Legal Phobos Agreement

LEGAL PHOBOS AGREEMENT

This Legal Phobos Agreement ("Agreement") is made as of by and between Party A: (entity type: Corporation LLC Other ), with principal place of business at ; and Party B: (entity type: Corporation LLC Other ), with principal place of business at . Each a "Party" and collectively the "Parties."

RECITALS

WHEREAS, Party A has developed certain software, services, proprietary processes and related documentation designated generally as "Phobos" and related technology, including enhancements and derivative works (the "Phobos Technology");

WHEREAS, Party B desires to obtain a license to use, or wishes to engage Party A to develop, integrate or customize aspects of the Phobos Technology for Party B's internal business purposes, and Party A is willing to grant such rights and perform such services on the terms set forth herein; and

WHEREAS, the Parties intend to set forth their respective rights, obligations, payment terms and protections with respect to the Phobos Technology and any deliverables arising from development or services.

NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the sufficiency of which is acknowledged, the Parties agree as follows.

1. DEFINITIONS

1.1 "Confidential Information" means non-public information disclosed by a disclosing Party to a receiving Party that is identified as confidential or that, by its nature, should reasonably be considered confidential, including trade secrets, business plans, source code, object code, algorithms, customer lists, pricing and marketing information, and technical documentation. Confidential Information does not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the receiving Party; (b) was known to the receiving Party prior to disclosure as evidenced by written records; (c) is rightfully received from a third party without restriction; or (d) is independently developed by the receiving Party without use of the disclosing Party's Confidential Information.

1.2 "Deliverables" means the tangible or intangible work product, documentation, software, modifications, enhancements or other materials that Party A delivers to Party B under this Agreement, as described in the Statement of Work.

2. SCOPE OF RIGHTS AND SERVICES

2.1 Grant. Subject to the terms and conditions of this Agreement, Party A hereby grants to Party B a non-exclusive, non-transferable, revocable (subject to Section 4) license to use the Phobos Technology and any Deliverables solely for Party B's internal business purposes as set forth in the Statement of Work. Any rights not expressly granted are reserved by Party A.

2.2 Services. Party A shall perform the services described in the Statement of Work in a professional and workmanlike manner consistent with industry standards. The Statement of Work shall set forth milestones, acceptance criteria and any specific Deliverable descriptions. Party B's acceptance of Deliverables shall be governed by the acceptance procedures set forth in the Statement of Work.

2.3 Restrictions. Party B shall not: (a) reverse engineer, decompile or disassemble the Phobos Technology except to the extent permitted by applicable law notwithstanding this prohibition; (b) remove any proprietary notices; or (c) sublicense, sell, rent, lease, distribute, or otherwise transfer the Phobos Technology or Deliverables to third parties except as expressly permitted in writing by Party A.

3. COMPENSATION

3.1 Fees. In consideration for the rights and services granted under this Agreement, Party B shall pay Party A the fees set forth in the applicable Statement of Work. The initial fee is payable in accordance with the payment schedule.

3.2 Invoicing and Payment. Party A shall invoice Party B according to the milestones set out in the Statement of Work. Unless otherwise agreed, payments are due within days of invoice. Late payments shall accrue interest at a rate of per month or the maximum rate permitted by law, whichever is less.

4. TERM AND TERMINATION

4.1 Term. The term of this Agreement shall commence on the Effective Date and continue for a period of years, unless earlier terminated in accordance with this Section.

4.2 Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and fails to cure such breach within days after receipt of written notice specifying the breach.

4.3 Effect of Termination. Upon termination, Party B shall cease all use of the Phobos Technology and return or destroy Confidential Information of Party A in accordance with Party A's written instructions. Termination does not relieve Party B of its obligation to pay fees accrued prior to termination, nor does it limit any equitable remedies available to Party A.

5. CONFIDENTIALITY

5.1 Non-Disclosure. Each receiving Party shall hold in confidence and not disclose to third parties, except as permitted herein, the disclosing Party's Confidential Information. The receiving Party shall use the same degree of care to protect the disclosing Party's Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care.

