If Subscriber engages ValidMind for the provision of Consulting Services:
1. Scope and Retention. ValidMind hereby agrees to provide the Consulting services (including any training and implementation services) (collectively, “Consulting Services”) indicated on any mutually agreed upon and executed Statement of Work (“SOW”) or other written document (such as a “Description of Consulting Services” on an Order Form) in exchange for the fees set forth therein (“Consulting Services Fees”). Any SOW or other written document shall describe the scope, fees, nature and other relevant characteristics of any services being provided by ValidMind to Subscriber as part of the Consulting Services which shall be governed by the terms of the Agreement. ValidMind shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed a SOW or Order Form with respect to such Consulting Services.
2. Performance and Acceptance of Consulting Services.
2.1 ValidMind and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and Consulting manner.
2.2 ValidMind will perform the Consulting Services through qualified employees and/or non-employee contractors of ValidMind (“Subcontractors” and together with ValidMind’s employees for the purposes of these Supplemental Terms, “Consulting Services Personnel”).
2.3 Subscriber agrees to provide, at no cost to ValidMind, timely and adequate assistance and other resources reasonably requested by ValidMind to enable the performance of the Consulting Services (collectively, “Assistance”). ValidMind, including its Subcontractors, will not be liable for any deficiency in the performance of Consulting Services to the extent such deficiency results from any acts or omissions of Subscriber, including, but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
2.4 In performing the Consulting Services, ValidMind will utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to ValidMind’s use of a Subcontractor by specifying its reasonable objection to ValidMind, in which case the Parties will cooperate in good faith to appoint another Consulting Services Personnel to perform such Consulting Services. ValidMind may replace Consulting Services Personnel in its normal course of business, provided that ValidMind will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
2.5 ValidMind will control the method and manner of performing all work necessary for the completion of Consulting Services, including but not limited to the supervision and control of any Consulting Services Personnel performing Consulting Services. ValidMind will maintain such a number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform ValidMind’s obligations under the Agreement in accordance with its terms.
2.6 Deliverables (as defined in an SOW) shall be deemed accepted by Subscriber in accordance with the terms of the applicable SOW or Order Form.
3. Change Orders. After execution of a SOW or Order Form, the Consulting Services to be provided under that SOW or Order Form may only be changed through a change order mutually executed by the Parties (“Change Order”).
4. Consulting Fees. Subscriber will pay ValidMind the Consulting Fees as detailed or described in an Order Form or SOW.
5. Relationship of the Parties. ValidMind is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing the Consulting Services. ValidMind will never hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Subscriber to ValidMind hereunder shall not be considered salary for pension or wage tax purposes and neither ValidMind nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
6.1 ValidMind hereby represents and warrants that:
(a) the Consulting Services provided pursuant to the Agreement will be performed in a timely and Consulting manner by ValidMind and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at ValidMind’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to ValidMind by Subscriber for the nonconforming portion of the Consulting Services; and
(b) it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
6.2 The Parties hereby agree that: EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1 ABOVE, ALL CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED TO SUBSCRIBER “AS IS” AND VALIDMIND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS THEREOF AND VALIDMIND EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CONSULTING SERVICES AND DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. VALIDMIND SHALL NOT BE RESPONSIBLE, IN LAW OR OTHERWISE, FOR ANY DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY DELIVERABLES IN A MANNER NOT INSTRUCTED BY VALIDMIND. VALIDMIND DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. FURTHER, VALIDMIND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN ANY DELIVERABLE AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY VALIDMIND OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES.
7. Rights to Deliverables; Ownership.
7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW or Order Form primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services, and therefore the Deliverables are inoperative without an active subscription to a Service. As between the Parties, ValidMind shall solely and exclusively own all right, title, and interest in the Deliverables, including all derivatives, enhancements and modifications thereof; and Subscriber hereby makes all assignments necessary to accomplish the foregoing ownership. Subject to the terms and conditions hereof, ValidMind grants Subscriber a non-exclusive, non-transferable, non-sublicensable license to use the Deliverables solely in connection with Subscriber’s permitted use of the Services.
7.2 A “Subscriber Contribution” is source code that is created by Subscriber in connection with the Consulting Services and is specifically identified in a SOW. Subscriber and ValidMind agree that Subscriber retains title to Subscriber Contributions, and Subscriber hereby grants ValidMind a non-exclusive license to use and exercise the Subscriber Contributions for the performance of the Consulting Services and Services.
8. Open Source. ValidMind may incorporate open source materials into any Deliverable. ValidMind will notify Subscriber that it is providing such open source software upon or prior to delivery, and ValidMind will avoid providing any open source materials that are governed by a so-called “copyleft license” that would require Subscriber to permit any disclosure of, distribute or make available any of Subscriber’s proprietary software if Subscriber uses the Deliverables as permitted hereunder. Any open source materials provided by ValidMind are licensed to Subscriber pursuant to the terms of the applicable open source license and not this Agreement.