GREENHOUSE SOFTWARE, INC.
PROFESSIONAL SERVICES ADDENDUM
Last Updated: November 1, 2023
THIS PROFESSIONAL SERVICES ADDENDUM (THE “ADDENDUM”) IS SUBJECT TO THE MASTER SUBSCRIPTION AGREEMENT ENTERED INTO BY GREENHOUSE AND LICENSEE (THE “MSA”) AND GOVERNS THE PROVISION OF PROFESSIONAL SERVICES TO LICENSEE BY GREENHOUSE SOFTWARE, INC. (“GREENHOUSE”) AS SET FORTH IN THE APPLICABLE ORDER FORM(S), AND FORMS PART OF THE AGREEMENT. BY EXECUTING AN ORDER FORM THAT INCORPORATES THIS ADDENDUM BY REFERENCE, LICENSEE AGREES TO THE TERMS OF THIS ADDENDUM. THE INDIVIDUAL EXECUTING THE ORDER FORM FOR LICENSEE REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND LICENSEE. ANY CAPITALIZED TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE MSA.
Greenhouse and Licensee have entered into the MSA pursuant to which Greenhouse grants the right to Licensee to access and use the SaaS Services, and Licensee now desires to obtain Professional Services identified in the Order Form(s) from Greenhouse in connection with the SaaS Services. To the extent of any conflict between the terms of the MSA and this Addendum, the Addendum shall control solely as it relates to Greenhouse’s provision of Professional Services.
“Documentation” means the guides, manuals, instructions and/or other documentation provided or made available to Licensee with respect to the Professional Services.
“Professional Services Term” means the period of time during which Professional Services are available to Licensee pursuant to this Addendum as set forth in the Order Form or SOW.
“SOW Effective Date” means the last date in the signature block on an SOW, unless otherwise set forth in an Order Form or SOW.
3. PROFESSIONAL SERVICES
(a) Professional Services. Greenhouse agrees to provide the Professional Services identified in the relevant Order Form and SOW to Licensee, subject to Licensee’s payment of all applicable Fees and related expenses for the Professional Services.
(b) Travel for Onsite Professional Services. If travel and/or onsite Professional Services are contemplated under a SOW, Greenhouse requires at least two (2) weeks following the SOW Effective Date to plan and coordinate the travel schedule with Licensee.
(c) Documentation. Licensee will not remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Documentation. Licensee acknowledges that the Documentation constitutes the Confidential Information of Greenhouse, and Licensee agrees not to create any derivative work based upon the Documentation, or distribute, sell, rent, sublicense, assign, distribute, publish, lease, license or otherwise transfer or disclose the Documentation to a third party (except as otherwise expressly permitted under the MSA, this Addendum, or an Order Form).
(d) Licensee Role. Licensee acknowledges that the successful completion of the Professional Services depends on Licensee reasonably and in good faith cooperating with Greenhouse by: (i) providing personnel and other resources required for performing the Professional Services; (ii) allocating sufficient resources, timely responding to inquiries and timely performing any tasks reasonably necessary to enable the performance of the Professional Services; and (iii) providing complete, accurate and timely information, data and feedback regarding the Professional Services. Greenhouse will not be responsible for any delays in the performance of the Professional Services caused by Licensee, and any such delays may result in additional applicable Fees and an extension of the schedule pursuant to the Change Management procedures outlined in Section 5(d).
(e) Licensee Policies. When Greenhouse performs any Professional Services at a Licensee facility, Greenhouse personnel will at all times comply with Licensee’s health, safety and security policies and procedures provided in writing to Greenhouse.
4. PROPRIETARY RIGHTS
Greenhouse retains all right, title and interest, including all intellectual property and other proprietary rights therein, in and to the Documentation and all documents, data, work product, software (including object and source code) and other materials created by or on behalf of Greenhouse in connection with the Professional Services; provided, however, that Greenhouse grants to Licensee: a non-exclusive, non-transferable, non-sublicensable and worldwide license to use and make copies of the Documentation solely for Licensee’s Internal Use in connection with Licensee’s use of the SaaS Services, during the Professional Services Term. The Documentation and any authorized copies that Licensee makes are the intellectual property of and are owned by Greenhouse. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO GREENHOUSE.
5. FEES AND PAYMENT
(a) Fees. Licensee will pay Greenhouse all Fees, and any applicable Travel Expenses (as defined below), within thirty (30) days of Licensee’s receipt of an invoice, unless otherwise set forth in such Order Form or SOW. Licensee’s payment obligations are non-cancelable and non-refundable, except in the event of Licensee’s termination under Section 6(c), and all Fees are billed in advance, unless otherwise set forth in the Order Form, and are based on the Professional Services purchased and not actual usage. Licensee will reimburse Greenhouse for reasonable Travel Expenses incurred in connection with the Professional Services, which shall be billed in accordance with the procedures outlined in this Section and Section 5(b).
