This professional service addendum (the “Professional Service Addendum”) is expressly incorporated by reference into the Devo Terms of Service between Devo and Purchaser (the “ToS”). The Professional Service Addendum governs any Professional Services (as defined below) provided to You by Us under the ToS. Capitalized terms used in this Professional Service Addendum and not otherwise defined herein have the meaning as defined in the ToS. In the event of any conflict between this Professional Service Addendum and the ToS, the terms of the ToS shall govern and control. Your acceptance of any Professional Services from Us is deemed acceptance of this Professional Service Addendum.

1. The Services

We will provide the Professional Services to You and You agree to pay the applicable fees for such Professional Services, each as described in more detail in a Statement of Work in accordance with the provisions of this Professional Service Addendum.

Each Statement of Work shall include (i) a detailed description of the Professional Services to be performed, (ii) the date upon which the Professional Services will commence and the term of such Statement of Work, (iii) the fees to be paid to Us under the Statement of Work and the following if applicable: (iv) the Project implementation plan, including a timetable, (v) Project Milestones and payment schedules, (vi) any criteria for completion of the Professional Services and (vii) any other terms and conditions agreed upon by the parties in connection with the Professional Services to be performed pursuant to such Statement of Work. 

If Your Statement of Work provides that You are prepaying any Professional Services, You agree that such prepaid Professional Services must be used by You within twelve (12) months from the date of invoice. Unused Professional Services will expire upon expiration of such twelve (12) month period and any prepaid Fees for such expired Professional Services will not be refundable. 

2. Change Orders

If You wish to change the scope or performance of the Professional Services, You may notify Us and submit to Us details of the requested change in writing (“Change Order Request”). Within a reasonable time of receipt of Your notice, We will inform You if we accept the Change Order Request and, if so, (i) the likely time required to implement the change, (ii) any necessary variations to the fees and other charges for the Professional Services arising from the change, (iii) the likely effect of the change on the Professional Services and (iv) any other impact the change might have on the performance of this Professional Service Addendum. The parties will then negotiate a reasonable adjustment to the fees, timetable and other terms of the Professional Services as necessary in good faith. Neither party will be bound by any Change Order Request and the original Statement of Work will remain in effect, unless and until mutually agreed upon otherwise in writing.

3. Devo Personnel

      1. Employment. Our Personnel who will perform the Professional Services to You will remain Our Personnel, and will not be considered to be Your employees, agents or representatives, nor will they be entitled to any benefits (including paid vacation and membership in insurance, pension, disability and other group plans) or forms of compensation or rewards that You grant to Your employees. We are solely responsible for payment of: (a) all income, disability, withholding and other employment taxes related to Our Personnel; and (b) all compensation, medical benefit premiums, vacation pay, sick pay, holiday pay, severance or termination pay or other fringe benefits for Our Personnel from the provision of the Professional Services under this Professional Service Addendum. We are and will remain responsible for the day to day supervision, control, terms and conditions, hiring, verification of eligibility to work, discipline, performance management, termination, scheduling and health and safety of Personnel, and will ensure that Our Personnel do not seek to obtain the same from You. 
      2. Selection of Personnel. We will provide adequate Personnel to provide the Professional Services to You in accordance with each Statement of Work.  All Personnel will be selected and assigned by Us based upon their expertise, qualifications, skills and experience through diligent recruiting and training.  All Personnel must exhibit a high degree of courteous service, responsibility, and be able to perform the Professional Services. All Personnel will be trained and supervised by Us in accordance with accepted industry practices. We will provide data privacy and data security training to Our Personnel at least annually and will provide documentation regarding such training to You upon Your reasonable request. If You, in Your reasonable discretion, determine that Devo Personnel lacks any of the foregoing, You will inform us accordingly in writing and may request that We replace such Devo Personnel. We will then cooperate with You in good faith to resolve the issue and, if necessary, will replace such Devo Personnel with Personnel who meets the requirements above. All Devo Personnel is subject to Devo’s Corporate Code of Business Conduct and Ethics, a copy of which may be found  and which may be updated from time to time.
      3. Background Checks. Before any U.S. Devo Personnel starts to perform Professional Services to You, We will perform or arrange for a third-party vendor to perform a background investigation on such U.S. Personnel, at a level consistent with Our standard policies.  Such background investigation will, at a minimum, consist of the following:  confirmation of identity and social security verification; verification of all education beyond high school; employment history verification; and state/county criminal background check to determine whether the Devo Personnel has been convicted of a felony. With respect to Our international Personnel, we will arrange for criminal reference checks in a form that is legally permissible and customary in the jurisdiction where the Personnel is resident.
      4. Access and Security Standards and Policies. Our Personnel is at all times subject to Devo’s access and security standards and policies in effect from time to time. You can obtain a current version of such standards and policies upon request to Devo at [email protected] We acknowledge and agree that any Personnel who is given access to Your premises or systems in connection with the performance of Professional Services under this Professional Service Addendum, will also be subject to Your applicable security standards which govern such access and we will instruct such Personnel accordingly. The foregoing will only apply, however, if and to the extent You clearly reference the security standards in the applicable Statement of Work and provide Us with a copy of such security standards in advance. If You do not provide a reference in the Statement of Work and do not provide Us with a copy, Our access and security standards and policies referenced above will exclusively govern and control. You acknowledge and agree that if Your security standards materially exceed the requirements of Devo’s applicable standards, the parties will follow the Change Order Request process outlined in section 2.

