PROFESSIONAL SERVICES AGREEMENT

State of West Virginia

AGREEMENT DATE: [DATE]

AGREEMENT NUMBER: [PSA-YEAR-NUMBER]

PARTIES

SERVICE PROVIDER ("Provider"):

CLIENT ("Client"):

Provider and Client are each a "Party" and collectively the "Parties."

RECITALS

WHEREAS, Provider is engaged in the business of providing [DESCRIPTION OF PROFESSIONAL SERVICES] and possesses the skills, expertise, and qualifications necessary to perform such services;

WHEREAS, Client desires to engage Provider to perform certain professional services as more particularly described herein;

WHEREAS, Provider desires to be engaged by Client and to perform such services in accordance with the terms and conditions set forth in this Agreement;

WHEREAS, the Parties intend that their relationship shall be governed by West Virginia law, including the West Virginia Code and applicable rules and regulations;

WHEREAS, the Parties acknowledge that West Virginia provides a ten (10)-year statute of limitations on written contracts under W. Va. Code Section 55-2-6, reflecting the state's strong public policy favoring enforcement of contractual obligations;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1: DEFINITIONS

1.1 "Applicable Law" means all federal, state, and local laws, statutes, ordinances, rules, regulations, codes, and orders applicable to the Services or either Party's obligations under this Agreement, including without limitation the West Virginia Code, West Virginia Consumer Credit and Protection Act (W. Va. Code Section 46A-1-101 et seq.), West Virginia Uniform Trade Secrets Act (W. Va. Code Section 47-22-1 et seq.), West Virginia Data Breach Notification Law (W. Va. Code Section 46A-2A-101 et seq.), and the West Virginia Employment Law Worker Classification Act (W. Va. Code Section 21-5I-1 et seq.).

1.2 "Business Day" means any day other than a Saturday, Sunday, or a day on which banks in Charleston, West Virginia are authorized or required to close.

1.3 "Change Order" means a written document signed by both Parties that modifies, amends, or supplements a Statement of Work.

1.4 "Confidential Information" means any and all information or data that has or could have commercial value or other utility in the business in which the disclosing Party is engaged or which, if disclosed without authorization, could be detrimental to the disclosing Party, including without limitation: trade secrets, technical data, know-how, research, product plans, services, customer lists, financial information, business strategies, and other proprietary information.

1.5 "Deliverables" means all documents, work product, reports, data, materials, inventions, designs, software, and other items to be delivered by Provider to Client as specified in a Statement of Work.

1.6 "Effective Date" means [DATE].

1.7 "Fees" means all compensation payable to Provider for the Services as set forth in Article 4 and any applicable Statement of Work.

1.8 "Intellectual Property Rights" means all patents, copyrights, trademarks, trade secrets, and other intellectual property rights, whether registered or unregistered.

1.9 "Personnel" means Provider's employees, agents, contractors, and subcontractors who perform Services under this Agreement.

1.10 "Services" means the professional services to be provided by Provider as described in Article 2 and any Statement of Work.

1.11 "Statement of Work" or "SOW" means a document executed by both Parties that describes specific Services to be performed, Deliverables, timelines, Fees, and other project-specific terms, substantially in the form attached as Exhibit A.

1.12 "Term" has the meaning set forth in Section 15.1.

1.13 "Trade Secret" has the meaning set forth in the West Virginia Uniform Trade Secrets Act, W. Va. Code Section 47-22-1(d), and means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

1.14 "Work Product" means all Deliverables, work, inventions, discoveries, improvements, data, reports, analyses, recommendations, and other materials created, developed, or prepared by Provider in the course of performing the Services.

ARTICLE 2: SCOPE OF SERVICES

2.1 Scope of Services

Provider agrees to perform the following professional services for Client:

[OPTION A - GENERAL DESCRIPTION]

[DESCRIBE GENERAL SCOPE OF PROFESSIONAL SERVICES TO BE PROVIDED]

[OPTION B - SOW-BASED ENGAGEMENT]

Provider shall perform the Services as described in one or more Statements of Work executed by both Parties and incorporated herein by reference. Each Statement of Work shall include, at minimum:

☐ Description of Services to be performed
☐ Deliverables and acceptance criteria
☐ Timeline and milestones
☐ Fees and payment schedule
☐ Project-specific terms, if any
☐ Client responsibilities and dependencies

2.2 Standard of Performance

Provider shall perform all Services:

(a) In a professional, workmanlike, and timely manner consistent with industry standards and best practices applicable to the type of professional services being provided;

(b) Using Personnel with appropriate qualifications, experience, and professional licensure (where required by West Virginia law or the law of any other applicable jurisdiction);

(c) In compliance with all Applicable Laws, including West Virginia professional licensing requirements;

(d) In accordance with the specifications, requirements, and timelines set forth in this Agreement and any applicable Statement of Work;

(e) In good faith and with the degree of care, skill, and diligence that a reasonably prudent professional would exercise under similar circumstances.

2.3 Professional Responsibility

(a) Licensed Professionals: If the Services require professional licensing in West Virginia or any other jurisdiction, Provider represents and warrants that Provider and all Personnel performing such Services hold all required licenses and certifications in good standing with the applicable West Virginia professional board or regulatory agency.

(b) West Virginia Regulatory Compliance: Provider shall comply with all applicable West Virginia regulatory requirements, including registration with the West Virginia Secretary of State if Provider is transacting business in the state, and compliance with the West Virginia Business Registration Act.

