Clause library · MacFarland Painting

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The most critical success factor in completing this type of engagement is a comprehensive Project Management function. This is a complex project, with participation required from many organizations within {{CUSTOMER}} operations. To be successful, {{CUSTOMER}} must:

- Identify an actively engaged Executive Sponsor
- Ensure ongoing Executive management support
- Establish Project leadership early and follow the chain of command and communication
- Communicate with and involve application and business stakeholders early
- Implement a clear governance model with escalation points using best practices provided by {{PROVIDER_SHORT}}
- Track project risks and issues and escalate when appropriate to ensure proper accountability and a resolution path
- Invest time in planning, so that all parties understand their roles and responsibilities

These activities will ensure a successful project, completed on time, and within budget. This will also ensure rapid issue identification, escalation and resolution. {{PROVIDER_SHORT}} will perform the following key activities:

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{{PROVIDER_SHORT}} will submit Deliverables and billable hours to Customer accompanied by an Acceptance Form{{APX_A}}. Upon such submission, Customer will review the submission for accuracy within {{ACCEPTANCE_DAYS}} business days (the “Acceptance Period”) to determine whether each item satisfies the applicable acceptance criteria. If the submission is accurate, Customer will furnish a written acceptance confirmation to {{PROVIDER_SHORT}} via the Acceptance Form prior to the end of the Acceptance Period. For any item in question, Customer will indicate the detailed reasons for such rejection on the Acceptance Form and return it to {{PROVIDER_SHORT}} (a “Rejection Notice”) within the Acceptance Period.

Upon receipt of a Rejection Notice, {{PROVIDER_SHORT}} will promptly correct any defects or non-conformities to the extent required so that each item satisfies the requirements of this SoW and its acceptance criteria in all material respects. Thereafter, {{PROVIDER_SHORT}} will resubmit the corrected item accompanied by the Acceptance Form and the process set forth above will be repeated. Customer will limit its review of each resubmitted item to determining whether {{PROVIDER_SHORT}} has corrected the defects or non-conformities identified in the Rejection Notice and to the effects which those corrections have on other portions of the same submission. If Customer fails to provide a Rejection Notice prior to the end of the applicable Acceptance Period, the corresponding item is deemed accepted.

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To ensure the success of this engagement, it is critical that Customer and {{PROVIDER_SHORT}} have a clear understanding of engagement expectations. The parties will utilize the approach outlined below for managing the scope of the engagement.

Customer or {{PROVIDER_SHORT}} may propose changes to the Services under this SoW, including Deliverables, scope or any other aspect of the engagement. Changes may be appropriate based upon actual experience or as Customer better understands or redefines its requirements. In addition, changes may be necessary if Customer does not comply with any of its responsibilities or other obligations under this SoW or in the event of any deviation from any assumption, constraint, dependency or engagement scope specification contained in this SoW. The change management process for this engagement consists of the following:

- Change Initiation – All proposed changes will be forwarded to, or originated by, the {{PROVIDER_SHORT}} project manager and documented. A copy of the proposed change request will be forwarded to the Customer project manager. Change requests will be documented using the Change Request form{{APX_B}}.
- Change Validation – Only when the change request is clearly understood can the engagement team evaluate the impact of the change and determine whether the change can be accommodated. Therefore, the proposed change will be examined and discussed with the Customer contact identified in this SoW.
- Change Analysis and Impact Analysis – {{PROVIDER_SHORT}} will prepare a change analysis and impact analysis using the Change Request form. The impact analysis includes a cost and schedule impact to the engagement, if applicable. This will be reviewed with Customer for approval. If Customer wishes to approve the change, it must provide its approval within {{CHANGE_DAYS}} business days of submission of the Change Request form.
- Change Implementation – If approved, the change will be noted as “Approved” and will be incorporated into the schedule and managed for progress. If the change is not approved, the change will be noted as “Rejected” and {{PROVIDER_SHORT}} will continue to perform without regard to the proposed change (to the extent practically possible).

Possible outcomes of a change request, as may be documented in the change analysis and/or impact analysis, include the following:

# Can be accommodated within engagement resources and timelines;
# Can be accommodated but will require an extension of the schedule;
# Can be accommodated within the current schedule, but additional resources or budget will be required;
# Can be accommodated but additional resources or budget and an extension of the schedule will be required;
# Cannot be accommodated without a significant change to the engagement or it is not technically, economically or otherwise feasible.

{{PROVIDER_SHORT}} has no obligation with respect to any change requested by Customer until an appropriate written change order or other amendment to this SoW is approved and signed by Customer and {{PROVIDER_SHORT}}.

