BILATERAL NDA

THIS DEVCOM DIRECT INDEPENDENT CONTRACTOR AGREEMENT (this “Agreement”) is made as of the date set forth below (“Effective Date”) by and between DEVCOM DIRECT, LLC, DBA “DEVCOM” (“Agency”), an Ohio limited liability company, and the signer below (“Independent Contractor”). Agency and Independent Contractor may also be referred to herein individually as a “Party” and collectively as the “Parties.”

WHERES, Agency is a specialized direct-sales, customer-service, and installation organization serving clients and end users in the ISP/MSO, TELCO, and streaming TV/entertainment industries (collectively, “Clients”); and

WHEREAS, Agency wishes to retain Independent Contractor to provide certain services upon the terms and conditions hereinafter set forth;

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.          Definitions.

“Action” has the meaning set forth in Section 10. “Agreement” has the meaning set forth in the preamble. “Clients” has the meaning set forth in the recitals. “Chargebacks” has the meaning set forth in Section 6.4.

“Commissions” has the meaning set forth in Section 6.1.

“Confidential Information” means any information that is treated as confidential by a Party, including but not limited to all non-public information about its business affairs, customers, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

“Agency” has the meaning set forth in the preamble.

“Agency Indemnitee” has the meaning set forth in Section 10.1.

“Agency Materials” means any documents, data, know-how, methodologies, software, and other materials provided to Independent Contractor by Agency, including computer programs, reports, and specifications.

“Defaulting Party” has the meaning set for in Section 5.4.

“Disclosing Party” means a party that discloses Confidential Information under this Agreement.

“Force Majeure Event” has the meaning set forth in Section 15.

“Independent Contractor” has the meaning set forth in the preamble.

“Independent Contractor Personnel” means all employees and subcontractors, if any, engaged by Independent Contractor to perform the Services.

“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Service Providers” means all third parties who provide the underlying internet offerings to Agency and its Clients, including any internet amenities, infrastructure, software and hardware.

“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Order(s)”) has the meaning set forth in Section 3.1(b).

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Products” means any Service Provider’s offerings, as well as Agency’s customer-service and installation offerings.

“Receiving Party” means a Party that receives or acquires Confidential Information directly or indirectly under this Agreement.

“Renewal Term” has the meaning set forth in Section 5.2.

“Services” mean the professional services to be provided by Independent Contractor under this Agreement, as described in more detail in one or more Statements of Work, and Independent Contractor’s obligations under this Agreement.

“Statement of Work” means each Statement of Work entered into by the Parties and attached to this Agreement, substantially in the form of the initial Statement of Work attached hereto as Exhibit A.

“Term” has the meaning set forth in Section 5.

“Territory” has the meaning set forth in Section 2.2.

“Trial Period” has the meaning set forth in Section 5.1.

1.          Services.

1.1 Independent Contractor shall provide the Services to Agency as described in more detail in one or more Statements of Work in accordance with the terms and conditions of this Agreement.

1.2 Each Statement of Work shall include the following information, as applicable:

(a) a detailed description of the Services to be performed pursuant to the Statement of Work;

(b) a description of the geographic area or Clients that Independent Contractor shall provide the Services to (the “Territory”);

(c) the fees to be paid to Independent Contractor under such Statement of Work and payment schedules;

(d) any criteria for completion of the Services;

(e) the Holdback Amount; and

(f) any other terms and conditions agreed upon by the Parties in connection with the Services to be performed pursuant to such Statement of Work.

RECITALS

WHEREAS, in order to pursue discussions regarding the mutual business purpose identified below (“Business Purpose”), the Parties recognize that there is a need to disclose to each other certain confidential information and to provide for mutual agreements to protect such confidential information and restrict its use strictly to the pursuit of said Business Purpose; and

WHEREAS, DEVCOM and Company desire to enter into this Agreement and perform their respective covenants and agreements in accordance with the terms and conditions hereof.

NOW THEREFORE, in consideration of the representations, conditions and covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree that the foregoing recitals are true and correct and are incorporated into this Agreement, and further agree as follows:

GENERAL TERMS & CONDITIONS

1. Term. The Agreement shall begin on the Effective Date and shall continue for a term of two (2) years.

   
   

2. Mutual Business Purpose of Disclosure. The Parties desire to receive confidential information from one another for the following reason(s): Strategic discussions regarding a strategic relationship.

