ONENECK IT SERVICES CORPORATION OUTSOURCING SERVICES AGREEMENT

EXHIBIT 10.2

ONENECK IT SERVICES CORPORATION

OUTSOURCING SERVICES AGREEMENT

BETWEEN

ONENECK IT SERVICES CORPORATION

AND

ADEPT TECHNOLOGY, INC.

Dated: December 15, 2008

 

THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE CONFIDENTIAL.

 

CONFIDENTIAL

OUTSOURCING SERVICES AGREEMENT

THIS OUTSOURCING SERVICES AGREEMENT (“ Agreement ”) is hereby entered into this 15th day of December 2008, (“ Effective Date ”) by and between OneNeck IT Services Corporation whose principal place of business is located at 5301 North Pima Road, Suite 100, Scottsdale, Arizona 85250 (“ OneNeck ”) and Adept Technology, Inc., whose principal place of business is located at 3011 Triad Drive, Livermore, California 94551 (“ Client ”). OneNeck and Client may hereinafter be collectively referred to as the “ Parties ”, each a “ Party ”.

RECITALS

WHEREAS, OneNeck is in the business of providing information technology outsourcing and facility management solutions, using various computing platforms, to provide Client with cost-effective and productive use of information technology;

WHEREAS, Client wishes to utilize OneNeck’s outsourcing and facility management services and expertise during the term of this Agreement to provide Client with a high-quality, cost-effective information systems environment to help ensure Client’s continued success in its respective industry; and

WHEREAS, OneNeck is willing to offer such outsourcing and facility management services based upon the terms and conditions as described in this Agreement and its attachments.

NOW THEREFORE , based upon the aforementioned recitals and the promises contained herein and for good and valuable consideration, the sufficiency of which is hereby acknowledged by each Party, the Parties agree as follows:

AGREEMENT

1. DEFINITIONS . As used in this Agreement and the attachments hereto (collectively, the “ Documents ”), the following terms shall have the following meanings, unless otherwise expressly indicated, with such definitions to be applicable to both the singular and plural use of the terms.

(a) “ Additional Service ” shall mean any service that is not included in the Initial Services. Upon Client’s election to receive Additional Services, such services shall be included in the term “Services,” defined herein below.

(b) “ Affiliate ” shall mean, with respect to a Party, any entity at any time Controlling, Controlled by, or under common Control with, such Party.

(c) “ Change in Control ” shall mean any event or series of events by which i) any person or entity or group of persons or entities shall acquire Control of another person or entity, or ii) in the case of a corporation, during any period of twelve (12) consecutive months commencing before or after the Effective Date, individuals who at the beginning of such 12-month period were directors of such corporation shall cease for any reason to constitute a majority of the board of directors of such corporation.

(d) “ Change Order ” shall mean a request from either Party to seek a deviation from the Services then currently being provided by OneNeck in accordance with the Change Order Process.

(e) “ Change Order Process ” shall mean the method by which either Party may seeks a deviation from the Services then currently being provided to Client by OneNeck.

(f) “ Client Data ” shall mean any and all data and information of any kind or nature submitted to OneNeck by Client, or received by OneNeck on behalf of Client, in connection with the Services.

(g) “ Commencement Date ” shall mean the date on which OneNeck has completed the Transition for the processing of the Services.

(h) “ Confidential Information ” shall have the meaning set forth in Section 15 of this Agreement.

 

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(i) “ Contract Year ” shall mean a period commencing on the first day of the month in which the Commencement Date occurs, and each anniversary thereof, and terminating on the last date of the month occurring one (1) year thereafter.

(j) “ Control ” shall mean the direct or indirect ownership of over 50% of the capital stock, or other ownership interest if not a corporation, of any entity or the possession, directly or indirectly, of the power to direct the management and policies of such entity by ownership of voting securities, by contract, or otherwise. “Controlling” shall mean having Control of any entity and “Controlled” shall mean being the subject of Control by another entity.

(k) “ Damages ” shall mean all direct, actual, and verifiable losses, liabilities, damages, and claims and related costs and expenses, including reasonable attorneys’ fees and court costs, costs of investigation, litigation, settlement, judgment, interest, and penalties, but excluding any and all consequential, incidental, punitive, and exemplary damages.

(l) “ Effective Date ” shall mean the date first set forth herein above.

(m) “ Effective Date of Termination ” shall mean the last day on which OneNeck provides Services to Client, excluding any Termination Plan services, following delivery of a notice of termination.

(n) “ Entity ” means a corporation, partnership, sole proprietorship, limited liability company, joint venture, or other form of organization, and includes the Parties hereto.

(o) “ Estimated Remaining Value ” shall mean the number of calendar months remaining between the Effective Date of Termination and the last day of the Term, multiplied by the greater of: i) the Monthly Base Fee; or ii) the average monthly Base Fees payable by Client during the three-month period prior to the event giving rise to termination rights under this Agreement.

(p) “ Expenses ” shall mean all travel and lodging expenses incurred by OneNeck for Services provided to or on behalf of Client under this Agreement.

(q) “ Initial Services ” shall mean those services, set forth in Exhibits A-1 and A-2 attached hereto, to be provided by OneNeck under this Agreement as of the Effective Date.

(r) “ Monthly Base Fee ” shall mean the monthly fees payable by Client to OneNeck for those Services identified in Exhibits A-1 and A-2 , or as set forth in Exhibit E .

(s) “ Operations Center ” shall mean the data center used by OneNeck to provide the Services under this Agreement.

(t) “ Outsourcing System ” shall mean the system utilized by OneNeck at the Operations Center to perform the Services set forth in this Agreement.

(u) “ Service Boundary ” shall mean that part of the Client network beginning at the output port(s) of the data communication routers located at OneNeck’s Data Center, extending through the network interface cards of the Client Host Servers located at OneNeck’s Data Center and including all servers and equipment listed in Exhibits H-1 and H-2 under the management of OneNeck and the network that is managed by OneNeck, and ending with and including the Host Servers.

(v) “ Service Appendix ” shall mean each attached appendix which sets forth the Services to be performed and, if applicable, the Service Levels to be achieved with respect to a particular Service, as provided in Exhibits A-1 and A-2 attached hereto (collectively the “ Service Appendices ”).

