Professional Services Installation Agreement

Professional Services Installation Agreement

This Professional Services Installation Agreement ("Agreement") is entered into as of by and between Client Name: with principal place of business at ("Client"), and Service Provider Name: with principal place of business at ("Provider").

RECITALS

WHEREAS, Provider is engaged in the business of providing professional installation services and has represented that it possesses the qualifications, experience and personnel necessary to perform installation and related professional services; and

WHEREAS, Client desires to engage Provider to perform installation services for certain equipment, systems, or software described in Section 1 (the "Services") and Provider agrees to perform such Services under the terms and conditions set forth in this Agreement; and

WHEREAS, the parties intend that the Services, acceptance testing, fees, warranties and risk allocation be governed by this Agreement.

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

1. SCOPE OF WORK

Provider shall perform the installation services described in this Section 1 and in the Scope of Work attached or described below. Provider shall supply all labor, supervision, tools, equipment and materials necessary to complete the Services except as expressly identified as Client-furnished. The parties agree that the Services shall include the following:

2. CHANGE ORDERS

Any change in the Services, schedule, deliverables or fees shall be made only by a written change order signed by authorized representatives of both parties. A change order shall describe the change, adjustments to price and schedule, and any changes to acceptance criteria. Provider shall not proceed with changed work without an executed change order, and Provider assumes risk for any work performed without written authorization unless Client subsequently ratifies such work in writing.

3. SCHEDULE; COMPLETION

Provider shall commence the Services on or about and shall use commercially reasonable efforts to achieve Substantial Completion by . Time is of the essence for schedule milestones expressly identified in the Scope of Work.

4. FEES AND PAYMENT

Client shall pay Provider the fees set forth below in consideration for the Services. Fees shall be invoiced in accordance with this Section and are due within the period set forth below. Unless otherwise agreed in writing, amounts unpaid after the due date shall accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is lower.

5. ACCEPTANCE TESTING

Upon Substantial Completion, Provider shall notify Client and deliver any documentation required for acceptance. Client shall have days to perform acceptance testing and either accept the Services or provide a written list of deficiencies. Failure to provide written objections within the acceptance period shall constitute acceptance.

6. WARRANTIES

Provider warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards and that installation work performed by Provider will be free from material defects for a period of days following Final Acceptance. This warranty does not apply to defects resulting from Client-provided equipment, misuse, modification by others, or normal wear and tear.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. INSURANCE

During the term of this Agreement, Provider shall maintain commercial general liability, employer's liability and workers' compensation insurance in amounts customary for comparable providers. Upon request, Provider shall provide certificates evidencing such coverage. Provider shall name Client as an additional insured on the commercial general liability policy with respect to liability arising out of Provider's performance under this Agreement.

8. CONFIDENTIALITY

Each party shall keep confidential and not disclose the other party's Confidential Information except to those employees, contractors or agents with a need to know and who are bound by confidentiality obligations no less restrictive than those contained herein. Confidential Information does not include information that is or becomes generally known without breach of this Agreement, is independently developed, or is required to be disclosed by law or regulation.

9. INDEMNIFICATION

Provider shall indemnify, defend and hold harmless Client, its officers, directors and employees from and against any third-party claims, liabilities, damages and expenses (including reasonable attorneys' fees) arising out of Provider's negligence, willful misconduct, or breach of this Agreement in performing the Services. Client shall indemnify Provider to the extent any claim arises from Client's negligence, willful misconduct, or breach of this Agreement.

10. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT OR A PARTY'S INDEMNIFICATION OBLIGATIONS, OR LIABILITY FOR PERSONAL INJURY OR DEATH, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES. PROVIDER'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

11. TERM AND TERMINATION

This Agreement shall commence on the Effective Date and continue until completion of the Services unless earlier terminated as provided herein. Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure such breach within days after written notice. Client may also terminate for convenience upon days' prior written notice to Provider; in such event Provider shall be entitled to payment for Services performed and reasonable demobilization costs.

12. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered by certified mail, overnight courier, hand delivery, or email to the addresses designated below. Notice shall be deemed given upon receipt.

13. ASSIGNMENT AND SUBCONTRACTING

Neither party shall assign or transfer this Agreement without the prior written consent of the other party, except that Provider may engage subcontractors to perform portions of the Services provided Provider remains responsible for the performance of its subcontractors. Provider shall obtain Client's prior written consent for any subcontractor that will perform critical installation activities.

14. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflict of law principles. Any action arising out of this Agreement shall be brought in the courts located within that State, and the parties hereby submit to the personal jurisdiction of such courts.

15. ENTIRE AGREEMENT; AMENDMENTS; WAIVER

This Agreement, together with any written exhibits or change orders signed by the parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings. No amendment to this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. No waiver of any breach shall constitute a waiver of any other or subsequent breach.

16. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall remain in full force and effect.

17. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

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