Professional Non-Pro Agreement

PROFESSIONAL NON-PRO AGREEMENT

This Professional Non-Pro Agreement (the "Agreement") is made and entered into as of Effective Date: by and between Professional: , entity type: , principal place of business at (the "Professional"), and Non-Pro: , entity type: , principal place of business at (the "Non-Pro").

Recitals

WHEREAS, the Professional possesses specialized training, skills and experience in providing professional services described below; and

WHEREAS, the Non-Pro desires to retain the Professional to perform certain services for compensation, and the Professional agrees to provide such services on the terms set forth in this Agreement; and

WHEREAS, the parties intend that the scope of work, compensation, and certain allocations of risk and ownership be governed by the terms and conditions contained herein.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth below, the parties agree as follows:

1. Definitions

1.1 "Services" means the professional services to be performed by the Professional as described in Section 2 and in the Services Description field below. "Deliverables" means any tangible or intangible outputs, reports, designs, data, documents, software, and other materials delivered to the Non-Pro under this Agreement.

2. Services

2.1 Scope. The Professional shall perform the Services described below in a professional and workmanlike manner in accordance with industry standards.

3. Term

3.1 Term. The initial term of this Agreement commences on and continues until , unless earlier terminated in accordance with Section 12.

4. Compensation

4.1 Fees. In consideration for the Services, the Non-Pro shall pay the Professional the fees set forth below and in any accepted statement of work. Fees are exclusive of taxes and reimbursable expenses unless otherwise stated.

4.2 Payment Terms. Invoices shall be submitted by the Professional and are payable within days from receipt. Late payments shall accrue interest at the rate of or the maximum rate permitted by law, whichever is less.

5. Expenses

5.1 Reimbursable Expenses. The Non-Pro shall reimburse the Professional for reasonable out-of-pocket expenses preapproved in writing. The Professional must submit receipts or other evidence of such expenses with invoices.

6. Confidentiality

6.1 Confidential Information. Each party (the "Receiving Party") shall hold in confidence and not disclose or use any Non-Proprietary or Proprietary Confidential Information of the other party (the "Disclosing Party") except as required to perform under this Agreement. Confidential Information does not include information that: (a) is or becomes publicly known through no fault of the Receiving Party; (b) was rightfully known prior to disclosure; or (c) is independently developed without use of the Disclosing Party's Confidential Information.

6.2 Duration. The obligations in this Section shall survive for following termination or expiration of this Agreement.

7. Intellectual Property

7.1 Ownership. Except as otherwise expressly set forth, each party retains all right, title and interest in and to its pre-existing intellectual property. The parties hereby agree the ownership of any newly created Deliverables shall be addressed as selected by the parties below.

Assign all rights in Deliverables to the Non-Pro, subject to Professional's right to use its general knowledge and trade skills.
Grant Non-Pro a non-exclusive, perpetual, worldwide license to use Deliverables for its internal business purposes.
Professional retains ownership of Deliverables and grants Non-Pro a limited license as specified in writing.

8. Representations and Warranties

8.1 Mutual Representations. Each party represents and warrants that it has full power and authority to enter into this Agreement and perform its obligations hereunder and that its execution and performance will not violate any law or agreement to which it is subject.

8.2 Professional Warranty. The Professional warrants that the Services will be performed in a professional manner consistent with industry standards. THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, EXCEPT AS PROVIDED HEREIN.

9. Indemnification

9.1 Indemnification by Professional. The Professional shall defend, indemnify and hold harmless the Non-Pro from and against third-party claims arising from (a) Professional's negligent acts or omissions, or (b) breach of professional warranty, except to the extent caused by Non-Pro's gross negligence or willful misconduct.

9.2 Indemnification by Non-Pro. The Non-Pro shall defend, indemnify and hold harmless the Professional from and against third-party claims arising from Non-Pro's use of the Deliverables in violation of this Agreement or applicable law.

10. Limitation of Liability

10.1 EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS OR LIABILITY FOR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS. THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY THE NON-PRO TO THE PROFESSIONAL UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11. Insurance

11.1 Insurance. The Professional shall maintain insurance appropriate to the Services performed, including commercial general liability and professional liability coverage in amounts not less than , and shall provide certificates of insurance upon request.

12. Termination

12.1 Termination for Convenience. Either party may terminate this Agreement for convenience upon days' prior written notice to the other party.

12.2 Termination for Cause. Either party may terminate immediately upon written notice if the other party materially breaches this Agreement and fails to cure within thirty (30) days after receipt of written notice specifying the breach.

13. Notices

13.1 All notices required or permitted hereunder shall be in writing and delivered to the addresses set forth below (or to such other address as a party may designate by notice in accordance with this Section) and shall be deemed given when delivered personally, sent by nationally recognized overnight courier, or three (3) days after deposit in the U.S. mail, postage prepaid, certified mail, return receipt requested.

14. Amendments; Waiver; Counterparts

14.1 This Agreement may be amended only by a written instrument executed by authorized representatives of both parties. No failure or delay by either party in exercising any right will 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.

15. Governing Law

15.1 This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to its conflict of laws principles.

16. Entire Agreement

16.1 This Agreement, including all exhibits, attachments and statements of work expressly incorporated herein, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, negotiations and communications.

17. Severability

17.1 If any provision of this Agreement is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and the parties shall negotiate in good faith to replace the invalid provision with a valid provision that most closely approximates the parties' intent.

18. Miscellaneous

18.1 Independent Contractor. The Professional is an independent contractor and not an employee, agent, or partner of the Non-Pro. Nothing in this Agreement shall create any joint venture, partnership or employment relationship.

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