Business Performance Contract

Business Performance Contract

Parties

Recitals

WHEREAS, Service Provider is engaged in the business of delivering services and performances related to the business objectives described herein and represents that it has the expertise, personnel, and resources to perform the services described in this Agreement; and

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

WHEREAS, the parties intend that this Agreement set forth the full terms for the performance, payment, confidentiality, and remedies related to the services provided.

Scope of Work

Service Provider shall perform the services and deliver the work products described below (collectively, the "Services"). The Services shall be performed in a professional and workmanlike manner consistent with prevailing industry standards.

Payment Terms

In consideration for the Services, Client shall pay Service Provider as set forth below. All amounts are in U.S. dollars unless otherwise stated.

Invoices shall be submitted in accordance with the Payment Schedule. Client will pay all undisputed invoices within days of Client's receipt of an accurate invoice. Disputed portions of any invoice shall be governed by the Dispute Resolution provisions below; undisputed portions remain payable.

Late payments shall bear interest at a rate of on the past-due amount, compounded monthly, plus any reasonable costs of collection, including attorneys' fees.

Term and Termination

This Agreement commences on the Effective Date and continues until completion of the Services or the End Date, unless earlier terminated as provided herein.

Effective Date:    End Date (if applicable):

Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure the breach within days after receipt of written notice. Either party may also terminate for convenience upon days' prior written notice to the other party. Upon termination, Client shall pay Service Provider for Services performed and non-cancellable commitments incurred through the effective date of termination.

Confidentiality

"Confidential Information" means non-public information disclosed by either party that is designated as confidential or that reasonably should be understood to be confidential. Each party shall (a) protect Confidential Information of the other party with at least the same degree of care it uses to protect its own confidential information, and (b) use Confidential Information solely to perform its obligations under this Agreement. Confidential Information does not include information that is or becomes publicly known through no breach of this Agreement, that is already known to the receiving party, or that is independently developed without use of the disclosing party's Confidential Information.

Performance Standards; Remedies

Service Provider will perform Services in a timely manner consistent with industry standards. If the Services fail materially to conform to the requirements of this Agreement, Client's sole and exclusive remedy, and Service Provider's entire liability, shall be to require Service Provider to promptly re-perform the nonconforming Services or, if re-performance is not commercially reasonable, to receive a refund of the portion of the Fees attributable to the nonconforming Services.

Change Orders

Any change to the Scope of Work shall be memorialized in a written change order signed by authorized representatives of both parties specifying the change, any adjustment to fees, and any change to schedule or deliverables.

Intellectual Property

Unless otherwise agreed in writing, Service Provider retains ownership of pre-existing intellectual property and tools. Unless specifically assigned in writing, deliverables created under this Agreement and paid for in full shall be owned by Client, subject to Service Provider's retained rights to use general knowledge, skills, and know-how developed during performance.

Indemnification and Limitation of Liability

Each party shall indemnify and hold harmless the other from third-party claims arising from the indemnifying party's gross negligence or willful misconduct. Except for liability arising from gross negligence, willful misconduct, or breach of confidentiality, neither party's liability for any claim arising under this Agreement shall exceed the total fees paid by Client to Service Provider under this Agreement in the twelve (12) months preceding the claim.

Notices

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 by written notice. Notice shall be deemed given upon receipt.

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 first attempt in good faith to resolve disputes through negotiation. If unresolved within 30 days, disputes shall be resolved by binding arbitration before a single arbitrator in the county where the Client's principal place of business is located, unless the parties agree otherwise in writing.

Entire Agreement; Severability

This Agreement, including all exhibits and signed change orders, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

Execution and Binding Effect

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Electronic, facsimile, or scanned signatures shall be effective and binding.

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