(w) “ Service Level ” shall mean the performance level, expectation, and measurement required of OneNeck and agreed upon by the Parties, as more particularly described in Exhibit A-2 , attached hereto, and other such levels as may be set forth in Exhibit A-1 or as may be added to this Agreement from time to time.

(x) “ Services ” shall mean the services, functions, and responsibilities described in this Agreement to be performed by OneNeck during the Term hereof.

(y) “ Taxes ” shall mean any manufacturers, sales, use, gross receipts, excise, personal property, or similar tax or duty assessed by any governmental or quasi-governmental authority upon or as a result of the execution or performance of any Service pursuant to this Agreement or materials furnished with respect to this Agreement, except any income, franchise, privilege or like tax on or measured by OneNeck’s net income, capital stock or net worth.

 

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(z) “ Term ” shall mean the Initial Term and any renewals thereof, unless this Agreement is earlier terminated in accordance with its provisions.

(aa) “ Third Party ” shall mean any entity other than the Parties or any Affiliates of the Parties and shall include any subcontractors of the Parties.

2. TERM . The Term of this Agreement shall commence on the Effective Date and continue for a period of thirty six (36) months following the Commencement Date (“ Initial Term ”). The Initial Term shall automatically renew for subsequent terms of twelve (12) months (“ Renewal Term ”) unless and until terminated by either Party upon written notification of not less than six (6) months prior to the completion of the then current Renewal Term. Each successive Renewal Term shall commence on the anniversary of the Effective Date following the Initial Term. In addition, Client may, at the end of the Initial Term or any Renewal Term, renew this Agreement for a specific period of time and at a Service Fee to be mutually agreed upon by the Parties.

3. APPOINTMENT .

(a) Performance by OneNeck’s Affiliates . Client understands that actual performance of the Services may be made by the divisions, subsidiaries and/or Affiliates of OneNeck and that OneNeck has the right from time to time to subcontract certain of the Services to third party providers. However, at no time shall OneNeck subcontract a material portion of the Services. For purposes of this Agreement, performance of the Services by any division, subsidiary and/or Affiliate of OneNeck or by any such subcontractors shall be deemed performance by OneNeck itself.

(b) Third Party Services . Client has the right to contract with a third party to perform any service or provide any products in addition to or outside the scope of Services outlined in this Agreement. OneNeck shall cooperate with Client and such third party to the extent reasonably required by Client. Client agrees to consider recommendations from OneNeck regarding technical architecture or environment for any such third party service. OneNeck shall have no liability to Client for such third party products or services.

4. TRANSITION . In the event OneNeck has, in consultation with Client, developed a customized plan for the Transition (“ Transition Plan ”), such Transition Plan shall be more fully set forth in detail in a separately executed Professional Services Agreement, with attached Statements of Work, by and between OneNeck and Client. The Transition Plan shall set forth the criteria mutually agreed to by the Parties. In any event, each Party shall cooperate with all reasonable requests of the other Party made necessary to effectuate Transition in a timely and efficient manner.

5. SERVICES .

(a) Outsourcing Services . OneNeck shall provide for Client those outsourcing services, as set forth specifically in Exhibits A-1 and A-2 and other exhibits, attached hereto and incorporated herein by this reference (“ Services ” each a “ Service ”), in accordance with the terms and conditions as set forth herein. All Services and communications, both written and verbal, shall be communicated in the English language, unless otherwise agreed upon in a signed writing by the Parties. OneNeck shall provide the Services from its Data Center (“ Operations Center ”). Client may, from time to time, select Additional Services as may be mutually agreed upon by the Parties, which shall be incorporated herein by a properly executed written amendment attached hereto. UNLESS OTHERWISE AGREED UPON IN WRITING, THE SERVICES BEING PROVIDED TO CLIENT AND ITS AFFILIATES ARE FOR INTERNAL USE ONLY BY AUTHORIZED PERSONNEL OF CLIENT AND MAY NOT BE RESOLD OR MADE AVAILABLE BY CLIENT OR ITS AFFILIATES TO ANY THIRD PARTY.

(b) Service Quality . The Parties hereby acknowledge the critical nature of the services rendered by OneNeck under this Agreement to the continued viability of Client’s business operations. Therefore, the Parties agree to exercise their best efforts to work together, as a team, to maximize the quality of the Services at any and all times including those times when some form of dispute may be pending between the Parties. OneNeck shall produce a monthly report (“ Quality of Service Report ”) which report is more particularly described in Section 6(e) , and said reports shall be submitted in conformance with the terms set forth in Exhibit C attached hereto and incorporated herein by reference.

 

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(c) Adding Services . In the event that either Party desires to add, amend or modify any Initial Service, Service Level, Service Fees, third-party software, or Client Location, such Party shall notify the other Party of such request, as described in Section 9 .

(d) Additional Services . OneNeck shall be reasonably available from time to time during the Term hereof to assist Client with Additional Services, with billing rates for such Additional Services, if applicable, at such rates as agreed upon by the Parties and/or as set forth in a separate Professional Services Agreement. Additional Services shall be subject to a signed amendment, attached hereto, or the separate Professional Services Agreement between the Parties. OneNeck shall not unreasonably refuse to provide additional core services critical to the ongoing operation of the Data Center.

(e) Sarbanes-Oxley Compliance . OneNeck acknowledges that Client may suffer a material adverse impact if OneNeck fails to provide Services in a manner consistent with Sarbanes-Oxley controls. As such, OneNeck will, subject to the Change Order Process, (a) implement and execute regulatory controls as agreed between the parties, (b) maintain and provide access to system logs/history for testing, and (c) cooperate in the implementation and maintenance of Client's regulatory requirements.

6. SERVICE LEVELS .

(a) Service Levels . OneNeck shall perform the Services in accordance with the Service Levels, as more particularly described in the Service Appendices. OneNeck shall ensure that performance of the Services meets or exceeds the applicable Service Levels for each Service performed. OneNeck and Client shall review the Service Levels during the last quarter of each calendar year, and may agree to adjust the Service Levels to reflect appropriate changes in circumstances, including without limitation, adjusting Service Levels to reflect improved performance capabilities associated with advances in the technology and methods used generally to perform similar services. Any such mutually agreed upon adjustments shall be by Change Order.

