Shiji Professional Services Terms and Conditions

1. Term Client

hereby engages Contractor, and Contractor here by accepts such engagement, upon the terms and conditions set forth herein, for the period commencing on the Effective Date specified in the Statement of Work(“SOW”), which is attached hereto asAppendix I and incorporated herein by reference and ending upon termination by either party, in accordance with Article D of this Agreement.  This Agreement may not be cancelled until all executed SOW’s are completed or cancelled.

2.     Services.

Contractor shall perform the services, and deliver the deliverables, set forth in the SOW (“Services”) in accordance with the timeline set forth in the SOW.  Any changes to the SOW must be accomplished through a written addendum to thisAgreement, signed by both parties. Upon full payment of the Services, Client shall acquire ownership of Contractor’s deliverables, if any, and an on exclusive license to use Contractor’s Intellectual Property (defined below)embodied therein, however, said license shall be limited to Client’s use ofContractor’s Intellectual Property as it is used in the deliverables, and without rights to reproduce or modify.

3.    Fees & Payment.

As payment for the provision of theServices, Client agrees to pay Shiji the fees set forth in Appendix I, which is incorporated herein by reference.  

4.    Invoicing.

i.              Monthly Service Plans: If the Services are rendered to Client on a month-to-month service plan, such monthly Services will be invoiced on a monthly basis and will be invoiced on the first business day of the month that precedes the month in which the monthly Services are rendered.  

ii.            Annual Service Plans: If Services are provided on annual service plan, such annual Services will be invoiced on a quarterly basis and will invoiced on the first business day of the quarter that precedes the quarter in which the Services are rendered.

iii.           Other Services: Any Service, other than monthly and annual service plans, shall be invoiced by Contractor in its reasonable discretion as outlined in theSOW.

iv.           Expenses: Contractor shall invoice Client, and Client shall be responsible for, all reimbursable expenses incurred by Contractor in providing the Services, which include but are not limited to costs of travel (i.e.airfare, rental car, hotel, meals), telephone bills, supplies, and the services of subcontractors and other third party costs. Shiji will make its best efforts to advise Client prior to incurring said cost. In the event that Shiji is unable, due to time constraints, to adviseClient of the third-party cost prior to incurring said cost, such cost will be billed to Client on the next invoice date. Shiji reserves the right to request that Client pay the third-party cost directly.  

v.             Invoices: Unless stated otherwise, invoices will be payable upon receipt and delinquent 15 days after the date of the invoice.  Each delinquent invoice will be subject to alate fee of $25. In the event of delinquency, and in addition to the late fee, interest shall accrue at 5% per month, compounded monthly, or at the highest rate permitted by Georgia law, whichever is lower. Payments will be applied first to late fees, second to accrued interest, and third to principal. Furthermore, in the event of delinquency, Contractor may suspend its performance under this Agreement, and may withhold or withdraw any deliverables or licenses with no liability for so doing.

vi.           Taxes:  The fees and expenses due to Shiji as set forth in this Agreement are net amounts to be received by Shiji, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes or duties incurred by Client or imposed on Shiji in the performance of this Agreement or otherwise due as a result of this Agreement.This Section will not apply to taxes based solely on Shiji’s income.

vii.         Offset:  Fees and expenses due from Client under this Agreement may not be withheld or offset by Client against other amounts for any reason.

viii.        Payment Methods: Shiji accepts the following payment methods. ACH electronic transfer, check, wire transfer and CreditCards.  For wire transfer payments, client is responsible for all fees imposed by client’s or Shiji’s bank fors ending or accepting each wire transfer. All credit cards payments will be assessed a three percent (3%)surcharge.

