UNIVERSITY OF PITTSBURGH

PROFESSIONAL SERVICES AGREEMENT

This Professional Services Agreement (this “Agreement”) is made and entered into as of the day of , 20 (the “Effective Date”), by and between the University of Pittsburgh – Of the Commonwealth System of Higher Education (the “University”), 4200 Fifth Avenue, Pittsburgh, PA 15260, and , with an office located at (the “Service Provider”).

WHEREAS, the University is desirous of obtaining the professional services of the Service Provider; and,

WHEREAS, the Service Provider has the knowledge, skill and capability to perform such services for the University.

THEREFORE, in consideration of the foregoing, the parties, intending to be legally bound, hereby covenant and agree to the following:

1. Services. The Service Provider is hereby retained by the University and Service Provider agrees to provide the services set forth on Exhibit A attached hereto and incorporated herein by this reference (the “Services”). Services shall be performed in accordance with the timeline set forth in Exhibit A, or any supplemental schedule prepared by the Service Provider and agreed to in writing by an authorized representative of the University.

2. Service Requirements. The Services delivered hereunder shall conform in all material respects to (i) the specifications set forth in Exhibit A, (ii) the terms and conditions set forth in this Agreement, and (iii) any other requirements agreed upon by the parties in writing. Service Provider agrees to use sound and professional principles and practices in accordance with normally accepted industry standards in rendering Services hereunder, and Service Provider further agrees that performance shall reflect the best professional knowledge, skill and judgment of Service Provider. Service Provider shall furnish competent personnel for fulfillment of its obligations. If University deems Service Provider personnel unsatisfactory to perform Services due to a failure by such personnel to comply with the terms and conditions imposed on Service Provider as set forth herein, such personnel shall be removed immediately.

3. Nature of Services.

(a) Work Product. Any and all reports, documentation, files, media and other materials created or produced by Service Provider in connection with the Services rendered hereunder shall be deemed “Work Product.”

(b) Work Made for Hire. The Work Product shall constitute works-made-for-hire belonging exclusively to the University. To the extent that any Work Product does not constitute a work-made-for-hire owned by the University, Service Provider agrees to assign and transfer all of its right, title and interest in such Work Product to the University.

(c) Modifications to Work Product. The University retains the right to modify the Work Product or to merge the Work Product into other documents or other materials owned or utilized by the University.

(d) Service Provider Proprietary Material. University does not under this Agreement acquire any ownership rights in and/or to any software, documentation, tools, techniques, methodologies or other material which has not or is not created as part of the Services to be rendered hereunder which is proprietary to Service Provider (“Service Provider Proprietary Material”). However, if Service Provider incorporates any Service Provider Proprietary Material into any Work Product, or any of the Work Product requires Service Provider Proprietary Material in order to operate or otherwise be useable by the University, Service Provider hereby grants the University a non-exclusive, royalty free, fully paid, perpetual, irrevocable license to use the Service Provider Proprietary Material as part of the Work Product.

(e) Third Party Proprietary Material. University does not under this Agreement acquire any ownership rights in and/or to any software, documentation, tools, techniques, methodologies or other material which is proprietary to any third party (“Third Party Proprietary Material”). The University shall be responsible for obtaining any necessary licenses for Third Party Proprietary Material. Service Provider may not incorporate any Third Party Proprietary Material into the Work Product without the prior written consent of the University.

4. Service Provider’s Representations, Warranties and Covenants.

(a) Service Provider shall comply with all applicable laws, ordinances, codes and regulations of any federal, state, county or municipal government, bureau or department relative to all of its activities and shall obtain and maintain all necessary licenses, permits and approvals at its sole cost and expense. Service Provider shall have sole responsibility for any fines, penalties or other amounts due pertaining to Services rendered hereunder due to acts or omissions of the Service Provider, its employees, agents, contractors or invitees. Service Provider certifies that it does not and will not during the performance of this Agreement employ, recruit or refer for employment illegal alien workers or otherwise violate the provisions of section 274a Federal Immigration Reform and Control Act of 1986.

