Professional Services Agreement
THIS OKTA, INC. PROFESSIONAL SERVICES AGREEMENT ("PROFESSIONAL SERVICES AGREEMENT") GOVERNS THE PROVISION, PURCHASE, AND USE OF THE PROFESSIONAL SERVICES DESCRIBED HEREIN. BY SIGNING AN ORDER FORM FOR PROFESSIONAL SERVICES, YOU (“CUSTOMER”) ARE CONSENTING TO BE BOUND BY THIS PROFESSIONAL SERVICES AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. YOU AGREE THAT THIS PROFESSIONAL SERVICES AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS OR A GOVERNMENT AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS TO THIS PROFESSIONAL SERVICES AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS. OKTA PERMITS YOU TO PURCHASE PROFESSIONAL SERVICES ONLY IN ACCORDANCE WITH THE TERMS OF THIS PROFESSIONAL SERVICES AGREEMENT AND THE ORDER FORM(S).
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Professional Services Agreement. "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.
1.2 “Order Form” means an ordering document that specifies the Professional Services purchased by Customer under this Professional Services Agreement. Order Forms shall be subject solely to and incorporate by reference the terms of this Professional Services Agreement.
1.3 “Professional Services” means implementation services provided by Okta in connection with the Service, as described more fully in a Statement of Work. Professional Services shall not include the Okta subscription service.
1.4 “Statement of Work or SOW” means a document that describes certain Professional Services purchased by Customer under this Professional Services Agreement. Each Statement of Work shall incorporate this Professional Services Agreement by reference.
2. Professional Services.
2.1 Performance of Professional Services and Statements of Work. Customer and Okta may execute Statements of Work that describe the specific services to be performed by Okta in accordance with the terms and conditions of this Professional Services Agreement and of each Statement of Work. Each Statement of Work will expressly refer to this Professional Services Agreement, will form a part of this Professional Services Agreement, and will be subject to the terms and conditions contained herein. This Professional Services Agreement is limited to Professional Services and does not convey any right to use the Okta subscription services which shall be governed by a separate agreement. Customer agrees that its purchase of the Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Okta with respect to future functionality or features.
2.2 Okta Obligations. If applicable, while on Customer premises for Professional Services, Okta personnel shall comply with reasonable Customer rules and regulations regarding safety, security, and conduct made known to Okta, and will at Customer’s request promptly remove from the project any Okta personnel not following such rules and regulations.
2.3 Relationship of the Parties. Okta is performing the Professional Services as an independent contractor, is not an employee, agent, joint venturer or partner of Customer. Neither party has the authority to bind or act on behalf of the other party in any capacity or circumstance whether by contract or otherwise. Okta acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. Okta is solely responsible for all taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between Okta and its personnel and the performance of Professional Services by such personnel.
2.4 Customer Affiliates. Customer Affiliates may purchase and use Professional Services subject to the terms of this Professional Services Agreement by executing Order Forms or Statements of Work hereunder that incorporate by reference the terms of this Professional Services Agreement, and in each such case, all references in this Professional Services Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order or Statement of Work.
3.1 Fees. Customer shall pay Okta the fees set forth on the applicable Order Form (“Fees”) in accordance with this Professional Services Agreement and the Order Form. If not otherwise specified on an Order Form, Fees will be due within thirty (30) days of date of invoice. Except as otherwise specifically provided in this Professional Services Agreement, all Fees paid and payable to Okta hereunder are non-cancelable and non-refundable. Okta will invoice Customer for the Professional Services and other payments due under this Professional Services Agreement in accordance with the Order Form(s) and Statement of Work. If Customer fails to pay any amounts due under this Professional Services Agreement by the due date, Okta will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that Okta will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
3.2 Expenses. Unless otherwise specified in the applicable Statement of Work, upon invoice from Okta, Customer will reimburse Okta for all pre-approved, reasonable expenses incurred by Okta while performing the Professional Services, including without limitation, transportation services, lodging, meal and out-of-pocket expenses directly related to the provision of the Professional Services. Okta will include, upon request, reasonably detailed documentation of all such expenses in excess of twenty-five dollars ($25 USD).
3.3 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Okta’s net income or property).
4.1 Okta Ownership. Except for the rights expressly granted under this Professional Services Agreement, Okta retains all right, title, and interest in and to the Professional Services, including all related intellectual property rights inherent therein. Okta will own all rights, title and interest in any work product in a Statement of Work (“Work Product”), including all intellectual property rights therein.