   
   

3. Confidential Information. “Confidential Information” means all information or material of a Party or its affiliate(s), whether revealed orally, visually, or in tangible or electronic form, that is competitively sensitive material not generally known to the public that relates to the business of a Party or Party affiliate(s), or any of their respective interest holders, unless such information (a) was already rightfully known to the Receiving Party at the time of disclosure by Disclosing Party; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the Receiving Party; (c) has been rightfully received by Receiving Party from a third party not under obligation of confidentiality to Disclosing Party and without breach of this Agreement; or (d) is independently developed by Receiving Party without reference or reliance on any confidential information of Disclosing Party. In addition to the foregoing, Confidential Information shall include all information in tangible form and marked “confidential” or with words of similar effect and all information identified as confidential at the time of oral disclosure. For the purposes of this Agreement, any party receiving Confidential Information hereunder is referred to as a “Receiving Party” and the party disclosing Confidential Information hereunder is referred to as the “Disclosing Party”.

   
   

4. Obligations of Confidentiality. Each Party understands and agrees that it will be deemed to be in a relationship of confidence with respect to the Confidential Information disclosed to it by the other or any other Party. Each Party will maintain the other's confidential information and any internally prepared notes or documents containing or based upon the Confidential Information (“Work Product”) in the strictest confidence and will not disclose such Confidential Information or Work Product to any third party or use or reproduce such Confidential Information or Work Product except as is reasonably necessary to evaluate the Business Purpose, without the prior written consent of the Disclosing Party. Each Party will keep and maintain all of any other Party's Confidential Information and Work Product in a safe and secure location. Each Party will use reasonable steps to protect any other Party's Confidential Information and Work Product from unauthorized or inadvertent disclosure. A Party may disclose another Party's Confidential Information to its affiliates, officers, directors, partners, employees, accountants, lawyers, advisors and other representatives (collectively “Related Persons”), but only to the extent necessary to pursue the Business Purpose. Each Party will instruct all such Related Persons to carry out their respective obligations under this Agreement not to disclose such Confidential Information to third parties and not to use it for any purpose (other than to pursue the Business Purpose), without the prior written consent of the Disclosing Party. Each Party shall be responsible for any acts or omissions of its Related Persons that result in a breach of this Agreement.

   
   

5. No Warranties. Each Party understands and agrees that (a) the Disclosing Party has not made and is not making any representations or warranties, express or implied, as to the accuracy, completeness or fitness for any particular purpose of any Confidential Information of such Disclosing Party, and (b) a Disclosing Party shall not have any liability to a Receiving Party relating to or resulting from Receiving Party's use of any Confidential Information of such Disclosing Party or any inaccuracies or errors therein or omissions therefrom.

   
   

6. Return of Confidential Information. At any time upon the request of Disclosing Party, Receiving Party shall return all of Disclosing Party’s Confidential Information (and all copies and derivative works thereof), and/or shall delete or erase such Confidential Information and copies and derivative works thereof from the computer systems in the possession or control of the Receiving Party or any third party acquiring the Confidential Information from such Receiving party, provided, however, that to the extent the Receiving Party’s or third party’s computer back-up or archiving procedures create copies of the Confidential Information, Receiving Party may retain such copies on a strictly Confidential basis for so long as such copies are not readily accessible and are not used or consulted with for any other purposes, which copies shall remain subject to this Agreement until destroyed or no longer deemed Confidential Information. Disclosing Party shall have the right to require Receiving Party to verify, to Disclosing Party’s reasonable satisfaction, that all Confidential Information has been returned, deleted, or otherwise protected from use or disclosure under the terms of this Agreement.

   
   

7. Injunctive Relief. Both Parties acknowledge that the unauthorized disclosure, use or disposition of Confidential Information of the other Party would cause irreparable harm and significant injury which would be difficult to ascertain. Accordingly, the Parties agree that the Disclosing Party may seek injunctive relief in the event of any breach of the obligations set forth in this Agreement, in addition to any other remedies that may be available to the Disclosing Party at law or in equity.

   
   

8. Compelled Disclosure. In the event the Receiving Party is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other legal process) to disclose any Confidential Information of the Disclosing Party, then the Receiving Party shall provide the Disclosing Party with prompt prior written notice so that Disclosing Party may seek a protective order or other appropriate remedy, and the Receiving Party shall reasonably cooperate with the Disclosing Party’s efforts to obtain such relief at no cost to the Receiving Party.

