Effective Date: August 21, 2021
This Professional Services Agreement (“PSA”) is entered into by and between Freshworks Inc., a Delaware corporation (“Freshworks" or “Provider”) and the person or entity placing an order for or accessing the Service (“Customer” or “you”). This PSA is entered into pursuant to the Terms of Service unless Customer has a written Freshworks master services agreement in which case such written Freshworks master services agreement will govern (in either case, the "Agreement"). All capitalized terms herein shall have the same definitions as set forth in the Agreement. In the event of a conflict between this PSA and the Agreement (as defined below) the terms of this PSA will control. In consideration of the terms and conditions set forth below, the parties agree as follows:
1. Scope of Services. Subject to the terms and conditions of this PSA, Freshworks will provide Customer with Professional Services (as defined below) as set forth in the applicable statements of work executed by Freshworks and Customer (each, a “Statement of Work” or “SOW”). From time to time, the parties may enter into SOWs that specify the general consulting, implementation and/or training services to be provided to Customer hereunder (the “Professional Services”). All Statements of Work shall be deemed part of and subject to this PSA.
Subject to terms and conditions of this PSA and the Agreement, and during Customer’s Subscription Term, Freshworks hereby provides Customer with the non-exclusive, worldwide, limited right to use any deliverables and/or training materials delivered by Freshworks to Customer as part of the Professional Services (“Deliverables”) solely for Customer’s internal business operations including in connection with its authorized use of the applicable Service.
2. Terms and Conditions for Training. Training Deliverables. All electronic and hard copy versions of the training Deliverables may be provided for Customer’s internal training purposes only. Customer is prohibited from: (a) modifying the training Deliverables, unless otherwise authorized in writing by Freshworks or set forth in an applicable SOW; (b) reselling or sublicensing any training Deliverables; (c) utilizing the training Deliverables to replicate or attempt to perform the training, unless otherwise authorized in writing by Freshworks or set forth in an applicable SOW; and (d) developing or attempting to develop any of the products described in such training Deliverables. Customer may not record, stream or otherwise capture any performance or aspect of the training Professional Services. The training Deliverables are not subject to any maintenance, support or Updates.
3. Change Management Process. If Customer or Freshworks requests a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Professional Services described in any Statement of Work, the party seeking the change shall propose the applicable changes by written notice. Within five (5) business days of receipt of the written notice, each party’s project leads shall meet to discuss the proposed changes. Freshworks will prepare a change order describing the proposed changes to the Statement of Work and the applicable change in Fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this PSA.
Additional charges may apply for scope changes, change requests or delays caused by Customer. Any such changes will be set forth in a Change Order. All charges associated with scope changes, change requests, or delays will be due on receipt of the invoice by the Customer. Upon prior written approval from the Customer, all travel, meals, and living expenses for all Freshworks’ personnel who travel or are supposed to travel in support of the engagement shall be billable at cost and all such expenses shall be the sole responsibility of the Customer. Customer shall be charged for any travel expenses that cannot be canceled or refunded.
4. Proprietary Rights.
4.1 Freshworks Intellectual Property Rights. All rights, title and interest in and to the Professional Services (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the same provided or developed by Freshworks) and anything developed or delivered by or on behalf of Freshworks under this PSA (including without limitation Deliverables and Tools as such terms are defined herein) are owned exclusively by Freshworks or its licensors. Except as provided in this PSA, the rights granted to Customer do not convey any rights in the Professional Services, express or implied, or ownership in the Professional Services or any intellectual property rights thereto. Customer grants Freshworks a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Service. Any rights in the Professional Services or Freshworks’ intellectual property not expressly granted herein by Freshworks are reserved by Freshworks.
4.2 Tools. Notwithstanding any other provision of this PSA: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Freshworks to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are made available on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools. Tools are Freshworks Confidential Information.
5. Professional Services Warranty & Disclaimer.
5.1 Freshworks warrants that Professional Services will be provided in a professional manner consistent with industry standards. Customer must notify Freshworks of any warranty deficiencies within 30 days from performance of the deficient Professional Services.
5.2 FRESHWORKS DOES NOT WARRANT THAT THE PROFESSIONAL SERVICES WILL BE PERFORMED ERROR- FREE OR UNINTERRUPTED, THAT FRESHWORKS WILL CORRECT ALL PROFESSIONAL SERVICES ERRORS, OR THAT THE PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. FRESHWORKS IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE PROFESSIONAL SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD-PARTY APPLICATIONS OR PROFESSIONAL SERVICES PROVIDED BY THIRD PARTIES.
FOR ANY BREACH OF THE PROFESSIONAL SERVICES WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND FRESHWORKS’ ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT PROFESSIONAL SERVICES THAT CAUSED THE BREACH OF WARRANTY.
5.3 TO THE EXTENT NOT PROHIBITED BY LAW, THIS WARRANTY IS EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Limitations of Liability.
6.1 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS PSA), SALES, DATA, DATA USE, GOODWILL, OR REPUTATION
6.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FRESHWORKS AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS PSA OR OR SOW, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID UNDER THE APPLICABLE SOW FOR THE PROFESSIONAL SERVICES GIVING RISE TO THE LIABILITY.
7. Term and Termination.
7.1 Term. This PSA is valid for the SOF or SOW Forms (including SOWs) which reference this PSA. Each SOW shall commence on the date it is last signed, and shall expire upon completion of the project set forth in the applicable SOW, or as otherwise set forth in the applicable SOW. Once signed by both parties, a SOW shall be non- cancellable, except as otherwise explicitly stated in such SOW.
7.2. Termination. This PSA will terminate automatically when all Estimates/Order Forms and SOWs referencing this PSA are terminated or expired. In addition, in the event that Customer is a party to Agreement and Customer’s right to use the Service is terminated pursuant to such Agreement, Freshworks may terminate this PSA and any SOW hereunder. Upon termination or expiration of this PSA, Customer shall have no rights to continue use of the Professional Services, Deliverables or Tools.
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