Professional Services Agreement
Last updated January 18, 2025
This Professional Services Agreement (“Agreement” or "PSA") is between Rōg Consulting LLC with its main place of business at 6853 Lorena Lane, Eden Prairie, MN 55346 ("Rog Consulting” or “Service Provider”), and the customer ("Customer" or "Licensee"), as identified in the Implementation Agreement or Quote between the Parties ("Implementation Agreement" or "Quote"). Each of Customer and Rog Consulting are a "Party" to this PSA and together the “Parties”. The signing of any Quote and payments made as outlined in the Quote constitute the agreement of the terms of this Agreement and will be effective on the date of the first payment of the Quote and any of its related invoices. This Agreement shall also apply to any entity that is owned or controlled by, or under common control with, either Party (an “Affiliate”), such control evidenced by ownership of 50% or more of the voting equity interests in such Party.
The terms of each written Quote made part hereof are subject to any and all conditions and provisions set forth herein. A Quote shall become a part hereof when executed by an authorized representative of both of the Parties. Each Quote shall contain such additional terms and conditions as agreed upon by the Parties. In the event of a conflict between the terms of this PSAA and any Quote, unless otherwise specified therein, the language of this PSA shall prevail. For the avoidance of doubt and as an example, in the event of a conflict between the terms of this PSA and any linked terms set out in the Implementation Agreement or Quote, i.e. SPEEDms software terms of service, Data Protection Addendum, or other, the terms of this PSA shall prevail.
In consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS
1.1 "Affiliated Entity" means an entity that is an Affiliated Person.
1.2 "Affiliated Person" of another person or entity means (i) any person or entity directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting shares of such other person or entity; (ii) any person or entity 5 per centum or more of whose outstanding voting shares are directly or indirectly owned, controlled, or held with power to vote, by such other person or entity; (iii) any person or entity directly or indirectly controlling, controlled by, or under common control with, such other person or entity; (iv) any officer, director, partner, copartner, or employee of such other person or entity; (v) if such other person or entity is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (vi) if such other person or entity is an unincorporated investment company not having a board of directors, the depositor thereof.
1.3 “Confidential Information” means information maintained by a Party as confidential and not generally known within the industry. Confidential Information of Service Provider will include, without limitation, the Service Provider’s Intellectual Property and any other business, technical, or financial information that satisfies the conditions set forth in the preceding sentence. Confidential Information also includes, without limitation, any information exchanged under other confidentiality agreements between Service Provider and Licensee, and any information exchanged during discussions or exchanges prior to this PSA.
Confidential Information does not include information that:
(i) is or becomes generally known in the public domain through no act or omission of Licensee;
(ii) a Party regularly discloses to third parties without restriction on disclosure;
(iii) is independently developed by employees or independent contractors of the Party receiving the information and who had no access to any Confidential Information; or
(iv) is already rightfully known to the Party receiving the information (as conclusively established by its records) without nondisclosure obligations before the Party received such information.
In addition, a Party may use or disclose Confidential Information to the extent:
(i) approved in writing by the other Party; or
(ii) required by law, rule, regulation, code, or legal process, or pursuant to a subpoena, court order, or other similar process or governmental requirement; provided, however, that prior to any such compelled disclosure, the Party receiving the information will (to the extent permitted by such disclosure requirement) give the other Party reasonable advance notice of any such disclosure and cooperate with the other Party in protecting against any such disclosure and/or obtaining a protective order.
1.6 “Improvements” mean any modifications, variations, revisions, adaptations, additions, subtractions, perfections, enhancements, updates, or upgrades to the Service Provider’s and its Affiliated Entities’ Intellectual Property, the Licensed Technology now known or unknown, whether patentable or unpatentable, and whether or not reduced to practice, which has the consequence of improving, in whole or in part, in any manner or to any extent, any feature, component, attribute, parameter, embodiment, or any other aspect of Service Provider’s Intellectual Property or the Licensed Technology.
