Professional Services Agreement

Video Security & Access Control

This Professional Services Agreement (this ​“Agreement”) is made by and between MOTOROLA SOLUTIONS, INC., a Delaware corporation, on behalf of itself and its affiliates and subsidiaries (“Company”), and the systems integrator-client (“Systems Integrator”) identified in the Professional Services Statement of Work (“SOW”) as of the last date of signature of the SOW (the ​“Effective Date”). Company and Systems Integrator may each be referred to as a ​“Party” and together referred to as the ​“Parties.” 

WHEREAS, Systems Integrator desires to engage Company to perform certain professional services related to Company’s video security and/​or access control solutions;

WHEREAS, the Parties desire for Systems Integrator to purchase and resell, such professional services to its end user-customers (“End Users”) under the terms of this Agreement; 

WHEREAS, the Parties acknowledge that the commercial transaction, including ordering and payment for the professional services, will be conducted through an authorized distributor-reseller, as further described in this Agreement; and

WHEREAS, the Parties acknowledge that by executing a SOW that explicitly references and incorporates this Agreement by reference, Systems Integrator understands and agrees to be legally bound by all such terms and conditions contained herein.

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, the sufficiency of which is confirmed by each Party, the Parties covenant and agree as follows:

1. SCOPE OF SERVICES

1.1 ​“Services” means those professional services, and related deliverables, to be provided by Company to Systems Integrator for resale to End Users, the nature and scope of which are more fully described in the SOW and any applicable technical materials (such as technical manuals) provided by Company to Systems Integrator.The SOW shall define the scope of work, technical responsibilities, performance obligations, and completion/​acceptance criteria related to the Services.

1.2 Company will perform the Services as described in the SOW. At Systems Integrator’s request, Company may also provide additional services at Company’s then-applicable rates. Company may subcontract any of the work, but subcontracting will not relieve Company of its duties under this Agreement.

2. ROLES & RESPONSIBILITIES

2.1 Company’s Responsibilities. Company shall: 

( a ) perform the Services in a professional and workmanlike manner, in accordance with industry standards;

( b ) assign qualified personnel to perform the Services;

( c ) provide a final report or other deliverables as specified in the SOW; and

( d ) otherwise perform its obligations as set out in the SOW. 

2.2 Systems Integrator’s Responsibilities. Systems Integrator shall:

( a ) procure and maintain all necessary certifications, permits, licenses and/​or registrations required in connection with its resale of the Services;

( b ) provide (or help coordinate and secure) timely access to End User’s premises, systems/​products, and personnel as reasonably required for Company to perform the Services;

( c ) ensure that Company will be provided a non-hazardous work environment with adequate shelter, heat, light, and power and with full and free access to site and resources necessary to perform the Services; 

( d ) ensure that the products/​systems which are the subject of the Services are accessible and in proper condition to allow for the Services to be performed; 

( e ) provide Company all information reasonably requested pertaining to the hardware and software elements of any system as necessary for Company to perform the Services;

( f ) for technical coordination of the Services, provide Company with a single point of contact each for Systems Integrator and for End User; and

( g ) otherwise perform its obligations as set out in the SOW. 

2.3 Commercial Transaction & Distributor’s Role. Systems Integrator shall purchase the Services through an authorized distributor-reseller of Company’s products/​services (“Distributor”). Distributor’s role is to act strictly as Company’s commercial channel for the sale of the Services. For clarity, the Distributor has no responsibility for providing the Services and will therefore not have liability for technical aspects or performance.

3. TIME AND PLACE OF SERVICE

Services will be provided at the location specified in the SOW. Waivers of liability from Company or its subcontractors will not be imposed as a site access requirement. Hours and/​or schedule for provision of Services will be detailed in the SOW. 

4. WARRANTY

4.1 Each Service warranty, as applicable, is extended by Company to the original End User of the Services only and not necessarily to Systems Integrator. Any such warranty is not assignable or transferable from the original End User to any later purchaser. Where applicable, Systems Integrator will provide the original End User with the appropriate service warranty statement before the resale of the Services.

4.2 Company warrants that the Services will be free of defects in materials and workmanship under the terms and for a period as defined by the service warranty statement (as applicable) furnished with the applicable Service offering. Company may change its service warranty statements at any time by posting a notice on its website of such change.

