Professional services terms
If Phocas and the Customer have agreed for Phocas to provide Professional Services (as defined below) under an Order Form, the following additional terms shall apply and are supplemental to the agreement for Phocas services between the parties under the Phocas Terms of Service (Agreement). These terms form part of, and are subject to, the Agreement. In the event of any conflict between these terms and any other provision of the Agreement, these terms shall prevail to the extent of such conflict.
1. Interpretation
The following definitions and rules of interpretation apply in these Phocas Professional Services Terms. Defined terms set out in these Phocas Professional Services Terms but not defined in them bear the meaning ascribed to them in the Agreement.
1.1 Definitions:
Customer Dependencies: any additional responsibilities of the Customer in respect of the Professional Services as set out in the Order Form.
Customer Materials: the data, information, and materials Customer provides to Phocas in connection with the provision or receipt of the Professional Services.
Customer Security Standards: the Customer’s standard documented security policies governing access to the Customer’s premises or the Customer System.
Deliverables: any deliverables set out in the Order Form produced by Phocas for the Customer and any materials, software, scripts, analysis, technology, innovation or deliverables that are provided to Customer as a product of the Professional Services.
Personnel: all employees, representatives, agents or contractors, if any, engaged by Phocas or any of its subcontractors to perform the Professional Services.
Professional Services: the services, supplied by Phocas to the Customer as set out in the Order Form including the Deliverables.
2. Supply of Professional Services
2.1 Phocas shall supply the Professional Services to the Customer in accordance with the Order Form in all material respects. Phocas shall use all reasonable endeavours to meet any performance dates specified in the Order Form but any such dates shall be estimates only and time shall not be of the essence for performance of the Professional Services. Phocas warrants to the Customer that the Professional Services will be provided using reasonable care and skill.
2.2 Phocas will perform the Professional Services through its employees and/or subcontractors. The Customer may object to Phocas’s use of a subcontractor by specifying its reasonable objection to Phocas, in which case the parties will cooperate in good faith to appoint an alternative subcontractor, to the extent reasonably practicable. The Customer acknowledges that any replacement of subcontractor may cause delay in the performance of the Professional Services.
2.3 Any Personnel given access to the Customer’s premises or Customer System in connection with the performance of Professional Services under these Phocas Professional Services Terms will be subject to the Customer Security Standards and Phocas will instruct such Personnel accordingly. The foregoing will only apply, however, if and to the extent Customer Security Standards are individually specified in the applicable Order Form and the Customer has provided Phocas with a copy of them in advance of the date of the Order Form. If any Customer Security Standards are not so specified in the Order Form or have not been so provided to Phocas, Phocas shall not be subject to them and shall have no obligation to instruct Personnel in respect of them. To the extent that any Customer Security Standards require background checks to be undertaken, these shall be applicable solely to the extent consistent with applicable laws (including data protection and privacy laws) and solely in respect of Personnel having access to the Customer’s premises or Customer System in the course of providing the Professional Services.
2.4 If the Customer requires any Personnel to sign any documents as a condition to gain access to the Customer’s premises or Customer System (Personnel Release):
(a) any Personnel who will be required to sign Personnel Releases will sign on behalf of Phocas, not as a private individual; and
(b) such Personnel Releases will have no effect except to the extent that they confirm Customer Security Standards already specified and provided to Phocas in accordance with these Phocas Professional Services Terms.
2.5 Notwithstanding anything to the contrary in the Agreement, any restrictions or conditions in the Agreement regarding access to the Customer System or premises shall not be effective to the extent inconsistent with this paragraph 2.
3. Customer’s obligations
3.1 The Customer shall:
(a) ensure that any information it provides in the Order Form is complete and accurate;
(b) co-operate with Phocas in all matters relating to the Professional Services and provide Phocas with prompt feedback to its requests;
(c) provide Phocas with access to the Customer System as may be requested by Phocas in relation to the provision of the Professional Services;
(d) in the event that any Professional Services are provided on the Customer’s premises, provide Phocas with safe and adequate space, power, network connections, materials, CPU time, access to hardware, software and other equipment as Phocas may reasonably request for the performance of the Professional Services;
(e) provide Phocas with such information and materials and assistance from qualified personnel familiar with the Customer System as Phocas may reasonably require in order to supply the Professional Services, and ensure that such information is complete and accurate in all material respects;
(f) prepare the Customer System for the supply of the Professional Services;
(g) ensure that any Customer Dependencies are fulfilled; and
(h) obtain and maintain all necessary licences, permissions and consents which may be required for the Professional Services before the date on which the Professional Services are to start.
3.2 If Phocas’s performance of any of Professional Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Phocas shall have the right to suspend performance of the Professional Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Phocas’s performance of any of its obligations;
(b) Phocas shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Phocas’s failure or delay to perform any of its obligations as set out in this clause 3.2; and
(c) the Customer shall reimburse Phocas on written demand for any costs or losses sustained or incurred by Phocas arising directly or indirectly from the Customer Default.
4. Changes
4.1 Either party may request modifications to the Professional Services (Change Request). No Change Request shall be effective or binding on either party until a document setting forth such Change Request is agreed in writing by each party.
5. Charges and payment
5.1 Unless otherwise specifically stated in the Order Form, charges for the Professional Services shall be invoiced and payable in advance.
5.2 Where the Order Form state that the charges for the Professional Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with Phocas’s daily fee rates, as set out in the Order Form;
(b) Phocas shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Phocas engages in connection with the Professional Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Phocas for the performance of the Professional Services, and for the cost of any materials; and
(c) Except to the extent that the Professional Services are pre-paid by the Customer, Phocas shall invoice the Customer on completion of the Professional Services or as otherwise set out in an Order Form.
5.3 In the event that the Order Form does not state that expenses are included in the charges for the Professional Services, then Customer shall reimburse Phocas for any expenses reasonably and properly incurred by Phocas in performing the Professional Services, upon submission of copies of receipts, or as otherwise agreed in writing. Phocas will maintain accurate records of the expenses incurred in providing the Professional Services.
6. Intellectual property rights
6.1 The Customer acknowledges that the Professional Services primarily involve the set-up and configuration of Customer’s subscription to the Subscribed Services under the Agreement, training in respect of such Subscribed Services, and integration of Customer Data with and into such Subscribed Services. Phocas needs to be able to re-use the Deliverables provided for one customer in connection with all of its customers. All Intellectual Property Rights in or arising out of or in connection with the Deliverables and the Professional Services (other than Customer Materials) shall be owned by Phocas.
6.2 Phocas grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid- up, worldwide, non-exclusive, royalty-free licence during the term of the Agreement to use the Deliverables (excluding Customer Materials) for the purpose of receiving and using the Services in accordance with the Agreement. The Customer shall not sub-license, assign or otherwise transfer the rights granted in this paragraph.
6.3 The Customer grants Phocas a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any Customer Materials for the purpose of providing the Services to the Customer.