OMCF Services Agreement

OMCF Services Agreement

This Services Agreement ("Agreement") is entered into as of by and between Service Provider: with a principal place of business at , and Client: with a principal place of business at .

RECITALS

WHEREAS, Service Provider specializes in providing the services described in this Agreement and has the experience, personnel, and resources necessary to perform such services; and

WHEREAS, Client desires to engage Service Provider to perform certain services and Service Provider is willing to perform those services pursuant to the terms and conditions set forth herein; and

WHEREAS, the parties desire to set forth the terms and conditions under which Service Provider will provide services to Client.

NOW, THEREFORE, in consideration of the mutual covenants set forth below, the parties agree as follows:

1. SCOPE OF SERVICES

1.1 Services. Service Provider shall perform the services described in Exhibit A attached hereto and incorporated by reference (the "Services"). If Exhibit A is incomplete at execution, the parties shall complete the Services description as follows:

1.2 Changes. Client may request changes to the Services. Service Provider shall notify Client in writing of any change in schedule, fees, or scope resulting from requested changes and shall not proceed with the change until the parties execute a written change order signed by authorized representatives of both parties.

2. TERM

2.1 Term. The term of this Agreement shall commence on and continue until unless earlier terminated in accordance with Section 11.

2.2 Renewal. This Agreement shall . Renewal terms, if any, shall be as set forth in a written amendment signed by both parties.

3. FEES AND PAYMENT

3.1 Fees. Client shall pay Service Provider the fees set forth in Exhibit B. Unless otherwise specified, fees for Services shall be: . The agreed maximum not-to-exceed amount for the initial term is .

3.2 Invoices and Payment Terms. Service Provider shall submit invoices to Client monthly unless otherwise agreed. Client shall pay each undisputed invoice within days of receipt. Late payments shall accrue interest at , or the maximum permitted by law, whichever is less.

4. CONFIDENTIALITY

4.1 Definition. "Confidential Information" means information disclosed by either party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business plans, technical data, and trade secrets.

4.2 Obligations. Each party shall (a) use Confidential Information solely for performance under this Agreement; (b) restrict disclosure to employees, contractors, and agents who have a need to know and who are bound by confidentiality obligations no less protective than those herein; and (c) exercise at least the same degree of care to protect Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care.

5. INTELLECTUAL PROPERTY

5.1 Pre-Existing IP. Each party retains all right, title and interest in its pre-existing intellectual property. Nothing in this Agreement transfers ownership of a party's pre-existing intellectual property.

5.2 Deliverables. Subject to Client's payment of all amounts due, Service Provider assigns to Client all right, title and interest in and to deliverables created specifically for Client under this Agreement, to the extent assignable. Service Provider retains ownership of its underlying methodologies, know-how, tools, and general skills.

6. REPRESENTATIONS AND WARRANTIES

6.1 Mutual Representations. Each party represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations.

6.2 Service Provider Warranties. Service Provider warrants that the Services will be performed in a professional and workmanlike manner consistent with industry standards. For any breach of this warranty, Service Provider's sole obligation shall be to re-perform nonconforming Services at no additional charge or, if re-performance is not commercially reasonable, to refund the fees paid for such Services.

7. INDEMNIFICATION

7.1 By Service Provider. Service Provider shall indemnify, defend and hold Client harmless from and against any third-party claims, liabilities, damages and costs arising out of Service Provider's gross negligence, willful misconduct or material breach of this Agreement, except to the extent caused by Client's negligence or willful misconduct.

7.2 By Client. Client shall indemnify, defend and hold Service Provider harmless from and against any third-party claims arising out of Client-provided materials, Client's misuse of the Deliverables, or Client's breach of this Agreement.

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 consequential, incidental, special, punitive or exemplary damages. The aggregate liability of each party arising out of or related to this Agreement shall not exceed or the total fees paid under this Agreement during the prior twelve (12) months, whichever is less.

9. INSURANCE

10. TERMINATION

10.1 Termination for Convenience. Either party may terminate this Agreement for convenience upon days' prior written notice to the other party.

10.2 Termination for Cause. Either party may terminate this Agreement for material breach if the breaching party fails to cure such breach within days after receipt of written notice specifying the breach.

10.3 Effect of Termination. Upon termination, Client shall pay Service Provider for Services performed through the effective date of termination and for non-cancellable commitments reasonably incurred. Sections concerning confidentiality, indemnification, limitation of liability, ownership of intellectual property, and payment shall survive termination.

11. COMPLIANCE WITH LAWS; DATA PROTECTION

Each party shall comply with all applicable laws, regulations and codes in performing its obligations. To the extent Service Provider processes personal data on behalf of Client, the parties shall implement reasonable administrative, physical and technical safeguards to protect such data and shall process such data only on documented instructions from Client.

12. ASSIGNMENT AND SUBCONTRACTING

Neither party may assign this Agreement without the prior written consent of the other party, except that Service Provider may assign to an affiliate or in connection with a merger or sale of substantially all of its assets. Service Provider may subcontract portions of the Services provided that Service Provider remains responsible for performance and compliance with this Agreement.

13. NOTICES

Notices under this Agreement shall be in writing and delivered to the addresses set forth below (or to such other address as a party may designate by written notice). Notices shall be deemed given upon personal delivery, two business days after deposit in certified mail, or one business day after delivery to an overnight courier.

14. AMENDMENTS; WAIVER

No amendment to this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. No failure or delay in exercising any right shall operate as a waiver of that right unless a waiver is in writing and signed by the waiving party.

15. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one agreement. Signatures delivered by electronic means that reproduce a party's signature shall be deemed original signatures for purposes of this Agreement.

16. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, together with all exhibits and schedules hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

17. GOVERNING LAW

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

18. MISCELLANEOUS

18.1 Relationship of Parties. The parties are independent contractors. Nothing in this Agreement constitutes a partnership, joint venture, employment, or agency relationship. Neither party may bind the other without the other's prior written consent.

18.2 Remedies. Except as otherwise expressly provided in this Agreement, the remedies provided herein are cumulative and not exclusive of any remedies available at law or equity.

18.3 Force Majeure. Neither party shall be liable for delays or failures in performance due to causes beyond its reasonable control, provided the affected party gives prompt notice and uses commercially reasonable efforts to resume performance.

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