(b) Service Provider, its employees, agents, contractors and/or invitees shall be responsible for reviewing and complying with applicable University policies and procedures (http://www.pitt.edu/HOME/PP/pp_handbooks.html) in connection with rendering the Services hereunder. In additions, Service Provider, its employees, agents, contractors and/or invitees shall comply with any other requirements imposed by the University relating to access, safety and security in connection with the Services from the time the University gives Service Provider notice of the same.

(c)  Service Provider shall take reasonable steps to safeguard any data, files, reports or other information provided by the University or collected by Service Provider in connection with the Services rendered hereunder from loss, destruction or erasure.

(d)  Service Provider warrants that: (1) the Work Product shall not infringe or misappropriate any patent, copyright, trademark, trade secret or other proprietary right of any person; (2) it owns or has the necessary rights to license any Service Provider Proprietary Material provided to University pursuant to the terms of this Agreement; and (3) it will not violate any agreement with any third party in performing Services pursuant to this Agreement.

(e)  Service Provider shall assume full responsibility for the acts and/or inactions or its employees, agents, contractors and/or invitees performing Services hereunder. Service Provider shall be responsible for all damage to persons or property caused by Service Provider or any of its employees, agents, contractors and/or invitees and licensees, specifically including, but not limited to, acts of negligence, recklessness, vandalism or other willful, destructive behavior.

5. Payment. The University agrees to pay Service Provider a fixed fee in the amount of ($) for Services completed in accordance with the terms of this Agreement. The fee shall be due and payable as specified in Exhibit A. The fee shall be payable within thirty (30) days after receipt and approval by the University of Service Provider’s invoice. Except as otherwise specified in Exhibit A, Service Provider shall not incur or charge the University any other fees or expenses without the prior written authorization of the University. Performance beyond the limitations set forth in this Agreement (either financial or time period) shall be at the sole risk and responsibility of the Service Provider, and the University shall not be obligated to pay for Services exceeding the funding or contract period of this Agreement.

6. Term. The term of this Agreement shall commence on the Effective Date and shall continue until, 20, unless this Agreement is otherwise extended or terminated in accordance with the terms specified herein.

7. Independent Contractor Status. All individuals furnishing Services pursuant to this Agreement shall be employed by or contractors of the Service Provider. Such employees or contractors shall be engaged solely by the Service Provider and shall not be deemed for any purposes whatsoever employees or agents acting for or on behalf of the University. The Service Provider shall perform all Services as an independent contractor and shall assume all liabilities as such. The Service Provider shall be solely responsible for employees on its payroll and shall withhold and pay all applicable federal and state employment taxes and payroll insurance falling due, including any income, social security and unemployment taxes and workers’ compensation costs. In rendering Services hereunder, the Service Provider agrees that the Service Provider shall not have the authority to enter into any contract or agreement to bind the University and shall not represent to anyone that the Service Provider has such authority.

8. Insurance. During the term of this Agreement, Service Provider agrees to carry, at its own expense, and with satisfactory insurance companies, as determined by the Office of Risk Management of the University of Pittsburgh, insurance in the minimum limits set forth on Exhibit B attached hereto and incorporated herein by this reference. The University shall be named as an additional insured for insurance listed as items 1 and 2 on Exhibit B. Service Provider must identify all lines of insurance for which Service Provider has a self-insured retention above $25,000.

Certificates of insurance evidencing all insurance coverage shall be provided to the University prior to the commencement of Services by Service Provider. Such certificates shall be sent to University of Pittsburgh, Office of Risk Management, 1817 Cathedral of Learning, Pittsburgh, PA 15260. Such policies shall contain a provision that the insurance shall not be canceled without thirty (30) days prior written notice to University. As specified in Section 4(e) above, the Service Provider shall be responsible for the acts and/or inactions of itself and certain others resulting from the performance of the Services. The fact that Service Provider has evidenced insurance as required by this Section 8 shall in no manner lessen nor affect the Service Provider’s obligations set forth in any other provision of this Agreement.

