Professional Software Services Agreement

PROFESSIONAL SOFTWARE SERVICES AGREEMENT

This Professional Software Services Agreement ("Agreement") is entered into as of Effective Date: by and between Client Name: (the "Client"), and Service Provider Name: (the "Provider"). Each a "Party" and together the "Parties."

RECITALS

WHEREAS, Client desires to obtain software development, integration, customization, and related professional services described herein; and

WHEREAS, Provider represents that it has the experience, personnel, and technical capability to perform such services in a professional manner consistent with industry standards; and

WHEREAS, the Parties desire to set forth the terms and conditions under which Provider will perform services and deliver work product to Client.

NOW, THEREFORE, in consideration of the mutual promises set forth below, the Parties agree as follows:

1. DEFINITIONS

1.1 "Services" means the professional services to be performed by Provider as described in the Statement of Work. "Deliverables" means tangible or intangible items delivered to Client as identified in the Statement of Work. "Statement of Work" or "SOW" means the document setting forth specific project scope, milestones, acceptance criteria, schedule and fees, if any, which is attached to or incorporated into this Agreement.

2. SERVICES; PERFORMANCE

2.1 Provider shall perform the Services in a professional and workmanlike manner, using personnel with requisite skill, and in accordance with the timelines set forth in the SOW. Provider shall comply with Client's reasonable operational rules and security policies when on Client premises or accessing Client systems, provided such rules do not conflict with Provider's legal obligations or materially increase Provider's costs.

2.2 Provider shall assign a project manager and shall notify Client in writing of any proposed change in key personnel. Any substitution of key personnel shall be subject to Client's reasonable approval, not to be unreasonably withheld.

3. STATEMENT OF WORK; CHANGE ORDERS

3.1 Each SOW shall describe Services, Deliverables, schedule, acceptance criteria and fees. SOWs executed by authorized representatives of both Parties shall be incorporated into and governed by this Agreement.

3.2 Any change in scope shall be documented by a written change order signed by both Parties. Changes affecting price or schedule shall not be binding unless evidenced by such written change order.

4. FEES; PAYMENT

4.1 Client shall pay Provider the fees and expenses set forth in each SOW. Unless otherwise stated, fees are payable within 30 days of invoice date ("Net 30"). Provider shall invoice Client monthly or as otherwise specified in the SOW.

4.2 Late payments shall accrue interest at 1.5% per month or the maximum rate allowed by law, whichever is less. Client shall be responsible for reasonable costs of collection, including attorneys' fees, for unpaid amounts.

4.3 All fees exclude applicable sales, use, value-added or other taxes. Client shall pay such taxes, except taxes based on Provider's net income.

5. ACCEPTANCE; TESTING

5.1 Deliverables shall be subject to the acceptance procedure set forth in the applicable SOW. If no procedure is specified, Client shall have ten (10) business days after delivery to test and provide written notice of rejection describing deficiencies. Provider shall correct defects identified by Client within a commercially reasonable period.

6. INTELLECTUAL PROPERTY

6.1 Ownership of Pre-Existing Materials. Each Party retains all rights in its pre-existing materials, tools, libraries, know-how, and intellectual property not developed specifically for Client under this Agreement ("Background Technology"). Provider grants Client a non-exclusive, non-transferable license to Background Technology only to the extent embedded in the Deliverables and solely for Client's internal use in connection with the Deliverables.

6.2 Work Product. Except as set forth in the SOW, upon final payment for Services, Provider assigns to Client all right, title and interest in and to the Deliverables that are created exclusively for Client under this Agreement, subject to Provider's ownership of Background Technology and third-party components.

6.3 Third-Party Components. Deliverables may include third-party software subject to separate license terms. Provider shall disclose such components in writing. Client's use of such components shall be governed by the applicable third-party license; Provider shall pass through to Client any transferable licenses when available.

7. CONFIDENTIALITY

7.1 Confidential Information means non-public information disclosed by one Party ("Disclosing Party") to the other ("Receiving Party") that is designated as confidential or that reasonably should be understood to be confidential.

