Effective April 1, 2022
The terms set forth below (the “Professional Service Terms“) govern the provision by i-PRO Americas Inc., a Delaware Corporation (“i-PRO”), of professional services to a customer who engages i-PRO to perform the Professional Services (“Customer”) pursuant to a Statement of Work.
Capitalized terms used in these Professional Services Terms, unless defined elsewhere in this document, shall have the meaning attributed to them below in this section.
1.1. “Configurations” means modifications, enhancements, improvements, or adjustments to i-PRO Products made by i-PRO to support or adapt the Products to Customer’s planned use or network requirements.
1.2. “Customer Materials” means any content, data, materials or other property of Customer that is provided to i-PRO by Customer in relation to i-PRO’s provision of Professional Services under a Statement of Work.
1.3. “Deliverables” means any documents, report, software programs, Configurations or other tangible work product created by i-PRO for Customer to the specifications set forth in a Statement of Work.
1.4 “Documentation” means Product manuals, user guides or other documentation made available by i-PRO in relation to i-PRO Products and services and any Configurations.
1.5. “Intellectual Property” means anything that is or may be subject to an Intellectual Property Right, whether or not the same is reduced to practice, including in the case of i-PRO, the Products and Configurations thereto. Intellectual Property includes, but is not limited to, ideas, techniques, algorithms, designs, processes, procedures, methodologies, algorithms, training materials software code, tools, know-how, inventions, trademarks, and trade secrets.
1.6. “Intellectual Property Right” means any right, whether or not registered, that is or may be granted or recognized under applicable law with regard to Intellectual Property, including, without limitation, patents, copyrights, moral rights, industrial designs, trademarks, service marks, trade secrets, know-how, and other similar rights.
1.7. “Product” means a product or service made available for purchase by i-PRO or a reseller or distributor of i-PRO, including any hardware products manufactured by or for i-PRO or branded exclusively with i-PRO trademarks. Access and use of each Product is subject to the terms of the Product Terms (as hereinafter defined).
1.9. “Professional Services” means the professional consulting, implementation or configurations services to be provided by i-PRO to Customer under a SOW. For clarity, Professional Services exclude provision of Product support and any software-as-a-service or other cloud Products which are subject to the applicable terms of the applicable Product Terms.
1.10. “Statement of Work” or “SOW” means a document signed by Customer and i-PRO whereby i-PRO agrees to provide to Customer certain Professional Services and sets forth the material terms of such engagement as the same are described in Section 2.2 of these Terms.
2. Professional Services
2.1. Agreement. The SOW, together with these Professional Service Terms and the applicable Product Terms collectively constitute the “Agreement” governing the provision of Professional Services to Customer. In the event of any inconsistency or conflict between the terms contained in the various parts of the Agreement, the conflict or inconsistency shall be resolved by interpreting the documents in the following order of precedence: (i) the SOW, but only with respect to the subject matter of such SOW; (ii) these Professional Service Terms, and (iii) the Product Terms.
2.2. Statements of Work. Each SOW shall contain, at minimum, the following information: (i) a sufficiently detailed description of the Professional Services to be provided by i-PRO; (ii) the fees payable to i-PRO for such work; (iii) the schedule for the performance of the Services; (iv) a list of any applicable assumptions and dependencies on the performance of the Services; (v) the responsibilities of each party; (vi) the names, contact information and responsibilities of each party’s representatives in charge of the project described in the SOW, including at the minimum those of the project manager; (vii) the Professional Services fees; and (viii) a reference to these Terms and the Product Agreement.