1.7 “Intellectual Property” means:
(i) trade secrets, information maintained in secret whether or not designated as a trade secret, ideas, discoveries, research and development, know-how, formulae, compositions, manufacturing and production processes and techniques, procedures, combination of steps, technical and other data, designs, drawings, diagrams, flow charts, specifications, source code, object code, program listings and test results;
(ii) inventions and designs (whether patentable or unpatentable, and whether or not reduced to practice), all improvements thereto, and all patents, patent applications and patent disclosures, together with all re-issuances, corrections, continuations, continuations-in-part, divisionals, revisions, extensions and re-examinations thereof, whether foreign or domestic;
(iii) distinctive identifiers, including trademarks, service marks, trade dress, logos, trade names and corporate names, including but not limited to SIX SCORE™, together with all translations, adaptations, derivations and combinations thereof, including all goodwill associated therewith, whether foreign or domestic;
(iv) copyrightable works of expression, all copyrights (whether or not registered), all copyright applications, registrations, renewals in connection therewith, whether foreign or domestic, derivative works and moral rights thereof;
(v) business marketing plans, proposals and strategies, markets and marketing methods, customer lists and customer information, sponsor lists and sponsor information, partner lists and partner information, purchasing techniques, supplier lists, supplier information and advertising strategies;
(vi) any and all rights to obtain, register, perfect and enforce contractual, proprietary, and statutory interests, among others, in and to the foregoing in any country, region, or jurisdiction of the world; and,
(vii) any and all rights to file and prosecute any past or current patents, patent applications and patent disclosures, together with all re-issuances, continuations, continuations-in-part, divisionals, revisions, corrections, extensions, and re-examinations thereof, whether foreign or domestic.
1.8 “New Intellectual Property” means, other than any Improvements, any and all Intellectual Property that is made, conceived, created, developed, or acquired after the Effective Date, and arises from or relates to: (i) any and all relationships, engagements and/or arrangements between Service Provider and its Affiliated Entities on the one hand and Licensee on the other hand, including, without limitation, this Agreement; and/or (ii) any and all exploitation of the Services by Subscriber’s affiliates, partners, or customers.
1.9 “PII” or “Personal Information” means non-public personal information about an individual as defined in the Gramm-Leach Bliley Act (15 U.S.C. § 6801, et seq.), as further defined herein (“GLBA”).
1.10 “Privacy Laws” means all applicable federal, state, or international privacy statues that govern the protection of Personal Information, including but not limited to the GLBA.
1.11 “Representatives” means current and former equity holders, partners, directors, officers, limited and general partners, employees, independent contractors, consultants, agents, representatives and any other personnel, any Affiliated Entity of a Party and its directors, officers, limited and general partners, employees, independent contractors, consultants, agents, representatives, and any other personnel. Representatives also include former directors, officers, limited and general partners, employees, independent contractors, consultants, agents, representatives, and any other personnel still owning a duty or obligation to a Party or any Affiliated Entity of a Party.
2. TERM and TERMINATION
This Agreement shall be in effect for one year(s) from the Effective Date (“Initial Term”) unless terminated earlier or extended under the terms of this Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive one-year terms (each, a “Renewal Term”), unless either Party gives written notice of its intent not to renew at least thirty (30) calendar days prior to the end of the Initial Term or any Renewal Term. Either Party has the right to terminate this Agreement (and all Quotes) if the other Party has materially breached any obligation herein or in any Quote and such breach remains uncured for a period of seven (7) days after notice thereof is sent to the other Party. Either Party shall have the right to terminate this Agreement or any Quote at any time without cause upon thirty (30) days written notice of termination to the other Party. Upon termination by either Party, Rog Consulting shall immediately discontinue all Services to Customer, or, if termination is only with respect to a specific Quote, Rog Consulting shall immediately discontinue all Services to Customer under such terminated Quote. Upon termination of this Agreement for any reason, each Party shall be released from all obligations and liabilities to the other occurring or arising from this Agreement after the date of termination; provided, however, any termination of this Agreement shall not relieve Customer from the obligation to pay Rog Consulting for those Services provided by Rog Consulting prior to receipt of the notice of termination. Claims, actions or damages that may arise pursuant to Sections 5, 6, 7, 8, and 9 below shall survive termination of this Agreement.