5.2 Duration. The obligations of confidentiality shall survive termination or expiration of this Agreement for a period of years, except that trade secrets shall remain protected for as long as they qualify as trade secrets under applicable law.

6. INTELLECTUAL PROPERTY

6.1 Ownership. Except as expressly set forth herein, Party A retains all right, title and interest in and to the Phobos Technology, including all patent, copyright, trade secret and other intellectual property rights. Party B retains ownership of its pre-existing materials and any data provided by Party B.

6.2 Deliverables. Subject to full payment of all fees due, Party A grants Party B a perpetual, non-exclusive, non-transferable license to use the Deliverables for the permitted purposes set forth in the Statement of Work, except that underlying Party A pre-existing materials and third-party components remain the property of Party A or the applicable third party.

6.3 Feedback. Any feedback, suggestions or improvements provided by Party B regarding the Phobos Technology shall be the exclusive property of Party A, and Party B hereby assigns all rights thereto to Party A.

7. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

7.1 Mutual Representations. Each Party represents and warrants that it has the full corporate power and authority to enter into this Agreement and to perform its obligations hereunder, and that performance will not violate any material agreement or law to which it is subject.

7.2 Limited Warranty. Party A warrants that the services will be performed in a professional and workmanlike manner in accordance with industry standards. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PHOBOS TECHNOLOGY AND DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

8. INDEMNIFICATION

8.1 By Party A. Party A shall indemnify, defend and hold harmless Party B from and against any third-party claim alleging that the Phobos Technology, as delivered by Party A and used in accordance with this Agreement, infringes a third party's issued patent, copyright or trade secret, provided Party B gives Party A prompt written notice, sole control of the defense and settlement of the claim, and reasonable assistance and information requested by Party A.

8.2 Remedies. If an infringement claim is made, Party A may, at its option and expense: (a) obtain the right for Party B to continue using the Phobos Technology; (b) replace or modify the Phobos Technology to make it non-infringing while maintaining substantially equivalent functionality; or (c) if neither (a) nor (b) is commercially reasonable, terminate the license and refund a prorated portion of prepaid fees for any terminated portion.

9. LIMITATION OF LIABILITY

9.1 Exclusion of Damages. EXCEPT FOR A BREACH OF CONFIDENTIALITY, WILLFUL MISCONDUCT, OR LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Aggregate Cap. THE AGGREGATE LIABILITY OF EACH PARTY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO OR THE TOTAL AMOUNTS PAID BY PARTY B TO PARTY A DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM, WHICHEVER IS LESS.

10. INSURANCE

Party A shall maintain insurance appropriate to the services provided, including commercial general liability and, if applicable, professional liability/errors and omissions insurance, in commercially reasonable amounts. Upon request, Party A shall provide certificates of insurance to Party B.

11. NOTICES

Notices to Party A

Notices to Party B

Notices shall be in writing and deemed given when delivered in person, sent by nationally recognized overnight courier, or sent by certified mail, return receipt requested, to the addresses set forth above or to such other address as a Party may designate by notice in accordance with this Section.

12. AMENDMENTS; WAIVER

12.1 Amendments. No amendment or modification of this Agreement shall be effective unless in writing and signed by authorized representatives of both Parties.

12.2 Waiver. No failure or delay by either Party in exercising any right under this Agreement shall operate as a waiver of such right, nor shall any single or partial exercise of any right preclude any other or further exercise of that right.

13. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of without regard to conflict of law principles. The Parties agree that the state and federal courts located in that jurisdiction shall have exclusive venue for any disputes that are not subject to binding arbitration.

14. ENTIRE AGREEMENT

This Agreement, together with all Statements of Work and written attachments 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, negotiations and communications, whether oral or written.

15. SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable under applicable law, such provision shall be deemed modified to the minimum extent necessary to make it enforceable, and the remaining provisions of this Agreement shall remain in full force and effect.

16. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. Signatures delivered by electronic means shall be binding.

17. ADDITIONAL PROVISIONS

17.1 Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement without the other Party's prior written consent, except that Party A may assign this Agreement in connection with a merger or sale of substantially all of its 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 between them.

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