4. Insurance

We will at Our own cost and expense, obtain and maintain in full force and effect with companies maintaining an AM Best rating of not less than A-, VII, in the most current Best Guide from time to time, during the term of this Professional Service Addendum, the insurance coverage in the minimum amounts as follows (“Insurance Requirements”):  

    1. $1,000,000 per occurrence/$2,000,000 aggregate limit Commercial General Liability (including bodily injury, premises operations, independent contractor, products/completed operations, property damage, personal and advertising injury)
    2. $1,000,000 combined single limit Commercial Automobile
    3. Workers Compensation as required by state
    4. $5,000,000 Excess or Umbrella
    5. $5,000,000 Commercial Crime (Employee Dishonesty – to include 3rd party fidelity coverage)  
    6. $5,000,000 primary and $5,000,000 excess Cyber/Privacy Liability

We acknowledge and agree that the mere purchase and existence of the insurance coverages set forth above does not reduce, expand or release Us from liability incurred and/or assumed within the scope of this Professional Service Addendum.  

5. Ownership Rights

      1. Customer Materials. You and Your licensors are, and will remain, the sole and exclusive owner of all right, title and interest in and to the Customer Materials, including all Intellectual Property Rights therein. We agree and acknowledge that We have no right or license to use any Customer Materials except solely during the Term of the ToS and to the extent necessary to provide the Services and Professional Services to You. All other rights in and to the Customer Materials are expressly reserved by You.
      2. Custom Deliverables. If and to the extent a Statement of Work expressly provides that any documentation, ideas or other property, whether tangible or intangible, arising out of or resulting from Our performance of Professional Services under this Professional Service Addendum, are deemed “Custom Deliverables”, all right, title and interest in such Custom Deliverables will pass to You immediately upon payment of all fees for such Custom Deliverables to Us as provided in the Statement of Work. With respect to copyrights, We agree that all Custom Deliverables will be deemed a “work made for hire” and that You will be deemed the author thereof. If any Custom Deliverable is at any time determined to not be a work made for hire, we hereby irrevocably assign and transfer all right, title and interest to the Custom Deliverable to You, including all Intellectual Property Rights therein, but excluding at all times any Devo Materials. Upon Your reasonable request, We will and will cause Our Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist You to prosecute, register, perfect or record Your rights in or to any Custom Deliverables.
      3. Devo Materials. We and Our licensors remain the sole and exclusive owner of all right, title and interest in and to the Professional Services and any Devo Materials, including all Intellectual Property Rights therein. Subject to any non-disclosure obligations in effect between You and Us, We are not precluded from developing, using, or selling products or services that are similar to or related to the Professional Services and any deliverables created as part of the Professional Services, except any Custom Deliverables.

