Professional Services Contract Master Copy

Professional Services Contract Master Copy

This Professional Services Contract (the "Agreement") is entered into as of by and between Client Name: with principal place of business at (hereinafter "Client"), and Service Provider Name: with principal place of business at (hereinafter "Provider"). Client and Provider may be referred to individually as a "Party" or collectively as the "Parties."

RECITALS

WHEREAS, Client desires to obtain certain professional services described herein and Provider represents that it has the qualifications, experience and ability to provide such services in a competent and professional manner; and

WHEREAS, the Parties desire to set forth the terms and conditions under which Provider will provide professional services to Client on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows:

1. SERVICES

1.1 Scope. Provider shall perform the services described in the scope of work attached or set forth below and incorporated by reference (the "Services"). Provider shall perform the Services in a professional, workmanlike manner consistent with industry standards.

1.2 Performance Standards. Provider shall assign qualified personnel to perform the Services and shall be responsible for the training, direction and compensation of such personnel. Provider shall comply with Client's reasonable on-site policies and security requirements.

2. TERM

2.1 Effective Date and Term. The term of this Agreement shall commence on and shall continue until , unless earlier terminated in accordance with Section 15.

2.2 Renewal. Any renewal of this Agreement shall be in a writing signed by both Parties specifying the renewal term and any adjustments to compensation or scope.

3. COMPENSATION

3.1 Fees. Client shall pay Provider for the Services in accordance with the rates and fees set forth below. All fees are exclusive of taxes and reimbursable expenses unless otherwise stated.

4. INVOICING AND PAYMENT

4.1 Invoices. Provider shall submit itemized invoices to Client in the form reasonably acceptable to Client. Each invoice shall identify the Services performed, the period covered and any reimbursable expenses.

4.2 Late Payments. Amounts not paid when due shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Client may withhold payments to the extent reasonably necessary to protect Client from loss due to Provider's failure to perform.

5. EXPENSES

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

6. CHANGES; CHANGE ORDERS

Any change to the scope, schedule or compensation must be set forth in a written change order signed by authorized representatives of both Parties. Provider shall not be obligated to perform services outside the agreed scope absent a signed change order.

7. INTELLECTUAL PROPERTY

7.1 Ownership. Unless otherwise agreed in writing, Provider hereby assigns to Client all right, title and interest in deliverables created specifically for Client under this Agreement, including all copyrights, subject to Client's payment in full of all fees due to Provider.

7.2 Provider Materials. Provider retains ownership of Provider's pre-existing materials, tools, methodologies, templates, know-how and intellectual property used to perform the Services ("Provider Materials"). Provider grants Client a non-exclusive, non-transferable license to use Provider Materials embedded in deliverables solely for Client's internal business purposes.

8. CONFIDENTIALITY

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

8.2 Obligations. The receiving Party shall: (a) hold Confidential Information in confidence; (b) not disclose it to third parties except to its employees, agents or contractors who need to know and are bound by confidentiality; and (c) use the Confidential Information solely to exercise rights or perform obligations under this Agreement. The obligations shall not apply to information that is public, independently developed, lawfully obtained from a third party, or required to be disclosed by law (with notice to the disclosing Party where permitted).

9. WARRANTIES AND DISCLAIMER

Provider warrants that: (a) the Services will be performed in a professional and workmanlike manner consistent with generally accepted industry standards; and (b) Provider has the right and authority to enter into this Agreement and to grant the rights granted herein. Except as expressly set forth in this Section, Provider disclaims all other warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose.

10. INDEPENDENT CONTRACTOR

Provider is an independent contractor and not an employee, agent or partner of Client. Provider shall be solely responsible for withholding and paying all taxes, social security, insurance and other employee-related obligations for Provider's employees and contractors.

11. COMPLIANCE WITH LAW

Provider shall perform the Services in compliance with all applicable federal, state and local laws, regulations and ordinances and shall obtain and maintain all licenses, permits and approvals necessary to perform the Services.

12. INDEMNIFICATION

Provider shall indemnify, defend and hold harmless Client and its officers, directors and employees from and against any claims, liabilities, losses, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from Provider's negligent acts, willful misconduct or breach of this Agreement, provided that Client gives Provider prompt written notice of any claim and cooperates in the defense.

Client shall indemnify Provider to the extent any claim arises from Client's negligent acts, breach of this Agreement or misuse of deliverables.

13. LIMITATION OF LIABILITY

Except for liability arising from gross negligence, willful misconduct or obligations under Section 12 (Indemnification), neither Party shall be liable for consequential, incidental, special or punitive damages. The aggregate liability of either Party for any claim arising under or related to this Agreement shall not exceed the amounts paid by Client to Provider under this Agreement during the twelve (12) month period preceding the claim.

14. INSURANCE

Provider shall maintain, at its expense, insurance coverage customary for the industry and sufficient to cover Provider's liability under this Agreement, including commercial general liability and professional liability/errors and omissions insurance.

15. TERMINATION

15.1 Termination for Convenience. Either Party may terminate this Agreement for convenience upon providing thirty (30) days' prior written notice to the other Party.

15.2 Termination for Cause. Either Party may terminate this Agreement immediately upon written notice if the other Party materially breaches this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice specifying the breach.

15.3 Effect of Termination. Upon termination, Provider shall cease performance and deliver to Client any work in progress. Client shall pay Provider for Services performed and documented expenses incurred through the effective date of termination, subject to offset for breaches.

16. NOTICES

All notices required or permitted under this Agreement shall be in writing and shall be delivered to the addresses set forth below by hand delivery, nationally recognized overnight courier or certified mail, return receipt requested, and shall be deemed given upon receipt.

17. ASSIGNMENT

Neither Party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement in connection with a merger, acquisition or sale of substantially all of its assets, provided the assignee assumes the assigning Party's obligations hereunder.

18. AMENDMENTS; WAIVER; COUNTERPARTS

This Agreement may be amended only by a writing signed by both Parties. No waiver of any breach shall constitute a waiver of any other or subsequent breach. 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; ENTIRE AGREEMENT; SEVERABILITY

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

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

20. MISCELLANEOUS

The headings in this Agreement are for convenience of reference only and shall not affect its interpretation. Except as otherwise provided, all notices and consents required or permitted hereunder shall be in writing.

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