PROFESSIONAL SERVICES AGREEMENT
(Last Updated February 1, 2019)
By completing and executing the Statement of Work, you agree on behalf of yourself and your company (if applicable) that the Statement of Work will be governed by the Professional Services Agreement terms and conditions set forth below. For the avoidance of doubt: (i) Service Provider will be the Progress entity set forth in the Statement of Work and may be referred to herein and therein as “Service Provider”, “we”, “us”, or “our”; (ii) Client will be the individual or entity set forth in the Statement of Work and may be referred to herein and therein as “Client”, “you”, or “your”; and (iii) each party thereto may be individually referred to herein and therein as a “party” and collectively as the “parties”.
1. Professional Services.
1.1 Issuance of Statements of Work. We hereby agree to use commercially reasonable efforts to perform the Services described in each Statement of Work (“SOW”), which is to be mutually executed by us and you and incorporated by reference herein. We and you may enter into multiple Services engagements from time to time during the term of this Agreement and each Services engagement will be confirmed in a separate SOW.
1.2 Change Orders. You may, at any time, request a modification to the Services to be performed pursuant to any particular SOW by delivering a written request to us, signed by your authorized representative, specifying the desired modifications (a “Change Request”). We will, within a reasonable time following receipt of a signed Change Request, submit to you a written: (i) detailed description of the requested modifications agreed to by us; (ii) estimate of the fees for the requested modifications agreed to by us; and (iii) revised estimate of the time for performance of the Services pursuant to the SOW (collectively, a “Change Order”). No Change Order will become effective, and we will not have any obligation to perform the Services as modified by the Change Order, until executed by authorized representatives of both us and you.
1.3 Independent Contractor Status; No Agency. We, at all times, will be an independent contractor providing Services to you pursuant to this Agreement. Those performing Services on behalf of us hereunder, as set forth on the applicable SOW or otherwise, will be employees or subcontractors of us or our Affiliate. Our “Affiliate” is any corporation, firm, partnership or other entity that directly or indirectly controls, is controlled by, or is under common control with us. Neither us or our Affiliate nor any employee or subcontractor of us or our Affiliate providing Services on behalf of us or our Affiliate will represent to third parties that we, our Affiliate or said employee or subcontractor providing Services on behalf of us or our Affiliate is an employee or agent of yours in the provision of Services under this Agreement. Nothing in this Agreement will give you control over the manner in which we, our Affiliate or any employee or subcontractor of us or our Affiliate, provides such Services. Notwithstanding the foregoing, you agree to provide us or our Affiliate a safe and satisfactory work environment for our personnel, as well as other services or materials such personnel may reasonably request in order to perform the Services, including but not limited to, office space, copiers, internet access, fax machines, and modems.
1.4 Personnel Suitability. We or our Affiliate will assign employees or subcontractors and may replace or change employees and subcontractors in our sole discretion with other suitably qualified employees or subcontractors. Should you be reasonably dissatisfied with the performance of one of our or our Affiliate’s employees or subcontractors, you may request, in writing, the replacement of that person; provided, however, before we will be required to remove such individual, we will have the reasonable opportunity to remedy such situation to the reasonable satisfaction of both parties.
1.5 Our Subcontractor Status. If we will provide the Services as a subcontractor for you, then the SOW will specify the name, address, and contact information of your Customer (“Your Customer”) for whom the Services are being performed by us, and you agree that our only obligations thereunder are to you and not to Your Customer(s). Furthermore, you represent and warrant that: (a) you will not make any representations or warranties on our behalf and/or on behalf of our licensors and suppliers, and you will include terms and conditions in your agreement with Your Customer sufficient to disclaim all such representations or warranties and any liability of our and/or our licensors and suppliers to Your Customer with respect to the Services and/or the Work Product; and (b) your agreement with Your Customer must be consistent with the protections afforded to us pursuant to Section 3 below.
2.1 Fees for Services Performed. You will pay us fees for the Services rendered under this Agreement as set forth in the SOW. As set forth in the SOW, we and you will mutually agree upon: (i) the Standard Hourly Rate and the Overtime Hourly Rate for the Services (all as defined in the SOW); and (ii) all expenses for which you will reimburse us, including travel expenses, living expenses, and any other expenses upon which us and you agree. Unless otherwise agreed upon in any applicable SOW, we will provide you with an invoice on a weekly basis for fees relating to Services performed, such invoice will set forth an itemized listing of hours worked and all expenses incurred (for which you have agreed to reimburse us under this Section 2 and the SOW). This invoice is rendered based on a timesheet provided by us to and approved by you. Unless you reject the timesheet within five (5) business days after receiving it, we and you agree that you will be deemed to have automatically accepted the timesheet as correct.
