Business Interactive Tool

BUSINESS INTERACTIVE TOOL AGREEMENT

Parties

Recitals

WHEREAS, Client desires to engage Provider to design, develop, configure and deliver an interactive business tool consisting of software, user interface elements, integrations and documentation (the tool) as further described in this Agreement; and

WHEREAS, Provider represents that it has the technical skill, experience and personnel to perform the services required to deliver the interactive business tool in accordance with the Scope of Work; and

WHEREAS, the parties wish to set forth the terms and conditions that will govern Provider’s development, delivery, testing, acceptance, ownership and support of the tool.

Scope of Work

Provider shall perform the services and deliver the deliverables described below. Provider shall use commercially reasonable efforts to meet schedules agreed in writing by the parties and to comply with accepted industry standards.

Payment Terms

Client shall pay Provider the fees set forth below in consideration for Provider’s performance. All fees are stated in the parties' agreed currency and are exclusive of applicable taxes unless otherwise required by law.

All undisputed invoiced amounts unpaid after thirty (30) days from the invoice date shall accrue interest at the rate set forth above. Client shall reimburse Provider for preapproved out-of-pocket expenses incurred in performance of the work upon submission of reasonable documentation.

Term and Termination

This Agreement commences on and continues until unless earlier terminated in accordance with this Section.

Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure the breach within the notice period set forth above following receipt of written notice specifying the nature of the breach. Provider may suspend performance if Client fails to pay undisputed fees within thirty (30) days after written notice of nonpayment.

Confidentiality

"Confidential Information" means all nonpublic information disclosed by either party to the other in connection with this Agreement, whether oral, written or electronic, including business plans, technical designs, source code, pricing, customer lists and trade secrets. Confidential Information does not include information that is (a) publicly known through no breach of this Agreement, (b) rightfully received by the receiving party from a third party without restriction, or (c) independently developed without use of the disclosing party’s Confidential Information.

Each party shall (i) protect Confidential Information of the other party with at least the same degree of care it uses to protect its own confidential information, but no less than reasonable care; (ii) use Confidential Information solely to exercise rights and perform obligations under this Agreement; and (iii) limit access to Confidential Information to employees, contractors or agents with a need to know who are bound by confidentiality obligations at least as protective as those contained herein.

Intellectual Property

Unless otherwise agreed in writing, Client shall own all right, title and interest in and to deliverables that are custom-produced for Client pursuant to this Agreement, including all copyrights and other intellectual property rights therein, upon full payment of all amounts due. Provider shall retain ownership of Provider’s pre-existing materials, tools, libraries, templates and know-how, and grants Client a nonexclusive, nontransferable license to embedded Provider pre-existing components as included within the deliverables.

Provider warrants that to the best of its knowledge the deliverables will not infringe third-party intellectual property rights. Provider’s sole obligation and Client’s exclusive remedy for an allegation of infringement shall be, at Provider’s option, to obtain the right to continue using the deliverable, modify it to avoid infringement while maintaining substantial functionality, or refund fees paid for the infringing portion of the deliverable.

Warranties; Limitation of Liability

Provider warrants that services will be performed with commercially reasonable skill and care. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES AND DELIVERABLES ARE PROVIDED "AS IS" AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of without regard to rules governing choice of law.

Entire Agreement and Miscellaneous

This Agreement, together with any scope attachments and accepted statements of work, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral. No amendment shall be effective unless in writing signed by both parties. Neither party may assign this Agreement without the prior written consent of the other, except to an affiliate or in connection with a sale of substantially all of the assigning party's assets or equity.

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 insufficient to remedy a breach of confidentiality or intellectual property obligations and that equitable relief may be appropriate in such circumstances.

Notices

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth above or to another address provided in writing. Notice is effective upon receipt.

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