(c) Professional Standards: Provider shall perform Services in accordance with the applicable standards of professional conduct and ethics governing Provider's profession as established by West Virginia regulatory authorities.

2.4 Personnel

(a) Provider shall assign qualified Personnel to perform the Services. Key Personnel for this engagement are:

(b) Provider shall not substitute Key Personnel without Client's prior written consent, which shall not be unreasonably withheld or delayed.

(c) Client may request removal of any Personnel who fails to perform satisfactorily, and Provider shall promptly provide qualified replacement Personnel.

2.5 Subcontracting

Provider shall not subcontract any Services without Client's prior written consent. If Client consents to subcontracting:

(a) Provider remains fully responsible for the performance of all subcontracted Services;

(b) Provider shall ensure all subcontractors agree to confidentiality, IP assignment, and other obligations consistent with this Agreement;

(c) Provider shall provide Client with the names and qualifications of proposed subcontractors upon request.

2.6 Client Responsibilities

Client shall:

(a) Provide Provider with timely access to information, materials, facilities, and personnel reasonably necessary for Provider to perform the Services;

(b) Designate a Client representative with authority to make decisions and provide approvals;

(c) Review and approve or provide feedback on Deliverables within [NUMBER] Business Days of submission;

(d) Perform all Client responsibilities identified in each Statement of Work;

(e) Notify Provider promptly of any changes that may affect the Services or timeline.

ARTICLE 3: DELIVERABLES AND ACCEPTANCE

3.1 Delivery

Provider shall deliver all Deliverables in accordance with the schedule and specifications set forth in the applicable Statement of Work.

3.2 Acceptance Process

(a) Upon delivery of each Deliverable, Client shall have [10/15/30] Business Days (the "Review Period") to review and either accept the Deliverable or provide written notice of rejection specifying the deficiencies.

(b) If Client provides timely notice of rejection, Provider shall correct the deficiencies and redeliver the Deliverable within [10/15] Business Days. Client shall then have an additional [5/10] Business Days to accept or reject the corrected Deliverable.

(c) If Client fails to provide notice of acceptance or rejection within the Review Period, the Deliverable shall be deemed accepted.

3.3 Acceptance Criteria

Deliverables shall be accepted if they:

☐ Substantially conform to the specifications in the applicable Statement of Work
☐ Are free from material defects
☐ Meet any objective acceptance criteria specified in the Statement of Work
☐ Are delivered in the format(s) specified

ARTICLE 4: COMPENSATION AND PAYMENT

4.1 Fee Structure

Client shall pay Provider for the Services in accordance with one or more of the following structures, as specified in the applicable Statement of Work:

[SELECT APPLICABLE FEE STRUCTURE(S)]

☐ Fixed Fee: A fixed fee of $[AMOUNT] for the Services described in the Statement of Work.

☐ Time and Materials:
- [ROLE/PERSONNEL]: $[RATE] per hour
- [ROLE/PERSONNEL]: $[RATE] per hour
- [ROLE/PERSONNEL]: $[RATE] per hour

☐ Retainer: A monthly retainer of $[AMOUNT] for up to [NUMBER] hours of Services per month. Hours in excess of the retainer shall be billed at $[RATE] per hour.

☐ Milestone-Based: Fees payable upon achievement of milestones as specified in the Statement of Work.

☐ Percentage/Success Fee: [DESCRIBE STRUCTURE]

4.2 Expenses

(a) Included Expenses: Provider's Fees include all ordinary business expenses incurred in performing the Services.

(b) Reimbursable Expenses: Client shall reimburse Provider for the following pre-approved out-of-pocket expenses:

☐ Travel (coach airfare, standard hotel, rental car, per diem as specified)
☐ Third-party fees (filing fees, professional services, specialized equipment)
☐ [OTHER SPECIFIED EXPENSES]

(c) Expense Approval: Expenses exceeding $[AMOUNT] individually or $[AMOUNT] in the aggregate require Client's prior written approval.

(d) Documentation: Reimbursable expenses must be supported by itemized receipts.

4.3 Invoicing

(a) Provider shall submit invoices [MONTHLY / UPON MILESTONE COMPLETION / AS SPECIFIED IN SOW] to:

Billing Contact: [NAME]
Email: [EMAIL]
Address: [ADDRESS]

(b) Each invoice shall include:
- Invoice number and date
- Reference to this Agreement and applicable Statement of Work
- Itemized description of Services performed
- Hours worked (for time-based billing)
- Applicable rates
- Reimbursable expenses with documentation
- Total amount due
- Payment instructions

4.4 Payment Terms

(a) Payment Due: All undisputed invoices are due and payable within [30/45/NET 30] days of invoice date.

(b) Payment Method: Payment shall be made by [CHECK / ACH / WIRE TRANSFER] to:

[PROVIDER PAYMENT INSTRUCTIONS]

(c) Late Payment Interest: Pursuant to W. Va. Code Section 47-6-5, overdue amounts shall bear interest at the rate of six percent (6%) per annum from the due date until paid. If the Parties agree in writing to a different rate, such rate shall not exceed eight percent (8%) per annum pursuant to W. Va. Code Section 47-6-5, which permits parties to contract in writing for up to eight dollars upon one hundred dollars for a year.

