Business Services Toshiba

BUSINESS SERVICES AGREEMENT — TOSHIBA

This Business Services Agreement (the "Agreement") is entered into as of the Effective Date set forth below by and between:

Service Provider:

Client:

Recitals

WHEREAS, Service Provider is engaged in the business of providing business process, technical and professional services and possesses the experience, personnel and resources necessary to perform the services described in this Agreement; and

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

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

1. Scope of Work

Service Provider shall perform the services and deliver the work products described below (the "Services" and "Deliverables"). Service Provider shall perform the Services in a professional and workmanlike manner in accordance with industry standards.

2. Payment Terms

Client shall pay Service Provider the fees set forth below in consideration of the performance of the Services. All fees are exclusive of taxes which shall be the responsibility of the paying party unless otherwise required by law.

Late payments shall bear interest at the rate set forth below and Client shall be responsible for all reasonable collection costs (including attorneys' fees) incurred by Service Provider in collecting overdue amounts.

3. Term and Termination

This Agreement shall commence on the Start Date and shall continue until the End Date unless earlier terminated in accordance with this Section.

Start Date:     End Date:

Either party may terminate this Agreement for material breach by the other party if such breach remains uncured thirty (30) days after written notice specifying the nature of the breach; provided that material breaches that are incapable of cure may be terminated immediately upon written notice.

4. Confidentiality

"Confidential Information" means all non‑public information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Each party shall: (a) hold the other party's Confidential Information in strict confidence; (b) not use Confidential Information except to perform its obligations under this Agreement; and (c) not disclose Confidential Information to any third party except to employees, contractors or advisors who have a need to know and who are bound by confidentiality obligations at least as restrictive as those herein.

Exceptions: Confidential Information does not include information that (i) is or becomes generally available to the public through no act or omission of the receiving party; (ii) was in the receiving party's lawful possession prior to disclosure; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (iv) is required to be disclosed by law or by a court or governmental authority (provided the disclosing party is given prompt notice and, where practicable, the opportunity to seek protective measures).

5. Intellectual Property

Unless otherwise agreed in writing, Service Provider retains ownership of its preexisting intellectual property and tools used to perform the Services. Subject to Client's payment in full of all fees due hereunder, Service Provider hereby assigns to Client all right, title and interest in and to Deliverables specifically created for Client under this Agreement. Service Provider may retain copies of Deliverables for its internal records and performance benchmarking, provided no Confidential Information of Client is disclosed.

6. Liability; Indemnification

Each party shall indemnify, defend and hold harmless the other party from and against third party claims arising from the indemnifying party's gross negligence, willful misconduct, or material breach of this Agreement. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES. THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM.

7. Compliance; Representations and Warranties

Each party represents that it has the full right, power and authority to enter into and perform this Agreement. Service Provider warrants that the Services will be provided in a professional manner consistent with industry standards. EXCEPT FOR THE FOREGOING, SERVICE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED.

8. Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to conflicts of law principles. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement through negotiation. If negotiation fails, the parties may pursue any available legal or equitable remedies in the courts of the chosen jurisdiction.

9. Force Majeure

Neither party shall be liable for delay or failure to perform its obligations (other than payment obligations) to the extent such delay or failure is due to causes beyond its reasonable control, including acts of God, governmental action, labor disputes, epidemics, earthquakes, storms or other force majeure events; provided the affected party promptly notifies the other and uses commercially reasonable efforts to resume performance.

10. Entire Agreement; Amendments

This Agreement, including all exhibits and attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in a writing signed by authorized representatives of both parties.

11. Miscellaneous

Notices under this Agreement shall be sent to the addresses set forth above or to such other address as either party may specify in writing. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

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