Service Provider Agreement

This Service Provider Agreement (“Agreement”), effective [DATE] (the “Effective Date”), is between [SERVICE PROVIDER NAME], a [STATE OF FORMATION AND TYPE OF COMPANY (i.e., corporation, limited liability company, etc.)], with offices located at [ADDRESS] (the “Service Provider”) and ET World Systems, LLC, a Georgia limited liability company (the “Company”).

1. Services. Service Provider will provide Company the services (the “Services”) and Deliverables (defined below) as more specifically described in one or more Statements of Work (each a “Statement of Work” or “SOW”). Service Provider will provide the Services (a) in accordance with the terms and conditions in this Agreement and any SOW; (b) in a timely, workmanlike, and professional manner; (c) in accordance with the highest professional standards in Service Provider’s field; and (d) to Company’s satisfaction. Nothing in this Agreement prevents Company from performing the same or similar services for itself or acquiring the same or similar services from other service providers, subject to the non-solicitation provisions in Section 7.5 below. Nor does it prevent Service Provider from providing the same or similar services to other Companies (subject to its confidentiality and intellectual property obligations below). Service Provider will not subcontract the Services without Company’s prior written consent. Changes to the scope of Services must be agreed to in a written amendment in accordance with Section 13.7.
2. Statements of Work. The Services will be performed on a “project” or “fixed price” basis or a “time and materials” basis, as more fully described in an SOW. Each SOW must be (a) agreed to in writing, (b) signed by the parties, (c) reference this Agreement and be subject to its terms and conditions, and (d) be in a similar form as the SOW attached to this Agreement as Exhibit A. Company will have prior written approval over all phases of a SOW and all materials created in connection with a SOW.
3. Company’s Obligations. Company will (a) provide Service Provider with access to Company’s facilities, as reasonably required by Service Provider to perform the Services; and (b) respond promptly to Service Provider’s reasonable requests for information or approvals to perform the Services.
4. Term and Termination.
   1. Term; Renewal. This Agreement begins on the Effective Date and continues for a period of one (1) year unless terminated earlier under this Section 4 (the “Initial Term”). This Agreement will automatically renew for one (1) year terms (each a “Renewal Term”) unless either party notifies the other party of its intent not to renew the Agreement upon ninety (90) days’ written notice. The Renewal Term, together with the Initial Term, are collectively referred to herein as the “Term”). The terms and conditions of this Agreement during any Renewal Term will be the same as those in effect at the time of renewal.
   2. Termination for Convenience. Company may terminate this Agreement, in whole or in part, at any time without cause, in its sole discretion, by providing at least thirty (30) days’ prior written notice to Service Provider.
   3. Termination for Cause. Either party may terminate this Agreement, effective on written notice to the other party (the “Defaulting Party”), if the Defaulting Party (a) materially breaches this Agreement, and the breach cannot be cured, or with respect to a material breach which can be cured, the Defaulting Party does not cure the breach within thirty (30) days after receiving written notice of the breach; (b) becomes insolvent; (c) admits its inability to pay its debts generally as they become due; (d) becomes subject to any bankruptcy proceeding which is not dismissed or vacated within thirty (30) days after filing; (e) is dissolved or liquidated; (f) makes a general assignment for the benefit of creditors; or (g) has a receiver, trustee, custodian, or similar agent appointed by court order to take charge of or sell any material portion of its property or business.
   4. Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason (a) Service Provider will: (i) deliver to Company all documents, work product, and other materials, whether or not complete, prepared by or on behalf of Service Provider in the course of performing the Services, for which Company has paid; (ii) return to Company all Company-owned property, equipment, or materials in Service Provider’s possession or control; (iii) remove any Service Provider-owned property, equipment, or materials located at Company’s facilities; and (iv) reasonably cooperate with, and assist, Company upon its request, in transitioning the Services to another service provider; and (b) each party will return to the other party ,or destroy, at the other party’s request, all documents and tangible materials (and any physical or electronic copies in its possession) containing, incorporating or based on the other party’s Confidential Information (defined below), and certify in writing that it has done so. However, Company may retain copies of any Service Provider Confidential Information incorporated in the Deliverables, or as necessary to allow Company to fully use the Services and Deliverables.
   5. Survival. The rights and obligations of the parties in Sections 4.4, 4.5, 6, 7, 8, 9, 10 and 12, as well as any right or obligation in this Agreement which, by its nature, should survive its expiration or termination, will survive such expiration or termination.
