This Professional Services Agreement (the “Agreement”) is between OS Group, LLC dba Covalent Technologies (“Covalent”) and any purchaser or user of Covalent services that accepts the terms of this Agreement (“Customer” or “You”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING COVALENT SERVICES. BY USING OR PURCHASING COVALENT SERVICES, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE OR PURCHASE COVALENT SERVICES.

The Effective Date of this Agreement is the earlier of the date that Customer accepts this Agreement or the date that Customer uses Covalent services.

Whereas Covalent and Customer desire to establish certain terms and conditions under which Customer will, from time to time, obtain services from Covalent;

Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Covalent agree as follows:

1. Services Provided by Covalent to Customer

1.1 Statement of Work. Customer may from time to time purchase professional services from Covalent by entering into a document that shall be executed by Covalent and Customer separately from this agreement (“Statement of Work”). A Statement of Work will specify: (a) the services Covalent provides to Customer pursuant to a Statement of Work (“Services”) and/or deliverables created by Covalent pursuant to a Statement of Work (“Deliverables”); (b) specifications for Deliverables; (c) a schedule for completion of Services and delivery of Deliverables; (d) the fees and other specific terms under which Covalent will provide such Services and Deliverables; and (e) any other terms upon which the parties wish to agree. The parties may modify a Statement of Work by a written change order signed by both parties.

1.2 Training. Covalent will provide training services to Customer, if any, as specified in accordance with the rates and procedures specified on a Statement of Work.

2. Delivery and Acceptance. Delivery of Deliverables will be deemed to occur (a) for media (such as CD-ROM), upon shipment by Covalent of the Deliverables to Customer; or (b) for electronic delivery, when Covalent provides Customer with the ability to download the Deliverables. Deliverables will be deemed accepted upon delivery.

3. Customer Obligations. As a condition to Covalent’s obligations under this Agreement, Customer must provide the following: (a) Customer agrees to provide, at its own expense, the software, hardware, computers, equipment and facilities required to operate the Deliverables; (b) Customer agrees to provide Covalent access to the Customer facilities that Covalent requires to perform the Services (including, if applicable, access to third party facilities where relevant servers are located); and (c) Customer agrees to provide Covalent the cooperation and assistance as Covalent reasonably requests in connection with the Services and Deliverables. Such cooperation and assistance will include, without limitation, providing to Covalent, in a timely manner, answers to questions and technical consultation.

4. Payment

4.1 Fees. In consideration of the services provided, Customer will pay the fees specified in the applicable Statement of Work.

4.2 Expenses. Customer will reimburse Covalent monthly in arrears for Covalent’s reasonable travel, telephone and other actual out-of-pocket expenses incurred in furtherance of a Statement of Work, including travel expenses incurred in providing on-site Services. Covalent will keep complete records related to such expenses and, upon Customer’s request, will submit copies of such records with the applicable invoice.

4.3 Payment Terms. The fees under a Statement of Work are due in accordance with the schedule set forth therein. If no such schedule is provided, then Covalent will invoice Customer on a monthly basis, with payment due within thirty (30) days of the issuance of such invoice. Expense reimbursements are also due within thirty (30) days of invoice. In the event Customer pre-pays for any Services, Customer must request that such Services be completed within a period of one (1) year from payment date of such fees.

4.4 Taxes. The amounts payable to Covalent under this Agreement do not include any taxes, levies, or similar governmental charges, however designated, including any related penalties and interest. Customer will pay for (or reimburse Covalent for the payment of) the foreoing, except taxes on Covalent’s net income.

5. Term and Termination

5.1 Agreement Term. The term of this Agreement will commence on the Effective Date of the Statement of Work and continue until terminated under Section 5.3.

5.2 Statements of Work. Unless otherwise specified therein, a Statement of Work is effective as of the date it is executed by both parties, and (unless earlier terminated per Section 5.3) will remain in effect until the work specified therein is complete.

5.3 Termination. Either party may terminate this Agreement at any time (upon five (5) days written notice) if no Statements of Work are then in effect. Customer may terminate any or all Statements of Work at any time (but without refund) by giving Covalent thirty (30) days written notice. Either party may terminate for cause (a) this Agreement, inclusive of all Statements of Work, or (b) only the specific Statement of Work giving rise to the breach, by giving the breaching party written notice of termination, and specifying in such notice the alleged breach. The breaching party will have a grace period of thirty (30) days after such notice is served to cure the breach described therein. If the breach is cured within the thirty (30) day grace period, then this Agreement (or, if specified in the original notice, the particular Statement of Work designated for termination), will remain in effect. If the breach is not cured within such period, then this Agreement (or specific Statements of Work, as the case may be) will automatically terminate upon the conclusion of the thirty (30) day grace period. Either party may terminate this Agreement (including all Statements of Work) at any time for cause if the other party files a petition or seeks relief under the bankruptcy or insolvency laws of any state or the United States.

5.4 Effect of Termination. Following termination of this Agreement in its entirety: (a) each party will return to the other party the Confidential Information of the other party that it obtained during the course of this Agreement; (b) all Statements of Work will terminate; and (c) Customer will immediately pay to Covalent outstanding fees or expenses related to this Agreement and all attached Statements of Work. Following termination of only a specific Statement of Work: (i) each party will return to the other party the Confidential Information of the other party that it obtained during the course of performing such Statement of Work; and (ii) Customer will immediately pay to Covalent any outstanding fees or expenses related to such Statement of Work. Sections 5.4 and 6 through 10 will survive expiration or termination of this Agreement or any Statement of Work hereunder.

