Professional Services: Terms & Conditions

Last Updated: December 27, 2019



These Professional Services Terms and Conditions (these “Professional Service Terms” or these “Terms”) govern the rendering of Professional Services to you (“You”, or “Customer”) by Millennium Systems International (“MSI”) pursuant to each Statement of Work (“SOW”) or similar agreement between MSI and You (each, a “party”, and collectively, the “parties”). These Terms are incorporated by reference as if fully set forth in each SOW. Except as otherwise expressly set forth herein, each SOW is governed by the terms and conditions referenced in the underlying order form document (the “Order Form” or “Order”).

Capitalized terms not defined in these Terms are defined in MSI’s Terms of Service located at https://www.millenniumsi.com/terms-of-service (the “Terms of Service” or “TOS”). The Terms of Service, which govern your Subscription to MSI’s Meevo 2 Software as a Service (“MSI’s Services”), are incorporated by reference as if fully set-forth herein.

1. Engagement; Services

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Subject to the terms and conditions of the Order, the SOW (including any Change Orders), these Terms, your Subscription Agreement, and, as applicable, the Terms of Service (sometimes hereafter collectively referred to as the “Professional Services Documents”), Customer hereby engages MSI to perform, and MSI agrees to perform, the Professional Services set forth in the specific SOW prepared for Customer by MSI. Except as otherwise described herein, all references to “SOW” in these Terms shall mean the specific SOW applicable to the specific Order. MSI will render the Professional Services in a professional manner in accordance with its standard procedures and as outlined in the SOW. For reference, MSI’s standard form of SOW is attached hereto as Exhibit A. You agree that any Professional Services not expressly described in the SOW are beyond the scope of said SOW and subject to a separate Order and SOW, and subject to additional fees.

(a) MSI is an independent contractor and not Customer’s employee or agent. Nothing contained in the Professional Services or any other agreement between MSI and Customer shall be construed to create a partnership between the parties. Neither party shall have any authority, express or implied, to bind, commit or obligate the other in any manner whatsoever, unless an authorized signatory of each party signs a writing granting that authorization to the other.

(b) MSI retains the exclusive right to select and change the personnel that will provide the Professional Services in its discretion.

2. Term

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The Term of a SOW shall begin on its Effective Date, and shall terminate upon Completion of Services (as hereafter described), or as otherwise set forth in these Terms.

3. Modifications; Change Orders

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Any modifications to a SOW shall require the mutual written agreement of MSI and Customer embodied in one or more chronologically numbered documents, each titled “Change Order” and attached as an addendum to each such SOW (“Change Order”). The Change Order will be effective on the date agreed in the Change Order to be the “Change Order Effective Date”. The terms and conditions of each Change Order are incorporated into the applicable SOW by reference therein. In the event of any conflicts between the terms and conditions of a SOW and the relevant Change Order, the Change Order will prevail, solely with respect to the subject matter of such Change Order.

4. Professional Service Fees

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You agree to pay MSI fees for Professional Services (“Professional Service Fees”) as set forth in the SOW. Any terms or conditions regarding Professional Service Fees (including payment terms) not specifically set forth in these Terms, the SOW, or the Order, are governed by the Terms of Service. Unless otherwise expressly stated in the SOW, all Fees are non-refundable and non-cancellable. Subscription or other fees related to your access to and use of MSI’s Services are outside of and in addition to Professional Service Fees.

5. Billing; Payment

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Invoices are due and payable upon receipt and prior to commencement of work. Specific payment terms and conditions between MSI and Customer will be set forth in the SOW. In addition to rendering of Professional Services pursuant to the SOW, billable hours include, by way of example, but not limitation, time spent fixing hardware, software, communications, Customer, or other organizational problems not caused by MSI and/or beyond MSI’s control which require MSI’s attention. MSI may, at its election, bill such additional time as additional work beyond the scope of the applicable SOW. Notwithstanding, any contrary provisions in the SOW or any Professional Services Documents, any fees that remain outstanding for ten (10) or more days from the due date shall incur interest at the rate of one and one-half (1.5%) percent per month.

