SKYETECH TERMS AND CONDITIONS FOR STATEMENT OF WORK SERVICES
1. Statement of Work Overview
This Statement of Work (SOW) for the implementation of Salesforce.com defines the scope of the services and the deliverables that Skyetech Solutions Limited, hereafter referred to as “SKYETECH”, will provide to Customer, hereafter referred to as “Customer” under this agreement. This SOW must be read in conjunction with the appended document “SKYETECH TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES” The performance of this SOW is contingent upon Customer reasonably performing its responsibilities and delivering its deliverables as specified herein. This Statement of Work details:
- The scope of work SKYETECH agrees to deliver to Customer.
- The working relationship between SKYETECH and Customer, including roles and responsibilities.
- The process for deliverable acceptance.
- Significant activities to be executed.
- The price and payment schedule.
The performance of this SOW is also contingent upon Customer already possessing or purchasing the relevant Salesforce.com licenses in order for SKYETECH to proceed with the project.
In this Agreement the following words and expressions apply unless the context requires otherwise:
- “Business Day” means a day excluding a Saturday, Sunday, statutory holiday and provincial anniversary day.
- “Normal Business Hours” means 8:30am to 5:00pm on a Business Day.
- “Standard Business Day” means 7.5 hours on a Business Day.
- “Christmas Holiday Period” means the period from the start of the Business Day before Christmas Eve to the first Business Day Monday after New Year’s Day.
- “Custom Software” means Software specifically designed and developed by SKYETECH or its subcontractors and delivered to Customer under this Agreement.
- “After Hours” means all hours outside Normal Business Hours.
- “Standby” means After Hours support whereby a member or members of the SKYETECH Team are assigned to be available to provide Callout services to Customer if required.
- “Callout” means the situation where a member or members of the team who are on Standby are called out After Hours to fix Faults or provide assistance to Customer
- “Overtime” means scheduled work performed by After Hours, or where Customer request that work be undertaken by After Hours to fix a Fault notified during Working Hours.
3. Scope Definition
3.1. In Scope
Skyetech will provide a Senior Consultant to conduct the agreed professional services based on the service optional activities remotely (unless otherwise specified):
3.2. Out of Scope
The following is determined as out of scope:
- Management of 3rd Parties (except where these are SKYETECH 3rd Parties)
- ‘While you’re here’-type activities
- Installation of 3rd Party products unless agreed as in scope
- Data cleansing
3.3. Scope Change
If Customer wishes SKYETECH to undertake work not included in this Scope Definition, the Scope Change Management Process can be invoked. Either party may request changes to this agreement by submitting a change request in writing, using the agreed Change Request form.
- SKYETECH will provide an estimate of the cost of evaluating the change request (if any) and shall be entitled to recover the costs of preparing a proposal in response to the Change Request, even in the event that Customer rejects the proposal, provided that such costs are agreed in writing by Customer in each case.
- SKYETECH will present documentation of the cost and impact of the proposed change and seek approval from Customer to modify the scope.
- If the change is accepted by both SKYETECH and Customer, it will be appended to this agreement and will supersede the relevant section of the original agreement.
- SKYETECH will maintain a log of all change requests.
SKYETECH or Customer will not unreasonably refuse to perform any change request. Customer Project Manager has been designated as the Customer representative for ensuring authorisation for changes to this Statement of Work. The SKYETECH Project Manager is designated as the authorised SKYETECH representative for making changes to this Statement of Work.
4. Assumptions and Constraints
The following assumptions were made by SKYETECH in the preparation of the cost, schedule and resource estimates contained in this SOW:
- All staff is available for the duration of the project
- User Acceptance training will be conducted within requested timeframes
- Customer will provide data in .csv format in the specified templates provided (unless otherwise agreed in writing)
- All configuration and setup will be done without the requirement for development resourcing or syntax coding
- No integration with 3rd Party products for this phase
Customer acknowledges these assumptions as valid upon acceptance and signing of this SOW. If any of the above assumptions prove to be inaccurate there may be changes to SKYETECH’s charges and/or delivery dates.
The following constraints were identified by SKYETECH in the preparation of the cost, schedule and resource estimates contained in this SOW:
- The data integrity is based on information relayed to the SKYETECH consultant and any inaccuracy, consistency and validity is the responsibility of Customer
Customer acknowledges these constraints as valid upon acceptance and signing of this SOW. If any of the above constraints prove to be inaccurate there may be changes to SKYETECH’s charges and/or delivery dates.