5. Assigned Contact.

Client shall make, at its own expense, reasonable efforts to cooperate with Contractor, including: (a) designating, at the initiation of the Services, a single representative with appropriate authority with whom Contractor can deal with, (b) responding to Contractor’s questions and requests for information and approval within a reasonable time, (c)promptly evaluating Contractor’s invoices and providing fair written notice of any questions or dissatisfaction regarding the invoice, and hereby waiving the right to challenge the accuracy and appropriateness of any invoice for which Client has not provided such notice within 30 days after the receipt of the invoice, (d)timely reporting any issues necessitating Contractor’s Services, (e) providingContractor with the access to Client’s records and systems necessary to perform the Services, and (f) providing timely information regarding Client’s requirements and conditions.

6. Independent Contractor

In performing the Services,Contractor is an independent contractor, and not an employee of the Client, no rare any of Contractor’s employees, agents or contract personnel employees of the Client.  Contractor shall have the right to perform services for others and the sole right to control and direct the means, methods and manner by which the Services required hereunder will be performed, consistent with the terms of this Agreement.

 Contractor shall not be entitled to any fringe benefits, including health insurance, benefits, paid vacation, or other employee benefits provided by the Client to its employees. Contractor is responsible for payment of any taxes, withholdings and any other statutory or contractual obligations of any sort, in connection with services provided hereunder. Contractor has no authority to create or assume any obligation on behalf of the Client, or to hold itself out as having such authority, without the prior written consent of the Client.

7. Intellectual Property Rights

i.              Contractor’sExisting Intellectual Property:Client recognizes that, prior to the Effective Date, Contractor owned certain intellectual property including, without limitation,  patents, trade dress, copyrights, related trademarks and service marks, partnership and business names, copyrights and copyrightable works of authorship, rights of publicity, moral rights and rights of attribution and integrity and rights to sue or recover and retain damages, costs and attorneys’ fees for past, present and future infringement, dilution or misappropriation of any of the foregoing (“Contractor’s Pre-existing Intellectual Property”). Client agrees thatContractor shall retain, on behalf of itself, all right, title and interest in the Contractor’s Pre-existing Intellectual Property, and no license or other right to Contractor’s Pre-existing Intellectual Property is granted or implied hereby, unless expressly stated otherwise.

ii.            IntellectualProperty Developments:Client agrees that Contractor shall be the sole owner, and shall have all right, title and interest in and to any intellectual property rights, including trade secrets, copyrights, trade and service marks, patent or non-patent able inventions and developments of any type, and any materials developed or used by Contractor (either solely or in conjunction with Client) during the course of providing any Services to Client hereunder(collectively “Intellectual PropertyDevelopments”). Furthermore, Client hereby assigns and disclaims in favor of Contractor any and all of rights that Client may have, if any, in suchIntellectual Property Developments. Client further agrees that no license or other right to any of Contractor’s Pre-existing Intellectual Property or IntellectualProperty Developments is granted or implied hereby, unless expressly stated otherwise. Contractor’s Pre-existing Intellectual Property and IntellectualProperty Developments are collectively referred to as “Contractor’s Intellectual Property.”

A.   CONFIDENTIALITY

1.     Confidentiality. It is understood that in the course of the Parties’ performance hereunder Contractor and/or Client, as the case may be (“Receiving Party”), may become privy to information relating to the other Party’s (“Disclosing Party”) operations, employees, finances, projects, products and production plans, research and development, system design, software, trade secrets, designs, trademarks, service marks, intellectual property, hardware, technical processes and formulas, source codes, activities, passwords, and similar sensitive information (collectively “ConfidentialInformation”).  Such Confidential Information shall be deemed confidential in every case where either a reasonable person would understand it to be confidential or the Disclosing Party has identified it as such, unless the information in question (i) was already known to theReceiving Party prior to its first disclosure hereunder; (ii) has become generally known to the public through no fault of the Receiving Party; or (iii)is required by law to be disclosed (in which case the Receiving Party shall provide the Disclosing Party with a reasonable opportunity to seek a protective order maintaining confidentiality).  ReceivingParty shall maintain the secrecy of all of the Disclosing Party’s Confidential Information(including, without limitation, all Confidential Information that the ReceivingParty has received or will receive from third parties), using the same care it applies to its own Confidential Information, and shall make use of such ConfidentialInformation only to the minimum extent necessary to effect the Agreement.  The Receiving Party shall not exploit or reveal to any third party any of such information without the DisclosingParty’s express prior written consent. This provision shall apply to all ConfidentialInformation, whether it was exchanged before or after the date of thisAgreement.  All Confidential Information referred to in this Article B in whatever form shall at all times remain the property of the Disclosing Party, and shall, upon written request of the DisclosingParty, be delivered by the Receiving Party to the Disclosing Party in all tangible forms, or, promptly destroyed by Receiving Party to the extent such delivery is impracticable.  

