Professional Services Terms
If Customer engages Drata for the provision of Professional Services: 1. Scope and Retention. Drata hereby agrees to provide the professional services (including any training and implementation services) (collectively, “Professional Services”) indicated on any mutually agreed upon and executed Statement of Work (“SOW”) or other written document (such as a “Description of Professional Services” on an Order Form) in exchange for the fees set forth therein (“Professional Services Fees”). Any SOW or other written document shall describe the scope, fees, nature and other relevant characteristics of any services being provided by Drata to Customer as part of the Professional Services which shall be governed by the terms of the terms of service - subscription agreement between the Parties (“Agreement”). All defined terms herein shall have the meaning ascribed to them in the Agreement unless otherwise defined herein. Drata shall not be obligated to perform any Professional Services until both Parties have mutually agreed upon and executed a SOW or Order Form with respect to such Professional Services.
2. Performance and Acceptance of Professional Services.
2.1 Drata and Customer agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a timely and professional manner.
2.2 Drata will perform the Professional Services through qualified employees and/or non-employee contractors of Drata (“Subcontractors” and together with Drata’s employees for the purposes of these Supplemental Terms, “Professional Services Personnel”).
2.3 Customer agrees to provide, at no cost to Drata, timely and adequate assistance and other resources reasonably requested by Drata to enable the performance of the Professional Services (collectively, “Assistance”). Drata, including its Subcontractors, will not be liable for any deficiency in the performance of Professional Services to the extent such deficiency results from any acts or omissions of Customer, including, but not limited to, Customer’s failure to provide Assistance as required hereunder.
2.4 In performing the Professional Services, Drata will utilize Professional Services Personnel as it deems necessary to perform the Professional Services or any portion thereof. Customer may object to Drata’s use of a Subcontractor by specifying its reasonable objection to Drata, in which case the Parties will cooperate in good faith to appoint another Professional Services Personnel to perform such Professional Services. Drata may replace Professional Services Personnel in its normal course of business, provided that Drata will be responsible for the performance of Professional Services by all Professional Services Personnel.
2.5 Drata will control the method and manner of performing all work necessary for completion of Professional Services, including but not limited to the supervision and control of any Professional Services Personnel performing Professional Services. Drata will maintain such a number of qualified Professional Services Personnel and appropriate facilities and other resources sufficient to perform Drata’s obligations under the Agreement in accordance with its terms.
2.6 Deliverables (as defined in an SOW) shall be deemed accepted by Customer in accordance with the terms of the applicable SOW or Order Form.
3. Change Orders. After execution of a SOW or Order Form, the Professional Services to be provided under that SOW or Order Form may only be changed through a change order mutually executed by the Parties (“Change Order”).
4. Consulting Fees. Customer will pay Drata the Consulting Fees as detailed or described in an Order Form or SOW.
5. Relationship of the Parties. Drata is an independent contractor and will maintain complete control of and responsibility for its Professional Services Personnel, methods and operations in providing the Professional Services. Drata will never hold itself out as an agent, subsidiary or affiliate of Customer for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Customer to Drata hereunder shall not be considered salary for pension or wage tax purposes and neither Drata nor its Professional Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Customer, unless otherwise required by law. Customer shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Professional Services any taxes, unemployment, social security or other such expenses unless otherwise required by law.
6. Warranties.
6.1 Drata hereby represents and warrants that:
(a) the Professional Services provided pursuant to the Agreement will be performed in a timely and professional manner by Drata and its Professional Services Personnel, consistent with generally-accepted industry standards; provided that Customer’s sole and exclusive remedy for any breach of this warranty will be, at Drata’s option, re-performance of the Professional Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Drata by Customer for the nonconforming portion of the Professional Services; and
(b) it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Professional Services.
6.2 The Parties hereby agree that: EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1, ALL PROFESSIONAL SERVICES AND DELIVERABLES ARE PROVIDED TO CUSTOMER “AS IS'' AND DRATA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO CUSTOMER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS THEREOF AND DRATA EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING PROFESSIONAL SERVICES AND DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. DRATA SHALL NOT BE RESPONSIBLE, IN LAW OR OTHERWISE, FOR ANY DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT CUSTOMER MODIFIES ANY DELIVERABLES IN A MANNER NOT INSTRUCTED BY DRATA. DRATA DOES NOT WARRANT THAT CUSTOMER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. FURTHER, DRATA EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN ANY DELIVERABLE AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY DRATA OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO CUSTOMER AND ANY THIRD PARTY’S USE OF THE SERVICES.
7. Rights to Deliverables; Ownership.
7.1 The Parties hereby agree that the specified Professional Services to be completed pursuant to any SOW or Order Form primarily involve the configuration of Customer’s subscription to a Service and integration of Customer data with and into one or more Services, and therefore the Deliverables are inoperative without an active subscription to a Service. As between the Parties, Drata shall solely and exclusively own all right, title, and interest in the Deliverables, including all derivatives, enhancements and modifications thereof; and Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Subject to the terms and conditions hereof, Drata grants Customer a non-exclusive, non-transferable, non-sublicensable license to use the Deliverables solely in connection with Customer’s permitted use of the Services.
7.2 A “Customer Contribution” is source code that is created by Customer in connection with the Professional Services and is specifically identified in a SOW. Customer and Drata agree that Customer retains title to Customer Contributions, and Customer hereby grants Drata a non-exclusive license to use and exercise the Customer Contributions for the performance of the Professional Services and Services.
8. Open Source. Drata may incorporate open source materials into any Deliverable. Drata will notify Customer that it is providing such open source software upon or prior to delivery, and Drata will avoid providing any open source materials that are governed by a so-called “copyleft license” that would require Customer to permit any disclosure of, distribute or make available any of Customer’s proprietary software if Customer uses the Deliverables as permitted hereunder. Any open source materials provided by Drata are licensed to Customer pursuant to the terms of the applicable open source license and not this Agreement.