Software and Implementation Services Agreement

THIS ERP SOFTWARE AND IMPLEMENTATION AGREEMENT (this “Agreement”) is

made and entered into as of __________________ (the “Effective Date”), by and between the VolantErp Inc., a California corporation (the “Company”), and ___________________, a _____________ (state) [corporation/limited liability company/partnership] (the “Customer”).

WITNESSETH:

WHEREAS, Customer desires to contract for enterprise resource planning software and implementation services; and

WHEREAS, Company is an ERP software and implementation services company that has the ERP software and implementation services (the “Software”) available for use by Customer;

WHEREAS, Customer desires to contract with Company in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the foregoing recitals, each of which is hereby incorporated herein by this reference, and the terms, conditions, covenants, and obligations contained herein, the parties hereto agree as follows:

  1. SCOPE OF SERVICES.

The Company shall perform such services and accomplish such tasks, including the furnishing of all materials and equipment necessary for full performance thereof, as are set forth in a scope of services (the “Scope of Services”). The work performed will be bound by the terms of this Agreement.

  1. TERM.

The term (the “Term”) shall commence on the Effective Date and shall expire upon completion and acceptance of the items set forth in the Scope of Services, unless otherwise agreed. This Agreement shall be deemed to have been terminated as of the date of such expiration and shall thereafter have no further force and/or effect, except for those provisions that by definition necessarily survive the termination of this Agreement (e.g., indemnification).

  1. COMPENSATION AND METHOD OF PAYMENT.

Payments for services included in the Scope of Services shall be made pursuant to the fee schedule included in the Scope of Services.  For all work outside the Scope of Services that is agreed upon by the parties, the Company shall submit separate invoices for payment to the Customer.  The Company reserves the right to suspend or terminate work and this Agreement if any unpaid account exceeds sixty (60) days.

  1. MAINTENANCE OF RECORDS.

The Company shall retain all books, records, documents, data and other material relevant to all matters covered, directly or indirectly, by this Agreement for a period of one (1) year after the expiration of this Agreement.

  1. INDEPENDENT CONTRACTOR RELATIONSHIP.

The parties intend that an independent contractor relationship will be created by this Agreement. No employee, agent, or representative of a party shall be deemed to be an employee, agent, or representative of the other party for any purpose. Each party will be solely and entirely responsible for its acts and for the acts of its employees, agents, representatives, and subcontractors during the performance of work contemplated by this Agreement.  In the performance of the work contemplated herein, the Company shall be an independent contractor with the authority to control and direct the performance of the details of the work.

  1. HOLD HARMLESS; INDEMNIFICATION.

The Customer shall indemnify and hold the Company and its agents, employees, and officers harmless from, and shall process and defend at its own expense, any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of whatsoever kind or nature, brought against the Company and/or its agents, employees, and/or officers arising out of, in connection with, or incident to the execution of this Agreement; provided, however, that if such claims are caused by or result from the gross negligence of the Company, its agents, employees, and/or officers, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the Customer, its agents, representatives, employees, and subcontractors; and provided further, that nothing herein shall require the Customer to hold harmless or defend the Company, its agents, employees and/or officers from any claims arising from the sole negligence of the Company, its agents, employees, and/or officers. The provisions of this section shall survive the expiration or termination of this Agreement.

The Company shall indemnify and hold Customer and its agents, employees, and officefrs harmless from, and shall process and defend at its own expense, any and all claims, demands, suits, at law or equity, or any other action whatsoever brought against the Customer based on allegations that the Software infringes on any other parties’ registered patents, trademarks, or copyrights with the USPTO.

  1. TREATMENT OF ASSETS; LICENSE TO USE.
  2. Title to all proprietary software furnished by the Company, including all software designed and implemented by the Company for the Customer’s use pursuant to the Scope of Services, shall remain the Company’s property and shall be returned to Company upon the termination of this Agreement. During the Term, the Customer shall have a nonexclusive, nondistributable, nonassignable, revocable, personal right to use the Software provided pursuant to the Scope of Services, which right shall be terminated upon the termination of this Agreement. The Software shall be kept confidential and shall not be used for any other purpose other than for Customer’s business purposes and shall not be disseminated or otherwise made accessible to any other third party. Customer may not modify, sublicense, assign, or transfer this license except as otherwise permitted by the Company.

Either party may request changes or additions to the Scope of Services and performance to be provided hereunder; provided, however, that no change or addition to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and signed by both parties. Any such change or addition shall be attached to and made part of this Agreement as an amendment.

  1. TERMINATION; DEFAULT AND REMEDY.

In addition to any other reason provided in this Agreement, either party may terminate this Agreement, and any work or delivery required hereunder, for cause from time to time, either in whole or in part, for any of the following reasons.

