Professional Services PSA Document

PROFESSIONAL SERVICES AGREEMENT

This Professional Services Agreement (the "Agreement") is entered into as of by and between Client Name: , a business organized as with principal place of business at , and Service Provider Name: , a business organized as with principal place of business at . Client and Service Provider are each a "Party" and collectively the "Parties."

RECITALS

WHEREAS, Service Provider is engaged in the business of providing professional services including, without limitation, consulting, design, development, and advisory services; and

WHEREAS, Client desires to retain Service Provider to perform certain services as set forth in this Agreement and Service Provider is willing to perform such services on the terms and conditions set forth herein; and

WHEREAS, the Parties intend by this Agreement to set forth their respective rights and obligations with respect to the performance of such services.

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. SERVICES

1.1 Scope of Services. Service Provider shall provide the services described in the Statement of Work attached hereto as Exhibit A and incorporated by reference (the "Services"). The Services shall include, without limitation, any tasks, deliverables, milestones and acceptance criteria set forth in Exhibit A. If no Exhibit A is attached at signing, the Parties will complete and execute Exhibit A prior to the commencement of services.

2. TERM

2.1 Commencement and Duration. The term of this Agreement shall commence on the Commencement Date: and shall continue for months unless earlier terminated in accordance with Section 12.

2.2 Renewal. The Agreement may be renewed upon mutual written agreement of the Parties. Any renewal term shall be subject to the rates and terms agreed in writing at the time of renewal.

3. COMPENSATION

3.1 Fees. Client shall pay Service Provider the fees set forth in the applicable Statement of Work. If no statement is attached, the Parties agree that the compensation shall be: per .

3.2 Expenses. Client shall reimburse Service Provider for reasonable, pre-approved out-of-pocket expenses incurred in connection with the performance of the Services. Reimbursable expenses shall not exceed per month unless otherwise agreed in writing.

4. INVOICING AND PAYMENT

4.1 Invoices. Service Provider shall invoice Client in accordance with the payment schedule set forth in the applicable Statement of Work. Each invoice shall describe services performed, dates of performance, itemized expenses and applicable taxes.

4.2 Payment Terms. Payment is due within days of Client's receipt of an undisputed invoice. Late payments shall bear interest at the lesser of 1.5% per month or the maximum rate permitted by law.

5. CONFIDENTIALITY

5.1 Definition. "Confidential Information" means non-public, confidential or proprietary information disclosed by either Party to the other, whether in writing, orally, electronically or by inspection, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

5.2 Obligations. Receiving Party shall: (a) protect Confidential Information using at least the same standard of care it uses to protect its own confidential information, but no less than reasonable care; (b) not use Confidential Information except to exercise its rights and perform its obligations under this Agreement; and (c) not disclose Confidential Information to any third party except as permitted by this Agreement.

5.3 Exclusions. Confidential Information does not include information that: (a) is or becomes generally available to the public through no act or omission of Receiving Party; (b) was in Receiving Party's lawful possession prior to the disclosure; (c) is lawfully disclosed to Receiving Party by a third party without restriction; or (d) is independently developed by Receiving Party without use of or reference to Disclosing Party's Confidential Information.

6. INTELLECTUAL PROPERTY

6.1 Ownership of Pre-Existing Materials. Each Party retains all right, title and interest in and to any materials, software, tools, know-how or other intellectual property owned or developed by such Party prior to the Effective Date ("Pre-Existing Materials").

6.2 Deliverables; Assignment. Subject to Client's timely payment of all amounts due, Service Provider hereby assigns to Client all right, title and interest in and to the deliverables and final work product specifically prepared for Client under this Agreement (the "Deliverables"). To the extent that any Deliverables constitute a work made for hire, they shall be deemed owned by Client upon creation. Service Provider shall execute such instruments and take such further acts as reasonably necessary to effectuate the foregoing assignment.

6.3 Provider Tools and Third-Party Materials. Notwithstanding the foregoing, Service Provider shall retain ownership of its Pre-Existing Materials and any intellectual property that is generic, general purpose, or used or licensed from third parties ("Provider Tools"). Service Provider grants Client a non-exclusive, worldwide, royalty-free license to the extent necessary to use the Deliverables for Client's internal business purposes.

7. INDEPENDENT CONTRACTOR

7.1 Relationship. Service Provider is an independent contractor and is not an employee, agent, partner or joint venturer of Client. Service Provider shall determine the methods, details and means of performing the Services and shall be solely responsible for all taxes, withholdings, benefits and other statutory obligations related to its personnel.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual Representations. Each Party represents and warrants that it has full corporate power and authority to enter into this Agreement and to perform its obligations hereunder.

8.2 Service Provider Warranties. Service Provider represents and warrants that: (a) the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards; and (b) to the best of Service Provider's knowledge, the Deliverables, when used in accordance with this Agreement, will not infringe any valid third-party intellectual property rights.

9. INDEMNIFICATION

9.1 By Service Provider. Service Provider shall defend, indemnify and hold harmless Client and its officers, directors, employees and agents from and against any third-party claims, losses, liabilities, damages and expenses (including reasonable attorneys' fees) arising out of or resulting from (a) Service Provider's breach of Section 5 (Confidentiality) or Section 8 (Representations and Warranties); or (b) the gross negligence or willful misconduct of Service Provider in performing the Services.

9.2 By Client. Client shall defend, indemnify and hold harmless Service Provider from and against any third-party claims arising from Client's use of the Deliverables in a manner not authorized by this Agreement or that incorporates Client-supplied materials that infringe third-party rights.

10. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF SECTION 5 (CONFIDENTIALITY) OR A PARTY'S FAILURE TO INDEMNIFY THE OTHER PARTY, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES.

11. INSURANCE

Service Provider shall maintain insurance coverage appropriate to the Services provided, including commercial general liability and professional liability (errors and omissions) insurance in amounts no less than . Upon Client's request, Service Provider shall provide certificates of insurance evidencing such coverage.

12. TERMINATION

12.1 Termination for Cause. Either Party may terminate this Agreement for cause if the other Party materially breaches any obligation under this Agreement and fails to cure such breach within days after receipt of written notice specifying the breach.

12.2 Termination for Convenience. Client may terminate this Agreement for convenience upon days' prior written notice to Service Provider. In the event of termination for convenience, Client shall pay Service Provider for Services performed and approved expenses incurred through the effective date of termination.

13. EFFECTS OF TERMINATION

Upon termination or expiration of this Agreement, Service Provider shall cease performance and deliver to Client all Deliverables and any work in progress. Sections concerning payment, confidentiality, ownership, indemnification, limitation of liability and any other provision which by its nature should survive termination shall survive.

14. NOTICES

All notices required or permitted under this Agreement shall be in writing and shall be delivered to the Parties at their respective principal places of business set forth above or to such other address as either Party may specify by written notice. Notices shall be deemed given upon personal delivery, or three (3) days after deposit in the United States mail, postage prepaid, certified or registered mail, return receipt requested, or upon delivery by nationally recognized overnight courier.

15. AMENDMENTS; WAIVER

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 of that right, nor shall a single or partial exercise of any right preclude other or further exercise of that right.

16. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to its choice of law principles.

17. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, including any exhibits and statements of work referenced herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements, whether written or oral. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

18. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means shall be effective as originals.

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