Computer Networking Services Agreement

COMPUTER NETWORKING SERVICES AGREEMENT

This AGREEMENT (the "Agreement") is made and entered into as of the day of, (the "Effective Date") by and between , with a principal place of business at , , , and with offices at ("Customer").

1. SCOPE OF WORK

hereby agrees to design, sell and provide, and Customer hereby agrees to purchase upon the terms and conditions set forth herein, an installed and usable Network system to meet Customer's needs for Customer’s business. will design, fabricate, provide, install and support said system and assume the responsibility of system integrator. shall assume responsibility for assuring that all elements of the system are integrated to permit the uninterrupted processing of all necessary data to support Customer's business functions.

Phase I of the project will include finalizing the design from detailed data provided by Customer from which and Customer will determine all mutually acceptable performance parameters to be embodied in "Final Functional Specifications". Upon acceptance of the resulting Final Functional Specifications, a firm fixed price for the system will be determined as provided in Section 6 of this Agreement. Currently, Customer's Preliminary Functional Specifications are attached on Exhibit A. The Final Functional Specifications shall be agreed to by the parties within twenty (20) days following the execution of this Agreement.

Phase 2 of the project will consist of the fabrication, installation, testing, acceptance and support of the System.

2. THE SYSTEM

agrees to supply to Customer the "Network System" which shall consist of the Computer Hardware and peripherals set forth in Exhibit B (Agreement for Sale of Data Processing Equipment) and Software, as hereinafter defined. The Network System shall meet all functional specifications detailed in the Preliminary and Final Functional Specifications.

3. INSTALLATION SITE PREPARATION

shall survey the Customer installation site located at (the "Installation Site") and shall specify all electrical, environmental or other engineering changes required for proper installation, maintenance and operation of the Network System. shall promptly provide Customer with written notice of such reasonable requirements as are acceptable to Customer and shall review and approve all plans submitted by Customer, to ensure that the Installation Site's physical environment is compatible with the Network System's installation, maintenance and operation requirements. Customer shall be responsible for meeting the environmental requirements for the System at the Installation Site in accordance with the accepted plans.

4. COMPUTER HARDWARE

4.1 The Sale of Computer Hardware

shall sell to Customer all of the computers and information processing equipment listed in Exhibit B attached hereto (collectively, the "Computer Hardware"). shall not make any substitute for the Computer Hardware of any other model, capacity or manufacturer without the prior written consent of Customer.

4.2 Delivery and Installation

shall arrange for delivery of the Computer Hardware to the Installation Site in accordance with the Implementation Plan set forth in Exhibit C. Shipment of the Computer Hardware shall be F.O.B. Customer's receiving point at the Installation Site. shall bear the risk of loss or damage to the Computer Hardware while in transit to Customer's premises and the Installation Site. Customer shall bear all risk of loss or damage to the Computer Hardware after delivery to the Installation Site, unless such loss or damage is due to negligence or willful acts of , its employees, agents, representatives or subcontractors, or defects in the Computer Hardware. After delivery to the Installation Site, shall install the computer Hardware, as set forth in the Implementation Plan.

4.3 New Parts and Components

covenants and represents that the Computer Hardware and all of its parts and components will be new and unused.

5. SOFTWARE

5.1 Software Modules

The Software to be delivered hereunder shall be modular and each of the modules are identified and set forth in Exhibit D.

5.2 Custom Modifications / Configurations

shall make certain modifications and configurations to the Software as necessary to achieve the Final Functional Specifications. The total charge for such modifications shall be included in the System Price (as hereinafter defined). In the event the Software as modified hereunder is accepted, then Customer shall be deemed the owner of such modifications.

6. COMPENSATION

6.1 The System Price

The price for the System shall include the Computer Hardware and peripherals set forth in Exhibit B, and Software, all services and expenses necessary to configure or modify the Software to meet Customer's requirements, and all services and expenses necessary to install, test and train Customer's employees on the use of the System. The price for the System is $ and includes all of the elements set forth in Exhibits B and E (Hardware and Training).

