Outsourcing Agreement (No. 1)

OUTSOURCING AGREEMENT

This Outsourcing Agreement (“Agreement”) is made as of this ___ day of _____, 200__ (“Effective Date”), by and between _________________________ (“Vendor”) and _______________________________________________ (“Customer”).

The parties agree as follows:

1. SCOPE OF WORK

1.1. SERVICES. “Services” means the services to be performed by Vendor as set forth in each mutually agreed upon and executed Statement of Work (each a “Statement of Work”). Each Statement of Work entered into by the parties shall reference this Agreement and shall be attached hereto and made a part of this Agreement; provided, however, the contents of any Statement of Work shall take precedence over any conflicting provision in this Agreement to the extent necessary to resolve any such conflict. Vendor shall perform the specified Services during the term provided for in such Statement of Work.

1.2. RELATIONSHIP OF THE PARTIES. Vendor shall be deemed an independent contractor of Customer. As between Vendor and Customer, all persons retained by Vendor to perform Services for Customer hereunder shall be employees or contractors of Vendor and shall not be employees or contractors of Customer.

1.3. PLACE OF WORK. Customer understands and agrees that some or all of the Services may be performed from, through or using a location outside the United States, using employees or contractors of Vendor.

2. CUSTOMER RESPONSIBILITIES

2.1. COOPERATION. Customer shall cooperate with Vendor by providing to Vendor such information and documents and access to Customer's personnel as reasonably required by Vendor to perform the Services specified in a Statement of Work.

3. FEES AND PAYMENTS

3.1. FEES. The fees for Vendor's Services will be charged in U.S. dollars on the terms and at the rates specified in the applicable Statement of Work.

3.2. EXPENSES. Customer shall reimburse Vendor for all actual expenses that are authorized by Customer in an applicable Statement of Work or otherwise agreed in writing in advance, reasonably incurred by Vendor and Vendor personnel in the course of performing the Services hereunder and evidenced by receipts provided to Customer (“Expenses”).

3.3. INVOICES. Unless otherwise specified in the applicable Statement of Work, Vendor will invoice Customer monthly (“Invoice Period”) for the Services furnished and Expenses incurred during the immediately preceding Invoice Period. Invoices for Services rendered on a time-and-materials basis will indicate a breakdown and distribution of charges, by individual, at the rates specified in the applicable Statement of Work. Statements of Work for Services rendered on a fixed-fee basis will indicate the basis upon which the fees are due and payable (e.g., milestones achieved or dates reached).

3.4. TAXES. In addition, Customer shall be responsible for paying any applicable sales, use, excise, value added, or similar taxes, duties, or assessments imposed upon the Services rendered hereunder by any federal, state, local, or foreign government authority, exclusive of any taxes based upon Vendor's income or payroll.

3.5. PAYMENTS. Each invoice shall be due and payable to Vendor, at the address specified in the preamble to this Agreement, in U.S. dollars within thirty (30) calendar days after receipt of such invoice and any past due undisputed amounts shall thereafter accrue interest, until paid, at the maximum interest rate permitted under applicable law.

3.6. NO OTHER CHARGES. Except as expressly set forth in this Agreement, including in an applicable Statement of Work, there shall be no charges, fees, expenses, costs or other amounts payable by Customer in respect of the Services.

3.7. COMPENSATION OF VENDOR'S PERSONNEL. Vendor shall bear sole responsibility for the payment of compensation to its personnel and contractors. Vendor shall pay and report, for all personnel assigned to Customer' work, any employment-related taxes or charges applicable to such personnel as employees of Vendor. Vendor shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such personnel may be entitled.

4. OWNERSHIP

4.1. CUSTOMER PROPERTIES. As between Vendor and Customer, Customer will at all times be and remain the sole and exclusive owner of any documents or other tangible or intellectual property (“Customer Properties”) provided by Customer to Vendor under this Agreement.

4.2. VENDOR PROPERTIES. Any software, designs, content, methodologies, techniques, processes, inventions, materials or other deliverables developed in whole or in part by Vendor or its contractors, or otherwise provided to Customer in connection with this Agreement (and associated intellectual property rights) shall be the property of Vendor (“Vendor Properties”). As between Vendor and Customer, Vendor shall at all times be and remain the sole and exclusive owner of the Vendor Properties.

