Legal Document RSK&S LLC

LEGAL DOCUMENT RSK&S LLC

This Professional Services Agreement (the "Agreement") is made and entered into as of , by and between Provider: with principal place of business at , and Client: with principal place of business at .

RECITALS

WHEREAS, Provider is engaged in the business of providing professional consulting, advisory and related services and possesses the qualifications, experience and ability to provide the Services described herein; and

WHEREAS, Client desires to retain Provider to perform certain professional services and Provider agrees to perform such services on the terms and conditions set forth in this Agreement; and

WHEREAS, the parties wish to set forth their rights and obligations with respect to the performance, delivery, payment and ownership of work product arising from the services.

NOW THEREFORE, in consideration of the mutual promises set forth 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 provided by Provider to Client as described in Section 2 and any Statements of Work executed pursuant to this Agreement.

1.2 "Deliverables" means tangible or intangible work product resulting from the Services, as identified in a Statement of Work or otherwise agreed in writing by the parties.

2. SCOPE OF SERVICES

Provider shall perform the Services described in each Statement of Work agreed by the parties. Each Statement of Work shall reference this Agreement and shall describe the Services, Deliverables, schedule, key milestones and acceptance criteria.

3. TERM

3.1 This Agreement shall commence on the date first written above and shall continue for an initial term of unless earlier terminated in accordance with Section 12. Thereafter the Agreement shall .

4. COMPENSATION AND PAYMENT

4.1 Client shall pay Provider the fees set forth in each Statement of Work. Unless otherwise provided, fees are due within days from invoice date. Provider shall invoice Client in accordance with the billing schedule in the applicable Statement of Work.

4.2 Late payments shall accrue interest at a rate of or the maximum permitted by law, whichever is less.

5. EXPENSES

5.1 Client shall reimburse Provider for pre-approved, reasonable out-of-pocket expenses incurred in connection with performance of the Services upon submission of receipts or other documentation reasonably acceptable to Client.

6. CONFIDENTIALITY

6.1 Each party (a "Receiving Party") acknowledges that it may receive Confidential Information of the other party (a "Disclosing Party"). "Confidential Information" includes non-public business information, technical data, specifications, trade secrets, and other proprietary information disclosed in any form.

6.2 The Receiving Party shall: (a) hold Confidential Information in strict confidence; (b) not use Confidential Information except to perform its obligations under this Agreement; and (c) not disclose Confidential Information to any third party except to employees, contractors or professional advisors who have a need to know and who are bound by confidentiality obligations no less protective than those herein.

6.3 Confidentiality obligations shall not apply to information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was known by the Receiving Party prior to disclosure; (c) is rightfully received from a third party without obligation of confidentiality; or (d) is independently developed by the Receiving Party.

7. INTELLECTUAL PROPERTY

7.1 Unless otherwise set forth in a Statement of Work, Provider shall retain ownership of Provider's pre-existing intellectual property and tools. Provider grants Client a non-exclusive, non-transferable license to use any Provider pre-existing materials included in the Deliverables solely for Client's internal business purposes.

7.2 Unless otherwise agreed in writing, that portion of Deliverables that is a work made for hire under applicable law shall be owned by Client upon full payment; to the extent ownership cannot be assigned, Provider hereby assigns and transfers all right, title and interest in such Deliverables to Client, subject to third-party rights and limitations expressly set out in this Agreement.

8. REPRESENTATIONS AND WARRANTIES

8.1 Each party represents and warrants that it has the full corporate power and authority to enter into and perform this Agreement and that the Agreement is a valid and binding obligation enforceable in accordance with its terms.

8.2 Provider warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards. Client's sole remedy for breach of this warranty shall be re-performance of the nonconforming Services or, if Provider fails to correct such nonconformity within a reasonable period, a refund of fees paid for the nonconforming Services.

9. INDEMNIFICATION

9.1 Provider shall indemnify and hold Client harmless from and against any third party claims, damages, liabilities and costs (including reasonable attorneys' fees) arising out of Provider's breach of its representations or willful misconduct in performing the Services.

9.2 Client shall indemnify and hold Provider harmless from and against any third party claims, damages, liabilities and costs (including reasonable attorneys' fees) arising out of Client's breach of this Agreement, misuse of the Deliverables or willful misconduct.

10. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THE APPLICABLE STATEMENT OF WORK IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

11. INSURANCE

Provider shall maintain commercial general liability and professional liability insurance in amounts sufficient to cover its obligations under this Agreement. Upon request, Provider shall provide certificates of insurance evidencing such coverage.

12. TERMINATION

12.1 Either party may terminate this Agreement upon written notice if the other party materially breaches any provision of this Agreement and fails to cure such breach within days after receipt of written notice specifying the breach.

12.2 Upon termination, Client shall pay Provider for Services performed and expenses incurred through the effective date of termination. Sections concerning confidentiality, indemnification, ownership and limitation of liability shall survive termination.

13. NOTICES

Any notice required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by certified mail (return receipt requested), or delivered by nationally recognized overnight courier to the addresses below or to such other address as the parties may designate in writing.

14. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state specified below, without regard to principles of conflicts of law.

15. ENTIRE AGREEMENT

This Agreement, together with all Statements of Work and attachments executed hereunder, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether oral or written.

16. SEVERABILITY

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

17. AMENDMENTS; WAIVER; ASSIGNMENT

No amendment or modification of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. No waiver shall be effective unless in writing signed by the waiving party. Neither party may assign this Agreement without the prior written consent of the other, except that Provider may assign to an affiliate or successor in connection with a merger or sale of substantially all of its assets.

18. COUNTERPARTS

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. Electronic or facsimile signatures shall be binding and treated as originals for all purposes.

19. MISCELLANEOUS

The headings in this Agreement are for convenience only and shall not affect its interpretation. The parties acknowledge that they have had the opportunity to review this Agreement with counsel and that any ambiguities shall not be construed against either party as drafter.

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