3. SERVICES
During the term of this Professional Services Agreement, Rog Consulting shall provide Customer with the professional services described in any Quote (the “Services”). Rog Consulting agrees to provide the Services in a workmanlike and professional manner and using its best efforts.
4. FEES AND EXPENSES
The Customer shall pay Rog Consulting fees indicated within the applicable Quote. In addition to the fees described in the Quote, Customer will pay Rog Consulting reasonable and verifiable out-of-pocket expenses incurred by Rog Consulting in the performance of Services under the Quote, provided however, that such expenses shall be previously approved in writing by Customer such consent not be unreasonably withheld, delayed or conditioned, it being understood and agreed by the Parties that Customer is not responsible for any other fees or amounts except as an authorized representative of Customer may specifically approve in writing. Unless otherwise stated, Rog Consulting’ fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes (collectively, “Taxes”). Customer shall be responsible, on behalf of itself and its Affiliate(s), for the payment of all Taxes and fees assessed or imposed on the Services provided or the amounts charged under the Quote in any country or territory in which Customer receives the benefit of the Services, excluding Taxes for which Customer has provided a valid resale or exemption certificate. If Customer is legally entitled to an exemption from any Taxes, Customer must provide Rog Consulting with legally-sufficient tax exemption certificates for each taxing jurisdiction in which Customer seeks exemption from paying applicable taxes. Rog Consulting will apply the tax exemption certificates to charges under Customer’s account occurring after the date Rog Consulting receives the tax exemption certificates. If Customer is required by law to withhold or deduct an amount from payments due to Rog Consulting under this Agreement, Customer shall include such additional amount to Rog Consulting with its payment to ensure that Rog Consulting receives, after such withholding or deduction, the amount that it would have been paid had no withholding or deduction been required.
5. PAYMENT
Unless otherwise agreed in an applicable Quote, Customer shall pay Rog Consulting undisputed amounts for Services and reimbursable expenses within thirty (30) days of receipt of an invoice for such Services and expenses.
6. INDEMNITY
6.1 Infringement Indemnity.
Rog Consulting shall defend and indemnify Customer and its directors, officers, and employees, and stockholders, (collectively, “Indemnified Parties”) from and against all third party claims, actions, suits, demands, damages, obligations, losses, settlements, judgments, costs and expenses (including without limitation reasonable attorneys’ fees and costs) (“Claims”) which arise out of or relate to the shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States or other patent or any copyright or misappropriation of any trade secret, ("Infringement Indemnity"), provided however, Rog Consulting is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Rog Consulting will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) that are modified by Customer after delivery by Company, (ii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iii) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (iv) where Customer’s use of the Service is not strictly in accordance with this Agreement.
6.2 General Indemnity.
Each Party will defend, hold harmless and indemnify the other Party its Affiliates, directors, officers, members, managers, shareholders, and employees from and against all Claims, actions or damages incurred by or threatened against the other Party, arising out of, or relating to:
6.2.1 (1) death or bodily injury or (2) loss of or damage to real property resulting from any negligent act or willful misconduct of Rog Consulting except to the extent that such Claims result from, in whole or in part, (a) the negligence, unlawful or wrongful acts of Rog Consulting or any other person acting in concert with, or on behalf of Rog Consulting in discharging Rog Consulting’ obligations pursuant to this Agreement.
6.2.2 Any breach of any obligation for which a Party is responsible as an employer or contractor of its personnel;
Any breach by a Party of any representations or warranties made by, or obligations assumed by, the party under this Agreement and any Quote; or
6.2.3 Any negligent acts or omissions by, or willful misconduct of, a Party or its officers, agents, employees or directors (“Personnel”).
6.3 Except with respect to the Infringement Indemnity, in no event shall either Party be liable for any incidental, consequential, punitive or exemplary damages or lost profits under this Section 5 (entitled “Indemnity”), regardless of the legal theory under which such damages are sought, and even if it has been advised of the possibility of such damages.