(d) Usury Provisions: The Parties acknowledge that under W. Va. Code Section 47-6-6, all contracts made for the loan or forbearance of money at a greater rate of interest than permitted by law shall be void as to all interest, and the borrower may recover from the lender an amount equal to four times all interest agreed to be paid (minimum $100). A bona fide error innocently made is not a violation if rectified within fifteen (15) days after receiving notice.

(e) Disputed Amounts: If Client disputes any portion of an invoice, Client shall: (i) pay all undisputed amounts when due; (ii) provide written notice of the dispute within [15] days of invoice receipt, specifying the disputed amounts and reasons; and (iii) work in good faith with Provider to resolve the dispute. Resolved disputed amounts shall be paid within [10] days of resolution.

4.5 Taxes

(a) All Fees are exclusive of taxes. Client shall pay all applicable sales, use, excise, and similar taxes, excluding taxes based on Provider's income.

(b) West Virginia Tax Obligations: Provider is solely responsible for payment of all West Virginia income taxes, business and occupation taxes, and other taxes based on Provider's net income arising from payments under this Agreement.

(c) If Client is tax-exempt, Client shall provide a valid West Virginia exemption certificate.

4.6 Records and Audit

Provider shall maintain accurate books and records relating to the Services, including time records and expense documentation, for a period of [3/5] years following completion of the Services. Upon reasonable notice, Client may audit such records to verify invoiced amounts.

ARTICLE 5: INTELLECTUAL PROPERTY

5.1 Work Product Ownership

[SELECT ONE OPTION]

☐ OPTION A - CLIENT OWNERSHIP (Work-for-Hire):

(a) All Work Product created by Provider specifically for Client under this Agreement shall be the sole and exclusive property of Client. To the extent any Work Product does not qualify as "work made for hire" under U.S. copyright law, Provider hereby irrevocably assigns to Client all right, title, and interest in and to such Work Product, including all Intellectual Property Rights therein.

(b) Provider agrees to execute any documents and take any actions reasonably requested by Client to perfect, evidence, or enforce Client's rights in the Work Product.

(c) Provider hereby waives any moral rights in the Work Product to the fullest extent permitted by law.

☐ OPTION B - PROVIDER RETAINS OWNERSHIP WITH LICENSE TO CLIENT:

(a) Provider retains all right, title, and interest in and to the Work Product, including all Intellectual Property Rights therein.

(b) Provider grants Client a [non-exclusive / exclusive], perpetual, worldwide, royalty-free license to use, copy, modify, and create derivative works of the Work Product for Client's internal business purposes [and for commercial purposes].

☐ OPTION C - JOINT OWNERSHIP:

(a) The Parties shall jointly own all Work Product created under this Agreement, with each Party having an equal, undivided interest therein.

(b) Neither Party shall be required to account to the other for any exploitation of jointly owned Work Product.

5.2 Pre-Existing Materials

(a) Provider Pre-Existing Materials: Provider retains all rights in any materials, methodologies, tools, techniques, software, know-how, or other intellectual property owned or developed by Provider prior to or independent of this Agreement ("Provider Materials").

(b) License to Client: To the extent any Provider Materials are incorporated into or necessary to use the Deliverables, Provider grants Client a non-exclusive, perpetual, royalty-free license to use such Provider Materials solely in connection with Client's use of the Deliverables.

(c) Client Pre-Existing Materials: Client retains all rights in any materials provided by Client to Provider for use in performing the Services ("Client Materials"). Client grants Provider a limited license to use Client Materials solely to perform the Services.

5.3 Third-Party Materials

Provider shall not incorporate any third-party materials into the Deliverables without Client's prior written consent. If third-party materials are incorporated with Client's consent, Provider shall ensure Client receives appropriate license rights.

5.4 Inventions and Discoveries

Any inventions, discoveries, or improvements conceived or reduced to practice by Provider in the course of performing the Services shall be subject to the ownership provisions of Section 5.1.

ARTICLE 6: CONFIDENTIALITY

6.1 Confidentiality Obligations

Each Party agrees to:

(a) Hold all Confidential Information of the other Party in strict confidence;

(b) Use the other Party's Confidential Information solely for purposes of performing its obligations or exercising its rights under this Agreement;

(c) Not disclose Confidential Information to any third party without the prior written consent of the disclosing Party, except as expressly permitted herein;

(d) Protect Confidential Information using at least the same degree of care used to protect its own confidential information, but in no event less than reasonable care;

(e) Limit access to Confidential Information to Personnel who have a need to know and are bound by confidentiality obligations at least as protective as those herein.

6.2 Exceptions

Confidential Information does not include information that:

(a) Is or becomes publicly available through no fault of the receiving Party;

(b) Was in the receiving Party's lawful possession prior to disclosure, as evidenced by written records;

(c) Is lawfully obtained from a third party without breach of any confidentiality obligation;

(d) Is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information, as evidenced by written records.

6.3 Permitted Disclosures

A Party may disclose Confidential Information:

(a) To its attorneys, accountants, and professional advisors bound by professional duties of confidentiality;

(b) As required by Applicable Law, court order, or governmental authority, provided the receiving Party: (i) gives the disclosing Party prompt notice (to the extent legally permitted); (ii) cooperates with the disclosing Party's efforts to obtain a protective order; and (iii) discloses only the minimum information required.

