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This PROFESSIONAL SERVICES ADDENDUM TO MASTER SUBSCRIPTION AGREEMENT (the “Addendum”) is entered into as of the Addendum Effective Date, by and between Customer and ProductBoard, Inc. (“ProductBoard”) a Delaware corporation with offices at 612 Howard St., 4th Floor, San Francisco, CA 94105. Customer and ProductBoard are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
Customer and ProductBoard are party to that certain Master Subscription Agreement dated as of the Effective Date specified therein (as modified by this Addendum, the “Agreement”). The parties desire to amend certain provisions of the Agreement to add professional services on the terms and conditions set forth below. Unless otherwise specified herein, capitalized terms used in this Addendum shall have the respective meanings ascribed to them by the Agreement.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(a) The following new section entitled “Professional Services” shall be added immediately after the last section of the Agreement:
(a) Scope. ProductBoard will perform the Professional Services set forth in an Order Form executed by the Parties, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable Fees and payment terms. If either Customer or ProductBoard request a change in the scope of Professional Services, any agreed-upon changes, including changes in Fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”).
(b) Background IP. ProductBoard hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive license to access and use the Background IP, if any, that is included in a Professional Services deliverable (“Professional Services Deliverable”) solely as necessary for Customer to use that Professional Services Deliverable; it being understood that the foregoing license does not permit Customer to exploit any Background IP apart from the specific Professional Services Deliverable in which it is included.
(c) Customer Cooperation. Customer acknowledges that ProductBoard’s ability to timely deliver the Services is dependent upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to ProductBoard, on a timely basis, all information, materials, and assistance reasonably necessary for ProductBoard to perform the Services, including the Customer Property, User lists, and any additional information, material, or assistance identified in an Order Form. Customer will also appoint and actively manage the key roles identified in the statement of work relating to such Order Form. ProductBoard’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.
(d) Staffing. ProductBoard shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Service under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Services under this Agreement. ProductBoard will be responsible for the acts or omissions of its employees and contractor personnel and any delays caused by the reassignment or replacement thereof.
(e) Expense Reimbursements. Customer will reimburse ProductBoard for reasonable travel and other expenses incurred in connection with performing the Professional Services, provided that Customer approves such expenses before they are incurred.
(f) ProductBoard warrants to Customer that the Professional Services shall be performed by ProductBoard in a professional and workmanlike manner.”
(b) The “Definitions” section of the Agreement shall be amended to add the following definitions:
“Background IP” means any intellectual property, materials and other content that ProductBoard provides to Customer in connection with its performance of Professional Services that (i) was in existence prior to performance of ProductBoard’s Professional Services obligations set forth in the applicable Order Form, (ii) is conceived or developed at any time wholly independently of such Professional Services or (iii) was otherwise not specifically created for Customer.
“Professional Services” means fee-based setup, implementation, configuration, consulting, training, content development and other services (other than the Subscription Services) that ProductBoard provides pursuant to an Order Form and which is detailed in an attached statement of work.
“Services” means Subscription Services and Professional Services, but in all cases excluding Beta Services.
In addition, the phrase “Background IP” shall be added to the definition of “ProductBoard Property.”
(c) References to “Subscription Services” shall be replaced with references to “Services” in the clauses of the Agreement addressing disclaimer, limitation of liability, license to ProductBoard, indemnification by Customer, payment terms, and taxes.
This Addendum shall become effective upon the Addendum Effective Date. Except as specifically set forth herein, the Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. In the event of any conflict between the terms of the Agreement and the terms set forth in this Addendum, the terms set forth herein shall control.