4.2 Customer License. Subject to the terms and conditions of this Professional Services Agreement, Okta shall grant to Customer a worldwide, non-exclusive, non-transferable, non-sub-licensable license to use the Work Product solely for Customer’s internal business purpose and solely with the Okta subscription service separately licensed.
4.3 Reservation of Rights. Except as otherwise expressly provided herein, nothing in this Professional Services Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each party retains all right, title and interest in and to their respective technologies and other intellectual property rights.
5. Confidential Information.
5.1 Definition of Confidential Information. Each party (“Receiving Party”) may, during the course of its provision of Professional Services hereunder, receive, have access to, and acquire technical and business information from discussions with the other party (“Disclosing Party”) which may not be accessible or known to the general public, including, but not limited to, technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services and other third party proprietary or confidential information that Disclosing Party treats as confidential and is (i) in tangible form and labeled “confidential” or the like, (ii) if disclosed orally are summarized and confirmed in writing within a reasonable time from the initial disclosure, or (iii) information that a reasonable person knows or should have known to be confidential given the circumstances surrounding disclosure, (“Confidential Information”). Without limiting the foregoing, (i) Okta Confidential Information includes the Okta Work Product, and (ii) Confidential Information of both parties includes the terms of this Professional Services Agreement and any Statement of Work hereunder. Confidential Information shall not include or shall cease to include, as applicable, information or materials that (a) is now or becomes generally known to the public without breach of this Professional Services Agreement; (b) was rightfully known to the Receiving Party prior to its receipt thereof from the Disclosing Party; (c) is lawfully received from a third party without restriction to use or disclosure and without that third party’s breach of agreement or obligation of trust; or (d) is independently developed by or for the Receiving Party without access to the Confidential Information as shown by documents and other competent evidence in the Receiving Party’s possession.
5.2 Disclosure and Use Restrictions. The Receiving Party shall not: (i) use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Professional Services Agreement, except with the Disclosing Party's prior written permission, (ii) disclose or make the Disclosing Party’s Confidential Information available to any party, except those of its employees, contractors, and agents (“Representatives”) that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Professional Services Agreement and are bound by obligations of confidentiality at least as restrictive as those herein. Receiving Party shall be responsible for any breach of these confidentiality obligations by its Representatives, which shall be considered a breach by Receiving Party. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information if it is compelled to do so by applicable law or regulation or a court or administrative agency of competent jurisdiction; provided that, the Receiving Party provides the Disclosing Party with reasonably prompt written notice, to the extent legally permitted, of any such request or requirement so that the Disclosing Party may seek an appropriate remedy or waive compliance with this provision and reasonably cooperate with Disclosing Party in protecting against any such disclosure or obtaining a protective order narrowing the scope of such disclosure and/or use of Confidential Information. Receiving Party shall only disclose that portion of such Confidential Information that, in the opinion of its legal counsel, is reasonably required to be disclosed and shall exercise all commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information it discloses.
5.4 Injunctive Relief. Each party acknowledges that the unauthorized use or disclosure of Disclosing Party’s Confidential Information might cause Disclosing Party to incur irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, each party agrees that Disclosing Party will have the right to seek immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, in addition to any other rights and remedies that it may have at law or otherwise.
6.1 Professional Services Warranty. Okta warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services. As Customer’s sole and exclusive remedy and Okta’s entire liability for any breach of the foregoing warranty, Okta will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this limited warranty or refund to Customer the Fees paid for the non-conforming Professional Services.
6.2 Warranty Disclaimers. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 6.1, OKTA AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE PROFESSIONAL SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS PROFESSIONAL SERVICES AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 6.1. OKTA DOES NOT WARRANT THAT THE OPERATION OF THE WORK PRODUCT OR ANY OF THE PROFESSIONAL SERVICES PERFORMED PURSUANT TO ANY STATEMENT OF WORK WILL BE UNINTERRUPTED OR ERROR-FREE.
