Business NOMD Document

Business Notice of Material Default and Agreement (NOMD)

Parties

This Business Notice of Material Default and Agreement (the Agreement) is made effective as of by and between:

Recitals

WHEREAS, First Party and Second Party entered into one or more agreements, statements of work, purchase orders or other contractual instruments providing for the delivery of services or goods (collectively, the Underlying Agreement), dated ;

WHEREAS, Second Party acknowledges that a material default has occurred under the Underlying Agreement consisting of the following described failures or breaches:

WHEREAS, the parties desire to set forth the cure obligations, payment remedies and ongoing duties of the parties in respect of the identified default and to document the parties' agreement on the consequences if the default is not cured in accordance with this Agreement.

Scope of Work and Cure Obligations

Second Party shall, at Second Party's sole cost and expense, perform the cure obligations and complete the remedial work necessary to remedy the material default described above in a manner consistent with industry standards. The remedial actions, milestones and acceptance criteria are:

The parties agree the initial cure period shall be days from the Effective Date, subject to extensions only by mutual written agreement.

Payment Terms

As consideration for performance of the remedial work and as set compensation related to the Underlying Agreement, the parties agree to the following payment terms:

Term and Termination

This Agreement commences on the Start Date and continues through the End Date unless earlier terminated in accordance with this Agreement.

Either party may terminate this Agreement for cause if the other party materially breaches any provision of this Agreement and fails to cure such breach within days after receipt of written notice specifying the breach. Termination for insolvency, bankruptcy or appointment of a receiver shall be effective immediately upon written notice.

Confidentiality

Each party acknowledges that, in connection with the Underlying Agreement and this Agreement, it may receive Confidential Information of the other party. For purposes of this Agreement, Confidential Information means nonpublic information, whether oral, written or electronic, concerning the disclosing party's business, operations, pricing, technical data, designs, trade secrets, or other proprietary information.

The receiving party shall maintain the confidentiality of the disclosing party's Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care, and shall not disclose Confidential Information to any third party except as necessary to perform its obligations hereunder or with the disclosing party's prior written consent.

Exceptions to confidentiality obligations include information that: (a) is or becomes generally available to the public through no fault of the receiving party; (b) was rightfully in the receiving party's possession prior to disclosure; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (d) is required to be disclosed by law or valid order of a court or governmental authority, provided that the receiving party gives prompt notice to the disclosing party to allow it to seek protective relief.

Governing Law and 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 disputes arising under this Agreement by negotiation. If negotiation fails, the parties may pursue any remedies available at law or in equity.

Representations and Warranties

Each party represents and warrants that it has full power and authority to enter into this Agreement and to perform its obligations hereunder, and that the execution and delivery of this Agreement has been duly authorized by all necessary action.

Indemnification and Limitation of Liability

Each party shall indemnify, defend and hold harmless the other party from and against any third-party claims, liabilities, losses or expenses (including reasonable attorneys' fees) arising from the indemnifying party's gross negligence, willful misconduct or material breach of this Agreement. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES.

Entire Agreement

This Agreement, together with the Underlying Agreement and any exhibits or schedules expressly incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, understandings and agreements, whether written or oral. Any amendment or modification of this Agreement must be in writing and executed by authorized representatives of both parties.

Miscellaneous

Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without consent to an affiliate or to a successor by merger, acquisition or sale of substantially all of its assets. Notices required under this Agreement shall be in writing and delivered in accordance with the addresses set forth above or as otherwise designated in writing by the parties.

Acknowledgement

By signing below, the authorized representatives of the parties acknowledge and agree that the facts stated in the Recitals are accurate to the best of their knowledge, that the obligations described in this Agreement are binding, and that failure to cure the material default as provided herein may result in the imposition of the remedies set forth in this Agreement and the Underlying Agreement.

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