Professional services agreement
Last updated on September 29, 2022
This Agreement applies to Customer’s purchase and receipt of Professional Services (e.g. implementation and training services).
By executing a Statement of Work that references this Agreement, the Customer accepts and agrees to the terms and conditions of this Agreement.
If the individual accepting this Agreement is doing so on behalf of a company or other legal entity, that individual represents and warrants that they have the authority to bind the Customer and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, the individual must not accept this Agreement and may not receive the Professional Services.
Capitalized terms used in this Agreement have the meanings given to them in section 14, below.
1. Professional Services
Deputy will provide to Customer the Professional Services specified in each SOW (as applicable), subject to Customer’s payment of all applicable fees as set forth in the SOW. The SOW will describe the scope, fees, and other relevant characteristics of any services being provided by Deputy to Customer as part of the Professional Services.
1.2. No Subscription Services
This Agreement is limited to Professional Services and does not convey any separate right to use the Subscription Services. Any use of the Subscription Services by Customer is governed by a separate subscription agreement. Customer agrees that Customer’s purchase of Professional Services is not contingent on: (a) the delivery of any future Subscription Service functionality or features; or (b) on any oral or written statements or representations by Deputy regarding future Subscription Service functionality or features.
2. Performance and Cooperation
2.1. Performance of Services
Deputy will provide the Professional Services, including any Deliverables, in accordance with this Agreement and the applicable SOW.
Customer will co-operate reasonably and in good faith with Deputy in Deputy’s performance of Professional Services including (without limitation):
(a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Deputy to perform its obligations under each SOW;
(b) timely delivery of any inputs, materials and other obligations required under each SOW;
(c) responding in a timely manner to Deputy’s inquiries related to the Professional Services;
(d) assigning an internal project manager for each SOW to serve as a primary point of contact for Deputy;
(e) actively participating in scheduled project meetings;
(f) providing, in a timely manner and at no charge to Deputy, office workspace, telephone and other facilities, suitably configured computer equipment with internet access, access to Customer’s appropriate and knowledgeable employees and agents, and continuous administrative access to Customer’s Subscription Service account, and coordination of meetings, all as reasonably required by Deputy; and
(g) providing complete, accurate and timely information, data and feedback as reasonably necessary to enable Deputy to perform its obligations under each SOW. The terms of the DPA are incorporated by reference into this Agreement and shall apply to the extent such information, data and feedback includes Personal Data (as defined in the DPA). Customer shall restrict Deputy’s access to only such Personal Data as is reasonably necessary for Deputy to perform the Professional Services.
3. Acceptance and Changes
(a) On completion of each Deliverable under an SOW Deputy will: (a) submit a complete copy of the Deliverable to Customer; and (b) at Customer’s request, demonstrate its functionality to Customer. Customer is responsible for reviewing and testing all Deliverables in accordance with such SOW pursuant to any acceptance criteria, technical specifications or test plans (as applicable) mutually agreed in writing by the parties for such Deliverable. Customer will provide Deputy with written notification of acceptance for each Deliverable promptly upon acceptance however the failure to reject a Deliverable as set forth below will be deemed acceptance.
(b) If Customer, in its reasonable and good faith judgment, determines that any submitted Deliverable does not materially satisfy the agreed acceptance criteria or technical specifications (as applicable) as specified in the applicable SOW or as mutually agreed upon in writing by the parties for such Deliverable, Customer must so notify Deputy in writing within 5 Business Days after Deputy’s submission of the Deliverable, specifying the deficiencies in detail. Deputy will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to Customer as soon as practicable. Customer will again review and test the Deliverable against the agreed acceptance criteria or technical specifications (as applicable) and (if applicable) detail any deficiencies to Deputy in writing within a further 5 Business Days after resubmission of the Deliverable.
(c) If a Deliverable fails to meet the acceptance criteria or technical specifications (as applicable) after its second resubmission to Customer, Customer may either, as Customer’s sole and exclusive remedies: (i) again reject the Deliverable and return it to Deputy for further correction and resubmission in accordance with the process described above; or (ii) terminate the relevant SOW and Agreement immediately on written notice and recover all Professional Services fees paid under such SOW for such deficient Deliverable. If the parties determine that a Deliverable’s functional requirements specified in a SOW require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.
3.2. No Effect on Warranty Remedies
Acceptance of Professional Services, including a Deliverable, will not affect Customer’s rights or remedies under section 7 below.
