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SOFTWARE DEVELOPMENT

AND CONSULTING AGREEMENT

This Software Consulting Agreement ("Agreement") is entered into this _________ day of _______________________, ____ between _______________________________, a corporation organized and existing under the laws of the [State] [Commonwealth] of ___________________ and having a principal place of business at ____________________ ("Client") and ________________________, a corporation organized and existing under the laws of the [State] [Commonwealth] of ___________________ and having a principal place of business at _____________________ ("Consultant").

1. Performance by Consultant. Consultant agrees to provide consulting and software development services (the "Services") specified in the Statement of Work attached hereto as Exhibit A, as amended from time to time by Supplemental Statements of Work.

2. Payment for Services.

a. Fees and Price Protection. Client agrees to pay Consultant for the Services in accordance with the Fee Schedule set forth in the Statement of Work. The fees specified in the Statement of Work are the total fees and charges for the Services and will not be increased during the term of this Agreement except as the parties may agree in writing. Consultant represents that the price stated for the Services performed hereunder is at least as favorable as that charged to any other customer for the same or similar services.

b. Out‑of‑Pocket Expenses. Consultant shall be reimbursed for all reasonable out-of-pocket expenses not exceeding an allotment of $_______ per month incurred in performance of the Services. Consultant shall obtain the written approval of Client before incurring expenses in a month in excess of this allotment.

c. Invoices. Consultant shall invoice Client monthly for Services rendered during the preceding month. The invoice will detail the work performed during that period. Client will pay the invoices within 30 days after receipt.

3. Obligations of Consultant.

a. Work on Client's Premises. Consultant will ensure that its employees and agents will, whenever on Client's premises, obey all reasonable instructions and directions issued by Client.

b. Key Person. The parties agree that Johnny Johnserson is essential to the Services offered pursuant to this Agreement and should this person no longer be active on Client's account or be employed by Consultant for whatever reason, Client shall have the right to terminate this Agreement on 30 days' written notice.

c. Consultations and Reports. Consultant agrees to make available a Consultant's representative, who shall be mutually agreed upon by Consultant and Client, for monthly meetings to review the progress of all work under this Agreement. Consultant also shall prepare and submit to Client each month a written report setting forth the status of such work in a format to be mutually agreed upon by Consultant and Client.

d. Regeneration of Lost or Damaged Data. With respect to any data that Consultant has lost or damaged, Consultant shall at its own expense promptly replace or regenerate such data from Client's machine-readable supporting material or obtain at Consultant's own expense, a new machine-readable copy of the lost or damaged data from Client's data sources.

4. Obligations of Client. Client agrees to make available to Consultant, upon reasonable notice, computer programs, data, and documentation required by Consultant to complete the Services.

5. Statements of Work.

a. In General. When required by Client, the parties shall in good faith negotiate Supplemental Statements of Work ("Supplements"), each of which upon signing shall be deemed a part of this Agreement. Supplements, which shall be entered into as required by Client, shall be substantially in the form of Appendix B hereto. Unless otherwise agreed in a Supplement, the following provisions shall govern Supplements generally:

i. Term. In the absence of an express provision for the duration or early termination of a Supplement, agreements shall be terminable on 30 days' written notice of either party without cause.

ii. Payment. Supplements may call for lump sum or periodic payment, or payment against performance milestones, and for compensation based on time and materials or on a fixed price.

iii. Specifications. Supplements shall include written specifications for any computer programs and documentation to be provided thereunder.

iv. Costs of Negotiating. In the event that the parties do not conclude negotiations for a specific Supplement, each party shall bear its respective costs relating to the negotiations unless otherwise agreed, and the progress of such efforts and discussions shall not obligate either party to the other.

v. Other. Each Supplement may contain such additional terms and conditions as may be mutually agreed to by the parties, including by way of example and not limitation, automatic renewal terms, required supplementary documentation, further specifications, or the like.

b. Installation and Testing. Consultant shall provide reasonable assistance to Client to facilitate Client's installation and testing of all computer programs developed under the Statement of Work or Supplements (i) against previously prepared specifications and (ii) for systems integration ("Acceptance Testing"). Acceptance Testing shall be commenced within 10 days of delivery and installation by Consultant of any computer program, and the computer program shall be deemed accepted when it has operated in conformity with specifications for a period of 30 consecutive days ("Acceptance"). In the event that the computer program does not so perform, the period shalt be extended on a day-by-day basis until performance is achieved for 30 consecutive days. If, at any time following 60 days after commencement of Acceptance Testing, the computer program has not met Acceptance Testing standards, Client may terminate the Supplement.

