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Faye Business Systems Group Professional Services Agreement Terms & Conditions

The following Standard Terms & Conditions shall apply to services to be provided by Faye Business Systems Group, Inc. (FBSG) to the Client and are an integral part of the attached engagement letter or proposal or Technology Cost Detail (this Agreement):

Fees may be based upon FBSG’s current standard hourly rates or upon a fixed fee proposal. If standard hourly rates are charged, they will be charged in quarter-hour increments for all time actually devoted to the performance of computer-related services as described in this Agreement, as well as research, analysis of requirements, evaluation and recommendation of alternatives, custom programming, installation of hardware/software, training, support, and implementation and troubleshooting of various computer-related problems, including time spent on the telephone, for travel, on site, or in FBSG’s office. In any given month, the minimum for hourly billed support calls would be $175.00 for the month.

Naturally, for fixed fee or otherwise designated projects or under standard support agreements, hourly rates will not be charged unless services are performed outside the designated scope of the engagement.

FBSG may perform any of its services through one or more agents, subcontractors or third party providers, provided that FBSG shall remain responsible to Client for the performance of all services and for the acts and omissions of any agent, subcontractor or third party provider.

During the performance of certain tasks, it may be impossible to determine the precise nature and extent of the necessary consulting services which may be required. Estimated hours for a specific service are good faith estimates of what the total fee may be, but not necessarily the total fee. FBSG will work as quickly and efficiently as possible in performing all of the services, which are necessary to complete the requested task. FBSG will endeavor to keep Client informed as to the amount of billable time that has been incurred as these services are being performed. Projects with no response from client within 90 days will be presumed to be closed and complete.

Invoices detailing the services for a given month will be rendered to Client at the month end or at the logical end of a project, and will be due and payable upon receipt unless other arrangements are made. Invoices for hardware or software will be due and payable upon delivery of the hardware or software. All invoice amounts shall be presumed to be correct unless Client notifies FBSG in writing within 10 days after receipt of the invoice. Any amount that remains unpaid for more than thirty (30) days shall be subject to a late charge computed daily at the lesser of 1.5% per month or the highest rate permitted by California law. There are no refunds once an invoice has been paid. Client agrees to pay for all costs and expenses incurred by FBSG (including attorneys’ fees and legal costs) in collecting or attempting to collect any amount due under this Agreement.

If FBSG and Client agree that FBSG shall provide additional services beyond the scope of this Agreement, then the terms and conditions of this Agreement shall apply to the provision of such services.

FBSG’s obligation to perform services hereunder shall be excused without liability when prevented by strike, act of God, governmental action, accident, act of war, act of terrorism, or any other condition beyond its reasonable control. FBSG agrees to resume performance of services as soon as practicable following cessation of such condition.

Either party may terminate this Agreement at any time by giving the other party 30 days’ advance written notice of termination. If Client fails to pay any amount when due pursuant to this Agreement, FBSG may suspend performance of the services and/or terminate this Agreement upon written notice.

Either party may terminate this Agreement without notice if the other party becomes insolvent, files a voluntary petition in bankruptcy, becomes the subject of an involuntary petition in bankruptcy which is not dismissed within 60 days, or has a temporary or permanent receiver, trustee, or custodian appointed for all or a substantial part of its assets. Upon any termination of this Agreement, the payment obligations, limitation of liability and indemnification obligations in this Agreement shall survive and continue to be binding on the parties.

Client acknowledges and agrees that FBSG shall be the exclusive owner of all intellectual property and other rights in and to all proprietary materials, information, development tools, source codes, object codes, know how, ideas, concepts, inventions, improvements, and methodology used in the conduct or within the scope of FBSG’s business, including personal and professional programming techniques, processes, code books, templates, computer program algorithms, system design, architecture, logic, structure, sequence, and organization developed, conceived, discovered, or known by FBSG, its employees, contractors or agents (either alone or with others, including Client), either prior to or during the performance of the services under this Agreement.

Client acknowledges that FBSG’s relationship with its employees, agents, clients and vendors are valuable business assets of FBSG. Therefore, Client agrees that, during the term of this Agreement and for a period of two (2) years thereafter, Client will not (for itself or for any third party) divert, solicit for employment, engage for consulting, interfere with, alter in any way, terminate or breach such business relationships of FBSG, or attempt to do any of the foregoing, directly or indirectly.

In the event Client, within the term of this Agreement and for a period of two (2) years thereafter, directly or indirectly engages or hires as an employee or independent contractor any person or entity who, during the term of this Agreement, performed services for Client under the terms of this Agreement, Client shall pay to FBSG as a finder’s fee a sum equal to one (1) year of compensation of such person or entity determined by annualizing (on the basis of 2080 hours per year) the rate at which compensation was paid by FBSG to such person or entity (e.g. the annual pay for an employee receiving $10,400/month would be $124,800 and the annual pay for an hourly employee receiving $60/hour would be $124,800).

