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  1. BACKGROUND
    1. WHEREAS, Consultant provides .NET consulting, application development, service oriented architecture (SOA), e-Commerce solutions, content management solutions, collaboration solutions, including SharePoint, and distributed application development services; and WHEREAS, the Company wishes to utilize Consultant’s services in accordance with the terms and conditions hereof.
    2. NOW, THEREFORE, in furtherance of the foregoing and in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
  2. DEFINITIONS
    1. 2.1. An “Assignment Order” is a mutually acceptable statement of work that sets forth the agreed-upon scope of Services, the Specifications, any obligations to be performed by Consultant in connection with such Services, and Deliverables (if any) to be produced by the Consultant.
    2. 2.2. “Deliverables” means any work product prepared for Company by Consultant in accordance with and satisfying the terms of a particular Assignment Order.
    3. 2.3. “Services” means the consulting and/or technical services provided by Consultant in accordance with the provisions of this Agreement and set forth in a particular Assignment Order.
    4. 2.4. “Specifications” means the mutually agreed performance requirements set forth in a particular Assignment Order.
  3. SERVICES
    1. 3.1. No Obligation. By executing this Agreement, Company is not committing or obligating itself to issue any Assignment Orders or use any Services, and no work or charges shall be authorized until a written Assignment Order is executed by both Parties.
    2. 3.2. Assignment Orders. From time to time during the Term, Company may request Consultant to perform Services. The terms and conditions applicable to the performance of such Services will be set forth in one or more Assignment Orders. An Assignment Order must be authorized in writing signed by both Parties and shall include terms, including, without limitation, those establishing a schedule and anticipated completion date or similar termination event. Each Assignment Order will be numbered sequentially and, when executed by the Parties, will be considered an addendum of this Agreement and incorporated herein.
    3. 3.3. Change Requests. Changes in the scope of the Services, Specifications, or Deliverables requested by Company in a particular Assignment Order or caused by changing conditions of law, schedule delays, or other events beyond Consultant’s reasonable control may require revisions to the amounts owed by Company and payable to Consultant for Services and may also require changes to the date of performance or completion. If at any time Consultant concludes that the work it must perform to meet its obligations under any Assignment Order will exceed the agreed-upon scope of work as described in the Assignment Order so as to thereby justify an increase in compensation or time required for completion, Consultant shall notify Company, in writing, of the nature of the work and the estimated hours necessary to complete the work and Company will in good faith consider and discuss the proposed change with Consultant. Such changes in the Services, Specifications, and/or Deliverables set forth under an Assignment Order shall become effective only when a writing outlining such changes is executed by both Parties (each a “Change Order”). Company’s decision to not timely execute a Change Order gives Consultant the authority to cancel the related Assignment Order at no penalty to Consultant and, in such event, (a) Company shall pay Consultant for its pre-cancellation work according to Consultant’s consulting rates shown in the Assignment Order or, if the Assignment Order does not specify Consultant’s consulting rates, such pricing will be taken to be Consultant’s time and materials work rate in effect at the time the Assignment Order is executed, and (b) upon receiving payment, Consultant shall deliver all complete and incomplete Deliverables to Company.
    4. 3.4. Construction. Assignment Orders and executed Change Orders shall be governed by the terms of this Agreement. However, the provisions of an Assignment Order are to be construed as controlling in the event of an express conflict or inconsistency between the provisions of the Assignment Order and this Agreement. Similarly, the provisions of an executed Change Request shall be deemed to be incorporated into the related Assignment Order, and the provisions of the Change Order are to be construed as controlling in the event of an express conflict or inconsistency between the provisions of the Change Order and the Assignment Order.
    5. 3.5. Acceptance. Consultant shall deliver all Deliverables, upon completion, to Company for testing and acceptance in accordance with Schedule 3.5 attached hereto and incorporated herein (the “Acceptance Testing”). If a Deliverable is accepted pursuant to the Acceptance Testing process, Consultant will be conclusively presumed to have met its obligations with respect to the associated Assignment Order.
    6. 3.6. Rejection. Company may reject a Deliverable only in accordance with the Acceptance Testing process and the terms and conditions of Section 10.1 herein below.
  4. COMPANY OBLIGATIONS
    1. 4.1. General. In addition to those obligations of Company set forth in each Assignment Order, Company agrees to cooperate with and assist Consultant in the performance of the Services by timely providing such information and access to personnel and other resources as may be necessary in connection with such performance at Company’s own cost and expertise.
    2. 4.2. Facilities. Consultant shall be responsible for any other facilities, goods, or services that are necessary to provide the Services, including, without limitation, software that is compatible with Company’s existing software, which costs shall be included as compensation paid to Consultant pursuant to the applicable Assignment Order.