(b) Travel Expenses. Licensee agrees to reimburse Greenhouse for the following expenses, in addition to any expenses outlined within an Order Form or SOW, if there is travel requested as part of the Professional Services engagement, and actuals will be passed on directly to Licensee (“Travel Expenses”): (i) airfare: round trip to designated Licensee location (standard economy fare class, business class for transcontinental flights of 8+ hours); (ii) reasonable accommodation: mid-tier hotel at best available rate for a standard room within a reasonable distance for travel to Licensee office via the means noted below; (iii) on-site transportation: most reasonable, safe transportation available (e.g., Lyft, Uber, Taxi or standard class rental car); (iv) meals and other business-related expenses incurred for the duration of the engagement: per diem allowance as specified in the SOW. If Greenhouse has incurred Travel Expenses and Licensee cancels or reschedules an engagement requiring Greenhouse to cancel or reschedule travel, Greenhouse will invoice Licensee for the cost of any travel adjustments, as well as a daily “Travel Delay Fee” as outlined in the SOW. Upon completion of the Professional Services engagement, or termination of the applicable Order Form, whichever is earlier, Greenhouse shall provide Licensee with itemized documentation of Travel Expenses as described above, and will promptly send Licensee an invoice detailing the Travel Expenses.
(c) Overdue Fees. Greenhouse may charge Licensee interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, on any Fees for Professional Services or Travel Expenses not received within fifteen (15) days of the date such payment was due. Additionally, in the event any Fees for Professional Services are more than fifteen (15) days overdue, Greenhouse may suspend its performance of the Professional Services, require full payment before Greenhouse resumes performance, and such delay may result in additional applicable Fees and an extension of the schedule pursuant to the Change Management procedures outlined in Section 5(d).
(d) Change Management. Any material changes to the scope of services outlined in an SOW, including, but not limited to, extensions of the service period, modifications to the timeline, scope of sessions or services, delays caused by Licensee, suspension of services due to Licensee’s nonpayment, or a lapse in Licensee’s SaaS Services subscription(s) may require the Parties (in Greenhouse’s sole discretion) to renegotiate the scope of services, duration of the service period, and Fees associated with the Professional Services provisioned under the SOW prior to delivery of the material changes. Additionally, Licensee’s project may be returned to the services queue pending an executed amendment to the SOW.
(e) Taxes. Greenhouse Fees and Travel Expenses are exclusive of any taxes, levies, tariffs, duties or other governmental assessments of any nature, such as but not limited to, sales, use, value-added, and withholding taxes (collectively, "Taxes"). Licensee is responsible for paying all Taxes associated with the Fees. If Greenhouse is required to pay or collect Taxes for which Licensee is responsible under this Section 5(e), Greenhouse will include Taxes on the invoice to Licensee.
6. TERM AND TERMINATION
(a) Term of this Addendum. This Addendum takes effect on the date the Parties execute an Order Form incorporating this Addendum, and will remain in effect until all applicable Order Forms for Professional Services have expired or been terminated.
(b) Term of each SOW. Unless otherwise stated in an Order Form or SOW, the Professional Services Term shall commence as of the SOW Effective Date and shall expire upon the earlier of: (a) completion of the Professional Services; or (b) one (1) year from the date of the Order Form into which this Professional Services Addendum is incorporated.
(c) Termination. If either Party commits a material breach or default in the performance of any of its obligations under this Addendum or an SOW, then the other Party may terminate the corresponding scope of services under such SOW, provided that the terminating Party gives the breaching or defaulting Party written notice of termination specifying the underlying breach or default within thirty (30) days of discovery of such breach or default, and such breach or default remains uncured thirty (30) days after the breaching or defaulting Party receives the notice. For the avoidance of doubt: (i) a breach or default under this Addendum or an SOW shall not entitle either Party to terminate the MSA or any SaaS Services subscriptions; and (ii) if a SOW contemplates multiple services, a breach or default related to one section of the scope of services shall not entitle either Party to terminate the entire SOW, just the portion of the SOW related to the corresponding scope of services (e.g., implementation, data migration).
(d) Effect of Termination. If Greenhouse terminates an SOW (or a portion of an SOW) pursuant to Section 6(c), any unpaid Fees for the Professional Services purchased pursuant to such SOW (or portion of such SOW), as reflected in the applicable Order Form, will become immediately due and payable to Greenhouse. If Licensee terminates an SOW (or a portion of an SOW) pursuant to Section 6(c), Greenhouse will provide Licensee with a pro-rated refund of prepaid Fees for the Professional Services purchased pursuant to such SOW (or portion of such SOW), as reflected in the applicable Order Form, from the date of termination. In no event will termination of the SOW relieve Licensee of any obligation to pay Fees applicable to the period prior to the date of termination.
(e) Survival. All terms and provisions of this Addendum which by their nature are intended to survive any termination or expiration of this Addendum, will so survive.
7. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (a) it has the right, power and authority to enter into this Addendum and to grant the rights granted hereunder and to perform all of its obligations hereunder; (b) the execution of any Order Form(s) incorporating this Addendum by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of the Party; (c) when any Order Form incorporating this Addendum is executed and delivered by both Parties, this Addendum will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (d) it will abide by all applicable federal, state and local laws and regulations in its performance hereunder.
Greenhouse additionally represents and warrants that it will perform any Professional Services provisioned under this Addendum in a professional and workmanlike manner consistent with industry standards. Licensee shall notify Greenhouse in writing within thirty (30) days if any Professional Services fail to conform to the foregoing warranty. Greenhouse shall, at Greenhouse’s election and as Licensee’s exclusive remedy and Greenhouse’s sole liability, re-perform or issue a refund for the Fees paid for such non-conforming Professional Services. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND GREENHOUSE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROFESSIONAL SERVICES, INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. GREENHOUSE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. GREENHOUSE DOES NOT WARRANT THAT THE PROFESSIONAL SERVICES WILL BE ERROR-FREE, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR THAT THE PROFESSIONAL SERVICES WILL WORK WITHOUT INTERRUPTIONS.