Business Agreement Toomey

BUSINESS AGREEMENT TOOMEY

This Business Agreement ("Agreement") is entered into as of Effective Date: by and between:

RECITALS

WHEREAS, Client desires to obtain certain business services and deliverables described herein; and

WHEREAS, Service Provider represents that it has the experience, qualifications and personnel necessary to perform the services for Client under the terms set forth in this Agreement; and

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties agree as follows:

SCOPE OF WORK

Service Provider shall perform the services and deliver the work products described below. The scope may be amended only by a written change order executed by authorized representatives of both parties.

PAYMENT TERMS

Client shall pay Service Provider for the services performed in accordance with the schedule and amounts set forth below. All amounts are payable in U.S. dollars unless otherwise agreed in writing.

Invoices shall be issued by Service Provider in accordance with the payment schedule. Unless otherwise agreed, Client shall pay undisputed invoices within days of receipt.

Overdue amounts shall accrue interest at the rate specified above or, if no amount is entered, at the lesser of 1.5% per month or the maximum rate permitted by law. Client is also responsible for reasonable collection costs, including attorneys' fees.

TERM AND TERMINATION

This Agreement shall commence on Start Date: and shall continue in effect until End Date: unless earlier terminated in accordance with this section.

Either party may terminate this Agreement for convenience upon written notice to the other party given at least days prior to the effective date of termination.

Either party may terminate immediately for material breach by the other party if the breaching party fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach. Termination shall not relieve Client of its obligation to pay for services performed and expenses incurred through the effective date of termination.

CONFIDENTIALITY

For purposes of this Agreement, "Confidential Information" means non-public information disclosed by either party to the other, whether oral, written, electronic or otherwise, that is designated as confidential or that reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can demonstrate: (a) is or becomes publicly known through no breach of this Agreement; (b) was rightfully known prior to disclosure; (c) is rightfully received from a third party without restriction; or (d) is independently developed without use of the disclosing party's Confidential Information.

The receiving party shall (i) protect the confidentiality of the disclosing party's Confidential Information with at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; (ii) not use Confidential Information for any purpose other than performing its obligations under this Agreement; and (iii) not disclose Confidential Information to any third party except to employees, contractors or advisors who need to know and who are bound by confidentiality obligations no less protective than those set forth herein. These obligations shall survive termination of this Agreement for a period of three (3) years, except that confidential trade secrets shall be protected for as long as such information qualifies as a trade secret under applicable law.

INTELLECTUAL PROPERTY AND DELIVERABLES

Unless otherwise agreed in writing, Client shall own all right, title and interest in and to final deliverables specifically created for Client and paid for in full. Service Provider retains ownership of its pre-existing materials, general know-how, methodologies, tools and templates ("Background IP"). Service Provider grants Client a non-exclusive, perpetual, worldwide license to Background IP contained within deliverables to the extent necessary to use the deliverables as intended.

INDEMNIFICATION; LIMITATION OF LIABILITY

Each party shall indemnify, defend and hold harmless the other party from and against any third-party claims arising from the indemnifying party's breach of this Agreement, gross negligence, or willful misconduct. The indemnified party shall provide prompt written notice of any claim and reasonably cooperate in the defense.

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.

INDEPENDENT CONTRACTOR; ASSIGNMENT

The parties are independent contractors. Nothing in this Agreement creates an employment, partnership, joint venture or agency relationship. Neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other, except that Service Provider may assign to a successor in connection with a merger or sale of substantially all of its assets.

NOTICES

All notices required or permitted hereunder shall be in writing and shall be delivered to the parties at the addresses set forth above or to such other address as either party may designate by written notice to the other. Notices shall be deemed given when delivered personally, one (1) business day after delivery to a nationally recognized overnight courier, or three (3) days after deposit in the U.S. mail, postage prepaid.

GOVERNING LAW; DISPUTE RESOLUTION

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

The parties shall attempt in good faith to resolve any dispute arising under this Agreement through negotiation. If negotiation fails, the parties agree to submit to mediation. If mediation does not resolve the dispute, the parties may pursue any remedy available at law or in equity.

ENTIRE AGREEMENT

This Agreement, including any exhibits or schedules attached hereto and any written change orders signed by authorized representatives of both parties, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, negotiations and communications, whether written or oral. Any amendment or modification of this Agreement must be in writing and signed by authorized representatives of both parties.

MISCELLANEOUS

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. The parties acknowledge that monetary damages may be inadequate to remedy a breach of certain provisions and that injunctive relief may be appropriate. This Agreement may be executed in counterparts, each of which shall be deemed an original and constitute one and the same instrument.

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