  5. PAYMENTS
    1. 5.1. Charges. In consideration for the rights granted herein, Company will pay Consultant for the Services according to Consultant’s consulting rates shown in the applicable Assignment Order.
    2. 5.2. Taxes. Subject to the terms of the applicable Assignment Order, Consultant shall be solely responsible for all taxes, withholdings, and other statutory obligations related to the fee paid by Company to Consultant. Consultant shall defend, indemnify, and hold Company harmless from any and all claims made by any entity for an alleged failure to satisfy any tax or withholding obligations of Consultant, including, but not limited to, Consultant’s income, local, state, and federal sales, use, withholding, excise, personal property, value-added, or other similar taxes, assessments, or duties that may now or hereafter be imposed upon Consultant on or in any way relating to this Agreement, including, but not limited to, the Services and any Deliverables provided hereunder.
    3. 5.3. Payment Terms. Consultant will submit a written invoice to Company monthly for the amount owed to Consultant by Company for the prior month, with such supporting documentation as Company reasonably requests, and unless otherwise set forth in the applicable Assignment Order, the Company shall pay the invoiced amount to Consultant within thirty (30) days of the date of such invoice.
  6. TERM
    1. 6.1. Term. This Agreement will commence on the Effective Date and will continue in force for one (1) year following the Effective Date and shall be automatically renewed for successive one (1) year terms unless terminated as provided herein. The initial term and all renewal terms, if any, are collectively referred to as the “Term”.
    2. 6.2. Termination. This Agreement may be terminated by either Party for any or no reason upon ten (10) days’ written notice. In addition, either Party may immediately terminate this Agreement by written notice if the other Party (a) breaches any provision of this Agreement, (b) terminates or suspends its business, (c) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver, or similar authority, or (d) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes that are not rescinded within forty-five (45) days.
    3. 6.3. Termination of Assignment Orders and Agreement. Each Assignment Order remains in effect until the earliest to occur of (i) its expiration on its own terms, (ii) the completion of the applicable Services and Deliverables thereunder, or (iii) this Agreement is terminated pursuant to Section 6.2 above (“Termination”).
    4. 6.4. Effect of Termination. Upon Termination, the Company shall immediately pay to Consultant any and all outstanding fees, charges, payments, and expenses due pursuant to this Agreement and any Assignment Order. Both Parties shall return any Confidential Information (as defined below) of the other Party embodied in tangible (including electronic) form or destroy such Confidential Information and certify in writing that all such Confidential Information has been destroyed.
    5. 6.5. Survival. Sections 2, 3.4, 6.4, 6.5, 7, 8, 9, 10, 11, and 12 of this Agreement and any accrued payment obligations shall survive the Termination. Termination shall not affect any right or remedy at law or in equity of either Party.
  7. CONFIDENTIALITY
    1. 7.1. Confidential Information. In performing the terms and conditions of this Agreement, the Parties may have access to information that is confidential to one another (“Confidential Information”). For purposes of this Agreement, Confidential Information of a Party includes information, ideas, materials, or other subject matter of such Party, whether disclosed orally, in writing, or otherwise, that is provided under circumstances reasonably indicating that it is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of this Agreement; all business plans, technical information or data, product ideas, methodologies, architectural drawings, code, source code, data, designs, trade secrets, know-how, ideas, schematics, mode of operation, inventions (whether patentable or not), calculations, algorithms, and analytical routines; and all personnel, client, contracts, and financial information or materials disclosed or otherwise provided by such Party (“Disclosing Party”) to the other Party (“Receiving Party”). Confidential Information does not include that which (a) is already in Receiving Party’s possession at the time of disclosure, (b) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party, (c) is obtained by Receiving Party from an unrelated third party without a duty of confidentiality, or (d) is independently developed by Receiving Party.
    2. 7.2. Restrictions on Use. The Receiving Party shall not use Confidential Information of the Disclosing Party for any purpose other than in furtherance of this Agreement and the activities described or contemplated herein. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third parties except as otherwise permitted hereunder. The Receiving Party may disclose Confidential Information of the Disclosing Party only to those employees or consultants who have a need to know such Confidential Information and who are bound to retain the confidentiality thereof under provisions, including, without limitation, provisions relating to nonuse and nondisclosure, no less restrictive than those required by the Receiving Party for its own Confidential Information. The Receiving Party shall maintain Confidential Information of the Disclosing Party with at least the same degree of care it uses to protect its own proprietary information of a similar nature or sensitivity, but no less than reasonable care under the circumstances. Each Party shall advise the other Party in writing of any misappropriation or misuse of Confidential Information of the other Party of which the notifying Party becomes aware.