4.3 COMPANY DOES NOT EXTEND ANY WARRANTY TO SYSTEMS INTEGRATOR. OTHER THAN WHAT IS STATED IN THE APPLICABLE SERVICE WARRANTY STATEMENTS FOR THESE SERVICES, COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4.4 Systems Integrator shall not issue any warranties, guarantees, or licenses that purport to obligate Company to any person or entity other than the applicable warranties specified herein and furnished for the Services by Company. To the extent Systems Integrator makes any warranty or representation to End Users or any other third party in respect of the Services which is not consistent with Company’s warranty, including without limitation the warranty duration, it is understood that such representation or warranty shall be made solely for Systems Integrator’s account and shall not bind Company. Systems Integrator shall indemnify and hold Company harmless from and against any claims, liabilities and expenses (including, but not limited to, attorney’s fees) asserted against, or incurred by, Company resulting from Systems Integrator making any such representation or warranty and/​or any other express or implied warranty of Systems Integrator.

4.5 In the event of Company’s breach of any applicable warranty, Systems Integrator’s sole remedy is to require Company to re-perform the non-conforming Service or to refund, on a pro-rata basis, the fees paid for the non-conforming Service.

4.6 THE LIMITED WARRANTY IN THIS SECTION IS THE ONLY WARRANTY PROVIDED BY COMPANY, AND COMPANY AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO ORAL OR WRITTEN REPRESENTATIONS MADE BY COMPANY OR AN AGENT THEREOF SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. IN NO EVENT SHALL COMPANY OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF THE FOREGOING BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR SIMILAR DAMAGES WHATSOEVER, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF SERVICES PERFORMED UNDER THIS AGREEMENT OR ACCOMPANYING WRITTEN MATERIALS, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF COMPANY OR A COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS LIMITATION WILL NOT APPLY IN CASE OF PERSONAL INJURY ONLY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.

5. FEES; ORDERING; INVOICING & PAYMENT

5.1 Fees. The fees for the Services, including fee rates, ranges, timeline, and/​or schedules, as applicable, (collectively, the ​“Fees”) shall be referenced in the associated SOW. Systems Integrator shall be responsible for paying applicable Fees to the Distributor. 

5.2 Purchase Orders. Each request by Systems Integrator to engage Company to provide Services will be made by submitting a duly completed purchase order, which references the executed SOW, to Distributor’s order management team or otherwise pursuant to a process determined by Distributor. Company shall not commence the Services until it has received and accepted a valid and verifiable purchase order from the Distributor which references the applicable SOW. This Agreement and SOW will govern Company’s provision of the Services to System Integrator to the exclusion of any term or condition which may appear on System Integrator’s purchase order to Distributor, Distributor’s purchase order to Company, or other documentation. In the event of any conflict between the terms or conditions of this Agreement and those of any purchase order, the terms and conditions of this Agreement will prevail.

5.3 Invoicing &Payment. Distributor will invoice Systems Integrator the applicable Fees. Systems Integrator’s obligations with respect to payment of invoices are between Systems Integrator and Distributor, as set forth in the relevant commercial agreement between Systems Integrator and Distributor. Company shall be compensated for the Services by the Distributor as per the terms of a separate agreement between Company and the Distributor.

5.4 Additional Services. Any services performed by Company which are outside the scope of this Agreement (including the applicable SOW) at the direction of Systems Integrator will be considered additional services which may be subject to additional charges. Any agreement to perform additional services will be reflected in a separate written agreement.

LIABILITY; ADDITIONAL EXCLUSIONS; INDEMNITY 

6.1 IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR USE, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY RECEIVED BY COMPANY FOR THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM. ADDITIONALLY, COMPANY WILL HAVE NO LIABILITY FOR: (A) INTERRUPTION OR FAILURE OF CONNECTIVITY, VULNERABILITIES, OR SECURITY EVENTS; (B) DISRUPTION OF OR DAMAGE TO SYSTEMS INTEGRATOR’S, END USERS’, OR THIRD PARTIES’ SYSTEMS, EQUIPMENT, OR DATA, INCLUDING DENIAL OF ACCESS TO USERS, OR SHUTDOWN OF SYSTEMS CAUSED BY INTRUSION DETECTION SOFTWARE OR HARDWARE; (C ) AVAILABILITY OR ACCURACY OF ANY DATA AVAILABLE THROUGH THE SERVICES, OR INTERPRETATION, USE, OR MISUSE THEREOF; (D) TRACKING AND LOCATION-BASED SERVICES; OR (E) BETA SERVICES.