6. Expenses

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Customer shall advance or promptly reimburse MSI for all reasonable travel and other out-of-pocket expenses (including but not limited to cost of airfare, hotels, and meals). If MSI determines on-site visits are necessary, Professional Service Fees for travel time will be billed at one half (1/2) the Current Rate, and are excluded from (and billed in addition to) the project scope set forth in the SOW. Customer acknowledges that any unbilled charges or expenses incurred by MSI that are not known at or prior to the Completion of Services (hereafter, “Unbilled Expenses”), shall be presented to Customer in an itemized statement upon MSI’s Completion of Services (hereafter “Customer Statement”). Customer hereby authorizes MSI to charge Customer’s credit card on file for all Unbilled Expenses seven (7) days from MSI’s delivery of Customer Statement to Customer, unless, prior to the expiration of the foregoing seven (7) day period, Customer provides written notice (“Dispute Notice”) to MSI: (i) identifying any claimed billing error; and (ii) containing supporting documentary proof of any claimed billing errors. Upon receipt of the Dispute Notice, MSI shall determine whether an adjustment to the Customer Statement is required. If you fail to timely pay for any expenses or we are unable to process your payment for any reason, MSI’s Terms of Service regarding payment shall apply, except that Customer shall have fifteen (15) days’ from delivery of any notice of overdue payment to bring Customer’s account current. If you do not bring your account current pursuant to the Terms of Service and terms herein, this Agreement, any other agreements with MSI, and all access privileges and rights to any MSI product or service (including subscription to Meevo) will be automatically cancelled and terminated. This means you will not be able to use any MSI product or service, (including Third Party Services), or to access your Account. For more detail and information about your obligations and terms and conditions regarding payment, processing of payment, and related matters, please review MSI’s payment processing terms at https://www.millenniumsi.com/terms-of-service

7. Cooperation

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Customer shall cooperate and respond promptly to MSI’s reasonable requests (including requests for payments, advances, and approvals).

8. No-Raid Covenant

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Customer covenants and agrees that or a period of one (1) year from the last date the Services are performed (the “Restricted Period”), it shall not directly or indirectly, hire, solicit, or attempt to hire or solicit, or accept services from any person who is or was within the previous twelve (12) months, a MSI employee, consultant, contractor or subcontractor engaged in any activity related to the SOW or any services provided by MSI to Customer relating to its Subscription. In the event of Customer’s breach of this no-raid covenant, Customer agrees to pay MSI an amount equal to such individual’s then current annual salary, plus an additional twenty (20%) percent of such current salary for recruitment, talent acquisition, training services and related costs and services within thirty (30) days of MSI’s notice to Customer identifying the breach. Customer agrees this is fair and reasonable compensation to MSI for its expenses related to prior and future training and replacement of employees and contractors. Customer further agrees that the Restricted Period will be extended for any period after the thirty (30) day notice period that Customer fails to cure the breach in accordance with the foregoing.

9. Publicity

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Customer authorizes MSI to refer to Customer and describe its business in MSI’s marketing and other promotional materials, and grants MSI a limited license to use Customer’s trade names and trademarks for this limited purpose. If Customer does not wish its name or business to be used by MSI for this limited purpose, prior to signing these Terms, and in any event not later than commencement of the Professional Services, Customer must notify MSI in a specific writing, signed by an authorized representative of Customer.

10. Ownership of Intellectual Property; Deliverables

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Subject to the terms and conditions of the Order, the SOW (including any Change Orders), these Terms, your Subscription Agreement, and, as applicable, the Terms of Service (sometimes hereafter collectively referred to as the “Professional Services Documents”), Customer hereby engages MSI to perform, and MSI agrees to perform, the Professional Services set forth in the specific SOW prepared for Customer by MSI. Except as otherwise described herein, all references to “SOW” in these Terms shall mean the specific SOW applicable to the specific Order. MSI will render the Professional Services in a professional manner in accordance with its standard procedures and as outlined in the SOW. For reference, MSI’s standard form of SOW is attached hereto as Exhibit A. You agree that any Professional Services not expressly described in the SOW are beyond the scope of said SOW and subject to a separate Order and SOW, and subject to additional fees.

(a) During the course of rendering the Professional Services, MSI may create, utilize, or incorporate its proprietary technologies, ideas, designs, innovations, or intellectual property (including by way of example, but not limitation, object code or source code), including any of the foregoing created by or on behalf of MSI, (all hereafter collectively referred to as “Proprietary Property”). All such Proprietary Property (whether or not copyrightable or otherwise protectible) that MSI shall create, utilize, or incorporate in connection with its rendering of the Professional Services (including embedded in any “Deliverables” (as hereafter defined), shall be deemed MSI’s IP pursuant to the Terms of Service, and MSI shall own and retain all proprietary and intellectual property rights in and to same, including without limitation, trade secrets, copyrights, trademarks, patents, functionality and business methodology embodied therein, and the like.

(b) In order to render the Professional Services, MSI may require access to certain of Customer’s confidential information or other customer materials, including Customer owned or separately licensed materials, content collections, logos, trademarks, software, hosted platforms, APIs, systems and infrastructure (“Customer Materials”). Customer retains ownership of the Customer Materials, however, by accepting the Professional Services, Customer grants MSI a limited license to access, use and modify the Customer Materials as required to enable MSI to render the Professional Services pursuant to the SOW. Customer represents and warrants that it has all required rights and approvals necessary to provide the foregoing limited license to MSI. MSI’s obligation to render the Professional Services is contingent upon Customer’s timely provision of the Customer Materials to MSI. MSI agrees that MSI will not access, use or disclose Customer’s Materials for any purpose other than rendering the Professional Services, disclose same only to those individuals or entities as reasonably necessary to enable those individuals or entities to perform the Professional Services, and maintain as confidential, and require its employees to maintain as confidential, Customer Materials delivered by Customer to MSI identified and labeled as “Confidential Information”.

