Professional Services Creation Agreement

PROFESSIONAL SERVICES CREATION AGREEMENT

This Professional Services Creation Agreement (the Agreement) is made and entered into as of by and between Client Name: with address: , and Service Provider Name: with address: .

RECITALS

WHEREAS, Client desires to engage Service Provider to create, develop and deliver certain creative works, deliverables and related services as further described in this Agreement; and

WHEREAS, Service Provider represents that it has the experience, personnel, and technical capability to perform the services specified herein and is willing to perform such services under the terms and conditions set forth below; and

WHEREAS, the parties desire to set forth in writing their understanding with respect to the scope, payment, ownership, confidentiality and other matters relating to the services to be provided.

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

1. DEFINITIONS

1.1 "Services" means the creation, development, production and delivery of the creative works and ancillary tasks described in Exhibit A (Scope of Services), which is incorporated by reference and forms part of this Agreement. 1.2 "Deliverables" means the tangible and intangible outputs resulting from the Services that are specified for delivery to Client. 1.3 "Confidential Information" means non-public information disclosed by a party that is identified as confidential or that, by its nature, should reasonably be considered confidential.

2. SCOPE OF SERVICES; SCHEDULE

2.1 Services. Service Provider shall perform the Services described in the Scope of Services field below and shall deliver the Deliverables in accordance with the milestones and schedule agreed by the parties.

2.2 Schedule. The parties agree to the following target completion date for final Deliverables: . Time is of the essence with respect to milestones expressly identified as time-critical.

3. FEES AND PAYMENT

3.1 Fees. Client shall pay Service Provider the fees set forth below in consideration of the Services. Total Fee: $.

3.2 Invoicing and Payment Terms. Service Provider shall invoice Client in accordance with the Payment Schedule. Unless otherwise set forth in writing, Client shall pay each undisputed invoice within days of receipt. Late payments shall accrue interest at % per month or the maximum permitted by law, whichever is less.

4. INTELLECTUAL PROPERTY; DELIVERABLES

4.1 Ownership of Pre-Existing Materials. Each party retains ownership of its pre-existing intellectual property and proprietary materials. Service Provider grants Client a limited, non-exclusive, non-transferable license to any pre-existing materials incorporated into the Deliverables solely to the extent necessary to use the Deliverables as intended.

4.2 Assignment of Deliverables. Subject to payment in full of all amounts due under this Agreement, and except for rights in pre-existing materials of Service Provider and third-party materials, Service Provider hereby assigns to Client all right, title and interest in and to the Deliverables created specifically for Client hereunder, including copyrights and other intellectual property rights.

4.3 Moral Rights. To the maximum extent permitted by law, Service Provider hereby irrevocably waives and agrees not to assert any moral rights or similar rights in the Deliverables against Client.

4.4 Third-Party Materials. Where Deliverables incorporate third-party materials, Service Provider shall secure and provide evidence of any required licenses or permissions and shall disclose applicable third-party license terms in writing.

Service Provider and Client agree that to the maximum extent permitted by applicable law the Deliverables shall be considered "work made for hire" and additionally, to the extent any Deliverable is not a work made for hire, Service Provider assigns all right, title and interest to Client as set forth above.

5. CONFIDENTIALITY

5.1 Obligation. Each party shall hold Confidential Information of the other in strict confidence and shall not disclose such information except as necessary to perform its obligations under this Agreement or as required by law. The receiving party shall use at least the same degree of care to protect Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care.

5.2 Exceptions. Confidential Information shall not include information that: (a) is or becomes publicly known through no breach of this Agreement by the receiving party; (b) is lawfully received from a third party without duties of confidentiality; or (c) is independently developed by the receiving party without reference to the disclosing party's Confidential Information.

6. REPRESENTATIONS AND WARRANTIES

6.1 Mutual Representations. Each party represents that it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder.

6.2 Service Provider Warranty. Service Provider warrants that the Deliverables delivered under this Agreement will materially conform to the specifications set forth in the Scope of Services for a period of days from acceptance. Service Provider's sole obligation for breach of such warranty shall be, at Service Provider's option, to repair or replace the non-conforming Deliverable or to refund the portion of fees attributable to the non-conforming Deliverable.

6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. INDEMNIFICATION

7.1 Provider Indemnity. Service Provider shall defend, indemnify and hold harmless Client and its officers, directors and affiliates from and against any and all third-party claims, liabilities, losses, damages and expenses (including reasonable attorneys' fees) arising out of or relating to: (a) Service Provider's breach of its representations and warranties; or (b) actual infringement of a third party's intellectual property rights by the Deliverables, provided that Client gives Service Provider prompt written notice of any claim and cooperates in the defense.

7.2 Client Indemnity. Client shall indemnify Service Provider from claims arising from (a) Client-provided materials or instructions that infringe third-party rights; or (b) Client's negligent or willful misuse of the Deliverables.

8. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. THE AGGREGATE LIABILITY OF EACH PARTY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE month period immediately preceding THE EVENT GIVING RISE TO THE CLAIM.

9. TERMINATION

9.1 For Cause. Either party may terminate this Agreement for material breach by the other party if such breach is not cured within days following written notice specifying the breach.

9.2 For Convenience. Either party may terminate this Agreement without cause upon days' prior written notice to the other party. Upon termination, Client shall pay Service Provider for Services performed and Deliverables delivered through the effective date of termination.

10. INSURANCE

Service Provider shall maintain commercial general liability and professional liability insurance in amounts reasonable for providers of similar services. Upon request, Service Provider shall provide certificates of insurance evidencing such coverage.

11. NOTICES

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

12. AMENDMENTS; WAIVER; COUNTERPARTS

12.1 Amendments. This Agreement may be amended or modified only by a writing signed by authorized representatives of both parties. 12.2 Waiver. No waiver of any breach shall be effective unless in writing and signed by the waiving party. 12.3 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original. Signatures transmitted electronically or by facsimile shall be binding.

13. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

13.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state specified here: , without regard to conflict of laws principles.

13.2 Entire Agreement. This Agreement, including all exhibits and attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether oral or written.

13.3 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining provisions shall remain in full force and effect and the parties shall negotiate in good faith a substitute provision to effect the original intent.

ADDITIONAL PROVISIONS

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