6.2 Voluntary Remedies. Company is not obligated to remedy, repair, replace, or refund the purchase price for the disclaimed or excluded issues in the Agreement or Section 6.1 above, but if Company agrees to help resolve such issues, Systems Integrator will reimburse Company for its reasonable time and expenses, if applicable.

6.3 Indemnity. Systems Integrator will indemnify, defend and hold Company harmless against all claims, losses, liabilities, damages and costs (including reasonable attorneys’ fees) arising out of or resulting from any act or omission of Systems Integrator or any of its employees, agents, contractors or representatives in relation to this Agreement or the Services contemplated hereunder. In no event shall Company be liable for, and Company expressly disclaims responsibility for, any work performed by Systems Integrator or its employees, agents, contractors or representatives.

7. CONFIDENTIALITY.

7.1 ​“Confidential Information” means all information directly or indirectly disclosed by the applicable Discloser to Recipient on or after the Effective Date, in any format, and includes the existence, terms and conditions of this Agreement, each purchase order, any price list (current or historic), and also includes all notes, summaries, compilations and other derivatives prepared by Recipient that contain, reflect or are wholly or partially based upon information provided to it by Discloser hereunder. Confidential Information may include compilations, concepts, data, documents, designs, diagrams, finances, ideas, intellectual property, inventions, know-how, marketing, notes, object codes, opportunities, plans, processes, procedures, products, promotions, prototypes, research, source codes, specifications, strategies, technology, timetables, and other material respecting customers, partners, personnel, and third parties. Notwithstanding the foregoing, Confidential Information does not include information that, except as a direct or indirect consequence of a wrongful or tortious act including the violation of a confidentiality obligation owing to Discloser: (a) is in or enters the public domain; (b) was known to Recipient at the time of its receipt from Discloser (and not otherwise subject to an existing obligation of confidentiality owing to Discloser); (c ) is received by Recipient from a third party with the right to make such disclosure; or (d) was independently developed by Recipient. 

“Discloser” means, in any given situation, the Party that is disclosing or has disclosed Confidential Information hereunder to the other Party.

“Recipient” means, in any given situation, the Party to which Confidential Information is or has been disclosed hereunder from the other Party.

7.2 Treatment of Confidential Information. Neither Party will disclose to a third-party Confidential Information of the other Party during the term of this Agreement and for a period of three (3) years after its termination or expiry. The Recipient of any Confidential Information will: (a) not use any Confidential Information except solely in connection with the fulfilment of its obligations under this Agreement; (b) exercise a commercially reasonable standard of care to safeguard the Confidential Information against loss, theft, dissemination, relocation, or unauthorized use or disclosure and to preserve the Confidential Information’s secret and confidential nature, which standard will be no less than that which it affords to its own most sensitive confidential information; (c ) not disclose any Confidential Information except to those of its directors, officers, employees, contractors, advisors and authorized representatives, or those of its affiliates, that have a bona fide need to know the specific Confidential Information in order for the Recipient to fulfil its obligations under this Agreement and who have each entered into a written nondisclosure agreement on terms no less onerous than those contained herein; (d) be responsible and liable hereunder for any breach of the confidentiality obligations hereunder by any such directors, officers, employees, contractors, advisors and authorized representatives as if same were a signatory hereto; (e) not export any Confidential Information contrary to any applicable law; and (f) not modify, create derivative works from, reverse engineer, reverse assemble, decompile or reverse compile any Confidential Information. Any breach of this Section 7 will be considered a material breach of this Agreement by the breaching Party. Since unauthorized use or disclosure of Confidential Information may cause irreparable harm to Discloser, Recipient agrees that Discloser, in addition to any other remedies it may have at law or in equity, shall be entitled to seek equitable relief to protect against any such unauthorized use, including without limitation, temporary and permanent injunctive relief.