2.     Use of Confidential Information. Receiving Party agrees that is shall use the Confidential Information of the Disclosing Party solely for the purposes set forth in this Agreement and shall have no right to use or disclose such information or materials for any other purposes.  The Receiving Party understands and agrees that the Disclosing Party’s Confidential Information is being provided to the Receiving Party only, and not to any others agencies, organizations orcorporations.  The Receiving Party may disclose the Disclosing Party’s Confidential Information to its relevant employees, agents or contractors, provided that the Receiving Party shall ensure that such persons shall comply with relevant terms and conditions of this Article B, and that it shall assume any liability arising out of any breach by such persons of relevant terms and conditions of this Agreement.  Receiving Party is not authorized under this Agreement to reproduce, distribute, or otherwise share the Confidential Materials of theDisclosing Party with any individual or organization outside of that of the receivingParty.

3.     Safeguarding of ConfidentialInformation.  Receiving Party shall immediately provide written notice the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.  Client agrees to use its diligent efforts to protect Contractor’s Intellectual Property while executing its rights under this Agreement. Specifically, Client agrees to advise Shiji immediately upon knowledge of any infringements of Contractor’s IntellectualProperty, and to assist as reasonably requested by Shiji, in the safe guarding of such rights.

4.     Breach of Confidentiality. Disclosing Party agrees that it would be difficult to measure any damages which might result from any breach by Receiving Party of the promise sset forth in herein in this Article B, and that in any event damages would bean inadequate remedy for any such breach. Accordingly, Receiving Party agrees that if it breaches, or proposes to breach, any portion of this Article B, the Disclosing Party shall be entitled, in addition to all other remedies that it may have, to an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to Disclosing Party or posting any bond other wise required by law.

B.   Representations And Warranties

1.    Warranties. Contractor represents and warrants that the Services will be performed in a good workmanlike manner, by competent personnel, and in accordance with applicable professional standards.  If any element of the Services does not conform to the foregoing warranty, the Client shall notify the Contractor in writing of such non-conformance, and Contractor shall have the opportunity tore-perform such element in a manner that does conform. Other than as expressly stated herein, Contractor shall perform the Services without warranties, either express or implied.

2.     Limitation of Liability. In no event will Shiji be liable to Client or any third party for the cost of procuring substitute goods or services, lost profits, loss of use, loss of data or any incidental, consequential, indirect, or special damages, whether under contract, tort, warranty or otherwise, arising in any way out of this or any other related agreement, whether or not such party had advance notice of the possibility of such damages.  In the event that Shiji (including any of its sub consultants or affiliated entities or individuals) is found to be liable to Client (or any of its affiliated entities or individuals, contractors or successors and assigns) for damages under this Agreement, the Parties agree that the total amount of such damages will not exceed the total price paid by Client for the Services. Contractor will not provide any Services for any altered, mishandled, or modified software, derivative works, or defects in any software which is caused by Client’s negligence or hardware malfunction. Contractor may refuse to provide or may suspend any Services on any software which Client does no town or have the right to use under a valid license or sub licenses, or if such licenses have been breached in a material manner, with no liability for so doing.

D.  Termination

1.     Termination.  This Agreement shall terminate on the earlier of: 1) the date for expiration of the Term of the Agreement set forth inAppendix I; 2) upon 30 days written notice by Shiji; or 3) upon 30 days written notice by Client.  In the event that such termination occurs prior to delivery of the materials and services set forth inAppendix I, Client may be entitled to a refund of prepaid Services, in the sole and absolute discretion of Shiji or as required by law.  After delivery of the materials and services set forth in Appendix I, Client may terminate the Agreement but will not be entitled to a refund of any prepaid Services.