(b) Service Level Setting . The Parties shall set a corresponding Service Level, and classify and identify, on Exhibit A-2 “Service Level Appendix”, the corresponding Service Level as follows.

(i) Absolute Service Level . “Absolute Service Level” shall mean either a) a Service Level which is known with certainty by the Parties as of the effective date of the applicable Service Appendix and is subject to change only in accordance with the Change Order Procedures set forth in Section 9(b) , or b) a Service Level which is initially a Target Service Level or Service Level Goal but which became adjusted to an Absolute Service Level pursuant to Section 6(c) .

(ii) Target Service Level . “Target Service Level” shall mean a Service Level which, as of the effective date of the applicable Service Appendix, is a Service Level for which the Parties have some knowledge on which to base an estimate, but are difficult to ascertain with sufficient certainty and, therefore, represent good faith estimates of what such level should be for the corresponding Service or are Service Levels which require time for OneNeck to understand and manage prior to becoming Absolute Service Levels which immediately render Service Credits if not met.

(c) Adjusting Service Levels . After three (3) months following the effective date of any Target Service Levels hereunder (the “Measurement Period”), and starting on the fourth month, the Target Service Levels will change to Absolute Service Levels based upon the following:

(i) If OneNeck has failed to meet the established Target Service Levels during the Measurement Period despite making best efforts to do so, except as provided for in Section 6(f) , the Parties shall negotiate in good faith to equitably adjust the applicable Service Fees to reflect OneNeck’s failure to meet the applicable Service Levels and to appropriately adjust the corresponding Service Level. In such a case, the Availability Production Absolute Service Level will not be less than 99.0% and the Availability Absolute Non-Production Service Level will not be less than 98%.

(d) Service Level Termination . Following the Measurement Period, should OneNeck fail to meet the “Minimum Service Level” (as defined below) in any two (2) months during a four month period, Client may, at Client’s sole election, terminate the applicable Service or this Agreement, effective two (2) months after Client gives OneNeck notice of such intent to terminate, with no further obligation to OneNeck with respect to such terminated Service. For purposes of this Agreement, a failure to meet the “Minimum Service Level” shall occur when the Service Credits due to Client equal 20% of the Service Fees or more during a month.

 

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(e) Quality of Service Reports . OneNeck shall submit Quality of Service Reports to Client in accordance with the terms, format, and content set forth herein and in Exhibit C . Such reports shall be produced by OneNeck within fifteen (15) calendar days after the end of each calendar month covering the prior calendar month. Client shall have the right to audit the Quality of Service Reports using data from Client’s logs or from the network and service management tools, and shall note any discrepancies Client may encounter during the review meetings, which meetings are described in Exhibit A-1 . At Client’s request or as the Parties agree, reported items may be added or amended as necessary. In addition to the Quality of Service Reports described herein, OneNeck shall provide additional reports to Client as Client may request and as the Parties may mutually agree upon.

(f) Service Credits . OneNeck recognizes that its failure to meet the Absolute Service Levels may have a material adverse impact on Client’s business and operations, and that the damage may be difficult to measure precisely. Accordingly, in the event that OneNeck fails to meet the Services Levels for reasons other than those set forth in Section 6(g) below, Client may recover, as its sole monetary remedy for failure to meet the Absolute Service Levels, the Service Credits specified in Exhibit D as liquidated damages; except where such failure or multiple failures rises to the level of a breach of this Agreement, whereupon Client shall retain its right to claim breach of contract. In the event of a termination, cancellation, or other end to this Agreement, Client shall retain the right to invoice OneNeck for any Service Credits due and owing.

(g) Exclusions . Degradations of the Outsourcing System performance shall not constitute OneNeck’s failure to meet applicable Service Levels, to the extent any such failure is attributable to any one or more of the following causes (collectively, “ Exclusions ”): i) Events of Force Majeure; ii) Acts or omissions of third party vendors not under the control or management of OneNeck (including any vendors contracted by OneNeck); iii) Failures to meet Service Levels while operating under a disaster recovery plan; iv) acts or omissions of Client; and v) any and all third party hardware and/or software failures, except where such hardware and/or software is provided and managed by OneNeck.

7. SERVICE FEES .

(a) Fees and Taxes . Client shall pay for the Services invoiced under this Agreement in accordance with the schedule of charges, as set forth in Exhibit E attached hereto and incorporated herein by reference. OneNeck shall invoice all fixed service fees by the fifth (5 ^th ) day of each month in which Services are to be performed, and shall invoice variable service fees by the tenth (10 ^th ) day of each month following any month in which Services were performed. Client shall pay all sales, use, excise, and other similar taxes assessed as a result of the Services provided under this Agreement. Notwithstanding the foregoing, Client shall not be responsible for paying any taxes upon the real, personal, or intangible property of OneNeck, or upon the net income or profits of OneNeck.

(b) Payment Obligation . Except as expressly provided herein, it is the intention of the Parties that all Service Fees payable by Client under this Agreement shall be, and continue to be, payable throughout the term hereof, except for Client’s application of any Service Credit (as described under Exhibit D ) as awarded by OneNeck.

(c) Late Payments . Client’s payment for Services shall be deemed late when Client fails to remit payment, which is not being disputed in good faith, within forty-five (45) days of the date of invoice and upon notice thereof by OneNeck. Any late payment shall bear interest at the rate of one and one half percent (1  ¹ / 2 %) per month or the maximum rate allowed under law, whichever is greater, or fraction thereof until paid in full, beginning at the following invoice date.

(d) Expenses . All expenses incurred by OneNeck in connection with the provision of Services, excluding travel expenses, are included in the Service Fees. Client shall reimburse OneNeck for reasonable, actual, documented expenses incurred by OneNeck associated with any travel or Additional Services, as approved by Client.

(e) Modifications . The Service Fees and charges payable by Client under this Agreement shall be subject to the increases set forth in Exhibit E , or as otherwise provided in this Agreement or agreed upon by the Parties in writing.

 

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8. EQUIPMENT .