6.4 Trade Secrets - West Virginia Uniform Trade Secrets Act

To the extent Confidential Information constitutes a "Trade Secret" under the West Virginia Uniform Trade Secrets Act (W. Va. Code Section 47-22-1 et seq., also known as the "West Virginia Intellectual Property and Trade Secrets Act" as amended), such information shall be entitled to all protections and remedies available under that Act, including:

(a) Injunctive relief against actual or threatened misappropriation (W. Va. Code Section 47-22-2);

(b) Damages for misappropriation, including both actual loss and unjust enrichment (W. Va. Code Section 47-22-3);

(c) Punitive damages in cases of willful and malicious misappropriation (W. Va. Code Section 47-22-3);

(d) Reasonable attorney's fees in cases of willful and malicious misappropriation or bad faith claims (W. Va. Code Section 47-22-4);

(e) Court orders to preserve the secrecy of alleged trade secrets during litigation (W. Va. Code Section 47-22-5);

(f) Criminal penalties for misappropriation as provided under the amended Act.

The statute of limitations for trade secret misappropriation claims is three (3) years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered (W. Va. Code Section 47-22-6).

6.5 Return of Confidential Information

Upon termination or expiration of this Agreement, or upon the disclosing Party's request, the receiving Party shall promptly return or destroy all Confidential Information and certify such return or destruction in writing, except that each Party may retain: (i) one archival copy for legal compliance purposes; and (ii) Confidential Information contained in automatically generated computer backup files, subject to ongoing confidentiality obligations.

6.6 Duration

Confidentiality obligations under this Article shall survive termination or expiration of this Agreement for a period of [3/5] years, except that obligations with respect to Trade Secrets shall continue for as long as the information qualifies as a Trade Secret under Applicable Law.

ARTICLE 7: INDEPENDENT CONTRACTOR STATUS

7.1 Independent Contractor Relationship

Provider is an independent contractor and not an employee, agent, partner, or joint venturer of Client. Nothing in this Agreement shall create an employment relationship between Client and Provider or any of Provider's Personnel.

7.2 West Virginia Employment Law Worker Classification Act Compliance

The Parties acknowledge that the West Virginia Employment Law Worker Classification Act (W. Va. Code Section 21-5I-1 et seq.), effective June 9, 2021, establishes uniform standards for determining independent contractor status for purposes of workers' compensation, unemployment compensation, the Human Rights Act, and the Wage Payment and Collection Act.

Provider represents and warrants that the engagement contemplated by this Agreement satisfies the requirements of the Worker Classification Act, including:

(a) Written Contract: This Agreement constitutes a written contract between Client and Provider that states Client's intent to engage the services of Provider as an independent contractor, and Provider acknowledges that Provider is providing services as an independent contractor.

(b) Tax Filing: Provider files or is contractually obligated to file income tax returns with the IRS in regard to the fees earned from the work performed under this Agreement.

(c) Control and Nine-Factor Test: Provider directly controls the manner and means by which the work is accomplished, and Provider satisfies three or more of the following nine criteria:

☐ Provider controls the time of performance of the work
☐ Provider controls the location where the work is performed
☐ Provider is not exclusively performing work for Client
☐ Provider is free to offer and perform the same or similar services to other persons or entities
☐ Provider has the authority to hire and fire persons to help perform the work
☐ Client cannot unilaterally change the contract or scope of work
☐ Provider is required by law to have a particular license or permit to perform the work
☐ Neither Provider nor Provider's employees have been reclassified as employees by the IRS
☐ Provider is responsible for the principal expenses and costs of performing the work

(d) Fallback Test: To the extent the primary test is not satisfied, the classification shall be determined by the test set forth in IRS Revenue Ruling 87-41.

7.3 Tax Responsibilities

(a) Provider shall be solely responsible for all federal, state, and local taxes arising from compensation paid under this Agreement, including self-employment taxes and West Virginia income taxes.

(b) Client shall not withhold or pay any income tax, Social Security, Medicare, unemployment insurance, or workers' compensation premiums on behalf of Provider.

(c) Provider shall provide Client with a completed IRS Form W-9 prior to the first payment under this Agreement. Client shall furnish Provider with IRS Form 1099-NEC as required by law.

7.4 Benefits Exclusion

Provider and Provider's Personnel shall not be entitled to any benefits provided by Client to its employees, including health insurance, retirement plans, paid leave, or workers' compensation coverage.

ARTICLE 8: NON-COMPETITION AND NON-SOLICITATION

8.1 West Virginia Non-Compete Law

The Parties acknowledge that West Virginia courts will enforce non-competition covenants only to the extent that they are reasonable in scope and duration and are necessary to protect a legitimate business interest. West Virginia follows a common-law reasonableness test. A non-compete is enforceable if: (a) its restrictions are no greater than required to protect the employer or principal; (b) its terms do not impose undue hardship on the restricted party; and (c) the limitations are not injurious to the public.

8.2 Consideration Requirement

The Parties acknowledge that under West Virginia law, continued employment alone is generally not adequate consideration for a non-compete agreement entered after the commencement of employment. New and independent consideration is required. The consideration supporting any restrictive covenant in this Agreement includes [DESCRIBE SPECIFIC CONSIDERATION, e.g., access to trade secrets, specialized training, the professional services engagement itself].

8.3 Non-Competition Covenant

[SELECT ONE OPTION]

☐ OPTION A - NON-COMPETITION INCLUDED:

During the Term and for a period of [NUMBER - TYPICALLY 1 TO 5 YEARS] months/years following the termination or expiration of this Agreement, Provider shall not, directly or indirectly, engage in a business that is competitive with Client's business within [SPECIFIC GEOGRAPHIC AREA - e.g., a specific county, the State of West Virginia, a defined radius].

