IT Service agreement

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 1.1. Initial Term. The term of this Agreement shall begin on the Effective Date and shall expire three months (3) months thereafter (“Initial Term”), unless terminated earlier or extended in accordance with Section 1.2 below.

1.2. Renewal. This Agreement shall automatically renew for successive three-month periods after the expiration of the Initial Term (each a “Renewal Period”), unless either party provides the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Period. All charges, terms and conditions in effect during the month of the Initial Term (or the then-current Renewal Period) shall remain in effect during the subsequent Renewal Period except as otherwise mutually agreed by the parties in writing. The Initial Term and all Renewal Periods are collectively referred to herein as the “Term”.

 2.1. General.

(a) Service Provider shall provide the Services and satisfy the responsibilities described in this Agreement as it may be supplemented, enhanced or modified, upon mutual written agreement of the parties, during the Term.

(b) If any services, functions or responsibilities not specifically described in this Agreement are inherent subtasks of the Services and are reasonably necessary for provision of the Services, they shall be deemed to be implied by and included within the scope of the Services to the same extent and in the same manner as if specifically described in this Agreement.

2.2. Exclusivity. Service Provider will be the sole provider to the Customer of the Services, including any new, additional, or replacement services that perform substantially similar functions as the Services, unless the parties mutually agree in writing to waive such exclusivity.

2.3. Responsibilities. In order to ensure that the Services are timely and promptly delivered as contemplated in this Agreement, each party shall perform its respective responsibilities including those identified in Schedule A (the “Responsibilities”) using Commercially Reasonable Efforts.

Service Provider shall only be responsible for providing the Services as described on Schedule A. Customer will retain responsibility for all other aspects of Customer’s IT environment, including, without limitation, providing itself or obtaining from a third-party all other services related to Customer’s information systems and technology infrastructure.

(a) Technology Improvements. Customer and Service Provider will work together to establish technology standards for the provision of the Services. Service Provider may introduce technology, Software and Equipment improvements impacting Services provided to Customer; provided, however, that if such changes relate solely to Equipment owned by Customer and will increase costs to Customer, Service Provider will provide (i) cost/benefit analysis for such improvements; (ii) a transition plan; and (iii) estimated costs to execute such plan.

(b) Existing Equipment. Service Provider shall have administrative responsibility for all Services Equipment, regardless of whether previously owned by Customer, and may relocate such Services Equipment upon mutual agreement of the parties, provided that Service Provider may relocate data centers and network operating centers providing the Services in the Service Provider’s reasonable discretion upon prior written notice to, and coordination with, Customer and Customer shall reasonably cooperate in such relocation. Notwithstanding anything in this Agreement to the contrary, Customer shall have no ownership rights in any Equipment owned by Service Provider.

(c) Replacement/Refresh. Service Provider and Customer shall mutually agree on whether and when to refresh or replace the Equipment and Software used in providing the Services; provided, however, that the costs to refresh or replace Services Equipment or Services Software owned by Customer shall be Pass-Through Costs and the costs to refresh or replace Services Equipment or Services Software owned by Service Provider shall be Allocated Costs.

General. Schedule D attached hereto sets forth (i) Service Levels and (ii) applicable penalties for failure by Service Provider to perform in accordance with the Service Levels (the “Service Level Penalties”). Notwithstanding anything in this Agreement to the contrary, the maximum liability of Service Provider for all Service Level Penalties in any given month shall not exceed One Hundred Dollars ($100.00) in the aggregate.

  (a) As consideration for the Services and for all of Service Provider’s activities in connection with this Agreement, each month during the Term and any Termination/Expiration Assistance period, Service Provider shall charge Customer, and Customer shall pay Service Provider the following amounts (collectively, the “Consideration”): a monthly service fee (the “Monthly Service Fee”) in an amount equal to ___

Fairness of Pricing. The parties acknowledge that the pricing set forth herein is equal to fair market value and that the Agreement, taken as a whole, is commercially reasonable.

 7.1. Monthly Invoices. Service Provider shall deliver a statement to Customer on or about the 15th day of each month identifying the Consideration to be paid by Customer under this Agreement for the preceding month. Such statement shall set forth a brief description of the Services and other activities provided by Service Provider during such period and the total amounts owed by Customer for the Monthly Service Fee.

7.2. Payment Due. Payment for undisputed amounts set forth in each invoice provided for under Section 7.1 shall be due and payable in U.S. Dollars by check or wire transfer of immediately available funds no later than thirty (30) days following Customer’s receipt thereof without setoff, defense or counterclaim, except as provided in this Section 7.

