ASM Service Contract

ASM Service Contract

This ASM Service Contract (the "Agreement") is made as of Effective Date: by and between ASM Provider: , Entity Type: Corporation LLC Other, with principal place of business at ; and Client Name: , Entity Type: Corporation LLC Other, with principal place of business at . Provider and Client may be referred to individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Provider is engaged in the business of providing application support, maintenance, monitoring, and enhancement services commonly referred to as ASM Services; and

WHEREAS, Client desires to retain Provider to perform specified ASM Services and Provider is willing to provide such Services under the terms and conditions set forth in this Agreement; and

WHEREAS, the Parties wish to define their respective rights and obligations with respect to the performance of Services, compensation, confidentiality, and ownership of deliverables.

NOW THEREFORE, in consideration of the mutual covenants herein, the Parties agree as follows:

1. SCOPE OF SERVICES

1.1 Provider shall perform the ASM Services set forth in the Service Description attached hereto and incorporated by reference. Provider shall exercise commercially reasonable skill, care and diligence in the performance of the Services and shall comply with the service levels and specifications set forth in the Service Description.

1.2 Change Orders. Any change in the scope, fees, or schedule for Services shall be documented in a written change order signed by authorized representatives of both Parties. Provider will promptly notify Client of any material impact on fees or schedule caused by requested changes.

2. TERM AND RENEWAL

2.1 Term. The initial term of this Agreement shall commence on the Effective Date and continue until Term End Date: unless earlier terminated in accordance with Section 11.

2.2 Renewal. This Agreement will automatically renew for successive periods of unless either Party provides written notice of non-renewal at least prior to the end of the then-current term.

3. COMPENSATION

3.1 Fees. Client shall pay Provider the fees set forth in the Payment Schedule. Standard fees: per .

4. INVOICING AND PAYMENT

4.1 Invoices shall be issued by Provider in accordance with the Payment Schedule and are payable within days of receipt unless otherwise agreed in writing. All payments are due in United States Dollars unless otherwise specified in writing.

4.2 Late Payment. Overdue amounts shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, plus Provider's reasonable collection costs.

5. PROPRIETARY RIGHTS; LICENSES

5.1 Provider Background Technology. Provider retains all right, title and interest in and to any software, tools, methodologies, know-how, and other materials owned or developed by Provider prior to or independent of this Agreement ("Background Technology"). Nothing in this Agreement transfers ownership of Background Technology to Client.

5.2 Deliverables. Upon receipt of full payment for the applicable Services, Provider grants Client a non-exclusive, non-transferable license to use deliverables specifically identified as Client deliverables solely for Client's internal business purposes, subject to the restrictions set forth herein.

6. CONFIDENTIALITY

6.1 Definition. "Confidential Information" means non-public information disclosed by a Party that is identified as confidential or that, given the nature of the information, a reasonable person would understand to be confidential.

6.2 Obligations. Each Party shall (a) use Confidential Information solely for the purposes of performing obligations under this Agreement; (b) restrict disclosure to its employees, contractors and agents who have a need to know; and (c) protect Confidential Information with the same degree of care it uses to protect its own confidential information, but no less than reasonable care.

6.3 Exceptions. Confidential Information does not include information that: (i) is or becomes publicly known through no breach of this Agreement; (ii) was lawfully known by the receiving Party prior to disclosure; or (iii) was independently developed without reference to the disclosing Party's Confidential Information.

7. DATA SECURITY

Provider shall implement and maintain administrative, technical and physical safeguards reasonably designed to protect Client Data against unauthorized access, use, alteration or disclosure. Provider shall promptly notify Client of any confirmed security incident materially affecting Client Data and cooperate with Client in investigating and remediating such incident.

8. WARRANTIES; DISCLAIMERS

8.1 Mutual Warranties. Each Party represents and warrants that it has full power and authority to enter into this Agreement and to perform its obligations hereunder.

8.2 Provider Warranty. Provider warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards. Client's sole and exclusive remedy for breach of this warranty shall be re-performance of the deficient Services or, if Provider cannot remedy the breach within a commercially reasonable time, a refund of fees paid to Provider for the deficient Services.

8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2, PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

9. INDEMNIFICATION

9.1 Provider Indemnity. Provider shall indemnify, defend and hold Client harmless from and against any third-party claims alleging that Provider's deliverables, when used in accordance with this Agreement, infringe a third party's intellectual property rights; provided that Client gives Provider prompt written notice of the claim, allows Provider to control the defense and settlement, and cooperates in the defense.

9.2 Client Indemnity. Client shall indemnify, defend and hold Provider harmless from and against any third-party claims arising from Client Data, Client's misuse of the Services, or Client's breach of this Agreement.

10. LIMITATION OF LIABILITY

10.1 EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS, WILLFUL MISCONDUCT, OR A BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR BUSINESS INTERRUPTION.

10.2 CAP ON LIABILITY. EXCEPT FOR WILLFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS, A PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO PROVIDER IN THE PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

11. TERMINATION

11.1 Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and fails to cure such breach within days after receipt of written notice specifying the breach.

11.2 Termination for Convenience. Either Party may terminate this Agreement for convenience upon days' prior written notice to the other Party.

11.3 Effects of Termination. Upon termination, Client shall pay Provider for Services performed and expenses incurred through the effective date of termination. Provider shall deliver to Client any unpaid-for deliverables and return all Client Confidential Information in Provider's possession.

12. NOTICES

All notices under this Agreement shall be in writing and delivered by hand, nationally recognized overnight courier, or certified mail (return receipt requested), or by electronic mail with confirmation of receipt to the addresses below or such other address as either Party may designate in writing.

13. ASSIGNMENT; SUBCONTRACTING

Neither Party may assign this Agreement without the other Party's prior written consent, except that either Party may assign this Agreement without consent to an affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets; provided that the assigning Party remains liable for its obligations hereunder. Provider may engage subcontractors to perform Services provided that Provider remains responsible for their acts and omissions.

14. AMENDMENT; WAIVER; COUNTERPARTS

This Agreement may be amended only by a written instrument executed by authorized representatives of both Parties. No failure or delay by either Party in exercising any right will operate as a waiver of that right. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together constitute one and the same instrument.

15. GOVERNING LAW; ENTIRE AGREEMENT; SEVERABILITY

15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflict of law principles.

15.2 Entire Agreement. This Agreement, including all exhibits and schedules, constitutes the entire agreement between the Parties with respect to the subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral.

15.3 Severability. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect and the Parties shall negotiate in good faith to replace the invalid provision with a valid provision that achieves, to the extent possible, the Parties' original intent.

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