    3. 7.3. Exclusions. Notwithstanding the foregoing, this Agreement shall not prevent the Receiving Party from disclosing Confidential Information of the Disclosing Party to the extent required by a judicial order or other legal obligation, provided that, in such event, the Receiving Party shall promptly notify the Disclosing Party to allow intervention (and shall cooperate with the Disclosing Party) to contest or minimize the scope of the disclosure (including application for a protective order).
  8. OWNERSHIP
    1. 8.1. Definitions. For purposes of this Agreement, the Parties hereby agree and consent to the following definitions:
    2. 8.1.1. “Background IP” means all Intellectual Property developed, acquired, owned, or licensed by a Party (a) before the Effective Date; or (b) independent and exclusive of the Services or this Agreement, and (c) improvements, modifications, or enhancements to either (a) or (b) made by or on behalf of the Party.
    3. 8.1.2. “Developed IP” means any Intellectual Property, including, without limitation, the Deliverables, that is newly created or developed that results from or discovered by Consultant or Company in connection with the entering into or performance of this Agreement, and is incorporated into any Services or Deliverables. Developed IP does not include any Consultant Background IP.
    4. 8.1.3. “Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.
    5. 8.1.4. “Intellectual Property Right” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (whether registered or unregistered) throughout the world.
    6. 8.2. Intellectual Property. Upon full payment of all monies owed under this Agreement and all applicable Assignment Orders, the entire right, title, and interest in and to any Developed IP created by the Parties’ performance of this Agreement (the foregoing collectively defined as the “Work Product”), are the exclusive property of Company, and Consultant shall take any steps necessary to assign the same at such time, including (i) delivery of physical and/or electronic (if and as applicable) possession of all Deliverables to Company, (ii) execution, upon reasonable request of Company, of any further documentation, and (iii) any other reasonable actions to accomplish the terms of this Section 8.2. For clarity, Work Product does not include Consultant’s Background IP. Under no circumstances may Consultant use the Work Product for its own benefit or for the benefit of any third party without the prior written consent of Company.
    7. 8.3. License. If Consultant’s Background IP is incorporated into a Deliverable provided under this Agreement or if any Deliverable cannot otherwise be assigned in accordance with Section 8.2 above, upon full payment of all monies owed under this Agreement and all applicable Assignment Orders, Consultant hereby grants to Company, its successors, assignees, and affiliates a perpetual, irrevocable, non-exclusive, royalty-free, non-sublicensable, transferable (in accordance with Section 12.4), fully-paid, worldwide license to Consultant’s Background IP to make, have made, use, sell, distribute, display, reproduce, offer for sale, import, export any component of, and otherwise dispose of the Deliverables (the “Consultant License”). Further, Company grants to Consultant a worldwide, limited, non-exclusive, fully paid-up, royalty-free, right and license, under Company’s Background IP, solely for Consultant to meet its performance obligations under an applicable Assignment Order pursuant to this Agreement (the “Company License”). The Company License shall automatically terminate upon the Termination of this Agreement or the expiration, completion, or termination of any Assignment Order.
  9. NON-SOLICITATION
    1. During the Term and for a two (2) year period after Termination for any or no reason, neither Party shall, directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation, or business entity of any type, solicit, induce, recruit, or in any way encourage any employee, agent, contractor, or consultant of the other Party or any subsidiary of that Party to terminate his or her employment or other relationship with that Party or any subsidiary of that Party. This Section 9 also applies to all those persons whose employment or consulting relationships have been terminated for fewer than six (6) months.