7.3. Proration. Periodic charges under this Agreement are to be computed on a calendar month basis and shall be prorated for any partial month.

7.4. Late Fees. Undisputed fees or payments owed to Service Provider that are not paid in accordance with the terms of this Section 9 shall accrue interest from the original payment due date at the rate of one percent (1.5%) per month. Disputed fees or payments which are determined to be valid charges to Customer shall accrue interest from the original payment due date at the rate of one percent (1.5%) per month.

7.5. Material Breach. Customer’s failure to pay in accordance with this Section 7 constitutes a material breach by Customer of this Agreement.

8. Relationship Management and Change Control Procedures – The Project Executives shall work together to prepare Change of Control Procedures which will take effect upon the termination of this Agreement.

(a) Customer and Service Provider shall cooperate to draft a manual (the “Operations Manual”) mutually agreeable to both Customer and Service Provider no later than thirty (30) days following the Effective Date, which upon completion shall be attached as Schedule B hereto. The Operations Manual shall, among other things, describe how Service Provider and Customer will interface and interact regarding the performance of the Services under this Agreement, the Equipment and Software being used, and the documentation (e.g., operations manuals, user guides, specifications and management reporting) which provide further details of such activities. The Operations Manual shall describe the activities Service Provider proposes to undertake in order to provide the Services and describe the operating processes and procedures governing the performance of Services and further including acceptance testing and quality assurance procedures. In addition, the Operations Manual will contain notification procedures with respect to any scheduled or unscheduled downtime. The Operations Manual also shall identify Responsibilities to ensure that the Services are timely and promptly delivered as contemplated in this Agreement. The Operations Manual shall identify appropriate contract and decision-making personnel at Customer and also shall specify that the procedures for Request for Service (“RFS”), Project Change Request (“PCR”), Contract Change Request (“CCR”). The RFS, PCR, CCR and Change Control Procedures shall be fully described in the written document entitled “Governance”.

(b) Service Provider shall update the Operations Manual on an as needed basis but no less than annually in order to reflect changes in the operations or procedures described therein. Updates of the Operations Manual shall be provided to Customer for review, comment, and written approval. In the event of a conflict between the provisions of this Agreement and the Operations Manual, the provisions of this Agreement shall control.

(c) The parties shall incorporate specific procedures (roles, responsibilities, timing) for safety and security, which shall be consistent with industry standard procedures, into the Operations Manual.

(a) Customer and Service Provider shall cooperate to prepare a detailed and complete Change Control Procedures, which, once mutually agreed to, shall be deemed a part of the Operations Manual. The Change Control Procedures may not modify or change the scope of the Services to be provided under, or any other terms or conditions of, this Agreement unless otherwise agreed to expressly in writing by the parties.

(b) The Change Control Procedures shall provide, among other things, that Service Provider shall exercise control over the portion of the Customer’s IT environment related to the Services by:

(1) Prior to using any Software or Equipment in Customer’s dedicated environment (other than in a shared environment) to provide the Services, Service Provider shall obtain verification from Customer that the item has been properly tested and installed, as defined in the Operations Manual and is performing consistent with the Services.

(2) Service Provider will prepare reports mutually agreeable to Service Provider and Customer regarding the status of changes periodically determined by the parties.

(3) Except in emergency situations, as described below, Service Provider shall make no change that materially and adversely affects the function or performance of, or decreases to any significant degree the resource efficiency of, the Services, including implementing changes in technology, without first obtaining Customer’s written approval, which approval Customer may withhold in its sole discretion. An emergency situation shall include those which result in business interruption or a condition which may adversely impact the business if not handled immediately. Service Provider may make temporary changes required by an emergency and shall, if reasonably practicable, contact an appropriate Customer manager to obtain prior approval. Service Provider shall document and promptly report such emergency changes to Customer as soon as practical, but in no event later than five Business Days after the change is made.

(4) Service Provider shall move all Software from development and test environments to production environments in a controlled and documented manner. No changes shall be introduced into the programs during such activity except in accordance with the policies set forth in the Operations Manual.

