Professional Services Agreement

These terms are part of and incorporated into the Master Services Agreement or Terms of Service (https://ujet.cx/terms-of-service) between UJET and Customer and apply solely to the Professional Services described herein. To receive the Professional Services described below, Customer agrees to the terms of this Professional Services Agreement (the “PSA”) together with any applicable Order Form, SOW, Master Services Agreement or Terms of Services (the “Agreement”).  The Agreement governs Customer’s receipt of Services from UJET. Capitalized terms are defined in the Section 12 below. Capitalized terms not defined herein shall have the meanings ascribed to them in the Agreement.  In the event of a conflict between this PSA and the Agreement, the Agreement shall govern.

1. Services

1. Services.

   UJET will provide Professional Services, including Deliverables, to Customer in accordance with the Agreement, Order Form and/or Statement of Work subject to Customer fulfilling its obligations under Section 2.1 (Cooperation).

2. Change Orders.

   Any changes to an Order Form or Statement of Work require a written amendment signed by Customer and UJET.

3. Personnel.

   UJET will determine which personnel, or subcontractors, will perform the Services. If Customer requests a change of personnel and provides a reasonable and legal basis for such request, UJET will use commercially reasonable efforts to replace the assigned personnel with alternative personnel.

4. Subcontracting.

   UJET may subcontract any of its obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

5. Compliance with Customer’s Onsite Policies and Procedures.

   UJET’s personnel performing Services at Customer’s facilities will comply with Customer’s reasonable written onsite policies and procedures provided in advance to UJET.

2. Customer Obligations.

1. Cooperation.

   Customer will provide reasonable and timely cooperation in connection with UJET’s provision of the Services. UJET will not be liable for a delay caused by Customer’s failure to provide UJET with information, materials, consents or access to Customer facilities, networks or systems required for UJET to perform the Services. If UJET informs Customer of such failure and Customer does not cure the failure within 10 days, then: (a) UJET may terminate any incomplete Services and (b) in addition to any fees due under Section 7.3(b) (Effect on Payment), Customer will pay actual costs incurred by UJET for the cancelled Services.

2. Consents.

   Customer is responsible for any consents and notices required to authorize Customer’s use and receipt of the Services.

3. No Personal Data.

   Customer will not provide UJET with access to Personal Data unless the parties have agreed in a separate agreement on the scope of work and any terms applicable to UJET’s processing of such Personal Data.

3. Payment Terms.

1. Payment.

   Customer will pay all Fees for Services rendered under the terms outlined in the Agreement.

2. Expenses.

   Customer will reimburse expenses:

   1. as specifically described in the applicable Order Form; or
   2. up to the amounts specified as “expenses” in the applicable Order Form that are actual, reasonable, and necessary.

3. Partner Orders; Third Party Services.

   If Customer orders Services from a Partner or Third Party: (a) Customer will pay the Partner for the Services under payment terms agreed to between Customer in an Order Form or SOW, (b) UJET will not owe any credits or refunds for the Third Party Services to Customer. Customer may obtain credits or refunds for the Third Party Services from the Partner to the extent agreed to between Customer and the Partner.

4. Intellectual Property.

1. Background IP. Customer owns all rights, title and interest in Customer’s Background IP. UJET owns all rights, title and interest in UJET’s Background IP. Customer grants UJET a license to use Customer’s Background IP to provide the Services (with a right to sublicense to UJET Affiliates and subcontractors). Except for the license rights under Sections 4.2 (UJET Technology) and 4.3 (Deliverables), neither party will acquire any right, title, or interest in or to the other party’s Background IP under the Agreement.

2. UJET Technology. UJET owns all rights, title and interest in UJET Technology. To the extent UJET Technology is incorporated into Deliverables, UJET grants Customer a limited, worldwide, non-exclusive, perpetual, non-transferable license to use the UJET Technology in connection with the Deliverables for Customer’s internal business purposes.

3. Deliverables. UJET grants Customer a limited, worldwide, non-exclusive, perpetual, non-transferable license to use, reproduce and modify the Deliverables for Customer’s internal business purposes.

4. Feedback. At its option, Customer may provide feedback and suggestions about the Services to UJET (“Feedback”). If Customer provides Feedback, then UJET and its Affiliates may use that Feedback without restriction and without obligation to Customer.