(i) In order to render the Professional Services, MSI may require access to certain of Customer’s confidential information or other customer materials, including Customer owned or separately licensed materials, content collections, logos, trademarks, software, hosted platforms, APIs, systems and infrastructure (“Customer Materials”). Customer retains ownership of the Customer Materials, however, by accepting the Professional Services, Customer grants MSI a limited license to access, use and modify the Customer Materials as required to enable MSI to render the Professional Services pursuant to the SOW. Customer represents and warrants that it has all required rights and approvals necessary to provide the foregoing limited license to MSI. MSI’s obligation to render the Professional Services is contingent upon Customer’s timely provision of the Customer Materials to MSI. MSI agrees that MSI will not access, use or disclose Customer’s Materials for any purpose other than rendering the Professional Services, disclose same only to those individuals or entities as reasonably necessary to enable those individuals or entities to perform the Professional Services, and maintain as confidential, and require its employees to maintain as confidential, Customer Materials delivered by Customer to MSI identified and labeled as “Confidential Information”.

(c) Subject to Customer’s compliance with the Professional Service Documents and satisfaction of all Fees due and payable pursuant to the SOW, MSI grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, license to use the “Deliverables” (as defined herein and may be further defined in the SOW) provided to Customer by MSI via the rendering of the Professional Services, solely in connection with Customer’s access to and use of MSI’s Services pursuant to the Subscription to which the Professional Services relate, and then only for Customer’s internal business purposes during the applicable Subscription term. Anything in the Professional Services Documentation to the contrary notwithstanding, and subject to the foregoing limited license right: (i) MSI owns the Deliverables (excluding any Customer Materials contained therein), and the Proprietary Property used by or on behalf of MSI in providing the Professional Services, including without limitation, all processes, know-how, code, data, reports and related materials (and modifications or derivatives thereof); and (ii) MSI reserves all rights not expressly granted herein to the Deliverables and all intellectual property rights described in subsection (i) above. Nothing contained herein limits MSI’s right to develop, use, market, or sell services or products that are similar to the Deliverables or Professional Services provided pursuant to a SOW, or to use such Deliverables (excluding Customer Materials) to perform similar services for any other purposes, including without limitation in connection with other projects and customers. “Deliverables” means any tangible or intangible work product created, conceived, developed or otherwise generated by or on behalf of MSI in rendering the Professional Services, including any modifications or derivatives thereof, such as documents, reports, data, models, processes, software, scripts, analysis, specifications, integrations, APIs, interfaces, programs, and other materials and results.

(d) Subject to Customer’s compliance with the Professional Service Documents and satisfaction of all Fees due and payable pursuant to the SOW, MSI grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, license to use the “Deliverables” (as defined herein and may be further defined in the SOW) provided to Customer by MSI via the rendering of the Professional Services, solely in connection with Customer’s access to and use of MSI’s Services pursuant to the Subscription to which the Professional Services relate, and then only for Customer’s internal business purposes during the applicable Subscription term. Anything in the Professional Services Documentation to the contrary notwithstanding, and subject to the foregoing limited license right: (i) MSI owns the Deliverables (excluding any Customer Materials contained therein), and the Proprietary Property used by or on behalf of MSI in providing the Professional Services, including without limitation, all processes, know-how, code, data, reports and related materials (and modifications or derivatives thereof); and (ii) MSI reserves all rights not expressly granted herein to the Deliverables and all intellectual property rights described in subsection (i) above. Nothing contained herein limits MSI’s right to develop, use, market, or sell services or products that are similar to the Deliverables or Professional Services provided pursuant to a SOW, or to use such Deliverables (excluding Customer Materials) to perform similar services for any other purposes, including without limitation in connection with other projects and customers. “Deliverables” means any tangible or intangible work product created, conceived, developed or otherwise generated by or on behalf of MSI in rendering the Professional Services, including any modifications or derivatives thereof, such as documents, reports, data, models, processes, software, scripts, analysis, specifications, integrations, APIs, interfaces, programs, and other materials and results.