5. Fees and Expenses; Payment Terms.
   1. In General. In consideration of the Service Provider’s performing the Services, and the rights granted to Company under this Agreement, Company will pay Service Provider as follows:
      1. Time and Materials. For Services provided on a time and materials basis, fees (the “Fees”) calculated in accordance with Service Provider’s rates in the applicable SOW.
      2. Fixed Price or Project. For Services provided for a fixed price or on a project basis, Fees in the amount in the applicable SOW. These Fees will be paid in installments if, and as, specified, in the applicable SOW. Each installment is conditioned on Service Provider’s achievement of the corresponding milestone in the SOW.
   2. Invoicing and Payment. Company will pay Service Provider in accordance with the applicable SOW. 
   3. Taxes. Company is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges, imposed by any federal, state, or local governmental entity on any amounts payable by Company under this Agreement. However, Company is not responsible for any taxes concerning Service Provider’s income, revenues, gross receipts, personnel, real or personal property or other assets.
6. Intellectual Property.
   1. Except as stated in Section 6.2, all Intellectual Property Rights (defined below) in and to all documents, work product and other materials delivered to Company under this Agreement, or prepared by or on behalf of Service Provider, in performing the Services (collectively, the “Deliverables”), will be owned exclusively by Company. “Intellectual Property Rights” mean all intellectual property rights of any kind including, without limitation, copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of their respective goodwill, derivative works and all other rights. Service Provider agrees, and will ensure that its Service Provider personnel agree, that any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, are deemed a “work made for hire” for Company. If any Deliverables do not constitute a “work made for hire,” Service Provider agrees to irrevocably assign, and ensure that its personnel irrevocably assign, to Company all Intellectual Property Rights worldwide in the Deliverables. The Service Provider will ensure that its personnel irrevocably waive, as permitted by applicable law, all claims they may now or hereafter have in any jurisdiction to so-called “moral rights” with respect to the Deliverables.
   2. All Intellectual Property Rights in all documents, data, know-how, methodologies, software, and other materials provided or used by Service Provider to perform the Services, and developed or acquired by the Service Provider prior to, or independently of, this Agreement (collectively, “Pre-Existing Materials”), will be owned exclusively by Service Provider and its licensors. Service Provider grants Company an irrevocable, perpetual, fully paid-up, royalty-free, transferable, sublicensable, worldwide, non-exclusive license to use, display, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell and otherwise exploit any Pre-Existing Materials incorporated in, or otherwise necessary for the use of, the Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
7. Confidential Information; Non-Solicitation
   1. “Confidential Information” means all non-public, confidential, or proprietary information of either party, whether or not marked, designated, or otherwise identified as “confidential” (“Confidential Information”). Confidential Information includes, without limitation, information about a party’s business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”). Confidential Information may be disclosed orally, disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement. 
   2. Confidential Information may only be used in performing this Agreement and may not be disclosed or copied unless permitted by the Disclosing Party in writing. The Receiving Party must protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party uses to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. 
   3. Confidential Information does not include information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) the Receiving Party establishes by written evidence was in its possession prior to the Disclosing Party’s disclosure under this Agreement; (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable law, or by valid order issued by a court or governmental agency of competent jurisdiction.
   4. The Receiving Party is responsible for any breach of this Section 7 by any of its employees, contractors, agents, or representatives. Upon expiration or termination of the Agreement, at the Disclosing Party’s written request, the Receiving Party will promptly return, and ensure that its representatives return, (a) the Disclosing Party’s Confidential Information, and (b) all copies of the Disclosing Party’s Confidential Information, whether in written, electronic or other form or media, or (c) destroy such copies and certify in writing to the Disclosing Party that they were destroyed. The parties’ obligations under this Section 7 will survive expiration or termination of this Agreement for three (3) years, except for Confidential Information that constitutes a trade secret under applicable law. In the case of trade secrets, these obligations will survive for as long as such Confidential Information remains a trade secret under applicable law.