5. Confidentiality.

Refer to the Agreement. 

6. Warranties and Remedies.

1. Mutual Warranty.

   Each party represents and warrants that it has full power and authority to enter into the Agreement.

2. UJET Warranty.

   UJET will perform the Services in a professional and workmanlike manner, in accordance with practices used by other service providers performing services similar to the Services. UJET will use Personnel with the requisite skills, experience, and qualifications to perform the Services. Any claim that UJET has breached this warranty will be made within 30 days after UJET has provided the Services.

3. Remedies.

   UJET’s entire liability and Customer’s sole remedy for UJET’s failure to provide Services that conform with Section 6.2 (UJET Warranty) will be for UJET to at its option: (1) use commercially reasonable efforts to re-provide the Services or (2) terminate the Order Form and refund any applicable Fees received for the nonconforming Services.

4. DISCLAIMER.

   EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UJET DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES.

5. Customer Warranties.

   Customer represents and warrants to UJET that: (i) it owns the Customer Indemnified Materials and has the necessary right to use and to authorize or permit the use of, the Systems, and other materials and information used, stored or processed in connection with the Services; (ii) Customer is in compliance with, and will not violate any applicable laws and regulations, including, without limitation, those governing export control, privacy and data protection laws and regulations in connection with the collection, use, or processing of Personal Data, the Systems, Customer Indemnified Materials, and any other materials used in connection with the Services. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law or in equity, UJET will have the right to immediately, in UJET’s sole discretion, suspend performance of the Services.

7. Term; Termination.

1. Agreement Term.

   The Agreement will start on the Effective Date and continue until the expiration or termination of all applicable Order Forms and/or SOWs.

2. Termination for Breach.

   1. Termination of an Order Form. Either party may terminate an Order Form if the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice.

   2. Termination of the Agreement. Either party may terminate the Agreement if the other party: (i) is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice; (ii) ceases its business operations or becomes subject to insolvency proceedings and such proceedings are not dismissed within 90 days; or (iii) an applicable law or government order prohibits the provision of the Services.

3. Effects of Termination.

   If the Agreement terminates or expires, then unless otherwise agreed in writing between the Parties, all Order Forms or SOWs also terminate or expire. The termination or expiration of one Order Form or SOW will not affect other Order Forms or SOWs. If an Order Form or SOW terminates or expires, then:

   1. Effect on Services. The rights under the Agreement granted by one party to the other regarding the Services will cease immediately except as described in this Section 7.3 (Effects of Termination); and UJET will stop work on the Services; and
   2. Effect on Payment. Customer will pay for: (i) Services, including work-in-progress, performed before the effective date of termination or expiration and (ii) any remaining non-cancellable Fees. UJET will send Customer a final invoice for payment obligations under the Order Form.

   3. Survival. The following Sections of the Agreement will survive expiration or termination of the Agreement: 3 (Payment Terms), 4 (Intellectual Property), 5 (Confidentiality), 6.3 (Remedies), 6.4 (Disclaimer), 7.3 (Effects of Termination), 8 (Indemnification), 9 (Liability), 11 (Miscellaneous), and 12 (Definitions).

8. Indemnification.

1. UJET Indemnification Obligations. UJET will, at its own expense, defend or at its option settle any third party claim (“Claim”) brought against Customer to the extent it alleges that Customer’s use of the Professional Services in accordance with this Agreement infringes any third party’s intellectual property rights; provided that Customer provides UJET with (i) prompt written notice of such Claim; (ii) sole control over the defense and settlement of such Claim; and (iii) available information and assistance, at UJET’s expense, to settle and defend any such Claim; provided, however, that the failure to give such notice will not relieve the indemnifying Party of its obligations hereunder except to the extent the indemnifying Party was actually prejudiced by such failure.

   1. (a) In the event any such Claim is brought or threatened, UJET may, at its sole option and expense: (i) procure for Customer the right to continue to use the Service; (ii) modify or amend all or a portion of the Service, or replace all or a portion of the Service with other service having substantially the same or better capabilities; or (iii) if UJET determines that the foregoing are not feasible on commercially reasonable terms, terminate this Agreement or an Order Form in whole or in part, and credit to Customer a prorated portion of any Subscription Fees paid in advance for any Service not provided as a result of such termination. UJET will have no obligation to Customer under this Section 8.1 to the extent a Claim arises from (i) Customer’s breach of this Agreement; (ii) the Customer Data; (iii) the combination of the Service with any of Customer’s products, services, data, hardware, Systems, or business process; or (iv) implementation of any of Customer’s specifications or requirements.
   2. (b) This Section 8.1 states the entire liability of UJET, and the sole remedy of Customer, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.

