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SUPPLEMENTAL TERMS AND CONDITIONS Section 3

SUPPLEMENTAL TERMS AND CONDITIONS
SECTION 3: Consulting Services

If Subscriber has engaged Chartlytics for the provision of professional services (including any training, success, and implementation services, “Consulting Services”) as indicated on an Order Form, or other written document such as a Statement of Work, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Chartlytics, intending to be legally bound, agree to the terms set forth below.

  1. Scope. All Consulting Services pursuant to the Agreement provided by Chartlytics to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided.
  2. Retention. Subscriber hereby retains Chartlytics to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Chartlytics shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW with respect to such Consulting Services. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
  3. Performance of Consulting Services.

3.1 Each SOW will include reasonable details about Consulting Services, including, at a minimum, the Consulting Fees charged and the Consulting Services provided. Chartlytics and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.

3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Chartlytics’ Representative”, respectively). Any Subcontractor (defined below) designated by Chartlytics to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Chartlytics on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”).

3.3 Chartlytics will perform the Consulting Services through qualified employees and/or non-employee contractors of Chartlytics (“Subcontractors” and together with Chartlytics’ employees for the purposes of these Supplemental Terms, “Consulting Services Personnel”). Subscriber agrees to provide, at no cost to Chartlytics, timely and adequate assistance and other resources reasonably requested by Chartlytics to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Chartlytics, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.

3.4 In performing the Consulting Services, Chartlytics will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Chartlytics’ election of Subcontractors by specifying its objection to Chartlytics, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Chartlytics may replace Consulting Services Personnel in its normal course of business, provided that Chartlytics will be responsible for the performance of Consulting Services by all Consulting Services Personnel.

3.5 Chartlytics will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Chartlytics will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Chartlytics’ obligations under the Agreement in accordance with its terms.

3.6 With Subscriber’s approval, Chartlytics may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services.

3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Chartlytics. If Chartlytics elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Chartlytics shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. Chartlytics shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.

3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Chartlytics shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Chartlytics with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete and the deliverables accepted absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.

4. Consulting Fees; Payment Terms.

4.1 Subscriber will pay Chartlytics the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Consulting Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Chartlytics shall invoice Subscriber for the Consulting Services provided on a monthly basis. All Consulting Fees are due and payable upon date of invoice, except for Consulting Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice.

4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Chartlytics will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Chartlytics will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Consulting Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order.

4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Consulting Fees which become payable by Subscriber. Chartlytics may refuse to perform Consulting Services unless and until such retainer is paid to Chartlytics.

4.4 In addition to any and all Consulting Fees, Subscriber will reimburse Chartlytics for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change Consulting Fees to travel and accommodations resulting from Subscriber’s request incurred by Chartlytics in connection with providing the Consulting Services (“Expenses”). Chartlytics will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Chartlytics for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Chartlytics.

4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.

4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed Consulting Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).

5. Relationship of the Parties. Chartlytics is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Chartlytics at no time will hold itself out as a User, 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 Chartlytics hereunder shall not be considered salary for pension or wage tax purposes and neither Chartlytics 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. Warranties.

6.1 Chartlytics hereby represents and warrants that:

a. the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Chartlytics 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 Chartlytics’ option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Chartlytics 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:

CUSTOM APPLICATIONS THAT RESIDE WITHIN THE CHARTLYTICS SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND CHARTLYTICS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. CHARTLYTICS SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY CHARTLYTICS. CHARTLYTICS DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. CHARTLYTICS EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, CHARTLYTICS EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES 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 CHARTLYTICS 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 primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Chartlytics all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Chartlytics a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Chartlytics shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Chartlytics receives from Subscriber.

7.2 Without limiting the foregoing, Chartlytics and its licensors reserve and retain ownership of all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and Chartlytics hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Preexisting Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Preexisting Technology” means all of Chartlytics’ inventions (including those of Chartlytics’ Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Chartlytics and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Chartlytics’ Preexisting Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Chartlytics and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Chartlytics’ product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information.