1. Applicability and Fees. This Addendum applies to any Professional Services provided by ZOLL regardless of whether specifically listed in an Order that has not expired or been terminated in accordance with the Agreement. Fees for Professional Services are set forth in the Order for such Professional Services (the “Professional Services Fees”).
2. Professional Services.
2.1. ZOLL Obligations. ZOLL shall provide those installation, project management, training and other professional services (I) described in, and in accordance with, any Order or (ii) not described in an Order or SOW but provided at no additional cost in connection with a Product listed in any Order or SOW (the “Professional Services). In Section 1 of the Terms and Conditions, identified Professional Services has the foregoing meaning. Professional Services may include Managed Services. “Managed Services” are the routine and ongoing administration of the ASP Services, such as adding, modifying or deactivating values configured during initial implementation; mapping and extract configuration; extract transmissions to a designated location; and minor customizations to configurations in the aggregate not requiring more than four hours per month or other maximum of which ZOLL notifies Customer at least 60 days in advance. Managed Services do not apply to Third Party Products or Services.
2.2. Customer Obligations.
2.2.1. Access. Customer shall at its own expense provide or make available to ZOLL access to the Customer’s premises, systems, telephone, terminals and facsimile machines and all relevant information, documentation and staff reasonably required by ZOLL to enable ZOLL to perform the Professional Services. If Customer has elected to receive Managed Services, then Customer shall designate in writing two to three of its representatives who have the authority to request and negotiate changes to the scope and other terms of the Managed Services (“Customer Representatives”). Customer shall be responsible and liable for changes to the Managed Services requested by any Customer Representative. At Customer’s request, ZOLL may grant administrative rights, including database access rights, to Customer’s representatives, subject to the terms and conditions of this Agreement, when Customer has elected to receive, and is receiving, Managed Services or otherwise.
2.2.2. Maintenance of Access. Customer is responsible for maintaining the conditions of access specified above and in any SOW. ZOLL may suspend its obligations during such period that such conditions of access are not maintained and Customer agrees to reimburse ZOLL for any reasonable costs incurred as a result of such suspension at its then current time and materials rates.
2.2.3. Timeliness, Cooperation and Specifications. Customer agrees to perform its obligations hereunder (including the SOW) in a timely manner and shall co-operate and provide ZOLL with requested information to enable ZOLL to perform the Professional Services. To the extent that ZOLL is performing work in accordance with specifications provided by Customer, Customer shall be solely responsible for compliance with all laws and regulations.
3. Extension of Time.
3.1. Delay. Customer acknowledges that time frames and dates for completion of the Professional Services as set out in the SOW are estimates only and the ability to meet them is influenced by a range of factors including: (a) the developing nature of the scope of work; (b) the performance of third party contractors involved in the process; (c) the contribution of resources by the Customer; and (d) times of response by and level of co-operation of Customer. Obligations as to time are therefore on a “reasonable efforts” basis only and ZOLL shall not be liable for failure to meet time frames or completion dates unless solely due to negligence of ZOLL, and its liability will be limited to the Professional Services Fees paid for the deficient Professional Services. If Customer fails to schedule installation in connection with any Order within 6 months from the effective date of such Order, or postpones or cancels a scheduled installation with less than 30 days notice to ZOLL or Customer requests a change in the timing or duration of the Professional Services with less than 30 days' notice to ZOLL, then ZOLL may charge, and Customer shall pay, an additional installation fee plus any additional costs incurred as a result (including, without limitation, a $200 travel change fee to cover increased travel costs as a result of the rescheduling).
3.2. Changes. Customer understands that ZOLL’s performance is dependent in part on Customer’s actions. Accordingly, any dates or time periods relevant to performance by ZOLL hereunder will be appropriately and equitably extended to account for any delays resulting from changes due to Customer’s acts or omissions. If either party proposes in writing a change to the scope, timing, or duration of the Professional Services, the other party will reasonably and in good faith consider and discuss with the proposing party the proposed change and a revised estimate of the costs for such change. If Customer elects to have ZOLL develop custom software, Customer agrees that the functionality provided by the custom software is not essential to Customer's use of the Software. If Customer does not use all of the Professional Services purchased, the paid Professional Services Fees directly attributable to such unused Professional Services will be credited. Nothing in this Section 3.2 shall be deemed to increase the limitation on liability set forth in the Agreement.
3.3. Notification. Where in ZOLL’s reasonable opinion there is likely to be a delay in the provision of Professional Services under any SOW because of a cause beyond the reasonable control of ZOLL (including default or delay of Customer in performing its obligations), ZOLL will: (a) notify Customer of the circumstances of the delay; (b) give information about the likely effect of the delay and develop, at the Customer’s expense, a strategy to manage the consequences of the delay; (c) request a reasonable extension of time; and (d) submit to Customer a statement of the variations to the SOW resulting from the delay.
4. Warranty. Subject to Customer’s payment of the Fees, ZOLL warrants that any Professional Services provided to Customer will be performed with due care in a professional and workmanlike manner. ZOLL shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 4, perform again the Professional Services that gave rise to the breach or, at ZOLL’s option, refund the Professional Services Fees paid by Customer for the Professional Services which gave rise to the breach. The availability of any remedy for a breach of the warranty set forth in this Section 4 is conditioned upon Customer notifying ZOLL in writing of such breach within 30 days following performance of the defective Professional Services, specifying the breach in reasonable detail. The warranty set forth in this Section 4 is qualified in its entirety by, and subject to, Section 3 of the Terms and Conditions.
5. Ownership and License. ZOLL shall retain all right, title and interest in and to the ZOLL Property. Provided that Customer is not in breach of any material term of the Agreement or any SOW, ZOLL grants Customer a non-exclusive, non-transferable license, without rights to sublicense, to use the ZOLL Property that is incorporated into deliverables delivered pursuant to an or Order (each, a “Deliverable”), solely for Customer’s own internal business purposes in connection with the use of the Deliverable and the Software