6. Rights in Data and Works.

a. Ownership. Consultant agrees that Client is the owner of all rights, title, and interest in all computer programs, including any source code, object code, enhancements, and modifications; all files, including input and output materials; all documentation related to the computer programs and files; all media upon which any such computer programs, files, and documentation are located (including tapes, disks, and other storage media); and all related materials that are used by, developed for, or paid for by Client in connection with the performance of any Services provided by Consultant before or after the date set forth above.

b. Proprietary Rights. In no way limiting Section 6.a. above, the parties intend for the works created under this Agreement to be works made for hire; however, if such works are not considered works made for hire, Consultant agrees that all copyrights and other proprietary rights in such works, computer programs, files, documentation, and related materials, paid for by Client or developed by Consultant under this Agreement, shall be assigned to Client upon payment in full.

c. Access. Client shall have unrestricted access to all computer media containing Client data from time to time in connection with the performance of the Services. Consultant, at the request of Client, promptly shall deliver to Client all computer programs including source code, files, media, documentation, and related materials concerning any services provided by Consultant before or after the date of this Agreement.

7. Recruitment. Consultant and Client agree not to recruit employees who are currently employed (or who were employed in the last six months) by the other party unless written permission is obtained from the other party. This provision shall remain in effect for a period of six months after termination of this Agreement.

8. Warranties. Consultant warrants the following with respect to Services performed:

a. Compliance with Specifications. Consultant's computer programs, files, documentation, and all other work product will strictly comply with the descriptions and representations as to the Services (including performance capabilities, completeness, specifications, configurations, and function) that appear in the Statement of Work or any Supplemental Statements of Work.

b. Compliance with Specifications After Acceptance. For a period of 180 days after Acceptance pursuant to Section 5.b., any computer programs developed under this Agreement will operate in conformance with the specifications for such computer programs.

c. Non-Infringement of Third-Party Rights. The Services will not violate or in any way infringe upon the rights of third parties, including property, contractual, employment, trade secrets, proprietary information, and non‑disclosure rights, or any trademark, copyright, or patent rights.

9. Termination.

a. Commencement and Renewal. This Agreement shall commence on the date set forth above and shall remain in effect for one year. Thereafter, this Agreement shall be renewed automatically without interruption for successive one-month terms at the same terms, conditions, and prices as set forth herein. After the initial one-year term, either party may notify the other party in writing of its election not to renew, in which event this Agreement will terminate 30 days after receipt of such notice. This Agreement may be renewed with revised terms, conditions, and prices only upon written agreement of both parties.

b. Termination. Either party, upon giving written notice to the other party, may terminate this Agreement:

i. if the other party or its employees, consultants, or other agents violate any provision of this Agreement and the violation is not remedied within 30 days of the party's receipt of written notice of the violation;

ii. if at any time after the commencement of the Services, Client, in its reasonable judgment, determines that such services are inadequate, unsatisfactory, or substantially nonconforming to the specifications, descriptions, warranties, or representations contained herein and the problem is not remedied within 30 days of the party's receipt of written notice describing the problem; or

iii. at any time in the event the other party terminates or suspends its business, becomes subject to any bankruptcy or insolvency proceeding under federal or state statute, or becomes subject to direct control by a trustee or similar authority.

In the event that any of the above events occurs to a party, that party shall immediately notify other party of its occurrence.

c. Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Consultant shall promptly return to Client all computer programs, files, documentation, media, related material, and any other material that, pursuant to Section 6 above, is owned by Client. Expiration or termination of this Agreement shall not relieve either party of its obligations regarding Confidential Information under Section 10 below.

10. Confidential Information.

a. Non‑Disclosure. Each party agrees not to use, disclose, sell, license, publish, reproduce, or otherwise make available the Confidential Information of the other party except and only to the extent necessary to perform under this Agreement. Each party agrees to secure and protect the other party's Confidential Information in a manner consistent with the maintenance of the other party's confidential and proprietary rights in the information and to take appropriate action by instruction or agreement with its employees, consultants, or other agents who are permitted access to the other party's Confidential Information to satisfy its obligations under this Section.

b. Definition. "Confidential Information" means a party's information, not generally known by non-party personnel, used by the party and that is proprietary to the party or the disclosure of which would be detrimental to the party. Confidential Information includes, but is not limited to, the following types of information (whether or not reduced to writing or designated as confidential):

i. work product resulting from or related to Services performed under this Agreement;

ii. a party's computer software, including documentation;

iii. a party's internal personnel, financial, marketing, and other business inform manner and method of conducting business;

iv. a party's strategic, operations and other business plans and forecasts;

v. confidential information provided by or regarding a party's employees, customers, vendors, and other contractors; and

vi. the existence of a contractual relationship between the parties.

c. Confidentiality Agreement With Consultant's Employees. All of Consultant's employees or agents who perform services for Client shall sign a confidentiality agreement in a form approved by Client.

11. Indemnification. Consultant agrees to indemnity and shall hold harmless (including payment of reasonable attorney fees) Client, its corporate affiliates, and any employee or agent thereof (each of the foregoing being hereinafter referred to individually as "Indemnified Party") against all liability to third parties (other than liability solely the fault of the Indemnified Party) arising from or in connection with the performance of Services under this Agreement. Consultant's obligation to indemnify any Indemnified Party will survive the expiration or termination of this Agreement by either party for any reason. Client shall conduct the defense of any such third-party action arising as described herein unless Consultant and Client shall mutually agree that Consultant will conduct the defense.

