Bodega Technologies shall provide those services (the “Services”) described in any Statement of Work referencing this Agreement which is executed by Customer and accepted by Bodega Technologies. Acceptance by Bodega Technologies will be evidenced by return of a signed copy of the Statement of Work to Customer. The Statement of Work will incorporate, and be subject to, the terms and conditions of this Agreement. No changes to a Statement of Work shall be made except in writing and executed by authorized representatives of both parties.

1. CONFIDENTIAL INFORMATION
Customer acknowledges that the Proprietary Information and all information transmitted in connection with the performance of the Services, which is clearly marked as confidential, constitutes Confidential Information. Bodega Technologies acknowledges that information transmitted by Customer, which is clearly marked as confidential, constitutes Confidential Information. Each party agrees that it will receive and maintain the Confidential Information of the other party in confidence and, except as provided herein, will not use the Confidential Information for its own benefit or disclose it or otherwise make it available to third parties. The parties will take reasonable steps to ensure that their employees, representatives and agents comply with this provision. Confidential Information will not include information which: (i) is or becomes publicly available; (ii) was known to the recipient prior to the time it was disclosed; (iii) is independently developed by its owner without restriction on disclosure; (iv) is independently developed by the recipient without breach of this Agreement; or (v) is received from a third party without obligation of confidentiality. At the termination of this Agreement and upon request from the other party, all information marked as confidential shall be returned to the respective owner.

2. OWNERSHIP RIGHTS OF BODEGA TECHNOLOGIES
Unless otherwise set forth in the respective Statement of Work, the ideas, concepts, know-how or techniques developed during the course of this Agreement by Bodega Technologies shall be the sole and exclusive property of Bodega Technologies, subject to a royalty-free, full paid-up non-exclusive license to Customer, and may be used by Bodega Technologies in any way it may deem appropriate. Unless otherwise set forth in the respective Statement of Work, all Deliverables, including without limitation any software, specifications, data, documentation, discoveries, improvements and inventions conceived, made or developed in the performance of this Agreement (“Proprietary Information”) shall be the sole and exclusive property of Customer. Bodega Technologies agrees to execute all documents necessary to fully secure and perfect Customer’s interest in the Proprietary Information, including the filing of patent and copyright applications. Bodega Technologies may elect to develop materials, which are competitive with Deliverables, which might be supplied to the Customer hereunder, irrespective of their similarity to such Deliverables.

3. LIMITED WARRANTY
Bodega Technologies warrants that the services furnished hereunder shall be performed in a professional and workmanlike manner. This warranty will be valid for a period of ninety (90) days from performance of the services. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF WORK HEREUNDER, BODEGA TECHNOLOGIES MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO ANY SERVICES OR DELIVERABLES SUPPLIED UNDER THIS AGREEMENT. BODEGA TECHNOLOGIES EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE FOR THESE SERVICES.

4. LIMITATION OF LIABILITY
IN NO EVENT SHALL BODEGA TECHNOLOGIES BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES (INCLUDING ANY LOSS OF PROFIT, REVENUE OR DATA) ARISING OUT OF THE USE, PERFORMANCE OR FURNISHING OF ANY DELIVERABLES OR SERVICES, EVEN IF BODEGA TECHNOLOGIES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE, OR FOR ANY CLAIM OR ACTION BROUGHT AGAINST THE CUSTOMER BY ANY THIRD PARTY. Bodega Technologies’ liability to the Customer for damages, from any cause whatsoever and regardless of the form of action, shall be limited to the remedies set out in this Agreement, but in any event shall not exceed the charges paid or payable by Customer under this Agreement for the particular Services or Deliverables from which the liability arises. Customer agrees that Bodega Technologies will not have any responsibility or liability for hardware, software or other items or services provided by persons other than Bodega Technologies or its subcontractors. No actions arising out of the performance of Services or the furnishing of Deliverables under this Agreement may be brought by either party more than two (2) years after the cause of action arises, except that an action for non-payment may be brought within two (2) years of the date of the last payment made hereunder.

5. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall be construed to create a partnership, joint venture, agency relationship or employment relationship between the Customer and Bodega Technologies. Neither party has the right or authority to assume or create any obligation on behalf of the other party.

6. USE OF SUBCONTRACTORS
Bodega Technologies may use subcontractors to perform services under this SOW who shall be subject to the same restrictions, if any, to which Bodega Technologies is subject regarding site access and security rules.

7. INSURANCE REQUIREMENTS
Bodega Technologies represents that it carries sufficient worker’s compensation, public liability and property damage insurance to protect against related liability, which may arise in the performance of services specified on any applicable Project hereto.

8. ENTIRE AGREEMENT
The overall project contract, along with this Statement of Work, represents the entire agreement between the parties and supersedes any prior or contemporaneous oral or written agreements, commitments, representations or communications regarding the subject matter of this Agreement and any Statement of Work. All terms other than references to this Agreement or those business terms necessary to process and complete an order, contained in any purchase order or other type of Order Form you may use will be considered void. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. In the event of a conflict between the provisions of a Statement of Work and the provisions of this Agreement, the provisions of this Agreement shall prevail. The laws of California, USA shall govern this agreement without regard to California conflict of laws provisions.