10.1. Use of Data.

(a) Customer Data. Without Customer’s consent (subject to Customer’s sole discretion) or as otherwise directed by Customer or as required for the performance of the Services under this Agreement, or any other agreement between Customer and Service Provider or their respective Affiliates, Customer Data, excluding any Customer Data pertaining to Service Provider or its Affiliates, shall not be (a) accessed, used, disclosed, monitored, analyzed, individualized, anonymized, aggregated, stored, copied, sold, assigned, leased or otherwise provided to third parties, (b) commercially exploited in any form (including any individualized, anonymized or aggregated form), or (c) otherwise used in any manner, by Service Provider, Service Provider’s Affiliates or Service Provider’s agents, subcontractors and employees other than in connection with its performance under this Agreement. Service Provider, with respect to Customer Data in its possession, shall at all times comply with Customer’s retention, use and privacy standards applicable to such Customer Data to the extent Customer has disclosed such standards in writing to Service Provider and all laws applicable to Service Provider relating to Service Provider’s access to Customer Data.

(b) Service Provider Data. All Service Provider Data is, or shall be, and shall remain the property of Service Provider. Service Provider Data shall not be (a) accessed, used, disclosed, monitored, analyzed, individualized, anonymized, aggregated, stored, copied, sold, assigned, leased or otherwise provided to third parties, (b) commercially exploited in any form (including any individualized, anonymized or aggregated form), or (c) otherwise used in any manner, by Customer, Customer’s Affiliates or Customer’s agents, subcontractors and employees other than in connection with its performance under this Agreement.

(c) Responsibility for Data. Customer shall be responsible for the substance, meaning, results and analysis of Customer’s use of any Customer Data, and Service Provider shall not incur any liability resulting from such use of Customer Data. Nothing herein is intended to diminish Service Provider’s obligations under this Agreement or relieve Service Provider from such obligations.

10.2. Data Security. Service Provider will not transfer any Customer Data across a country border unless Service Provider obtains Customer’s prior written consent. Additional system security and access control policies and procedures applicable to the Services shall be set forth in the Operations Manual in accordance with Section 10.1(c).

10.2. Breach of Data Security. In the event of any actual or threatened breach of the security of Customer Data, including breach of the firewall referenced in Section 10.5 below, Service Provider will fully cooperate with Customer to secure the Customer Data. Service Provider agrees to notify Customer in writing immediately upon becoming aware of such breach and take appropriate action to remedy the situation.

10.3. Correction of Errors. Service Provider, at Customer’s expense, will promptly correct any errors or inaccuracies in Customer Data, of which Service Provider becomes aware, regardless of the cause.

10.4. Return of Data. Customer can request, at any time, Service Provider to return to Customer the Customer Data in, to the extent practicable, the format and on the media requested. Customer can request, at any time, Service Provider to erase or destroy any Customer Data in the Service Provider’s possession.

10.5. Firewall. Service Provider shall construct a firewall, and use all Commercially Reasonable Efforts necessary, to prohibit access by Service Provider, and its agents, employees and Affiliates, to any Customer Data, except to the extent necessary to provide the Services. The Operations Manual will describe the conditions under which Service Provider employees shall have access to Customer Data.

11.1. Disaster Recovery Plan. Subsequent to the Closing, Service Provider will update, test and execute the disaster recovery procedures for Customer’s operations, which shall include Data Center operations and recovery of Services (“Disaster Recovery”), that are in effect immediately prior to the Effective Date. Service Provider and Customer will work together to develop new Disaster Recovery for Customer within one (1) year following the Effective Date. Service Provider is not excused from executing Disaster Recovery as a result of a Force Majeure Event. Service Provider and Customer will work together to designate critical services and recovery time period (hours or days) and Service Levels applicable during Disaster Recovery. Customer and Service Provider can modify the Disaster Recovery plan upon mutual agreement at any time provided there is no adverse affect on Service Provider’s ability to restore Services.

11.2. Periodic SAS 70 Tests. At Customer’s expense, Service Provider will conduct annual Type II Statement of Auditing Standards (“SAS 70”) audits of the Services. To the extent that there is a replacement or successor to this SAS 70 audit, Service Provider will conduct that successor audit of the Services to meet its compliance certification requirements. Service Provider will promptly provide Customer or, if sufficient for Customer’s compliance purposes, Service Provider’s auditor may provide Customer’s auditor directly, with SAS 70 Type II report summaries that apply to the Services, and other SAS 70 Type II report summaries which cover areas of the Services, as soon as reasonably practicable, but no more than thirty (30) days after the report is delivered to Service Provider. All such report summaries will be general in nature (i.e., not customer specific). If any such audit determines that a material deficiency exists for a Service, Service Provider will, upon learning of the determination, notify Customer in writing regarding the material deficiency and will take Commercially Reasonable Efforts to remediate or mitigate such deficiency, with Customer’s cooperation as may be required by the nature of the deficiency. Customer and Service Provider’s share of the expense to remediate such deficiency shall be borne by each party in proportion to each party’s liability for such deficiency. Customer will be financially responsible for any audits, and any remediation related to such audits under this Section 12.2 unless such audits are commissioned by Service Provider for Service Provider’s benefit for the Services.

