Professional Services Terms

These terms and conditions for professional services apply to the provision by PERFANA of certain Service qualifying as Professional Services to CUSTOMER (“Professional Services Terms”) and form an integral part of these Terms between PERFANA and CUSTOMER and sets forth additional terms that apply only to the delivery of Professional Services and related Services by PERFANA to CUSTOMER thereunder. These Professional Services Terms are subject to the terms and conditions of these Terms, though in the event of a conflict between the terms thereof regarding the provision of Professional Services or similar Services prevail. Unless otherwise defined in these Professional Services Terms, capitalized terms used but not defined herein have the meanings assigned in these Terms.

Section 1 – Applicable terms and conditions

In this Annex, unless explicitly defined otherwise or where the context requires otherwise, the following terms shall have the meanings set forth below:
“Personnel” means PERFANA´s employees and employees of PERFANA´s subcontractors performing the Professional Services.
“Professional Services” means the performance of certain Services through the allocation of Personnel on a man-hour spend or pre-agreed fixed price basis (explicitly excluding the SaaS Solution), which Services may include the creation or delivery of Deliverables agreed to be delivered by Parties under a Order or provision of trainings regarding the SaaS Solution or Services.
When CUSTOMER desires to purchase Professional Services from PERFANA related to the (implementation, or parametrisation) of the SaaS Solution and Parties agree to such, CUSTOMER and PERFANA shall execute a Order to that effect. Once the applicable Order is executed, CUSTOMER may subsequently issue a purchase Order to purchase the respective Professional Services as agreed in the applicable Order, without such purchase Order affecting the applicable terms and conditions in any manner.
Such Professional Services are purchased exclusively under the terms of these Terms, these Professional Services Terms and the applicable Order. All Professional Services provided by PERFANA to CUSTOMER, regardless of whether identified in a Order, will be considered Professional Services under the terms of these Professional Services terms, any applicable Order and these Terms.

Section 2 – Performance of Professional Services

PERFANA represents and warrants that the Professional Services will be performed in accordance with good industry practice.
PERFANA shall: (i) execute the Professional Services and fulfil its obligations and responsibilities in respect thereof in accordance with the agreed requirements set forth in the Order; (ii) develop, document and provide all Deliverables materially in accordance with the agreed Specification; and (iii) inform CUSTOMER in writing (including via email) of any material problem incurred during the execution of the Professional Services that could hamper the successful delivery of the Deliverables.
Nothing in these Professional Services Terms (i) limits PERFANA´s responsibility for its Personnel; or (ii) create any form of joint employment between Parties regarding the Personnel. No employment Agreement exists or shall come into existence between Personnel and CUSTOMER hereunder. PERFANA accepts that Personnel is not covered by CUSTOMER’s pension fund, for sickness, for unemployment, for severance payments and for any other cover implied in the social insurance for an employee and that Personnel shall not be entitled to payment for holidays, sickness or any employee benefits from CUSTOMER.
PERFANA will ensure that while on the premises of CUSTOMER, PERFANA´s Personnel will abide by any written environmental, health and safety or security guidelines provided by CUSTOMER to PERFANA timely in advance of such visit. CUSTOMER shall be obliged to provide PERFANA with any such guidelines at least fourteen (14) calendar days prior to the scheduled visit (or such shorter period if the visit is scheduled on shorter notice).

Section 3 – Acceptance process

In the event Parties agree that an acceptance process applies to the delivery of any Services hereunder, then CUSTOMER shall, within ten (10) calendar days after receipt from PERFANA of the Services deliverables (the “Acceptance Period”), accept such Service or Deliverable by written notice (including via email) to PERFANA (an “Acceptance Notice”), provided that the Services deliverable substantially conforms to the Specifications (if any). If CUSTOMER fails to timely deliver the Acceptance Notice within the Acceptance Period, then the respective Service or Deliverable will be deemed accepted by CUSTOMER. CUSTOMER may only reject a Service or Deliverable in the event of a material Defect, which affects material functionalities of the respective Service or Deliverable. If CUSTOMER delivers a written rejection notice within the Acceptance Period, such notice must contain a detailed statement specifying any substantial noncompliance of the Service or Deliverable with the applicable Specifications. PERFANA will then use commercially reasonable efforts to correct the Defect noted in the rejection notice. CUSTOMER shall not make any commercial or production use of any Service or Deliverable prior to CUSTOMER having issued an Acceptance Notice to PERFANA, and any such commercial or production use of such Service or Deliverable will constitute a deemed acceptance of that Service or Deliverable by CUSTOMER.

Section 4 – Additional terms

The Parties may, upon mutual Agreement, modify the scope of Professional Services and any such Agreement upon such changes must be reflected in an amendment to the respective Order or in a new Order.
CUSTOMER covenants, on behalf of itself and its Affiliates, successors and assigns, not to assert against PERFANA, its affiliates or licensors, any rights, or any claims of any rights, in any (part of the) Professional Services or Deliverables delivered thereunder, and CUSTOMER hereby voluntarily waives any right to demand from PERFANA, its Affiliates or licensors any rights to any part of the Professional Services or Deliverables, except the rights which are expressly granted to CUSTOMER under a Order.
CUSTOMER is solely responsible for ensuring that its systems meet the hardware, software and any other applicable system requirements for the Deliverables as specified in the Order or Documentation. PERFANA will have no obligations or responsibility under these Terms, these Professional Services Terms or any Order for issues caused by CUSTOMER’s use of any third-party hardware or software not provided by PERFANA.
The Professional Services and Deliverables may include code and libraries licensed to PERFANA by third parties, including open source software. Such code and libraries are supplied by PERFANA to CUSTOMER (as part of the Professional Services or Deliverables) on a “pass-through” basis only and are subject to the terms and conditions of the third party vendor, including but not limited to warranties, licenses, indemnities, limitation of liability, prices and changes thereto (if any). The Order shall contain an overview of such third party licenses applied.