Professional Services Agreement

PROFESSIONAL SERVICES AGREEMENT

This Agreement is entered into as of the date of the client acceptance of any work order, online estimate, purchase order or other formal written quote (“Work Authorizations”), between Forms On Fire, Inc., a Washington corporation (“FOF”), and (“Client”), beginning on the date any Work Authorization is accepted by Client, (the “Effective Date”), and continuing for up to sixty (60) days past the time when User Acceptance Testing (“UAT”) begins or as mutually agreed by both parties, whichever is first.

The parties agree as follows:

1.     Services. FOF agrees to perform the services (the “Services”) described on Work Authorizations which are executed from time to time by authorized representatives of both parties and which reference this Agreement.

2.     Charges; Invoicing and Payment. As consideration for FOF’s Services, Client agrees to pay FOF the amounts set forth on any Work Authorization.
Invoices will be issued at the Effective Date or as specified in the Work Authorization. Payment is due not less than fifteen (15) days of the Effective Date unless otherwise stated in any Work Authorization. A delayed payment charge of one percent (1.0%) of the invoice amount will be paid by Client for each 30-day period (or part thereof) of delay in payment beyond the payment due date. Unless otherwise stated in any Work Authorization, 100% of the Work Authorization amount will be invoiced on the Effective Date.

3.     Term and Termination. This Agreement will commence on the Effective Date specified above. This Agreement and the obligations of the parties hereunder may terminate early upon the occurrence of any of the following events: (i) completion of the Services by FOF as specified in any applicable Work Authorizations; (ii) the institution of voluntary or involuntary proceedings by or against any party in bankruptcy or under any insolvency law, or for corporate reorganization, the appointment of a receiver or petition for the dissolution of any party or an assignment by a party for the benefit of creditors; or (iii) upon fourteen (14) days written notice given by either party for any reason or no reason. FOF shall be paid any amounts owing for Services performed and expenses incurred through the termination date. Client shall also reimburse FOF for the costs of all non-cancelable committed Services, expenses and materials on order (which shall become Client’s property) resulting from such termination or suspension of Services.

4.     Records and Progress Reports. FOF shall keep full and accurate records of all of its labor hours and reimbursable expenses incurred in connection with this Agreement. FOF shall provide access to such records upon Client’s reasonable request.

5.     Ownership and Use of Intellectual Property. During the term of this Agreement, as a result of FOF’s efforts under this Agreement, FOF may generate ideas, inventions, suggestions, copyrightable materials or other information (“Intellectual Property”) which fall into one of two categories:

a. Intellectual Property specifically related to the subject matter of FOF’s efforts under this Agreement, and directly related to, or incorporated into, the work product to be produced by FOF and delivered to Client under this Agreement. Title to Intellectual Property described in this paragraph 5a, that is developed solely by FOF, or jointly by FOF and Client, shall remain in FOF at all times. FOF grants and Client hereby accepts, a perpetual, worldwide, royalty-free, EXCLUSIVE license to use all such Intellectual Property as incorporated into the FOF work product; and

b. Intellectual Property of general applicability, whether or not related to, or incorporated into, the work product to be produced by FOF and delivered to Client under this Agreement. Title to Intellectual Property described in this paragraph 5b, including any Intellectual Property developed by FOF prior to or outside of this Agreement, shall remain in FOF. To the extent such Intellectual Property is incorporated into work product to be produced by FOF and delivered to Client under this Agreement, FOF grants and Client hereby accepts, a perpetual, worldwide, royalty-free, NON-EXCLUSIVE license to use all such Intellectual Property as incorporated into the FOF work product.

6.     Confidentiality Obligations. All information and material that may be disclosed by one party to the other in the course of this Agreement is considered confidential and proprietary and will not be used by the receiving party other than for the purposes under this Agreement for which it was disclosed. The receiving party will protect such information from disclosure to third parties and hold it as confidential using the same degree of care as that party uses to protect its own confidential or proprietary material of like importance, but at least reasonable care. This obligation will continue for a period of two (2) years following receipt of the material and will survive any termination of this Agreement, but it will not cover any information which is disclosed to a third party by the disclosing party without restrictions on disclosure, any information that has been or is developed independently by the receiving party without violation of obligations of confidentiality, any information that falls into the public domain without fault of the receiving party, any information that is rightly obtained by the receiving party from a third party without restriction, or any information that is rightly in the possession of the receiving party at the time of disclosure by the disclosing party.

