PROFESSIONAL SERVICES

Part I: Rates and Charges.

Part II: Service Description and Requirements.

Part III. Terms and Conditions.

Part I: Rates and Charges.

1.   General.  Customer will pay all charges for the Professional Services as set forth in the applicable statement of work (“SOW”) or Service Order (if applicable) subject to additions and deductions made by written Change Order(s).  Verizon will submit invoices to Customer for amounts due under the SOW.  Payment terms may include recurring, nonrecurring, work time (per hour), materials, travel, lodging, shipping, handling, insurance and other charges, as provided in the SOW.

2.   Service Provider.  The products and services under this Service Attachment and related SOWs are provided by the Verizon Providers indicated in the applicable SOW except as otherwise explicitly noted.

Part II: Service Description and Requirements.

1.   Scope of Services.  Verizon will provide the technical and consultative services, as well as deliver any reports or other deliverables (collectively, “Deliverables”), specified in the applicable SOW agreed to under this Service Attachment.  Such services and Deliverables are collectively referred to in this Service Attachment as the “Professional Services.” The Professional Services under a particular SOW are referred to as a “Project.”

2.   SOW and Terms & Conditions.  The SOW, as supplemented by this Service Attachment, the Service Order (if applicable) and the online master terms (“Master Terms”) sets forth the terms and conditions for each Project (collectively, the “Agreement”).  To the extent there is any conflict between an SOW, a Service Order (if applicable), the Service Attachment and the Master Terms, the order of precedence is: (a) Service Order (if applicable), (b) Service Attachment, (c) Master Terms and (d) SOW.  All SOWs must be in writing, follow the format of the standard Verizon SOW template (including all required information and Conditions, as defined below), be signed by an authorized representative of each party, and refer to the Agreement by number or by title and date.  An SOW may include Customer purchase orders as part of its documentation but any terms and conditions contained in purchase orders are rejected, void and have no force or effect.

3.   Conditions.  An SOW may identify assumptions, expectations and dependencies on which the SOW is based (“Conditions”).  Each party will notify the other promptly if it determines that a Condition has not been met or is unlikely to be met.  If Verizon reasonably determines that the failure of a Condition to be met has adversely impacted Verizon’s likely costs, required effort, timelines or other any aspect of the performance of the Professional Services and delivery of the Deliverables, and Verizon proposes an SOW amendment to cure it, the parties will work diligently to reach agreement on an SOW amendment to cure the impact on Verizon, and, without limiting any other Verizon right or remedy under the Agreement or at law, Verizon may suspend work on the Project until the parties have reached that agreement. The preceding sentence does not apply if Verizon reasonably could have caused the Condition to be met but did not.

4.   Amendments to SOWs.

4.1 Either party may propose an amendment to an SOW by submitting a written request for a change to the other party’s Project Manager.  All written submissions proposing an amendment may be by e-mail.

4.2 Verizon will document the request for change via a formal project change request (“Change Order”), which will set forth the terms and conditions for the changes requested.

4.3 If Customer agrees in writing to the Change Order and authorized representatives of both the Customer and Verizon execute the Change Order, then the SOW is amended by the Change Order and both parties will perform their obligations under the SOW as amended.

5.   Performance and Acceptance.  Verizon controls the means, methods, places and time of its performance of the Professional Services (including the use of subcontractors and consultants); references to “Verizon” in this Service Attachment include all Verizon agents and contractors.  While working on a Customer Site, Verizon will abide by Customer’s stated security rules for the site provided those rules are provided to Verizon in advance of any site visits.  Except as stated otherwise in an SOW, each Deliverable and the Professional Services altogether are deemed accepted and complete upon the earlier of either: (a) use by Customer, or (b) five days after delivery/performance unless Customer promptly demonstrates to the reasonable satisfaction of Verizon that the Deliverable or Professional Services altogether (as applicable) fails to meet the acceptance criteria in the SOW (if any) or the requirements of the Agreement.

6.   Customer Obligations.

6.1 Assistance.  Customer agrees to provide working space and facilities and any other assistance and support that Verizon may reasonably request in order to perform the Professional Services.  Without limiting the foregoing, Customer will (a) make any systems to be tested as part of the Professional Services available through the duration of the testing period; (b) ensure that any systems to be tested will have normal operating throughput; (c) make any systems to be tested available from the Internet, or provide alternative means of connectivity to the Verizon testing location; (d) provide all systems, policy, process and other documentation reasonably requested; (e) make available all necessary personnel (including Customer customers, business partners, and vendors, as appropriate) to Verizon during the period of performance; (f) provide Verizon with a list of appropriate contact personnel including after-hours emergency contact numbers, if requested; and (g) participate in meetings requested by Verizon as may be reasonably required to perform the Professional Services.  Customer shall comply with all other obligations set forth in the Agreement. Without limiting any other Verizon right or remedy under the Agreement or at law, Verizon is excused from any failure or delay resulting from Customer’s failure to fulfill its obligations under the Agreement in a timely manner.