Service Provider and Customer shall cooperate to execute the Transition Plan during the Transition Period. Service Provider and Customer will provide the other periodic status reports regarding progress of the Transition Plan.

20.1. For Cause. Subject to the cure periods set forth below, in the event that either party materially breaches any of its material duties or obligations under this Agreement, the non-breaching party may, by giving thirty (30) days written notice of such breach thereof to the breaching party, terminate this Agreement, as to all or a portion of the Services, for cause. If the non-breaching party elects to terminate this Agreement for cause as to a portion of the Services pursuant to its termination rights under this Agreement, the parties will negotiate in good faith and implement an equitable adjustment to this Agreement to accommodate such termination. The breaching party shall have thirty (30) days after written notice of its material breach to cure such breach; or with respect to a breach that the breaching party demonstrates to the reasonable satisfaction of the non-breaching party cannot with due diligence be cured within thirty (30) days of notice thereof, the breaching party shall: (1) proceed promptly and diligently to correct the breach, (2) develop within thirty (30) days of notice of breach a mutually agreed to and complete plan for curing the breach, and (3) cure the breach within sixty (60) days of notice thereof.

20.2. Change in Control Event. If the Service Provider has a Change in Control Event and the party acquiring control of Service Provider is a Competitor, then Customer may terminate the Agreement by providing written notice to the Service Provider within ninety (90) days following the closing of such Change in Control Event.

20.3. Termination for Insolvency. In the event that either party (a) files for bankruptcy; (b) becomes or is declared insolvent, or is the subject of any unchallenged proceedings related to its bankruptcy, liquidation, insolvency, moratorium, or the appointment of a receiver or similar officer for it, or for a winding-up or for the dissolution or reorganization (other than a solvent reorganization); (c) makes an assignment for the benefit of all or substantially all of its creditors; or (d) enters into an agreement for the composition, extension, or readjustment of substantially all of its obligations, then the other party may, by giving written notice of termination to the first party, terminate the Agreement as of a date specified in such notice of termination or, if not specified, thirty (30) days after the date of such notice.

20.4. Termination/Expiration Assistance. Commencing on the effective date of termination or expiration of this Agreement, as the case may be, and continuing for a period of one hundred eighty (180) days, Service Provider shall provide to Customer, or at Customer’s request to Customer’s designee, the reasonable termination/expiration assistance requested by Customer to allow the Services to continue without interruption or adverse effect and to facilitate the orderly transfer of the Services to Customer or its designee (“Termination/Expiration Assistance”). Customer agrees to pay Service Provider for all such services under this Section 20.4 in accordance with Section 7 of this Agreement. Service Provider shall be obligated to provide Termination/Expiration Assistance regardless of whether this Agreement is terminated in connection with a material breach by Customer, provided, that Customer (i) pays undisputed payments due under this Agreement; and (ii) makes assurance of prompt payment or advance payment to Service Provider for the Termination/Expiration Assistance.

21.1. Disclaimer of Liability. Neither party shall be liable to the other party whether in contract or in tort (including breach of warranty, misrepresentation, negligence or strict liability in tort) for any indirect, special, punitive, exemplary, incidental or consequential losses or damages, including, without limitation, loss of revenue, loss of customers or clients, loss of goodwill, or loss of profits, or any loss of business, howsoever caused, or arising in any manner from the Agreement and the performance or nonperformance of obligations hereunder, regardless of whether either party has been advised of the possibility of such damages.

21.2. Liability Cap. Except as set forth in Section 21.3 below, the maximum liability of either party for all claims as a result of or in connection with this Agreement and the transactions contemplated herein shall not one thousand dollars ($1,000.00).

21.3. Exclusions. The limitations on liability set forth in Section 21.2 above shall not apply to: any Damages resulting from personal injury or property damage, amounts owed to Service Provider by Customer, tax obligations, Damages resulting from infringement claims, willful misconduct, gross negligence and intentional breaches of obligations under the Agreement, violations of law or otherwise covered by insurance.

