Professional Service Agreement

This Professional Services Agreement (“AGREEMENT”) is effective as of ___________________ (“Effective Date”) by and between ____________________________________________ herein referred as “CLIENT” and ByYourSite herein referred as “BYYOURSITE”, with reference to the following:

ENGAGEMENT

CLIENT herby agree to engage BYYOURSITE to provide the Services as described in the Scope of Services (Attachment A).

Term

This AGREEMENT shall commence upon execution and remain in full force and effect until terminated as hereinafter defined. Either party may terminate any Attachment hereto upon thirty (30) days written notice to the other party. Either party may terminate this AGREEMENT upon thirty (30) days written notice to the other party, provided that all Attachment hereto have been terminated or expired at the date of termination of this Agreement.

Payment

CLIENT agrees to pay BYYOURSITE for the actual Services rendered in accordance with the rates specified in attachment B.

CLIENT will be responsible for all the reasonable actual expenses incurred by BYYOURSITE in performing the services under this agreement. Expenses include but not necessarily limited to travel expenses (transportation, meal, lodging), telephone expenses, computer and network usage expenses.

Invoices will be rendered on a monthly basis for the Services rendered and the expenses incurred and are due and payable upon receipt by CLIENT. All installments unpaid for more than 15 days shall incur 1.5% interest per month or part of month of the unpaid balance.

Taxes

BYYOURSITE is responsible for compensating its employees and all associated payroll taxes and income taxes. All fees payable hereunder are exclusive of all other taxes, however designated, such as customs, privilege, excise, sales, use, value added, and property taxes levied or based on gross revenue of the AGREEMENT. CLIENT will pay all such taxes or provide to BYYOURSITE a certificate of exemption from such taxes acceptable to the appropriate taxing authority.

OBLIGATION OF BYYOURSITE

Independent Contractor

BYYOURSITE is an independent contractor and will maintain complete control of and responsibility for its employees, subcontractors, and agents. BYYOURSITE shall also be solely responsible for the means and methods for carrying out the Scope of Services and for the safety of its employees. Nothing contained in this AGREEMENT will create any contractual relationship between CLIENT and BYYOURSITE.

Codes, Laws, and Regulations

BYYOURSITE will comply with all applicable codes, laws, regulations, standards, and ordinances in force during the term of this AGREEMENT.

Acounting Records

BYYOURSITE will maintain accounting records in accordance with generally accepted accounting principles and practices to substantiate all invoiced amounts.

Year 2000 Compliance

BYYOURSITE warrants the products and services included in this AGREEMENT shall be Year 2000 compliant according to the following definitions:

a)       The products and services must handle dates consistently prior to, during and after the year 2000.

b)       In all documents, interfaces and data storage, the century in any date must be specified explicitly.

c)       The year 2000 must be recognized as a leap year.

Safety

BYYOURSITE is solely responsible for health and safety of its employees and consultants.  BYYOURSITE will comply with any owner or site controlling contractor’s health and safety plan.  BYYOURSITE will comply with all applicable federal, state and local laws and regulations related to health and safety.

OBLIGATIONS OF CLIENT

Timely Review

CLIENT will examine BYYOURSITE 's studies, reports, proposals, and other project-related documents and render decisions required by BYYOURSITE in a timely manner.

Prompt Notice

CLIENT will give written notice to BYYOURSITE whenever CLIENT observes or becomes aware of any development that affects the scope or timing of BYYOURSITE's Scope of Services, or any defect in the Services of BYYOURSITE.

Technical Guidance and Information Transfer

CLIENT may, at its sole discretion, provide technical guidance on subcontract performance. Technical guidance may include:

(a) Guidance that assists BYYOURSITE in accomplishing the Scope of Services

(b) Review comments on deliverables

(c) Copies of technical guidance documents relative to Services under this AGREEMENT, as they are made available to CLIENT

Technical guidance will be issued in writing or, after verbal issuance, confirmed in writing.

Furnished Data

CLIENT will provide BYYOURSITE technical data in its possession, including, but not limited to, data, programs, source codes, previous reports, maps, surveys, and other information relating to BYYOURSITE's Scope of Services on the PROJECT. BYYOURSITE may reasonably rely upon the accuracy of the information provided by CLIENT.