☐ OPTION B - NO NON-COMPETITION COVENANT:

The Parties agree that no non-competition covenant shall apply to Provider's engagement under this Agreement. Nothing herein restricts Provider from providing services to other clients, including Client's competitors.

8.4 Physicians Freedom of Practice Act

[IF APPLICABLE] The Parties acknowledge that under the West Virginia Physicians Freedom of Practice Act, a non-compete agreement between a physician and their employer is limited to one (1) year after the end of employment and a thirty (30)-mile driving radius of the physician's place of employment.

8.5 Non-Solicitation

During the Term and for a period of [12/18/24] months following the termination or expiration of this Agreement, Provider shall not, directly or indirectly:

(a) Solicit or attempt to solicit any employee of Client to leave Client's employment; or

(b) Solicit or attempt to solicit any client or customer of Client with whom Provider had material contact during the Term, for the purpose of providing services that are competitive with the Services.

8.6 Confidentiality and Trade Secret Protections Preserved

Nothing in this Article shall limit the Parties' confidentiality obligations under Article 6 or trade secret protections under the West Virginia Uniform Trade Secrets Act (W. Va. Code Section 47-22-1 et seq.).

ARTICLE 9: DATA PROTECTION AND PRIVACY

9.1 Data Security Obligations

Provider shall implement and maintain administrative, technical, and physical safeguards designed to protect Client data from unauthorized access, use, disclosure, alteration, or destruction, consistent with industry standards and Applicable Law.

9.2 West Virginia Data Breach Notification (W. Va. Code Section 46A-2A-101 et seq.)

(a) In the event of a breach of the security of a system involving personal information of West Virginia residents processed by Provider on behalf of Client, Provider shall notify Client within [24/48/72] hours of discovery.

(b) The Parties acknowledge that under W. Va. Code Section 46A-2A-102, notification to affected individuals must be given without unreasonable delay following the discovery of the breach.

(c) A "breach of the security of a system" under West Virginia law means the unauthorized access and acquisition of unencrypted and unredacted computerized data that compromises the security or confidentiality of personal information maintained as part of a database of personal information regarding multiple individuals, and that causes the entity to reasonably believe the breach has caused or will cause identity theft or other fraud to any West Virginia resident.

(d) If notification is required to more than one thousand (1,000) individuals, Provider shall also notify all consumer reporting agencies that compile and maintain files on consumers on a nationwide basis.

(e) Good faith acquisition of personal information by an employee or agent for the purposes of the entity is not a breach, provided the information is not used for unauthorized purposes or subject to further unauthorized disclosure.

(f) The West Virginia Attorney General has enforcement authority for violations, with a maximum penalty of $150,000 per breach.

(g) Provider shall cooperate with Client in investigating and responding to any breach, and shall take appropriate steps to prevent future breaches.

9.3 West Virginia Consumer Credit and Protection Act (W. Va. Code Section 46A-1-101 et seq.)

Provider shall not engage in any unfair or deceptive acts or practices in violation of the West Virginia Consumer Credit and Protection Act in connection with the Services. The Act provides broad consumer protections and is enforced by the West Virginia Attorney General.

9.4 Data Processing Agreement

If Provider processes personal data on behalf of Client, the Parties shall execute a separate Data Processing Agreement that addresses the specific requirements of applicable privacy laws.

ARTICLE 10: REPRESENTATIONS AND WARRANTIES

10.1 Mutual Representations and Warranties

Each Party represents and warrants that:

(a) It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization and is authorized to conduct business in the State of West Virginia;

(b) It has full power and authority to enter into this Agreement and perform its obligations hereunder;

(c) The execution, delivery, and performance of this Agreement have been duly authorized and do not violate any law, regulation, or agreement to which it is bound;

(d) This Agreement constitutes a legal, valid, and binding obligation, enforceable in accordance with its terms.

10.2 Provider Representations and Warranties

Provider represents and warrants that:

(a) Provider and all Personnel performing Services hold all licenses, certifications, and authorizations required by Applicable Law, including West Virginia professional licensing requirements, to perform the Services;

(b) The Services will be performed in a professional and workmanlike manner in accordance with applicable industry standards;

(c) All Work Product will be original to Provider or Provider will have obtained all necessary rights and licenses to grant the rights granted herein;

(d) The Work Product and Deliverables will not infringe, misappropriate, or violate any third party's Intellectual Property Rights;

(e) Provider will comply with all Applicable Laws in performing the Services;

(f) To Provider's knowledge, no litigation, arbitration, or regulatory proceeding is pending or threatened that could materially affect Provider's ability to perform the Services;

(g) Provider satisfies the requirements of the West Virginia Employment Law Worker Classification Act (W. Va. Code Section 21-5I-1 et seq.) for classification as an independent contractor.

10.3 Client Representations and Warranties

Client represents and warrants that:

(a) Client has the right to provide all Client Materials to Provider for use as contemplated by this Agreement;

(b) Client's use of the Services and Deliverables in accordance with this Agreement will not violate any Applicable Law.

10.4 Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE.

