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Professional Services Agreement
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This Professional Services Agreement between Sheridan Reserve Incorporated dba
▇▇▇▇▇▇▇▇▇▇.▇▇▇., ("Client"), I-Storm, Inc. ("I-Storm") and InfoCast Corporation
(IFCC) sets forth the terms and conditions pursuant to which I-Storm shall
provide certain professional services, ongoing support and other materials for
the benefit of the Client.
IFCC will manage this agreement on behalf of the Client, and I-Storm agrees that
they will accept input from time to time from the designated representative of
IFCC.
SCOPE OF SERVICES
I-Storm shall provide certain consulting services to Client as set forth in the
accompanying exhibit accepted in writing by the parties ("Statement of Work").
All software code, documentation, materials, and other proprietary information
("Work Product") which may be developed in the course of performing or arising
from the Statement of Work or otherwise provided by I-Storm in connection with
its performance under a Statement of Work shall be deemed to constitute a
separate work project under this Agreement. No modification may be made to any
Statement of Work without the agreement of both parties as evidenced by both
parties mutual written consent. To permit the services to be performed in
accordance with the Statement of Work, Client shall perform all of its
obligations set forth herein in a timely manner. These obligations shall
include, but are not limited to, providing I-Storm with access to Client
employees, facilities, hardware, software and other resources or materials that
may be required to facilitate completion of the Statement of Work.
USE OF THE WORK PRODUCT
Upon completion and acceptance of the Statement of Work, the Client shall be
entitled to use the Work Product only for the processing of end user data at the
installation site set forth in the Statement of Work and subject to the terms
and conditions of this Agreement. Both Client and I-Storm acknowledge that the
Statement of Work and the Work Product has been developed for a single
designated end user.
TITLE AND CONFIDENTIALITY
Except as specifically provided in a Statement of Work, I-Storm retains all
right, title and interest in and to the Work Product. The Work Product shall not
constitute "work made for hire" as that term is defined in Section 101 of the
United States Copyright Act of 1976. In addition, Client and its employees will
keep the Work Product strictly confidential, and will neither use the Work
Product for other than its internal and intended operations nor market, copy,
disclose or otherwise distribute the Work Product to anyone other than its
authorized employees. Client will not remove or destroy any proprietary markings
of I-Storm. In the event that Client makes any changes or modifications to the
Work Product, Client agrees that such changes and modifications shall constitute
the property of I-Storm, unless I-Storm has given its prior written consent to
the contrary. The provisions set forth in this section shall survive the
termination of this Agreement for any reason.
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PH 650.962-5420 o FAX 650.962-5429 o EMAIL ▇▇▇▇@▇-▇▇▇▇▇.▇▇▇ o ▇▇▇.▇-▇▇▇▇▇.▇▇▇
EXCLUSIVITY
I-Storm agrees to not offer a Work Product to other entities who compete with
▇▇▇▇▇▇▇▇▇▇.▇▇▇ in the golf equipment and services business without expressed
written consent from Client.
LIMITED WARRANTY
I-Storm warrants that it will utilize its best efforts to perform the services
set forth in the Statement of Work with employees who possess the appropriate
skills to perform in accordance with the Statement of Work. I-Storm further
warrants that all contractors or outside resources that may be required will
possess appropriate skills to perform in accordance with the Statement of Work.
I-Storm warrants that I-Storm will defend or, at its option, settle any action
at law against Client based upon a claim that Client's use of the Work Product
in accordance with this Agreement infringes any patent, copyright or other
intellectual property right of any third party, if notified promptly in writing
of any such claim and given authority, information and assistance by the Client
to defend or settle any suit or legal proceeding brought against the Client in
relation to the Statement of Work or the Work Product. The Client agrees that
information and assistance provided to I-Storm will be at the Client's expense.
In case any portion of the Work Product is held in such suit or proceeding to
constitute an infringement and its use is enjoined, I-Storm shall, at its own
expense and at its option, either (a) procure for the Client the right to
continue use, or (b) replace the Work Product with a non-infringing version of
comparable functionality. This section sets forth I-Storm's entire liability for
infringement of any third party's intellectual property rights. I-Storm further
warrants that the Work Product will comply with the specifications set forth in
the applicable Statement of Work during the limited period provided in the
Statement of Work, or for two (2) years following delivery of the Work Product.
I-Storm will use its best efforts, consistent with industry standards, to cure
any defect or non-conformity with such specifications during such period.
WARRANTY AND LIABILITY LIMITATIONS
Except as set forth above, no other warranties, whether express or implied,
including without limitation, the implied warranties of merchantability and
fitness for a particular purpose, are made by I-Storm. I-Storm warrants that
this technology is good for its intended use. In no event will I-Storm be liable
to Client or any other party for any loss, including time, money, goodwill, lost
profits, and consequential damages based on contract, tort or other legal
theory, which may arise hereunder or from the use, operation or modification of
the work product. The maximum liability of I-Storm hereunder shall not exceed
the amount actually paid by client under the applicable task contained in the
Statement of Work.
PAYMENT
Client agrees to pay I-Storm on a timely basis the fees and charges set forth in
the Statement of Work, in addition to any associated tariffs, duties or taxes
(other than income taxes) imposed or levied by any government agency. Client
agrees that it shall be responsible to reimburse I-Storm for all reasonable,
pre-approved travel and incidental out-of-pocket expenses incurred by I-Storm in
providing the services, unless otherwise provided in the Statement of Work.