(a) OneNeck Equipment . OneNeck shall provide and maintain the computer software and hardware devices, if any, as described in Exhibit H-1 , attached hereto, at the locations specified therein. Client shall protect OneNeck Equipment and shall pay for any loss or damage to OneNeck equipment while in Client’s possession or control except to the extent such loss or damage is caused by OneNeck, normal wear and tear excepted. Client shall not make unauthorized repairs or changes to OneNeck Equipment nor remove any proprietary markings or identification tags. All OneNeck Equipment shall remain the personal property of OneNeck. OneNeck shall be provided prompt access to Client’s location(s) at any time upon reasonable advance notice to inspect, maintain, replace or remove OneNeck Equipment.

(b) Client Equipment . Client shall provide the computer software and hardware devices, as described in Exhibit H-2 attached hereto, at the Operations Center for OneNeck’s use in providing the Services. OneNeck shall not use Client Equipment for any purpose other than to provide services to Client. OneNeck shall protect Client’s Equipment and shall pay for any loss or damage to Client Equipment while in OneNeck’s possession or control except to the extent such loss or damage is caused by Client, normal wear and tear excepted. OneNeck shall not make unauthorized repairs or changes to Client Equipment nor remove any proprietary markings or identification tags. All Client Equipment shall remain the personal property of Client. Client shall be provided prompt access to the Operations Center at any time upon reasonable advance notice to inspect, maintain, replace, or remove, as set forth in this Agreement, Client Equipment.

(c) Additional Equipment . As part of the Services, OneNeck shall obtain on behalf and at the expense of Client any additional hardware or software requested by Client (“ New Equipment ”). OneNeck shall 1) make commercially reasonable efforts to identify any such New Equipment at a commercially competitive cost/expense, and 2) upon the request of Client, act as agent for Client in acquiring the New Equipment on behalf of Client. OneNeck shall, upon request of Client, purchase or lease such New Equipment on behalf of Client. All rights in and title to any New Equipment purchased by OneNeck on behalf of Client, and paid for by Client, shall belong to Client.

(d) Maintenance and Repairs . Each Party shall, during the term of this Agreement, maintain in full force and effect a maintenance service contract with the manufacturers of its Equipment, wherever located, or some other recognized and reliable maintenance services provider (“ Maintenance Organization ”) covering at least prime shift maintenance of its Equipment. Neither Party shall use or permit use of its Equipment for any purpose for which, in the opinion of the manufacturer of such Equipment or the Maintenance Organization, such Equipment is not designed or intended to be used.

(e) Existing Architecture . OneNeck shall comply with Client’s information management technical architecture and product standards existing as of the Effective Date and as may be later modified by Client during the term hereof and obtain Client’s prior approval for any deviation from such standards.

9. CHANGE ORDER .

(a) Types of Change Orders . Either Party may request change orders during the Term of this Agreement. The procedure by which changes are proposed and instituted is contingent upon the type of change desired. In general, the two types of changes are: (i) Service Changes and (ii) Systems Changes. Each as is more particularly described below.

(i) Service Change . The Parties shall use the Service Change Order Procedure for changes to the Agreement where the type of change requested relates to changes, deletions, or additions to the Services, Service Levels, or any other information contained in the Service Appendices.

(ii) Systems Change . The Parties shall use the Systems Change Control Procedure where changes or modifications are requested which do not require significant change to Services or Service Levels, but which changes usually need to be installed or implemented when the system is down or inactive. Examples of such system changes include initialization of system files, hardware replacements, cabling changes, or system software upgrades.

 

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(b) Procedures . The Change Order management procedures shall be agreed upon by the Parties and documented in the Management Procedures Manual for Client.

(i) Either Party may submit a Change Order outlining the requested change(s) to Services. The Parties will consult concerning the time and effort required as well as the schedule for the requested change. Services which require OneNeck to expend resources beyond its current efforts (e.g. for illustration purposes only, a change requiring extensive testing in a test environment, a significant increase in recurring support level costs, or significant out of pocket costs to OneNeck) shall result in additional fees. Minor upgrades or changes (e.g. for illustration purposes only, changes to configuration parameters, or updates & modifications that result in documentation or simple process changes) shall not result in additional fees. Any additional fees due to OneNeck shall be in accordance with the rates set forth in Exhibit E . Change Orders will not be completed without the mutual written consent of the Parties.

(c) Pending Change Order Requests . During any of the aforementioned change order procedures, the scope of Services, Service Levels and Service Fees, as provided herein and in the then-current Service Appendices and exhibits, shall remain in full force and effect.

10. TERMINATION .

(a) For Convenience . OneNeck shall provide Client with thirty (30) days prior written notice of Client’s right to renew the Agreement in accordance with this Agreement. Client may terminate this Agreement for any reason or no reason, at its convenience, by providing OneNeck a minimum six (6) months prior written notice; provided that if notice of termination is provided by Client during the first twenty-three (23) months of the Agreement, starting from the Effective Date, Client pays OneNeck an early termination fee (“ Termination Fee ”) in an amount equal to fifty percent (50%) of the Estimated Remaining Value. The Termination Fee shall apply to any early termination of this Agreement other than pursuant to termination of this Agreement by Client under Sections 10(b), 10(c) or 6(d) . In addition, in the event this Agreement is terminated pursuant to this Section during the Initial Term, Client shall indemnify OneNeck for the unamortized cost of the Transition, where the unamortized cost is the original Transition cost [**********] less the cumulative amortization, assuming three (3) years amortization.

(b) For Cause . In the event either Party fails to perform any of its material obligations under this Agreement and defaulting Party fails to substantially cure such default within forty-five (45) days after receiving written notice specifying the nature of the default, then the non-defaulting Party may, by giving notice to the other Party, terminate this Agreement as of the date specified in such notice of termination.

(c) For Insolvency . In addition to the termination rights set forth in Sections 10(a), 10(b) and 6(d) , subject to the provisions of Title 11, United States Code, if either Party becomes or is declared insolvent or bankrupt, is the subject to any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, renewal, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this Agreement as of the date specified in such notice of termination.

