Terms of Implementation
Last Updated November 24, 2021
Implementation Services Definitions.
The “Acceptance Criteria” specifies measurable outcomes that shall be used to deem a Phase of the Implementation services as Completed.
The “Deliverables” outline the primary objectives for a Phase of the Implementation services.
“Documentation” includes all records, policies, and procedures included in the Client’s food safety program, as well as any information required for Implementation, including but not limited to products, customers, suppliers, users, teams, locations, and equipment.
The “Maximum Hours” specify the time limit for Implementation services provided by Provision within a Phase.
An “Organizational Unit” is a unique location, corporate division, or any other distinct separation of the Client’s Workspace that may be used to control visibility or permissions for Authorized Users.
Capitalized terms used but not defined in these Terms of Implementation have the meanings set forth elsewhere in the Agreement.
Statements of Work.
Provision may perform Implementation Services and provide Deliverables that are not included in the then-current scope of Provision Portal provided under the Agreement. The parties will identify such Implementation Services and Deliverables and the terms and conditions relating to them a statement of work ("SOW"). Each SOW will be in the template form provided by Provision and when duly executed, will be incorporated into and subject to these Terms of Implementation. In the event of a conflict or inconsistency between any SOW and these Terms of Implementation or the Agreement, these Terms of Implementation or the Agreement will govern, as applicable; provided, however, that the provisions of the applicable SOW will prevail over these Terms of Implementation or the Agreement to the extent the SOW expressly refers to the provisions of the Terms of Implementation or the Agreement over which it prevails.
Services and Deliverables.
Services and Deliverables
Provision will use commercially reasonable efforts to deliver all items expressly identified as a deliverable in a SOW ("Deliverables") and to perform all professional services expressly set out in a SOW ("Implementation Services"). All Implementation Services will be performed remotely unless otherwise indicated in the SOW as being an on-site provided service. Unless otherwise agreed to by the parties in the SOW or in a separate written agreement or addendum to the Agreement, Provision will have no obligation to provide support and maintenance services for Deliverables.
No Assignment or Transfer of Intellectual Property.
Without limiting Section 7 of the Agreement, Provision retains all ownership and intellectual property rights in and to: (a) the Implementation Services; (b) the Deliverables; (c) anything developed or delivered by or on behalf of Provision under these Terms of Implementation or any SOW; and (d) any modifications or enhancements to (a), (b) or (c). All rights not expressly granted by Provision to Client under these Terms of Implementation or any SOW are reserved.
Provision will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Implementation Services. Provision's resources may include employees of Provision or subcontractors. The delegating or subcontracting of Provision's obligations set out in these Terms of Implementation will not relieve Provision from any obligation or liability under these Terms of Implementation.
Term and Termination; Suspension.
The Addendum Initial Term of these Terms of Implementation will become effective upon the Terms of Implementation Effective Date and the Addendum Initial Term will continue for the Term of the Agreement unless earlier terminated in accordance with the terms of the Agreement. The Addendum Term will auto renew for an Addendum Renewal Term in accordance Section 16.2 of the Agreement. For clarity, these Terms of Implementation will terminate upon any termination or expiration of the Agreement.
Each SOW will become effective on the effective date set out therein (the "SOW Effective Date") and, unless otherwise provided in the SOW, will continue for the term indicated in the SOW, unless earlier terminated in accordance with the terms of the Agreement (the "SOW Term").
In addition to Provision's termination rights set out in the Agreement, upon any breach by Client of a SOW or of any terms under the Agreement, Provision will be entitled, in its discretion, to suspend the Implementation Services under the applicable SOW until such time as such breach or default is remedied by Client.
Effect of Termination.
Without limiting Section 16.2 of the Agreement, within ten (10) days of the expiration or termination of these Terms of Implementation or any SOW, as applicable, Client will destroy or deliver to Provision all copies of the Deliverables delivered thereunder, or any portion thereof, and Provision's Confidential Information, and an officer of Client will certify to Provision such destruction or delivery. Client will pay all Fees and related expenses for the portion of Implementation Services performed or Deliverables completed as of the effective date of termination.
Phases; Deliverables and Acceptance; Repair of Defects.
For any performance obligation of Provision described as a phase in an applicable SOW (each, a “Phase”), Provision will use commercially reasonable efforts to complete such Phase on or before the end of the estimated duration specified for such Phase in the applicable SOW. Any delay in receiving Client Resources or Client's performance of Client Dependencies will cause Provision a delay in performing the Implementation Services and will result in a delay in Provision's ability to complete the Phase.
Deliverables and Acceptance.
Unless otherwise stated in an SOW, when all components of the Acceptance Criteria have been satisfied for a Phase set out in any SOW, the Phase shall be deemed accepted, or "Completed", by default. The Parties may deem a Phase Completed by mutual written agreement without satisfying all components of the Acceptance Criteria. Client may not reject any Phase or Deliverable that substantially complies with the requirements set out in the applicable SOW. If Client identifies substantial non-compliance with the Acceptance Criteria for any Deliverable within 48 hours, Provision will use commercially reasonable efforts to correct the identified deficiencies. Notwithstanding anything to the contrary in this Agreement, if Client uses any Deliverable in a production or commercial environment (e.g., “go live” with the Deliverable), Client will be deemed to have accepted such Deliverable as of the date such Deliverable was first used in such production or commercial environment.