9. NON-SOLICITATION
Neither party shall directly or indirectly, during the term of any Schedule hereto, and for one (1) year after its termination, solicit for hire as an employee, consultant or otherwise any of the other party’s personnel who have had direct involvement with the performance of any Project, without such other party’s express written consent. The Parties acknowledged that determination of actual damages for violation of this section shall be difficult to determine and thus agree that violation of this section shall subject it to liquidated damages in the amount of 150% of the greater of (a) the first year’s compensation promised by client to such employee, (b) the first year’s compensation actually paid to such employee, or (c) the last year’s compensation paid by Bodega Technologies to such employee. ‘Compensation’ in the preceding sentence shall include the value of of fringe benefits, bonuses, stock, stock option and awards under any other compensation plan.

10. TERMINATION
10.1 Neither party shall have the right to terminate a Statement of Work without terminating this Agreement after such Statement of Work has been executed by the parties, except for cause as set forth in Section 11.2 or as expressly set forth in such Statement of Work.

10.2 Either party may terminate this Agreement for its convenience, without cause, upon thirty (30) days’ advance written notification to the other party; provided, however, that in the event any Statement(s) of Work is in effect the effective date of termination of this Agreement pursuant to this Section 11.1 shall be suspended until the Services under such Statement(s) of Work then in effect have been completed.

10.3 This Agreement or any Statement of Work may be immediately terminated for cause by either party  in the event of:  (a) any default in, or breach of any material obligation of this Agreement by the other party, which default or breach continues in effect after the defaulting party has been provided with written notice of such default or breach and fifteen (15) days to cure such default or breach; or (b) the commencement of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to either party of its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect, that authorizes the reorganization or liquidation of such party or its debt or the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property; (c) either party’s consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it; (d) either party’s making a general assignment for the benefit of creditors; (e) either party’s becoming insolvent; or (f) either party taking any corporate action to authorize any of the foregoing.

10.4 Upon the termination of this Agreement or any Statement of Work, Customer shall immediately pay Bodega Technologies all fees, costs and expenses owed to or incurred by Partner up to the effective date of such termination; provided however, that with respect to any fees (but not costs or expenses) owed to Bodega Technologies under such Statement of Work, Customer shall pay Customer a pro rata amount of such fees due for such Statement of Work (based on the percentage of completion of the Services, as reasonably determined by the parties).  The foregoing shall not limit the other rights and remedies of either party under this Agreement.

10.5 Immediately after termination of this Agreement or any applicable Statement of Work, each party shall return to the other party any and all Confidential Information of the Disclosing Party that was delivered or learned in connection with this Agreement or applicable Statement of Work, or shall certify that such information has been destroyed.

11. NOTICES
11.1 Any notice, demand, request or other communication required or permitted under this Agreement shall be in writing and deemed duly served on and given: (a) when delivered personally or such attempted personal delivery is refused; (b) ten (10) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) upon delivery by facsimile or electronic mail with written facsimile or electronic mail confirmation; or (d) one (1) day after deposit with an internationally recognized commercial overnight courier, with written verification of receipt.  Each party shall deliver any notice to the other party at the address set forth below, unless for such other party provides notice of a change of address in accordance with this Section 13.

If to Bodega Technologies:
Professional Services Operations
Bodega Technologies Inc
3151 Jay Street, Suite 123
Santa Clara, CA 95054
Facsimile: 1-877-44-BODEGA
Email:   pso@bodegatech.com

11.2 Bodega Technologies requests that invoices and other support materials should be sent to the following address:

Bodega Technologies Accounts Payable Department
3151 Jay Street, Suite 123
Santa Clara, CA 95054
Facsimile: 1-877-44-BODEGA
Email:  ap_ar@bodegatech.com

12. MISCELLANEOUS
12.1 Force Majeure.  If either party is unable to perform any of its obligations under this Agreement because of any event beyond the control of the affected party, including, but not limited to, natural disasters, acts of God or terrorism, wars, riots, strikes, fires, labor disputes, governmental actions, decrees or restrictions, or failure of communication connections (“Force Majure Event”), the affected party shall promptly notify the other party and use its best efforts to resume performance.  Upon receipt of such notice, all obligations under this Agreement, except Bodega Technologies’ obligations to make payments shall be immediately suspended for the duration of the Force Majure Event.

12.2 Publicity.  Neither party shall disclose the existence of this Agreement or the relationship between the parties without the prior written consent from the non-disclosing party.

12.3 Assignment.  Neither party may assign this Agreement or its rights or obligations, in whole or in part, or delegate its duties hereunder, in whole or in part, without the prior written consent of the other party.

12.4 Nonwaiver.  No waiver shall be valid against any party hereto unless made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein.  Waiver of any default, breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any subsequent default, breach or right to enforce that may occur thereafter.

12.5 Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable for any reason, the remaining provisions of this Agreement shall be unimpaired and the parties will substitute a new enforceable provision of like economic intent and effect.

12.6 Governing Law.  This Agreement, the rights and obligations of the parties, and any claims or disputes shall be governed by and construed in accordance with the laws of the State of California, without reference to conflict of law principles.

12.7 Entire Agreement.  This Agreement, any referenced Exhibits and any executed Statement of Work constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous understandings, communications and agreements, written or oral.  This Agreement may be amended, modified, replaced or rescinded only in writing and signed by a duly authorized representative of each party.  This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same instrument.  One or more counterparts of this Agreement may be delivered by facsimile, with the intention that delivery by such means shall have the same effect as delivery of an original counterpart thereof.

12.8 Construction.  The parties have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including without limitation.

MASTER SERVICES AGREEMENT