These Professional Services Terms and Conditions (“PS Terms”), together with any written order, quotation, or similar transactional document (“Order Documentation”) and applicable Schedules (collectively, the “Agreement”), govern the provision of services (the “Professional Services”) by the OpenText entity set forth on the applicable Order Documentation (“OT” or “We” or “Us”). In the event of a conflict between the terms of this Agreement, the Order Documentation will prevail over these PS Terms and applicable Schedules.

By accepting the Order Documentation referencing the PS Terms, You are entering into a legally binding contract with OT as of the date of the Order Documentation (the “Agreement Effective Date”) and You agree to be bound by and abide by the Agreement.  If You are entering into this Agreement on behalf of a legal entity, You represent and warrant that You have the authority to bind such entity, in which case the terms “You” and “Your” as used herein will refer and apply to such entity.

1. SCOPE. Schedules A through L attached hereto (each individually, a “Schedule”) describe the scope of the Professional Services to be performed as a part of each Professional Services offering. The Order Documentation will specify the applicable Professional Services offering being provisioned to You, which shall incorporate the terms of the corresponding Schedule(s) into the Agreement. Any Schedules corresponding to Professional Services not mentioned in the Order Documentation shall have no effect on the Professional Services provided to You.

You and OT shall cooperate in good faith to complete the Professional Services in a timely and professional manner. You acknowledge and agree that any timelines provided for the completion of the Professional Services in the Order Documentation are a non-binding estimate by OT. The specific scheduling of any milestones or any activity set forth in an applicable Schedule shall be completed via email between You and OT. You acknowledge and agree that Your request to schedule any milestone or activity shall be made in writing to OT not less than fourteen (14) days prior to the requested date. You acknowledge that Your failure to adhere to a Schedule or perform Your Responsibilities (as set forth in the applicable Schedule below), failure to provide timely access to facilities, equipment, technology, or failure to provide complete and accurate information may delay completion of the Professional Services. If You confirm the start date of any milestone or activity but re-schedule or cancel such start date within ten (10) calendar days of such start date, OT reserves the right to (a) invoice You (and You agree to pay such invoice) for OT’s actual costs incurred as a result of such re-scheduling or cancellation if OT, after making commercially reasonable efforts to do so, is unable to re-allocate the scheduled consultant(s) to another engagement during the scheduled dates. OT shall not be liable for any delays or inability to complete the Professional Services to the extent caused by Your non-compliance.  Furthermore, OT shall not be liable for any delays caused by time needed to review Your policies, or non-performance to the extent caused by OT’s inability to comply with any such policies. Subject to OT’s compliance with the confidentiality provisions stated herein, nothing in this Agreement shall restrict or limit OT from providing services which may be similar to the Professional Services to any other entity in any industry.

All Professional Services are to be completed remotely unless otherwise agreed in writing. The manner and means used by OT to perform the Professional Services are in the sole discretion and control of OT. OT may make use of subcontractors to perform any of its obligations under this Agreement, but OT will remain responsible for the performance of its subcontractors.

2. ACCEPTANCE. Upon completion of the Professional Services by OT, You shall have three (3) business days to reject the Professional Services, before the Professional Services shall be deemed accepted by You. If You reject the Professional Services, the parties shall mutually attempt to resolve Your concerns in good faith.
   
   
3. FEES. You are responsible for paying OT or a third party authorized by OT to resell the Professional Services to You (a “Reseller”), as applicable, the fees for performance of the Professional Services without setoff or deduction. Unless otherwise stated in the Order Documentation: (a) OT or a Reseller, as applicable, will invoice You in advance for the fees for the Professional Services; and (b) all fees are guaranteed and non-refundable. If the Professional Services are performed onsite, You shall be required to reimburse OT for reasonable costs of travel and associated expenses (a) directly as set forth in an invoice from OT or (b) through payment to a Reseller from whom You purchased the Professional Services. Unless otherwise stated in the Order Documentation, all payments made directly to OT are due within forty-five (45) days of date of invoice. OT reserves the right to suspend or terminate the Professional Services for late or nonpayment including, but not limited to, an instance where you have paid a Reseller for the Professional Services, but the Reseller has not remitted payment to OT. Any such suspension or termination will not relieve You of Your obligation to pay the fees under the Agreement. You acknowledge and agree that the fees provided in the Order Documentation are subject to change where required by operation of the change management process and any additional fees incurred are payable per this section upon issuance of a CO (as defined in Section 4 (Change Management) below). When You purchase the Professional Services directly from OT, any portion of the fees not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid, and You shall bear all of OT’s costs of collection of overdue fees, including reasonable attorneys’ fees.
   