(d) Procedures . Upon termination or expiration of this Agreement and for a period not to exceed six (6) months from the effective date of such termination or expiration, OneNeck shall provide, upon Client’s request, (i) the transition/migration assistance more particularly set forth in Exhibit G “Termination Plan,” and (ii) all information and assistance necessary to ensure the smooth orderly transition of responsibility of the Services to Client or its designee (“ Termination Assistance ”). The Parties shall meet and agree upon a written termination/expiration transition plan within thirty (30) days after the receipt of any termination notice or, if the Agreement will not be renewed, then at least ninety (90) days prior to expiration. OneNeck shall provide such Termination Assistance on a time and materials basis at the rates set forth in Exhibit E , unless termination was “For Cause” or termination under Section 6(d) whereupon OneNeck shall provide such assistance for up to one hundred (100) hours without charge with any additional time to be billed at the rates set forth in Exhibit E . Nothing contained herein shall obligate Client to receive Termination Assistance from OneNeck.

11. DAMAGES . Each Party shall be liable to the other Party solely for damages arising out of or relating to its respective performance or failure to perform under this Agreement, as set forth more fully below:

(a) Client Breach . Subject to Sections 11(c) and (e) , should OneNeck terminate this Agreement pursuant to Section 10(b) , Client shall pay damages to OneNeck incurred as a result of the breach.

[**********] Confidential information marked by brackets has been omitted and an unredacted version filed separately with the SEC pursuant to Rule 24B-2 of the securities exchange act of 1934, as amended.

 

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(b) OneNeck Breach . Subject to Sections 11(c) and (e) , should Client terminate this Agreement pursuant to Section 10(b) , OneNeck shall:

(i) cooperate with Client in implementing the termination procedures set forth in Section 10(d) , and

(ii) pay Client for damages incurred as a result of the breach.

(c) Consequential Damages . Other than with regard to a violations of confidentiality, security obligations under this Agreement or costs or damages that result from an indemnification claim or obligation (collectively, “Excluded Items”), neither Party shall be liable, whether in contract, tort (including negligence), or otherwise, for any indirect, incidental, punitive, special, exemplary, or consequential damages or amounts for loss of income, profits, or savings arising out of or relating to performance or failure to perform under this Agreement, even if such offending Party has been advised of the possibility of such losses or damages. Nor shall the measure of any award include such damages or amounts. Such limit of liability shall not apply in cases involving gross negligence on the part of the offending Party.

(d) Equitable Relief . Either Party may seek equitable remedies, including specific performance and injunctive relief, for a breach of the other Party’s obligations under this Agreement. The Parties further agree that violation by one Party of the provisions contained in Sections 15 and 16 would cause irreparable harm to the other Party not adequately compensable by monetary damages. Thus, in addition to other relief, it is agreed that temporary and permanent injunctive relief is an appropriate remedy to prevent any actual or threatened violation of such provisions or to enforce such provisions according to their terms. The prevailing party in an action for injunctive relief under this Section shall be entitled to recover its costs of enforcement, including reasonable attorneys’ fees.

(e) Limitation of Liability . Except with respect to Excluded Items, notwithstanding any provision in this Agreement, neither Party’s total liability under this Agreement shall exceed total amounts payable or payments made to OneNeck by Client under this Agreement during the eighteen (18) months prior to the event. If this Agreement is terminated for breach less than eighteen (18) months following the Effective Date, the party’s total liability shall be the average monthly payments made to OneNeck by Client following the Effective Date, multiplied by eighteen (18).

(f) Liquidated Damages . Client acknowledges that OneNeck may suffer a materially adverse impact on its business if this Agreement is terminated by Client under Section 10(a) and that the resulting damages may not be susceptible of precise determination. Client acknowledges that the Termination Fee is a reasonable approximation of such damages and shall be deemed to be liquidated damages and not a penalty.

12. INDEMNITY .

(a) Indemnity by Client . Client shall indemnify and hold OneNeck harmless from and against any and all third party losses, claims, expenses (including reasonable attorney’s fees), suits, damages, costs, demands, or liabilities arising out of or relating to: i) the inaccuracy or untruthfulness of any material representation or warranty made by Client to OneNeck; ii) a material violation of Federal, state, or other laws or regulations including for the protection of persons or members of a protected class or category of persons by Client or its employees or agents; iii) sexual discrimination or harassment by Client or its employees or agents; iv) work-related injury or death caused by Client or its employees or agents; v) the data, information, and instructions furnished by Client pursuant to Section 14(a)(ii) ; and vi) any alleged or actual infringement or misappropriation of third party proprietary rights by Client’s Data or Client Equipment. Client shall be responsible for any costs and expenses incurred by OneNeck in connection with the enforcement of this Section 12(a) , including, but not limited to, reasonable attorney’s fees.

(b) Indemnity by OneNeck . OneNeck shall indemnify and hold Client harmless from and against any and all third party losses, claims, expenses (including reasonable attorney’s fees), suits, damages, costs, demands, or liabilities arising out of or relating to: i) any allegation or actual claim by a third party that the Services or OneNeck’s or its agents’ or contractors’ software or intellectual property used to provide the Services infringe upon any United States patent, copyright, trademark, or other proprietary right of a third party; ii) any claim by a third party with respect to services or systems provided by OneNeck to a third party; iii) the inaccuracy or untruthfulness of any representation or warranty made by OneNeck to Client; iv) a material violation of Federal, state, or other laws or regulations including for the protection of persons or members of a protected class or category of persons by OneNeck or its employees or agents; v) sexual discrimination or harassment by OneNeck, its employees, or agents;

 

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vi) work-related injury or death caused by OneNeck, its employees, or agents; vii) tangible personal or real property damage resulting from OneNeck’s negligent acts or omissions; and viii) any alleged or actual infringement or misappropriation of third party proprietary rights by OneNeck technology or intellectual property. OneNeck shall be responsible for any costs and expenses incurred by Client in connection with the enforcement of this Section 12(b) , including, but not limited to, reasonable attorney’s fees.

13. DISPUTE RESOLUTION .

(a) Party Representatives . Except for certain emergency judicial relief authorized under Section 11(d) which may be brought at any time, the Parties agree that all disputes between them shall be submitted for informal resolution to their respective chief operating officers. Any remaining or unresolved dispute shall be submitted to a court as a matter under law.

(b) Choice of Law . The validity, construction, and interpretation of this Agreement and the rights, duties, and obligations of the Parties hereto shall be governed by the laws of the State of Delaware.

(c) Venue and Jurisdiction . The Parties consent to the jurisdiction of any federal or state court located within a district which encompasses assets of a Party against which a judgment has been rendered for the enforcement of such judgment or award against such Party or the assets of such Party.