5. CONFIDENTIALITY

5.1. GENERAL. In the performance of this Agreement or in contemplation thereof, each party and its employees, agents and contractors may have access to confidential information owned or controlled by the other party (hereinafter “Confidential Information”). All Confidential Information supplied by one party to the other which is clearly marked “Confidential” or which is derived therefrom shall remain the exclusive property of the party supplying same. The receiving party shall use a reasonable degree of care, which in any event shall not be less than the same degree of care which the receiving party uses to protect its own confidential and confidential information, to keep, and have its employees and agents keep, confidential any and all Confidential Information. In keeping therewith, the recipient shall not copy or publish or disclose the Confidential Information to others, or authorize its employees, or agents or anyone else to copy, publish or disclose it to others, without the disclosing party’s written approval, nor shall the receiving party make use of the Confidential Information except for the purposes of executing its obligations hereunder, and shall return the Confidential Information to the disclosing party at its request. The parties agree that the Vendor Properties and the Customer Properties shall be deemed Confidential Information, as are all documentation, descriptions, and embodiments thereof.

5.2. LIMITATIONS ON CONFIDENTIALITY OBLIGATIONS. These nondisclosure obligations will not apply to Confidential Information which: (a) becomes generally known to the public by publication or by any means other than a breach of duty on the party of the recipient hereunder; (b) is information previously known to the recipient; (c) is information independently developed by or for the recipient; or (d) is information released by the owning party without restriction or released pursuant to a judicial or governmental decree. If required by order of any government authority, recipient may disclose to such authority the other party’s Confidential Information to the extent required by such order, provided that recipient shall first use its best efforts to obtain a protective order reasonably satisfactory to the disclosing party sufficient to maintain the confidentiality of such data, information, or materials.

6. INDEMNIFICATION

6.1. INTELLECTUAL PROPERTY. If either party (each, as applicable, an “Indemnitee”) becomes subject to a claim against it that any portion of the Properties supplied by the other party (an “Indemnitor”) (i.e., the Customer Properties in the case of Customer as Indemnitor, and the Vendor Properties or Deliverables, in the case of Vendor as Indemnitor) infringes a proprietary right of a third party, the Indemnitor shall, with respect to and to the extent of the portion of the claim pertaining to such Property, at its sole expense, defend, indemnify and hold harmless the Indemnitee with respect to such claim and all costs, expenses (including reasonable attorneys' fees), fines, penalties, deficiencies, losses, liabilities (including settlements and judgments) resulting from, arising from or relating to such claim. THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

7. REPRESENTATIONS AND WARRANTIES

7.1. REPRESENTATIONS AND WARRANTIES OF CUSTOMER.

7.1.1. RIGHTS AND TITLES. Customer hereby represents and warrants that it has and for the duration of this Agreement shall have all rights required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.

7.2.1. PRIVACY LAWS. Customer hereby represents and warrants that the information to be provided to Vendor in connection with the Services is not subject to any U.S. privacy laws or regulations and can be processed outside the United States without violation of any U.S. privacy laws or regulations.

7.2. REPRESENTATIONS AND WARRANTIES OF VENDOR.

7.2.1. RIGHTS AND TITLES. Vendor hereby represents and warrants that it has and for the duration of this Agreement shall have all rights, titles or interests in the Vendor Properties and Deliverables required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.

7.2.2. SERVICES. Vendor further represents and warrants that the Services provided under this Agreement will be of commercially reasonable quality in accordance with any specifications or requirements set forth in a Statement of Work and will be performed in a good and workmanlike manner and in accordance with industry standards. Any claim for breach of Vendor's warranties under this Section 7.2.2 must be made, by written notice to Vendor, within sixty (60) days following the date of completion of the Services for which the claim is made. Vendor shall have a thirty (30) day period following receipt of any such notice in which to cure a breach. Customer’s sole and exclusive remedy for any breach of this Section 7.2.2 shall be for Vendor to reperform the Services that are the subject of the written notice.

7.2.3. COMPLIANCE WITH LAW. Vendor is and for the duration of this Agreement shall be in compliance with all federal, state, local and foreign laws, governmental regulations, rules and requirements and binding administrative and court orders (collectively “Laws”) applicable to Vendor, including all Laws applicable to its provision of the Services.

7.3. NO OTHER WARRANTY. EXCEPT AS PROVIDED IN THIS AGREEMENT, (A) NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND (B) WITHOUT LIMITING VENDOR'S OBLIGATION TO DELIVER THE SERVICES AND/OR DELIVERABLES SET FORTH IN A STATEMENT OF WORK, VENDOR MAKES NO GUARANTEES WITH REGARD TO THE RESULTS OBTAINED FROM THE OPERATION OR USE BY CUSTOMER OF THE CUSTOMER PROPERTIES OR VENDOR PROPERTIES. THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS MADE FOR THE BENEFIT OF CUSTOMER ONLY.

8. LIMITATION OF LIABILITY

8.1. VENDOR'S OR CUSTOMER'S LIABILITY FOR ANY REASON (EXCLUDING CUSTOMER'S LIABILITY FOR PAYMENT OF VENDOR'S SERVICES FEES) AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO VENDOR UNDER THE APPLICABLE STATEMENT OF WORK DURING THE PREVIOUS SIX (6) MONTHS.