GENERAL LEGAL PROVISIONS

Proprietary Information

Proprietary information includes, but is not necessarily limited to Licensed Products, process, formulas, data, programs, know-how, improvements, discovery, developments, designs, inventions, techniques, marketing plans, strategies, forecasts, unpublished financial statements, budgets, projections, client lists, other information which has commercial value in the business in which parties are engaged. BYYOURSITE and CLIENT jointly and mutually agree to hold each other’s proprietary information in confidence at least to the same extend that it protects its own similar confidential information and to take all reasonable precautions consistent with generally accepted standards in the data processing industry to safeguard the confidentiality of this information. No portion of the Proprietary Information may be disclosed, furnished, transferred or otherwise made available by BYYOURSITE or CLIENT to third parties except to those of its employees (or subcontractors who have entered into a confidential agreement) who need to use such Proprietary Information in their duties related to this AGREEMENT. BYYOURSITE and CLIENT agree to take appropriate action by instruction, agreement and otherwise with such employees (or subcontractors) to inform them of the proprietary and confidential nature of such information and to obtain their compliance with the terms of this AGREEMENT. The obligations of this section will survive the termination of the AGREEMENT.

CLIENT recognizes BYYOURSITE to be the supplier of information system-related professional services and that BYYOURSITE actively markets software products and services as part of its business.

BYYOURSITE assumes no responsibility arising out of information and know how furnished by CLIENT to BYYOURSITE.

This paragraph shall survive the termination of the AGREEMENT, however, it shall not apply to the information which is in the public domain, is independently developed by BYYOURSITE or is make to known to BYYOURSITE by someone other than CLIENT.

BYYOURSITE shall be allowed to use CLIENT’s name on its customer list and disclose the same to its present and potential customers after execution of this AGREEMENT.

BYYOURSITE shall not use CLIENT’s name or logo for any other commercial purpose without CLIENT’s prior written consent.

Limitation of Liability

BYYOURSITE shall use its best efforts to provide the services required hereunder. CLIENT acknowledges BYYOURSITE is only able to provide services based on the quality of information and work specifications supplied by CLIENT. BYYOURSITE shall be indemnified and saved harmless by CLIENT from and against all losses, claims, damages, penalties, cost, and expenses incurred by CLIENT or BYYOURSITE arising out of the performance or non-performance of BYYOURSITE obligations under this AGREEMENT. BYYOURSITE shall not be liable to CLIENT for any special direct, indirect or consequential damages including, but not limited to, lost profit, even if the parties have knowledge of the possibility of such damages.

Force Majeure

Neither party to this AGREEMENT will be liable to the other party for delays in performing the Scope of Services, or for the direct or indirect cost resulting from such delays, that may result from acts of God, acts of governmental authorities, extraordinary weather conditions or other natural catastrophes, or any other cause beyond the reasonable control or contemplation of either party.  Each party will take reasonable steps to mitigate the impact of any force majeure.  BYYOURSITE will adjust the schedule and compensation under this AGREEMENT to the extent that BYYOURSITE’s schedule and compensation are equitably adjusted by BYYOURSITE.

Authorization to Proceed

Execution of this AGREEMENT by CLIENT will be authorization for BYYOURSITE to proceed with the Scope of Services, unless otherwise provided for in this AGREEMENT.

No Third Party Beneficiaries

This AGREEMENT gives no rights or benefits to anyone other than BYYOURSITE and CLIENT and has no third-party beneficiaries.

Jurisdiction

The law of the state of California shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it.

Severability and Survival

If any of the Provisions contained in this AGREEMENT are held invalid, illegal, or unenforceable, the enforceability of the other remaining provisions shall not be impaired. Limitations of liability, indemnities, and other express representations shall survive termination of this AGREEMENT for any cause.

In the event any legal action is instituted to enforce any of the terms of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys fees, expenses and costs, including, but not limited to, expert witness fees.

The parties have caused this AGREEMENT to be executed by their duly authorized representatives.

Date Accepted:

ACCEPTED by CLIENT:                                    ACCEPTED by BYYOURSITE:

Attachment A: Scope of Services

Attachment B: Rates