Effective Date: October 16, 2023
This Implementation Services Agreement (“Implementation Agreement“) is an addendum to the Subscription Agreement (“Subscription Agreement”) between MSPintegrations, LLC (“MSPintegrations“). and Subscriber, as defined in the Subscription Agreement.
Subscriber has entered into the Subscription Agreement for the provision of MSPintegrations Products (as defined therein). If Subscriber procures Implementation Services from MSPintegrations then all such services shall be provided pursuant to the terms and conditions herein. The terms and conditions of this Implementation Agreement are hereby incorporated by reference into the Subscription Agreement. In the event of conflict between this Implementation Agreement and the Subscription Agreement, the terms and conditions of this Implementation Agreement controls. The terms in the Statements of Work related to the actual rates to be charged and the days and description of the Implementation Services to be performed thereunder shall control as to the engagement described in that Statement of Work.
- Definitions. Capitalized terms not defined herein have the meaning set forth in the Subscription Agreement.
- Designation of Implementation Services
- Scope. MSPintegrations may provide Implementation Services to customize Subscriber’s instance of MSPintegrations Products, including, without limitation, implementation, configuration, data migration, custom integrations, reporting, branding, and other applications. Implementation Services will be detailed pursuant to a Statement of Work, and each executed Statement of Work shall be deemed a part of this Implementation Agreement.
- Provision of Services. Subscriber may request that MSPintegrations provide Implementation Services by submitting one (1) or more documents describing the Implementation Services requested (“Use Cases“). MSPintegrations will review the requested Implementation Services and will provide a Statement of Work. If both parties agree to the terms of the Statement of Work, all such services will be performed pursuant to the terms of this Implementation Agreement.
- Work Product Review and Acceptance. Any work product that MSPintegrations provides to Subscriber will be reviewed by Subscriber, and subject to its acceptance or rejection based on the following procedures:
- Review. Upon delivery, Subscriber will review the work product for a period not longer than fourteen (14) days (or such other time as is set forth in the applicable Statement of Work) to confirm that it complies with the specifications outlined in the applicable Statement of Work (“Review Period“). At the conclusion of the Review Period, Subscriber will promptly provide written notification to MSPintegrations describing any deficiency in detail, and MSPintegrations will use all reasonable efforts to correct said deficiencies and re-deliver the work product. The procedures specified above will be repeated until Subscriber has accepted or rejected the work product. If the work product is rejected due to defects or anything directly due to MSPintegrations’ work, MSPintegrations shall bear the cost of the correction of the defects. If the work product is rejected due to new, inaccurate, or missing requirements provided by Subscriber, Subscriber shall bear the cost of the correction of the defects at the rates specified in the associated Statement of Work, or if not provided, at the rate or costs agreed to by the parties.
- Acceptance. At the expiration of the Review Period, or earlier at Subscriber’s election (or such other time as is set forth in the applicable Statement of Work), if the review confirms that the work product complies with the specifications outlined in the applicable Statement of Work, Subscriber will notify MSPintegrations of its acceptance (“Acceptance“). Failure of Subscriber to notify MSPintegrations of any deficiency within fourteen (14) days after delivery (or redelivery, as the case may be) (or such other time as is set forth in the applicable Statement of Work) shall be deemed to constitute Subscriber’s Acceptance of the work product.
- Post-Acceptance Review. Subscriber shall have an additional fourteen (14) days after Acceptance to further test and review the work product (“Post-Acceptance Review“). If during Post-Acceptance Review additional deficiencies are identified in the work product, MSPintegrations will use commercially reasonable efforts to expeditiously correct such deficiencies at no cost to Subscriber. After the Post-Acceptance Review period, MSPintegrations will only be obligated to correct deficiencies that were present during the Post-Acceptance Review period but will not be required to correct defects that were beyond MSPintegrations’ reasonable control, including, without limitation, defects that result from changes to Third-Party Services or Subscriber’s use of the Services.
- Changes. Any Statement of Work made pursuant to this Implementation Agreement is subject to the Change Control Procedures (as defined below) only for the following reasons: (i) mutually agreed to changes in the applicable Statement of Work describing assumptions associated with the Implementation Services; (ii) the stated assumptions in the applicable Statement of Work describing assumptions associated with the Implementation Services proving false; (iii) any issues that MSPintegrations did not know or have a reasonable basis for knowing that impacts effort required; or (iv) acts or omissions of Subscriber that impact the schedule or cost for the applicable obligations of MSPintegrations (“MSPintegrations Obligations“) or effort required.
- Project Manager. Each party will designate and maintain a senior manager within its organization who will be available for purposes of discussing all projects and business between the parties. For purposes of this Section, Subscriber’s senior manager and MSPintegrations’s senior manager will each be referred to as a “Project Manager.”
- Change Control Procedures. The following constitutes the “Change Control Procedures”:
- Requests. The party requesting the change will notify the other party’s Project Manager (identified by each party for each applicable Statement of Work describing assumptions associated with Implementation Services), in writing, that it desires a change that is subject to the Change Control Procedures. Thereafter, the parties will negotiate, in good faith, to reach a mutual agreement with respect to such change and any changes in fees that may be charged within a reasonable amount of time. Each party will designate a duly authorized executive who has the authority to fully and finally resolve the matter and to participate in such negotiations.
