but without limiting the prior sentence. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.
4.1 Subscriber will pay Aptree the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Consulting Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Aptree shall invoice Subscriber for the Consulting Services provided on a monthly basis. All Consulting Fees are due and payable upon date of invoice, except for Consulting Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice.
4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Aptree will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Aptree will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Consulting Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order.
4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Consulting Fees which become payable by Subscriber. Aptree may refuse to perform Consulting Services unless and until such retainer is paid to Aptree.
4.4 In addition to any and all Consulting Fees, Subscriber will reimburse Apree for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change Consulting Fees to travel and accommodations resulting from Subscriber’s request incurred by Apree in connection with providing the Consulting Services (“Expenses”). Apree will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Apree for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Apree.
4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed Consulting Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).
5. Relationship of the Parties. Aptree is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Aptree at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Subscriber to Aptree hereunder shall not be considered salary for pension or wage tax purposes and neither Aptree nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
6.1 Aptree hereby represents and warrants that:
i.the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Aptree and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Aptree’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Aptree by Subscriber for the nonconforming portion of the Consulting Services; and
ii.it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
6.2 The Parties hereby agree that:
Custom applications that reside within the Aptree Service framework, theme customisations, integrations, and programming scripts that are identified and being delivered under a SOW (collectively, “Customised Deliverables”) are provided to Subscriber “as is” and Aptree makes no warranties, express or implied, or any representations to Subscriber or any third party regarding the usability, condition, operation or fitness of the Customised Deliverables. Aptree shall not be responsible, at law or otherwise, for any Customised Deliverables despite any other warranties or guarantees, in the event that Subscriber modifies any Customised Deliverables in a manner not instructed by Aptree. Aptree does not warrant that Subscriber’s or any third party’s access to or use of the Customised Deliverables shall be uninterrupted or error-free, or that it will meet any particular criteria of performance or quality. Aptree expressly disclaims all warranties regarding Customised Deliverables, including, without limitation the implied warranties of merchantability, title, fitness for a particular purpose, non-infringement, compatibility, security or accuracy. Further, Aptree expressly disclaims any responsibility to support or maintain Customised Deliverables and will not do so unless otherwise agreed in writing by the Parties. This disclaimer of warranty and liability is expressly made in addition to any disclaimers made by Aptree or its Affiliates under the Agreement with respect to the Services as applicable to Subscriber and any third party’s use of the Services.
7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Aptree all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Aptree a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Aptree shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Aptree receives from Subscriber.
7.2 Without limiting the foregoing, Aptree and its licensors reserve and retain ownership of all Pre-existing Technology, Developed Technology and Generic Components (each as defined below), and Aptree hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Pre-existing Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Pre-existing Technology” means all of Aptree’s inventions (including those of Aptree’s Affiliates) (whether or not patentable), works of authorship, the Software, Aptree’s API’s, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Aptree and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Aptree’s Pre-existing Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Aptree and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Aptree’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information.