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Terms of Services

This master Professional Services Agreement (“AGREEMENT”) is made as of the effective date specified at the end of this agreement by and between ASAR AMERICA, INC. (“ASAR”) a Delaware corporation having a principal place of business at 3030 Warrenville Road, Suite #610, Lisle, IL 60532 and __________(“CLIENT”), having a place of business at __________ Collectively, ASAR and Client shall be known as the “PARTIES”.

The Parties agree as follows

1 ) SERVICES PROVIDED BY ASAR.

ASAR shall provide Client certain services (“SERVICES”) specified in a properly executed Scope of Work (“SOW”) to be incorporated herein and made a part hereof. Each SOW shall incorporate the terms and provisions of this Agreement. To the extent an SOW provides additional and/or conflicting terms to this agreement, the terms of the SOW shall prevail. All ASAR subcontractors under an SOW, if any, shall be bound to perform all obligations under this Agreement as if they were being performed by ASAR.

2 ) CLIENT DUTIES.

(A) Client shall perform such duties and tasks designated in an SOW to facilitate ASAR’s performance of the Services outlined thereunder and provide ASAR with reasonable and necessary access to Client’s systems and facilities during Client’s normal business hours and otherwise as reasonably requested by ASAR in order to facilitate ASAR’s performance of the Services outlined in each SOW. (B) Client shall not contract for related services with any current or future ASAR employees or subcontractors for a period of two (2) years from the date agreement or employment relationship with ASAR terminated. Failure to comply with this provision may at ASAR’s sole discretion result in (i) removal of all existing consultant resources from Client sites and/or (ii) the immediate termination of this Agreement and ASAR’s obligation to provide any further Services.

3 ) FEES, EXPENSES, & PAYMENT.

For all Services performed under an SOW or other request for Services that references this Agreement, Client shall: (i) pay ASAR in accordance with each SOW or at the then current ASAR standard rates, whichever are applicable; (ii) reimburse ASAR for all reasonable and necessary travel and living expenses ASAR incurs performing such Services, provided such expenses are incurred in compliance with ASAR’s travel and expense policy, and provided further that such expenses are incurred pursuant to an applicable SOW or other request for Services by Client; and (iii) pay ASAR upon receipt of each invoice. All payments pursuant to this Agreement are non-refundable. Unless Client provides ASAR with a valid tax exemption or direct pay certificate upon execution of this Agreement, Client is responsible for all taxes, duties, and customs fees which may be assessed on the amounts paid for Services performed hereunder, excluding taxes based on ASAR’s income or payroll. ASAR reserves the right to invoice Client the lesser of twelve percent (12%) annual interest or the highest interest rate allowable under applicable laws for any outstanding, undisputed invoice not paid within thirty (30) days after receipt. ASAR invoices shall describe the following: (i) the time period for which work and expenses are billed; (ii) the quantity of work performed; (iii) the hourly rates charged, if applicable; (iv) travel and living expenses by type and amount, if applicable; and (v) totals.

4 ) INSURANCE.

ASAR shall maintain statutory minimum Worker’s Compensation and Employer’s Liability Insurance as required by the laws of any state or country in which Services are performed.

5. CONFIDENTIAL INFORMATION.
5.1 ) DEFINITION.

The term “CONFIDENTIAL INFORMATION” shall mean: (i) any and all information which is disclosed by either party (“OWNER”) to the other (“RECIPIENT”) verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary; and (ii) the terms, including without limitation, the pricing, of this Agreement and any proposals or other documents that preceded this Agreement. Confidential Information may include, but not be limited to, trade secrets, computer programs, software, documentation, formulas, data, inventions, techniques, marketing plans, strategies, forecasts, client lists, employee information, financial information, confidential information concerning Owner’s business or organization, as Owner has conducted it or as Owner may conduct it in the future. In addition, Confidential Information may include information concerning any of Owner’s past, current, or possible future products or methods, including information about Owner’s research, development, engineering, purchasing, manufacturing, accounting, marketing, selling, leasing, and/or software (including third party software).

5.2 ) TREATMENT OF CONFIDENTIAL INFORMATION.

Owner’s Confidential Information shall be treated as strictly confidential by Recipient and shall not be disclosed by Recipient to any third party except to those third parties operating under non-disclosure provisions no less restrictive than in this Section and who have a justified business “need to know”. Client shall protect the deliverables resulting from Services with the same degree of care. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit the disclosure.

5.3 ) RIGHTS AND DUTIES.

The Recipient shall not obtain, by virtue of this Agreement, any rights, title, or interest in any Confidential Information of the Owner. Within fifteen (15) days after termination of this Agreement, each party shall certify in writing to the other that all copies of Confidential Information in any form, including partial copies, have been destroyed, returned, or used solely as the Owner so directs.

6. INDEMNITY.
6.1 ) PATENT AND COPYRIGHT INDEMNITY.

ASAR shall indemnify and defend Client against any claims that the Work Product (defined below) delivered to Client pursuant to an SOW infringes any United States or Canadian patent or copyright, provided that ASAR is given prompt notice of such claim and is given information, reasonable assistance, and the sole authority to defend or settle said claim. In the defense or settlement of any claim, provided the associated software license agreement between the Parties has not been terminated, ASAR shall in its reasonable judgment and at its option and expense: (i) obtain for Client the right to continue using the Work Product; (ii) replace or modify the Work Product so that it becomes non-infringing while giving an equivalent performance; or (iii) if ASAR cannot obtain the remedies in (i) or (ii), as its sole obligation, terminate the license for the infringing Work Product and return only the Services fees paid by Client for such Work Product. ASAR shall have no liability to indemnify and defend Client to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services, or programs created or furnished by or on behalf of Client (ii) the alleged infringement is the result of a modification made by anyone other than ASAR; or (iii) Client uses the Work Product other than in accordance with this Agreement, any delivered documentation under an SOW, or the underlying software license to use such Work Product.

