Professional Services PPA Agreement

PROFESSIONAL SERVICES PPA AGREEMENT

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

RECITALS

WHEREAS, Client desires to engage Provider to perform certain professional services related to the project described in the Statement of Work; and

WHEREAS, Provider represents that it has the experience, expertise and resources necessary to perform the Services described herein in a professional and workmanlike manner; and

WHEREAS, the parties intend by this Agreement to establish the terms, conditions, performance standards and payment provisions applicable to the Services to be provided by Provider.

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

1. DEFINITIONS

1.1 "Services" means the professional services and deliverables described in the Statement of Work attached hereto or referenced in this Agreement. "Deliverables" means the tangible work product delivered to Client in connection with the Services. "Accepted Work" means Deliverables accepted in writing by Client in accordance with the acceptance procedures set forth in the applicable Statement of Work.

2. SCOPE OF SERVICES

2.1 Provider shall perform the Services as set forth in the Statement of Work. The controlling Statement of Work is titled: and dated: .

3. TERM AND TERMINATION

3.1 Term. The initial term of this Agreement shall commence on Effective Date and continue for a period of months, unless earlier terminated in accordance with this Agreement.

3.2 Termination for Convenience. Either party may terminate this Agreement for convenience upon written notice to the other party delivered at least days prior to the effective termination date.

3.3 Termination for Cause. Either party may terminate immediately upon material breach by the other party that remains uncured for thirty (30) days after written notice specifying the nature of the breach. Upon termination for Provider's breach, Provider shall refund any unearned prepaid fees and shall deliver all work in progress to Client.

4. COMPENSATION AND PAYMENT

4.1 Fees. Client shall pay Provider the fees set forth in the applicable Statement of Work. The estimated total fee for the Services is $, subject to adjustment as provided in this Agreement.

4.2 Late Payments. Any amounts not paid when due shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Payment obligations survive termination to the extent such amounts were earned for Services performed prior to termination.

5. PERFORMANCE STANDARDS; ACCEPTANCE

5.1 Provider shall perform the Services in a professional, workmanlike manner in accordance with generally accepted industry standards. Provider shall supply qualified personnel and ensure compliance with agreed schedules set forth in the Statement of Work.

5.2 Acceptance. Deliverables shall be subject to Client acceptance testing as described in the Statement of Work. If Client reasonably determines that Deliverables fail to conform, Provider shall, at its expense, correct such nonconformities within a commercially reasonable period.

6. CONFIDENTIALITY

6.1 Definition. "Confidential Information" means non-public information disclosed by either party in connection with this Agreement that is identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

6.2 Protection. Each party shall (a) protect the other's Confidential Information with at least the same degree of care it uses for its own confidential information, but no less than reasonable care, and (b) use such Confidential Information solely for performance under this Agreement. Confidentiality obligations shall survive termination for a period of three (3) years, except for trade secrets which shall be protected for as long as they qualify as trade secrets under applicable law.

7. INTELLECTUAL PROPERTY

7.1 Ownership. Except as expressly set forth in a Statement of Work, Provider retains all right, title and interest in and to Provider's preexisting intellectual property, tools, methodologies and know-how. Unless otherwise agreed in writing, all Deliverables specifically created for Client under this Agreement and paid for in full shall be deemed Work Product, and Client shall own all right, title and interest in such Work Product.

7.2 License. To the extent Provider's preexisting intellectual property is incorporated in the Work Product, Provider grants Client a perpetual, non-exclusive, royalty-free license to use such preexisting materials embodied in the Deliverables solely for Client's internal business purposes.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual Representations. Each party represents that it has full corporate power and authority to enter into and perform this Agreement and that the execution and performance will not violate any other agreement to which it is a party.

8.2 Provider Warranty. Provider warrants that the Services will be performed in a professional manner consistent with industry standards and that to Provider's knowledge the Deliverables will not infringe any third party intellectual property rights. Provider's sole obligation for breach of this warranty shall be to re-perform the nonconforming Services or, if Provider cannot re-perform, to refund the fees allocable to the nonconforming Services.

9. INDEMNIFICATION

9.1 Provider Indemnity. Provider shall defend, indemnify and hold harmless Client and its officers, directors and employees from and against any and all third-party claims, liabilities, losses and expenses (including reasonable attorneys' fees) arising out of or in connection with Provider's negligence, willful misconduct, or breach of this Agreement, or any alleged infringement caused by Provider's Deliverables.

9.2 Indemnification Procedure. The indemnified party shall give prompt written notice of a claim to the indemnifying party, and the indemnifying party shall have the right to control the defense and settlement of such claim, provided that the indemnifying party may not settle any claim that imposes liability or obligations on the indemnified party without the indemnified party's prior written consent, which shall not be unreasonably withheld.

10. INSURANCE

Provider shall maintain at its expense insurance with limits no less than the following: Commercial General Liability, Professional Liability (Errors & Omissions), and Workers' Compensation as required by law. Minimum limits, where applicable, are: General Liability $; Professional Liability $.

11. LIMITATION OF LIABILITY

11.1 Except for breach of confidentiality, indemnification obligations, or willful misconduct, neither party shall be liable to the other for any indirect, incidental, special, punitive or consequential damages, including lost profits. 11.2 The aggregate liability of either party for damages arising out of or related to this Agreement shall not exceed the total fees paid by Client to Provider under this Agreement in the twelve (12) months preceding the event giving rise to the claim.

12. NOTICES

Notices shall be in writing and shall be deemed given when delivered personally, sent by certified mail (return receipt requested), or by nationally recognized overnight courier to the addresses set forth above or such other address as a party may designate by notice in accordance with this Section.

13. AMENDMENTS; WAIVER; COUNTERPARTS

13.1 Amendments. No amendment or modification of this Agreement shall be binding unless set forth in a written instrument signed by authorized representatives of both parties.

13.2 Waiver. No waiver of any provision shall be effective unless in writing and signed by the waiving party. A waiver on one occasion shall not constitute a waiver on any other occasion.

13.3 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be an original, and all of which together shall constitute one instrument. Signatures delivered by electronic means shall be deemed original signatures.

14. SEVERABILITY; ENTIRE AGREEMENT; GOVERNING LAW

14.1 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect and the invalid provision shall be reformed only to the extent necessary to make it enforceable.

14.2 Entire Agreement. This Agreement, together with the applicable Statements of Work, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof.

14.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflicts of law principles.

15. MISCELLANEOUS

15.1 Relationship of the Parties. Provider is and shall remain an independent contractor. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship between the parties.

15.2 Assignment. Neither party may assign this Agreement or its rights hereunder without the prior written consent of the other party, except that Client may assign to an affiliate or in connection with a merger, acquisition or sale of substantially all of its assets.

SIGNATURES

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