- Approval. No change under the Change Control Procedures will be implemented without Subscriber approval, except as may be necessary on a temporary basis to maintain the continuity of MSPintegrations Obligations, and MSPintegrations will schedule changes so as not to unreasonably interrupt Subscriber’s business operations and to monitor the status of changes against the applicable schedule. With respect to any change made on a temporary basis to maintain the continuity of MSPintegrations Obligations, MSPintegrations will document and provide to Subscriber notification of the change.
- Disputes. If a dispute arises during negotiations as to: (i) whether the change became necessary due to problems caused by a third party such that additional fees may be charged; (ii) whether the change became necessary due to non-compliance by MSPintegrations with this Implementation Agreement, such that additional fees should not be charged; (iii) whether the change is a request by Subscriber for additional Implementation Services or work product such that additional fees may be charged; or (iv) whether the change should be covered by the warranties set forth in this Implementation Agreement, if any, then the parties will attempt to settle such dispute by negotiating a resolution.
- Payment. While any dispute is pending, MSPintegrations will continue to provide MSPintegrations Obligations (excluding any changes not agreed upon by the parties), and Subscriber will continue to pay all undisputed amounts due. To the extent commercially feasible, MSPintegrations will implement any change requested by Subscriber, notwithstanding that such change is the subject of such dispute and provided that Subscriber agrees to pay the cost of such change (with any cost being paid by Subscriber upon delivery of such change request).
- Expenses. MSPintegrations is responsible for expenses incurred while performing services under this Implementation Agreement unless designated in a Statement of Work or approved in advance by Subscriber.
- Rates and Fees. Rates and fees will be specified in each applicable Statement of Work.
- Invoices. Unless otherwise stated in a Statement of Work, MSPintegrations shall submit invoices for Implementation Services half up-front and half upon the completion of the work described in the Statement of Work. Invoiced amounts shall be payable upon receipt. If Subscriber has payment information on file with MSPintegrations, MSPintegrations will automatically submit payment upon Acceptance. If Acceptance is provided for a portion, but not all, of a project, MSPintegrations reserves the right to charge Subscriber for the portion(s) accepted by Subscriber. If any invoice is disputed by Subscriber, then Subscriber will be responsible for any portion of the invoice not in dispute.
- Term. The term of this Implementation Agreement will run concurrently with the term of the Subscription Agreement. Termination of this Implementation Agreement for any reason shall terminate each Statement of Work entered into as of the effective date of such termination. Cancellation of the Subscription Period does not relieve Subscriber of the obligation to pay any outstanding invoices or fees for Implementation Services rendered as of the date of cancellation.
- Intellectual Property Ownership. Unless expressly stated in a particular Statement of Work, no Implementation Services or the resulting work product will be considered work made for hire or otherwise be owned by Subscriber. If any work product should, by operation of law, be considered work made for hire by MSPintegrations for Subscriber, or if ownership of all rights, title, and interest of and to the Intellectual Property Rights therein should not otherwise vest exclusively in MSPintegrations, Subscriber hereby assigns to MSPintegrations, and upon the future creation thereof automatically assigns to MSPintegrations, without further consideration, ownership of all work product. MSPintegrations will have the right to obtain and hold in its own name patents, copyrights, registrations, and any other protection available as may be necessary or desirable to transfer, perfect, and defend MSPintegrations’ ownership of the work product. Subscriber agrees to fully and promptly cooperate with all reasonable requests by MSPintegrations to evidence ownership by MSPintegrations of such work product. For purposes of clarity, in no event will any portion of MSPintegrations Products be deemed work product or owned or licensed by Subscriber unless such ownership or license is expressly set forth in an applicable Statement of Work or other agreement between the parties.
- Relationship of Parties. Subscriber and MSPintegrations acknowledged and agree that: (i) MSPintegrations has the right to perform Implementation Services for others during the term of this Implementation Agreement; (ii) MSPintegrations has the sole right to control and direct the means, manner and method by which the Implementation Services will be performed; (iii) MSPintegrations has the right to perform the Implementation Services at any place or location and at such times as MSPintegrations may determine; (iv) MSPintegrations will furnish all equipment and materials used to provide the Implementation Services, except to the extent that MSPintegrations’ work must be performed on or with Subscriber computers or existing software; (v) Implementation Services shall be performed by MSPintegrations, or MSPintegrations’ staff, and Subscriber shall not be required to hire, supervise or pay any assistants to help MSPintegrations; (vi) MSPintegrations is responsible for paying all ordinary and necessary expenses of its staff; (vii) neither MSPintegrations nor MSPintegrations’ staff shall receive any training from Subscriber in the professional skills necessary to perform the Implementation Services; and (viii) Subscriber is not required to provide insurance coverage of any kind for MSPintegrations or MSPintegrations’ staff.
- Entire Agreement. This Implementation Agreement, together with the Subscription Agreement and all exhibits and addenda thereto, comprise the entire agreement between the parties relating to the provision of Implementation Services. This Implementation Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the provision of Implementation Services by MSPintegrations for Subscriber.