6.2 ) INDEMNITY.

Each party (“INDEMNIFYING PARTY”) shall indemnify and hold the other party (“INDEMNIFIED PARTY”) harmless against any third party claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or failure to act by the Indemnifying Party, its employees or agents, while performing its obligations hereunder, which result in death, personal injury, or tangible property damage. This indemnification obligation is contingent upon the Indemnified Party providing the Indemnifying Party with prompt written notice of such claim, information, all reasonable assistance in the defense of such action, and sole authority to defend or settle such claim.

6.3 ) SURVIVAL.

The terms of this Section 6 shall survive termination of this Agreement.

7 ) WARRANTIES AND REPRESENTATIONS.

Each party warrants that it has the right and power to enter into this Agreement and an authorized representative has executed this Agreement. ASAR warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards. To the extent Services provided by ASAR are advisory; no specific result is assured or guaranteed. ASAR EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER ASAR EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.

8 ) Limitation of liability.

Except for the indemnification provided in section 6, asar’s maximum liability for any action arising under this agreement, regardless of the form of action and whether in tort or contract, shall be limited to the amount of services fees paid by the client for the services from which the claim arose. In no event shall Asar be liable for indirect, special, incidental, or consequential damages of any kind, including without limitation, or lost profits, however arising, even if the client has been advised of the possibility of such damages. The parties agree to the allocation of risk set forth herein.

9 ) RIGHTS TO WORK PRODUCT.

Excluding IP related to the SAP Platform, upon creation, all works, documents, reports, code, application programming interfaces (APIs), deliverables and any Intellectual Property Rights resulting from the performance of the Services (collectively “WORK PRODUCT”) shall be the sole and exclusive property of Client. Where applicable, the Work Product is deemed a “Work Made For Hire” within the meaning of the United States Copyright Act, 17 U.S.C. § 101. To the extent that the Work Product does not meet the definition of “Work Made For Hire” under U.S. copyright law, ASAR irrevocably assigns, transfers and conveys, and will cause its Personnel, including any subcontractors, to assign, transfer and convey to Client without further consideration, all rights, title, and interest in and to the Work Product, including all Intellectual Property Rights therein, and any works in progress, free and clear of any liens, security interest, or encumbrances. ASAR agrees that it will cooperate with Client in executing all documents or providing any other assistance to Client, required for Client to protect its legal rights in the Work Product and any of Client’s Confidential Information therein, and all works in progress.

10 ) INDEPENDENT CONTRACTOR STATUS.

ASAR performs this Agreement as an independent contractor, not as an employee of Client. Nothing in this Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between Client and ASAR.

11 ) NOTICE

All notices or other communications referenced under this Agreement shall be made in writing and sent to the address designated above, designated in a specific SOW, or designated from time to time in writing by the Parties. All notices shall be deemed given to the other party if the delivered receipt is confirmed using one of the following methods: registered or certified first class mail, postage prepaid; recognized courier delivery; or electronic mail.

12 ) TERMINATION OF PROFESSIONAL SERVICE.

Unless otherwise agreed to, either party may terminate this Agreement or any SOW at any time by giving the other party written notice of 45 days.

13 ) WAIVER.

No modification to this Agreement nor any failure or delay in enforcing any term, exercising any option, or requiring performance shall be binding or construed as a waiver unless agreed to in writing by both parties.

14 ) FORCE MAJEURE.

Except for Client’s obligation to pay ASAR, neither party shall be liable for any failure to perform its obligations under this Agreement or any SOW if prevented from doing so by a cause or causes beyond its control, including without limitation, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, and restraints of government.

15 ) DISPUTE RESOLUTION.

Any disputes or claims under this Agreement or its breach shall be submitted to and resolved exclusively by arbitration conducted in accordance with American Arbitration Association rules. One arbitrator appointed under such rules shall conduct arbitration. Arbitration shall be in the State of Wisconsin, and the laws of Wisconsin shall be applied. Any decision in arbitration shall be final and binding upon the parties. Judgment may be entered thereon in any court of competent jurisdiction. Notwithstanding the above, ASAR may sue in any court for infringement of its proprietary or intellectual property rights.

16 ) GENERAL.

This Agreement shall be governed by the laws of the State of Wisconsin, excluding choice of law principles. Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless remain in full force and effect. This Agreement and the SOW(s) constitute the entire understanding between the Parties with respect to the subject matter herein and may only be amended or modified by a writing signed by a duly authorized representative of each party. This Agreement may be executed by facsimile. This Agreement replaces and supersedes any prior verbal or written understandings, communications, and representations between the Parties regarding the subject matter contained herein. No purchase order or other ordering document that purports to modify or supplement the printed text of this Agreement or any Exhibit shall add to or vary the terms of this Agreement or Exhibit. All such proposed variations, edits, or additions (whether submitted by ASAR or Client) to this Agreement or to an SOW, are objected to and deemed material unless otherwise mutually agreed to in writing.

The Parties hereby agree to all of the above terms and have executed this Agreement by a duly authorized officer or officer representative.

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