5. Acceptance and Acceptance Criteria
5.1. Acceptance Criteria for T & M Deliverables
There is no formal acceptance process associated with the deliverables arising from this Time and Materials Agreement. The Services provided by SKYETECH will be supplied in accordance with professional practice and will continue until such time that Customer requests that work should cease.For the avoidance of doubt, all SKYETECH effort associated with the Acceptance Testing deliverables produced on a time and materials basis, including the investigation and rectification of non-conformances whether valid or invalid, shall be paid by Customer at SKYETECH’s time and materials rates as specified in this Agreement. There is no Warranty for Time and Materials work.
6. Customer Responsibilities
In order for the successful execution of the activities, the following are Customer responsibilities:SKYETECH Project Team access to:
- customer staff – frequency, availability, duration
- specific hardware or software
- customer premises
- customer network
Customer commitment to:
- turn-around times
- meetings attendance
- scope change management process
- accepting project deliverables
SKYETECH TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES
1. SKYETECH Professional Services
SKYETECH will perform Professional Services and provide Deliverables, if any, as described in the relevant Transaction Document and these SKYETECH Single Engagement Terms for Professional Services (Without Deliverables or with Document Deliverables only) (“Terms”).
j. Affiliate of a party means an entity controlling, controlled by, or under common control with, that party.
k. Deliverable means the tangible work product resulting from the performance of Professional Services excluding Products and Custom Products.
l. Hardware means computer and related devices and equipment, related documentation, accessories, parts, and upgrades.
m. Professional Service means consulting, integration, or technical services performed by SKYETECH under a Transaction Document.
n. Software means machine-readable instructions and data (and copies thereof) including middleware and firmware and related updates and upgrades, licensed materials, user documentation, user manuals, and operating procedures.
o. Statement of Work or Letter of Engagement means an executed document so titled, which describes the Professional Services to be performed by SKYETECH under these Terms.
p. Transaction Document(s) means an accepted Customer order (excluding pre-printed terms) and mutually executed Statements of Work or Letter of Engagement, all as provided by SKYETECH, or other mutually executed documents that reference these Terms.
3. Project Managers
Each party will appoint an individual who will serve as their primary representative (“Project Manager”). Each Project Manager will:
- have overall responsibility for managing and coordinating the performance of the party it represents in a prompt and professional manner; and
- meet with the other party’s Project Manager at regular intervals to review progress and resolve any issues relating to the Professional Services.
The Customer’s Project Manager will be available at all times when SKYETECH’s personnel are at Customer’s premises or remotely or will designate an alternate with the same level of authority and project knowledge in the event of unavailability. Either party may change its Project Manager at any time upon written notice.
Requests by Customer and recommendations by SKYETECH for changes to the Professional Services or Deliverables are subject to SKYETECH’s change management procedures as set forth in the relevant Transaction Document, and will become effective on a prospective basis only upon mutual agreement by the parties in writing.
Acceptance of Professional Services will occur upon SKYETECH’s performance of the Professional Services. Acceptance of Deliverables will occur as follows: Within three (3) business days of its receipt, Customer will notify SKYETECH in writing of any failure of the Deliverables to conform to the informational requirements. Within a reasonable time, SKYETECH shall correct any non-conformance. Where Deliverables are developed on a time-and-expense basis, Customer will pay for all time expended by SKYETECH for such corrections. SKYETECH shall provide the modified Deliverables to Customer, and such modified Deliverables will be accepted at the earlier of when Customer so advises SKYETECH or at the end of a three (3) business day period during which Customer doesn’t give SKYETECH written notice of nonconformance. The foregoing Deliverable acceptance procedure does not apply to Products or Custom Products, even if they can be used in connection with the Professional Services or Deliverables.
6. Prices and Taxes
- Prices. Professional Service prices are specified in the current local published SKYETECH price list at the time SKYETECH receives Customer’s order, or in a valid Transaction Document. Prices are subject to change at any time prior to SKYETECH’s acceptance of Customer’s order, unless stated otherwise in a Transaction Document.
- Price Validity. Unless prices are changed by SKYETECH in accordance with these Terms, prices are valid while these Terms are in effect for the period set forth in a Transaction Document.
- Taxes. Prices are exclusive of, and Customer shall pay, all taxes including goods and services tax (“GST”), duties, levies or fees, or other similar charges imposed on SKYETECH or on the Customer by any taxing authority (other than taxes imposed on SKYETECH’s income) related to Customer’s order, unless Customer has provided SKYETECH with an appropriate resale or exemption certificate for the delivery location. “Delivery location” means the location where Professional Services are performed or, in the case of remote or intangible Professional Services on Products, where the Products being serviced are located.