2.3. Project Schedule. Any date outlined in a SOW is subject to relevant dependencies and cooperation from Customer that must be met in order to maintain the agreed upon schedule (“Project Schedule”). i-PRO and Customer shall work together cooperatively to achieve the objectives of the Services within the stated Project Schedule and Customer agrees to deliver all dependencies and Customer resources that are necessary for i-PRO to deliver the Services in accordance with the Project Schedule. If Customer fails to provide i-PRO the cooperation and resources necessary to perform the Services within the agreed Project Schedule, then the Project Schedule shall be adjusted accordingly and i-PRO reserves to the right to invoice Customer, and Customer shall pay, such additional costs and expenses as are reasonably incurred by i-PRO as a result of the delay. Further, if Customer still continues to provide the necessary cooperation and dependencies despite one or more adjustments to the Project Schedule, i-PRO shall have the right to terminate the applicable SOW upon notice to Customer without penalty of any kind and shall not be required to return any Fees paid by Customer up to that date.
2.4. Fees and Payment Terms. All fees and rates applicable to the provision of Professional Services will be set out in the relevant SOW. Unless otherwise agreed to in a SOW, all such amounts are exclusive of any sales, value added and other taxes (which shall be invoiced by i-PRO and paid by Customer in addition to the relevant i-PRO prices) and are payable in accordance with the terms of the SOW and the Product Terms. i-PRO may charge a surcharge for the provision of Professional Services during weekends, public holidays or outside of i-PRO’s extended business hours. i-PRO will invoice Customer on the timeline set forth in the SOW, or in the absence of such a provision, upon the delivery of the Configurations.
2.5. Out-of-Scope Work. i-PRO shall not be required to perform any work that is not expressly set forth in the SOW. To the extent that i-PRO nevertheless performs such out-of-scope work at Customer’s request, Customer shall pay for all such out-of-scope work on a time and materials basis at i-PRO’s then current hourly rates.
3. Inspection and Acceptance
3.1. Delivery and Acceptance. Customer shall promptly inspect each Configuration following the submission of the same to Customer by i-PRO. Each Configuration shall be deemed accepted by Customer ten (10) days following the date of delivery of the Configuration to Customer unless Customer provides i-PRO written notice during that time period that it is rejecting the Configuration for a deficiency in accordance with Section 3.2.
3.2. Deficiencies. Customer may reject a Configuration which does not materially conform to the relevant specifications set forth in the SOW (a “Deficiency”). In such event, at its own expense, i-PRO shall promptly make any necessary corrections, repairs, changes or additions to or replacements of all or any part of the Configuration so that it conforms to and performs in all material respects in accordance with the requirements set forth in the applicable SOW. i-PRO shall have a reasonable period to fix the Deficiency and shall resubmit the Configuration to Customer. i-PRO’s entire liability and Customer’s sole remedy regarding any Deficiency shall be to correct the Deficiency as set forth in this Section 3.2.
4. Ownership and limited licenses
4.1. i-PRO Property. i-PRO, together with its licensors and partners (as applicable), remains the sole owner of all rights, titles and interest, including without limitation all Intellectual Property Rights, in and to all Products, Configurations, and Documentation, including any derivatives of the foregoing and all goodwill associated therewith (collectively “i-PRO Property”). To the extent that by operation of law or otherwise any i-PRO Property may be deemed to transfer to Customer, Customer hereby irrevocably transfers, conveys and assigns in perpetuity to i-PRO any and all rights in or to the i-PRO Property and irrevocably waives all moral rights in, the i-PRO Property. Customer agrees to execute assignments or other documents reasonably necessary to vest in i-PRO the entire right, title and interest in and to the i-PRO Property as i-PRO may reasonably request. To the extent Customer provides i-PRO with feedback, ideas, or suggestions about potential improvements, additions or enhancements to the Products (“Feedback”), Customer acknowledges and agrees that i-PRO shall be the owner of all such Feedback and may use and incorporate the Feedback into the Products without any type of compensation or attribution to Customer.
4.2. Customer Property. Customer remains the sole owner of all rights, titles and interest, including without limitation all Intellectual Property Rights, in and to all the Customer Materials, including any and all derivatives thereof that may be made by i-PRO in the performance of the Services (collectively “Customer Property”). Customer grants to i-PRO a limited, non-exclusive, royalty free license to access, use, modify and distribute the Customer Property to Customer as necessary to perform the Professional Services. Nothing in these Professional Service Terms shall be deemed to, transfer or assign any right, title or interest in or to any of such Customer Property to i-PRO or any other person.