   
4. CHANGE MANAGEMENT. After the Agreement Effective Date, any proposed changes to the Professional Services will require a mutually executed, written change order (“CO”). The CO will describe the change requested, the rationale for the requested change, and the effect the change will have on the Professional Services, including any modifications to scheduled milestones or activities. Notwithstanding the foregoing and if You fail to meet the Assumptions or Your Responsibilities (as set forth in the applicable Schedule), OT may issue a change order (“OT CO”) that may include additional fees, schedule or milestone changes, or other material modifications as required by OT in its sole discretion to complete the Professional Services. If You do not agree to the OT CO, then OT may terminate this Agreement immediately upon written notice to You without liability.
   
   
5. YOUR DATA. You shall implement and maintain adequate policies and procedures and physical and technical barriers restricting OT’s access to Your data (“Your Data”) beyond that which is necessary to perform the Professional Services. You represent and warrant that any access to Your Data provided by You to OT pursuant to this Agreement shall be given in accordance and compliance with all applicable laws and regulations, including data privacy laws and regulations including more specifically the EU General Data Protection Regulation. No later than seven (7) days after the Agreement Effective Date, You shall provide OT with copies of Your applicable data security policy and any other policies with which OT may be required to comply in the performance of the Professional Services. Where OT cannot or will not comply with any policy in part or in its entirety, OT may terminate this Agreement without liability within thirty (30) days of receipt of such policies by OT.
   
   
6. TERM AND TERMINATION. The Agreement commences upon the Agreement Effective Date and shall terminate upon Your acceptance of the Professional Services pursuant to Section 2 (Acceptance). Notwithstanding the foregoing, (i) where this Agreement includes Schedules C, E, G, and/or L, the Agreement will automatically terminate on the one-year anniversary of the Agreement Effective Date and such Schedules are not subject to Your acceptance of the Professional Services and (ii) where this Agreement includes Schedule K, the Agreement will automatically terminate on the six (6) month anniversary of the Agreement Effective Date and such Schedule is not subject to Your acceptance of the Professional Services. Any hours of Professional Services not utilized by You upon termination of this Agreement expire at that time and no refund or compensation will be provided to You for your failure to utilize those hours.
   
   
7. CONFIDENTIAL INFORMATION. “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) which: (a) is marked as confidential or proprietary by the Disclosing Party; or (b) the Receiving Party should reasonably understand to be confidential. Each Disclosing Party may disclose to the Receiving Party Confidential Information pursuant to the Agreement.  Each Receiving Party agrees, for the term of the Agreement and for three (3) years after such term, to hold Disclosing Party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties (other than to affiliates and to professional advisers who are bound by appropriate written obligations of confidentiality) unless authorized to do so by Disclosing Party, and not to use such Confidential Information for any purpose except as expressly permitted hereunder.  Each Receiving Party agrees to take reasonable steps to protect Disclosing Party’s Confidential Information from being disclosed, distributed, or used in violation of the provisions of this Section 7.  The foregoing prohibition on disclosure of Confidential Information shall not apply to any information that: (i) is or becomes a part of the public domain through no act or omission of Receiving Party; (ii) was in Receiving Party’s lawful possession without confidentiality obligation prior to the disclosure and had not been obtained by Receiving Party either directly or indirectly from Disclosing Party; (iii) is lawfully disclosed to Receiving Party by a third party without restriction on disclosure; (iv) is independently developed by Receiving Party or its employees or agents without use of Disclosing Party’s Confidential Information; or (v) is required to be disclosed by Receiving Party as a matter of law or by order of a court or by a regulatory body, provided that Receiving Party promptly notifies Disclosing Party (where lawfully permitted to do so) so that Disclosing Party may intervene to contest such disclosure requirement and/or seek a protective order or waive compliance with this Section 7.  Each Receiving Party is responsible for any actions of its affiliates, employees, and agents in breach of this Section 7.
   
   
8. INTELLECTUAL PROPERTY OWNERSHIP. OT and its licensors are and will remain the sole and exclusive owners of all right, title, and interest in and to the Professional Services (including any and all software used to provide the Professional Services and all graphics, user interfaces, logos, and trademarks arising in the provision of Professional Services), any documentation provided by OT, and any data arising from the Professional Services distinct from Your Data, including all derivative works of each of the foregoing, and all rights (including goodwill and common law rights) under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights to each of the foregoing (“Intellectual Property Rights”). This Agreement does not grant You any Intellectual Property Rights in or any license to the Professional Services or any of its components or documentation, except to the limited extent that this Agreement specifically sets forth such rights.  OT and its licensors reserve all rights not expressly granted to You in this Agreement.