ARTICLE 11: INDEMNIFICATION

11.1 Provider Indemnification

Provider shall indemnify, defend, and hold harmless Client and its officers, directors, employees, agents, successors, and assigns (collectively, "Client Indemnitees") from and against any and all third-party claims, demands, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or relating to:

(a) Provider's breach of any representation, warranty, or obligation under this Agreement;

(b) Provider's gross negligence or willful misconduct in performing the Services;

(c) Any claim that the Services or Deliverables infringe, misappropriate, or violate any third party's Intellectual Property Rights, except to the extent such claim arises from Client Materials or Client's modifications to the Deliverables;

(d) Any injury to persons or damage to property caused by Provider or its Personnel in performing the Services;

(e) Provider's violation of any Applicable Law, including the West Virginia Consumer Credit and Protection Act;

(f) Any claim arising from the misclassification of Provider or Provider's Personnel as employees under West Virginia law.

11.2 Client Indemnification

Client shall indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, successors, and assigns (collectively, "Provider Indemnitees") from and against any and all third-party claims, demands, actions, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or relating to:

(a) Client's breach of any representation, warranty, or obligation under this Agreement;

(b) Client's gross negligence or willful misconduct;

(c) Any claim that Client Materials infringe, misappropriate, or violate any third party's Intellectual Property Rights;

(d) Client's violation of any Applicable Law.

11.3 Indemnification Procedures

(a) Notice: The indemnified Party shall promptly notify the indemnifying Party of any claim for which indemnification is sought. Failure to provide prompt notice shall not relieve the indemnifying Party of its obligations except to the extent such failure materially prejudices the indemnifying Party's ability to defend the claim.

(b) Defense: The indemnifying Party shall have the right to assume and control the defense of any claim using counsel of its choice. The indemnified Party may participate in the defense at its own expense.

(c) Settlement: The indemnifying Party shall not settle any claim without the indemnified Party's prior written consent if the settlement: (i) requires any admission of liability by the indemnified Party; (ii) imposes any obligation on the indemnified Party other than payment of money fully covered by the indemnification; or (iii) does not include a complete release of the indemnified Party.

(d) Cooperation: The indemnified Party shall reasonably cooperate with the indemnifying Party in the defense of any claim.

ARTICLE 12: LIMITATION OF LIABILITY

12.1 Exclusion of Consequential Damages

EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 11, BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 6, OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITIES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2 Cap on Liability

EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 11, BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 6, PROVIDER'S IP INDEMNIFICATION UNDER SECTION 11.1(c), OR WILLFUL MISCONDUCT, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED:

[SELECT ONE]

☐ The total Fees paid or payable by Client under this Agreement during the [12/24]-month period preceding the event giving rise to the claim.

☐ $[AMOUNT].

☐ [OTHER FORMULATION]

12.3 Essential Purpose

The Parties acknowledge that the limitations of liability in this Article are an essential element of the bargain between the Parties and allocate the risks under this Agreement. The Fees reflect such risk allocation.

12.4 Statute of Limitations

The Parties acknowledge that under W. Va. Code Section 55-2-6, the statute of limitations for actions on a written contract signed by the party to be charged is ten (10) years. For actions on any other contract, express or implied, the statute of limitations is five (5) years. The limitations period begins to run when the breach of contract occurs or when the act breaching the contract becomes known.

ARTICLE 13: INSURANCE

13.1 Required Insurance

Provider shall obtain and maintain throughout the Term the following insurance coverage:

☐ Commercial General Liability: $[1,000,000 / 2,000,000] per occurrence / aggregate
☐ Professional Liability (Errors & Omissions): $[1,000,000 / 2,000,000] per occurrence / aggregate
☐ Workers' Compensation: Statutory limits as required by the West Virginia Workers' Compensation Act, if applicable
☐ Cyber/Data Breach Liability: $[1,000,000] per occurrence (if applicable)
☐ Commercial Auto Liability: $[1,000,000] per accident (if applicable)

13.2 Insurance Requirements

(a) All insurance policies shall be issued by carriers rated A- VII or better by A.M. Best.

(b) Provider shall name Client as an additional insured on the Commercial General Liability policy.

(c) Provider shall furnish certificates of insurance upon request and provide at least thirty (30) days' written notice prior to cancellation or material change.

ARTICLE 14: DISPUTE RESOLUTION

14.1 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of West Virginia, without regard to its conflict of laws principles.

14.2 Informal Resolution

Before initiating formal dispute resolution, the Parties shall attempt in good faith to resolve any dispute through informal negotiations. A Party shall initiate such negotiations by providing written notice to the other Party describing the dispute. If the dispute is not resolved within [30] days of such notice, either Party may proceed with formal dispute resolution.

14.3 Mediation

If informal negotiations fail, the Parties agree to participate in non-binding mediation before a mutually agreed mediator in [Charleston / Kanawha County], West Virginia, before initiating arbitration or litigation. The costs of mediation shall be shared equally.

14.4 Dispute Resolution Method

[SELECT ONE OPTION]

☐ OPTION A - ARBITRATION:

Any dispute arising out of or relating to this Agreement that is not resolved through negotiation or mediation shall be resolved by binding arbitration administered by [AAA / JAMS / ICC] in accordance with its [Commercial Arbitration Rules / Comprehensive Arbitration Rules]. The arbitration shall be conducted by [one / three] arbitrator(s) in [Charleston / Kanawha County], West Virginia. The arbitrator's decision shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction.