(d) Continuity of Performance . OneNeck acknowledges that the provision of the Services is critical to the business and operations of Client. Accordingly, in the event of a dispute between the Parties, during the pendency of the dispute resolution proceedings described in this Section 13 , OneNeck shall continue to provide the Services and Client shall continue to pay any undisputed amounts to OneNeck.

14. REPRESENTATIONS and WARRANTIES .

(a) By OneNeck . OneNeck represents and warrants that: i) it is a corporation validly existing and in good standing under the laws of the State of Arizona; ii) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; iii) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement; iv) in connection with performing its obligations under this Agreement, it shall comply with all applicable Federal, state and local laws and regulations and has obtained all necessary applicable permits, rights and licenses; v) it is the owner, or otherwise has the right (or shall acquire the right, as appropriate) to any writing or work of authorship created by OneNeck in the course of performing the Services (“ Developed Software ”) and that the Developed Software and the provision of the Services hereunder will not infringe upon the United States or European Union proprietary rights of any third party; vi) each of its employees providing Services hereunder shall have the proper training, skill and background, and that all Services shall be performed in a workmanlike manner consistent with good practice in the industry; vii) the Services shall be performed in accordance with the provisions of this Agreement; viii) the entering into and performance of this Agreement will not violate any judgment, order, law, or regulation applicable to OneNeck, or any provision of OneNeck’s Articles of Incorporation or by-laws; ix) shall use professional industry standards to secure information and data stored on the OneNeck system and transported from the OneNeck System to Client or to third parties; and x) there are no actions, suits, or proceedings pending, or to the knowledge of OneNeck, threatened, before any court or administrative agency, arbitrator, or governmental body which will, if determined adversely to OneNeck, materially adversely affect its ability to perform its obligations under this Agreement or any related agreement to which it is a party. The foregoing representations and warranties shall survive the execution and delivery of this Agreement and any amendments hereto.

(i) Limitation . OneNeck shall perform all Services in a commercially reasonable manner and compatible with accepted industry standards and practices. However, OneNeck does not represent or warrant that the Services will be entirely free from error or defect.

(ii) Reliance on Data Supplied . OneNeck will perform the Services set forth in this Agreement on the basis of certain data, information, and instructions furnished by Client. OneNeck shall be entitled to reasonably rely upon any such data, information, or instructions provided by Client. If any error results from incorrect data, information, or instructions supplied by Client, OneNeck shall not be liable to the extent any damages or delays arise therefrom and Client shall be responsible for discovering and reporting such error and supplying the data, information, or instructions necessary to correct such error upon notification and assistance from OneNeck. Client is ultimately responsible for the adequacy and

 

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accuracy of all Data provided to OneNeck by Client; provided , however, that OneNeck shall maintain the adequacy and accuracy of the Data while said Data is within the Service Boundary or otherwise in OneNeck’s possession and control. Furthermore, OneNeck shall be responsible for the correction of all errors in the adequacy and accuracy of the Data as OneNeck is notified of such errors by Client. Regardless of the foregoing, OneNeck shall be responsible to recognize when information, data, or instructions do not correlate with information technology industry standards.

(b) By Client . Client represents and warrants that: i) Client is a corporation validly existing and in good standing under the laws of Delaware; ii) Client has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement; iii) no approval, authorization, or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement; iv) the entering into and performance of this Agreement will not violate any judgment, order, law, or regulation applicable to Client, or any provision of Client’s Articles of Incorporation or by-laws; and v) there are no actions, suits, or proceedings pending, or to the knowledge of Client, threatened, before any court or administrative agency, arbitrator or governmental body which will, if determined adversely to Client, materially adversely affect its ability to perform its obligations under this Agreement or any related agreement to which it is a party. The foregoing representations and warranties shall survive the execution and delivery of this Agreement and any amendments hereto.

(c) Disclaimer of Warranties . EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF ONENECK AND CLIENT, RESPECTIVELY, SET FORTH IN THIS AGREEMENT, ONENECK AND CLIENT DISCLAIM ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

15. CONFIDENTIALITY .

(a) Confidential Information . Each Party hereby acknowledges that it may be exposed to confidential information belonging to or supplied by the other Party or relating to its affairs including, without limitation, the Data, software, business plans and procedures, the terms of this Agreement, and other information that may be marked as confidential or if unmarked, is information that a reasonable person, under the circumstances, would understand to be confidential (“ Confidential Information ”). Confidential Information of a Party shall mean all confidential or proprietary information and documentation of such Party, whether or not marked as such, that a reasonable person, under the circumstances, would deem confidential. Confidential Information shall not include: i) information which is or becomes publicly available (other than by the person or entity having the obligation of confidentiality) without breach of this Agreement; ii) information independently developed by the receiving party; iii) information received from a third party not under a confidentiality obligation to the disclosing party; or iv) information already in the possession of the receiving party without obligation of confidence at the time first disclosed by the disclosing party. The Parties acknowledge and agree that the substance of the negotiations of this Agreement, and the terms of this Agreement are considered Confidential Information subject to the restrictions contained herein. Neither Party shall use, copy, sell, transfer, publish, disclose, display, or otherwise make any of the other Party’s Confidential Information available to any third party without the prior written consent of the other Party.

(b) Nondisclosure Covenant . The Parties agree that the Confidential Information provided by each to the other shall be kept in strict confidence by the receiving Party and shall not be used or disclosed except as such use or disclosure is reasonably necessary for the performance of the receiving Party’s obligations hereunder, or such is required by applicable laws or regulations or the order of any court or governmental agency. In any such case where disclosure is so required, the disclosing Party shall be responsible for enforcement of the non-disclosing Party’s confidentiality obligation.

(c) OneNeck’s Confidential Information . Without limiting the generality of Confidential Information, OneNeck’s information, including business information or information about OneNeck’s customers or vendors, computer programs and software, documentation, methodologies, training aids and manuals, and procedures, belonging exclusively to OneNeck shall be treated as Confidential Information and Client shall not disclose, sell, assign, lease, or otherwise make available any such information to any third party or entity, other than its employees who require such information to perform their duties, and shall remain the property of OneNeck, eligible for reuse/resale.