8.2. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.3. THE FOREGOING LIMITATIONS OF LIABLITY (INCLUDING THE DAMAGES CAP AND THE EXCLUSIONS SET FORTH IN THE IMMEDIATELY PRECEDING TWO PARAGRAPHS) SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, A BREACH OF THE CONFIDENTIALITY AGREEMENT, OR DAMAGES CAUSED BY GROSS NEGLIGENCE, RECKLESS CONDUCT OR WILLFUL MISCONDUCT.

9. TERM AND TERMINATION

9.1. The term of this Agreement shall commence on the Effective Date set forth above and, unless earlier terminated in accordance with this Section 9, shall continue through the end of the last extant Statement of Work.

9.2. This Agreement may be terminated (a) by either party if the other party defaults in the performance of any of its material obligations (or repeatedly defaults in the performance of any of its other obligations) under this Agreement (i) upon at least thirty (30) days' notice to the breaching party if such default is capable of being cured and the breaching party does not cure such default within thirty (30) days from the non-breaching party's default notice or (ii) immediately upon notice to the breaching party if such default is not capable of being cured, and (b) by either party upon notice received 90 days prior to the end of the then current term; provided that this Agreement shall not be terminated under this clause (b) with respect to all outstanding Statements of Work until such Statements of Work expire or are completed or terminated in accordance with their terms, including any notice requirements provided therein. Customer' obligation to make payment for Services performed by Vendor prior to termination shall survive any termination of this Agreement.

9.3 RETURN OF CUSTOMER PROPERTIES. Upon the expiration or termination of a Statement of Work (a) any and all licenses granted to Vendor to perform Services under such Statement of Work, shall automatically terminate, and (b) Vendor shall deliver to Customer, in the manner requested by Customer all of the Customer Properties (including all Deliverables, whether completed or in-progress) relating to such Statement of Work in the form then in use.

10. GENERAL

11.1. COMPLETE AGREEMENT. This Agreement, including any Statements of Work hereunder, is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument executed by authorized representatives of the parties. The pre-printed terms and conditions of any purchase order or other ordering document issued by either party in connection with this Agreement shall not be binding on the other party and shall not be deemed to modify this Agreement.

11.2. NO WAIVER. No failure to exercise, and no delay in exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any party's exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any other right hereunder.

11.3. ENFORCEABILITY. If any part of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.

11.4. FORCE MAJEURE. Either party shall be excused from performance and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any events beyond the reasonable control either of the excused party or its subcontractors or suppliers, for as long as such event continues and the excused party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means.

11.5. NOTICES. Any notice required or permitted hereunder to the parties hereto will be deemed to have been duly given only if in writing to the address of the receiving party as set forth on the initial page hereof or such other address as may be specified by such party in a notice delivered to the other party in accordance with this Section and delivered by: (i) certified U.S. mail, return receipt requested, postage prepaid; (ii) nationally recognized overnight courier, delivery charges prepaid; or (iii) by hand delivery with signed receipt. Any notice shall be deemed delivered: (a) on the fifth (5th) business day following deposit of such notice with the U.S. Postal Service if notice is given in accordance with (i), above; (b) on the second (2nd) business day following deposit of such notice with the courier if notice is given in accordance with (ii), above; or (c) on the date of actual delivery if notice is given in accordance with (iii), above.

11.6. GOVERNING LAW, JURISDICTION AND VENUE. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the Laws of the State of [State], excluding its choice of law principles.

11.7. ASSIGNMENT. Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to a successor in interest to substantially all of the business of that party to which this Agreement relates. An assignee of either party authorized hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement.

11.8. SUBCONTRACTING. Vendor shall have the right to subcontract some or all of the Services specified in a Statement of Work to an individual or entity located outside the United States. No subcontracting shall release Vendor from its responsibility for its obligations under this Agreement. Vendor shall be responsible for the work and activities of each of its contractors, including compliance with the terms of this Agreement. Vendor shall be responsible for all payments to its contractors. Vendor shall enter into confidentiality agreements with any contractors with provisions at least as restrictive as the provisions of Section 5 of this Agreement.

11.9. EXPORT. Vendor shall not knowingly export or re-export any personal computer system, part, technical data or sub-elements under this Agreement, directly or indirectly, to any destinations prohibited by the United States Government. The term “technical data” in this context, means such data as is defined as technical data by applicable United States export regulations.

11.16. SURVIVAL. Each of the provisions of this Agreement shall remain in full force and effect through the End Date of this Agreement, and the terms which by their nature should survive, shall survive such End Date. The “End Date” shall be the effective date of the expiration or termination of this Agreement.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

VENDOR

By: _______________________________________

Name: ______________________________________

Title: _____________________________________

CUSTOMER

By: ________________________________________

Name: ______________________________________

Title: _____________________________________