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BREACH AND TERMINATION
If Client breaches any term of this Agreement or any Statement of Work, or fails
to pay any valid invoice rendered by I-Storm, I-Storm will have the right to
terminate this Agreement on 30 days written notice as well as all Statements of
Work then in process and, in addition to all other rights of I-Storm, all
amounts which would have become due and payable under this Agreement including
any Statement of Work will immediately become due and payable to I-Storm. Any
invoice which is unpaid by Client when due shall be subject to an interest
charge of 1% per month or part thereof plus such late payment charge as I-Storm
may reasonably require to cover its additional costs of administration and
collection.
Client may terminate any portion of any Statement of Work by giving I-Storm
thirty (30) days prior written notice any by paying to I-Storm all invoices
representing services performed through the proposed date of termination.
ASSIGNMENT
Client may not assign, transfer, sell or encumber this Agreement, the use of, or
information contained in any Work Product, or its rights and obligations under
this Agreement without the prior written consent of I-Storm.
CONFIDENTIALITY
The Client and I-Storm may provide to one another information that is
confidential ("Confidential Information") in the course of the Agreement.
Confidential Information is technical information, trade secrets, business plans
or any other information that is designated confidential. Confidential
information does not include information which: (a) is or becomes a part of the
public domain through no act or omission of the other party; (b) was in the
party's lawful possession prior to the disclosure and had not been obtained by
the other party either directly or indirectly from the disclosing party; (c) is
lawfully disclosed to the other party by a third party with restriction on
disclosure; (d) is independently developed by the other party; or (e) is
disclosed by operation of law. The parties agree to not disclose Confidential
Information during all Statements of Work and for a period of three (3) years
after completion of all Statements of Work.
INDEPENDENT CONTRACTOR
I-Storm shall perform the services set forth in the Statement of Work as an
independent contractor and neither I-Storm nor its employees shall be deemed to
be employees of Client. I-Storm shall determine in its sole discretion which of
its employees or subcontractors shall be assigned to perform any consulting
services for Client and may reassign any employee or subcontractor at ay time.
I-Storm is solely responsible for required filings, payments and any associated
expenses of its employees.
NON-SOLICITATION OF EMPLOYEES
Client agrees that it will not, without the prior written consent of I-Storm,
solicit or hire any I-Storm employee, or induce such employee to leave I-Storm's
employment directly or indirectly, for a period of twelve (12) months after the
most recent time such employee has performed any services for Client.
GOVERNING LAW
This Agreement will be construed, interpreted, and applied in accordance with
the laws of the State of California (excluding its body of law controlling
conflicts of laws and is deemed to be executed in Mountain View, California.
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JURISDICTION
Any legal action or proceeding relating to this Agreement shall be instituted in
San Francisco or San Mateo County, California. I-Storm and Client agree to
submit to the jurisdiction of, and agree that venue is proper in, the aforesaid
jurisdiction in any such legal action or proceeding.
NOTICES
All notices pursuant to this Agreement shall be sent by certified mail, postage
prepaid, and shall not be deemed to have been given until received by the other
party.
SEVERABILITY
If one or more of the provisions in this Agreement are deemed void by law, then
the remaining provisions will continue in full force and effect.
WAIVER
The waiver by either I-Storm or Client of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent default or
breach. Except for actions of nonpayment or breach of either party's
intellectual property rights, no action, regardless of form, arising out of this
Agreement may be brought by either party more than two (2) years after the cause
of action has occurred.
FORCE MAJEURE
Neither party shall be in default or otherwise liable for any delay in or
failure of its performance under this Agreement or a Statement of Work where
such delay or failure arise by reason of any Act of God, or any government or
government body, acts of the common enemy, the elements, strikes or labor
disputes, or other similar or dissimilar cause beyond the control of I-Storm or
the Client.
EXPORT ADMINISTRATION
Both I-Storm and Client agree to comply with all relevant export laws and
regulations of the United States to assure that neither any software or other
product produced under a Statement of Work is (1) exported, directly or
indirectly, in violation of Export Laws or (2) is intended to be used for any
purposes prohibited by the export laws.
ENTIRE AGREEMENT
This Agreement, together with the applicable Statement of Work, represents the
entire agreement between I-Storm, the Client and IFCC with respect to the Work
Product and the services, obligations and responsibilities to be performed by
the parties hereunder. I-Storm and Client agree that all other agreements,
proposals, purchase orders, representations and other understandings concerning
the subject matter of this Agreement, whether oral or written, between the
parties are superseded in their entirety by this Agreement. No alterations or
modifications of this Agreement will be valid unless made in writing and signed
by the parties. No attachment, supplement or exhibit to this Agreement shall be
valid unless initialed by an authorized signatory of I-Storm and the Client.
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DESIGNATED REPRESENTATIVES
I-Storm, Inc.: Cal ▇▇▇
▇▇▇▇▇▇▇▇ Reserve Incorporated dba Nevadabob'▇.▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇
InfoCast Corporation: ▇▇▇▇▇ ▇▇▇▇▇▇
Sheridan Reserve Incorporated dba
I-Storm, Inc. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ InfoCast Corporation
By: /S/ ▇▇▇ ▇▇▇ By: /S/ ▇▇▇▇▇ ▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ------------------------------ -----------------------------
Authorized Signature Authorized Signature Authorized Signature
____________________________ ______________________________ _____________________________
Name Name Name
____________________________ ______________________________ _____________________________
Date Date Date
____________________________ ______________________________ _____________________________
Title Title Title
Address Address
____________________________ ______________________________ _____________________________
____________________________ ______________________________ _____________________________
____________________________ ______________________________ _____________________________
[STATEMENT OF WORK]
Confidential Treament requested pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934.
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