1. Professional Services
Where you purchase professional services from us or our Affiliates, these terms and conditions (“Professional Services Terms”) apply and are incorporated into our agreement with you by reference. “Professional Services” means the implementation and configuration services provided by us in connection with the products and services we provide (“Core Services”), as described more fully in a Statement of Work (as defined below). Professional Services do not include our Core Services. We reserve the right to update these Professional Services Terms from time to time.
2. Relationship with our Core Services
These terms are in addition to the terms set out in our General Terms and Conditions and, unless the context otherwise requires, references therein to the “Services” shall be deemed to include the Professional Services. Unless the context otherwise requires, terms used in these Professional Services Terms have the same meaning given to them in the General Terms and Conditions.
3. Specification
We will agree to a specification for the Professional Services with you in writing (the “Specification”). This may be agreed by means of details included in an Order Form agreed with you or by means of separate mutually agreed written professional services scope of work or purchasing document (“Statement of Work”). The Specification will set out any (i) outputs or deliverables to be completed, (ii) the agreed timeline for such completion and (iii) any acceptance criteria or test plans. Professional Services shall not include any services not expressly included under a Specification. Customer agrees its purchase of the Professional Services under any Statement of Work is based on the Specification in the Statement of Work, and is not inclusive of or contingent upon any oral or written statements made outside of the Specification regarding functionality or features of the Professional Services or otherwise.
4. Acceptance
Upon completion of the applicable Professional Services, we will, as applicable: (a) share the completed output or deliverable agreed in the Specification with Customer; and/or, (b) at Customer’s request, demonstrate the Professional Services adherence to the Specification to Customer. Customer is fully responsible for reviewing and testing all Professional Services performed by us pursuant to the Specification. Customer shall promptly provide us with written notification of acceptance of the Professional Services; however, failure to reject any portion of the Professional Services in the timeframe set forth below will be deemed acceptance (“Acceptance Process”). If Customer, in its reasonable and good faith judgement, determines that any submitted portion of Professional Services does not meet the Specification, Customer must notify us in writing within five (5) business days after our delivery or submission of the Professional Services, specifying the deficiencies in detail. We will use reasonable efforts to correct any such deficiencies and promptly resubmit the non-conforming Professional Services to Customer and the Acceptance Process shall re-apply. If the Parties determine that the Professional Services require modification, the Parties will cooperate in good faith to execute an amendment to the Specification. Acceptance of the Professional Services, including any and all portions of the Professional Services, will not affect Customer’s rights or remedies under Section 7.1 (Professional Services Warranty) below.
5. Expenses
To the extent it is applicable, Customer will, in addition to payment of agreed Fees, reimburse us for all pre-approved, reasonable travel, and out-of-pocket expenses incurred by us in connection with the Professional Services. We shall, upon request at the time of invoice, provide reasonably detailed documentation of such expenses.
6. Professional Services Proprietary Rights and License
6.1. Our Proprietary Rights. Upon Customer’s payment of Fees due, we grant to Customer a worldwide, non-exclusive, royalty-free, non-transferable, revocable licence to use, solely for its internal business purposes associated with its use of our Core Services, anything that is developed by us for Customer, including deliverables (if any) pursuant to the applicable Professional Services (“Our Professional Services Property”). This licence shall apply during the applicable Term of a Statement of Work or Order Form for the Professional Services (which shall not be longer than the applicable Term of the relevant Core Services used by you). Our Professional Services Property is proprietary to us and constitutes our confidential materials, and Customer agrees not to sublicense, distribute, sell, assign, decompile, reverse engineer, or otherwise attempt to access the source code of, modify, alter, or make derivative works of Our Professional Services Property unless otherwise expressly permitted by us in writing. We retain all right, title, and interest in our intellectual property and we retain all ownership rights (including intellectual property rights) in Our Professional Services Property.