9. Indemnification Claims.

(a) Service Provider shall indemnify, defend and hold harmless the University, its trustees, officers, employees and agents, from and against any and all claims, liabilities, damages, injuries, expenses or losses including, but not limited to, attorneys’ fees or costs (a “Loss”) by reason of any suit, claim, demand, judgment or cause of action (an “Action”) initiated by any person resulting from any act or omission of Service Provider, its directors, officers, employees, agents, contractors and/or invitees arising out of or in connection with (i) any breach or failure of observance or performance of any representation, warranty or covenant or other provision of this Agreement, (ii) the use and/or occupancy of University premises in connection with the Services to be rendered hereunder, or (iii) any violation of law.

(b) The University agrees to notify Service Provider promptly, in writing, of any Action brought against it in connection with this Agreement. The University agrees that it shall provide to the Service Provider such information and assistance as reasonably requested by the Service Provider, at Service Provider’s expense, necessary for Service Provider to defend any such Action.

10. Confidentiality. As of the Effective Date hereof, the parties hereto consent to the terms and conditions of the Confidentiality Provisions as set forth on Exhibit C attached hereto and incorporated herein by this reference (the “Confidentiality Provisions”).

11. Use of Marks. Except as necessary for rendering Services pursuant to the terms of this Agreement and approved in writing, in advance, by the authorized representative of the University, the Service Provider shall not make use of the University’s trademarks, trade names and service marks, nor shall it publicize the Service Provider’s performance of Services without the University’s prior written consent.

12. Survival of Terms. The Service Provider agrees that the obligations of Sections 9, 10 and 11 hereof will survive the termination of this Agreement.

13. Termination.

(a) Default. Either party may immediately terminate this Agreement if the other party hereto shall breach or fail to comply with any representation, covenant, warranty or other obligation pursuant to this Agreement and such failure shall continue for a period of thirty (30) days after written notice of breach has been provided to such other party.

(b) Insolvency/Bankruptcy. Either party may terminate this Agreement if the other party hereto shall become insolvent or voluntarily commences any proceedings or files any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition above, (iii) applies for or consents to the appointment or a receiver, trustee, custodian, sequestrator, conservator or similar official for itself or for a substantial part of its assets, (iv) files an answer admitting the material allegations of a petition filed against it in any proceeding, (v) makes a general assignment for the benefit of creditors, or (vi) takes any action for the purpose of effecting any of the foregoing.

(c) Convenience. Notwithstanding any other provision of this Agreement, the University shall have the right to suspend or terminate this Agreement for its convenience, in whole or in part, at any time by providing fifteen (15) days written notice to the Service Provider. In the event of such termination, Service Provider shall promptly comply with the directions of the University and shall, subject to direction, take such action as may be necessary to minimize costs and expenses incurred with respect to the Services. The University shall pay to Service Provider its fee through the effective date of termination.

14. Miscellaneous.

(a)  Force Majeure. Performance of this Agreement by each party shall be pursued with due diligence in all requirements hereof; however, neither party shall be liable for any loss or damage for delay or nonperformance due to causes not reasonably within its control; provided, however, that work stoppages, labor disputes or other labor issues shall not be deemed to be force majeure events. In the event of any delay resulting from such causes, the time for performance and payment hereunder shall be extended for a period of time reasonably necessary to overcome the effect of such delays, so long as the party affected exercises its best efforts to overcome the delay or nonperformance and to mitigate any negative consequences arising therefrom. In the event of any delay or nonperformance caused by such uncontrollable forces, the party affected shall promptly notify the other in writing of the nature, cause, date of commencement thereof and the anticipated extent of such delay, and shall indicate whether it is anticipated that the completion dates would be affected thereby.

(b)  Assignment; Subcontracting. The Service Provider may not assign its obligations under this Agreement without the University’s prior written consent. Service Provider may perform its obligations with respect to any or all of the Services under this Agreement through one or more qualified subcontractors, provided that Service Provider shall (i) notify the University in writing of the name of the subcontractor and University has not notified Service Provider of any objections to such subcontractor, (ii) ensure that subcontractor assume toward the Service Provider all obligations and responsibilities that the Service Provider assumes toward the University under the terms of the Agreement, (iii) ensure that the terms and conditions of this Agreement are adhered to by all persons fulfilling Service Provider’s obligations under this Agreement, (iv) not be relieved of any of its legal obligations under this Agreement, and (v) be responsible for any breach of this Agreement by any party utilized by Service Provider with respect to this Agreement.