12. Limitation of Liability. In no event shall either of the parties hereto be liable to the other for the payment of any consequential, indirect, or special damages, including lost profits. The provisions of this Section, however, shall not apply in any way to Consultant's obligations to replace, regenerate, or obtain lost or damaged data or to indemnify any Indemnified Party.

13. Injunctive Relief. It is hereby understood and agreed that damages shall be an inadequate remedy in the event of a breach by Consultant of this Agreement and that any breach by Consultant will cause Client great and irreparable injury and damage. Accordingly, Consultant agrees that Client shall be entitled, without waiving any additional rights or remedies otherwise available to Client at law or in equity or by statute, to injunctive and other equitable relief in the event of a breach or intended or threatened breach by Consultant.

14. Assignment.

a. Consent Required. Consultant shall not assign or subcontract the whole or any part of this Agreement without Client's prior written consent.

b. Subcontracting. Any subcontract made by Consultant with the consent of Client shall incorporate by reference all the terms of this Agreement. Consultant agrees to guarantee the performance of any subcontractor used in performance of the Services.

15. Other Provisions.

a. Status as Independent Contractor. Consultant and Client are contractors independent of one another, and neither party's employees will be considered employees of the other party for any purpose. This Agreement does not create a joint venture or partnership, and neither party has the authority to bind the other to any third party.

b. Applicable Law and Forum. This Agreement shall be governed and construed in accordance with the laws of the [State] [Commonwealth] of _______________ without regard to the conflicts of laws or principles thereof. Any action or suit related to this Agreement shall be brought in the state or federal courts sitting in _____________.

c. Notices. Any notice or other communication required or permitted under this Agreement should be given in writing and delivered by hand or by registered or certified mail, postage prepaid and return receipt requested, to the following persons (or their successors pursuant to due notice):

If to Client:

If to Consultant:

d. Waiver. No waiver by Client of any breach by Consultant of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other provisions hereof. No such waiver shall be effective unless in writing and, then, only to the extent expressly set forth in writing.

e. Entire Agreement. This Agreement, including Appendices A and B, constitutes the agreement between Consultant and Client.

f. Modifications. No modification of this Agreement shall be effective unless in writing and signed by both parties.

g. Severability. If any provision of this Agreement is invalid or unenforceable under any statute or rule of law, the provision is to that extent to be deemed omitted, and the remaining provisions shall not be affected in any way.

IN WITNESS WHEREOF, and in acknowledgment that the parties hereto have read and understood each and every provision hereof, the parties have executed this Agreement on the date first set forth above.

CLIENT:

Signature

Name

Title

Address

CONSULTANT:

Signature

Name

Title

Address

APPENDIX A-STATEMENT OF WORK

1. Description of Services

2. Fee Schedule

APPENDIX B-SUPPLEMENTAL STATEMENT OF WORK

This Supplemental Statement of Work is entered into as of this ____ day of _____________, ____, by and between _________________________________ ("Client") and ______________________ ("Consultant").

1. Relationship to Agreement

This Supplemental Statement of Work is subject to all the terms and conditions of the Soft Consulting Agreement ("Agreement").

2. Effective Date and Term

This Supplemental Statement of Work shall be effective as of the date first written above and shall terminate on ___________________, ____ or earlier, upon no less than _____ days' prior notice of termination given by either party to the other for any reason. Consultant represents that the termination date above reflects its best estimate of the time required to perform under this Supplemental Statement of Work.

3. Services

Consultant shall staff this contract with the equivalent of _________________ full time employment to develop and document, if required, the computer program(s) or perform the other services specified on Schedule 1 hereto. All work delivered hereunder shall meet the specifications (as defined in Schedule 1) and satisfy Acceptance Testing (as defined in the Agreement).

4. Payment

This Supplemental Statement of Work shall be payable on a time and materials or fixed price basis as indicated in Schedule 2 hereto. Payment shall be against invoices, which shall describe in reasonable detail the nature and extent of work performed during the billing period.

5. Other Provisions

Schedule 3 hereto specifies any further terms and conditions made part of this Supplemental Statement of Work.

CLIENT: CONSULTANT:

______________________________ _________________________

Signature Signature

SCHEDULE 1

to Supplemental Statement of Work

SPECIFICATIONS

Specifications of computer program(s) and documentation:

SCHEDULE 2

to Supplemental Statement of Work

PAYMENT SCHEDULE

1. Price

This Supplemental Statement of Work is:

_____ a fixed price contract ("FP") or

_____ a time and materials Contract ("T&M").

Check one line above. If FP, such price shall be $_______; if T&M, Consultant agrees that the aggregate time costs shall not exceed $____________ (at the applicable hourly rate set forth in the attachment hereto), and materials cost will not exceed $___________.

2. Out-of-Pocket Expenses

Consultant shall be reimbursed for all reasonable out-of-pocket expenses not exceeding an allotment of $____________ per month incurred in performance of the Services. Consultant shall obtain the written approval of Client before incurring expenses in a month in excess of this allotment.

SCHEDULE 3

to Supplemental Statement of Work

ADDITIONAL TERMS AND CONDITIONS