Professional Services Agreement
This Professional Services Agreement (the "Agreement") is made on Effective date between Provider, of Provider address (the "Provider"), and Customer, of Customer address (the "Customer").
This agreement is adapted from the Common Paper Professional Services Agreement (commonpaper.com), used under CC BY 4.0.
1. How this Agreement works
This Agreement sets the general terms for services that the Provider performs for the Customer. Each project is set out in a separate statement of work (a "SOW").
- A SOW names the services, the deliverables, the dates, the fees, and how deliverables are accepted.
- A SOW starts only when both parties sign it. Neither party must agree to a SOW.
- Each SOW and this Agreement together form a separate contract for that project.
- If a SOW conflicts with this Agreement, this Agreement controls, unless the SOW names the section it changes.
- Ending one SOW does not end any other SOW.
- An affiliate of the Customer may sign a SOW. For that SOW, "the Customer" means that affiliate.
2. Services and standard of work
The Provider will perform the services in each SOW with reasonable skill and care, and in a professional manner. The Provider will follow the written site and security rules that the Customer gives it in advance. The Provider will use its own equipment and tools.
3. Personnel and subcontractors
The Provider chooses the people who do the work. A SOW may name key personnel. The Provider will keep them on the project, unless a person leaves, falls ill, or the Customer asks for a change. If a named person is not available, the Provider will offer a person with similar skills.
The Customer may ask the Provider to remove a person from the project for a good reason. The Provider will do this within a reasonable time.
The Provider may use a subcontractor only with the prior written consent of the Customer. The Provider may use its own affiliates without consent. The Provider stays responsible for its subcontractors' work and for paying them.
4. Customer cooperation
The Customer will give the Provider the information, access, materials, and decisions that the SOW lists or that the Provider reasonably needs, on time. The Customer will name a contact who can make decisions.
If the Customer is late, the Provider is not in breach for the resulting delay. The Provider will tell the Customer in writing and may move the dates by the same amount of time. The Provider may charge for extra costs that the delay causes, if it told the Customer about them first.
5. Change orders
Either party may ask to change a SOW. The other party will reply within Days to answer a change request days with its view on the effect on scope, fees, and dates.
A change binds the parties only when both parties sign a change order. The Provider does not have to do work outside a SOW until a change order is signed.
6. Acceptance of deliverables
This section applies to each deliverable that the SOW says is subject to acceptance. The Provider will submit the deliverable to the Customer in writing.
The Customer has Working days to review a deliverable working days to accept it, or to reject it by written notice that says how it does not meet the SOW. The Provider will fix the problem and submit it again within Working days to fix and resubmit a rejected deliverable working days. The review period then starts again.
The Customer accepts a deliverable if it does not reply in time, or if it uses the deliverable in its business. A deliverable that is not subject to acceptance is accepted when delivered.
7. Fees, invoices, and taxes
The Customer will pay the fees in each SOW. The Provider will invoice as the SOW says. The Customer will pay each invoice within Days to pay an invoice days. Fees are in the currency that the SOW states.
Fees do not include taxes. The Customer will pay any sales tax, VAT, or similar tax that the law requires on the fees. The Customer does not pay the income taxes of the Provider.
The Customer pays an expense only if the SOW lists it or the Customer approves it in writing before the Provider spends the money.
If the Customer disputes part of an invoice in good faith, it will tell the Provider in writing within the payment period and pay the rest on time. The parties will work together to settle the dispute. If an undisputed amount is more than 14 days late, the Provider may pause the work after written notice.
8. Intellectual property
The Provider assigns to the Customer all rights in the deliverables when the Customer pays for them in full. This does not include the background materials of the Provider or third-party materials.
The background materials of the Provider are the tools, code, templates, methods, and know-how that the Provider owned before this Agreement, or that it develops apart from the services. The Provider keeps them. If a deliverable contains them, the Provider gives the Customer a permanent, worldwide, non-exclusive licence to use them with that deliverable.
The Provider will use third-party materials in a deliverable only if the SOW allows it or the Customer agrees in writing. Each party is responsible for the rights to the third-party materials that it provides.
The Customer keeps all rights in its own materials. The Provider may use them only to perform the services. Neither party gets any other right in the intellectual property of the other.
9. Personal data and security
If the Provider handles personal data for the Customer, it will use the data only to perform the services and as the Customer instructs. The parties will sign a data processing agreement when the law requires one. If they do, it controls over this Agreement on personal data.
The Provider will protect the Customer's data with reasonable security measures, and will follow any written security policy that the Customer gives it in advance.
10. Warranty
Each party confirms that it has the power to enter into this Agreement and will follow the laws that apply to it.
The Provider warrants that each deliverable will meet the SOW for Warranty period after acceptance (days) days after acceptance, and that the deliverables it creates will not infringe anyone's intellectual property rights. This does not cover the materials of the Customer, or third-party materials that the Customer provides.
If a deliverable does not meet the SOW, the Customer will tell the Provider in writing with enough detail. The Provider will then fix it at no charge. If the Provider cannot fix it, the Customer may end the SOW and receive a refund of the fees paid for the faulty deliverable. This is the only remedy of the Customer for breach of this warranty.