2. Customer Indemnification Obligations. Customer will, at its own expense, indemnify and hold harmless UJET against all losses, costs and expenses arising out of a claim against UJET to the extent caused by Customer Indemnified Materials, or alleging any fact which, if true, would constitute a breach of any warranties set forth in Section 6.5; provided that UJET provides Customer: (I) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) proper and full information and assistance, at UJET’s expense, to settle and defend any such claim. Customer will have no obligation to UJET under this Section 8.2 to the extent such claims arise from UJET’s breach of this Agreement.

9. Limited Liabilities.

1. Exclusions. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2. Maximum Liability. EXCEPT FOR A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) OR SECTION 8 INDEMNIFICATION, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO UJET FOR THE SERVICES GIVING RISE TO THE APPLICABLE LIABILITY DURING THE 12 MONTHS PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

10. Insurance.

During the term of the Agreement, each party will maintain, at its own expense, appropriate insurance coverage applicable to performance of the party’s respective obligations under the Agreement, including general commercial liability, worker’s compensation, automobile liability, and professional liability.

11. Miscellaneous Provisions.

1. Entire Agreement.

   The terms and conditions of any Master Services Agreement, Terms of Service, Order Form or SOW, and any exhibits, schedules and other documents referenced herein or therein are incorporated into the terms and conditions of this PSA, and constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

12. Definitions

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

“Background IP” means all Intellectual Property owned or licensed by a party (a) before the Effective Date of the applicable Order Form or (b) independent of the Services.

“Customer Indemnified Materials” means: (a) Customer Background IP, and any other information, materials, or technology provided to UJET by Customer in connection with the Services (in each case, excluding any open source software); and (b) Customer’s branding, Trademarks and other Intellectual Property. Customer Indemnified Materials do not include UJET Technology or Deliverables.

“Customer” means the Party purchasing Services from UJET as identified on an applicable Order Form.

“Deliverables” means work product created specifically for Customer by UJET or its subcontractors as part of the Services and specified as Deliverables as part of an Order Form or SOW.

“Effective Date” means the date of the last party’s signature of an Order Form or SOW incorporating the Agreement.

“Fees” means the applicable fees for the Services as specified in an Order Form, including any reimbursable expenses (if applicable).

“UJET Indemnified Materials” means (a) Deliverables and UJET Technology (in each case, excluding any open source software); or (b) UJET’s Intellectual Property. UJET Indemnified Materials do not include Customer Background IP.

“UJET Technology” means: (a) UJET Background IP, (b) all Intellectual Property and know-how applicable to UJET products and services, and (c) tools, code, algorithms, modules, materials, documentation, reports and technology developed in connection with the Services that have general application to UJET’s other customers, including derivatives of and improvements to UJET’s Background IP. UJET Technology does not include Customer Background IP or Customer Confidential Information.

“Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.

“Intellectual Property Right(s)” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

“Order Form” means an order form or other document issued by UJET under the Agreement, including data sheets associated with Services described in the order form, and executed by Customer and UJET specifying the Services UJET will provide to Customer.

“Partner” means a third party authorized by UJET to resell or perform the Services.

“Payment Due Date” means the payment due date stated in the applicable Order Form, or in its absence, 30 days from the invoice date.

“Personal Data” means personal data that: (a) has the meaning given to it in: (i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ("EU GDPR"); or (ii) the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force ("UK GDPR"), as applicable; and (b) would cause UJET to be subject to the EU GDPR or the UK GDPR (as applicable) as a data processor for Customer; (ii) as otherwise defined by applicable laws. 

“Professional Services” the consulting and/or professional services related to the Service which may include installation and implementation services for the Service, provided by UJET, or our Subcontractors, to Customer as described in the applicable Order Form or SOW.

“Service” means the features of UJET’s software as a service platform and ancillary products and services for facilitating companies’ ability to manage their customer communications and support as made available by UJET, including associated documentation made available to Customer in written form or online.