7.3 Ownership of Confidential Information. All Confidential Information is and will remain the exclusive property of Discloser. The disclosure of Confidential Information hereunder does not and will not constitute an express or implied license, assignment, or grant to the Recipient thereof of any rights to or under any of its intellectual property.Company will have no obligation to provide Systems Integrator with access to its confidential and proprietary information, including cost and pricing data. This Agreement does not grant directly or by implication, estoppel, or otherwise, any ownership right or license under any Company patent, copyright, trade secret, or other intellectual property, including any intellectual property created as a result of or related to the Services performed under this Agreement.

7.4 Return of Confidential Information. Immediately upon the termination of this Agreement, each Party will return or, at the Discloser’s discretion, destroy all of the other Party’s Confidential Information held by it in whatever form and will not retain any copies thereof. If requested by either Party, each Party will provide written certification of its compliance herewith.

7.5 Additional Obligations. The obligations of confidentiality set forth herein are in addition to, and not in substitution for, any and all other obligations and duties of confidentiality which either Party, including their respective affiliates, may from time to time owe to the other whether at law, in equity, under statute, under contract (including any separate nondisclosure agreement between the Parties) or otherwise. If there are any inconsistencies between the obligations of confidentiality set forth in this Agreement and any such other obligations and duties of confidentiality, it is the intent of the Parties that the provision that imposes the greater obligation or duty of confidentiality on the Recipient will prevail.

8. Covenant Not to Employ. During the term of this Agreement and continuing for a period of two (2) years thereafter, Systems Integrator will not hire, engage on contract, solicit the employment of, or recommend employment to any third party of any employee of Company or its subcontractors without the prior written authorization of Company. This provision applies only to those employees of Company or its subcontractors who are responsible for rendering Services under this Agreement. If this provision is found to be overly broad under applicable law, it will be modified as necessary to conform to applicable law.

9. Term and Termination. This Agreement shall commence on the Effective Date and remain in effect until the completion and acceptance of the Services, unless terminated earlier as provided herein. Either Party may terminate this Agreement for a material breach by the other Party, provided that the breaching party has been given written notice of the breach and has failed to cure such breach within thirty (30) days of receipt of such notice. In the event of early termination, Systems Integrator may be responsible for Fees applicable to Services rendered up to the date of termination on a pro-rata basis. To the extent terms in the SOW addressing termination differ from those provided for herein, the terms in the SOW shall prevail. 

10. Personal Information, Privacy & Data Processing. In connection with Services, the Parties may share personal information with one another. Each Party shall collect, use, disclose, store, and otherwise process all such personal information in accordance with the data protection and privacy laws in force and applicable to the Parties. Systems Integrator acknowledges that any personal information is subject to the privacy statement located at http://​www​.avig​ilon​.com/​p​r​ivacy (“Privacy Statement”). Any processing of personal information shall be in accordance with the data processing agreement located at https://​www​.avig​ilon​.com/​g​l​o​b​a​l​-​d​a​t​a​-​p​r​o​c​e​s​s​i​n​g​-​a​g​r​e​ement. The Parties further agree to deal with such personal information in accordance with applicable law. Systems Integrator also confirms that it has taken appropriate technical, organizational and physical measures against unauthorized or unlawful processing of such personal information and against accidental loss or destruction of, or damage to, such personal information in accordance with applicable law. 

11. Entire Agreement. This Agreement contains the Parties’ entire agreement with regard to the subject matter herein, and supersedes and replaces any prior agreements or amendments as to those matters, whether oral or written. This Agreement may not be changed or modified, in whole or in part, except by an instrument in writing signed by both Parties.

12. Governing Law. The construction, interpretation, and performance of this Agreement, and all disputes or claims arising out of or in connection with it, will be governed by the laws of the State of Delaware, USA without reference to its choice of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided for below, all disputes arising out of or in connection with this Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of arbitration shall be Cook County, Illinois. 

By executing a Professional Services SOW, the Parties acknowledge and agree to be bound by the terms and conditions of this Agreement which are incorporated into the SOW by reference as if fully set forth.