  10. WARRANTIES AND LIMITATIONS
    1. 10.1 Warranty and Disclaimer. Consultant warrants to Company that the Services and the Deliverables will conform to the Specifications (the “Warranty”). The Warranty is extended to, and may only be enforced by, Company and its successors and assigns. The Warranty will be deemed satisfactorily performed by Consultant upon its performance of this Section 10.1 below. If Company seeks to claim a breach of the Warranty (a “Defect”), then Company must notify Consultant of any claim of breach under and pursuant to the Warranty (“Defect Notice”) by delivering written notice to Consultant within the time frames set forth in the Acceptance Testing procedures in Schedule 3.5 hereto. If Consultant determines in good faith that any such Deliverable does in fact contain a Defect, then the sole and exclusive remedy for Company concerning such Defect is Consultant shall use commercially reasonable efforts to correct such Defect at no additional charge to Company for any additional costs that directly arise from such correction efforts, and Consultant shall redeliver the corrected Deliverable as soon as commercially practicable. Upon redelivery of the corrected Deliverable by Consultant as a result of its attempts to cure the Defect, the Parties shall perform the terms of Acceptance Testing for the corrected Deliverable. Within ten (10) business days after Company’s completion of the Acceptance Testing and the Testing Period (as defined in Schedule 3.1) for the applicable corrected Deliverable, Company must notify Consultant of any Defect of such redelivered Deliverable. If Company fails to give any such notice during such above described Testing Period, the redelivered Deliverable will be deemed accepted by Company
    2. 10.2 The remedies set forth in Section 10.1 above constitute Company’s sole and exclusive remedy for a breach of the Warranty. All Deliverables are provided “as is” and the Warranty is in lieu of, and Consultant expressly disclaims, and Company expressly waives, all other warranties and representations relating to the Services, this Agreement, work product, or Deliverables of any kind whatsoever, whether express, implied, statutory, arising by course of dealing or performance, custom, usage in the trade or otherwise, including, without limitation, any warranties of merchantability, fitness for a particular purpose, or infringement. No oral or written statement or representation by Consultant, its agents, or employees shall constitute or create an ADDITIONAL warranty or expand the scope of THE warranty provided hereunder. Consultant’s Warranty shall not apply to a Deliverable if Consultant determines in good faith that such Defect was the result of mishandling, accident, misuse, neglect, improper or unauthorized use or repair, or alteration by Company or any third party, or unauthorized action or inaction that alters the Deliverable beyond the Specifications. The Warranty shall not apply to any Defect in a Deliverable arising from any drawing, design, instructions, or specifications provided solely by Company, or any process, testing, or other validation procedure, supplied and/or approved by Company not otherwise provided for under any applicable Specifications.
    3. 10.3 Limitation on Liability. TO THE EXTENT ALLOWED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE OR RESPONSIBLE FOR ANY COMPENSATORY, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSSES (WHETHER FORESEEABLE OR CONTEMPLATED BY THE PARTIES AT THE EFFECTIVE DATE OR ANY OTHER TIME), INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS RESULTING FROM THE USE OF THE SERVICES OR ANY DELIVERABLE, OR ARISING OUT OF ANY BREACH OF THIS AGREEMENT OR THE LIMITED WARRANTIES SET FORTH HEREIN, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CONSULTANT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED TWENTY-FIVE PERCENT (25%) OF THE AMOUNT OF COMPENSATION PAID BY COMPANY TO OR INVOICED BY CONSULTANT UNDER THIS AGREEMENT. As used in this Section 10.3, “Liability” includes any liability, whether under contract, tort, or otherwise, including, without limitation, for negligence. Nothing in this Agreement excludes or limits either Party’s Liability for (i) fraud or fraudulent misrepresentations, or (ii) matters for which Liability cannot be excluded or limited under applicable law.
  11. INDEMNIFICATION
    1. 11.1. Company Indemnification. Company shall defend, indemnify, and hold Consultant harmless from and against any claim, loss, costs, suits, allegations, fines, or damages, including, without limitation, reasonable attorneys’ fees, arising out of or resulting from (a) Specifications, any Deliverable, or any other items derived from Deliverables or Work Product (collectively, “Items”), or use of Items that infringes or violates any patent, copyright, or other intellectual property right of a third party, or (b) product liability resulting from any Deliverable accepted by Company and conforming to the Specifications pursuant to the terms of this Agreement for any Items that cause damages of any kind to Company or any third party. Consultant shall inform Company in writing and without unreasonable delay of any such claims referred to in this Section 11.1, of which Consultant has become aware. Consultant shall give Company control over the defense of such claims, suits, actions, or demands and shall provide such assistance and cooperation as is reasonably requested by Company or its counsel, at the Company’s expense, in connection with such claims. Consultant may employ counsel, at its own expense, to assist Company with respect to any such claims, provided that if Company does not assume control of the defense of a claim for which Company is obligated to indemnify Consultant hereunder, Company shall bear all expenses Consultant may incur for defending such claim. Company shall not enter into any settlement that affects Consultant’s rights or interests without Consultant’s prior written approval, which shall not be unreasonably withheld.
    2. 11.2. Consultant Indemnification. Consultant shall indemnify and hold Company harmless from and against any claim, loss, costs, suits, allegations, fines, or damages, including, without limitation, reasonable attorneys’ fees, recovered by third parties arising from any third party claims against Company and its employees, subsidiaries, affiliates, successors, and assigns that are based in part or in whole on (a) any allegation that the design or development processes supplied by Consultant in the development of the Deliverables infringe on any intellectual property right or interest of a third party, or (b) any personal injury or property damages that occur during performance of the Services that is due to the grossly negligent, reckless, or intentionally wrongful act of Consultant or Consultant’s employees, contractors, or agents.