11. Completion of Services

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Timelines for completion of the Professional Services are set forth in the SOW. Professional Services shall be automatically deemed complete within seven (7) days of the date of MSI’s delivery to Customer of its then current form of completion notice (“Completion Notice”) unless, prior to the expiration of the foregoing seven (7) day period, Customer delivers written notice of objection to MSI in a specific and reasonably detailed writing of any material, bona fide defects in the Deliverables which render the Deliverables materially non-compliant with the specifications set forth in the SOW (hereafter “Material Defect” and “Rejection Notice” respectively). Upon receipt of a Rejection Notice, MSI will conduct an internal review of the Professional Services and the Deliverables. If, in its sole and reasonable discretion, MSI determines that the Material Defect is a result of MSI’s failure to render the Professional Services in compliance with the SOW, MSI will exercise commercially reasonable efforts to correct and redeliver the Deliverables in compliance with the SOW. Upon delivery of such corrected Deliverables, the Professional Services will be deemed completed and accepted by Customer. MSI’s obligations regarding Material Defects are limited to Professional Services delivered pursuant to the applicable SOW, and exclude changes to previously delivered services or functional preferences not expressly included in the SOW, or new functionality. Any requests for changes to Deliverables or Professional Services delivered after the expiration of the Notice Period or beyond the scope of the SOW may be subject to additional fees, and shall require, at MSI’s election, a Change Order or new SOW.

12. HIPAA

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Prior to the commencement of Services, Customer shall notify MSI if Customer is subject to HIPPA in accordance with the applicable provisions in MSI’s TOS. For more detail and information about your obligations and terms and conditions regarding HIPAA, please review MSI’s terms at https://www.millenniumsi.com/terms-of-service.

13. Your Data

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MSI is not responsible for the accuracy or correctness of Your Data. For more detail and information about your obligations and terms and conditions regarding Your Data, please review MSI’s terms at https://www.millenniumsi.com/terms-of-service.

14. MSI Warranty and Disclaimer

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MSI represents and warrants that it maintains industry standard best practices in the performance and delivery of Services to Customer. MSI warrants its Services for a period of thirty (30) days after Project Completion. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MSI DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES. MSI IS NOT LIABLE FOR ANY FAILURE OF PERFORMANCE OR EQUIPMENT DUE TO CAUSES BEYOND MSI’S REASONABLE CONTROL.

15. Term; Termination

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The term for delivery of the Professional Services shall be the period required to perform the Services and deliver the Deliverables pursuant to the SOW, provided that such term shall not exceed the term of Customer’s Subscription to MSI’s Services.

(a) The SOW will automatically terminate upon MSI’s performance of its obligations therein and Customer’s timely satisfaction of all fees due and owing. Customer may terminate the SOW or any Professional Services performed hereunder at any time upon reasonable written notice to MSI, provided that Customer shall be responsible for all unpaid fees and other costs for services rendered up through and including the date of termination, including any costs incurred by MSI prior to the date of termination for services not yet performed due to termination. In the event of scope reductions, suspension, cancellation or termination of the Professional Services or any one or more Deliverables for any reason except MSI’s uncured breach, Customer shall be responsible for, and shall immediately pay, all fees and costs for work completed pursuant to the SOW.

16. Limitation of Liability

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MSI’s liability to Customer in connection with the Professional Services is limited to the amount of the Professional Services Fees paid by Customer to MSI for such Services as set forth in the SOW.

17. Incorporation by Reference

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For clarity and avoidance of doubt, the Terms of Service (including all related schedules, exhibits, and other agreements in connection with the TOS), together with each applicable SOW, are incorporated by reference as if fully set forth in these Terms.

18. Precedence

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If there is any inconsistency or ambiguity between the SOW, these Terms, and the Terms of Service, the precedence shall be as follows: (1) the SOW; (2) these Terms; and (3) the Terms of Service.

19. Entire Agreement

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These Terms (including the Order, the SOW, Change Orders and any exhibits attached, together with the schedules, other documents referred therein) constitute the entire agreement between the parties with respect to the subject matter hereof. These Terms supersede any and all prior agreements, oral or written, between the parties with respect to the subject matter hereof.

20. Amendment, Waiver, Modification or Termination

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No amendment, waiver or termination or modification of these Terms shall be binding absent a duly executed SOW and/or Change Order signed by both MSI and Customer identifying itself as such. Performance of work by MSI and/or acceptance of payment by MSI for work performed and/or work to be performed for Customer beyond the scope of these Terms or any SOW does not constitute acceptance by MSI of amendments or modifications to these Terms and does not bind MSI.

21. Cross Default

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A breach of these Terms by Customer shall be deemed to be a breach of the other Professional Services Documents.

22. Authority

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The individual signing these Terms, any SOW and Change Order on behalf of Customer hereby represents to MSI that he or she has and shall have the requisite authority to execute and deliver these Terms, any SOW and Change Order, to bind the Customer, and to cause Customer to comply with the terms and conditions and to perform its obligations under these Terms, any SOW and Change Order.