6. Warranties.

We represent and warrant that the Professional Services will conform in all material respects with all requirements or specifications stated in this Professional Service Addendum and the applicable Statement of Work for a period of 30 days after delivery. If We breach the foregoing warranty, We will, as Our sole and exclusive obligation and liability and Your sole and exclusive remedy at Our sole cost and expense cure such non-conformity by re-performing the non-conforming Professional Services. If, in Our reasonable discretion, a cure is not commercially feasible, We will terminate this Professional Service Addendum and refund to You any prepaid fees for the non-conforming Professional Services. The foregoing remedy is only available if You provide Us with written notice of such breach within 10 days after expiration of the warranty period set forth in this section 4. The foregoing remedy is not available in case of changes made to Professional Services that were not made by Us or a third party on Our behalf.

7. Subcontractors
We may use subcontractors to provide the Professional Services under this Professional Service Addendum if and to the extent such use is mutually agreed with You in writing. If We use such subcontractors, We will ensure that any subcontractor We use meets the requirements of and complies with this Professional Services Addendum and the relevant Statement of Work.

8. Expenses
If and to the extent expressly provided in a Statement of Work, You agree to reimburse Us for any documented out-of-pocket expenses actually incurred by Us in performing the Professional Services to You. Expenses in excess of $3,000 require Your written pre-approval. Notwithstanding the foregoing, any reimbursement of expenses will be subject to Your general expense reimbursement policy in effect from time to time. 

9. Cooperation

We may make the provision of Professional Services hereunder subject to Your performance of reasonable best efforts to cooperate with Us, if and to the extent required by Us to perform the Professional Services. In particular (without limitation), We may require You to (a) designate an employee to serve as the primary contact with respect to the Professional Services and who will have the authority to act on Your behalf with respect to this Professional Service Addendum; (ii) provide, subject to Section 3(d), such access to Your premises and systems as may reasonably be requested by Us, solely for the purposes of performing the Professional Services; (iii) respond promptly to any request by Us to provide information, approvals or authorizations that are reasonably necessary for Us to perform the Professional Services in accordance with this Professional Service Addendum or a Statement of Work; (iv) ensure that Your Equipment is in good working order and suitable for the purposes for which it is used in relation to the Professional Services.

10. Definitions.

Change Order Request” has the meaning set forth in Section 2.

Confidential Information” means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

Equipment” means any equipment, systems, cabling or facilities provided by You and used directly or indirectly in the provision of the Professional Services.

Customer Materials” any documents, data, know-how, methodologies, software and other materials provided to Us by You.

Custom Deliverables” means all documents, work product and other materials that are specifically custom designed, developed and delivered to You as a result of Professional Services hereunder and specifically identified as custom deliverables in a Statement of Work. 

Devo Materials” means all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided to You in connection with or developed by Us in the course of performing the Professional Services, including without limitation all enhancements, updates, upgrades, extensions, modifications and derivative works thereof and any and all Intellectual Property Rights therein. 

Disclosing Party” means a party that discloses Confidential Information under this Agreement. 

Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. 

Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

Project” means a project as described in a Statement of Work.

Project Milestone” means an event or task described in a Statement of Work which shall be completed by the relevant date set forth in the Statement of Work.

Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.

Personnel” means all employees, representatives, agents or contractors, if any, engaged by Us to perform the Professional Services.

Services” means any software services provided to You under the ToS.

Statement of Work” means each Statement of Work for the provision of Professional Services entered into by the parties under the ToS and this Professional Service Addendum. If You are also buying Services under the ToS, the Statement of Work may be combined with the Order Form and the Order Form shall be deemed the Statement of Work for purposes of this Professional Service Addendum.

ToS” means the Devo Terms of Service entered into between You and Us, into which this Professional Service Addendum is incorporated by reference.