7. RELATIONSHIP OF THE PARTIES
The Parties expressly understand and agree that Rog Consulting is an independent contractor wholly separate and apart from Customer, and that under no circumstances are Rog Consulting’ Personnel performing Services for the Customer to be considered the Customer's employees or agents. Rog Consulting' Personnel shall have no authority to make purchases or enter into or bind Customer to any contracts or other obligations on behalf of Customer.
It is expressly understood that Rog Consulting’ consultants shall not have any right or entitlement to any benefits, terms, conditions or privileges under any employee benefit plans, programs or practices which the Customer routinely provides to its employees, such practices, programs and plans to include but are not limited to pension benefit plans, group life insurance and major medical insurance.
It shall be the responsibility of Rog Consulting’ Personnel to control and supervise his/her day-to-day work habits, which he/she uses to perform Services under each Quote. Rog Consulting shall exercise such discretion consistent with the goal of completing the Services described in the Quote. Customer shall not require Rog Consulting to maintain specific office hours.
Rog Consulting has the right to perform Services for others during the term of this Agreement; Rog Consulting has the sole right to control and direct the means, manner and method by which the Services required by this Agreement will be performed. Rog Consulting has the right to perform the Services required by this Agreement at any place or location and at such times as Rog Consulting may determine. Customer shall not provide any insurance coverage of any kind for Rog Consulting and Customer shall not withhold from fees paid to Rog Consulting any amount that would normally be withheld from an employee's pay.
8. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
Rog Consulting agrees not to divulge to anyone, either during the term of this Agreement or thereafter, any of Customer’s confidential information, trade secrets, or other proprietary data or information of any kind whatsoever acquired by Rog Consulting in carrying out the terms of this Agreement. If Rog Consulting works on or provides any Deliverables (as defined below) under any Quote, the terms and conditions in this Section apply.
8.1 Deliverables.
“Deliverables” means all work product, discoveries, improvements, ideas, processes, techniques, specifications, diagrams, artwork, data files, formulae, code, programs, documents, manuals, sound or video recordings, designs, tooling, fixtures, molds, equipment, and inventions (whether or not patentable), including any works in progress, created, conceived, authored or invented by Rog Consulting (either solely or jointly with others), as a Quote or as Services to be provided specifically to Customer. Rog Consulting shall promptly disclose to Customer in writing the existence of any and all Deliverables.
8.2 Preexisting Materials; Customer Rights in Deliverables.
Pre-existing materials owned by Rog Consulting or third-party materials used to provide Services are not assigned to Customer and do not constitute or become Deliverables except to the extent that they may be specifically identified as a Deliverable in writing as part of a Quote. Upon payment of fees as specified in the Quote, Rog Consulting grants Customer a non-exclusive, license to use, reproduce and modify (if applicable) and distribute Deliverables in the form delivered to Customer as part of the Services only for Customer’s internal business operations and not to provide services to third parties, it being understood that using the Deliverables to facilitate Customer's exchanges with its investors or potential investors is considered “internal business operations”. Customer will not resell Deliverables to any third party. These use restrictions shall survive expiration or termination of this Agreement and any applicable Quote. Rog Consulting represents that it will not deliver to Customer any Deliverable for which the intellectual property rights in such Deliverable are owned by any party who has not consented to Customer’s use of such Deliverable as permitted herein.
8.3 Assistance for Vesting Rights.
Rog Consulting shall execute and deliver promptly to Customer (without charge to Customer but at the expense of Customer) all written instruments, and shall perform all other legal acts that Customer deems necessary or desirable, to enable Customer to obtain, defend, enforce, maintain or commercialize, any rights or protections for the Deliverables and materials not subject to preexisting ownership rights as described in Section 8.2 above and vest the entire right and title in and to such Deliverables and materials in Customer.