  • If the other party materially breaches any of the terms of this Agreement;
  • If the Customer fails to make payment as set forth in the Scope of Services;
  • If the Company repeatedly fails or becomes unable to perform the services

under this Agreement as required herein, or fails to provide services under this Agreement for a period of one hundred twenty (120) hours;

  • If the other party (i) becomes insolvent in a bankruptcy sense; (ii) is generally

not paying its debts as they become due, or within a reasonable time thereafter, as required under this Agreement or Scope of Services; (iii) suffers, voluntarily or involuntarily, the entry of an order by any court or governmental authority authorizing the appointment of or appointing of a custodian, receiver, trustee, or other officer with similar powers with respect to it or any portion of its property which remains undismissed for a period of ninety (90) days; (iv) suffers, voluntarily or involuntarily, with or without judicial or governmental authorization, any such custodian, receiver, trustee, or other officer with similar powers to take possession of any part of its property which third party remains in possession for an excess of ninety (90) days; (v) suffers, voluntarily or involuntarily, the filing of a petition respecting an assignment for the benefit of creditors which is not dismissed for a period of ninety (90) days; (vi) be dissolved; (vii) becomes the subject of any proceeding, suit, or action at law or in equity under or relating to any bankruptcy, reorganization or arrangement of debt, insolvency, readjustment of debt, receivership, liquidation, or dissolution law or statute or amendments thereto to be commenced by or against it or against any of its property which remains undismissed for a period of ninety (90) days; (viii) voluntarily suspends substantially all of its business operations; or (ix) is merged with, acquired by, or otherwise absorbed by any individual, corporation, or other business entity or organization of any kind except for any individual corporation or other business entity or organization which is controlled by, controlling, or under common control with the Contractor.

Termination shall be effected under this section by providing a written notice of termination (a “Notice”) to the other party, which will state the extent and effective date of termination. The Customer shall still be liable to the Company for all outstanding invoices and work performed up to and including the date of receipt of the Notice.  The Customer shall also return, or allow the Company to retrieve, the Software and any related property belonging to the Company in the Customer’s possession as of the termination date.

  1. THIRD PARTY RIGHTS.

Nothing herein is intended to confer rights of any kind in any third party.

  1. NOTICE.

Except for notice provided to the parties in accordance with the procedures established for requesting work set forth in the Scope of Services, notice and other correspondence provided for in or required by this Agreement shall be hand delivered or sent by overnight mail, certified U.S. mail, or via fax or email to the following:

To Company:

VolantErp Inc. c/o Mark Attaway 5604 E. La Palma Ave. Anaheim, CA 92807 Email:

To Customer:

__________________

__________________

__________________

__________________

Email: ____________

Notice shall be deemed received (i) upon actual receipt, (ii) on the same day if handdelivered or sent via fax or email, (iii) the following day if sent using overnight mail, or (iv) three days later if sent using certified U.S. mail.

  1. ATTORNEYS’ FEES AND COSTS.

If any legal action or proceeding is brought for the enforcement of this Agreement or Scope of Services, or because of a dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement or Scope of Services, the prevailing party shall be entitled to recover from the other party, in addition to any other relief to which such party may be entitled, reasonable attorneys’ fees and other costs incurred in such action or proceeding.

  1. JURISDICTION AND VENUE.

This Agreement has been and shall be construed as having been made and delivered within the County of Orange, State of California and shall be governed by laws of the State of California, both as to interpretation and performance.  Any action of law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provisions thereof shall be instituted and maintained only in a court of competent jurisdiction in Orange County, California.

  1. SEVERABILITY; WAIVER.

If, for any reason, any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, void or unenforceable, the remaining parts, terms, and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be illegal, invalid, void or unenforceable.

This Agreement has been drafted by both parties and the parties agree that any ambiguity shall not be construed against either party.

  1. MISCELLANEOUS
    1. This Agreement is the complete expression of the terms hereto and any oral representations or understandings not incorporated herein are excluded. Further, any modification of this Agreement shall be in writing and signed by both parties. Failure to comply with any of the provisions stated herein shall constitute material breach of contract and cause for termination.
    2. Both parties recognize time is of the essence in the performance of the provisions of this Agreement.
    3. Headings and captions are provided in this Agreement for ease of reference only and shall not be used to construe or interpret any provision of this Agreement.
    4. Neither party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, or unusual weather conditions.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original; but all of which together shall constitute one and the same instrument. The delivery of an executed counterpart of this Agreement by fax or as a PDF or similar attachment to an email shall constitute effective delivery of such counterpart for all purposes with the same force and effect as the delivery of an original, executed counterpart.