Professional Services PCS Agreement

Professional Services PCS Agreement

This Professional Services PCS Agreement (the "Agreement") is entered into as of Effective Date: by and between Provider Name: , a with principal place of business at (hereinafter "Provider"), and Client Name: , a with principal place of business at (hereinafter "Client"). Provider and Client are sometimes individually referred to as a "Party" and collectively as the "Parties."

Recitals

WHEREAS, Provider possesses expertise and experience in providing professional consultant services, systems integration, configuration, support and related professional services described in this Agreement (the "Services"); and

WHEREAS, Client desires to engage Provider to perform the Services on the terms and conditions set forth in this Agreement, and Provider is willing to provide such Services; and

WHEREAS, the Parties intend for the Services to be performed on a non-exclusive basis and subject to the limitations and obligations set forth below.

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

1. Definitions

1.1 "Agreement" means this document and any Statement of Work incorporated herein. 1.2 "Deliverables" means tangible or digital items delivered to Client under a Statement of Work. 1.3 "Statement of Work" or "SOW" means a written description of Services, schedule and fees, each of which, when signed by both Parties, becomes part of this Agreement.

2. Scope of Services

Provider shall perform the Services in a professional and workmanlike manner, consistent with industry standards for similar services. Any change to the Services shall be made only by written amendment or a signed Statement of Work.

3. Term

The term of this Agreement begins on the Effective Date and continues for a period of unless earlier terminated in accordance with Section 9. Renewal terms, if any, will be as set forth in a Statement of Work or by written agreement of the Parties.

4. Fees and Payment

Provider will invoice Client according to the billing schedule set forth above. Unless otherwise agreed in writing, Client shall pay invoices within days of receipt. Overdue amounts shall accrue interest at the lesser of 1.5% per month or the maximum permitted by law. All fees are exclusive of taxes; Client shall be responsible for taxes applicable to payments to Provider, other than taxes based on Provider's net income.

5. Expenses

Client shall reimburse Provider for pre-approved, reasonable out-of-pocket expenses incurred in connection with the Services upon submission of receipts or other documentation. Reimbursements are subject to Client's expense policies if provided in writing.

6. Confidentiality

Each Party (the "Receiving Party") shall hold in confidence Confidential Information disclosed by the other Party (the "Disclosing Party") and shall not disclose it except to employees or subcontractors who need access and are bound by confidentiality obligations. "Confidential Information" includes business or technical information disclosed in writing, orally or by inspection, marked or identified as confidential or that reasonably should be understood to be confidential. Confidential Information does not include information that: (a) is or becomes generally known through no breach; (b) is lawfully received from a third party without restriction; (c) is independently developed without use of the Disclosing Party's Confidential Information; or (d) is required to be disclosed by law, provided notice is given to allow the Disclosing Party to seek protective measures.

The confidentiality obligations survive termination for a period of three (3) years, except for trade secrets which shall be protected for so long as they remain trade secrets under applicable law.

7. Intellectual Property

Unless otherwise agreed in a written SOW, Provider assigns to Client all right, title and interest in and to Deliverables created specifically for Client under this Agreement, subject to Client's payment in full. Provider retains ownership of Provider's pre-existing materials, tools, know-how, and templates ("Provider Materials"). To the extent Provider Materials are incorporated in a Deliverable, Provider grants Client a non-exclusive, perpetual, worldwide license to use such Provider Materials solely as incorporated in the Deliverable for Client's internal business purposes.

8. Warranties; Disclaimer

Provider warrants that it will perform Services in a professional manner consistent with industry standards. For any breach of this warranty, Provider will re-perform the deficient Services at no additional charge. EXCEPT FOR THE FOREGOING, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

9. Indemnification and Limitation of Liability

9.1 Indemnification by Provider. Provider shall indemnify and defend Client against third-party claims alleging that the Deliverables, as delivered, infringe a United States patent, copyright or trade secret, provided Client gives prompt notice and reasonable cooperation. Provider's obligations do not apply to infringement resulting from Client's modification, combination with other products, or use beyond the scope of this Agreement.

9.2 Indemnification by Client. Client shall indemnify Provider for liabilities arising from Client-provided materials, Client's breach of this Agreement, or Client's misuse of the Deliverables.

9.3 Limitation of Liability. EXCEPT FOR BODILY INJURY OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY'S AGGREGATE LIABILITY FOR ANY CLAIM ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL EXCEED THE AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THE APPLICABLE STATEMENT OF WORK IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES.

10. Termination

Either Party may terminate this Agreement for material breach by the other Party if the breaching Party fails to cure the breach within thirty (30) days after written notice. Client may terminate for convenience upon thirty (30) days' prior written notice and payment of Provider's fees and reasonable costs incurred through the effective date of termination and for any non-cancellable third-party commitments.

11. Transition Assistance

Upon termination for any reason, Provider shall, at Client's request and subject to a mutually agreed fee, provide transition assistance to effect an orderly transfer of the Services to Client or a successor service provider for a period not to exceed sixty (60) days.

12. Independent Contractor; Personnel

Provider is an independent contractor. Nothing in this Agreement creates an employment, joint venture or agency relationship. Provider is responsible for payment of all compensation and benefits to its personnel and subcontractors and for withholding taxes, workers' compensation and similar obligations.

13. Insurance

Provider shall maintain commercial general liability and professional liability insurance with limits reasonably acceptable to Client. Upon request, Provider will provide certificates evidencing such insurance.

14. Compliance with Laws

Each Party shall comply with applicable federal, state and local laws and regulations in performance of its obligations under this Agreement, including export control and data protection requirements applicable to the Services.

15. Notices

All notices required or permitted under this Agreement shall be in writing and delivered to the address set forth below for each Party, by personal delivery, certified mail, or overnight courier, and shall be effective upon receipt.

16. Amendments; Waiver; Counterparts

Any amendment to this Agreement must be in writing and executed by authorized representatives of both Parties. Failure or delay to enforce any right is not a waiver. This Agreement may be executed in counterparts and by electronic signature, each of which shall be an original and all of which together shall constitute one instrument.

17. Governing Law; Entire Agreement; Severability

This Agreement shall be governed by and construed in accordance with the laws of the state identified below without regard to conflict of law principles. The state for governing law is:

This Agreement, together with all SOWs, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements and understandings. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

18. Miscellaneous

The Parties acknowledge that they have read and understand this Agreement and agree to be bound by its terms. Headings are for convenience and do not affect interpretation. Any provision requiring action within a specified period shall be computed by calendar days.

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