Business Operating Services Agreement

BUSINESS OPERATING SERVICES AGREEMENT

This Business Operating Services Agreement (the "Agreement") is entered into as of (the "Effective Date"), by and between Service Provider: , with principal place of business at , and Client: , with principal place of business at . Each of Service Provider and Client may be referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Service Provider is engaged in the business of providing operational management, administrative, and technical services described herein; and

WHEREAS, Client desires to retain Service Provider to perform the services and Service Provider is willing to provide such services to Client on the terms and conditions set forth in this Agreement; and

WHEREAS, the Parties desire to set forth their rights and obligations with respect to the provision of services and the allocation of responsibilities between the Parties.

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

1. SERVICES

1.1 Services. Service Provider shall provide the services described in the Statement of Work attached as Exhibit A and any additional services agreed in writing by the Parties (collectively, the "Services"). Service Provider shall perform the Services in a professional and workmanlike manner in accordance with industry standards.

2. TERM AND TERMINATION

2.1 Term. The term of this Agreement shall commence on the Commencement Date: and shall continue for an initial period of unless earlier terminated as provided in this Agreement.

2.2 Termination for Cause. Either Party may terminate this Agreement 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.

2.3 Effect of Termination. Upon termination, Service Provider shall cease performing Services and Client shall pay Service Provider for all Services performed and reasonable expenses incurred through the effective date of termination. Sections concerning confidentiality, indemnification, payment for services performed, intellectual property, and limitations of liability shall survive termination.

3. COMPENSATION AND PAYMENT

3.1 Fees. Client shall pay Service Provider the fees set forth in Exhibit B. Unless otherwise agreed, fees are due within days of invoice receipt.

3.2 Expenses. Client shall reimburse reasonable preapproved out-of-pocket expenses incurred by Service Provider. Reimbursable expenses shall be invoiced and supported by receipts where practicable.

3.3 Late Payments. Overdue amounts shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law, and Client shall be responsible for all reasonable costs of collection, including attorneys’ fees.

4. CONFIDENTIALITY

4.1 Definition. "Confidential Information" means nonpublic information disclosed by either Party related to business operations, trade secrets, technology, financial data, customer lists, pricing, and other proprietary information.

4.2 Obligations. Each Party shall protect Confidential Information of the other Party with at least the same care it uses to protect its own Confidential Information, shall not use Confidential Information except to perform its obligations under this Agreement, and shall not disclose Confidential Information to third parties except to employees, contractors, or advisors with a need to know who are bound by confidentiality obligations at least as protective as those in this Agreement.

5. INTELLECTUAL PROPERTY

5.1 Ownership. Except as expressly provided herein, each Party retains all right, title and interest in and to its preexisting intellectual property. Service Provider hereby assigns to Client all right, title and interest in deliverables created specifically for Client under this Agreement, subject to Client’s payment in full of all amounts due; provided, however, that Service Provider shall retain ownership of Service Provider’s general methodologies, tools, templates, know-how, and trade secrets.

5.2 License. To the extent necessary, Service Provider grants Client a nonexclusive, royalty-free license to use Service Provider’s preexisting materials incorporated in deliverables solely for Client’s internal business purposes.

6. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

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

6.2 Service Provider Warranty. Service Provider represents that it will perform the Services in a competent and professional 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 re-performance is not commercially practicable, a refund of fees paid for the deficient Services.

6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

7. LIMITATION OF LIABILITY

7.1 Exclusion of Consequential Damages. EXCEPT FOR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, LOSS OF PROFITS, OR LOSS OF BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Aggregate Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR A BREACH OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

8. INSURANCE

8.1 Insurance Requirements. Service Provider shall maintain insurance customary for providers of similar services, including commercial general liability and professional liability/errors and omissions coverage in amounts sufficient to meet its obligations under this Agreement. Upon request, Service Provider shall provide certificates of insurance evidencing such coverage.

9. INDEMNIFICATION

9.1 Indemnification by Service Provider. Service Provider shall defend, indemnify and hold harmless Client and its officers, directors and employees from and against any third-party claims arising out of Service Provider’s negligent performance of the Services or breach of its representations, warranties or confidentiality obligations, provided Client gives Service Provider prompt written notice and sole control of the defense and settlement.

9.2 Indemnification by Client. Client shall defend, indemnify and hold harmless Service Provider against claims arising from Client’s grossly negligent use of the deliverables or Client’s breach of this Agreement.

10. INDEPENDENT CONTRACTOR

10.1 Relationship. Service Provider is an independent contractor. Nothing in this Agreement shall be construed to create an employment, agency, joint venture, or partnership relationship between the Parties. Service Provider shall be solely responsible for payment of its employees and contractors and for withholding and payment of all applicable taxes.

11. NOTICES

11.1 Method. Notices required or permitted under this Agreement shall be in writing and shall be delivered by hand, nationally recognized overnight courier, or certified mail (return receipt requested) to the Parties at their respective notice addresses set forth below or at such other address as a Party may designate by notice.

12. AMENDMENTS, WAIVER, COUNTERPARTS

12.1 Amendments. Any amendment to this Agreement must be in writing and signed by authorized representatives of both Parties.

12.2 Waiver. No failure or delay by either Party in exercising any right hereunder shall operate as a waiver of such right.

12.3 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Signatures transmitted by electronic means shall be deemed original signatures.

13. SEVERABILITY; ENTIRE AGREEMENT; GOVERNING LAW

13.1 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect and such invalid or unenforceable provision shall be reformed to the minimum extent necessary to make it enforceable.

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

14. MISCELLANEOUS PROVISIONS

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

14.2 Force Majeure. Neither Party shall be liable for delays or failures in performance resulting from causes beyond its reasonable control, including acts of God, governmental action, strikes, epidemics, or failure of third-party providers, provided the affected Party promptly notifies the other and uses commercially reasonable efforts to resume performance.

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