Definitive Business Agreement

DEFINITIVE BUSINESS AGREEMENT

This Definitive Business Agreement (the "Agreement") is entered into as of Month Day Year (the "Effective Date"), by and between Company Name: with principal place of business at , and Counterparty Name: with principal place of business at .

Company is organized as: Corporation LLC Partnership Other. Counterparty is organized as: Corporation LLC Partnership Other.

RECITALS

WHEREAS, Company is engaged in the business of providing certain products, services, technology and business processes as further described herein; and

WHEREAS, Counterparty desires to obtain and Company desires to provide those products and services on the terms and conditions set forth in this Agreement; and

WHEREAS, the parties intend by this Agreement to set forth their respective rights and obligations with respect to the transactions contemplated herein.

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

1. DEFINITIONS

1.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth below:

"Confidential Information" means all non-public information disclosed by one party to the other in written, electronic, or oral form that is designated as confidential or that reasonably should be understood to be confidential given its nature and the circumstances of disclosure, including business plans, customer lists, pricing, technical data and trade secrets.

"Deliverables" mean the tangible or intangible items to be delivered by Company to Counterparty as described in Section 2 and in any Statement of Work executed under this Agreement.

2. SCOPE OF SERVICES

2.1 Services. Company shall provide the services and deliverables described in the applicable Statement of Work executed by the parties (each, a "Statement of Work"). Each Statement of Work shall incorporate the terms of this Agreement and shall describe the scope, deliverables, milestones, acceptance criteria and fees.

2.2 Change Orders. Any change in scope shall be documented by a written change order signed by authorized representatives of both parties. Company shall not be required to perform any work subject to a change order until both parties have agreed in writing to any adjustments to fees or schedule.

3. TERM; TERMINATION

3.1 Term. The term of this Agreement shall commence on the Effective Date and continue for a period of months, unless earlier terminated as provided herein.

3.2 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.

3.3 Effect of Termination. Upon termination, each party shall return or destroy Confidential Information of the other and any unpaid fees for services performed through the effective date of termination shall become immediately due and payable.

4. FEES AND PAYMENT

4.1 Fees. Counterparty shall pay Company the fees set forth in each Statement of Work. Unless otherwise specified, fees are exclusive of applicable taxes, which Counterparty shall pay.

4.2 Invoicing and Payment. Company shall invoice Counterparty in accordance with the payment schedule in the applicable Statement of Work. Payment is due within days from invoice date. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law.

5. CONFIDENTIALITY

5.1 Protection. Each party shall protect the other party's Confidential Information with the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care. Confidential Information may be used only for the purposes of performing under this Agreement.

5.2 Exceptions. Confidential Information does not include information that (a) is or becomes publicly known other than by breach of this Agreement; (b) was rightfully known to the recipient prior to disclosure; (c) is independently developed without use of the disclosing party's Confidential Information; or (d) is rightfully obtained from a third party without restriction.

6. REPRESENTATIONS AND WARRANTIES

6.1 Mutual Representations. Each party represents and warrants that it has the full corporate power and authority to enter into and perform its obligations under this Agreement, and that this Agreement constitutes a valid and binding obligation enforceable against it in accordance with its terms.

6.2 Company Warranty. Company warrants that the services will be performed in a professional and workmanlike manner consistent with industry standards. Counterparty's sole remedy for breach of this warranty shall be re-performance of the deficient services, provided that Company is given prompt written notice of such deficiency.

7. INDEMNIFICATION

7.1 By Company. Company shall indemnify, defend and hold harmless Counterparty from and against any third-party claims arising out of Company's gross negligence or willful misconduct in performance of the services, provided that Counterparty gives Company prompt written notice of the claim and cooperates in the defense.

7.2 By Counterparty. Counterparty shall indemnify, defend and hold harmless Company from and against any third-party claims arising out of Counterparty's breach of this Agreement, use of the Deliverables in violation of applicable law, or infringement claims arising from Counterparty-provided materials.

8. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY COUNTERPARTY TO COMPANY UNDER THE APPLICABLE STATEMENT OF WORK IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9. INTELLECTUAL PROPERTY

9.1 Ownership. As between the parties, Company retains all right, title and interest in and to any pre-existing technology, know-how and intellectual property that Company uses in performing the services. Counterparty retains all right, title and interest in and to its pre-existing materials and data provided to Company.

9.2 License. Subject to the terms of this Agreement and payment of fees, Company grants to Counterparty a non-exclusive, non-transferable, limited license to use the Deliverables for Counterparty's internal business purposes as specified in the applicable Statement of Work.

10. NON-SOLICITATION

During the term of this Agreement and for a period of twelve (12) months thereafter, neither party shall solicit for employment or engagement any employee or consultant of the other party who substantially performed services under this Agreement, without the other party's prior written consent.

11. NOTICES

All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the respective parties at their addresses set forth below (or to such other address as may be designated by a party by giving written notice to the other party in accordance with this Section).

12. AMENDMENTS; WAIVER; COUNTERPARTS

12.1 Amendment. No amendment to this Agreement is effective unless it is in writing and signed by authorized representatives of both parties.

12.2 Waiver. No failure or delay by either party in exercising any right shall operate as a waiver of that right unless a waiver is in writing and signed by the waiving party.

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 and the same instrument. Signatures transmitted by electronic means or facsimile shall be deemed original signatures.

13. GOVERNING LAW

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

14. ENTIRE AGREEMENT

This Agreement, together with all Statements of Work and written exhibits and schedules expressly incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, and representations, whether written or oral.

15. SEVERABILITY

If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect and the parties shall negotiate in good faith a replacement provision that achieves the original intent to the greatest extent permitted by law.

ADDITIONAL PROVISIONS

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