2.2 Prepaid Fees. Subject to your rights under this Agreement, any and all prepaid fees set forth in the SOW (if applicable) are non-refundable and, unless otherwise expressly stated in the SOW, the Services must be provided within six (6) months of invoice or the prepaid fees are otherwise forfeited. For the avoidance of doubt and, unless otherwise expressly stated in the SOW, if the Services are not performed within the six (6) month period referenced herein, then, unless otherwise expressly stated in the SOW, the performance of the Services thereafter will incur additional fees at the rates set forth in the SOW.
2.3 Taxes. You will pay, or reimburse us for all taxes, other than taxes based on our net income, that are due in connection with the Services, including sales and use taxes, GST, and/or VAT, if applicable.
2.4 Payment. Unless otherwise agreed upon in any applicable SOW, payment of an invoice will be due to us from you within thirty (30) days from the invoice date. Without limiting or foregoing any other rights or remedies available to us for your delinquency in payment of amounts owed by you to us hereunder, you will pay a default interest rate of eighteen percent (18%) per annum, or as permitted by applicable law, for any fee not paid by the due date, and all reasonable expenses incurred by us in enforcing this Agreement, including but not limited to, all collection costs and all expenses of any legal proceeding related thereto and all related attorneys’ fees incurred in connection therewith.
3 Work Product.
3.1 Except as set forth in Sections 3.3 and 3.4 below or as agreed to otherwise in the SOW, all inventions (whether or not patentable), discoveries, improvements, trade secrets, know-how, designs, formulas, processes, techniques, algorithms, information, ideas, software, object code, source code, computer programs, interfaces and/or other copyrightable subject matter developed pursuant to the SOW and created for you by us (“Work Product”) will be your (and/or Your Customer if the Services are being performed by us as a subcontractor for you) exclusive property with all right, title and interest to such Work Product vesting in you (and/or Your Customer if the Services are being performed by us as a subcontractor for you). You (or Your Customer, as applicable) will have the right to use the Work Product or any part or parts thereof as you (or Your Customer, as applicable) see fit.
3.2 Except as set forth in Sections 3.3 and 3.4 below or as agreed to otherwise in the SOW, to the extent any Work Product developed pursuant to the SOW and created for you (or Your Customer, as applicable) by us is not hereunder considered your (and/or Your Customer if the Services are being performed by us as a subcontractor for you) exclusive property, we hereby fully and irrevocably grant, assign and convey to you or your nominee all right, title and interest worldwide in and to all such Work Product conceived, reduced to practice, authored, developed or delivered by us or our personnel during and in connection with the performance of Services pursuant to the SOW. We will, at your expense, take any actions and execute all documents as you may reasonably require to vest in you or your nominees the rights referred to herein and to secure for you or your nominees all right, title and interest in and to the Work Product.
3.3 Work Product will not include: (i) our or our Affiliate’s pre-existing proprietary information and methodologies used by us or our Affiliate for delivery of the Services; (ii) document templates or project tools used by us or our Affiliate to deliver the Services; (iii) our or our Affiliate’s materials in the Work Product; (iv) software or algorithms of general applicability, or in common or general use within a particular industry or programming methodology, or any modifications or enhancements made by us or our Affiliate to any of the foregoing described in (i) through (iv) (collectively, “Service Provider Intellectual Property”); or (v) Client Materials (as defined in Section 3.5 below). In the event any Service Provider Intellectual Property is reasonably required to use the Work Product in accordance with its intended use and is not otherwise licensed to you (and/or Your Customer if the Services are being performed by us as a subcontractor for you) pursuant to Section 3.4 below, we hereby either: (a) grant to you a non-exclusive, worldwide, royalty-free, perpetual license to use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works of the Service Provider Intellectual Property solely as necessary to use the Work Product in accordance with its intended use and authorize others to do the foregoing; or, if we are providing Services as a subcontractor for you, (b) grant to you a limited right to grant to Your Customer a non-exclusive, worldwide, royalty-free, perpetual license to use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works of the Service Provider Intellectual Property solely as necessary to use the Work Product in accordance with its intended use and authorize others to do the foregoing.
