Software Porting Agreement

SOFTWARE PORTING AGREEMENT

This Software Porting Agreement (the Agreement) is entered into as of Effective Date: by and between Client Name: and Vendor Name: .

RECITALS

WHEREAS, Client possesses software, source code, or related materials identified in Exhibit A (the Client Software) that Client desires to have ported to a new target environment or platform; and

WHEREAS, Vendor represents that it has the technical expertise and resources to perform porting services (the Porting Services) and to deliver ported software and related deliverables under the terms of this Agreement; and

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows.

SCOPE OF WORK

PAYMENT TERMS

Total Fee: $ payable in accordance with the schedule below.

Deposit Amount: $ due on or before .

Final Payment Due: $ due within days following Client acceptance.

Late Fee: A late payment shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, plus reasonable collection costs. Specify negotiated late fee percentage: %

TERM AND TERMINATION

Term Commencement Date: . Termination Date: , unless earlier terminated in accordance with this Agreement.

Either party may terminate this Agreement for material breach by the other party that remains uncured for days after written notice. Either party may also terminate for convenience upon days' prior written notice.

CONFIDENTIALITY

Each party shall keep confidential all Nonpublic Information disclosed by the other party in connection with this Agreement ("Confidential Information"). Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement; (b) was rightfully known to the receiving party without restriction prior to disclosure; (c) is rightfully received from a third party without restriction; or (d) is independently developed without use of Confidential Information. The receiving party will use 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.

INTELLECTUAL PROPERTY

Ownership of Pre-Existing Materials: Client retains all right, title and interest in and to the Client Software and any Pre-Existing Materials provided to Vendor. Vendor retains all right, title and interest in its tools, libraries, and pre-existing software not specially developed for Client.

Ported Deliverables: Upon receipt of full payment under this Agreement, Vendor assigns to Client all worldwide right, title and interest in and to any new code, documentation, and deliverables that are specifically created by Vendor under this Agreement and that incorporate modifications to the Client Software, except for Vendor's pre-existing tools and third-party components licensed to Vendor. If applicable law does not permit assignment, Vendor grants to Client a perpetual, irrevocable, worldwide, royalty-free license to use, reproduce, modify and distribute the Ported Deliverables.

WARRANTIES; LIMITATION OF LIABILITY

Vendor warrants that the Porting Services will be performed in a professional and workmanlike manner consistent with industry standards for similar services. EXCEPT FOR THE FOREGOING, THE SERVICES AND DELIVERABLES ARE PROVIDED "AS IS" WITHOUT OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Limitation of Liability: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR (A) CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES; OR (B) DAMAGES IN EXCESS OF THE AMOUNTS PAID BY CLIENT TO VENDOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, EXCEPT FOR LIABILITY ARISING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OR INFRINGEMENT INDEMNITY OBLIGATIONS.

INDEMNIFICATION

Vendor shall defend, indemnify and hold harmless Client from and against any third-party claim alleging that the Ported Deliverables infringe any valid third-party intellectual property right, provided that Client promptly notifies Vendor in writing of the claim, permits Vendor to control the defense and settlement, and reasonably cooperates. Client shall indemnify Vendor for claims arising from Client's breach of representations or misuse of the Ported Deliverables.

NOTICES

GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to its conflicts of law principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in that state for disputes arising under this Agreement.

ENTIRE AGREEMENT

This Agreement, together with any exhibits and mutually executed statements of work, 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 written or oral. Any amendment must be in writing and signed by authorized representatives of both parties.

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