Except for the warranties in this Agreement, each party excludes all other warranties, including any implied warranty, as far as the law allows.
11. Confidentiality
Each party will use the confidential information of the other party only for this Agreement. It will not share it, except with staff, advisers, and subcontractors who need it and who owe a similar duty of confidentiality. It will protect the information with at least reasonable care.
Confidential information does not include information that is public through no fault of the receiving party, that it already had, that it receives lawfully from someone else, or that it develops on its own. A party may disclose information that the law requires, after telling the other party where the law allows.
When this Agreement ends, each party will return or delete the confidential information of the other party, except for backups that it must keep by law. These duties continue for Confidentiality period after the agreement ends (years) years after this Agreement ends, and for trade secrets for as long as they stay secret.
12. Staff non-solicitation
While this Agreement is in force and for Staff non-solicit period after the last SOW (months) months after the last SOW ends, neither party will hire or try to hire a person who worked on a SOW for the other party. This does not apply to a person who answers a general job advertisement, or whom the other party has already dismissed.
13. Indemnities
The Provider will defend the Customer against a claim by a third party that a deliverable, used as this Agreement allows, infringes that party's intellectual property rights. The Provider will also defend the Customer against a claim that people from the Provider are employees of the Customer. The Provider will pay the damages and costs that a court awards or that the Provider agrees in a settlement. This does not apply to the materials of the Customer or to third-party materials that the Customer provides.
The Customer will defend the Provider against a claim by a third party that the materials of the Customer, used as this Agreement allows, infringe that party's intellectual property rights. The Customer will pay the damages and costs that a court awards or that the Customer agrees in a settlement.
The protected party must tell the other party about the claim promptly, give reasonable help, and let the other party control the defence and settlement. The other party may not settle in a way that admits fault for the protected party without its consent. This section is the full remedy for these claims.
14. Insurance
During this Agreement and for 6 months after, the Provider will keep professional liability insurance of at least Minimum professional liability insurance for each claim (with currency) for each claim. On request, the Provider will give the Customer a certificate of insurance.
15. Limit of liability
Neither party is liable to the other for loss of profit, loss of revenue, or indirect or consequential loss.
The total liability of each party for all claims under a SOW is limited to the fees paid or payable under that SOW in the Liability cap: months of fees under the SOW months before the claim.
These limits do not apply to fraud, to a breach of section 11 (confidentiality), to the duty of the Customer to pay fees, to the indemnities in section 13, or to any liability that the law does not allow to be limited.
16. Term and ending
This Agreement starts on the effective date and continues for Term of this agreement (months) months. A SOW that is still running when the term ends continues under this Agreement until it ends.
- Either party may end this Agreement on Notice to end the agreement or a SOW (days) days of written notice. Running SOWs continue under this Agreement until they end or are ended.
- The Customer may end a SOW for convenience on Notice to end the agreement or a SOW (days) days of written notice.
- Either party may end a SOW if an event outside its reasonable control stops the services for 30 days in a row.
- Either party may end this Agreement or a SOW by written notice if the other party commits a material breach and does not fix it within Days to fix a breach after notice days of written notice, or if the other party becomes insolvent.
- If a party ends this Agreement for breach or insolvency, every SOW ends with it. Ending one SOW for breach does not end the others.
When a SOW ends, the Provider will hand over the work done so far. The Customer will pay for the work done up to the end date, except where the Customer ends the SOW for the breach of the Provider. The Provider will refund prepaid fees for work that it has not done, except where the Provider ends the SOW for the breach of the Customer. Sections 8, 10, 11, 13, 15, 16, and 19 continue after the end.
17. Independent parties
The Provider is an independent contractor. Nothing in this Agreement makes either party an employee, partner, or agent of the other. Neither party may bind the other.
18. General
- This Agreement and its SOWs are the whole agreement on their subject. They replace earlier discussions. A purchase order does not change them.
- A change to this Agreement is valid only in writing signed by both parties.
- Neither party may transfer this Agreement without the written consent of the other party. The Customer may transfer it to a successor of its business on notice.
- Neither party is liable for a delay that events outside its reasonable control cause. This does not excuse a duty to pay.
- Neither party will announce this Agreement publicly without the written consent of the other party.
- Neither party will offer or accept a bribe, and each will follow the anti-bribery laws that apply to it.
- Notices must be in writing and go to the addresses above, or to an email address that a party gives for notices.
- If a court finds a term unenforceable, the rest stays in force.
- The parties may sign this Agreement electronically and in counterparts.
19. Governing law and disputes
This Agreement is governed by the laws of Governing law (country or state). The parties will first try to settle any dispute by talks between senior managers for 30 days. After that, the courts of Governing law (country or state) will decide the dispute.
Either party may ask a court at once for an order to stop a breach of section 11 or a misuse of its intellectual property.
Signatures
Provider
Signature: ____________________________
Date: ______________
Customer
Signature: ____________________________
Date: ______________