4.3. Limited Licenses from i-PRO. The licensed rights granted by i-PRO to Customer to access and use the Products shall apply and extend to all Deliverables and Configurations provided by i-PRO hereunder. Customer acknowledges and agrees that Customer shall not, and shall not encourage, assist or permit any other person to translate, deconstruct, disassemble, decompile, reverse engineer or otherwise extract any proprietary code or other underlying technologies of, or modify, any Products, Configurations, or Deliverables and Customer will not produce derivative works of any of them (or any part of them). The foregoing does not, however, prevent Customer from configuring or otherwise using standard features and options of the Product or Configuration in accordance with the relevant Documentation.
4.4. Limited License from Customer. Customer acknowledges that i-PRO may require access to or use of certain Customer Property in order to perform the Professional Services. Therefore, where necessary, Customer hereby grants to i-PRO a non-exclusive, non-transferable, non-assignable, worldwide royalty-free license during the Term to access and use the Customer Property solely to the extent necessary to perform i-PRO’s obligations under the relevant Statement of Work.
5. Term and Termination
5.1. Term. These Product Services Terms come into effect as of the effective date of each SOW and terminate upon the completion of the Services or the earlier termination of each SOW (“Term”).
5.2. Termination for Breach. Either party may terminate a SOW for (i) a material breach of these Professional Service Terms by the other party which is not cured within thirty (30) days after receipt by such party of a written notice identifying the breach; or (ii) if the other party becomes insolvent or files a petition in bankruptcy. In addition, i-PRO may terminate for Customer’s failure to collaborate with i-PRO as reasonably necessary for i-PRO to provide the Services. i-PRO shall give Customer a written notice to that effect. If, Customer’s collaboration remains inadequate following receipt of such notice, i-PRO may terminate the SOW by giving Customer a five (5) business days’ prior written notice to that effect.
5.3. Termination for Convenience. Customer may terminate a SOW for convenience by giving i-PRO at least ten (10) days’ advance written notice. In the event of any such termination for convenience, Customer shall be responsible for all Fees and expenses incurred by i-PRO up to the date of termination, as well as for any early termination fees set forth in the SOW or, if no early termination fees are specified, i-PRO’s reasonable demobilization costs associated with the termination.
5.4. Survival. Notwithstanding any such termination, the Sections which by their nature shall survive termination of the Agreement include without limitation Sections 2 and 4 – 7.
6. Limited Warranties, Limitation of Liabilities and Indemnification
6.1. i-PRO Warranties. i-PRO represents and warrants that Professional Services will be carried out in a professional and workmanlike manner with reasonable care and skill. In the event of a breach of the foregoing warranty, i-PRO shall either reperform the non-conforming Professional Services or refund the price paid by Customer for the provision of such Professional Services, at i-PRO’s sole option and cost, and as Customer’s exclusive remedy for any such breach. Customer must notify i-PRO of any warranty claim within thirty (30) days of its receipt of the non-conforming Professional Services.
6.2. Customer Warranties. To the extent Customer supplies designs, drawings, instructions and specifications to i-PRO related to the Configurations to be produced by Customer or suppliers any other content or materials in any form (“Customer Materials”), Customer warrants that such Customer Materials do not and will not infringe any third party Intellectual Property Rights. Customer further agrees that i-PRO shall have no liability in respect of any Deficiency in the Configurations arising from: (i) specifications or materials supplied by Customer, including Customer Materials; (ii) damages of any kind resulting from or related to any accident, abuse, or misapplication of Configurations by Customer, or their use in any way incompatible with these Professional Service Terms or those of the SOW or the Product Terms, or the relevant Documentation; (iii) use of Configurations in association with products or equipment not specified by i-PRO as being compatible with such Configurations; and/or (iv) Customer’s failure to comply with applicable law. Customer will indemnify, defend, indemnify and hold harmless i-PRO (including its and its affiliates’ officers, directors, employees, agents, representatives, licensors and contractors) against any damages, costs or other liability resulting from any claim, suit or other action brought against i-PRO to the extent it results from Customer’s breach of the warranty above and/or any actions or omissions of Customer set out in items (i) through (iv) above.