Arbitration Procedures:
- Discovery shall be limited to document requests and depositions as agreed by the parties or ordered by the arbitrator.
- The arbitrator shall issue a written decision explaining the basis for the award.
- The arbitrator shall have no authority to award punitive or exemplary damages except as required by statute.
- The prevailing party shall be entitled to recover reasonable attorneys' fees and costs.

☐ OPTION B - LITIGATION:

Any dispute arising out of or relating to this Agreement that is not resolved through negotiation or mediation shall be resolved exclusively in the state or federal courts located in Kanawha County, West Virginia. Each Party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection to venue.

14.5 Jury Waiver

EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS WAIVER IS MADE KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY BY EACH PARTY.

West Virginia Practice Note: West Virginia courts generally enforce contractual jury waivers in commercial agreements between parties of relatively equal bargaining power, provided the waiver is knowing, voluntary, and intentional. The waiver must be clear and conspicuous. Note that W. Va. Code Section 16-5C-22 specifically requires that jury waivers in nursing home agreements be in a separate document, but this restriction applies only to that specific context.

14.6 Injunctive Relief

Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its Confidential Information, Trade Secrets, or Intellectual Property Rights, without the requirement of posting bond or proving actual damages.

ARTICLE 15: TERM AND TERMINATION

15.1 Term

This Agreement shall commence on the Effective Date and continue for an initial term of [NUMBER] [MONTHS/YEARS] (the "Initial Term"), unless earlier terminated in accordance with this Article. Thereafter, this Agreement shall automatically renew for successive [NUMBER]-[MONTH/YEAR] periods (each a "Renewal Term") unless either Party provides written notice of non-renewal at least [30/60/90] days prior to the end of the then-current term. The Initial Term and all Renewal Terms are collectively referred to as the "Term."

15.2 Termination for Convenience

[SELECT ONE OPTION]

☐ Either Party may terminate this Agreement for convenience upon [30/60/90] days' prior written notice to the other Party.

☐ Client only may terminate this Agreement for convenience upon [30/60/90] days' prior written notice to Provider.

☐ No termination for convenience is permitted.

15.3 Termination for Cause

Either Party may terminate this Agreement immediately upon written notice if:

(a) The other Party materially breaches this Agreement and fails to cure such breach within [30] days after receiving written notice specifying the breach;

(b) The other Party becomes insolvent, makes an assignment for the benefit of creditors, or files or has filed against it a petition in bankruptcy or for reorganization;

(c) The other Party ceases to conduct business in the ordinary course;

(d) Provider's professional license required to perform the Services is suspended, revoked, or otherwise impaired.

15.4 Effect of Termination

Upon termination or expiration of this Agreement:

(a) Payment: Client shall pay Provider for: (i) all Services satisfactorily performed through the effective date of termination; (ii) non-cancelable expenses incurred by Provider prior to termination; and (iii) if terminated by Client for convenience, any reasonable wind-down costs.

(b) Work Product: Provider shall deliver to Client all completed or partially completed Work Product and Deliverables for which Client has paid.

(c) Confidential Information: Each Party shall comply with Section 6.5 regarding return or destruction of Confidential Information.

(d) Ongoing SOWs: Unless otherwise agreed, termination of this Agreement shall terminate all outstanding Statements of Work.

15.5 Survival

The following provisions shall survive termination or expiration of this Agreement: Article 1 (Definitions), Article 5 (Intellectual Property), Article 6 (Confidentiality), Article 8 (Non-Competition and Non-Solicitation, to the extent applicable), Article 9 (Data Protection), Article 10 (Representations and Warranties, to the extent applicable), Article 11 (Indemnification), Article 12 (Limitation of Liability), Article 14 (Dispute Resolution), Article 16 (General Provisions), and any other provisions that by their nature should survive.

ARTICLE 16: GENERAL PROVISIONS

16.1 Entire Agreement

This Agreement, including all Exhibits and Statements of Work, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written.

16.2 Amendments

No amendment to this Agreement shall be effective unless made in writing and signed by authorized representatives of both Parties.

16.3 Waiver

No waiver of any provision of this Agreement shall be effective unless made in writing. The failure of either Party to enforce any right under this Agreement shall not constitute a waiver of such right or any other right.

16.4 Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect. The Parties shall negotiate in good faith to replace any invalid provision with a valid provision that achieves the original intent.

16.5 Assignment

Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any purported assignment in violation of this Section shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

16.6 Notices

All notices under this Agreement shall be in writing and shall be deemed given when: (a) delivered personally; (b) sent by confirmed email; (c) one Business Day after deposit with a nationally recognized overnight courier; or (d) three Business Days after mailing by certified mail, return receipt requested. Notices shall be sent to the addresses set forth in this Agreement or to such other address as a Party may designate in writing.

16.7 Force Majeure

Neither Party shall be liable for any delay or failure to perform due to causes beyond its reasonable control, including acts of God, natural disasters, war, terrorism, labor disputes, government actions, epidemics, pandemics, mine closures, flooding, or interruptions in telecommunications or power supply. The affected Party shall provide prompt notice and use reasonable efforts to mitigate the effects of the force majeure event.

16.8 Publicity

Neither Party shall issue any press release or public announcement regarding this Agreement without the prior written consent of the other Party, except as required by Applicable Law.

16.9 Third-Party Beneficiaries

This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing in this Agreement shall confer any rights on any third party.

