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1. Engagement. During the term of this Agreement and subject to the terms and conditions hereof, including payment of the Professional Services Fee(s) described in the applicable Order Form, Company shall perform certain professional services relating to installation, configuration, conversion, custom programming and training (“Professional Services“) set forth in the Order Form. Customer acknowledges and agrees that Company may engage the services of subcontractors, companies, entities, VARs and other agents (“Company Personnel“) to perform the Professional Services hereunder. Company shall perform the Professional Services with the degree of care, skill and diligence currently observed by the profession, and shall use its best efforts to complete each of its projects in a timely manner. This Service Schedule is subject to the terms and conditions of the Agreement.
2. Description of Company’s Professional Services. Company shall provide Professional Services at Customer’s request pursuant to a signed Order Form. Professional Services may include, but are not limited to, the following activities:
a. Implementation. Customer agrees to cooperate to develop, within one month of the Effective Date of the Agreement, an agreed scheduled project plan which shall identify implementation tasks and a timeline for completion of implementation. The implementation services shall address the migration and conversion, if any, of existing Customer data to the Software and shall clearly define what data or records will be converted and any additional equipment or software requirements needed for conversion.
b. Workflow Analysis. Company may perform a workflow analysis to determine the optimal use of the Software with Customer’s workflow.
c. Interfaces. The creation of interfaces into the Software to other IT systems, including lab information systems and billing systems. Company will make best effort to adhere to the then current HL7 standards for maintaining interfaces.
d. Training. If Customer purchased the Software and Services through or in connection with a Company authorized reseller, the reseller shall provide training services to Customer. If Customer purchased the Software directly from Company without the use of an authorized reseller, Company will provide its standard training services to Customer and its Users on the use of the Software and Services. Customer understands that if any additional training resources or other resources are required from Company related to the Software or Services, the Customer will need to purchase such resources at the then applicable rates of Company. Customer will ensure that Users are adequately and sufficiently trained and capable of using the Software and Services.
e. Other Services. Services identified by Company to Customer, and which Customer agrees to purchase by signing an applicable Sales Order.
3. Schedule. Company Personnel shall work within whatever reasonable schedule is required to provide the Professional Services and complete the work related to this Agreement and any Order Form. However, if Customer requires work to begin at the job site before 8:00 a.m. or to continue at the job site after 6:00 p.m., or if Customer requires more than 50 hours be spent by any Company Personnel in any one-week period, Customer must present Company with written notice of any such requirement prior to that requirement being enforced as a condition of satisfactory performance. Any work performed on weekends or holidays will be billed according to the then current price list.
4. Supplies and Facilities. Customer’s supplies (including but not limited to, forms and stationery), equipment (including but not limited to, computers, photocopy machines, business machines, and typing facilities), and support staff will be provided to Company by Customer upon prior consent from an authorized Customer representative, which consent shall not be unreasonably withheld, and will be used by Company Personnel for Customer’s business only, at no cost to Company. In addition, Customer will provide necessary working space and computer time to Company for the completion of the Professional Services.
5. Non-exclusivity of Services. Customer acknowledges that Company may perform similar services for other Customers or other businesses at any time during the term of this Agreement.
6. Work Product.
a. In connection with providing the Professional Services, Company may write, design, develop, implement and deliver to Customer certain work product deliverables (“Work Product“). The Work Product may include, but shall not be limited to, computer software and modifications, training manuals and enhancements thereto, drawings, designs, specifications and reports. Customer agrees that the Work Product shall not be work made for hire as defined in the Copyright Act of 1976, as amended, but rather, all right, title and interest in the Work Product shall vest solely in Company. In the event that any portion of the Work Product is determined to be work made for hire and/or there are any rights which accrue exclusively to Customer, Customer shall assign and hereby does assign to Company all right, title and interest, including all undivided copyrights (and renewals and extensions thereof), patents, trade secret rights, trademarks and other proprietary rights, in and to the Work Product, throughout the world in all languages and in all media and forms of expression and communication now known or later developed. The parties agree to execute any and all documents necessary to effectuate the terms of this Section 6(a).
b. Customer acknowledges that in connection with providing the Professional Services, Company may use its products, tools or other intellectual property rights, including, but not limited to, textual descriptions, diagrams and source code (the “Company Property“). Company shall retain all right, title and interest in and to the Company Property, including Company Property incorporated into the Work Product. Subject to the terms and conditions of this Agreement and the License Agreement, Company hereby grants to Customer a non-exclusive license to use the Company Property which is incorporated into the Work Product to the same extent as Customer has received a license to the Software pursuant to the License Agreement.
