THIS AGREEMENT is made as of ____________________ between Pacific Business Software, Incorporated, hereinafter referred to as Contractor, and ____________________, hereafter referred to as Customer.
In the event of a conflict in the provisions of any attachments hereto and the provisions set forth in this Agreement, the provisions of such attachments shall govern.
1. Services. Contractor agrees to perform for Customer the services listed in the Scope of Services section in Exhibit A, attached hereto and executed by both Customer and Contractor. Such services are hereinafter referred to as "Services." Customer agrees that Contractor shall have ready access to customer's staff and resources as needed to perform the Contractor's services provided by this contract.
2. Rate of Payment for Services. Customer agrees to pay Contractor for Services in accordance with the "Professional Fee Schedule", Exhibit B, attached hereto and executed by both Customer and Contractor.
3. Invoicing. Customer shall pay the amounts agreed to herein upon receipt of invoices or statements which shall be sent by Contractor, and Customer shall pay the amount of such Invoices or statements to Contractor.
4. Confidential Information. All Customer trade secrets and confidential information obtained by Contractor while in performance of this Agreement shall be regarded by Contractor as strictly confidential and shall be held by Contractor in trust for Customer. Confidential information is information which relates to Customer's research, development, trade secrets or business affairs, but does not include information which is generally known or easily ascertainable by nonparties of ordinary skill in computer design and programming.
Contractor hereby acknowledges that during the performance of this contract, the Contractor may learn or receive confidential Customer information and therefore Contractor hereby confirms that all such information relating to the Customer's business will be kept confidential except to the extent that such information is required to be divulged to the Contractor's clerical or support staff or associates in order to enable Contractor to perform Contractor's contract obligations. All discoveries, improvements and inventions made or conceived by Contractor while in performance of this Agreement shall remain the sole property of Contractor.
5. Staff. Contractor is an independent contractor and neither Contractor nor Contractor's staff is, or shall be deemed to be employed by Customer. Customer is hereby contracting with Contractor for the services described in Exhibit A and Contractor reserves the right to determine the method, manner and means by which the services will be performed. Contractor is not required to perform the services during a fixed hourly or daily time and if the services are performed at the Customer's premises, then Contractor's time spent at the premises is to be at the discretion of the Contractor; subject to the Customers normal business hours and security requirements. Contractor shall not be required to devote Contractor's full time nor the full time of the Contractor's staff to the performance of the services required thereunder, and it is acknowledged that Contractor has other customers and Contractor offers services to the general public. The order or sequence in which the work is to be performed shall be under the control of Contractor. Except to the extent that the Contractor's work must be performed on or with the Customer's computers or Customer's existing software.
6. Use of Work Product. Except as specifically set forth in writing and signed by both Customer and Contractor, Contractor shall have all copyright and patent rights with respect to all materials developed under this contract, and Customer is hereby granted a non-exclusive license to use and employ such materials within the Customer's business.
7. Disputes. Any disputes that arise between parties with respect to the performance of this contract shall be submitted to binding arbitration by the American Arbitration Association, to be determined and resolved by said association under its rules and procedures in effect at the time of submission and the parties hereby agree to share equally in the costs of said arbitration.
The final arbitration decision shall be enforceable through the courts of the State of California. In the event that this arbitration provision is held unenforceable by any court of competent jurisdiction, then this contract shall be as binding and enforceable as if this section 7 were not a part hereof.
8. Taxes. Any and all taxes, except income taxes, imposed or assessed by reason of this contract or its performance, including but not limited to sales or use taxes, shall be paid by the Customer. Contractor shall be responsible for any taxes or penalties assessed by reason of any claims that Contractor is an employee of Customer, and Customer and Contractor specifically agree that Contractor is not an employee of Customer.
9. Complete Agreement. This Agreement contains the entire agreement between the parties hereto with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by on behalf of Contractor by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties hereto with respect to the subject matter hereof. Customer acknowledges that it is entering into this Agreement solely on the basis of the representations contained herein.
10. Damages. Contractor shall hold Customer harmless from damages or obligations incurred by Contractor while performing services thereunder. Contractor shall incur no obligations on account of or in the name of Customer, except after specific written instructions authorizing Contractor to do same.
In case of arbitration or litigation arising out of any terms of this Agreement or in the performance thereof, the prevailing party shall be entitled to reasonable attorney's fees, experts' fees, and/or costs incurred.
11. Duration of Agreement. Unless either party gives the other party thirty (30) days' written notice of termination, this Agreement shall be effective for twelve months.
12. Additional Work. After receipt of an order which adds to the Services, Contractor may, at its discretion, take reasonable action and expend reasonable amounts of time and money based on such order. Customer agrees to pay Contractor for such action and expenditure as set forth in Exhibit B of this Agreement for payments related to Services.
13. Notices.
(i) Notices to Contractor should be sent to: Pacific Business Software, In.,
P.O. Box 8208, Foster City, CA. 94404
(ii) Notices to Customer should be sent to: ______________________
14. Liability. Contractor warrants to Customer that the material, analysis, data, programs and services to be delivered or rendered hereunder will be of the kind and quality designated and will be performed by qualified personnel. Special requirements for format or standards to be followed shall be attached as an additional Exhibit and executed by both Customer and Contractor. Contractor makes no other warranties, whether written, oral or implied, including without limitation, warranty of fitness for purpose or merchantability. In no event shall Contractor be liable for special or consequential damages, either in contract or tort, whether or not the possibility of such damages has been disclosed to Contractor in advance or could have been reasonably foreseen by Contractor, and in the event this limitation of damages is held unenforceable then the parties agree that by reason of the difficulty in foreseeing possible damages all liability to Customer be limited to One Hundred dollars ($100.00) as liquidated damages and not as a penalty.
15. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Except for the prohibition on assignment contained in the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto.
