Back-to-Back Services Agreement

Back-to-Back Services Agreement

This Back-to-Back Services Agreement ("Agreement") is entered into as of by and between Service Provider Name: with principal place of business at , and Client Name: with principal place of business at (each a "Party" and together the "Parties").

Recitals

WHEREAS, Client has entered into or will enter into a prime contract or other agreement with a third party pursuant to which Client requires certain services to be performed (the "Prime Contract"); and

WHEREAS, Service Provider has capacity, expertise and resources to perform certain portions of the services required under the Prime Contract and agrees to perform those services for Client; and

WHEREAS, the Parties desire to set forth, on a back-to-back basis, the terms and conditions by which Service Provider will perform services consistent with the flow-down obligations contained in the Prime Contract.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Definitions

1.1 "Services" means the services to be provided by Service Provider to Client as described in Section 2 and in any Statement of Work executed under this Agreement.

1.2 "Prime Contract Obligations" means any obligations, representations, warranties, indemnities, insurance requirements, flow-down provisions or other requirements that Client is required to impose on its subcontractors under the Prime Contract to which Client is a party.

2. Scope of Services

2.1 Service Provider shall perform the Services described in the attached Statement of Work or as otherwise agreed in writing by the Parties. Service Provider shall perform the Services in a professional and workmanlike manner consistent with industry standards.

3. Term

3.1 This Agreement shall commence on the Effective Date set forth above and shall continue until completion of the Services unless earlier terminated in accordance with Section 12.

4. Subcontracting; Back-to-Back Flowdown

4.1 Service Provider shall not subcontract any portion of the Services without Client's prior written consent, which shall not be unreasonably withheld. Where Service Provider is permitted to subcontract, Service Provider shall ensure that each subcontractor is bound by obligations no less protective of Client than those imposed on Service Provider herein, including confidentiality, intellectual property, indemnity and insurance obligations, to the extent necessary to satisfy Prime Contract Obligations.

4.2 To the extent Client notifies Service Provider of specific Prime Contract Obligations that must be flowed down, Service Provider shall promptly incorporate such obligations into applicable subcontracts and shall perform in compliance with those obligations.

5. Compensation and Invoicing

5.1 Client shall pay Service Provider as set forth in the applicable Statement of Work. Unless otherwise agreed, invoices shall be rendered monthly and shall state the amount due, a description of Services performed, and any applicable supporting documentation.

6. Confidentiality

6.1 Each Party shall keep confidential all Confidential Information disclosed by the other Party and shall not use such information except as necessary to perform under this Agreement. Confidential Information excludes information that is (a) in the public domain other than by breach; (b) known by the receiving Party prior to disclosure and not subject to confidentiality obligations; or (c) independently developed by the receiving Party without use of the disclosing Party's Confidential Information.

7. Intellectual Property

7.1 Unless otherwise agreed in a written Statement of Work, Service Provider assigns to Client all right, title and interest in and to any deliverables created specifically for Client in performance of the Services ("Deliverables"). Service Provider hereby irrevocably waives and assigns all moral rights in Deliverables to Client.

7.2 Notwithstanding the foregoing, Service Provider may retain general know-how, skills, and experience gained in performing the Services provided no Confidential Information or Client-owned intellectual property is disclosed or exploited.

8. Warranties and Disclaimer

8.1 Service Provider represents and warrants that (a) it has full power and authority to enter into this Agreement; (b) the Services will be performed in a professional and workmanlike manner consistent with industry standards; and (c) the Services and Deliverables will not infringe third-party intellectual property rights.

8.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8, THE SERVICES AND DELIVERABLES ARE PROVIDED "AS IS" AND NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. Indemnification

9.1 Service Provider shall indemnify, defend and hold harmless Client and its officers, directors and employees from and against any claims, liabilities, losses, damages and expenses (including reasonable attorneys' fees) arising out of or resulting from (a) Service Provider's breach of this Agreement, (b) Service Provider's negligence or willful misconduct in performing the Services, or (c) actual infringement of a third party intellectual property right by the Deliverables, provided that Client gives Service Provider prompt written notice of any claim and cooperates in the defense.

10. Limitation of Liability

10.1 EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, AND EACH PARTY'S AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

11. Insurance

11.1 Service Provider shall maintain insurance coverage customary for the industry and sufficient to cover its liabilities under this Agreement, including commercial general liability and professional liability insurance. Upon Client's request, Service Provider shall provide certificates evidencing such coverage.

12. Termination

12.1 Either Party may terminate this Agreement for material breach by the other Party if the breaching Party fails to cure the breach within thirty (30) days after written notice. Client may terminate immediately for convenience upon written notice; in such event Service Provider shall be entitled to payment for Services properly performed through the effective date of termination and to reimbursement of reasonable, non-cancellable obligations incurred in performance of the Services.

13. Notices

13.1 All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as a Party may designate in writing. Notices shall be deemed given upon receipt if delivered personally, by courier, or by confirmed electronic transmission, or three (3) business days after deposit with first-class mail, postage prepaid.

14. Amendments; Waiver; Counterparts

14.1 No amendment or modification of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties. No waiver shall be effective unless in writing and signed by the waiving Party. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one 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 identified below without regard to conflict of law principles. The Parties submit to the exclusive jurisdiction of the state and federal courts located in that state for any action arising out of or relating to this Agreement.

15.2 Entire Agreement. This Agreement, together with any incorporated Statements of Work, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral.

15.3 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired.

16. Miscellaneous

16.1 Relationship of the Parties. The relationship of the Parties is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment, or agency relationship.

16.2 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except that Client may assign this Agreement in connection with a sale of all or substantially all of its assets or in connection with a merger or change of control, provided that the assignee assumes all obligations hereunder.

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