6.2 Authority to Permit Professional Services.  Customer represents and warrants that: (a) it has and will continue to have full rights, power, and authority to consent to having the Professional Services provided in the manner as agreed upon in the SOW; (b) it has obtained in writing all consents, approvals and licenses necessary from any third party to allow Verizon to provide the Professional Services in the manner as agreed in the SOW; and (c) it will use the Professional Services for lawful purposes only.  Customer agrees to indemnify, defend and hold harmless Verizon from any loss, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses and those of other professionals) incurred by Verizon as a direct or indirect result of Customer’s breach of the foregoing representation and warranty.

7.   Term. An SOW will automatically expire upon completion of the Project or upon reaching the end of the contract term as indicated in the SOF, whichever comes first.  Either party may terminate an SOW (even before it is completed) according to the same terms under which the Agreement could be terminated, except to the extent the SOW states otherwise.  Upon termination of an SOW or the Agreement for any reason, each party will promptly return to the other all copies of any data, records, or materials of whatever nature or kind, owned by the other party (or its subcontractors, consultants, or suppliers).  Verizon also will furnish to Customer any Customer-owned work in progress for which payment has been received. Verizon may terminate an SOW if the parties have not agreed on a Change Order to cure the impact on Verizon from an unmet Condition within 45 days of Verizon providing the applicable Change Order to Customer.  Without limiting any other Verizon right or remedy under this Agreement or at law, if a SOW is terminated by Customer for any reason other than Cause or by Verizon for Cause or pursuant to this Section 3, Customer agrees to pay Verizon: (a) all accrued but unpaid charges incurred through the date of such termination; and (b) an amount equal to seventy five per cent (75%) of any remaining fixed charges under the SOW.  Customer acknowledges any payment to be made pursuant to the preceding sentence is a genuine pre-estimate of the loss suffered by Verizon as a result of the early termination of the SOW and not a penalty and will become due and payable by Customer immediately upon receipt of an invoice.

8.   Hours of Performance.  Unless otherwise agreed in an SOW, Professional Services will be performed between the hours of 9:00 a.m. and 6:00 pm (local time where Professional Services are performed) Monday through Friday excluding public and generally observed holidays where the Professional Services are performed.

Part III: Terms and Conditions.

1.   Customer’s Use of Deliverables.

1.1 License to use Deliverables.  Verizon grants to Customer a non-exclusive, nontransferable, license to use any Deliverables solely for Customer’s internal business purposes during the term of any related Verizon service, including the right to make a reasonable number of copies of such Deliverables, if applicable, except as otherwise agreed to in an SOW.

1.2 Ownership and Confidentiality of Deliverables.  As between Verizon and Customer, all right, title and interest in any Deliverable is owned by Verizon and both the Deliverable and any information, materials, methodologies or know-how used by Verizon in connection with any Deliverable, is the Confidential Information of Verizon, except for (a) any Customer-owned information or materials that pre-existed the signing of the applicable SOW, and (b) as otherwise agreed to in an SOW.

1.3 Verizon Reservation of Rights.  Except as expressly granted herein, Customer receives no ownership, license, or other interest in any intellectual property or proprietary information created or delivered by Verizon, whether in connection with its performance of this Agreement or otherwise.

2.   Warranties and Disclaimers.

2.1 Verizon Warranty.  Verizon warrants that it will perform each Project in a good and workmanlike manner substantially in accordance with accepted industry standards, and that any Deliverables will comply with the specifications agreed to by the parties in an SOW.

2.2 Customer Warranty.  Customer warrants that it owns all right, title, and interest in and to, or has the license for and the right to grant Verizon access to, any programs, systems, data, materials, IP addresses, domains or other information furnished by Customer to Verizon for the purpose of enabling Verizon to perform the Professional Services.  Customer hereby assumes the sole responsibility for the accuracy of the IP addresses, domains, programs, systems, data, materials or other information furnished by Customer to Verizon.

2.3 Verizon’s Disclaimer of Warranties.  Without limiting anything else in this Service Attachment, the disclaimer of warranties in the Master Terms applies to this Service Attachment.  Any Verizon warranty applies to Customer only.

3.   Limitation of Liability.

3.1 Third Party Products and Services.  Verizon may direct Customer to third parties having products or services which may be of interest to Customer for use in conjunction with the Professional Services. Notwithstanding any Verizon recommendation, referral or introduction, Customer will independently investigate and test third-party products and services and will have sole responsibility for determining suitability for use of third-party products and services, and for any contracts Customer enters into with third parties. Verizon has no liability with respect to claims related to or arising from use of third-party products and services. This provision does not apply to the work of subcontractors or other agents that is done on Verizon’s behalf.

3.2 Disclaimer of Liability.  Without limiting the liability disclaimers in the Master Terms, Verizon is not liable for any loss of or damage to Customer data.  Customer is responsible for backing up all data.

