Professional Developer Agreement

PROFESSIONAL DEVELOPER AGREEMENT

This Professional Developer Agreement (the "Agreement") is entered into as of by and between Client Name: with an address at (hereinafter "Client"), and Developer Name: with an address at (hereinafter "Developer"). Client and Developer are each a "Party" and collectively the "Parties."

RECITALS

WHEREAS, Client desires to retain Developer to perform software development, customization and related professional services described herein; and

WHEREAS, Developer represents that it has the skill, experience and personnel necessary to perform the services and deliverables; and

WHEREAS, the Parties desire to set forth the terms and conditions under which Developer will provide such services and assign rights in the resulting work product.

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

1. ENGAGEMENT; SCOPE OF SERVICES

1.1 Engagement. Client hereby engages Developer, and Developer accepts such engagement, to perform the software development services and deliverables described in the Project Specification attached hereto as Exhibit A and incorporated herein (the "Services").

1.2 Changes; Change Orders. Any change to the Services, schedule, or compensation shall be set forth in a written change order signed by authorized representatives of both Parties. Developer shall not be obligated to proceed with changed work until a change order is executed.

2. TERM; SCHEDULE

2.1 Term. The term of this Agreement commences on the Effective Date set forth above and continues until completion of the Services, unless earlier terminated in accordance with Section 11.

3. COMPENSATION; TAXES

3.1 Fees. Client shall pay Developer for Services in accordance with the fee schedule set forth below. Fees are exclusive of taxes and third-party costs unless otherwise stated.

3.2 Taxes. Developer is responsible for all federal, state and local taxes arising from Developer's compensation under this Agreement. Client may withhold amounts as required by law.

4. INDEPENDENT CONTRACTOR

Developer is an independent contractor. Nothing contained in this Agreement shall be deemed to create an employer-employee, partnership, joint venture, or agency relationship between the Parties. Developer shall be solely responsible for supervision, methods and control of its personnel and subcontractors.

5. INTELLECTUAL PROPERTY

5.1 Ownership. Except as expressly provided below, Developer assigns to Client all right, title and interest in and to all Work Product created for Client under this Agreement, and hereby irrevocably transfers all rights necessary for Client to fully exploit the Work Product worldwide in perpetuity. "Work Product" means software, code, documentation, designs, specifications and other deliverables created, developed or reduced to practice by Developer specifically for Client under this Agreement.

5.2 Moral Rights. To the maximum extent permitted by law, Developer waives and agrees not to assert any moral rights or droit moral with respect to the Work Product.

6. CONFIDENTIALITY

6.1 Definition. "Confidential Information" means non-public information disclosed by a Party that is designated confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

6.2 Obligations. The receiving Party shall (a) protect Confidential Information with at least the same degree of care it uses to protect its own confidential information; (b) use Confidential Information only to perform obligations or exercise rights under this Agreement; and (c) not disclose Confidential Information to third parties except as permitted herein.

7. WARRANTIES; DISCLAIMER

Developer warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards. Developer does not warrant that the software will be error-free or uninterrupted. Except for the express warranties set forth in this Section, Developer disclaims all other warranties, express or implied, including implied warranties of merchantability, fitness for a particular purpose, and noninfringement.

8. LIMITATION OF LIABILITY; INDEMNIFICATION

8.1 Limitation of Liability. Except for liability arising from gross negligence, willful misconduct, fraud, or Developer's breach of Section 5 (Intellectual Property), neither Party shall be liable for incidental, consequential, special or punitive damages. The aggregate liability of each Party under this Agreement shall not exceed the total fees paid by Client to Developer under this Agreement during the twelve (12) months preceding the claim.

8.2 Indemnification. Developer shall indemnify and hold Client harmless from third-party claims alleging that the Work Product infringes a third party's intellectual property rights, provided that Client (a) promptly notifies Developer of the claim in writing, (b) permits Developer to control the defense and settlement, and (c) provides reasonable cooperation at Developer's expense. This Section states the Parties' sole remedies and Developer's exclusive liability for infringement claims.

9. TERMINATION

9.1 Termination for Convenience. Either Party may terminate this Agreement for convenience upon days' prior written notice.

9.2 Termination for Cause. Either Party may terminate for material breach if the breaching Party fails to cure the breach within thirty (30) days after receipt of written notice specifying the breach.

9.3 Effect of Termination. Upon termination, Developer shall deliver to Client all completed Work Product and any materials necessary for Client to use same. Client shall pay Developer for Services performed and reimbursable expenses incurred through the effective date of termination, subject to offsets for any amounts owed by Developer to Client.

10. NOTICES

All notices, requests, consents and other communications required or permitted hereunder shall be in writing and delivered to the addresses set forth below (or to such other address as a Party designates by notice). Notice is effective upon delivery.

11. MISCELLANEOUS

11.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to conflict of laws principles.

11.2 Entire Agreement. This Agreement, including any exhibits and attachments, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written.

11.3 Amendments; Waiver. 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. No failure or delay in exercising any right shall operate as a waiver.

11.4 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect and the Parties shall negotiate in good faith to replace the invalid provision with a valid provision that carries out the Parties' intent.

11.5 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. Signatures provided by electronic means shall be binding.

SIGNATURES

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