7. Customer Orders
- Orders. Orders will be governed by these Terms and are subject to acceptance by SKYETECH.
- Extended Delivery Dates. Changes to orders that extend delivery dates beyond ninety (90) days from the order date shall be considered new orders at the prices in effect when SKYETECH receives the changed order.
8. Fees and Payment
- Fees. Customer will pay to SKYETECH the fees specified in the relevant Transaction Document. In addition, Customer will reimburse SKYETECH for any out-of-pocket expenses reasonably incurred by SKYETECH in connection with the performance of the Professional Services, including travel and travel-related expenses, unless otherwise stated in the Transaction Document.
- Payment Terms. Customer agrees to pay, without offset, all invoiced amounts 7 days after date of invoice with the exception of deposit invoices which are payable on receipt. SKYETECH may change credit or payment terms for unfulfilled orders if, in SKYETECH’s reasonable opinion, Customer’s financial condition, previous payment record, or relationship with SKYETECH merits such change.
- Customer Default. SKYETECH may discontinue performance, and may terminate the order and these Terms, if Customer fails to pay any sum due, or if after ten (10) days written notice Customer has not cured any other failure to perform under these Terms.
9. Warranty Provisions
- Professional Services Warranty. SKYETECH warrants that it will perform Professional Services using generally recognised commercial practices and standards. SKYETECH will re-perform any Professional Services not performed in accordance with the foregoing warranty provided that SKYETECH receives written notice from Customer within thirty (30) days after such Professional Services were performed. To the extent permitted by local law, this sub-section 9 states SKYETECH’s entire liability for Professional Services warranty claims.
- Non-SKYETECH Branded Products and Services. To the extent permitted by local law, SKYETECH provides third-party products, software, and services that are not SKYETECH Branded “AS IS” without warranties of any kind, although the original manufacturers or third party suppliers of such products, software and services may provide their own warranties.
- Disclaimer. TO THE EXTENT PERMITTED BY LOCAL LAW, THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THESE TERMS ARE EXCLUSIVE AND NO OTHER WARRANTY, GUARANTEE OR CONDITION, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY SKYETECH OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE AND SKYETECH DISCLAIMS ALL IMPLIED WARRANTIES, GUARANTEES AND CONDITIONS INCLUDING ANY IMPLIED WARRANTIES, GUARANTEES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, ACCEPTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
10. Intellectual Property Rights
- General. No rights in copyright, patents, trademarks, trade secrets, or other intellectual property are granted by either party to the other except as expressly provided under these Terms.
- Customer ownership. SKYETECH will identify Deliverables as “Category I” or “Category II” in the relevant Statement of Work. Customer will own the copy of the Category I Deliverables provided by SKYETECH and the copyright created in Category I Deliverables. Customer grants SKYETECH a non-exclusive, worldwide, irrevocable, unlimited, royalty-free right and licence to use, copy, make derivative works of, modify, and distribute Category I Deliverables, and permit third parties to do the same.
- Licence to SKYETECH. Customer grants SKYETECH a non-exclusive, worldwide, royalty-free right and licence (or sub-licence) to use, copy, make derivative works of, distribute, display, perform, and transmit Customer’s and third parties’ intellectual property rights only to the extent necessary for SKYETECH to perform its obligations and exercise its rights under the relevant Statement of Work.
- Licence to Customer. Except for copyright, SKYETECH retains all intellectual property rights in Category I Deliverables. SKYETECH will retain all intellectual property rights in Category II Deliverables. To the extent the Deliverables incorporate new or pre-existing intellectual property rights of SKYETECH, SKYETECH grants Customer a non-exclusive, worldwide, royalty-free, non-transferable right and licence to use the Deliverables for Customer’s internal business use.
- Residuals. Nothing in these Terms shall limit SKYETECH’s right to use and commercially exploit any and all skills, knowledge, know-how, ideas, concepts, techniques, methodologies and expertise created, acquired or developed pursuant to these Terms.
- Definitions. “Category I Deliverable” means any document to be prepared and delivered by SKYETECH during the delivery of Professional Services and specifically identified as “Category I” in the Statement of Work. “Category II Deliverable” means any Deliverable, other than a Category I Deliverable, to be prepared and delivered by SKYETECH during the performance of Professional Services. If a Deliverable is not specifically identified as Category I in the Statement of Work, it will be considered a Category II Deliverable.
