This Professional Services Addendum (“Addendum”) is an addendum to and forms a part of the Master Subscription Agreement between the parties (the “MSA” or the “Agreement”). Unless otherwise defined herein, capitalized terms used in this Addendum and applicable exhibits have the same meaning as set forth in the MSA. With respect to Professional Services, in the event of a conflict between the PSA Ordering Document, this Addendum, and the MSA, the following order of precedence shall control: (1) PSA Ordering Document, (2) this Addendum, and (3) the MSA.
1. Professional Services. Workday shall perform the services as set forth in a PSA Ordering Document ("Professional Services"). Unless otherwise agreed in the PSA Ordering Document, Workday may use subcontractors at its sole discretion in connection with providing Professional Services. If a change in project scope is required, such change(s) and associated fees for additional Professional Services to be provided will be described in a document signed by the parties (a “Change Order”).
2. Fees. Unless the PSA Ordering Document expressly states otherwise and except as specified under Section 4 of this Addendum, all payment obligations for Professional Services are non-cancelable and associated fees are non-refundable and non-transferable, and cannot be used as a credit toward any other amounts due to Workday.
3. Ownership and Licenses. All right, title and interest to all recommendations, ideas, techniques, know-how, designs, programs, development tools, processes, integrations, enhancements, and other technical information developed or co-developed by Workday in the course of providing Professional Services, including all trade secrets, copyrights and other Intellectual Property Rights pertaining thereto (together the “Workday Intellectual Property”) vests in Workday. Nothing contained in this Addendum shall be construed as transferring any such rights to Customer or any third party except as expressly set forth herein. Subject to the foregoing, Workday grants Customer a royalty-free, non-exclusive, non-transferable license to use any Workday Intellectual Property incorporated into the Deliverables solely for its internal purposes in connection with its authorized use of the Service as set forth in the MSA. As between Workday and Customer, all Customer Confidential Information, and all Personal Data supplied by Customer, its Employees or Authorized Parties, shall be, and remain, the property of Customer. Subject to Workday’s underlying Intellectual Property Rights, all right, title and interest in any Custom Integration developed solely by Customer shall vest in Customer.
4. Warranty, Remedies and Disclaimer. Workday warrants that it will perform the Professional Services in a professional and workmanlike manner. If Workday fails to do so, Workday shall correct deficiencies at no additional charge to Customer, provided Customer gives Workday written notice of any such deficiencies within sixty days of delivery by Workday. In the event Workday is unable to correct such deficiencies after good-faith efforts and at a commercially reasonable cost Workday shall refund Customer prorated amounts paid for the defective portion. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE APPLICABLE PSA ORDERING DOCUMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WORKDAY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, WORKDAY DOES NOT WARRANT THAT ANY OF THE PROFESSIONAL SERVICES OR DELIVERABLES PROVIDED UNDER THIS ATTACHMENT WILL BE ERROR FREE OR UNINTERRUPTED. THE PROFESSIONAL SERVICES PROVIDED BY WORKDAY ARE ADVISORY ONLY AND NO SPECIFIC RESULT IS ASSURED OR GUARANTEED.
5. Processing and Security of Personal Data. The Data Processing Exhibit will apply to the processing of Personal Data for Professional Services provided by Workday. The Security Exhibit sets forth the controls that Workday has in place to protect Professional Services Data (as defined therein) that is provided to Workday.
6. Indemnification. The provisions of Section 7 (“Indemnity”) of the MSA shall apply to this Addendum except that “Professional Services” shall replace and supersede “Service” in those provisions to the extent such provisions apply to this Addendum.
7. Limitation of Liability. WITHOUT OTHERWISE LIMITING THE PROVISIONS OF 8.1 OF THE MSA, THE “GENERAL CAP” IN SECTION 8.1 OF THE MSA DOES NOT APPLY TO THIS ADDENDUM. EACH PARTY’S AND ITS AFFILIATES’ MAXIMUM AGGREGATE LIABILITY, WHETHER IN TORT, CONTRACT OR OTHERWISE, FOR PERFORMANCE OF THE PROFESSIONAL SERVICES OR OTHERWISE ARISING OUT OF THE ADDENDUM SHALL BE LIMITED TO THE FEES PAID AND/OR PAYABLE BY CUSTOMER UNDER THE SPECIFIC PSA ORDERING DOCUMENT. FOR CLARITY, THE “ENHANCED CAP” WILL APPLY FOR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY, SECURITY, OR PRIVACY OBLIGATIONS.
8. Term. This Addendum will remain in effect throughout the Term of the MSA unless otherwise terminated in accordance with this section or the applicable PSA Ordering Document. Notwithstanding any other provision to the contrary, termination of this Addendum or a PSA Ordering Document hereunder by either party for any reason shall not terminate nor give that party the right to terminate the MSA or any Order Forms thereto.
9. Termination. Termination shall be as set forth in the applicable PSA Ordering Document. Upon termination of any PSA Ordering Document, Workday will immediately cease performance of all Professional Services thereunder and Customer shall pay Workday within thirty (30) days of the effective date of termination for all Professional Services performed by Workday and travel and living expenses incurred up to the cessation of such Professional Services. All provisions of this Addendum shall survive any termination or expiration of the MSA and/or this Addendum, except for (i) Workday’s obligations to provide Professional Services, (ii) Customer’s rights and licenses to use any Deliverables and any Workday Intellectual Property, and (iii) terms of the PSA Ordering Documents that are not of a nature that should survive. No termination or expiration of any PSA Ordering Document will relieve Customer from making any payments due or incurred prior to the effective date of such termination or non-cancelable payments, even if due after the date of termination.
“Custom Integration” means any integration or interface between third party applications or service providers and the Service that are developed either (i) by Customer, (ii) by a partner or third party acting on Customer’s behalf pursuant to a separate and independently executed third party agreement, or (iii) by Workday pursuant to a PSA Ordering Document. Custom Integrations are deployed, maintained and supported by Customer and are not part of the Service.
“Deliverables” means the training, specifications, configurations, implementation, data conversions, workflow, custom-developed programs, performance capabilities, and any other activity or document to be completed during the course of Professional Services for delivery to Customer or its Affiliates.
“Personal Data” has the applicable definition set forth in the Data Processing Exhibit.
“PSA Ordering Document” means the separate statements of work and/or work orders under which Workday agrees to provide Professional Services that refer to this Addendum and have been fully executed by the parties.