7.2 Obligations. Receiving Party shall (a) use Confidential Information solely to perform its obligations under this Agreement; (b) protect Confidential Information with the same degree of care it uses to protect its own confidential information but no less than reasonable care; and (c) not disclose Confidential Information to any third party except to personnel or contractors who need access and who are bound by confidentiality obligations no less protective than those in this Agreement.

7.3 Exceptions. Confidential Information does not include information that is or becomes publicly known without breach, is rightfully received from a third party without restriction, or is independently developed without use of the Disclosing Party's Confidential Information.

8. REPRESENTATIONS AND WARRANTIES

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

8.2 Provider Warranty. Provider warrants that Services will be performed in a professional and workmanlike manner consistent with industry standards. For any breach of this warranty, Provider will, at its expense, re-perform the affected Services or, if re-performance is not commercially feasible, refund the fees paid for such Services.

8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

9.1 EXCEPT FOR LIABILITY ARISING FROM A PARTY'S BREACH OF SECTIONS 6 (INTELLECTUAL PROPERTY), 7 (CONFIDENTIALITY), OR A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THE APPLICABLE SOW DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

10. INDEMNIFICATION

10.1 Provider shall defend, indemnify and hold Client harmless from and against any third-party claims resulting from Provider's gross negligence, willful misconduct, or from a claim that the Deliverables, as delivered by Provider and used as permitted hereunder, infringe a third party's issued patent, copyright or trademark.

10.2 Client shall defend, indemnify and hold Provider harmless from third-party claims arising out of Client's misuse of the Deliverables, Client's breach of its obligations under this Agreement, or Client-provided materials.

11. INSURANCE

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

12. TERM AND TERMINATION

12.1 Term. This Agreement commences on the Effective Date and continues until terminated as provided herein or until all SOWs have been completed and accepted.

12.2 Termination for Convenience. Either Party may terminate this Agreement or any SOW for convenience upon thirty (30) days' prior written notice to the other Party. Client shall pay Provider for Services performed and non-cancellable obligations incurred through the effective date of termination.

12.3 Termination for Cause. Either Party may terminate this Agreement or any SOW upon written notice if the other Party materially breaches this Agreement and fails to cure the breach within thirty (30) days after receipt of written notice specifying the breach.

13. EFFECTS OF TERMINATION

Upon termination, Provider shall deliver to Client all Deliverables and work-in-progress for which Client has paid. Sections that by their nature survive termination shall continue in full force, including Intellectual Property, Confidentiality, Payment, Indemnification, Limitation of Liability, Governing Law and Severability.

14. NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as a Party may designate by notice in accordance with this Section. Notices are effective upon receipt.

15. ASSIGNMENT; SUBCONTRACTING

Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may assign to an affiliate or in connection with a merger, sale of substantially all assets, or change of control. Provider may subcontract portions of the Services so long as Provider remains responsible for performance and compliance with this Agreement.

16. AMENDMENTS; WAIVER; COUNTERPARTS

This Agreement may be amended only by a written agreement signed by authorized representatives of both Parties. A waiver of any right or breach must be in writing to be effective. This Agreement may be executed in counterparts, each of which shall be an original and all of which together constitute one instrument.

17. GOVERNING LAW; VENUE

This Agreement shall be governed by and construed in accordance with the laws of the state specified below without regard to its conflicts of laws principles. The Parties submit to the exclusive jurisdiction of state and federal courts located in the specified jurisdiction for disputes arising under this Agreement.

18. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, together with any incorporated SOWs, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral. If any provision of this Agreement is adjudicated to be invalid or unenforceable, that provision shall be modified to the minimum extent necessary to render it enforceable, and the remaining provisions shall remain in full force and effect.

19. MISCELLANEOUS

The Parties are independent contractors and nothing in this Agreement creates an agency, partnership, joint venture or employment relationship. Neither Party shall be liable for delays or failures to perform resulting from causes beyond its reasonable control, provided it gives prompt written notice to the other Party and uses commercially reasonable efforts to resume performance.

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