6.2. Customer Proprietary Rights. Customer grants to us, our Affiliates and contractors a worldwide, non-exclusive, royalty-free, non-transferable licence to copy, use, disclose, and display Customer’s content and data (including Customer Data) to the extent necessary for the performance of the applicable Professional Services during the applicable Term of a Statement of Work or Order Form for Professional Services (“Customer Professional Services Property”). As between Customer and us, Customer Professional Services Property is proprietary to Customer and we agree not to sublicense, distribute, sell, assign, decompile, reverse engineer, or otherwise attempt to access the source code of, modify, alter, or make derivative works of Customer Professional Services Property unless otherwise expressly permitted by Customer in writing. As between Customer and us, Customer retains all right, title, and interest in Customer intellectual property and Customer retains all ownership rights (including intellectual property rights) in Customer Professional Services Property.
7. Warranty and Disclaimer
7.1 Professional Services Warranty. WE WARRANT THAT THE PROFESSIONAL SERVICES WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. FOR ANY BREACH OF THIS WARRANTY, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY WILL BE THE RE-PERFORMANCE OF THE APPLICABLE PROFESSIONAL SERVICES. IF WE ARE UNABLE TO RE-PERFORM THE PROFESSIONAL SERVICES IN A REASONABLE PERIOD AS WARRANTED, CUSTOMER WILL BE ENTITLED TO A REFUND OF THE FEES PAID TO US FOR THE NON-CONFORMING PROFESSIONAL SERVICES. CUSTOMER MUST MAKE ANY CLAIM UNDER THE FOREGOING WARRANTY IN WRITING TO US AT LEGALNOTICE@BIRD.COM WITHIN THIRTY (30) DAYS OF PERFORMANCE OF SUCH PROFESSIONAL SERVICES IN ORDER TO RECEIVE WARRANTY REMEDIES.
7.2 Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN SECTION 7.1 (PROFESSIONAL SERVICES WARRANTY) OF THESE PROFESSIONAL SERVICES TERMS, (A) THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS”; AND (B) TO THE GREATEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS (EXPRESS, IMPLIED, OR STATUTORY) INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IF ANY PART OF THIS SECTION 7.2 (DISCLAIMER) IS DETERMINED TO BE UNENFORCEABLE SUCH THAT WARRANTIES CANNOT BE EXCLUDED, THEN ALL SUCH EXPRESS AND IMPLIED WARRANTIES WILL, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE OF ACCEPTANCE PURSUANT TO SECTION 4 (ACCEPTANCE), AND NO WARRANTIES OR CONDITIONS WILL APPLY AFTER THAT PERIOD.
8. Term
These Professional Services Terms will apply from the date of our agreement with you to provide Professional Services as specified in your Order Form or Statement of Work and, unless terminated earlier in accordance with the terms of the General Terms and Conditions, will remain in force and effect for as long as we are performing Professional Services pursuant to any Statement of Work.
9. Non-Solicitation
Customer will not directly or indirectly solicit or recruit any of our employees involved in the performance of Professional Services to leave us for employment for at least twelve (12) months after the concluded Term of performance of the Professional Services. This restriction does not prevent Customer from employing any individual who has responded to a general public solicitation by way of advertisement or otherwise.
10. Cooperation
Customer shall in good faith reasonably cooperate with our personnel in their performance of the Professional Services including, to the extent applicable, providing our personnel sufficient resources, knowledgeable personnel of Customer’s systems and operations, and safe working facilities to enable our personnel to perform the Professional Services. If Customer’s failure to comply with this Section 10 (Cooperation) prevents or impedes us from providing the Professional Services in accordance with the Statement of Work, our obligation to provide the Professional Services will be excused until Customer remedies such failure, and we will not be responsible for any delays resulting therefrom. If any delay in the provision of the Professional Services is caused by Customer and results in additional Fees, Customer will be invoiced for and pay such additional Fees. If applicable, while on Customer premises for Professional Services, our personnel shall comply with reasonable Customer rules and regulations regarding safety, security, and conduct made known to our personnel.
11. Relationship of the parties.
We are performing the Professional Services as an independent contractor and not as an employee, agent, joint venturer or partner of Customer. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise.
12. Miscellaneous
The Parties agree there are no third-party beneficiaries under these Professional Services Terms. In the event of any conflict or inconsistency in the terms and conditions, or obligations of a Party between an applicable Statement of Work, the General Terms and Conditions and these Professional Services Terms, the order of precedence shall be: (1) applicable Statement of Work, (2) these Professional Services Terms, and (3) the General Terms and Conditions.