Fixed Price Service Agreement

Fixed Price Service Agreement

This Fixed Price Service Agreement (the Agreement) is entered into by and between Service Provider Name: , a business entity organized as Individual Corporation LLC , with principal place of business at (Service Provider), and Client Name: , with principal place of business at , effective as of .

RECITALS

WHEREAS, Service Provider has expertise and experience in providing the services described in this Agreement and any appended statement of work; and

WHEREAS, Client desires to retain Service Provider to perform the services on a fixed price basis, and Service Provider agrees to perform such services under the terms and conditions set forth herein; and

WHEREAS, the parties intend for this Agreement to specify the fixed price, scope, schedule, acceptance criteria and allocation of risk between the parties.

NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1 "Services" means the professional services to be performed by Service Provider as described in the Statement of Work contained in Section 2 and any attachments. "Deliverables" means tangible work product resulting from the Services.

1.2 "Acceptance" means Client's written approval of Deliverables in accordance with the Acceptance procedure set forth in Section 5.

2. SCOPE OF SERVICES

2.1 Service Provider shall provide the Services and deliver the Deliverables in accordance with the specifications and milestones set forth below and in the Statement of Work.

3. FIXED PRICE; PAYMENT

3.1 Client shall pay Service Provider a fixed price for the Services in the total amount of $ (Fixed Price). The Fixed Price constitutes full compensation for the Services and Deliverables, subject to adjustments only as provided in Section 4.

3.2 Unless otherwise agreed in writing, Service Provider shall invoice Client in accordance with the Payment Schedule. Payment is due within days of receipt of a proper invoice.

4. CHANGES

4.1 Any change to the Scope of Services, price, or schedule shall be documented in a written change order signed by authorized representatives of both parties. Service Provider shall not be obligated to perform any changed work until a signed change order is executed.

5. ACCEPTANCE

5.1 Upon delivery of a Deliverable, Client shall have days to inspect and either accept the Deliverable or provide written notice of defects. Failure to provide timely notice shall constitute acceptance.

6. TERM; TERMINATION

6.1 This Agreement commences on the Effective Date and continues until completion of the Services unless earlier terminated as provided herein.

6.2 Either party may terminate this Agreement for cause if the other party materially breaches and fails to cure within days after written notice. Client may terminate for convenience upon days' prior written notice, with Client paying for Services performed through the effective date of termination and reasonable wind-down costs.

7. WARRANTIES; DISCLAIMERS

7.1 Service Provider warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards for a period of months following Acceptance. Service Provider's sole obligation and Client's exclusive remedy for breach of this warranty shall be re-performance of nonconforming Services or, if re-performance is not commercially feasible, a refund of the portion of the Fixed Price attributable to the nonconforming Deliverable.

7.2 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

8. INTELLECTUAL PROPERTY

8.1 Unless otherwise agreed in writing, Service Provider assigns to Client all right, title and interest in Deliverables created specifically pursuant to this Agreement, subject to Service Provider's ownership of pre-existing materials and tools ("Background IP"). Service Provider grants Client a non-exclusive, perpetual, worldwide license to use Background IP to the extent incorporated in Deliverables.

9. CONFIDENTIALITY

9.1 Each party shall hold confidential information of the other in strict confidence and shall not disclose such information except to its employees, contractors or advisors with a need to know and subject to confidentiality obligations at least as protective as those set forth herein. Confidential information does not include information that is (i) publicly known through no breach, (ii) already known by the receiving party prior to disclosure, or (iii) independently developed by the receiving party.

10. INDEMNIFICATION; LIMITATION OF LIABILITY

10.1 Service Provider shall indemnify, defend and hold Client harmless from third-party claims arising out of Service Provider's gross negligence or willful misconduct in connection with the Services. Client shall indemnify Service Provider for Client's negligent or willful acts.

10.2 EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS, EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES.

11. INSURANCE

11.1 Service Provider shall maintain, at its expense, insurance customary for the Services provided, including commercial general liability and professional liability insurance in commercially reasonable amounts and shall provide certificates of insurance upon Client's request.

12. NOTICES

12.1 All notices under this Agreement shall be in writing and delivered to the addresses set forth above, or to such other address as a party may designate by written notice. Notices are effective upon receipt.

13. GOVERNING LAW; DISPUTE RESOLUTION

13.1 This Agreement shall be governed by and construed in accordance with the laws of , without regard to its conflict of laws rules. The parties agree to attempt in good faith to resolve disputes by negotiation prior to instituting formal legal proceedings.

14. ENTIRE AGREEMENT; AMENDMENTS; SEVERABILITY; WAIVER; COUNTERPARTS

14.1 This Agreement, including the Statement of Work and any executed change orders, constitutes the entire agreement between the parties and supersedes all prior negotiations, proposals and agreements relating to the subject matter hereof.

14.2 No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. The failure of either party to enforce any provision shall not be construed as a waiver of that provision.

14.3 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect and the invalid or unenforceable provision shall be reformed to the minimum extent necessary to make it enforceable.

14.4 This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means shall be effective as original signatures.

15. MISCELLANEOUS

15.1 The parties are independent contractors and nothing in this Agreement creates an employment, partnership, joint venture or agency relationship. Each party shall be responsible for its own taxes and benefits.

15.2 If performance of the Services is delayed by events beyond a party's reasonable control, the time for performance shall be extended for the period of the delay.

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