Enercom Business Services Agreement

ENERCOM BUSINESS SERVICES AGREEMENT

This Business Services Agreement ("Agreement") is entered into as of by and between:

Parties and Notices

WHEREAS

WHEREAS, Client desires to obtain certain professional services related to communications, information technology, and systems integration (collectively, "Services"); and

WHEREAS, Service Provider represents that it has the experience, personnel, and capability to provide the Services under the terms and conditions set forth in this Agreement; and

WHEREAS, the parties wish to set forth their respective rights and obligations with respect to the performance, payment, and confidentiality of the Services.

1. Scope of Work

Service Provider shall perform the Services described below. The Services shall include deliverables, milestones, and specifications as agreed in writing by the parties. Any work outside the written scope below will require a written change order signed by both parties.

2. Payment Terms

In consideration for the Services, Client shall pay Service Provider the fees set forth below in accordance with the schedule identified. All fees are exclusive of applicable taxes unless otherwise stated. Unless expressly agreed, Client will reimburse reasonable, preapproved out-of-pocket expenses.

Late payments shall accrue interest as set forth below and Client shall be responsible for reasonable collection costs.

3. Term and Termination

This Agreement shall commence on and shall continue in effect until unless earlier terminated in accordance with this Section.

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.

4. Confidentiality

"Confidential Information" means nonpublic information disclosed by one party to the other that is designated confidential or that reasonably should be understood to be confidential. Each recipient shall: (a) hold Confidential Information in confidence using at least the same degree of care it uses to protect its own confidential information but no less than reasonable care; (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 its affiliates, employees, contractors, or advisors who have a need to know and are bound by confidentiality obligations at least as protective as those herein. Confidentiality obligations do not apply to information that: (i) is or becomes public through no breach by recipient; (ii) is rightfully received from a third party without restriction; (iii) is independently developed without use of Confidential Information; or (iv) is required to be disclosed by law, provided recipient gives prompt notice and attempts to limit such disclosure.

5. Intellectual Property and Deliverables

Unless otherwise agreed in writing, Service Provider retains ownership of all preexisting intellectual property and tools used in the performance of the Services. Subject to Client's payment in full, Service Provider grants Client a nonexclusive, nontransferable license to use deliverables provided under this Agreement for Client's internal business purposes. Rights to any third-party materials are subject to underlying third-party licenses.

6. Warranties; Limitation of Liability; Indemnification

Service Provider warrants that it will perform the Services in a professional and workmanlike manner consistent with industry standards. EXCEPT FOR THE FOREGOING, SERVICES ARE PROVIDED "AS IS" AND SERVICE PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. Each party shall indemnify and hold harmless the other party from claims, damages, and expenses arising from the indemnifying party's gross negligence, willful misconduct, or material breach of this Agreement.

7. Relationship of the Parties

Service Provider is an independent contractor and is solely responsible for its employees, agents, taxes, and benefits. Nothing in this Agreement creates an employment, partnership, joint venture, or agency relationship between the parties.

8. Governing Law; Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the state identified below, without regard to conflict of law principles. The parties shall attempt in good faith to resolve disputes promptly by negotiation between senior executives. If unresolved within thirty (30) days, disputes shall be submitted to binding arbitration in the agreed governing jurisdiction unless the parties mutually agree otherwise.

9. Entire Agreement; Amendments

This Agreement, including all exhibits and written statements of work incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral. Any amendment or modification of this Agreement must be in writing and signed by authorized representatives of both parties.

10. Notices

All notices required or permitted under this Agreement shall be in writing and sent to the addresses set forth above or to such other address as either party may specify in writing. Notices shall be deemed given upon personal delivery, confirmed delivery by nationally recognized courier, or three (3) business days after deposit with the postal service by certified mail, return receipt requested.

11. Miscellaneous

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. Neither party may assign this Agreement without the prior written consent of the other, except to a successor in connection with a merger, acquisition, or sale of substantially all assets. Headings are for convenience only and do not affect interpretation.

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