BLUE KIWI shall be compensated at the rate of $US12,500 per month.BLUE KIWI shall bill Client on the 15th at the last day of each calendar month for servicesperformed for each period with payment due in 30 days.BLUE KIWI shall bill Client for expenses incurred in performance of the activities outlined in thisagreement.**Incentive Compensation.**From time to time, Cistera may offer phantom stock, stock appreciation rights, stock options orother equity interests in Cistera and its affiliates and/or other forms of long-term incentives toBLUE KIWI, upon such terms and conditions as Cistera shall determine to be in its businessinterests to do so.**5.0** **Ownership Of Materials Related To Services.**BLUE KIWI acknowledges that employees and affiliates will receive confidential information ofClient in the course of delivering the Services, that employees and affiliates are bound by theterms of a confidentiality agreement previously executed with Client.**6.0** **Warranties; Limitations on Liability**BLUE KIWI warrants that:It will perform the Services required in a competent and workmanlike manner in accordance withapplicable professional standards.BLUE KIWI’s performance of the Services called for by this Agreement does not and will not violate:(1) any applicable law, rule, or regulation; (2) any contracts with third parties; or (3) anythird—party rights in any patent, trademark, copyright, trade secret, or any other proprietary orintellectual property right;BLUE KIWI’s personnel performing the Services on Client‘s premises will comply with Client’s rules,regulations, and policies to the extent communicated in advance to BLUE KIWI.Except as set forth above in this Section 5, BLUE KIWI makes no other warranties, express orimplied, including without limitation any warranties as to merchantability or fitness for aparticular purpose or any warranties regarding any particular outcome of the Services. In no eventwill either party be liable to the other party or any other person for any special, incidental,consequential or exemplary damages, whether based on breach of contract, tort (excluding grossnegligence, intentional acts and infringement), statute or otherwise, regardless of whether thebreaching party has been advised of the possibility
 

 
of such damages. Each party expressly waives any right to seek to any such special, incidental,consequential or exemplary damages.In no event (including unenforceability of the limitations of liability herein, and independent ofany failure of essential purpose of the limited warranty and remedies provided hereunder), willBLUE KIWI’s total liability in contract, tort or otherwise arising out of or in connection with theprovision of the Services, this Agreement or the Statement of Work exceed the aggregate servicefees paid to BLUE KIWI by Client pursuant to this Agreement.; provided, however, any liability forfraud, breach of the Non- Disclosure Agreement or the indemnification obligations set forth inSection 12 shall not be subject to this limitation on liability as well as liability which resultsfrom gross negligence or intentional acts. This limit (subject to the. exclusions set forth in theimmediately preceding sentence) also applies to any subcontractors of the BLUE KIWI engaged in theperformance of the Services and is the maximum for which BLUE KIWIor and its subcontractors are collectively responsible (subject to the exclusions set forth in theimmediately preceding sentence),The parties acknowledge and agree that the foregoing limitations of liability are an essentialbasis of the bargain set forth herein and are necessary in order to preserve the favorable termsand conditions set forth in this agreement.**7.0** **Default Termination**Either party may terminate this Agreement, including the Services then remaining to be performedunder the Statement of Work, in the event the other party breaches a material term of thisAgreement and fails to cure such breach within thirty (30) days following receipt of written noticeto the other specifying in reasonable detail the nature of such breach. In the event any suchtermination occurs after BLUE KIWI has performed a material portion of the Services and suchtermination is not as a result of the breach by BLUE KIWI, Client shall pay to BLUE KIWI a pro rataportion of the fees provided for in Section 3.1 based on the portion of the Services actuallydelivered to Client prior to the effective date of termination. Client may also terminate thisAgreement immediately upon BLUE KIWI’s material breach of Section 12.All accrued obligations and liabilities hereunder, and the provisions of Sections 4 through 12,inclusive, shall survive the expiration or earlier termination of this Agreement by either partyfor any reason.**8.0** **Independent Contractor**The parties agree that BLUE KIWI’s relationship with Client is that of an independent contractorand nothing in this Agreement shall be construed as creating a partnership, joint venture oremployer—employee relationship or shall be deemed to constitute BLUE KIWI or Client the agent ofthe other. Neither BLUE KIWI nor Client shall be or become liable or bound to any third party byany representation, act or omission whatsoever of the other. Neither BLUE KIWI nor any of itsemployees or other agents will be entitled
 

 
to any of the benefits which Client may make available to its employees, such as group insurance,profit-sharing, or retirement benefits. BLUE KIWI will be solely responsible for complying with allapplicable local, state and federal laws with respect to its employees who are assigned to performthe Services, including but not limited to obligations for the payment of federal, state and localtaxes, social security, disability and other contributions attributable to the rendition ofServices hereunder to Client.BLUE KIWI will indemnify, hold harmless and defend Client from any and all claims, liabilities,damages, taxes, fines or penalties sought or recovered by any governmental entity, including butnot limited to the Internal Revenue Service or any state taxing authority, arising out of BLUEKIWI’s alleged failure to pay such taxes or make such contributions.**9.0** **Time for Performance; Force Majeure**Unless specifically guaranteed in the Statement of Work, all statements regarding the time requiredto perform the Services and the dates by which those Services will be performed are estimates only.While BLUE KIWI will endeavor to complete the Services on the schedule mutually established withClient, BLUE KIWI makes no warranty that the Services will be completed by any given date.**10.0** **Miscellaneous**Notices. All notices permitted or required under this Agreement must be in writing and delivered bypersonal delivery, facsimile transmission or certified or registered mail, return receiptrequested. Notices will be deemed given upon the earlier of actual receipt or (a) three business(3) days after deposit with the courier service or (b) seven (7) business days after deposit withthe U.S. Postal Service. Notices must be sent to the addresses listed below, or to such otheraddress as either party may specify in writing:lf to Client:Attn: James Miller — President