8.4 Residual Knowledge.
Rog Consulting retains the right to use the general knowledge, experience and know-how acquired by it in the course of performing Services for Customer (except to the extent the same constitutes confidential information of Customer pursuant to a separate written nondisclosure agreement by and between the parties or is a Deliverable provided to Customer pursuant to this Agreement and any applicable Quote).
8.5 Compensation and Incentives.
Rog Consulting bill rates, equity and or incentive agreements or models, conversion fees and other documents such as invoices, work schedules and Professional Services agreements or any other document provided to Customer that is related to the business dealings of Rog Consulting and/or Rog Consulting’ personnel and consultants shall also be considered confidential and proprietary to Rog Consulting and Customer shall not disclose such information to any third party without specific written authorization from Rog Consulting allowing it to do so.
9. WARRANTIES AND REPRESENTATIONS.
Rog Consulting warrants and represents that: (a) the Services shall be performed in accordance with description set forth in the applicable Quote; (b) that Deliverables will operate substantially in accordance with and will conform with any description of such Deliverables found in the applicable Quote; (c) Services and Deliverables shall not infringe upon or constitute a misuse of any copyright, patent, trade secret or other proprietary rights of third parties; (d) Rog Consulting has the authority to enter into this Agreement and to perform all obligations hereunder, including, but not limited to, the grant of rights and licenses to the Deliverables and all proprietary rights therein or based thereon; and (e) Rog Consulting has not granted any rights or licenses to any intellectual property or technology that would conflict with Rog Consulting’ obligations under this Agreement.
10. NON-SOLICITATION
Neither Party will directly or indirectly solicit for employment any employee of the other Party during the term of this Agreement and for a period of one year thereafter without the written consent of the other Party. To the extent Rog Consulting may engage an agent not an employee of Rog Consulting to provide Services pursuant to this Agreement, Customer shall not directly or indirectly solicit for employment, or engage as a consultant, such person during the term of this Agreement, and for a period of one year thereafter, without the written consent of the other Party. This prohibition will not apply if an employee or agent answers a Party’s notice of a job listing or opening, advertisement or similar general publication of a job search or availability for employment on his or her own initiative without any direct or indirect solicitation by such Party or its Affiliates.
11. ASSIGNMENT
Neither Party shall assign or transfer its rights or obligations pursuant to this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld, except that either Party may assign or transfer this Agreement to a successor as a result of a merger, consolidation, acquisition or sale of all or substantially all of the Parties’ assets. No such assignment or transfer shall have the effect of increasing the obligations of either party under this Agreement. The terms and conditions of this Agreement will inure to the benefit of, and shall be binding upon, each Party’s successors and permitted assigns.
12. GENERAL
No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver hereof; all waivers being required to be in writing signed by the waiving Party. This Agreement contains the full and complete understanding of the Parties with respect to the subject matter of this Agreement and supersedes all prior representations, communications and understandings concerning the same subject matter whether they be oral or written, express or implied. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which shall constitute one and the same document. This Agreement, along with any Quote and any other amendments or exhibits agreed to in writing and signed by authorized representatives of each Party, is the sole and entire agreement between the Parties relating to the subject matter hereof, and supersedes all prior understandings, agreements and documentation relating to such subject matter. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree that any dispute, claim, or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be settled by binding arbitration to be held in New York, New York (or Chicago, Illinois), in accordance with the rules then in effect of the American Arbitration Association, and no Party may claim forum non conveniens. The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. This Agreement will be governed by the laws of the State of Delaware (or New York), without regard to that state’s conflict of laws provisions. The prevailing Party in any arbitration shall receive its costs and expenses of such arbitration from the non-prevailing Party, and each shall separately pay its counsel fees and expenses unless otherwise required by or as ordered by the arbitrator. The Parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration provision and without abridgment of the powers of the arbitrator. All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, emailed, faxed or five days after being deposited in the United States mails.
The Customer’s approval of and payment of invoices related to any Quote hereto have caused this Agreement to be executed by the respective duly authorized representatives as of the date of the execution and acceptance of any Quote and payment of its invoices.