The price set forth herein shall become the firm fixed price for the development of the System ("System Price") upon Customer's acceptance of the Final Functional Specifications. During the implementation of the System, may recommend that Customer purchase additional Computer Hardware or Customer may determine that it does not require certain portions of the Computer Hardware. Upon mutual written agreement, the appropriate Exhibit / Schedule may be amended and substituted and the System Price will be changed accordingly.

6.2 Payments

Customer shall make payments to in accordance with the following Payment Schedule: (i) Upon the execution of this Agreement, the Customer shall pay a Down Payment in the amount of fifty (50%) of the total System Price; and (ii) Forty percent (40%) of the total System Price is due upon the Final Acceptance date of the Network System.

The Final Acceptance date shall be the date when can reasonably demonstrate that the Network System meets the Final Functional Specifications and has been delivered to Customer, or that date when the Customer is using the Network System in the operation of its business, whichever shall occur earlier; (iii) the remaining balance of the total System Price is due and payable thirty (30) days after the Final Acceptance date.

6.3 Subcontractors

Nothing provided herein shall create any obligation on the part of Customer to pay or to see to the payment by of any monies to any subcontractor, or vendor, nor create any relationship in contract or otherwise, express or implied, between any such subcontractor, or vendor and Customer.

7. CHANGE PROCEDURES

No change, modification, termination or discharge of this Agreement or any part hereof, in any form whatsoever, shall be valid or enforceable unless it is in writing and signed by both parties.

, in developing the System, may make minor modifications to the Software and Final Functional Specifications if such minor modifications do not limit, diminish or affect the functional operation or use of the System or its output, or result in the System failing to comply with the Customer specifications contained in the Final Functional Specifications and this Agreement.

8. SERVICES

8.1 Implementation Services

shall provide installation, training, customization and conversion services as set forth in the Implementation Plan. These services will be undertaken by and will be included in the System Price.

8.2 Training

shall provide training services in connection with the implementation of the System in accordance with the Training Schedule attached hereto as Exhibit E. The cost of training shall be included in the System Price.

8.3 Project Leaders; Personnel

shall appoint a Project Leader to coordinate all activities, or any of its subcontractors' activities, in connection with the implementation of the System. The services of the Project Leader shall be included in the System Price. In the event that any employee of , or of any of its subcontractors, performing services hereunder is found to be unacceptable to Customer, Customer shall notify of such fact and shall immediately remove said employee or subcontractor from performing services for Customer and provide a qualified replacement.

9. WARRANTIES

9.1 Warranty Period

For purposes of this Agreement, "Warranty Period" shall mean the period which is month(s) from the date of the Final System Integration Acceptance.

9.2 System Warranties

warrants that during the Warranty Period the System will meet the functional, performance, reliability and other business requirements and intended uses of Customer as provided in the Final Functional Specifications and is fit for such intended uses. warrants to Customer that for the Warranty Period and for as long as there is an agreement for System maintenance in effect between the parties, the system shall (i) be free from defects in material and workmanship and remain in good working order; and (ii) function in all respects in accordance with the Final Functional Specifications.

9.3 Remedies for Breach of System Warranties

In the event that the System does not meet the warranties herein, shall provide, at no charge, the necessary software, hardware or services required to attain the levels or standards set forth in said warranties.

9.4 Disclaimer of Warranty

THE WARRANTY SET FORTH IN PARAGRAPH 9.2 IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY . EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ALL OTHER EXPRESS WARRANTIES AND ALL DUTIES, OBLIGATIONS AND WARRANTIES IMPLIED IN LAW, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICES OR THE SYSTEM WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OR USE OF THE SYSTEM, IF ANY, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SYSTEM, IF ANY, WILL BE CORRECTED. ’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES AND THE SYSTEM. THE PARTIES AGREE THAT THE SYSTEM’S FAILURE TO PERFORM IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS SHALL NOT BE CONSIDERED A FAILURE OF THE ESSENTIAL PURPOSE OF THE REMEDIES CONTAINED HEREIN. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND/OR THE SYSTEM IS WITH THE CUSTOMER. MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY SOFTWARE. ANY SOFTWARE PROVIDED TO CUSTOMER BY IS EXPRESSLY PROVIDED UNDER THE TERMS AND CONDITIONS OF THE SOFTWARE VENDOR’S STANDARD SOFTWARE LICENSE. THE SYSTEM IS EXPRESSLY PROVIDED "AS IS." MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY EQUIPMENT OR HARDWARE.