Implementation Services may not be initiated for a Phase until any preceding Phase has been Completed, unless otherwise approved at Provision’s sole discretion.
Provision will only provide Implementation services up to the Maximum Hours limit allotted to each Phase in any SOW. If Provision has met the Maximum Hours limit before a Phase has been Completed, Client will accept the Phase “as-is”. The Client may request an extension to the Maximum Hours for the Phase; upon such request Provision shall share a non-binding proposal for the extension at its standard rates. The extension may be accepted by mutual written agreement as a Change Order (as described below) appended to any SOW, at which time, the Implementation Services shall resume.
Client will cooperate with Provision in the performance of the Implementation Services and in the development of Deliverables, including by providing access (whether onsite or remotely, as specified in the applicable SOW) to Client's personnel, systems, equipment, or communications facilities, as reasonably requested by Provision from time to time and perform other applicable customer responsibilities set out below and in a SOW ("Client Dependencies"). If Client has not performed its Client Dependencies including but not limited to providing provided all necessary cooperation or information to Provision, or Provision is otherwise denied or delayed access or information by Client, then Provision will be excused, without liability, from performing any further Implementation Services. Such failure to perform the Implementation Services resulting from Client's failures will not relieve Client from its payment obligations to Provision.
Unless otherwise set out in the applicable SOW, for each SOW, Client will:
provide timely access to all information, facilities, and systems requested by Provision for matters related to the Implementation Services;
supply, at its own risk and expense, all hardware and software required to access and use the Products and Services which meet the technical requirement specified by Provision;
provide administrator-level access to Provision to enable service delivery, installation, and configuration;
make available at no charge to Provision all Documentation, information and key Client's personnel required by Provision in connection with the Implementation Services (collectively, "Client Resources"); and
Client will log all incidents with Provision as soon as they become aware of the incident.
Any service or deliverable not specifically set out in a SOW will be considered out-of-scope and not included in the Implementation Services. The parties may request any change to the nature or scope of any Implementation Services or Deliverables then-currently provided (each, a "Change") pursuant to this Section 8.
Change Order Process.
If, after Provision's commencement of Implementation Services set out in a SOW, either party requires a Change, such party will set out the new requirements in writing and deliver such request to the other party. Following a request made by Client (or, in the case of a request made by Provision, concurrently with such request), Provision will use commercially reasonable efforts to describe in writing the estimated impact of such Change to the costs, Phases, Documentation, Client Responsibilities, and other relevant aspects of the Implementation Services. If Client agrees with such written description of the estimated impact, then the parties will negotiate in good faith a Change order setting out the detailed terms and conditions pursuant to which the Change will be implemented (“Change Order”). If Client disagrees with such written description of the estimated impact and the parties are unable to reach agreement on the impact of such proposed Change, then no such Changes to the SOW will be effective, and Provision will perform the Implementation Services in accordance with the original SOW. Client agrees that the estimated duration of any Phase may be modified by Provision at Provision's sole discretion without a Change Order.
All Implementation Services will be provided solely by digital access, remote of the Client’s physical location. The Client may request on-site and in-person Implementation Services with at least fourteen (14) days' prior written notice through a Change Order. Client will reimburse Provision for the all expenses and staff time related to on-site and in-person Implementation Services. Provision reserves the right to refuse travel, and may share a non-binding proposal for travel costs at its sole discretion.
Limitation of Liability.
NOTWITHSTANDING SECTION 11 OF THE AGREEMENT, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CLIENT UNDER THE SPECIFIC SOW OUT OF WHICH THE LIABILITY AROSE. PROVISION’S LIABILITY WILL BE FURTHER LIMITED AS PROVIDED IN THE AGREEMENT. When the Implementation services set out in any SOW have been Completed, the Client accepts its Workspace “as-is.” Provision makes no guarantees that the Workspace or Client Data will be error-free, safe, or secure, or that the Products will function without disruptions, delays, or imperfections. Any subsequent Implementation Services for upgrades, updates, maintenance or otherwise may be procured with a new SOW.
Without limiting Section 12 of the Agreement: (a) Provision will have no liability for loss or recovery of data or programs or for Client's failure to properly back-up any data or programs; and (b) Client will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Client Resources.
Fees and Expenses.
In consideration for the Implementation Services or Deliverables performed or provided to Client under these Terms of Implementation, Client will pay to Provision the amounts set forth in each applicable SOW. Unless otherwise agreed to by the parties in writing, Provision must receive all prepayment amounts listed in a SOW before the commencement of any services thereunder. Any suspension of the Implementation Services by Provision pursuant to the terms of the Agreement will not excuse Client from its obligation to make payments under the Agreement. Client agrees to pay all reasonable, pre-approved in writing, out-of-pocket expenses incurred by Provision in connection with performing the Implementation Services or delivering any Deliverables, including all reasonable travel expenses.
Upon any termination or expiration of these Terms of Implementation, provisions contained in these Terms of Implementation that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of these Terms of Implementation, including Sections 3.2, 9, 10, 11 and this Section 12 will survive.