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The Services are subject to the following:

# Costs for hardware and software are not included in {{PROVIDER_SHORT}}’s fees. Our estimate is for labor only.
# Access to Customer personnel will be identified.
# Responsibility for staffing the engagement is owned by {{PROVIDER_SHORT}}.
# {{PROVIDER_SHORT}} will not be responsible for Customer delays and the consequent costs incurred. Any delay caused by any third party vendor providing services or products to Customer that impact the Services, will be considered Customer’s responsibility and an excusable delay to the extent the Services are impeded or delayed.
# Customer is responsible for the performance of its employees and agents, including any contribution they make to the Services (including Deliverables), and for the accuracy and completeness of all data, information and materials provided to {{PROVIDER_SHORT}}. {{PROVIDER_SHORT}} is not providing any warranty regarding, and is not liable for, Customer software, documentation, equipment, tools or other products or materials. {{PROVIDER_SHORT}}’s performance is dependent upon timely decisions and approvals of Customer in connection with the Services and {{PROVIDER_SHORT}} is entitled to rely on all decisions and approvals of Customer.
# The Services and resulting Deliverables may include advice and recommendations, but Customer agrees that all decisions in connection with the implementation of such advice and recommendations will be the responsibility of, and made by, Customer. {{PROVIDER_SHORT}} is not providing legal or regulatory advice.
# {{PROVIDER_SHORT}} is not providing any third-party software, tools, equipment or other third-party products or materials (“Third Party Products”) to Customer. Customer is solely responsible for the negotiation of an applicable agreement with the applicable third party from whom Customer wishes to license or acquire Third Party Products, the terms of which, including without limitation, the license, warranty, indemnity, maintenance and support terms, shall govern such license or acquisition. {{PROVIDER_SHORT}} is not providing any warranty regarding, and is not liable for, any Third Party Products.
# {{PROVIDER_SHORT}} is not responsible for any alteration or other modification made to a Deliverable by Customer or any third party (excluding any permitted subcontractors working for {{PROVIDER_SHORT}}) or for any work performed by Customer or its contractors in connection with this engagement.
# Customer will scan all Deliverables and the media on which they are delivered with a current version of an anti-virus application in an effort to detect and eliminate any virus or other software routine, code, device, mechanism or similar item that could disrupt, disable, harm or otherwise impede any program, hardware or data or otherwise interfere with operations. Customer will also maintain a current version of an anti-virus application continuously running on any system to which {{PROVIDER_SHORT}} is given access.
# Customer is responsible for the identification and interpretation of, and ensuring compliance with, any laws, statutes, rules, regulations and standards applicable to its or its affiliates’ business or operations.
# Any configuration or modification made by {{PROVIDER_SHORT}} to any third-party software or materials provided by Customer or work product incorporating such items will be subject to the ownership and other rights agreed to by Customer with the applicable third party.
# The purchase and/or license of any {{PROVIDER_SHORT}} product will be governed by the terms of a separate license or purchase agreement between the parties. {{PROVIDER_SHORT}} products cannot be licensed or purchased under this SoW.

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Within {{VERIFY_DAYS}} days after the end of each Measurement Period, Customer will deliver to {{PROVIDER_SHORT}} a statement of the Measurement Metric for that period, prepared from Customer’s books and records on a basis consistent with the Baseline and with prior periods, together with reasonable supporting detail. {{PROVIDER_SHORT}} will invoice the resulting fee following delivery of each statement.

Not more than once per twelve (12) month period, {{PROVIDER_SHORT}} may, on reasonable notice and during normal business hours, review (directly or through an independent accountant bound by confidentiality) the books and records of Customer solely to the extent required to verify the Measurement Metric. If a review reveals an underpayment of more than five percent (5%) for any Measurement Period, Customer will bear the reasonable cost of the review in addition to paying the shortfall.

If Customer disputes a computed fee, the parties will first attempt in good faith to resolve the dispute between the Engagement Contacts within fifteen (15) business days. Amounts not in dispute remain payable when due. If the parties cannot agree, the dispute will be referred to an independent accounting firm acceptable to both parties, whose determination of the Measurement Metric will be final, with fees of that firm shared equally.

If this SoW terminates during a Measurement Period, the fee for that period will be computed on the Measurement Metric through the termination date against a Baseline pro-rated for the same portion of the period.{{TAIL_SENTENCE}}

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This SoW may be executed in any number of counterpart copies, each of which will be deemed an original, but which taken together will constitute a single instrument. The parties expressly authorize the use of facsimile counterparts or delivery by other electronic device as a valid method of execution; however, the parties agree to cooperate in good faith to provide each other with a fully executed original of this SoW within five (5) calendar days of any counterpart execution. This SoW together with {{AGREEMENT}} (i) is the complete and exclusive agreement between {{PROVIDER_SHORT}} and Customer with regard to its subject matter, and supersedes all prior oral or written proposals, agreements, representations and other communications between the parties with respect to the Services described in this SoW; and (ii) will apply in lieu of any different, conflicting or additional terms and conditions which may appear on any order or other document submitted by either party.

IN WITNESS WHEREOF, the parties hereto have caused this SoW to be executed by their duly authorized representatives as of the Effective Date set forth on the first page of this SoW.