2.     Effect of Termination. In the event of expiration or termination of this Agreement, and provided that Client has not provided full payment all Services, all rights and licenses granted by Shiji to Client here under shall immediately terminate, and Client shall promptly return to Shiji all Shiji Materials in its possession.  

3.    Survival ofTermination. Paragraphs A (3) and (4), Article B, and Paragraphs C(1) and (2), and any other provision that by necessary implication is intended to survive the termination of this Agreement, shall survive the termination of this Agreement.

E.  INDEMNIFICATION

1.    Client’s Indemnification: Client agrees to indemnify, defend, and holdContractor (including Contractor’s accountants, administrators, agents, successors, assignees, attorneys, beneficiaries, conservators, directors, employees, executors, guardians, heirs, joint ventures, independent contractors, members, managers, officers, partners, representatives, servants, stockholders, successors, and all others acting for, under, or in concert with any of them) harmless from all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, attorneys’ fees, and costs, that Contractor may incur as a result of a breach by Client of any agreement, obligation, or representation contained in this Agreement.

2.    Contractor’s Indemnification: Contractor agrees to indemnify, defend, and holdClient (including Client’s accountants, administrators, agents, successors, assignees, attorneys, beneficiaries, conservators, directors, employees, executors, guardians, heirs, joint ventures, independent contractors, members, managers, officers, partners, representatives, servants, stockholders, successors, and all others acting for, under, or in concert with any of them)harmless from all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, attorneys’ fees, and costs, that Client may incur as a result of a breach by Contractor of any agreement, obligation, or representation contained in this Agreement.

F.  Miscellaneous Provisions

1.     Governing Law, Venue and Jurisdiction. This Agreement shall be construed and controlled by the laws of the State of Georgia, United States of America and the federal law of the United States of America, without reference to conflict of law principles.The Parties agree that all disputes arising in any way out of this Agreement shall be heard exclusively in, and all Parties irrevocably consent tojurisdiction and venue in the state and federal courts of the State of Georgia.

2.     Assignment.

Client shall not assign or transfer, in whole or in part, this Agreement (whether directly or indirectly, whether by operation of law or otherwise) without the express consent of Shiji.Shiji may assign or transfer this Agreement without the consent of Client.

3.     Succession. This Agreement shall be binding upon the legal successors of the Parties. For the avoidance of doubt, the legal successors of Client include any Person, including any Affiliate of Client, that succeeds to, engages in or continues all or part of the Business conducted by Client during the Term hereof.

4.     Arbitration. Any controversy or claim arising out of or relating in any way to thisAgreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof.

5.     Authority.

Each Party represents and warrants to the other Party that such Party is authorized and has the power and authority to execute and deliver thisAgreement and to perform such Party’s obligations hereunder.

6.     Severability.

Should any one or more provisions of this Agreement or any other agreement or document executed under or in connection with this Agreement be held invalid, such invalidity shall not affect the validity of the remaining provisions of this Agreement or any such other agreement or document or any part thereof.

7.     EntireAgreement; Waiver.

This Agreement sets forth the entire understanding of the Parties and supersedes all prior agreements and understandings relating hereto. No modifications or additions to or deletions from this Agreement shall be binding unless agreed to in writing and signed by both Shiji and an authorized representative for the Client, and the waiver of any breach or default will not constitute a waiver of any other right here under or any subsequent breach or default.

8.     Attorney Fees and Costs.

In the event of any controversy, claim or dispute between the parties to this Agreement, arising out of or relating to this Agreement, its enforcement or interpretation, or any breach of any provision of this Agreement, the prevailing party, in addition to its other remedies, shall be entitled to recover from the losing party the prevailing party’s reasonable expenses, attorney fees, and costs, including those incurred on appeal and for enforcement of an award or judgment.

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