Professional Services IT Services Contract

PROFESSIONAL SERVICES IT SERVICES CONTRACT

This Professional Services IT Services Contract (the "Agreement") is entered into as of by and between Client Name: (hereinafter "Client") and Service Provider Name: (hereinafter "Provider"). Client and Provider are sometimes individually referred to as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Client desires to obtain certain information technology services, including but not limited to system design, implementation, maintenance and support; and

WHEREAS, Provider represents that it has the professional experience, capability and personnel to provide such services under the terms and conditions set forth herein; and

WHEREAS, the Parties intend to set forth the terms governing the provision of Services, Fees, deliverables, confidentiality, and other rights and obligations.

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Services" means the professional IT services, deliverables and related work described in the Statement of Work attached as Exhibit A and any subsequently agreed change orders. Services include software configuration, customization, testing, deployment, training and ongoing support.

1.2 "Deliverables" means all tangible and intangible items, including reports, software, documentation and other items to be delivered by Provider to Client under this Agreement, as further described in the applicable Statement of Work.

2. SCOPE OF SERVICES

Provider shall perform the Services described in the Statement of Work. Provider shall use qualified personnel and perform Services in a professional and workmanlike manner consistent with industry standards. Key project milestones, acceptance criteria and responsibilities are set forth in the Statement of Work. Client shall cooperate and provide information and access reasonably necessary for Provider to perform the Services.

3. TERM AND TERMINATION

This Agreement commences on the Effective Date set forth above and shall continue for an initial term of months unless earlier terminated in accordance with this Section. Either Party may terminate for cause upon written notice if the other Party materially breaches this Agreement and fails to cure within days after receipt of written notice. Client may terminate for convenience upon days' prior written notice and payment for all Services performed through the effective date of termination and any non-cancellable third-party costs reasonably incurred by Provider.

4. FEES, EXPENSES AND PAYMENT

Client shall pay Provider the fees set forth in the applicable Statement of Work. Unless otherwise stated, fees are exclusive of applicable taxes and reimbursable expenses. Provider shall invoice Client in accordance with the billing schedule. Unless otherwise agreed in writing, all undisputed invoices are due and payable within days from receipt. Overdue amounts shall bear interest at the lesser of 1.5% per month or the maximum rate permitted by law.

5. CHANGE ORDERS

Any change in scope, schedule, deliverables, or price will be documented in a written change order signed by authorized representatives of both Parties. Provider shall not be required to perform work outside the scope until a signed change order is executed. Change orders shall specify adjustments to fees and schedule.

6. CONFIDENTIALITY

Each Party shall hold in confidence and not disclose the other Party's Confidential Information and shall use such information solely to perform its obligations under this Agreement. Confidential Information does not include information that is or becomes publicly available through no breach, independently developed without use of Confidential Information, or rightfully received from a third party without restriction.

7. INTELLECTUAL PROPERTY

Unless otherwise set forth in a Statement of Work, Client shall retain ownership of Client Data and pre-existing Client Materials. Provider shall retain ownership of Provider pre-existing materials, tools and methodologies. Subject to Client's payment in full, Provider grants Client a non-exclusive, non-transferable license to use Deliverables for Client's internal business purposes. To the extent the Parties intend assignment of any intellectual property, such assignment must be expressly documented in the applicable Statement of Work.

8. WARRANTIES; DISCLAIMER

Provider warrants that Services will be performed in a professional manner consistent with generally accepted industry standards. Provider's sole obligation for breach of the foregoing warranty shall be to re-perform the deficient Services at no additional charge or, if Provider is unable to cure within a reasonable period, to refund the fees paid for the nonconforming Services. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OR INFRINGEMENT, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

10. INDEMNIFICATION

Each Party (the "Indemnitor") shall indemnify, defend and hold harmless the other Party (the "Indemnitee") from and against any third-party claims, liabilities, damages and costs arising from the Indemnitor's breach of its obligations, negligence, or willful misconduct. Provider shall additionally indemnify against third-party claims that the Deliverables infringe a third party's registered intellectual property rights, provided Provider is given prompt notice and sole control of the defense and settlement of such claim.

11. INSURANCE

Provider shall maintain, at its expense, commercial general liability and professional liability insurance in amounts sufficient to cover its obligations under this Agreement and customary for the industry. Upon request, Provider shall provide certificates of insurance evidencing coverages and limits.

12. DATA SECURITY AND PRIVACY

Provider shall implement and maintain administrative, physical and technical safeguards appropriate to the nature of the Client Data to protect against unauthorized access, disclosure, alteration or destruction. Provider shall comply with applicable data protection laws in the processing of Client Data and shall notify Client promptly of any unauthorized access or data breach affecting Client Data.

13. SUBCONTRACTING

Provider may engage subcontractors to perform portions of the Services, provided Provider remains responsible for the performance of its subcontractors and compliance with this Agreement. Provider shall ensure subcontractors are bound by confidentiality and data protection obligations consistent with this Agreement.

14. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses below by certified mail, overnight courier, or email (provided receipt is acknowledged). Notices shall be effective upon receipt.

15. AMENDMENT; WAIVER; COUNTERPARTS

This Agreement may be amended only by a written instrument signed by both Parties. No failure or delay by either Party in exercising any right under this Agreement shall operate as a waiver. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

16. GOVERNING LAW; SEVERABILITY; ENTIRE AGREEMENT

This Agreement shall be governed by and construed in accordance with the laws of the state of without regard to conflicts of law principles. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement, including all Statements of Work and executed change orders, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, whether written or oral.

17. MISCELLANEOUS

The Parties are independent contractors and nothing in this Agreement creates a partnership, joint venture or agency relationship. Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may assign to an acquirer of all or substantially all of its business or assets.

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