6. Deliverables, Customer-Provided Materials. Unless otherwise specified in a Statement of Work, all Deliverables and the copyright, trademark, service mark, trade secret, patent, patent application, moral right, contractual right of non-disclosure or any other intellectual property or proprietary right, however arising, (the “Intellectual Property Rights”) therein will remain the exclusive property of Covalent or its suppliers, regardless of whether Customer or its agents contribute to the conception or join in the development of the deliverable. Any such deliverable may be made available by Covalent to the Open Source community through a BSD-style license. No license rights in the Deliverables are granted under this Agreement. Customer and its suppliers own and maintain any and all right, title and interest in and to proprietary Customer-provided materials.

7. Confidential Information. “Confidential Information” means any information related to the disclosing party’s products, services or business (or that of its suppliers, customers and partners) that is either (a) marked as confidential (or bears similar legend), or, if disclosed orally, is confirmed in writing as confidential within thirty (30) days after the initial disclosure; or (b) if not so marked or confirmed, is of a type that a reasonable business person under the same or similar circumstances of disclosure would understand to be confidential. Confidential Information or data is not Confidential Information to the extent that the party receiving such information (the “Recipient”) can prove by credible evidence that the information or data: (a) was in the public domain at the time it was communicated to Recipient; (b) entered the public domain subsequent to the time it was communicated to Recipient through no fault of Recipient; (c) was in the Recipient’s possession not in violation of any obligation of confidentiality at the time it was communicated to Recipient; (d) was disclosed to Recipient by a third party not in any violation of any obligation of confidentiality; or (e) was developed by employees or agents of Recipient without use of or reference to the Confidential Information of the party disclosing the Confidential Information (the “Discloser”). Recipient will use Discloser’s Confidential Information solely for purposes expressly permitted by this Agreement, and will disclose the Confidential Information solely to employees who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality consistent with and no less restrictive than the duty hereunder. Recipient will protect Discloser’s Confidential Information from unauthorized access or disclosure in the same manner as it protects its own confidential or proprietary information, but in no event less than reasonable care. Recipient may disclose Discloser’s Confidential Information to third parties to the extent that such disclosure is (a) approved in writing by Discloser, or (b) required by law or by the order of a court or similar judicial or administrative body, provided that Recipient promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Neither party will disclose any terms of this Agreement or any Statement of Work to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except in connection with a proposed merger (of any kind), any debt or equity financing or any public offering of shares or sale of such party’s business, or in connection with a mutually agreed-upon press release.

8. Warranties.

8.1 Performance of Services. Covalent will perform all Services in a competent and professional manner. Each of Covalent’s staff members will have the proper skill, training and background to perform his or her assigned tasks. All Services will be performed in accordance with the applicable Statement of Work.

8.2 Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 8, COVALENT PROVIDES ALL SERVICES AND DELIVERABLES TO CUSTOMER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS OBTAINED WITH RESPECT TO THE SERVICES AND DELIVERABLES PROVIDED HEREUNDER IS WITH CUSTOMER. THERE IS NO WARRANTY THAT THE INFORMATION PROVIDED HEREUNDER, COVALENT’S EFFORTS, OR THE SERVICES OR DELIVERABLES IT PROVIDES WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FEES SPECIFIED IN THIS AGREEMENT REFLECT THE NEGOTIATED WARRANTY PROVISIONS. TO THE EXTENT THAT COVALENT CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

9. Limitation of Liability. IN NO EVENT WILL COVALENT BE LIABLE FOR (I) ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA OR LOST PROFITS OR BUSINESS INTERRUPTION, ARISING FROM OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, EVEN IF COVALENT HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE DELIVERABLES OR SERVICES. REGARDLESS OF THE CAUSE OF ACTION, COVALENT’S TOTAL CUMULATIVE LIABILITY IN CONNCECTION WITH THIS AGREEMENT AND THE DELIVERABLES OR ANY SERVICES PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE DELIVERABLES OR SERVICES GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE FEES PAID PURSUANT TO THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT.

10. General. Notices. All notices, consents demands and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the Sales Quote and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Relationship of the Parties. The parties hereto are independent contractors. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. Export Control. Customer will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Services or Deliverables are used and, in particular, Customer will not export or re-export any Deliverables without all required United States and foreign government licenses. Customer acknowledges and understands that the Deliverables contain encryption technology that may require an export license from the U.S. State Department and that export or re-export of the Deliverables to certain entities and certain countries is prohibited. Customer will defend, indemnify and hold harmless Covalent from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees. Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without Covalent’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. No Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. U.S. Government End Users. The Deliverables are a “commercial item” as that term is defined at 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 49 C.F.R. 227.7202-4, all U.S. Government end users acquire the Deliverables with only those rights set forth therein. Choice of Law. This Agreement will be governed by the laws of the State of California in the United States of America, as such laws apply to contracts between California residents negotiated, executed and performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in Contra Costa County, California, and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding. This Agreement will be written and construed in the English language. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by Customer to Covalent will have no effect.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON THE “ACCEPT” BUTTON BELOW.

© 2005 OS Group, LLC dba Covalent Technologies, All Rights Reserved.