   
   

9. Violation. If the Receiving Party becomes aware of any actual, threatened or impending act by any person or entity that is or might be in violation of any of the restrictions herein with respect to use, disclosure, or copying of Confidential Information, then Receiving Party shall notify the Disclosing Party immediately and shall work with the Disclosing Party to remedy the situation. This provision shall not limit any other remedy (including injunctive relief without the need to post a bond) that may be available to Disclosing Party herein at law or in equity.

   
   

10. Parties’ Rights in Confidential Information. Each Party shall retain all rights, title and interest in and to its Confidential Information. Nothing herein shall be construed as a grant by one Party to the other Party of any rights or license in and to a Party’s Confidential Information. Any use, disclosure, reproduction, or transfer of all or part of Confidential Information, or copies or compilations thereof, except in accordance with these provisions is strictly prohibited.

    
    

11. Miscellaneous.

    
    

    1. Governing Law. This Agreement shall be governed by, construed in and enforced exclusively in accordance with the laws of the State of Ohio, without regard to its conflict of laws provisions or the residence of its parties. Any lawsuit to interpret or enforce the terms of this Agreement shall be brought exclusively in a court of competent jurisdiction in the State of Ohio. The Parties expressly consent to personal jurisdiction in Ohio for the purpose of resolving any dispute related to the making or interpretation of this Agreement.

       
       

    2. Indemnity. The receiving Party hereby agrees to indemnify the disclosing Party against any and all losses, damages, claims, expenses, and attorneys’ fees incurred, or suffered, by the disclosing Party as a result of a breach of this Agreement by the receiving Party or any of its directors, officers, employees or agents.

       
       

    3. Amendments. This Agreement may not be modified, supplemented or changed except pursuant to in a written amendment, signed by a duly authorized representative of each Party.

       
       

    4. Waiver. All waivers of performance of or adherence to the terms and conditions of this Agreement must be in writing and signed by the Party waiving the same. The failure of a Party to require the performance of any obligation herein, or the waiver by a Party of any breach hereof, shall not constitute a waiver of future performance or any subsequent breach.

       
       

    5. Severability. If any provision in this Agreement is held to be invalid or unenforceable, such provision shall be amended to achieve as nearly as possible the objectives of, and the same economic effect as the original provision, and all other provisions shall remain in full force and effect.

       
       

    6. Assignment. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns and shall inure to the benefit of the Parties and, except as otherwise provided herein, to their respective successors and permitted assigns.

       
       

    7. Survival. Any of the provisions in this Agreement which by their nature extend beyond the termination or expiration of this Agreement shall remain in effect until fulfilled and apply to both Parties’ successors and assigns.

       
       

    8. Counterparts and Admissibility of Electronic Copies. This Agreement may be executed in multiple counterparts, which together shall constitute a complete document. Unless otherwise prohibited by any applicable laws or regulations, this Agreement may be signed electronically, and such electronic signature shall be deemed, and shall have the same legal force and effect as, an original signature. An electronic copy thereof shall be deemed, and shall have the same legal force and effect as, an original document.

       
       

    9. Headings. Section and paragraph headings and document titles and below are not to be considered part of this Agreement and are included solely for convenience and shall not be held to define, construe, govern or limit the meaning of any term or provision of this Agreement.

       
       

    10. Entire Agreement. This Agreement, including all exhibits and appendices attached hereto, as well as any applicable statements of work and/or orders, embodies the entire agreement and understanding of the Parties, and as of the Effective Date supersedes all prior written or oral agreements or contemporaneous discussions, negotiations, correspondence or other understandings between the Parties, relating to the subject matter hereof. The Parties agree that no Party has made any representation with respect to the subject matter herein or any representation, including the extension and delivery hereof, except such representations as are specifically set forth herein, and each of the Parties acknowledges that it has relied on its own judgment and upon the facts within its knowledge in entering into this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions hereof, any statements, law or custom to the contrary notwithstanding.

        
        

    11. Duration. All obligations imposed hereunder shall continue in force until the expiration of the Term or the earlier written termination by either Party. The Parties’ obligations pursuant to the Section of this Agreement titled “Obligations of Confidentiality” shall survive for five (5) years after any expiration or termination. Notwithstanding expiration or earlier termination of this Agreement, the provisions of this Agreement titled or addressing “Confidential Information,” “Injunctive Relief,” “Violation,” “Governing Law,” and “Severability” shall survive indefinitely.

IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective date indicated.