Either party may receive or have access to technical information, information about product plans and strategies, promotions, customers and related technical, financial or business information which the disclosing party considers to be the confidential information of that party or its third party contractors or suppliers (“Confidential Information”). The following will apply to any such Confidential Information:
- Before any Confidential Information is disclosed, the parties will first agree to disclose and receive such information in confidence. If then disclosed, the Confidential Information will be marked as confidential at the time of disclosure, or if disclosed orally but stated to be confidential, will be designated as confidential in a writing by the disclosing party summarising the Confidential Information disclosed and sent to the receiving party within thirty (30) days after such oral disclosure;
- Confidential Information may be used by the receiving party only with respect to the performance of its obligations under this Agreement, and only by the employees of the receiving party and its employees, agents or contractors who have a need to know such information for purposes of this Agreement. The receiving party will protect, and will ensure that its employees, agents and contractors will protect, the disclosed Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorised use, dissemination or publication of the Confidential Information as the receiving party uses to protect its own confidential information of a like nature;
- The receiving party’s confidentiality obligation will be for a period of three (3) years after the date of disclosure.
- The confidentiality obligations of the parties will not extend to information that:
- 1. was in the receiving party’s possession before receipt from the disclosing party;
- 2. is or becomes publicly known without breach by the receiving party;
- 3. is rightfully received by the receiving party from a third party without a duty of confidentiality;
- 4. is independently developed or learned by the receiving party; or
- 5. is disclosed by the receiving party with the disclosing party’s prior written approval.
12. Restricted Use
Deliverables are not specifically designed, manufactured, or intended for use as parts, components, or assemblies for the planning, construction, maintenance, or direct operation of a nuclear facility. Customer is solely liable if Deliverables purchased by Customer are used for these applications and will indemnify and hold SKYETECH harmless from all loss, damage, expense, or liability in connection with such use.
13. Limitation of Liability and Remedies
- Limitation of Liability. Except for damages for bodily injury (including death) and to the extent permitted by local law, SKYETECH’s total aggregate liability is limited to the amount paid by Customer for the Professional Service; that in each case is the subject of the claim.
- Disclaimer of Certain Damages, including Consequential Damages. EXCEPT FOR CLAIMS BY A PARTY FOR INFRINGEMENT OF THEIR INTELLECTUAL PROPERTY RIGHTS AGAINST THE OTHER PARTY, AND TO THE EXTENT PERMITTED BY LOCAL LAW, IN NO EVENT WILL EITHER PARTY (“FIRST PARTY”) BE LIABLE FOR DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS (WHETHER ACTUAL OR POTENTIAL); FAILURE TO REALISE EXPECTED SAVINGS; LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA; OR SOFTWARE RESTORATION; OR ANY INCIDENTAL, SPECIAL, INDIRECT, ECONOMIC OR CONSEQUENTIAL COSTS, LOSS OR DAMAGE SUFFERED OR INCURRED BY THE OTHER PARTY WHETHER OR NOT THE FIRST PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH COSTS, LOSS OR DAMAGE.
- Legal Theory. TO THE EXTENT ALLOWED BY LOCAL LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT, EQUITY OR OTHERWISE.
- The exclusions and limitations in respect of warranties, liability and remedies will apply except to the extent that such exclusions or limitations are prohibited by the Consumer Guarantees Act 1993 in situations where that Act can apply and its provisions have not been excluded or modified as permitted by that Act. Where any supply of Products or Services is for business purposes the Consumer Guarantees Act 1993 will not apply.
- Termination for Convenience. For Professional Services performed on a time and expense basis, either party may terminate the relevant Transaction Document to which these Terms are attached for convenience upon thirty (30) days prior written notice to the other party, unless otherwise prohibited by the terms set forth herein or in the Transaction Document.
- Termination for Cause. Either party may terminate the relevant Transaction Document to which these Terms are attached on written notice if the other party fails to comply with these Terms after it has been notified in writing of the nature of the failure and been provided with a reasonable time to cure the failure.
- Effect of Termination. Upon termination of any Transaction Document, Customer will pay SKYETECH for all Professional Services performed and charges and expenses incurred by SKYETECH up to the date of termination, and Customer will receive all work in progress for which Customer has paid. Should the sum of such amounts be less than any advance payment received by SKYETECH, SKYETECH will refund the difference within thirty (30) days of such termination.
- Bankruptcy. If either party ceases to carry on business, becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is subject of involuntary bankruptcy, has an administrator, receiver or receiver and manager appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.
- Dependencies. Customer will comply with the general obligations specified in these Terms, together with any specific Customer obligations described in the relevant Transaction Document, in a timely manner. Customer acknowledges that SKYETECH’s ability to deliver the Professional Services is dependent upon Customer’s full and timely cooperation with SKYETECH, as well as the accuracy and completeness of any information and data Customer provides to SKYETECH.