6.3. Disclaimers of Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PANASONIC I-PRO DOES NOT WARRANT THAT THE SERVICES OR ANY CONFIGURATIONS WILL MEET CUSTOMER’S REQUIREMENTS OR WILL BE ERROR-FREE OR SECURE.
6.4. Exclusions. IN NO EVENT SHALL PANASONIC I-PRO BE LIABLE TO CUSTOMER, UNDER ANY THEORY OF LIABILITY WHETHER UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, LOST PROFITS, LOST BUSINESS REVENUE, LOST GOODWILL, BUSINESS INTERRUPTION, OTHER ECONOMIC LOSS OR ANY LOSS OF DATA EVEN IF PANASONIC I-PRO HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. PANASONIC I-PRO’S TOTAL, AGGREGATE LIABILITY FOR ANY CLAIM ARISING UNDER THE AGREEMENT OR THE PERFORMANCE OF THE SERVICES SHALL NOT EXCEED THE AMOUNTS PAID TO PANASONIC I-PRO UNDER THE STATEMENT OF WORK GIVING RISE TO THE CLAIM.
6.5. Indemnification. i-PRO agrees to indemnify, defend and hold Customer harmless from any demands, claims suits or actions brought against Customer by an independent third party (each a “Claim”) alleging that a Deliverable produced by i-PRO, if used in accordance with its accompanying Documentation and instructions, infringes or misappropriates the intellectual property rights of such third party provided: (a) Customer promptly gives i-PRO a written notice of such Claim, (b) gives i-PRO sole control of the defense or settlement of the Claim (provided that Customer shall have the right to approve in writing any settlement that is not limited solely to the payment of damages), and (c) provides i-PRO with all reasonable cooperation and assistance that it may request regarding the defense at i-PRO’s expense. Notwithstanding the foregoing, upon becoming aware of such Claim, i-PRO may, at its expense but without obligation to do so, at its option either: (i) procure the right to continue to use the allegedly infringing item as permitted under the Agreement; (ii) modify the item to make it non-infringing without substantially compromising its principal functions; (iii) replace it with a non-infringing functional equivalent, in which case Customer shall promptly stop using the allegedly infringing item immediately; or (iv) terminate the SOW upon written notice to Customer and refund the fees paid by Customer under such SOW. i-PRO shall have no obligation to defend, settle, indemnity or hold harmless Customer to that extent that the Claim arises from or relates to Customer Property or any other materials provided to i-PRO by or on behalf of Customer.
7.1. Independent Parties. The relationship between i-PRO and Customer is that of independent contractors acting for their own account and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf unless authorized to do so in writing, or to bind the other to any legal obligation.
7.2. Force Majeure. Neither party shall be responsible for failure to perform hereunder, save for payment obligations, due to causes beyond its reasonable control, including, but not limited to strikes, lock outs or labor disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, terrorist acts, acts of god, plant breakdown, computer or other equipment failure and inability to obtain equipment, transportation issues (such as flight or train cancellations or delays), acts of governments and epidemics / pandemics.
7.3. Entire Agreement. These Terms, the Product Terms and each SOW, together with any amendments, schedules and other documents incorporated to any of these documents by reference, constitute the entire agreement between i-PRO and Customer pertaining to the Professional Services provided under each SOW. Any prior agreements between the parties pertaining to the subject matter of the Agreement are expressly voided.
7.4 Modifications. i-PRO reserves the right to modify these Professional Service Terms at any time without notice by posting an updated copy of these Professional Service Terms to this website. The Professional Service Terms in effect as of the date of each SOW becomes effective shall govern the performance of the Professional Services under such SOW.
Last Revision Date: April 1, 2022