Professional IT Master Services Agreement

PROFESSIONAL IT MASTER SERVICES AGREEMENT

This Professional IT Master Services Agreement ("Agreement") is entered into as of Effective Date: by and between Client Name: , Entity Type: , Principal Place of Business: ; and Service Provider Name: , Entity Type: , Principal Place of Business: .

RECITALS

WHEREAS, Client desires to retain Provider to perform certain information technology services, including but not limited to system design, implementation, maintenance, support and managed services, as set forth in Statements of Work executed under this Agreement; and

WHEREAS, Provider represents that it has the professional expertise, personnel, and resources to perform the Services in accordance with the terms and conditions contained herein; and

WHEREAS, the parties desire to set forth the general terms and conditions that will govern their relationship and any Statements of Work entered into under this Agreement.

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

1. DEFINITIONS

1.1 "Agreement" means this Master Services Agreement, including all Exhibits and Statements of Work. "Services" means the services described in each Statement of Work. "Deliverables" means tangible and intangible items to be delivered by Provider under a Statement of Work. "Confidential Information" has the meaning set forth in Section 9.

2. SCOPE OF SERVICES

3. STATEMENTS OF WORK

3.1 Each Statement of Work shall be in writing, shall reference this Agreement, and shall state the scope, schedule, fees, acceptance criteria and any other project-specific terms. In the event of any conflict between a Statement of Work and this Agreement, the Statement of Work shall prevail only to the extent of the inconsistency.

4. FEES, EXPENSES AND PAYMENT

4.1 Provider shall submit invoices in accordance with the invoicing provisions of each Statement of Work. Client shall pay invoiced amounts not disputed in good faith within the Payment Terms specified above. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum permitted by law.

5. TAXES

Unless otherwise agreed, fees do not include taxes based on the receipt of services. Each party shall be responsible for taxes imposed on it by applicable law. Client shall pay any sales, use, value-added or similar taxes arising from the Services, except for taxes based on Provider's net income.

6. TERM; TERMINATION

6.1 Either party may terminate this Agreement or any Statement of Work for material breach by the other party where such breach remains uncured thirty (30) days after written notice. Either party may terminate for insolvency or bankruptcy immediately upon written notice. Upon termination, Client shall pay Provider for Services performed and expenses incurred through the effective date of termination.

7. CONFIDENTIALITY

7.1 Each party shall protect Confidential Information of the other using no less than a reasonable standard of care and shall not disclose such information except to its employees, contractors and advisors who have a need to know and are bound by confidentiality obligations. Confidential Information does not include information that is publicly available without breach, independently developed, or rightfully obtained from a third party.

8. INTELLECTUAL PROPERTY

8.1 Provider retains all right, title and interest in Provider Pre-Existing Materials and Provider Background Technology. Provider hereby grants Client a non-exclusive, non-transferable license to use Deliverables solely for Client's internal business purposes, subject to full payment and the terms of this Agreement. To the extent any Deliverable contains Client Materials, Client grants Provider a limited license to use such Client Materials solely to perform the Services.

9. WARRANTIES; DISCLAIMER

9.1 Provider warrants that the Services will be performed in a professional and workmanlike manner in accordance with industry standards and the applicable Statement of Work for a period of ninety (90) days following delivery. Provider's sole obligation under this warranty shall be to re-perform nonconforming Services. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

10. INDEMNIFICATION

10.1 Provider will defend, indemnify and hold harmless Client from and against any third-party claims alleging that Provider's Deliverables infringe a third party's intellectual property rights, provided Client: (a) promptly notifies Provider in writing of the claim; (b) gives Provider sole control of the defense and settlement; and (c) cooperates reasonably with Provider. Client shall indemnify Provider for claims arising from Client Materials or Client breach of this Agreement.

11. LIMITATION OF LIABILITY

11.1 EXCEPT FOR LIABILITY ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR A PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THE APPLICABLE STATEMENT OF WORK IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

12. INSURANCE

13. DATA PROTECTION AND SECURITY

13.1 Provider shall implement and maintain appropriate administrative, technical and physical safeguards to protect Client Data against unauthorized access, use or disclosure, consistent with industry standards and any specific security requirements set forth in a Statement of Work.

14. SUBCONTRACTING; ASSIGNMENT

14.1 Provider may engage subcontractors to perform Services, provided Provider remains responsible for the subcontractor's performance and compliance with this Agreement. Provider shall not assign this Agreement without Client's prior written consent, except that Provider may assign to a successor in connection with a merger or sale of substantially all of Provider's assets.

15. PERSONNEL; KEY STAFF

15.1 Provider shall ensure that personnel assigned to perform Services possess the requisite qualifications. Provider shall notify Client in writing of any replacement of key personnel and shall ensure replacements have substantially equivalent skills and experience.

16. ACCEPTANCE TESTING

16.1 Where applicable, Deliverables will be subject to acceptance testing as set forth in the applicable Statement of Work. If Client provides written notice of nonconformance within the acceptance period, Provider shall correct the nonconforming Deliverable at no additional cost and resubmit for acceptance.

17. NOTICES

17.1 All notices under this Agreement shall be in writing and delivered to the addresses set forth above and shall be deemed given when delivered by hand, overnight courier, or three (3) business days after deposit in the U.S. mail, certified or registered, postage prepaid.

18. AMENDMENTS; WAIVER; COUNTERPARTS

18.1 No amendment to 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 of that right. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

19. GOVERNING LAW; DISPUTE RESOLUTION

19.1 This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction specified above, without regard to its conflicts of law principles. The parties shall attempt in good faith to resolve disputes promptly through negotiation; if unresolved, disputes shall be resolved by binding arbitration or in a court of competent jurisdiction as specified in the Statement of Work.

20. ENTIRE AGREEMENT; SEVERABILITY

20.1 This Agreement, together with all Statements of Work and exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, proposals and agreements, whether oral or written. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

21. MISCELLANEOUS

21.1 The parties are independent contractors. Nothing in this Agreement creates an employment, partnership, agency or joint venture relationship. If any party seeks injunctive relief or other equitable remedies, such remedies shall be in addition to any other remedies available at law or in equity.

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