3.4 Work Product will not include any enhancement, customization, error correction, or other modification to any of our commercially available products licensed to you (and/or Your Customer if the Services are being performed by us as a subcontractor for you) under a separate product license agreement (collectively, “Service Provider Commercial Product Modifications”). Service Provider Commercial Product Modifications, if any, provided to you (and/or Your Customer if the Services are being performed by us as a subcontractor for you) during the course of performing the Services will be licensed by us to you (and/or Your Customer if the Services are being performed by us as a subcontractor for you) pursuant to the terms and conditions of the applicable product license agreement.
3.5 “Client Materials” for the purpose of this Agreement and each related SOW means any and all software and/or other works of authorship, independently developed by you or a third party outside of the Services, whether owned by you or said third party, and delivered or otherwise provided by you to us as required to facilitate our performance of the Services. You will be responsible for, and assume the risk of, any problems resulting from, the content, accuracy, completeness, consistency, facilitation, or provision of all such Client Materials supplied to us by you. You retain ownership of all right, title and interest in the Client Materials, and all intellectual property rights therein. All rights in the Client Materials not expressly granted to us in this Agreement or SOW are reserved to you or your licensors, and except as expressly granted by you under this Agreement, no licenses in the Client Materials are granted to us. You grant, and warrant that you have the right to grant, to us a temporary, royalty-free, non-exclusive license or sublicense to use, reproduce and modify Client Materials in the performance of Services and for no other purpose.
3.6 We will have a perpetual, nontransferable, paid-up, worldwide right and license to use, copy, modify, and prepare derivative works based on the Work Product (“Derivative Works”) provided by us to you hereunder as specified in the SOW. You agree that we will be the sole owner of any intellectual property rights to such Derivative Works.
3.7 This Agreement will not preclude us from developing materials outside of this Agreement, including but not limited to Derivative Works that are competitive, irrespective of their similarity to materials that may be delivered to you pursuant to this Agreement. Nothing in this Agreement will be construed as precluding or limiting in any way our right to provide consulting, development, or other services of any kind or nature whatsoever to any individual or entity as we in our sole discretion deems appropriate.
4 Term and Termination.
4.1 Term. We and you agree that this Agreement will commence on the Effective Date and will continue in effect until terminated in accordance with the provisions set forth below.
4.2.1 Termination for Convenience. We and you will have the right to terminate this Agreement with immediate effect upon written notice to the other party if there are no SOWs remaining in effect with Services to be completed.
4.2.2 Termination of Individual Statements of Work. Unless otherwise specified in the SOW, we and you will have the right to terminate any SOW, with or without cause, at any time prior to the completion of the Services set forth in such SOW by giving the other party thirty (30) days prior written notice of such termination (“Early Termination”).
4.3 Effects of Termination.
4.3.1 Early Termination.
18.104.22.168 In the event of Early Termination by either party, you agree that you will pay all fees due to us under Section 2 hereof for all Services performed by us up to and including the date of termination of the applicable SOW. You will also reimburse us for all expenses incurred by us in the performance of Services under the applicable SOW and which are or would be due to us under Section 2 hereof if Early Termination had not occurred. We acknowledge and agree that in the event of such Early Termination by either party, we will not perform any unnecessary Services nor will we incur any unreasonable expenses, but we will perform only those Services and incur only those expenses necessary to fulfill our obligations under Section 1 hereof and this Section 4.3.
22.214.171.124 In the event of Early Termination of the SOW involving your prepayment of any applicable fees for the Services to be provided thereunder, you agree that only in the event of our termination in accordance with Section 4.2.2 herein are you entitled to a refund of any unused portion of any prepaid fees made by you to us in accordance with the terms of an applicable SOW as of the effective date of the Early Termination.
4.3.2 Return of Information. You agree to return to us, as soon as reasonably possible upon the termination of this Agreement, any property of ours that is in your possession, including any program definitions, code, documentation, and other such material, in which we did not specifically license or grant an ownership interest to you pursuant to Section 3 of this Agreement. We agree to return to you, as soon as reasonably possible upon the termination of this Agreement, any Client Materials then in our possession.
