Professional eServices Agreement

PROFESSIONAL ESERVICES AGREEMENT

This Professional eServices Agreement ("Agreement") is made as of by and between Client Name: Client Address: and Service Provider Name: Provider Address: .

RECITALS

WHEREAS, Client requires certain electronic professional services, software, platform access and related deliverables as described herein (the "Services"); and

WHEREAS, Service Provider represents that it possesses the expertise, personnel, and infrastructure necessary to provide the Services in a professional and workmanlike manner; and

WHEREAS, the parties desire to set forth the terms and conditions under which Provider will provide such Services to Client.

NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:

1. SERVICES

1.1 Scope. Provider shall perform the Services described in the statement of work below in accordance with the terms of this Agreement and any accepted change orders.

2. STANDARDS, DELIVERABLES AND ACCEPTANCE

Provider shall perform Services in a professional, workmanlike manner consistent with industry standards. Deliverables will be submitted in the form and format mutually agreed and are subject to Client acceptance testing during an agreed acceptance period.

3. TERM

3.1 Term. This Agreement commences on the Effective Date and continues for a period of unless earlier terminated in accordance with Section 16.

4. COMPENSATION

4.1 Fees. Client shall pay Provider the fees set forth below for Services rendered. Fees are exclusive of taxes unless otherwise required by law.

4.2 Fee Amount for Initial Services: $

5. EXPENSES

Client will reimburse Provider for preapproved, reasonable out-of-pocket expenses incurred in connection with the Services upon receipt of appropriate documentation.

6. INVOICING AND PAYMENT

Provider will invoice Client in accordance with the fee schedule. Payments are due within days from invoice date. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum permitted by law.

7. CHANGE ORDERS

Any material change to the scope, schedule or price shall be documented in a written change order signed by both parties. Provider shall not be obligated to proceed with work subject to a disputed change order until the parties agree in writing.

8. CONFIDENTIALITY

8.1 Definition. "Confidential Information" means nonpublic information disclosed by either party that is designated confidential or that a reasonable person would understand to be confidential under the circumstances.

8.2 Obligations. Each party shall: (a) use Confidential Information only to perform its obligations under this Agreement; (b) protect Confidential Information with at least the same degree of care used to protect its own confidential information; and (c) limit disclosure to those employees, contractors or agents who have a need to know and who are bound by confidentiality obligations at least as protective as this Section.

9. DATA SECURITY AND PRIVACY

Provider shall implement and maintain administrative, physical and technical safeguards appropriate to the nature of the data processed and the risks presented, including encryption in transit and at rest where applicable, access controls, logging and incident response procedures. Provider shall notify Client of any unauthorized access or breach in accordance with applicable law and this Agreement.

10. INTELLECTUAL PROPERTY

10.1 Ownership of Preexisting Materials. Each party retains all right, title and interest in materials owned or licensed by that party prior to the Effective Date.

10.2 Deliverables. Subject to Client's payment of all amounts due, Provider assigns to Client all right, title and interest in and to the final Deliverables specifically created for Client under this Agreement, excluding Provider's preexisting tools, libraries, methodologies and other intellectual property which are hereby licensed to Client on a non-exclusive, non-transferable, royalty-free basis to the extent necessary to use the Deliverables.

11. WARRANTIES; DISCLAIMER

Provider warrants that the Services will be provided in a professional and workmanlike manner consistent with generally accepted industry standards. Client's sole and exclusive remedy and Provider's entire liability for breach of this warranty shall be for Provider to reperform the nonconforming Services at no additional charge or, if Provider cannot cure within a reasonable time, to refund the fees paid for the nonconforming Services.

EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

12. INDEMNIFICATION

12.1 By Provider. Provider shall indemnify, defend and hold harmless Client and its officers, directors and employees from and against any third party claim resulting from (a) Provider's gross negligence or willful misconduct in performing the Services, or (b) an allegation that the Deliverables, as delivered, infringe a third party's United States intellectual property rights; provided that Client gives Provider prompt written notice of the claim, grants Provider sole control of the defense and settlement, and cooperates reasonably in the defense.

12.2 By Client. Client shall indemnify, defend and hold harmless Provider from and against claims arising from Client's misuse of the Deliverables, Client data, or Client's breach of this Agreement.

13. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM (A) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) A BREACH OF CONFIDENTIALITY, OR (C) INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CLIENT TO PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES.

Damage Cap Amount: $

14. INSURANCE

Provider shall maintain commercial general liability, professional liability/errors & omissions, and cyber liability insurance with limits appropriate to the scope of the Services. Upon request, Provider will provide certificates evidencing such coverage.

15. SUBCONTRACTING; ASSIGNMENT

Provider may engage subcontractors provided that Provider remains responsible for the performance of the Services. Neither party may assign this Agreement without the other party's prior written consent, except to a successor by merger or acquisition.

16. TERMINATION

Either party may terminate this Agreement for material breach by the other party if the breach remains uncured for days after written notice. Either party may terminate for convenience upon days' prior written notice. Upon termination, Client will pay Provider for Services performed and expenses incurred through the effective date of termination.

17. NOTICES

All notices under this Agreement shall be in writing and delivered to the contacts below by certified mail, overnight courier, or email with confirmation of receipt, and are effective when received.

18. AMENDMENTS; WAIVER

No amendment, modification or waiver of any provision of this Agreement will be effective unless in a writing signed by both parties. No failure or delay in exercising any right will operate as a waiver.

19. GOVERNING LAW

This Agreement will be governed by and construed in accordance with the laws of the state of , without regard to its choice of law principles.

20. ENTIRE AGREEMENT

This Agreement, together with all statements of work and change orders signed by the parties, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, understandings, and representations.

21. SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will negotiate in good faith a valid substitute provision that most closely effects the original intent of the parties.

22. COUNTERPARTS; ELECTRONIC SIGNATURES

This Agreement may be executed in counterparts, each of which will be deemed an original but all of which together constitute one and the same instrument. Electronically transmitted signatures shall be deemed original signatures and have the same force and effect as original signatures.

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