Business Services ESS

BUSINESS SERVICES ESS AGREEMENT

This Business Services ESS Agreement ("Agreement") is entered into as of between: Client Name: , with principal place of business at , and Service Provider: , with principal place of business at .

WHEREAS

WHEREAS, Client requires certain business services described herein and desires to engage Provider to perform such services under the terms and conditions set forth in this Agreement; and

WHEREAS, Provider has the professional capability, personnel, and experience to perform the services described in this Agreement and agrees to provide such services for the compensation and on the schedule set forth below.

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

1. Scope of Work

Provider shall perform the business services described below (the "Services"). The Services shall be performed in a professional and workmanlike manner consistent with industry standards.

2. Payment Terms

Client shall pay Provider for the Services in accordance with the fee, schedule, and payment conditions set forth below. All fees are exclusive of taxes unless otherwise stated.

Any amounts not paid when due shall accrue interest at the lesser of (a) % per month, or (b) the maximum rate permitted by applicable law, together with all costs of collection, including reasonable attorneys' fees.

3. Term and Termination

This Agreement commences on the Start Date and continues until the End Date unless earlier terminated as provided herein.

Start Date:    End Date:

Either party may terminate this Agreement without cause by providing written notice to the other party at least days prior to the effective date of termination. Upon termination, Provider shall be entitled to payment for Services performed and reasonable, non-cancellable commitments incurred through the effective date of termination.

4. Confidentiality

"Confidential Information" means all non-public information disclosed by a party ("Discloser") to the other party ("Recipient") that is marked confidential or that reasonably should be understood to be confidential. Recipient shall (a) use Confidential Information solely to perform its obligations or exercise its rights under this Agreement, and (b) protect Confidential Information with at least the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care.

Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of Recipient; (ii) was in Recipient's possession prior to receipt from Discloser; (iii) is rightfully received by Recipient from a third party without a duty of confidentiality; or (iv) is independently developed by Recipient without use of or reference to Discloser's Confidential Information. Recipient may disclose Confidential Information to the extent required by law, provided Recipient gives Discloser prompt written notice and cooperates reasonably with Discloser to seek protective measures.

5. Intellectual Property

Unless otherwise agreed in writing, Provider retains ownership of its pre-existing intellectual property and methodologies. Subject to full payment, Provider assigns to Client all exclusive right, title and interest in and to the deliverables specifically created for Client under this Agreement ("Work Product"). Provider may retain and use non-identifying knowledge and general skills developed during performance of the Services.

6. Representations, Warranties & Indemnification

Each party represents and warrants that it has the authority to enter into this Agreement. Provider warrants that the Services will be performed in a professional and workmanlike manner and in accordance with applicable laws. Except as expressly set forth herein, the Services are provided "AS IS" and Provider disclaims all other warranties.

Each party shall indemnify, defend and hold harmless the other party from and against any third-party claims arising out of its breach of this Agreement or its negligent or willful misconduct, subject to any limitations of liability set forth below.

7. Limitation of Liability

Except for liability arising from a party's gross negligence, willful misconduct, or breach of Section 4 (Confidentiality) or a party's indemnification obligations, neither party shall be liable to the other for consequential, incidental, special or punitive damages. The total aggregate liability of each party arising out of or in connection with this Agreement shall not exceed the total fees paid by Client to Provider under this Agreement during the twelve (12) month period preceding the claim.

8. Governing Law

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

9. Notices

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth at the beginning of this Agreement or such other address as a party may designate by written notice in accordance with this Section.

10. Miscellaneous

Entire Agreement: This Agreement, including any exhibits or attachments, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral.

Amendment: Any amendment or modification to this Agreement must be in writing and signed by authorized representatives of both parties.

Assignment: Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, except that Client may assign this Agreement in connection with a sale of substantially all of its assets or a merger.

Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.

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