   5. Service Provider acknowledges that, as part of Company’s Confidential Information, Service Provider will have access to, without limitation, Company’s list of vendors, suppliers, business partners, clients, and customers. Accordingly, during the term of this Agreement, and for two (2) years thereafter, in addition to Service Provider’s other obligations under this Agreement, Service Provider will not, for itself or any third party, directly or indirectly (i) divert or attempt to divert from Company any business of any kind, including, without limitation, the solicitation of or interference with any of its vendors, suppliers, business partners, clients, prospective customers, or members, or (ii) solicit or otherwise induce any person employed by Company to terminate their employment.
8. Representations and Warranties.
   1. Mutual. Each party represents and warrants to the other party that: (a) it has the right, power, and authority to (i) enter into this Agreement, (ii) grant the rights and licenses granted under this Agreement, and (iii) perform its obligations, under this Agreement; and (b) this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
   2. Service Provider. Service Provider represents and warrants to Company that: (a) it will perform the Services (i) in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, (ii) in compliance with all applicable laws, and (iii) with adequate resources to meet its obligations under this Agreement; (b) the Services and Deliverables will conform in all respects with the specifications in any SOW and be performed to Company’s satisfaction; and (c) the Services and Deliverables, and Company’s use of the Services and Deliverables, do not and will not infringe any Intellectual Property Right of any third party. and (d) beginning ten (10) days after the Effective Date of this Agreement, and continuing for the Term of this Agreement, it will, at its sole expense, for each person it employs or contracts with to perform Services under this Agreement, obtain a criminal background check consisting, at a minimum, of a review of state and federal convictions for felonies and misdemeanors for the counties of residence of such person during the prior seven (7) years. If, for any such person, the criminal background check reveals a conviction, then such person may be assigned to perform Services only after Service Provider obtains Company’s written approval for such assignment, which approval may be withheld for any lawful reason. Service Provider will, and Company may, require a subsequent criminal background check, if either party has a reasonable basis to believe that a change in such person’s criminal history has occurred. Any subsequent criminal history checks will be performed by Service Provider, at Service Provider’s sole expense. If such subsequent criminal history checks reveal a conviction, then the terms of this Section 8.2 will apply with respect to the assignment of such person to perform Services. Notwithstanding anything in this Agreement to the contrary, the existence of a criminal conviction for any person employed by, or contracting with, Service Provider, who performs, or may perform, Services will be grounds for immediate termination of the Agreement upon notice to Service Provider.
9. Indemnification and Release.
   1. General. Service Provider will  indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, the “Company Indemnitees”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and costs (collectively, “Losses”), resulting from any claim of a third party for: (a) bodily injury, death of any person or damage to real or tangible, personal property resulting from Service Provider’s acts or omissions; or (b) Service Provider’s negligence, willful misconduct, or breach of this Agreement, including but not limited to breach of any representation or warranty made by Service Provider in this Agreement.
   2. Intellectual Property Infringement. Service Provider will defend, indemnify, and hold harmless the Company Indemnitees from and against all Losses based on a claim that any of the Services or Deliverables, or Company’s receipt or use of the Services or Deliverables, infringes any Intellectual Property Right of a third party. 
   3. Release. Service Provider, including its successors and permitted assigns agree that they will release, forever discharge, indemnify, defend, and hold Company harmless from any and all claims arising from the Service Provider’s negligence and/or acts or omissions, including, without limitation, any and all damages of whatsoever kind or nature.
10. Limitation of Liability. EXCEPT FOR (A) PAYMENT OBLIGATIONS, (B) INDEMNIFICATION OBLIGATIONS, (C) LIABILITY FOR BREACH OF CONFIDENTIALITY, OR (D) LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER THEY ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER THIS DAMAGE WAS FORESEEABLE AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF THIS DAMAGE.
11. Force Majeure. No party will be liable or responsible to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing any term of this Agreement (except for payment obligations), to the extent this failure or delay results from events outside of the non-performing party’s reasonable control (“Force Majeure Events”). Force Majeure Events include, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; and (h) strikes, labor stoppages or slowdowns or other industrial disturbances. The affected party must resume performance under this Agreement as soon as reasonably practicable after the Force Majeure Event is resolved or terminated.
12. Insurance.