7.     Status of FOF as Independent Contractor. FOF shall devote such time and effort to the performance of the Services as may be necessary to satisfactorily complete the work. FOF shall be an independent contractor in the performance of this Agreement and shall not be deemed an employee or agent of Client for any purpose whatsoever. Neither party shall have power to act as an agent of the other or bind the other in any respect. FOF’s performance shall be in compliance with all applicable statutes or regulations of any jurisdiction or governmental agency.

8.     Workplace. If FOF is requested by Client to provide Services on Client premises, Client agrees to provide FOF personnel a safe workplace, computers, equipment and supplies, whose standards are consistent with that of its own employees. Client also agrees to provide reasonable access to its personnel necessary for FOF to perform the Services. FOF personnel will observe all safety and other applicable rules in effect at such workplace, provided that notice of the rules has been supplied to FOF and such personnel.

9.     Non-Solicitation/No Hire Provision. Client shall not solicit employment from, or, whether solicited or not, hire, any of FOF’s employees, whether such FOF employees work relates to this Agreement or not, during the term of this Agreement and for a period of one (1) year after termination of this Agreement, without FOF’s prior written consent. If Client hires or contracts with any of FOF’s employees in violation of this section 9, then a fee of twenty-five percent (25%) of the annual compensation payable to such employee or agent will be paid to FOF by Client. All parties agree that if a breach were to occur, it will be difficult to determine the actual damage. Based on what the parties presently know about this Agreement and the Services, all parties agree that the liquidated damage above is a reasonable estimate of the damages that would accrue if a breach occurred in the future; and all parties agree that the amount of liquidated damages is fair and reasonable and would not act as a penalty to the breaching party.

10.     Warranty; Limitation of Liability. FOF represents and warrants that the Services provided hereunder will be performed in a manner consistent with the standards and the general customs and practices of the computer services industry. FOF makes no representation or warranty for any services, software or products of third parties, including Client legacy systems and/or data. Client must report any deficiencies in the Services within fifteen (15) days of the completion of the Services and at most, not longer than sixty (60) days past entering User Acceptance Testing (UAT) phase. Client’s sole remedy for the breach of any warranty by FOF under this Agreement shall be the re-performance of the Services.

THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE FOF’s EXCLUSIVE WARRANTIES. FOF DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NON-INFRINGEMENT WITH RESPECT TO INTELLECTUAL PROPERTY. FOF WILL NOT BE LIABLE IN ANY EVENT, IN CONTRACT OR TORT, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. NO ESTIMATE CONTAINED IN ANY WORK ORDER WILL BIND FOF AND FOF DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OF ANY SUCH ESTIMATE. IN ANY EVENT, FOF’s MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR ANY SPECIFIC WORK AUTHORIZATION.

11.     Miscellaneous. This Agreement is governed by the laws of the State of Washington. Any legal action must be filed within one (1) years after the cause for such action arises. The parties agree that jurisdiction over and venue in any legal proceeding arising out of or relating to this Agreement shall be the Superior Courts of King County, Washington. The prevailing party to any action shall be entitled to its reasonable costs and attorneys’ fees from the other party.

Unless otherwise specifically provided in this Agreement, the terms of this Agreement shall prevail over any conflicting provision of any applicable Work Authorization.

Notices will be effective when received in writing at the addresses set forth below.

Client or FOF may not assign its rights under this Agreement without the prior written consent of either party, except in the case of merger or acquisition of Client or FOF.

Client agrees that FOF may, without further approvals of Client, issue or authorize the issuance of press releases, publicity or new reports, or other public announcements (including without limitation, corporate reports), which use Client’s name, logo or other identifier, or otherwise identify Client. FOF’s public releases or reports authorized hereunder may identify Client as a Client of FOF or otherwise doing business with FOF, and may disclose the existence and performance of this Agreement, but nothing in this section shall be deemed a license or transfer of Client’s trademarks to FOF. Client agrees to cooperate with FOF in preparation of a Client reference and Client quote to be used in FOFs marketing activities.

This Agreement constitutes the entire agreement of the parties, supersedes any prior understandings relating to the subject matter hereof, and may be amended or supplemented only in a written agreement signed by FOF and Client. All preprinted clauses on any Work Authorization sent by Client to FOF are deemed deleted. The parties agree that Agreements with one or more faxed signatures shall have the same force and effect as an originally executed Agreement.

If either party fails to insist upon or enforce strict performance of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, that failure will not be interpreted or construed as a waiver of any provision of this Agreement in that or any other instance. The rights and remedies of the parties provided in this Agreement are not exclusive and are in addition to any other rights and remedies at law or in equity.

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