Client acknowledges and agrees that any remedy at law for any breach of this Section by Client may be inadequate, and in the event of a breach or threatened breach of this Section, FBSG would suffer substantial and irreparable damage for which the recovery of damages, even if available, would not provide an adequate remedy. Therefore, FBSG shall be entitled (in addition to any other rights and remedies available at law or in equity) to seek specific performance and injunctive and other equitable relief to prevent or restrain the breaching or violating the provisions of this Section. Nothing herein contained shall be construed as prohibiting FBSG from pursuing any other remedies available to it at law or in equity for such breach or threatened breach, including without limitation the recovery of damages.

The parties intend that the provisions of this Section shall be enforced to the fullest extent permissible. Accordingly, if any provision of this Section is deemed to be invalid or unenforceable, this Section shall be considered amended to delete therefrom the portion that is invalid or unenforceable.

FBSG warrants to Client (and only to Client) that all of the services will be performed in a professional and workmanlike manner in accordance with this Agreement. For a period of ninety (90) days after the date services are completed, FBSG warrants that the services will be free from material errors and other defects in design, workmanship and materials, and will substantially conform to any specifications set forth in this Agreement. Obligations of FBSG under this Section shall be limited, at FBSG’s option, to correcting any such material errors or defects at no cost to Client or refunding fees paid to FBSG for such services. In no event shall FBSG be liable for any consequential damages. FBSG makes no other warranties or representations as to its services, including but not limited to, any implied warranties of merchantability, or fitness for a particular purpose.

From time to time, FBSG may recommend that Client acquire certain software and hardware. Although FBSG will use its professional judgment, knowledge, and expertise in recommending various software and hardware solutions, FBSG disclaims all liability in connection with the operation or suitability of client software and hardware, include software or hardware that Client acquires at the recommendation of FBSG. FBSG makes no warranties of any kind relating to its services, or any software or hardware, and agrees to transfer any manufacturer warranties applicable to any software or hardware to Client. Client also agrees that it will submit any claims which relate to any software or hardware only to the applicable manufacturer (and not FBSG).

FBSG shall be permitted to identify Client as a client, to use Client’s name and its trademarks, service marks, logos, symbols and/or brand names (“Marks”) in connection with proposals to prospective clients, to hyperlink from FBSG’s website to Client’s home page, to display Client’s Marks on FBSG’s website, and to otherwise refer to Client in print or electronic form for marketing or reference purposes. FBSG’s use of the Marks shall be subject to Clients logo and trademark usage guidelines, as provided to FBSG and as may be updated from time to time. Except as permitted hereunder or by separate written agreement of the parties, nothing in the Agreement shall create in either party any rights in any trademark, trade name, service mark, insignia, symbol, identification and/or logotype of the other party. FBSG may issue a press release announcing Client’s engagement of FBSG which shall be subject to the approval of both parties, which approval shall not be unreasonably withheld or delayed.

FBSG will not be responsible for any indirect, consequential, special, punitive or incidental damages, even if FBSG has been informed of the possibility of such damages, including, but not limited to, any lost profits, revenues or loss of business, any loss of technology or data, or any interruption of the use of machines resulting from any of our acts or omissions. FBSG’s aggregate liability for any direct damages relating to any services under this Agreement (regardless of the form of action or legal theory) will not exceed the aggregate fees payable by Client under this Agreement. Client agrees that it will not institute any legal action alleging a cause of action related to this Agreement or the services provided by FBSG more than one (1) year after the date such cause of action accrued.

Client and FBSG agree that this Agreement and these Standard Terms & Conditions express their entire understanding regarding this subject matter and they acknowledge that they are not relying upon any other understanding, representations or other agreements between the parties. This letter agreement may be amended or modified only in writing signed by both parties. Client and FBSG may waive any term or provision of this Agreement only in writing signed by the waiving party. If any term of this Agreement is determined to be illegal, invalid or unenforceable, the term will be eliminated or limited only to the extent necessary so that the remainder of this Agreement will be legal, valid and enforceable.

The interpretation and enforcement of this Agreement will be governed by the laws of the State of California (without regard to any choice of law principles). Client and FBSG agree to attempt to settle any dispute arising in connection with this Agreement through good faith consultation. If no agreement can be reached on such dispute, then the parties shall promptly submit such dispute to arbitration with the Los Angeles, California office of the JAMS, to be determined as expeditiously as possible in accordance with its rules then in effect. The arbitrator shall have the authority to issue restraining orders and injunctions and impose all remedies and sanctions which may be imposed in a California court of law. All discovery available under California Code of Civil Procedure § 1283.05, which is hereby incorporated into this Agreement, shall be available to the parties. The arbitration decision will be final, conclusive and binding on both parties and any arbitration award or decision may be entered in any court having jurisdiction. Client and FBSG agree that the prevailing party in any arbitration will be entitled to its arbitration award entered by any court of competent jurisdiction and to an award of its reasonable attorneys’ fees, legal costs and its share of arbitration fees.

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