5 Covenant Not To Hire. We and you agree that our and your respective employees and subcontractors are a valuable asset to our and your respective organizations and are difficult to replace. Accordingly, during the term of the Agreement and for a period of seven hundred thirty (730) days following the termination of this Agreement, neither we nor you will solicit, whether directly or indirectly, the employment of any of the other party’s employees or subcontractors who are, or who were engaged or employed in the provision or receipt of the Services or in the performance of the Agreement without the prior written consent of the other party. If either party violates this Section 5, we and you agree that the violating party of this covenant will pay to the other party an amount equal to one (1) year of annual compensation for such employee or subcontractor, which amount will be payable at the time such action occurs. For purposes of this Section 5, “one year of annual compensation” will be calculated by multiplying two thousand (2,000) by the Standard Hourly Rate as set forth in the SOW. If the parties have executed more than one SOW and the Standard Hourly Rate varies among each SOW, then, for purposes of this Section, the parties will use the average of the Standard Hourly Rate specified in each SOW executed between us and you during the term of this Agreement. Notwithstanding the foregoing, the provisions of this Section 5 will not preclude either party from interviewing, making an offer of employment or other engagement, or hiring any person who responds to a general publicly available advertisement or solicitation initiated by or on behalf of either party, such as a website posting or employment agency.
6 Covenant Not To Disclose.
6.1 Confidential Information. As used herein, "Confidential Information" will mean any and all data and information of any type or form relating to the business of either party which is or has been disclosed or otherwise becomes or has become known to the other party hereto as a result of the contractual relationship of the parties and which is not generally known to the public, including, but not limited to: (i) customer files; (ii) customer lists; (iii) research plans; (iv) the Work Product; (v) Service Provider Intellectual Property; (vi) Service Provider Commercial Product Modifications; (vii) methods of design, procurement, manufacture, and distribution; (viii) personnel files; (ix) financial records; (x) compensation arrangements with employees and subcontractors; and (xi) contracts with customers, suppliers, and other third parties.
6.2 Confidentiality Obligations. We and you agree that the party to whom Confidential Information has been disclosed (the “Receiving Party”) by the other party (the “Disclosing Party”) or of which the Receiving Party has become aware by reason of the contractual relationship between the parties pursuant to this Agreement, will not, while this Agreement remains in effect and for a period ending on the earlier of five (5) years following the: i) termination of this Agreement; ii) time when the Confidential Information becomes a part of the public domain through no act or omission by the Receiving Party; or iii) time when the Confidential Information is subsequently received by the Receiving Party from a third party free of any obligation of non-disclosure imposed on or by the third party, directly or indirectly, disclose to any person, firm, partnership, proprietorship, corporation, association, or other entity, use, or otherwise exploit for the Receiving Party’s benefit or for the benefit of any other person or entity (except as may be necessary in the performance of the Receiving Party’s duties or exercise of any license rights expressly granted to it hereunder), any Confidential Information. The Receiving Party may disclose the confidential information of the Disclosing Party as required by governmental or judicial order, provided the Receiving Party gives the Disclosing Party prompt written notice prior to such disclosure (unless such prior notice is not permitted by applicable law) and complies with any protective order (or equivalent) imposed on such disclosure. The confidentiality obligations set forth in this Section 6 will not apply to any data or information independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
6.3 Return of Confidential Information. We and you further agree that upon the termination of this Agreement, or upon the request of the Disclosing Party, the Receiving Party will not retain, without the prior written consent from the Disclosing Party, and will promptly deliver to the Disclosing Party, all Confidential Information and all originals and copies of all papers, data, files, and other documents or materials of any kind whatsoever that contain or are based upon any Confidential Information of the Disclosing Party, except that you may retain and continue to use any Service Provider Intellectual Property and/or Service Provider Commercial Product Modifications licensed to you pursuant to Section 3 subject to and in accordance with the terms and conditions hereof.
7 Limited Warranty. We warrant that our or our Affiliate’s employees or subcontractors will perform the Services in a professional and workmanlike manner in accordance with professional industry standards and practices. As your sole remedy and our sole liability for any breach of the limited warranty set forth herein, we will reperform any nonconforming Services without additional charge. WE HEREBY DISCLAIM AND EXCLUDE ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. We do not warrant that the Services or any Work Product will be uninterrupted, error-free or secure, or that we will correct all defects. Furthermore, we will not be liable to you hereunder for any software that may be obtained by you from a third party or from us other than the Work Product.