  12. GENERAL PROVISIONS
    1. 12.1. Independent Parties. The relationship of Consultant to Company established by this Agreement is that of independent contractor and shall not be construed (a) to give either Party the power to direct or control the day-to-day activities of the other, or (b) to constitute the Parties as partners, franchisee-franchisor, joint ventures, co-owners, or otherwise as participants in a joint or common undertaking, or otherwise give rise to fiduciary obligations between Parties.
    2. 12.2. Entire Agreement; Amendment; Waiver. This Agreement (including any Assignment Orders and Changes Orders) constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications, negotiations, and agreements, written or oral, regarding the subject matter hereto. No modification of or amendment or waiver to this Agreement will be effective unless in writing and signed by each of the Parties.
    3. 12.3. Dispute. This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Virginia without regard to its conflict of laws, rules, and principles. Any suit to enforce this Agreement shall be brought in the courts of the City of Norfolk, Virginia, and the Parties hereto consent to the exclusive jurisdiction and venue of the courts located in the City of Norfolk, Virginia.
    4. 12.4. Assignment. Neither Party shall have any right or ability to assign, transfer, or sublicense any obligations under this Agreement without the written consent of the other except that a Party (a) may assign and transfer this Agreement and its rights and obligations hereunder to any third party who succeeds to substantially all its business or assets, and (b) may assign or transfer any rights to receive payments hereunder.
    5. 12.5. Force Majeure. Except for the obligation to make payments, nonperformance by either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
    6. 12.6. Notices. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the Party to be notified as set forth herein or such other address as such Party last provided to the other by written notice.
    7. 12.7. Attorneys’ Fees. In any legal action or other negotiation or proceeding brought to enforce the terms of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees, fees, and costs. The non-prevailing Party in any legal action brought pursuant to, or arising out of, this Agreement shall pay to prevailing Party all costs and fees incurred by such Party in such action, including, without limitation, all reasonable attorneys’ fees and out-of-pocket expenses and all other reasonable costs of enforcement of the terms and conditions hereof. As used herein, the “prevailing Party” means the Party in whose favor a final judgment, order, or decree is rendered/entered.
    8. 12.8. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, and such counterparts shall together constitute one instrument.
    9. 12.9. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect.
    10. Schedule 3.5: Testing and Acceptance
    11. 1. Acceptance Testing.
      (a) Upon receipt from Consultant of each Deliverable, acceptance tests shall be conducted as set forth in this Schedule 3.5 to ensure that such Deliverable conforms to the Specifications within each Assignment Order.
      (b) Upon receipt from Consultant of a Deliverable, all acceptance tests shall be performed and completed by Company within thirty (30) calendar days following the receipt of such Deliverable and be conducted in good faith in accordance with the terms and conditions of this Schedule 3.5 (“Testing Period”). Company and Consultant shall each have the right to observe and participate in such acceptance tests.
    12. 2. Notices of Completion, Non-Conformities, and Acceptance.
    13. Within ten (10) business days after Company’s completion of the acceptance tests and the Testing Period, Company must notify Consultant of any Defect. If Company fails to give any such notice of such Defect during such Testing Period or notice period, the Deliverable will be deemed accepted by Company. If such notice is, however, given by Company and identifies any Defect with such Deliverable provided by Consultant, and Consultant confirms a Defect exists within the Deliverable, then Consultant shall correct such Defect at Consultant’s sole cost and expense, and upon completion and delivery of the corrected Deliverable, and the Parties shall commence the Testing Period again.
    14. 3. Failure of Acceptance Testing. If acceptance tests identify any non-conformity in any Deliverable after a second or subsequent delivery by Consultant and second Testing Period, or Consultant fails to re-deliver the Deliverable on a timely basis, Company may, in its sole discretion and timing, by written notice to Consultant deem the failure to be a non-curable material breach of this Agreement and the relevant Assignment Order and either (a) immediately terminate this Agreement and such Assignment Order without further liability or obligation to Consultant, except for the payment of any compensation owed to Consultant related to Services performed not relating to the specific nonconforming Deliverable or non-curable material breach giving rise to such right of termination; or (b) accept such non-conforming Deliverable and direct Consultant to begin or finalize the subsequent Deliverable(s) under the then effective Assignment Order. Upon delivery of notice under either Section 3(a) or (b) above, Consultant shall reimburse Company all compensation amounts paid by Company up to the date of termination specifically relating only to the specific non-conforming Deliverable or non-curable material breach hereunder.
  13. OFFERS
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