16.10 Counterparts; Electronic Signatures

This Agreement may be executed in counterparts, each of which shall be deemed an original. Pursuant to the West Virginia Uniform Electronic Transactions Act (W. Va. Code Chapter 39A), electronic signatures shall have the same legal effect as original signatures.

16.11 Interpretation

Headings are for convenience only and shall not affect interpretation. Unless the context otherwise requires: (a) "including" means "including without limitation"; (b) references to laws include any amendments thereto; (c) references to days mean calendar days unless otherwise specified.

EXHIBITS

EXHIBIT A: STATEMENT OF WORK TEMPLATE

STATEMENT OF WORK NO. [NUMBER]

Effective Date: [DATE]

Reference Agreement: Professional Services Agreement dated [DATE]

1. PROJECT DESCRIPTION

[Describe the project objectives and scope]

2. SERVICES

Provider shall perform the following Services:

3. DELIVERABLES

4. TIMELINE AND MILESTONES

5. FEES

Fee Structure: [Fixed Fee / Time and Materials / Other]

Total Estimated Fees: $[AMOUNT]

Payment Schedule:

6. CLIENT RESPONSIBILITIES

☐ [RESPONSIBILITY 1]
☐ [RESPONSIBILITY 2]
☐ [RESPONSIBILITY 3]

7. ASSUMPTIONS AND DEPENDENCIES

[LIST ANY ASSUMPTIONS OR DEPENDENCIES]

8. PROJECT-SPECIFIC TERMS

[ANY TERMS SPECIFIC TO THIS SOW]

AGREED AND ACCEPTED:

SIGNATURE PAGE

IN WITNESS WHEREOF, the Parties have executed this Professional Services Agreement as of the date first written above.

SERVICE PROVIDER:

[PROVIDER LEGAL NAME]

CLIENT:

[CLIENT LEGAL NAME]

PRACTITIONER NOTES

West Virginia-Specific Considerations

1. Ten-Year Statute of Limitations (W. Va. Code Section 55-2-6): West Virginia provides one of the longest statutes of limitations in the nation for written contracts at ten (10) years. For unsigned or oral contracts, the period is five (5) years. The limitations period runs from when the breach occurs or when the act breaching the contract becomes known. This long limitations period makes precise documentation and record-keeping particularly important.

2. Interest Rate (W. Va. Code Section 47-6-5): The default legal interest rate is 6% per annum. Parties may agree in writing to a rate up to 8% per annum. Usurious contracts are void as to all interest, and the borrower may recover four times all interest agreed to be paid (minimum $100). A bona fide error is excused if rectified within 15 days of notice.

3. Worker Classification Act (W. Va. Code Section 21-5I-1 et seq.): Effective June 9, 2021, this Act establishes a pro-business uniform test for independent contractor classification. It requires a written contract plus either tax filing or satisfaction of three or more of nine factors. The IRS Revenue Ruling 87-41 test serves as a fallback.

4. Non-Compete Enforceability: West Virginia courts apply a common-law reasonableness test. Key issues include: (a) continued employment is generally not adequate consideration for a post-hire non-compete; (b) restrictions must be no greater than necessary to protect the employer; (c) terms must not impose undue hardship; (d) limitations must not be injurious to the public. The Physicians Freedom of Practice Act imposes specific limits on physician non-competes (1 year, 30-mile radius).

5. Trade Secrets (W. Va. Code Section 47-22-1 et seq.): West Virginia has adopted and expanded the Uniform Trade Secrets Act, renaming it the "West Virginia Intellectual Property and Trade Secrets Act." The amended version includes criminal penalties for misappropriation and enhanced civil remedies including punitive damages.

6. Data Breach Notification (W. Va. Code Section 46A-2A-101 et seq.): Requires notification without unreasonable delay. The Attorney General has enforcement authority with penalties up to $150,000 per breach. Encrypted or redacted data is exempt.

7. Consumer Credit and Protection Act (W. Va. Code Section 46A-1-101 et seq.): Provides broad consumer protections. Enforced by the West Virginia Attorney General.

8. Energy Industry Considerations: West Virginia's economy includes significant natural gas, coal, and energy sectors. Professional services agreements involving geological surveys, environmental consulting, mineral rights assessments, or energy regulatory compliance should include industry-specific provisions and address any applicable environmental regulations.

9. Electronic Signatures (W. Va. Code Chapter 39A): West Virginia recognizes electronic signatures under the Uniform Electronic Transactions Act.

Customization Checklist

☐ Confirm Provider entity type and required professional licenses
☐ Verify compliance with the Worker Classification Act requirements
☐ Ensure written contract requirement is satisfied for IC classification
☐ If including non-compete, verify adequate consideration (beyond continued engagement)
☐ Select appropriate fee structure (fixed, T&M, retainer, milestone)
☐ Determine IP ownership model (client ownership, provider license, joint)
☐ Establish liability cap appropriate to engagement value and risk
☐ Consider 10-year statute of limitations in risk analysis
☐ Select dispute resolution method (arbitration vs. litigation)
☐ Address data protection requirements under W. Va. Code Section 46A-2A-101
☐ Prepare project-specific Statement(s) of Work
☐ Review indemnification provisions with insurance coverage
☐ Confirm West Virginia registered agent if Provider is out-of-state
☐ Address energy/natural resource industry provisions if applicable

Template Version 2.0 | West Virginia Professional Services Agreement | Last Updated: February 2026