The remedies set forth in this Agreement are the exclusive remedy for any claims by or against Customer, on the one hand, or by or against Service Provider, on the other hand, arising as a result of or in connection with the Agreement and the transactions contemplated herein except for the excluded claims set forth in Section 21.3 above. Notwithstanding the foregoing, Customer and Service Provider shall be entitled to injunctive relief requiring specific performance by the other party, as the case may be.

23.1. By Customer. Customer shall indemnify and hold harmless Service Provider, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any and all damage, loss, liability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding whether involving a Third-Party claim or a claim solely between the parties) (“Damages”) actually incurred or suffered by Service Provider arising out of or in connection with any breach of the Agreement by Customer, except for such Damages caused by the gross negligence or willful misconduct of Service Provider or its affiliates or its or their respective officers, directors, employees, managers, partners or agents.

23.2. By Service Provider. Service Provider shall indemnify and hold harmless Customer, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any Damages actually incurred or suffered by Customer arising out of or in connection with any breach of the Agreement by Service Provider, except for such Damages caused by the gross negligence or willful misconduct of Customer or its affiliates or its or their respective officers, directors, employees, managers, partners or agents.

23.3. Breach of Data Security. In addition to the indemnification obligations set forth in Sections 23.1 and 23.2 above, the parties hereby agree as follows:

(a) Customer shall indemnify, defend and hold harmless Service Provider, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any Damages actually incurred or suffered by Service Provider arising out of or in connection with Customer’s use of Customer Data and/or Customer’s breach of its obligations under Section 10 of this Agreement, except for such Damages caused by the gross negligence or willful misconduct of Service Provider or its affiliates or its or their respective officers, directors, employees, managers, partners or agents. Such Damages may include, without limitation, (i) the actual verifiable cost, if any, of notification of all persons affected by such breach of Section 10; and (ii) the actual verifiable cost, if any, to mitigate the effect of any such breach of Section 10.

(b) Service Provider shall indemnify, defend and hold harmless Customer, its Affiliates and its and their respective officers, directors, employees, managers, partners or agents against and from any Damages actually incurred or suffered by Customer arising out of or in connection with Service Provider’s use of Customer Data and/or Service Provider’s breach of its obligations under Section 11 of this Agreement, except for such Damages caused by the gross negligence or willful misconduct of Customer or its affiliates or its or their respective officers, directors, employees, managers, partners or agents. Such Damages shall include, without limitation, (i) the actual verifiable cost, if any, of notification of all persons affected by such breach of Section 10; and (ii) the actual verifiable cost, if any, to mitigate the effect of any such breach of Section 10.

23.4. Procedures. A party seeking indemnification under the Agreement (the “Indemnified Party”) shall give prompt notice to the party against whom indemnity is sought (the “Indemnifying Party”) of the assertion of any claim, or the commencement of any suit, action or proceeding (each, a “Claim”) in respect of which indemnity may be sought under and will provide the Indemnifying Party such information and documents with respect thereto that the Indemnifying Party may reasonably request. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations, except to the extent such failure shall have actually materially prejudiced the Indemnifying Party.

The Indemnifying Party shall have the right, at its option, exercisable within 30 days after receipt of such notice to assume the defense of, at its own expense and by its own counsel (which counsel shall be reasonably satisfactory to the Indemnified Party), any matter involving the asserted liability of the Indemnified Party (“Asserted Liabilities”), subject to the limitations set forth herein. If the Indemnifying Party intends to compromise, settle or defend any such Asserted Liability, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party agrees to cooperate fully with the Indemnifying Party and its counsel in the compromise or settlement of, or defense against, any such Asserted Liability; provided, however, that the Indemnifying Party shall not settle any such Asserted Liability without the written consent of the Indemnified Party unless such settlement (i) releases the Indemnified Party from all liabilities and obligations with respect to the Asserted Liability, (ii) does not contain a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the Indemnified Party, and (iii) does not impose a restriction on Indemnified Party’s business or an injunctive or other equitable relief against the Indemnified Party. Notwithstanding an election by the Indemnifying Party to assume the defense of such action or proceeding, the Indemnified Party shall have the right to employ separate counsel and to participate in the defense of such action or proceeding at its own expense. Notwithstanding anything herein to the contrary, the Indemnifying Party shall not be entitled to assume control of such defense but shall pay for the reasonable fees, costs and expenses of the Indemnified Party’s legal counsel, which counsel shall be reasonably satisfactory to the Indemnifying Party, if (i) the claim for indemnification relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (ii) the Indemnified Party has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand, or (iii) the Indemnifying Party failed or is failing to prosecute or defend such claim. If the Indemnified Party intends to compromise, settle or defend any Asserted Liability in accordance with the immediately preceding sentence or after the Indemnifying Party has declined to exercise its option to assume the defense of an Asserted Liability, the Indemnified Party shall promptly notify the Indemnifying Party of its intention to do so, and the Indemnifying Party agrees to cooperate fully with the Indemnified Party and its counsel in the compromise or settlement of, or defense against, any such Asserted Liability; provided, however, that the Indemnified Party shall not settle any such Asserted Liability without the written consent of the Indemnifying Party, which such consent shall not be unreasonably withheld.