          12.1 Insurance Generally. During the term of this Agreement, Service Provider will obtain, and continuously maintain, at the Service Provider’s expense, insurance of the kind, and in the minimum amounts, specified as follows (the “Required Insurance”):

1. Worker’s Compensation Insurance, in the minimum amount required by applicable law, for all employees and other persons as may be required by law. Such policy of insurance will be endorsed to include Company as a Certificate Holder.
2. Comprehensive General Liability insurance with minimum combined single limits of One Million Dollars ($1,000,000.00) each occurrence and of Two Million Dollars ($2,000,000.00) aggregate. The policy will be applicable to all operations of the Service Provider. This policy will include:

(i) coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy will contain a severability of interests provision. Coverage will be provided on an “occurrence” basis, as opposed to a “claims made” basis. Such insurance will be endorsed to name of Company as Certificate Holder and name Company, its directors, officers, employees and agents, as additional insured parties.

1. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than One Million Dollars ($1,000,000.00) each occurrence with respect to each of Service Provider’s owned, hired and non-owned vehicles assigned to, or used in performance of, the Services. The policy will contain a severability of interests provision. Such insurance coverage must extend to all levels of subcontractors. Such coverage must include all automotive equipment used in the performance of the Agreement, and include non-ownership and hired cars coverage. Such insurance will be endorsed to Company as Certificate Holder and name the Company, its directors, officers, employees and agents, as additional insured parties.
2. The Required Insurance will be procured and maintained with insurers with an A- or better rating as determined by Best’s Key Rating Guide. All Required Insurance will be continuously maintained to cover all liability, claims, demands, and other obligations assumed by the Service Provider.

12.2 Additional Requirements for All Required Insurance Policies. In addition to specific requirements imposed on insurance by this Section 12, the Required Insurance will conform to all of the following:

1. All policies of insurance will be primary insurance, and any insurance carried by Company, its directors, officers, or employees, will be excess and not contributory insurance to that provided by the Service Provider; provided, however, that Company will not be obligated to obtain or maintain any insurance whatsoever for any claim, damage, or purpose arising from or related to this Agreement and the Services. The Service Provider will not be an insured party for any Company-obtained insurance policy or coverage.
2. Service Provider will be solely responsible for any deductible losses.
3. No policy of insurance will contain any exclusion for bodily injury or property damage arising from completed operations.
4. Every policy of insurance will provide that Company will receive notice no less than thirty (30) days prior to any cancellation or termination of, or a material change in, such policy or, in the alternative, the Service Provider will provide such notice as soon as reasonably practicable, and in no event less than thirty (30) days prior to any cancellation or termination of, or a material change in, such policy.

12.3 Failure to Obtain or Maintain Required Insurance. Service Provider’s failure to obtain, and continuously maintain, policies of insurance in accordance with this Section 12 will not limit, prevent, preclude, excuse, or modify any liability, claims, demands, or other obligations of the Service Provider arising from performance or non-performance of this Agreement. Failure on the part of Service Provider to obtain, and to continuously maintain, policies providing the required coverage, conditions, restrictions, notices, and minimum limits, will constitute a material breach of this Agreement upon which Company may immediately terminate this Agreement. Alternatively, at Company’s discretion, the Company may procure or renew any such policy, or any extended reporting period thereto, and may pay any and all premiums in connection with such policies, and all monies so paid by the Company will be repaid by Service Provider to Company immediately upon demand by Company or, at Company’s sole discretion, Company may offset the cost of the premiums against any monies due to Service Provider from Company pursuant to this Agreement.