 

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(d) Client’s Confidential Information . Without limiting the generality of Confidential Information, Client’s Data and any Client technology, methodologies, products, business information or information about Client’s customers or vendors shall be treated as Confidential Information and shall not be disclosed, sold, assigned, leased, or otherwise made available to any third party or entity by OneNeck without Client consent, except to OneNeck’s employees who require such information to perform their duties.

(e) Degree of Care . Each Party shall use at least the same degree of care in safeguarding the other Party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall less than due diligence and care be exercised.

16. PROPRIETARY RIGHTS .

(a) Client Data . Client shall remain the sole and exclusive owner of all Client Data, Client technology and intellectual property, including any improvements or enhancements thereto, and other Confidential Information (as herein above defined), regardless of whether such data is maintained on magnetic tape, magnetic disk, or any other storage or processing device. All such Client Data and other Confidential Information may upon Client’s prior approval, however, be subject to examination by the appropriate auditors to the same extent as if such information were on Client’s premises. Upon Client’s request and at Client’s expense, OneNeck shall promptly provide to Client copies of any and all Client Data on media designated by Client, in the format on which it resides on the Outsourcing System.

(b) Use of Client Data . Client Data shall not be: i) used by OneNeck other than in connection with providing the Services; ii) disclosed, sold, assigned, leased, or otherwise provided to third parties by OneNeck or OneNeck’s subcontractors; or iii) commercially exploited by or on behalf of OneNeck or OneNeck’s subcontractors. OneNeck shall adequately identify the Client Data as Client’s property and secure the Client Data.

(c) OneNeck Equipment and Outsourcing System . Client acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, methodologies, and similar related materials or processes, or any modifications thereof, provided by OneNeck, except with respect to Client’s use of the same during the Term in OneNeck’s provision of the Services. Any software modifications developed by OneNeck under this Agreement or any technology, methodologies, systems, scripts or agents used or developed by OneNeck (“Tools”) shall be the proprietary property of OneNeck and shall be owned exclusively by OneNeck, and Client shall receive a perpetual, royalty-free, nonexclusive, irrevocable right and license to use such proprietary software or Tools. OneNeck shall not have any rights to any software or documentation, methodologies, or systems developed by OneNeck, and paid for by Client outside the Base Service Fees, specifically for and at the request of Client and such items shall be deemed ‘works made for hire’ and OneNeck hereby assigns all of its rights title and interest to such documentation, methodologies, software or systems to Client.

(d) Client Equipment . OneNeck acknowledges that it has no rights in any software, hardware, systems, documentation, guidelines, procedures, and similar related materials or processes, or any modifications thereof, provided by Client, except with respect to OneNeck’s use of the same during the Term of OneNeck’s provision of the Services. Client shall take whatever action is necessary for OneNeck to be provided with nonexclusive rights and/or licenses to use software provided by Client for use by OneNeck in providing the Services.

(e) Security . Each Party shall establish and maintain safeguards against the destruction, loss, or alteration of Client Data, the Outsourcing System, and OneNeck and Client Equipment that shall be no less rigorous than those data security policies in effect to protect that Party’s similar confidential and proprietary information. In the event either Party discovers or is notified of a breach or potential breach relating to Client Data, the Outsourcing System, or OneNeck and Client Equipment, that Party shall immediately notify the other Party’s Account Representative of such breach or such potential breach and investigate such breach or such potential breach, and inform the other Party of the results of such investigation.

17. DISASTER RECOVERY .

(a) Disaster Recovery Plan . Upon the request of Client, and upon the execution of a separate Disaster Recovery Agreement, OneNeck shall maintain, throughout the Term of this Agreement, a disaster recovery plan (“Disaster Recovery Plan”). Any and all rights and obligations with respect to such Disaster Recovery Plan shall be set forth and governed by a separately executed Disaster Recovery Agreement. Unless and until such separate Disaster Recovery Agreement is entered into between the Parties, OneNeck shall have no disaster recovery obligations to Client.

 

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(b) Data Backup . Client acknowledges that in a worst case scenario wherein a disaster causes the destruction of OneNeck’s Data Center, Client’s Data will be restored under the Disaster Recovery Plan for the continuation of the delivery of Services to Client. Client shall maintain adequate records of items being transported to OneNeck or, where transactions are being transmitted to OneNeck by magnetic tape or other electronic medium, at least two (2) business days’ backup from which reconstruction of lost or damaged items or data can be made in the event disaster recovery actions need to be undertaken. CLIENT SHALL ASSUME FULL RESPONSIBILITY FOR ANY LOSS OR DAMAGE RESULTING FROM THE FAILURE TO MAINTAIN SUCH RECORDS.

18. GENERAL TERMS and CONDITIONS .

(a) Force Majeure . Notwithstanding any provision contained in this Agreement, neither Party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence and planning it would not be able to prevent, whether of the class of causes hereinbefore enumerated or not. This clause shall not apply to the payment of any sums due under this Agreement by either Party to the other, nor shall it extend the time periods under the Disaster Recovery Plan in the event the Services are affected as a result of the foregoing events.

(b) Transmission of Data . The expense and risk of loss associated with transportation and transmission of data and media between OneNeck and Client, outside the Service Boundary, shall be borne by Client, except in the event such loss, interruption or damage caused by OneNeck's (or its agent's or contractor's) actions or inactions. Client shall be responsible for properly submitting its data to OneNeck and OneNeck shall be responsible for properly transmitting the processed data to Client. Data lost by OneNeck following processing, including loss of data already transmitted, shall be restored by OneNeck from its back up media or shall be reprocessed at no charge to Client.

(c) Future Acquisitions . Client acknowledges that OneNeck has established the Fee Schedule and enters into this Agreement on the basis of OneNeck’s understanding of Client’s current need for Services and Client’s anticipated future need for Services as a result of internally generated expansion of its client base. If Client expands its operations by acquiring Control of additional companies or the Client experiences a Change in Control, the following provisions will apply:

(i) Acquisition of Additional Companies . If Client acquires Control, after the Effective Date hereof, of one or more other companies that are not currently Affiliates, OneNeck shall provide Services for such new Affiliates, at Client’s discretion and request, and such Affiliates shall automatically be included in the definition of “Client”; provided that a) the conversion of each new Affiliate must be scheduled at a mutually agreeable time (taking into account, among other things, the availability of OneNeck conversion resources) and must be completed before OneNeck has any obligation to provide Services to such new Affiliate; b) the Client will be liable for any and all expenses in connection with the conversion of such new Affiliate, c) Client shall pay for such conversion in an amount to be mutually agreed upon with respect to each new Affiliate, and d) Client shall pay to OneNeck any mutually agreed upon increase in service fees to be set forth in an amended Exhibit E , “Fee Schedule.”