7. Indemnification. Okta will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Professional Services, as provided by Okta to Customer under this Professional Services Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). Okta will indemnify Customer for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Okta, in connection with an Infringement Claim; provided that Customer provides: (a) prompt written notice of any Infringement Claim for which Customer seeks and indemnity, (b) all cooperation and assistance reasonably requested by Okta in the defense of the Infringement Claim, and (c) sole control over the defense and settlement of the Infringement Claim, provided that Customer may participate in the defense of the claim at its sole expense. In the event of any such Infringement Claim, Okta may, at its option: (i) obtain a license to permit Customer the ability to continue using the Service; (ii) modify or replace the relevant portion(s) of the Professional Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Professional Services Agreement as to the infringing Professional Services and refund to Customer any prepaid, unused Fees for such infringing Professional Service hereunder. Notwithstanding the foregoing, Okta will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Professional Services made by a party other than Okta; (2) the combination of the Professional Services with other products, processes or technologies (where the infringement would have been avoided but for such combination); or (3) Customer’s use of the Professional Services other than in accordance with the Statement of Work and this Professional Services Agreement. The indemnification obligations set forth in this Section 7 are Okta’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
8. Limitation of Liability. IN NO EVENT WILL OKTA OR OKTA’S SUPPLIERS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE PROFESSIONAL SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS PROFESSIONAL SERVICES OR ANY WORK PRODUCT PROVIDED BY OKTA, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF OKTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OKTA’S TOTAL LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO OKTA BY CUSTOMER UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER.
9. Term and Termination.
9.1 Term. This Professional Services Agreement will commence on the date accepted and, unless terminated earlier in accordance with the terms of this Section 9, will remain in force and effect for as long as Okta is performing Professional Services pursuant to any Statement of Work.
9.2 Termination. Either party may terminate this Professional Services Agreement or any Statement of Work by written notice to the other party in the event that such other party materially breaches this Professional Services Agreement and does not cure such breach within thirty (30) days of such notice. Termination due to Customer’s breach shall not relieve Customer of the obligation to pay any Fees accrued or payable to Okta under this Professional Services Agreement or any Statement of Work for Professional Services provided prior to the effective date of termination. Upon any termination for cause by Customer, Okta will refund Customer a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered as of the effective date of termination. Notice of termination of any Statement of Work shall not be considered notice of termination of this Professional Services Agreement unless specifically stated in the notice; provided, however, any termination of this Professional Services Agreement shall automatically terminate all Statement(s) of Work.
9.3 Effect of Termination. Upon the expiration or termination of this Professional Services Agreement or of any Statement of Work: (i) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (ii) Customer will, within thirty (30) days after receipt of Okta’s invoice, pay all accrued and unpaid Fees and expenses. Notwithstanding the foregoing to the contrary, the Receiving Party may retain copies of project notes and work product for reference purposes, which the Receiving Party shall continue to treat as Confidential Information under this Professional Services Agreement. For the avoidance of doubt, anything that is stored on routine back-up media solely for the purpose of disaster recovery shall be subject to destruction in due course, provided that, employees are precluded from accessing such information in the ordinary course of business prior to destruction.
9.4 Survival. The rights and obligations of the parties contained in Sections 2.3 (“Relationship of the Parties”), 3 (“Payment”), 4.1 (“Okta Ownership”), 4.3 (“Reservation of Rights”), 5 (“Confidential Information”), 8 (“Limitation of Liability”), 9.3 (“Effect of Termination”), 9.4 (“Survival”),and 10 (“General provisions”) will survive the expiration or termination of this Professional Services Agreement or any Statement of Work.
10. General Provisions.
10.1 Assignment. Neither the rights nor the obligations arising under this Professional Services Agreement are assignable or transferable by Customer or Okta without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Professional Services Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of that portion of Okta’s business to which this Professional Services Agreement relates. Subject to the foregoing, this Professional Services Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
10.2 Governing Law, Venue, and Attorneys’ Fees. This Professional Services Agreement shall be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Professional Services Agreement will be brought exclusively in the federal or state courts located in San Francisco, California and the parties hereby consent to personal jurisdiction and venue therein. In any action to enforce this Professional Services Agreement the prevailing party will be entitled to costs and attorneys’ fees.
10.3 Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).
10.4 Force Majeure. If the performance of this Professional Services Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terrorism, riot, acts of God or governmental action, the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
10.5 Entire Agreement, Waiver, Conflict, and Severability. This Professional Services Agreement together with the Order Form(s) and all Statements of Work constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. No modification, amendment or waiver of any provision of this Professional Services Agreement or any Statement of Work will be effective unless in writing and signed by both parties hereto. The failure by either party to enforce any provision of this Professional Services Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provision. In the event of a conflict between the provisions of this Professional Services Agreement and the provisions of a Statement of Work, the provisions of the Statement of Work will govern and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Professional Services Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Professional Services Agreement shall not constitute a waiver thereof or of any other provision. In the event that any of the provisions of this Professional Services Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Professional Services Agreement shall otherwise remain in full force and effect and enforceable.