Legal PDOM Agreement

Legal PDOM Agreement

This PDOM Agreement ("Agreement") is entered into as of by and between , a corporation LLC other, with principal place of business at (hereinafter "Provider"); and , a corporation LLC other, with principal place of business at (hereinafter "Client"). Provider and Client are hereinafter each a "Party" and collectively the "Parties."

RECITALS

WHEREAS, Provider is engaged in the business of product development, operations, and maintenance services and possesses expertise, personnel and resources to perform activities described under this Agreement; and

WHEREAS, Client desires to retain Provider to perform certain product development, operations, deployment and maintenance services (collectively, "PDOM Services") described in this Agreement, and Provider desires to provide such services under the terms and conditions set forth herein; and

WHEREAS, the Parties intend by this Agreement to set forth their respective rights, obligations and allocation of risks with respect to the PDOM Services.

NOW, THEREFORE

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1.1 "Deliverables" means the tangible or intangible items to be delivered by Provider to Client as described in Section 2 and in any Statement of Work executed under this Agreement. 1.2 "Confidential Information" has the meaning set forth in Section 6. 1.3 "Acceptance Period" means the period set forth in Section 3.2 during which Client may review and reject Deliverables.

2. SCOPE OF PDOM SERVICES

2.1 Provider shall perform the PDOM Services described in the Statement of Work attached or incorporated by reference and any subsequent Statements of Work signed by authorized representatives of both Parties. Each Statement of Work shall describe the scope, milestones, Deliverables, schedule and acceptance criteria.

3. DELIVERABLES AND ACCEPTANCE

3.1 Provider shall deliver Deliverables in accordance with the schedule in the applicable Statement of Work. Provider shall use commercially reasonable efforts to meet all milestones. 3.2 Upon delivery, Client shall have days (Acceptance Period) to inspect and either accept the Deliverable in writing or provide written notice of deficiencies. If Client fails to provide notice within the Acceptance Period, the Deliverable shall be deemed accepted.

4. FEES, INVOICING AND PAYMENT

4.1 Client shall pay Provider the fees set forth in the applicable Statement of Work. Unless otherwise specified, fees are due within days of invoice receipt. 4.2 All fees are exclusive of taxes; Client shall be responsible for any applicable sales, use or other taxes arising from the transactions hereunder except taxes based on Provider's net income.

5. INTELLECTUAL PROPERTY

5.1 Unless otherwise agreed in writing, Provider hereby assigns to Client all right, title and interest in and to Deliverables created specifically for Client under this Agreement, subject to Client's timely payment of fees. Provider retains ownership of Provider's pre-existing tools, methods, know-how and software ("Provider Materials"). 5.2 Client grants Provider a non-exclusive, non-transferable license to use Client Materials solely as necessary to perform the PDOM Services.

6. CONFIDENTIALITY

6.1 Each Party shall hold Confidential Information of the other Party in strict confidence and shall not disclose it to any third party except as necessary to perform the obligations under this Agreement or as required by law. 6.2 Confidential Information does not include information that is (a) publicly known through no breach by the receiving Party, (b) rightfully received from a third party without restriction, or (c) independently developed without use of the disclosing Party's Confidential Information. 6.3 Upon termination or expiration, each Party shall return or destroy the other Party's Confidential Information, subject to permitted archival copies.

7. TERM AND TERMINATION

7.1 Term. This Agreement commences on the Effective Date and continues until the later of completion of all Statements of Work or termination in accordance with this Section. 7.2 Termination for Convenience. Either Party may terminate upon days' prior written notice. 7.3 Termination for Cause. Either Party may terminate if the other Party materially breaches this Agreement and fails to cure within 30 days after written notice of such breach.

8. REPRESENTATIONS AND WARRANTIES

8.1 Each Party represents that it has the full corporate power and authority to enter into and perform its obligations under this Agreement. 8.2 Provider warrants that the PDOM Services will be performed in a professional and workmanlike manner consistent with industry standards. Except as expressly set forth herein, Provider disclaims all other warranties, express or implied.

9. INDEMNIFICATION

9.1 Provider Indemnity. Provider shall indemnify, defend and hold Client harmless from and against any third-party claim alleging that a Deliverable infringes a third party's issued intellectual property right, provided Client promptly notifies Provider and allows Provider to control the defense and settlement, except that Provider shall not be liable for indemnity to the extent the claim arises from Client's specifications or modifications. 9.2 Client Indemnity. Client shall indemnify Provider against claims arising from Client Materials or Client's misuse of the Deliverables.

10. LIMITATION OF LIABILITY

Except for liability resulting from gross negligence, willful misconduct, or indemnity obligations, neither Party shall be liable for 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 fees paid or payable by Client to Provider under the applicable Statement of Work during the twelve (12) months preceding the event giving rise to the claim.

11. INSURANCE

Provider shall maintain commercial general liability and professional liability insurance with limits customary in the industry and shall provide certificates of insurance upon reasonable request.

12. NOTICES

All notices under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as either Party may designate by notice. Notices shall be deemed given when delivered personally, sent by certified mail, return receipt requested, or by nationally recognized overnight courier.

13. AMENDMENTS; WAIVER; COUNTERPARTS

13.1 This Agreement may be amended only by a written instrument signed by authorized representatives of both Parties. 13.2 No waiver of any breach or right shall be effective unless in writing and signed by the waiving Party. 13.3 This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument.

14. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction specified below without regard to its choice-of-law principles.

15. ENTIRE AGREEMENT

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

16. SEVERABILITY

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

17. MISCELLANEOUS

17.1 Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign to an affiliate or in connection with a merger or sale of substantially all assets. 17.2 Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement shall create a partnership, joint venture, agency or employment relationship.

IN WITNESS WHEREOF, the Parties have executed this Agreement by their duly authorized representatives as of the dates set forth below.

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