Exhibit 10.27
EXHIBIT
“A”
TRANSITION SERVICES
AGREEMENT
This TRANSITION SERVICES AGREEMENT
(this “ Agreement ”) is dated as of June
2009, by and between eResearchTecnology,
Inc., a Delaware corporation (“ Provider ”) and
OmniComm Systems Inc., a Delaware corporation (“ Buyer
”).
WHEREAS, on even date herewith, Buyer purchased from
Provider certain assets of the Provider’s electronic data
capture business pursuant to that certain Asset Purchase Agreement
(the “ Purchase Agreement ”) dated the date
hereof between Provider and Buyer.
WHEREAS, Provider is prepared to provide certain services
to Buyer following the date hereof upon the terms and conditions
set forth herein.
NOW THEREFORE
, for and in consideration of the
premises and mutual covenants and agreements contained herein and
in the Purchase Agreement, the parties agree as follows:
ARTICLE XIX
SERVICES PROVIDED
Services . Upon the terms and subject to the conditions
set forth in this Agreement, Provider shall use commercially
reasonable efforts to provide to Buyer each of those services set
forth in Schedule A (the “ Services
”).
Representatives
. Promptly after the date hereof,
Provider and Buyer shall each nominate a representative to act as
its primary contact person to coordinate the provision of all of
the Services. Any amendments to this Agreement must be approved in
advance by such representatives.
Level of Services
. Provider shall perform the
Services in a manner reasonably consistent with past practice and
reasonably consistent with industry standards.
Limitation of
Liability . The parties
hereto acknowledge and agree that the Services are provided by
Provider: (a) at the request of Buyer in order to accommodate
it following the Closing under the Purchase Agreement, (b) at
the costs and period of performance set forth in Schedule A
attached hereto, and (c) with the expectation that Provider is
not assuming any financial or operational risks, including those
usually assumed by a service provider, except for those risks set
forth herein. Each party agrees that the other party, its
subsidiaries and affiliates and their respective directors,
officers, employees, representatives, consultants and agents shall
not be liable for any indirect, incidental or consequential
damages, including lost profits, loss of market value, or savings,
whether or not such damages are foreseeable. In the event Provider
commits an error with respect to or incorrectly performs or fails
to perform any Service, at Buyer’s request, Provider shall
make a good faith attempt to correct such error, re-perform or
perform such Service at no additional cost to Buyer. In no event
shall the liability of either party under this Agreement exceed the
aggregate of the amounts paid hereunder during the Term of this
Agreement.
Indemnity .
Buyer shall defend, indemnify and
hold Provider and its affiliates and the respective directors,
officers, employees, agents, successors and assigns of Provider or
its affiliates harmless, to the full extent permitted in law or
equity, from and against any and all losses, damages, liabilities,
costs and expenses (including reasonable attorneys’ fees and
expenses) (collectively, “ Losses ”),
whether
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or not arising out of third-party claims and
including all amounts paid in investigation, defense or settlement
of the foregoing (collectively, “ Claims ”), to
the extent such Losses arising from Claims are proximately caused
by or resulting from: (i) the negligence, reckless conduct or
willful misconduct of Buyer or its affiliates, and their respective
employees or agents in the performance of this Agreement or
otherwise, (ii) any breach by Buyer of its obligations under
this Agreement (iii) the presence at, or occupation or use of,
Provider’s facilities by any employee, agent or other
representative of Buyer, or (iv) any violation by Buyer of any
applicable U.S. or other federal, state or local regulation,
statute or order in the performance of this Agreement, except to
the extent that such Losses arising from Claims arise from the
negligence, reckless conduct or willful misconduct of Provider or
any affiliate thereof or any employee, agent or representative of
Provider or any affiliate thereof.
Provider shall defend, indemnify and
hold Buyer and its affiliates and the respective directors,
officers, employees, agents, successors and assigns harmless, to
the full extent permitted in law or equity, from and against any
and all Losses arising from Claims, to the extent such Losses
arising from Claims are proximately caused by or resulting from:
(i) the negligence, reckless conduct or willful misconduct of
Provider, its employees or agents in the performance of the
Services or otherwise, (ii) any breach by Provider of its
obligations under this Agreement, or (iii) any violation by
Provider of any applicable U.S. or other federal, state or local
regulation, statute or order arising out of Provider’s duties
under this Agreement, except to the extent that such Losses arising
from Claims arise from the negligence, reckless conduct or willful
misconduct of Buyer or any of its affiliates or any employee, agent
or representative of Buyer or any affiliate thereof.
Force Majeure
. Any failure or omission by a party
in the performance of any obligation under this Agreement shall not
be deemed a breach of this Agreement or create any liability, if
the same arises from any cause or causes beyond the control of such
party, including but not limited to, the following, which, for
purposes of this Agreement shall be regarded as beyond the control
of each of the parties hereto: acts of God, fire, storm, flood,
earthquake, governmental regulation or direction, war, terrorist
acts, insurrection riot, invasion, strike or lockout; provided,
however that such party shall resume the performance whenever
such causes are removed.
No Obligation to Continue to Use
Services; Provider to Assist in Transitioning
. Buyer shall not be obligated to
use the Services and may terminate the Services at any time by
giving Provider ten (10) days prior notice thereof in
accordance with the notice provisions herein, or as otherwise
mutually agreed between the parties.
ARTICLE XX
COMPENSATION
Consideration
. As consideration for the Services,
Buyer shall pay to Provider the cost specified for each such
Service as set forth in Schedule A . The monthly cost for
the Services if terminated pursuant to Section 1.7 shall be
prorated for the month in which the Services are
terminated.
Invoices . After the end of each month, Provider will
submit a single itemized invoice to Buyer for all Services provided
to Buyer during such month. All invoices shall be sent to the
attention of the Primary Coordinator at the address set forth in
Section 5.1 hereof or to such other address as Buyer shall
have specified by notice to Provider.
Payment of Invoices
. Payment of all invoices shall be
made by check or electronic funds transmission in U.S. Dollars,
without any offset or deduction of any nature whatsoever within
thirty (30) days of the invoice date. All payments shall be
made to the account designated by Provider to Buyer.
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ARTICLE XXI
CONFIDENTIALITY
Obligation
. Except as compelled by a court of
proper jurisdiction or as required by applicable law or stock
exchange regulation, neither party nor its subsidiaries shall use
or permit the use of (without the prior written consent of the
other party) and shall keep, and shall cause its consultants and
advisors to keep, confidential all information (other than
information that is in the public domain, is independently
developed or is rightly received from a third party who is not
known after reasonable inquiry by the disclosing party to be
subject to a confidentiality obligation with respect to the
disclosed information) concerning the other party and its
subsidiaries and affiliates received pursuant to or in connection
with this Agreement.
Care and Inadvertent
Disclosure . With respect
to any confidential information each party agrees as
follows:
it shall use the same degree of care
in safeguarding said information as it uses to safeguard its own
information which must be held in confidence, but not less than
reasonable care;
upon the discovery of any
inadvertent disclosure or unauthorized use of said information, or
upon obtaining notice of such a disclosure or use from any other
party, it shall take reasonable actions to prevent any other
inadvertent disclosure or unauthorized use;
to promptly return the confidential
information to the other party upon