Changes to a SOW will only be effective if agreed in a written Change Order. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
4. Fees, Invoicing, and Taxes
Customer will pay Deputy for the Professional Services at the rates specified in the applicable SOW. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in the SOW. Any amount set forth in a time-and-materials SOW is solely a good-faith estimate for Customer’s budgeting and Deputy’s resource-scheduling purposes and is not a guarantee that the work will be completed for that amount and the actual amount may be higher or lower. Deputy will update Customer on the status of the Professional Services and the fees accrued at regular intervals.
Customer will reimburse Deputy for reasonable travel and out-of-pocket expenses incurred in connection with Professional Services. If an estimate of incidental expenses is provided in the applicable SOW, Deputy will not exceed such estimate without Customer’s written consent.
Charges for time-and-materials engagements will be invoiced monthly in arrears unless otherwise stated in the applicable SOW. Charges for fixed fee engagements will be invoiced in advance in the manner as provided in the SOW. Invoiced amounts will be due and payable net 7 days from the invoice date. Customer is responsible for providing Deputy with Customer’s complete and accurate billing and contact information and notifying Deputy of any changes to such information.
4.4. Overdue Payments
Subject to section 4.6, if any invoiced amount is not received by Deputy by the due date, then without limiting Deputy’s rights or remedies, those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
Subject to section 4.6, if any amount owing by Customer under this Agreement or SOW for the Professional Services is 30 days or more overdue, Deputy may, without limiting its other rights and remedies, suspend its performance of the Professional Services until such amounts are paid in full.
Deputy will not exercise its rights under section 4.5 above if Customer is disputing the applicable charges reasonably and in good faith and is co-operating diligently to resolve the dispute.
Deputy’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If Deputy has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Deputy will invoice Customer and Customer will pay that amount, unless Customer provides Deputy with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Deputy is solely responsible for taxes assessable against Deputy based on Deputy’s income, property and employees.
5. Proprietary Rights
5.1. Intellectual Property
Customer does not grant to Deputy any rights in or to Customer’s intellectual property except such licenses as may be required for Deputy to perform its obligations under this Agreement.
5.2. Confidential Information
As between the parties, each party retains all ownership rights in and to its Confidential Information.
5.3. License for Contract Property
On payment of fees due under an applicable SOW, Deputy grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Customer’s internal business purposes associated with Customer’s use of the Subscription Services, anything developed by Deputy for Customer, including Deliverables, under this Agreement and the SOW (“Contract Property”). Each party retains all right, title and interest in its respective intellectual property and Deputy retains all ownership rights in the Contract Property.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all SOWs (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
6.2. Confidentiality Obligations
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in this Agreement. Neither party will disclose the terms of this Agreement or any SOW to any third party other than its Affiliates, legal counsel and accountants or to the extent compelled by law without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this section 6.
7. Representations, Warranties, and Disclaimers
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
Deputy warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy and Deputy’s entire liability is the re-performance of the applicable Professional Services. If Deputy is unable to re-perform the Professional Services as warranted, Customer will be entitled to recover the Professional Services fees paid to Deputy for the deficient portion of the Professional Services. Customer must make any claim under the foregoing warranty to Deputy in writing within 90 days of performance of such Professional Services in order to receive the warranty remedy.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS WARRANTY IS EXCLUSIVE AND NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
8.1. Mutual Indemnity
Each party (the “Provider”) will defend the other party (the “Recipient”) against any claim, demand, suit or proceeding (“Claim”) made or brought against the Recipient by a third party alleging that any information, design, specification, instruction, software, data or material furnished by the Provider under this Agreement (“Material”) infringes or misappropriates such third party’s intellectual property rights, and will indemnify the Recipient from any damages, attorney’s fees and costs finally awarded against the Recipient as a result of, or for amounts paid by Recipient under a settlement approved in writing by Provider of, any such Claim, provided that the Recipient: (a) promptly gives the Provider written notice of the Claim; (b) gives the Provider sole control of the defense and settlement of the Claim (except that the Provider may not settle any Claim unless it unconditionally releases the Recipient of all liability); and (c) gives the Provider all reasonable assistance, at the Provider’s cost. The Provider will have no liability for any such Claim to the extent that it arises from specifications or other Material provided by the Recipient. In the event that some or all of the Material is held or is reasonably believed by the Provider to infringe or misappropriate, the Provider may in its discretion and at no cost to the Recipient: (i) modify or replace the Material so it is no longer claimed to infringe or misappropriate; (ii) obtain a license for the Recipient’s continued use of the Material in accordance with this Agreement; or (iii) require return of the affected Material and all rights thereto from the Recipient. If the Provider exercises option (iii), either party may terminate the relevant SOW on 10 days’ written notice given within 30 days after the Provider’s exercise of such option, subject to section 10.3.
8.2. Exclusive Remedy
This section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.
9. Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN RESPECT OF THE SOW OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 ABOVE.