(ii) Changes in Control of Client . If a Change in Control occurs with respect to Client, OneNeck agrees to continue to provide Services under this Agreement; provided that a) OneNeck’s obligation to provide Services shall be limited to the entities comprising the Client prior to such Change in Control and b) OneNeck’s obligation to provide Services shall be limited in any and all circumstances to the volume of information processed in the 3-month period prior to such Change in Control occurring plus ten percent (10%).

 

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19. MISCELLANEOUS .

(a) Entire Agreement . This document, together with the exhibits and schedules attached hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings, whether written or oral, between the Parties with respect to such matter. This document, including the exhibits and schedules attached hereto, may be amended only by an instrument in writing executed by the Parties or their permitted assignees.

(b) References . In this Agreement, including the schedules and exhibits attached hereto and incorporated herein, “include” and “including” shall mean respectively, “includes, without limitation” and “including, without limitation.”

(c) Interpretation . In the event of a conflict between this Agreement and the terms of any exhibits and schedules attached hereto, the terms of the schedules and exhibits shall prevail and control the interpretation of the Agreement and the exhibits and schedules as a single document.

(d) Assignment . Neither Party may assign this Agreement or any rights, obligations, or benefits under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided that either Party may freely assign this Agreement without the prior written consent of the other Party (i) in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets, stock, or securities, or (ii) to any entity which is a successor to the assets or the business of Client or OneNeck, provided in each case, with respect to OneNeck, the acquiring entity or successor entity of OneNeck is not a competitor of Client. In such a case, Client’s consent will be required, which will not be unreasonably withheld. Any assignment in contravention of this Section shall be void. This Agreement shall bind, benefit and be enforceable by and against the Parties and their respective successors and assigns. No outside party shall be considered a beneficiary of this Agreement or entitled to any rights under this Agreement.

(e) Relationship of Parties . The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Client or OneNeck joint venturers, principals, partners, agents, or employees of the other. No officer, director, employee, agent, affiliate, or contractor retained by OneNeck to perform work on Client’s behalf under this Agreement shall be deemed to be an employee, agent, or contractor of Client. Neither Party shall have any right, power or authority, express or implied, to bind the other. Each Party shall remain responsible, and shall indemnify and hold harmless the other Party, for the withholding and payment of all Federal, state, and local personal income, wage, earnings, occupation, social security, worker’s compensation, unemployment, sickness and disability insurance taxes, payroll levies, or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to themselves and their respective employees.

(f) Notices . Except as otherwise specified in the Agreement, all notices, requests, approvals, consents, and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by i) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid, deemed received five (5) days after posting; or ii) U.S. express mail, or other, similar overnight courier service to the address of the other Party first written above, deemed received two (2) days after posting with such courier. Notices shall be deemed given on the day actually received by the Party to whom the notice is addressed.

In the case of Client:           Attn: Director of Information Technology

In the case of OneNeck:     Attn: Client Account Manager

 

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(g) Section Headings . Section headings in this Agreement are for reference purposes only and shall not effect the interpretation or meaning of this Agreement nor be construed as part of this Agreement.

(h) Counterparts . This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original document but all such counterparts together shall constitute one binding agreement.

(i) Waiver . No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the Party waiving its rights.

(j) Severability . If any provision of this Agreement is held for any reason by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement will remain in full force and effect. Should a court of competent jurisdiction find that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

(k) Survival . Sections 10, 11, 14, 15 and 16 shall survive the expiration or earlier termination of this Agreement for any reason.

(l) Solicitation . Unless otherwise agreed to by the Parties, neither Party shall solicit the employees of the other Party during the Term of this Agreement, for any reason.

(m) No Third Party Beneficiaries . Each Party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the Client and OneNeck.

(n) Construction . OneNeck and Client each acknowledge that the limitations and exclusions contained in this Agreement have been the subject of active and complete negotiation between the Parties and represent the Parties’ agreement based upon the level of risk to Client and OneNeck associated with their respective obligations under this Agreement and the payments to be made to OneNeck and the charges to be incurred by OneNeck pursuant to this Agreement. The Parties agree that the terms and conditions of this Agreement shall not be construed in favor of or against either Party by reason of the extent to which either Party or its professional advisors participated in the preparation of this document.

 

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(o) No Unidentified Modifications to Signature Documents . The parties have reviewed (and, if applicable, negotiated) this Agreement in its electronic form. They desire to be able to sign the hard-copy version, as well as any SOW, exhibit, amendment, or addendum to this Agreement, without having to re-read such document to confirm that no unauthorized changes were made before the final printout. Toward that end, by signing and delivering this Agreement and/or any SOW, exhibit, amendment, or addendum thereto, now or in the future, each party will be deemed to represent to the other that the signing party has not made any change to such document (other than non-substantive changes such as format modifications and correction of typographical errors) from the draft(s) originally provided to the other party by the signing party, or vice versa, unless the signing party has expressly called such changes to the other party’s attention in writing (e.g., by “redlining” the document or by a comment memo or email).

THE PARTIES HEREBY ACKNOWLEDGE that they have read and understand this Agreement, its Schedules, and its Addenda, if applicable, and agree to be bound by all of the provisions, terms and conditions specified herein.

IN WITNESS WHEREOF, and intending to be legally bound, the Parties have caused this Agreement to be executed by their duly authorized representatives.

 

ONENECK IT SERVICES CORPORATION						ADEPT TECHNOLOGY, INC.
By:		/s/ David T. Glynn				By:		/s/ John Dulchinos
Name:		David T. Glynn				Name:		John Dulchinos
Title:		CAO				Title:		President & CEO
Date:		11/19/08				Date:		11/12/08

 

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EXHIBIT A-1

TABLE OF CONTENTS