In the course of receiving the Professional Services, You may provide OT reports, comments, suggestions or ideas relating the Professional Services (“Feedback”). You agree that Your provision of Feedback does not give You any Intellectual Property Rights or any other right, title, or interest in or to any aspects of the Professional Services, OT products, or OT materials, even if such Feedback leads OT to create new Professional Services, OT products, or OT materials. You agree to provide OT any assistance reasonably required to document, perfect, and maintain OT’s rights in and to such Professional Services, OT products, or OT materials. OT shall have no obligation to treat such Feedback as Your Confidential Information or trade secret information. No representations, warranties, or indemnities as may be granted by either party to the other under this Agreement shall apply to Feedback.

9. FORCE MAJEURE. OT does not control access to Your Data or environment. Rather, such access depends in large part on the performance of internet services and technology provided or controlled by third parties and the public internet infrastructure, as well as on other events beyond OT’s control.  At times, the action or inaction of parties or systems not controlled by OT or other events beyond OT’s control can impair, disrupt, or delay OT’s ability to provide the Professional Services to You.  Notwithstanding anything to the contrary in this Agreement, OT disclaims, and You shall not hold OT responsible for any and all liability resulting from or related to such actions or events, including (without limitation) acts of God, acts of governmental authority, unavailability of third-party communication facilities or energy sources, fires, transportation delays, or any cause beyond the reasonable control of OT.
   
   
10. NOTICE. Except as otherwise specified in this Agreement, all notices sent to OT are required to be in writing and are considered effective five (5) days after mailing, when sent via certified mail, return receipt requested and postage prepaid to: 385 Interlocken Crescent, Suite 800, Broomfield, Colorado 80021, Attention: Legal Department with a copy of the notice sent to OT via e-mail at smbclegal@opentext.com. By providing Your email address to OT or a Reseller, You agree to receive all required notices from OT electronically to that email address.  Such notices are effective upon being sent to the email address.  It is Your responsibility to notify OT or the applicable Reseller of any change to Your email address.  Notices are also effective to You five (5) days after mailing, when sent via certified mail, return receipt requested and postage prepaid to Your address on any Order Documentation.
    
    
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OT OR ITS AFFILIATES OR LICENSORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (B) LOSS OF GOODWILL OR REPUTATION; (C) INTERRUPTION OR DELAY OF THE SERVICES; (D) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA OR BREACH OF DATA OR SYSTEM SECURITY; (E) COST OF REPLACEMENT GOODS OR SERVICES; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER OT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF OT AND ITS AFFILIATES FOR ALL CLAIMS IN CONNECTION WITH ANY ORDER DOCUMENTATION EXCEED THE TOTAL AMOUNT OF FEES PAID TO OT UNDER THE APPLICABLE ORDER DOCUMENTATION GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND IS NOT CUMULATIVE WITH ANY WITH ANY OTHER PAYMENTS MADE BY YOU TO OT. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION APPLY WHETHER SUCH CLAIMS ARISE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.

12. WARRANTIES. OT warrants that it will perform the Professional Services in a professional and workmanlike manner, consistent with industry standards. Your sole remedy and the sole obligation of OT for breach of the foregoing warranty shall be for OT to re-perform the non-conforming portion of the Professional Services. EXCEPT AS EXPRESSLY STATED ABOVE, THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND OT EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
    
    
13. GENERAL PROVISIONS. The Agreement shall be governed, construed, and enforced in accordance with the laws of Delaware. Unless otherwise agreed between You and OT, work shall be performed during regular business hours based on the location of where OT personnel providing the Professional Services reside from Monday through Friday excluding any public holidays. In addition to any termination rights in the Agreement, You acknowledge and agree that OT shall have a right to notify law enforcement and terminate the Professional Services if, during the performance of the Professional Services, OT (a) observes information that, in the opinion of OT, may constitute child pornography, (b) believes in its opinion that continued performance of the Professional Services will commit or aid and abet any crime, or (c) discovers evidence of the planning of a future crime, OT shall (i) immediately notify You of such evidence and (ii) have a right to discontinue performance of Professional Services and/or immediately terminate the Professional Services, without liability or penalty.

You will at Your own expense, defend, hold harmless and indemnify OT and its affiliates directors, officers, and employees in connection with any actual or alleged claim(s) against OT brought by a third party to the extent that the action is based upon (i) Your use of the Professional Services, or (ii) Your acts or omissions. No provision of this Agreement is intended to or shall be construed to confer upon or give to any third party any rights, remedies, or other benefits under this Agreement. This Agreement represents the entire agreement of the parties, and supersedes any prior or current understandings, whether written or oral, with respect to the subject matter of this Agreement.  Any purchase order terms which purport to amend or modify terms of this Agreement, or which conflict with this Agreement, are void. All provisions of the United Nations Convention On Contracts For The International Sale of Goods are hereby rejected by the parties and excluded from this Agreement in their entirety.