3.3 Extent of Verizon’s Liability.  Without limiting the liability disclaimers in the preceding subsection and the Master Terms, the total liability of Verizon to Customer may not exceed the lesser of (a) direct damages proven by the moving Party or (b) the aggregate amounts due from Customer to Verizon under the Agreement for the 6 month period prior to accrual of the claim for the portion of the Professional Service which forms the basis for such claim, except that this limitation does not apply to actual, direct damages to real property or tangible personal property or for personal injury or death, resulting from Verizon’s negligence or willful misconduct.  Under no circumstances will either party be liable for damages that could have been avoided by the other party’s exercise of reasonable diligence.

4.   Interconnection.  Customer will permit Verizon to connect diagnostic software and equipment (“Diagnostic Facilities”) to Customer’s communications network and equipment (“Customer Network”) for purposes of performing the Professional Services.  Verizon has no liability or obligation for: (a) the installation, operation or maintenance of the Customer Network; (b) the availability, capacity and/or condition of the Customer Network; or (c) any adverse impact of the Professional Services on the Customer Network. The Diagnostic Facilities are Service Equipment for the purposes of the Agreement.

5.   Independent Contractors.  The parties are independent contractors to one another, and nothing in this Agreement creates an employer-employee relationship between Customer and either Verizon or any employee or agent of Verizon.

6.   Geographic Limitations.  Unless expressly stated to the contrary in the SOW, Professional Services are offered to Customer only within those jurisdiction(s) where the Verizon entities identified in the SOW as performing the Professional Services are incorporated and are legally entitled to perform the Professional Services. Unless expressly stated to the contrary in the SOW, if the foregoing conditions are not met in relation to the SOW, Verizon may terminate the SOW by notice in writing to Customer and the SOW has no further effect.

7.   Non-Solicitation of Employees.  Except with the prior written consent of the other party, both parties agree that, during the term of a Project and for a period of 12 months thereafter, they shall not directly solicit, divert or recruit any employee of the other, who is or was involved in the performance of the Project at any time during the term of the Project, to leave such employment.  This restriction does not prevent a party from considering for employment any individual, whether or not an employee of the other party, who has responded to a general public solicitation.

8.   Professional Services relating to Security.

8.1 Customer Acknowledgement.  Customer accepts and agrees that Professional Services relating to security are only one component of Customer’s overall security program and are not a comprehensive security solution, and Customer is always responsible for exercising care reasonable under the circumstances in monitoring and managing its security environment and mitigating the risks associated with any potential or actual security hazard.  Customer acknowledges, in particular, that (a) it is impossible to detect, disclose and/or resolve every vulnerability or security hazard, (b) that unauthorized access may occur and (c) that impenetrable security cannot be attained.

8.2 Risks Associated with Assessment Services.  Professional Services relating to security may include penetration testing, ethical hacking, scanning, vulnerability assessment, war dialing, social engineering or similar activities (“Assessment Services”) targeting certain IP addresses, network domains or segments, telecommunications, hardware, software or other utilities, applications, processes, data, groups or individuals (“Service Target”).  Assessment Services may also include testing the effectiveness of the security policies, training, procedures and controls of Customer’s organization or the organization of a third party, whether an outside service provider to Customer or another type of Customer business partner (“Customer OSP”), and/or testing and auditing the security awareness of Customer’s and Customer OSP’s employees and personnel. Such activities also include deceptive testing activities to gain “unauthorized access” to Customer’s network systems or confidential security related information (“CS Information”).  Such “unauthorized access” is used to describe Verizon’s attempts to gain access to Customer’s network and information through testing activities that are not authorized by Customer’s network security policies so as to exploit Customer’s network and CS Information security vulnerabilities.  Reference to “unauthorized access” does not mean that Customer has prohibited authorization of the testing activities themselves.  Customer acknowledges that certain risks are inherent in Assessment Services and, without limiting the foregoing, that Assessment Services may, in some circumstances, result in adverse consequences including, without limitation, performance degradation, loss of, disruption to or unavailability of, the Service Target or loss of connection, data or utilities. Customer agrees to assume all risk for any adverse consequences resulting from or associated with: (a) the Assessment Services; and (b) the timeframe within which it elects or authorizes Verizon to perform the Assessment Services.  Verizon shall take reasonable steps to mitigate risks from Assessment Services; however, Customer understands that such risks cannot be eliminated. Customer agrees to indemnify, defend and hold harmless Verizon from any loss, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses and those of other professionals) incurred by Verizon as a direct or indirect result of Verizon’s performance of the Assessment Services, including, without limitation, assessment of assets that are not controlled directly by Customer (e.g., servers hosted by third parties).  The foregoing indemnity does not apply to the extent any such loss, damage, liability cost or expense arises from Verizon’s actions or omissions that are or are found to be (a) knowingly outside the scope of the Assessment Services agreed upon, or (ii) reckless, wanton, malicious, illegal or deliberately negligent.