12.4 Insurance Certificates Prior to commencement of the Services, Service Provider will submit to Company certificates of insurance for all Required Insurance. Insurance limits, term of insurance, insured parties, and other information, sufficient to demonstrate conformance with this Section 12, will be indicated on each certificate of insurance. Company may request, and the Service Provider will provide, within three (3) business days of such request, a current certified copy of any policy of Required Insurance and any endorsement of such policy. Company may, at its election, withhold payment for Services until the requested insurance policies are received and found to be in accordance with the Agreement.

1. Miscellaneous.
   1. Independent Contractors. The parties are independent contractors, andnothing in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party is authorized to contract for or bind the other party in any manner whatsoever.
   2. No Publicity. Neither party may (a) issue or release any announcement, statement, press release, or other publicity or marketing materials, relating to this Agreement, or (b) use the other party’s trademarks, service marks, trade names, logos, symbols, brand names, or other intellectual property, without the other party’s prior written consent. 
   3. Notice. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing, addressed to the parties at the addresses on the first page of this Agreement (or such other address designated by the receiving party from time to time in accordance with this Section). All Notices must be personally delivered or be sent by nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise stated in this Agreement, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section 12.3. 
   4. Entire Agreement; Order of Precedence. This Agreement, together with all Schedules and Exhibits and any other documents incorporated into this Agreement by reference, constitute the entire agreement of the parties concerning its subject matter, and supersede all prior and contemporaneous understandings and agreements, written and oral, concerning such subject matter. If there is a conflict between the terms of this Agreement and the terms of any Schedule or Exhibit, then the terms of this Agreement will control unless expressly stated otherwise in the applicable Schedule or Exhibit.
   5. Assignment. Service Provider will not assign, transfer, or delegate any of its rights or obligations under this Agreement, including by operation of law, change of control, or merger, without the prior written consent of Company. No assignment will relieve Service Provider of any of its obligations under this Agreement. Any attempted assignment transfer or other conveyance in violation of this Section 12.5 will be void. This Agreement is binding on, and will inure to the benefit of, the parties to this Agreement and their respective successors and permitted assigns.
   6. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to, or will, confer on any third-party individual or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
   7. Amendment and Modification; Waiver. This Agreement may be amended, modified, or supplemented only by a written agreement signed by the parties. No failure to exercise any right, remedy, power, or privilege (“Right(s)”) arising from this Agreement will operate or be construed as a waiver of that Right. No single or partial exercise of any Right under this Agreement precludes any other or further exercise of that Right, or the exercise of any other Right.
   8. Severability. No invalidity, illegality, or unenforceability of any provision of this Agreement in any jurisdiction will affect any other term or provision of this Agreement, or invalidate or render such provision unenforceable, in any other jurisdiction. If any provision of this Agreement is determined by a non-appealable order or judgment of a court of competent jurisdiction to be invalid, illegal, or unenforceable, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible.
   9. Governing Law: Submission to Jurisdiction. This Agreement will be governed by and construed in accordance with the internal laws of New York, without giving effect to any choice or conflict of law provision or rule that would result in the application of laws of any other jurisdiction to this Agreement. Any lawsuit, action, or proceeding arising out of, or related to, this Agreement or the Services or Deliverables must be instituted exclusively in the state or federal courts in Atlanta, Georgia. Each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; and (b) waives any objection to such courts based on venue or inconvenience. 
   10. Equitable Relief; Cumulative Remedies. Each party acknowledges that a breach of Section 6 (Intellectual Property Rights) or Section 7 (Confidential Information) may cause the non-breaching party irreparable damage for which an award of damages may not be adequate compensation. If there is a breach or threatened breach of Sections 6 and/or 7, the non-breaching party will be entitled to seek equitable relief. Except as expressly stated in this Agreement, the rights and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise.
   11. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

The parties have signed this Agreement on the dates below:

[SERVICE PROVIDER NAME] ET WORLD SYSTEMS, LLC