VIANAI SYSTEMS, INC.
Professional Services terms
The following Professional Services Terms apply to Professional Services indicated in an applicable Order Form. In the event of a conflict or inconsistency between the terms of these Professional Services Terms and the terms of the Master Subscription Agreement (the “Agreement”) or other agreements with us governing your use of the Services, the terms and conditions of these Professional Services Terms apply. Capitalized terms used but not defined herein have the meanings given to them in the Agreement.
1. Professional Services.
(a) Generally. Subject to the Order Form, Vianai will provide Professional Services to facilitate your use of the Application Services and Platform Services. Unless otherwise agreed by the parties, Professional Services will expire one year after the Start Date indicated on the Order Form and will be booked on the basis of 8-hour service days.
(b) Intellectual Property.
(i) License. Upon your payment of all Fees under an applicable Order Form, Vianai grants you a non-exclusive, perpetual, fully paid-up, royalty-free license to use, copy, modify, or create derivative works based on any Professional Services work product delivered by us to you under the Order Form (the “Deliverables”). If and to the extent we incorporate any Vianai Materials (as defined below) into the Deliverables, we grant to you a non-exclusive, perpetual, fully paid-up, royalty-free license to use, copy, modify or create derivative works based on such Vianai Materials, solely as incorporated into the Deliverables and solely for your internal business use as reasonably necessary to use the Deliverables for their intended purposes. For the avoidance of doubt, no part of the Application Services or Platform Services will be deemed to be incorporated into the Deliverables.
(ii) Vianai Materials. Subject to your rights in your Confidential Information, we will exclusively own all rights, title and interest in and to: (A) the Deliverables; and (B) any software programs, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques, training materials, and other materials of any kind used or developed by us or our personnel in connection with performing the Professional Services, or any other Services (collectively “Vianai Materials”), including all Intellectual Property Rights in any of the foregoing.
(iii) No Maintenance. Unless otherwise set forth in the Order Form, the Deliverables are not subject to any maintenance, or updates after the termination of the applicable Order Form.
(c) Location. We will provide the Professional Services at a mutually agreed location.
2. Customer Obligations; Customer Materials.
(a) Customer Responsibilities.
(i) Customer is responsible for taking reasonable steps at all times</span> to maintain the security, protection and backup of all Customer Materials, including within the Platform Services and any Customer systems or cloud environments. “Customer Materials” means the information and materials you provide to us in order for us to perform the Professional Services.
(ii) Customer acknowledges that: (A) Vianai does not provide data backup services; and that (B) Vianai is not responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Materials not caused by the gross negligence or willful misconduct of Vianai or any third party under the control of Vianai.
(iii) Customer agrees not to provide Vianai with access to more data (including Customer Data or Personal Data) than is reasonably necessary to permit Vianai to perform the Professional Services.
(iv) Customer acknowledges that successful delivery of the Professional Services depends on your full and timely cooperation. You agree to make available any reasonably requested personnel and/or information in a timely manner to allow Vianai to perform such services.
(b) Restrictions on Use. Customer will not:
(i) copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of any Deliverables provided to you in object code, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by the Agreement and this Addendum or by law notwithstanding this prohibition;
(ii) use the Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible purchase of any Vianai product or service; or
(iii) transfer or assign any of your rights hereunder except as permitted by the Agreement.
(c) Customer Materials. You represent and warrant to us that Customer Materials will not contain anything prohibited from being in the Customer Content.
3. Expenses.
You agree to reimburse us for reasonable travel and lodging expenses actually incurred by us in connection with the Professional Services.
4. Warranties; Disclaimer.
(a) Warranties. We warrant that the Professional Services will be provided in a professional and workmanlike manner consistent with industry standards. You must notify us of any warranty deficiencies within thirty (30) days from performance of the deficient Professional Services. Unless set forth in an Order Form, we make no guarantee as to whether the Professional Services will be completed within any specific time frame.
(b) Disclaimer. THE WARRANTIES IN SECTION 4(a) (WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES PROVIDED HEREUNDER. VIANAI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY OF THE FOREGOING. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: (i) SERVICES PROVIDED UNDER ANY FREE TRIAL PERIOD ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND BY VIANAI; (ii) WITHOUT LIMITATION, VIANAI DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY OF THE PROFESSIONAL SERVICES; AND (iii) VIANAI IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE PROFESSIONAL SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE.
(c) Exclusive Remedy. FOR ANY BREACH OF THE WARRANTY AT SECTION 4(a) (WARRANTIES), YOUR EXCLUSIVE REMEDY AND VIANAI’S ENTIRE LIABILITY WILL BE THE RE-PERFORMANCE OF THE DEFICIENT PROFESSIONAL SERVICES, OR, IF VIANAI CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, VIANAI WILL END THE DEFICIENT PROFESSIONAL SERVICES AND REFUND TO YOU THE PORTION OF ANY PREPAID FEES APPLICABLE TO THE PERIOD FOLLOWING THE COMMENCEMENT OF THE DEFICIENCY.
5. Additional Indemnity.
In addition to the Customer indemnities set forth in the Agreement, Customer’s obligation to defend and indemnify Vianai Indemnitees will include a Claim against Vianai arising from any instructions provided by Customer to Vianai in connection with the Deliverables.