Each party shall cooperate, and cause their respective affiliates to cooperate, in the defense or prosecution of any Claim by a Third-Party and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.

24.1. Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER WITH RESPECT TO THE SERVICES, OR ANY SOFTWARE PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR BY OPERATION OF LAW OR OTHERWISE, AND EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND SUITABILITY OF THE SERVICES. 

24.2. By Service Provider. Service Provider hereby represents and warrants to Customer as follows:

(a) It is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Oklahoma;

(b) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

(c) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate actions;

(d) No approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement;

(e) It will perform its obligations under this Agreement in a manner that complies with all applicable laws, regulations, ordinances and codes and will, in accordance with this Agreement, obtain all applicable consents, permits and licenses required in connection with its performance under this Agreement;

(f) It has not disclosed, and will not disclose, any Confidential Information of Customer;

(g) It will perform the Services to be performed by Service Provider for Customer in accordance with industry standards and practices applicable to the performance of the Services in a timely, competent and workmanlike manner;

(h) It will maintain the Services Equipment and the Services Software in accordance with the Service Levels in a cost-efficient manner;

(i) The Service Provider Software does not, as of the Effective Date, infringe, or constitute an infringement or misappropriation of, any Intellectual Property of any Third-Party.

(j) It will use Commercially Reasonable Efforts to ensure that the Service Provider Software used to provide the Services does not contain any virus or any other contaminant, including but not limited to codes, commands or instructions that may be used, without authorization, to access, alter, delete, damage, disable, cause disruption of or otherwise interfere with Customer’s use of Services Software. Service Provide will implement appropriate safeguards to prevent users from using the Service Provider Software to gain access to Customer IT environment, including, without limitation, the use of industry standard virus checking software; and

(k) It will provide the Services, the Services Equipment, if applicable, and the Service Provider Software in a manner which complies with Service Provider’s documentation.

24.3. By Customer. Customer hereby represents and warrants to Service Provider as follows:

(a) It is a non-profit organization duly organized, validly existing and in good standing under the laws of State of Oklahoma;

(b) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

(c) The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by the requisite corporate actions;

(d) It has not disclosed, and will not disclose, any Confidential Information of Service Provider;

(e) No approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement; and

(f) It will perform its obligations under this Agreement in a manner that complies with all applicable laws, regulations, ordinances and codes and will obtain, in accordance with this Agreement, all applicable consents, permits and licenses required in connection with its performance under this Agreement.

25.1. Insurance. Service Provider shall during the Term have and maintain the following insurance coverages:

(a) Worker’s Compensation Insurance: Service Provider shall provide customer with a Certificate of Non-Coverage from Comp Source Oklahoma. 

(b) Commercial General Liability Insurance, including Contractual Liability and Broad Form Property Damage Liability coverage for damages to any property with a minimum combined single limit of $3,000,000 per occurrence. This policy shall be endorsed to name Customer, its subsidiaries, partners, directors, officers, affiliates and employees, as additional insurers.

The foregoing insurance coverages shall be primary and non-contributing with respect to any other insurance or self-insurance which may be maintained by Customer. These coverage requirements may be addressed by umbrella and/or excess policies. Service Provider shall cause its insurers to issue to Customer within fifteen (15) days following the Effective Date certificates of insurance evidencing that the coverages and policy endorsements in (b) and (c) above required under this Agreement are maintained in force and provide Customer not less than thirty (30) days’ prior written notice of any material change to, or cancellation or non-renewal of, the policies. 

25.2. Risk of Loss. Each party shall be responsible for risk of loss of and damage to, any Equipment, Software or other materials in its respective possession or under its control.

25.3. Waiver of Subrogation. Each party waives and will require all of its insurers to waive all rights of recovery against the other party and its partners, directors, officers, affiliates and employees, whether in contract, tort (including negligence and strict liability) or otherwise.