9.2. No Consequential Damages
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL OR DATA, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
10. Term and Termination
This Agreement commences on the Effective Date and will remain in effect until terminated in accordance with this section.
10.2. Termination for Cause
A party may terminate this Agreement and/or any SOW for cause: (a) on 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3. Payment Upon Termination
On any termination of an SOW, Customer will pay, in accordance with section 4 (Fees, Invoicing and Taxes) of this Agreement, any unpaid fees and expenses incurred on or before the effective date of termination (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that Customer terminates for cause and Customer has pre-paid any fees for Professional Services not yet received, Deputy will refund such pre-paid fees. In the event that Deputy terminates for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW.
10.4. Surviving Provisions
Sections 4, 5.3, 6, 7, 8, 9, 10 and 13 will survive any termination or expiration of this Agreement.
Each party will maintain, at its own expense during the term of this Agreement, insurance appropriate to its obligations under this Agreement, including as applicable general commercial liability, errors and omissions, employer liability, and worker’s compensation insurance as required by applicable law.
12. Notices, Governing Law, and Jurisdiction
12.1. Effective Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals under this Agreement shall be in writing and deemed to have been given upon: (a) personal delivery; (b) the third business day after mailing; or (c) the first business day after sending by email.
12.2. Governing Law and Jurisdiction
If Customer is a tax resident of the United States of America, this Agreement will be construed and interpreted in accordance with the laws of the State of California, USA. If Customer is a tax resident of Europe, the Middle East or Africa, this Agreement will be construed and interpreted in accordance with the laws of England and Wales. In all other situations, this Agreement will be construed and interpreted in accordance with the laws of the state of New South Wales, Australia. Each party submits to the exclusive jurisdiction of courts of such jurisdiction (as applicable).
13. General Provisions
13.1. Compliance with Laws
Notwithstanding anything else in this Agreement (including an SOW), each party will retain responsibility for complying with all laws and governmental rules, regulations and requirements applicable to its business (including without limitation, data protection, workplace, and wage and hour laws and requirements).
13.2. Entire Agreement
This Agreement is the entire agreement between Customer and Deputy regarding the provision of Professional Services and supersedes all prior agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency between the SOW and this Agreement, this Agreement shall take priority.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Deputy may, in its reasonable discretion, use subcontractors to perform any of its obligations under this Agreement. Deputy will be responsible for the performance of Professional Services by its personnel (including employees and contractors) and their compliance with its obligations under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
A party’s rights and obligations under this Agreement may not be assigned or transferred, in whole or in part, by operation of law or otherwise, to any other person, firm, or entity (legal or natural) without the prior written consent of the other party; provided, however, that either party may assign or transfer this Agreement in its entirety to a successor entity that succeeds as a going concern to the business presently conducted by the transferring party, whether pursuant to a merger, consolidation, sale of all or substantially all of its assets or capital stock, or otherwise by operation of law, if such successor entity assumes all of the transferring party’s obligations under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Capitalized words used in this Agreement have the meaning given to them below:
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Professional Services Agreement together with each SOW executed by the parties.
“Business Day” means a day that is not a Saturday, Sunday or public holiday in the state where the Governing Law (as defined in Clause 12.2) applies.
“Change Order” means any written amendment to an SOW executed by the parties.
“Customer” means the legal entity identified in the SOW.
“Deliverable” means a deliverable under an SOW.
”Deputy” means Deputec Pty Limited (for Professional Services supplied in Australia and New Zealand), Deputy Corporation Limited (for Professional Services supplied in North America) and Deputy EMEA Limited (for Professional Services supplied in Europe, the Middle East and Africa).
“DPA” means the Data Processing Addendum at deputy.com/terms/data-processing-addendum.
“Effective Date” means the effective date stipulated in the relevant SOW.
“Professional Services” means work performed by Deputy, its Affiliates, or their respective permitted subcontractors under an SOW, including Deputy’s provision of any Deliverables specified in such SOW.
“SOW” means a statement of work, order form or other written document describing Professional Services to be provided by Deputy, that is entered into between Customer and Deputy or any of Deputy’s Affiliates. A Deputy Affiliate that executes an SOW will be deemed to be “Deputy” as such term is used in this Agreement. Notwithstanding any language to the contrary in an SOW or a subscription agreement with respect to Subscription Services, all Professional Services purchased under an SOW are purchased separately from the Subscription Services and all references in these terms and conditions to “SOW” shall not apply in any way to any Subscription Services, including without limitation, with respect to payment obligations and termination rights.
“Subscription Services” means any online, web-based services and associated offline components made available by Deputy to Customer under a separate subscription agreement (including the applications described at www.deputy.com).