This Schedule will control in case of any conflict between the terms and conditions in this Schedule and the Agreement with respect to Fortra’s Digital Guardian professional services. 1.
1. RIGHTS GRANTED & RESTRICTIONS
1.1. Fortra’s Digital Guardian will perform the Professional Services set forth in a statement of work (“SOW”) attached to the Agreement (if any). From time to time, Client and Fortra’s Digital Guardian may agree upon additional Professional Services. All such additional Professional Services shall be evidenced by a mutually executed SOW. As used herein, “Professional Services” may include education, consulting, installation, deployment or any other services as mutually agreed between Client and Fortra’s Digital Guardian.
1.2. Upon payment for Professional Services, Client has the non-exclusive, non-assignable, royalty free, perpetual, limited right to use for Client’s internal business operations anything specifically developed by Fortra’s Digital Guardian and delivered to Client under this Schedule (“Deliverables”); however, certain Deliverables may be subject to additional license terms provided in the Order Form.
1.3. Client may allow its Authorized Users to use Deliverables solely for Client’s internal business operations and Client is responsible for such Authorized Users’ compliance with the Agreement and this Schedule in such use.
1.4. Fortra’s Digital Guardian will not be liable for any delay or failure: (a) by Client to permit the access required to complete the Professional Services; (b) to perform caused by any third party software and equipment, or Client’s hardware; or (c) by Client in fulfilling its obligations hereunder which impacts Fortra’s Digital Guardian’s performance. Any such delay or failure may be subject to additional fees.
1.5. Professional Services provided may be related to Client’s license to use Software or Services owned or distributed by Fortra’s Digital Guardian which Client acquires under a separate Order Form. The Schedule(s) referenced in that Order Form shall govern Client’s use of such products.
1.6. Notwithstanding anything to the contrary in an Order Form or SOW, all Professional Services hours for time and materials engagements must be used within one-year of the effective date of the applicable Order Form or SOW. Any unused hours remaining at the end of the one-year period will be forfeited. Additionally, all fixed fee engagements or standard setup engagements shall be deemed completed upon the earlier of: (a) one (1) year from the effective date of the applicable Order Form or SOW; or (b) at the conclusion of the Transition Phase as defined by the applicable Service Specifications or SOW.
2. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
2.1. Fortra’s Digital Guardian warrants that the Professional Services will be performed in a good and workmanlike manner consistent with generally accepted industry standards. Client must notify Fortra’s Digital Guardian of any warranty deficiencies within ten (10) days from performance of the deficient Professional Services.
2.2. FOR ANY BREACH OF THE FOREGOING WARRANTY, CLIENT’S EXCLUSIVE REMEDY AND FORTRA’S DIGITAL GUARDIAN’S ENTIRE LIABILITY SHALL BE THE RE-PERFORMANCE OF THE DEFICIENT PROFESSIONAL SERVICES OR, IF FORTRA’S DIGITAL GUARDIAN CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY END THE DEFICIENT PROFESSIONAL SERVICES AND, TO THE EXTENT NOT PROHIBITED BY LAW, THIS WARRANTY IS EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.