ANY EQUIPMENT OR HARDWARE PROVIDED TO CUSTOMER BY IS EXPRESSLY PROVIDED UNDER THE TERMS OF HARDWARE OR THE EQUIPMENT VENDOR’S WARRANTY AGREEMENT, IF ANY.

9.5 Limitation of Liability

SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE AGGREGATE LIABILITY OF FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM, SHALL BE LIMITED TO THE MONIES PAID TO BY CUSTOMER FOR THE SYSTEM.

10. CONFIDENTIALITY

The parties acknowledge that in the course of performing their responsibilities under this Agreement, they each may be exposed to or acquire information that is proprietary to or confidential to the other party or third parties. The parties agree to hold such information in strictest confidence and not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties or to use such information for any purposes whatsoever, without the express written permission of the other party, other than for the performance of obligations hereunder or as otherwise agreed to herein, and to advise each of their employees, agents and representatives of their obligations to keep such information confidential.

All such confidential and proprietary information described herein (including, but not limited to, business plans and data relating to each party, Proprietary Materials, or Customer Data) and any deliverable provided hereunder, in whatever form (including, but not limited to Work Product) are hereinafter collectively referred to as "Confidential Information."

11. MOST FAVORED CUSTOMER.

agrees to treat Customer as its most favored customer. represents that all of the prices, terms, warranties and benefits granted by hereunder are comparable to or better than the equivalent terms being offered by it to any present customer of .

12. TAXES.

Unless imposition and payment thereof is being contested by Customer in good faith and by appropriate proceedings, Customer shall be responsible for all taxes, fees, assessments and other charges imposed by any federal, state, or local government or governmental agency resulting from this Agreement, including, without limitation privilege, excise, sales, use, occupational and other taxes or amounts in lieu thereof paid or payable by (other than any income, franchise, privilege or like taxes).

13. NON-SOLICITATION.

Customer shall not solicit, induce, entice or otherwise hire for employment or for any other contractual purpose any employee or independent contractor provided to customer by . Customer agrees that any such solicitation, inducement, enticement or employment shall constitute a material breech of this Agreement and Customer agrees that it shall pay liquidated damages in the amount of $25,000.00 for a violation of this non-solicitation clause.

14. GENERAL.

14.1 Force Majeure

Neither party shall be liable to the other for any delay or failure to perform due to acts of God or causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay.

14.2 Survival

All provision of this Agreement relating to confidentiality, nondisclosure and indemnification shall survive the termination of this Agreement.

14.3 No Waiver

The waiver or failure of either party to exercise or enforce any fight in any respect provided for herein shall not be deemed a waiver of any further fight hereunder.

14.4 Personnel Rules and Regulations

’s personnel will comply with Customer's work rules and security regulations while working at the Installation Site.

14.5 Independent Contractor

In performance of this Agreement, is acting as an independent contractor. Personnel supplied by hereunder are not Customer's personnel or agents, and assumes full responsibility for their acts. shall be solely responsible for the payment of compensation of employees, agents, representatives and subcontractors of assigned to perform services hereunder. shall not be responsible for payment of workers' compensation, disability benefits, unemployment insurance or for withholding income taxes and social security for such individuals, but such responsibility shall be that of .

14.6 Governing Law

This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of . Any and all proceedings relating to the subject matter hereof shall be maintained in the courts of the State of or the Federal District Courts in , which courts shall have exclusive jurisdiction for such purpose.

14.7 Enforceability

If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

14.8 Assignment

This Agreement and the rights and duties of hereunder shall not be assigned or delegated by to any other person or entity without the prior written consent of Customer. This Agreement, or any or all of Customer's rights hereunder, may be assigned by Customer to any third party, transferee, successor, or assign of Customer, on notice to, but without the consent of, , and shall inure to the benefit of such third party, transferee, successor, or assign of Customer.

14.9 Entire Agreement

Each party acknowledges that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified or altered except by a written instrument duly executed by both parties.

IN WITNESS WHEREOF, the parties hereto have signed this Agreement the date and year first written above by their duly authorized representatives.