8 LIMITATION OF LIABILITY. EXCEPT FOR LOSSES IN CONNECTION WITH: (I) DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY; (II) A PARTY’S FRAUDULENT INTENT OR MISREPRESENTATION; OR (III) A PARTY’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS SET FORTH IN SECTION 3 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EXCEPT FOR LOSSES IN CONNECTION WITH: (I) DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY; (II) A PARTY’S GROSS NEGLIGENCE, WILLFUL OR RECKLESS MISCONDUCT OR INTENT; (III) A PARTY’S FRAUDULENT INTENT OR MISREPRESENTATION; (IV) A PARTY’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS SET FORTH IN SECTION 3 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S LIABILITY FOR DAMAGES WILL IN ANY EVENT EXCEED THE AMOUNT OF FEES PAID AND DUE AND PAYABLE BY YOU TO US WITH RESPECT TO THE SERVICE(S) THAT IS/ARE THE SUBJECT OF THE CLAIM.
9.1 We and you agree that, in addition to all other remedies provided at law or in equity, each party will be entitled to injunctive relief in the event of a breach or threatened breach by the other party hereto of any covenant contained in this Agreement, and each party hereby waives any requirement that the other party post any bond in connection with obtaining such injunctive relief. Furthermore, in the event of a breach or threatened breach of such covenants, the breaching party agrees to pay all of the other party’s costs, including (but not limited to) reasonable attorneys' fees, of enforcing such covenants. Nothing herein will be construed as prohibiting either party from pursuing any other remedies available to it for such breach, including the recovery of damages.
9.2 We and you agree that the covenants and obligations contained in this Agreement are severable and divisible, that none of such covenants or obligations depend on any other covenant or obligation for their enforceability, that each such covenant and obligation constitutes an enforceable obligation between us and you, that each such covenant and obligation will be construed as an agreement independent of any other provision of this Agreement, and that the existence of any claim or cause of action by one party to this Agreement against the other party to this Agreement, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by any party to this Agreement of any such covenants or obligations.
9.3 This Agreement has been drawn up in English at the express wish of the parties. Le présent contrat a été rédigé en anglais à la demande expresse des parties.
9.4 Without the prior written consent of the other party hereto, we and you agree not to assign, sell, transfer, or subcontract any right or obligation set forth in this Agreement, although you acknowledge and agree that subcontractors may perform the Services required hereunder on behalf of us. In no event will either party’s consent to any assignment be unreasonably withheld.
9.5 You agree to comply fully with all relevant regulations of the U.S. Department of Commerce and with the U.S. Export Administration Act to assure that the Work Product or Service Provider Commercial Product Modifications is not exported in violation of United States law. You will defend, indemnify and hold us harmless from any breach of this Section 9.5.
9.6 This Agreement may be executed in one or more counterparts each of which will be deemed an original and all of which signed counterparts, taken together, will constitute one instrument.
9.7 This Agreement and all documents relating thereto, including, without limitation, any consents, waivers and modifications which may hereafter be executed may be reproduced by any photographic, photostatic, or other similar process (including .pdf) and the party reproducing the document may destroy any original document so reproduced. We and you agree and stipulate that any such reproduction will be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business) and that any enlargement, facsimile or further reproduction of such reproduction will likewise be admissible in evidence.
9.8 This Agreement will be governed by, and construed in accordance with, the laws of the country or state in which we are located, notwithstanding that country or state’s conflict of laws provisions, and the exclusive jurisdiction and venue will be the courts of the aforementioned country or state.
9.9 We and you agree that this Agreement, and any terms expressly incorporated herein by reference, will constitute the entire agreement between you and us with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, understandings or agreements, oral or written, signed or unsigned, regarding the subject matter hereof.
9.10 We and you agree that any provisions of this Agreement containing licensing restrictions, warranties and warranty disclaimers, confidentiality obligations, limitations of liability and/or indemnity terms, and any term of this Agreement which, by its nature, is intended to survive termination or expiration, will remain in effect following any termination or expiration if this Agreement, as will your obligation to pay any fees accrued and owing to us as of termination or expiration.
9.11 Neither you nor we will be liable for any delay or failure to take any action required under this Agreement (except for payment) due to any cause beyond the reasonable control of you or us, as the case may be, including, but not limited to unavailability or shortages of labor, materials, or equipment, failure or delay in the delivery of vendors and suppliers, and delays in transportation.
9.12 In the event of any conflict between the body of this Agreement and any SOW, the Agreement will be construed as though the SOW controls but only with regard to the Services delivered under that SOW.