- Similar Services. Nothing in these Terms will prohibit SKYETECH from providing Professional Services similar to those provided hereunder to other customers so long as no Customer confidential information is used in such provision of services.
- Authorisation to Install Software. During the course of providing Professional Services, SKYETECH may be required to install copies of third-party or SKYETECH Branded Software. As part of the installation process, SKYETECH may be asked to accept licence terms accompanying such Software (collectively “Shrink-Wrap Terms”) on behalf of Customer. Shrink-Wrap Terms may be in electronic format, embedded in the Software, or contained within the Software documentation. Customer hereby acknowledges that it is Customer’s responsibility to review Shrink-Wrap Terms at the time of installation, and hereby authorises SKYETECH to accept all Shrink-Wrap Terms on its behalf.
- Electronic Orders and EDI. Where facilitated under local law, the parties may do business electronically, including order placement and acceptance. Once accepted, such orders will create fully enforceable obligations subject to these Terms. Such orders and acceptances will be deemed for all purposes to be an original signed writing. Customer and SKYETECH will adopt commercially reasonable security measures for password and access protection.
- Internal Use. Professional Services acquired by Customer under these Terms are solely for Customer’s own internal use and not for resale.
- Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control; however, this provision will not apply to Customer’s payment obligations.
- Assignment. Customer may not assign, delegate or otherwise transfer all or any part of its rights or obligations under these Terms without prior written consent from SKYETECH. Any such attempted assignment, delegation, or transfer will be null and void. Assignments of SKYETECH Software licences are subject to compliance with SKYETECH’s Software licence transfer policies.
- Survival. Any provision in these Terms which by their nature extend beyond the termination or expiration will remain in effect until fulfilled and will apply to both parties’ respective successors and permitted assigns. Any termination under the sub-section 13 will be without prejudice to the terminating party’s legal rights and remedies, including injunction and other equitable remedies.
- Export and Import. Customer who exports, re-exports, or imports Products, technology, or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. SKYETECH may suspend performance if Customer is in violation of any applicable laws or regulations.
- Governing Law. Disputes arising under these Terms will be governed by the law of the jurisdiction of the principal place of business of the SKYETECH Affiliate accepting the order to which the dispute relates and the courts of that locale will have jurisdiction, except that SKYETECH may, at its option, bring suit for collection in the country where the Customer Affiliate that placed the order is located. Customer and SKYETECH agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Claims arising or raised in the United States will be governed by the laws of the State of California, excluding rules as to choice and conflict of law.
- Notices. All notices that are required under these Terms will be in writing and will be considered effective upon receipt.
- Entire Agreement. These Terms and relevant Transaction Documents represent the entire agreement between SKYETECH and Customer regarding Customer’s purchase of Professional Services, and supersedes and replaces any previous communications, representations, or agreements, or Customer’s additional or inconsistent terms (including any pre-printed terms on Customer’s orders), whether oral or written. In the event any provision of these Terms is held invalid or unenforceable the remainder of the Terms will remain enforceable and unaffected thereby.
- Waiver. Neither party’s failure to exercise or delay in exercising any of its rights under these Terms will constitute or be deemed a waiver or forfeiture of those rights.
- Order of Precedence. Unless otherwise agreed or provided herein, documents will apply in the following descending order of precedence:
1. Transaction Documents consisting of licence terms or limited warranty statements delivered or otherwise made available to Customer with Products;
2. the sections of these Terms;
3. all other Transaction Documents.
- Independent Contractor. SKYETECH is an independent contractor in the performance under these Terms and neither SKYETECH nor any SKYETECH personnel are employees or agents of Customer. Nothing in these Terms will be construed as creating a joint venture, partnership or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
- Severance. If any term or condition of these Terms is held to be invalid, illegal or unenforceable, that term or condition is to be read down, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity, illegality or unenforceability, without affecting the validity or enforceability of the remainder of these Terms.
- Hiring of Employees. Customer agrees not to solicit, or make offers of employment to, or enter into consultant relationships with, SKYETECH employees or consultants involved, directly or indirectly, in the performance of any Professional Services under these Terms within a one (1) year period of the termination or expiration of these Terms. Customer shall not be prevented from hiring any such employee or consultant who responds to a general hiring program conducted in the ordinary course of business and not specifically directed to such SKYETECH employees or consultants.
- Publicity. Neither party will publicise nor disclose to any third party without the consent of the other party either the price or these Terms, or the fact of its existence and execution, except as may be necessary to comply with other obligations stated in these Terms. Notwithstanding the foregoing, SKYETECH may use Customer’s name and identification of this engagement in connection with general lists of Customers and experience.