I. Contracting Parties

Client has entered into a contract for services with and only with the entity referenced in the attached Service Agreement, its successors, and assigns, (“Company”).  The contract is made up of the service agreement, proposal, scope of work, change request, or other such engagement agreements, quotes or estimates accepted, appendices, and exhibits (“Service Agreement”), and these general terms and conditions (“Terms and Conditions”) set forth herein (the terms of such Service Agreement and these Terms and Conditions are hereinafter collectively referred to as the “Contract”). By executing the Service Agreement, Client acknowledges that it has read and agreed to these Terms and Conditions, which are incorporated within and are part of the Contract. Client acknowledges that in the event of and only to the extent of any inconsistencies between these Terms and Conditions and the Service Agreement, the provisions of the Service Agreement will govern.

II. Term, Invoicing and Payment

The Service Term is stated in the service agreement, statement of services or other such engagement agreement. If not expressly stated, the term will be 12 months and will automatically renew for successive terms, unless notified 60 days in advance or as otherwise stated.

Company will invoice Client for services as provided in the Service Agreement. Applicable setup fees are non-refundable once setup is completed. Invoices are due and payable upon receipt by check, ACH or credit card.  Credit card payments incur a 3% processing fee. Any invoice or part thereof remaining unpaid after thirty (30) days will be assessed a late fee of $50 and will accrue interest at a rate of one and one-half percent (1 ½ %) per month. Accounts with outstanding balances will be subject to termination of services. Company reserves the right to apply payments in its sole discretion to past due invoices. In the event Client does not have an approved credit account with Company, Company may require payment by cashier’s check or credit card.

A re-activation fee equivalent to one (1) months’ service fees will be charged if service is cancelled or suspended due to any reason.

Client will bear all applicable federal, state, municipal and other governmental taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated or levied on the services rendered or on the sale of equipment or products (or the delivery thereof) or measured by the purchase price paid for the products or services.  Exemption certificates must be presented prior to shipment or installation to be honored.

III. Termination and Remedies

Either party may terminate services, for convenience, as provided in the Service Agreement, or if not stated in the Service Agreement may terminate with sixty (60) days written notice delivered in accordance with Section “Notices”.  In the event of termination by Client for convenience, Client is obligated for payment of fees on remaining term, services performed prior to termination, and any costs incurred by Company for the assistance of termination and transfer of services, for which payment will be and due upon such notice by Client without demand. In the event of termination by Company, Company will provide services until termination date. If either party terminates this Contract for convenience, both parties will fully cooperate in the orderly and timely termination of services, including transfer of the services to another designated provider.

Within ten (10) days of termination of services, Client agrees to remove and return all Company owned products and software related to the services from Client’s devices or otherwise render them permanently unusable, as directed by Company. Client agrees to return or destroy any and all Company documentation, products, and software received related to the services.

This Contract will be deemed terminated for cause if either party fails to cure any material breach of this Contract within thirty (30) days after receiving written notice of such breach; provided however that the period to cure a breach with respect to payment will be five (5) days. If Client terminates this Contract for cause in accordance with this Section, Company will refund to Client any prepaid amounts applicable to the period following the month end of the effective date of termination. Other than as may be provided elsewhere in this Contract, such termination will be Client’s sole and exclusive remedy in case of a material breach of this Contract by Company.

Client will grant full access to Company to remove Company equipment and will hold Company completely harmless for taking such action. Company may in its sole discretion delete all Client data, information, files and programs stored on Company’s servers or system. Company will have no obligation to retain copies of Client data or files on Company’s system following Client’s termination. Company will have no continuing obligation to deliver or provide products and services upon termination.

Upon Client default without cure, Company may, in its sole discretion and without notice, terminate all services, remove Company owned software and equipment, take possession of all or part of the Company owned software and equipment, and delete Client data, information, files, and programs stored on Company’s servers or system. Client agrees to immediately return or destroy any and all documentation, products, and software received related to the services. Client acknowledges that this may leave its computers and other equipment without adequate systems for updates to operating systems, software, and virus scanning programs. Company will not be held responsible for any damages or consequences resulting from the removal of software, equipment, data, information, files, programs, or termination of services.

Removal of the equipment or deletion of files does not relieve Client of the obligations under this Contract, including payment in full.

In the event Company incurs any cost or expense to enforce or interpret its rights under the terms of this Contract, whether or not Company will commence legal proceedings, Client agrees to pay all such costs and expenses, including but not limited to all reasonable attorney’s fees incurred by Company.

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT.  COMPANY DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, ALL WARRANTIES AND ANY LIABILITY, INCLUDING THOSE BY THIRD PARTY SUPPLIERS INVOLVED IN DELIVERY OF EQUIPMENT SERVICES FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE EQUIPMENT OR THE SERVICES.

IV. Product Sales, Returns, Warranties, and Security Interest

The following terms and conditions apply to original equipment from the manufacturer and third-party equipment and software products purchased by Company for and on behalf of Client that are resold to Client and become the property of Client.

Client will comply with and will not act to contravene, applicable laws, codes, and regulations, including without limitation those relating to the licensing/control of, or prohibition gains, shipment (including both export and re-export) to designated countries and / or entities.

All warranties and product support are provided by the manufacturer. Company may permit Client to return products claimed to be defective under certain circumstances. Company makes no representations or warranties of any kind with respect to products.  COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  COMPANY WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY.  The right to return defective products, as previously described, will constitute Company’s sole liability and Client’s exclusive remedy in connection with any claim of any kind relating to quality, condition or performance of any product, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure for any limited or exclusive remedy to achieve its essential purpose or otherwise.  In the event Company issues a return authorization to Client allowing Client to return equipment or product to Company, Client will deliver goods to Company’s address at Client’s cost.

Until such time as Client has paid the agreed purchase price, Company hereby retains, and Client hereby grants a purchase money security interest in any equipment described in the Service Agreement. In connection therewith, Client agrees to execute all instruments (including financial statements) deemed necessary by Company under applicable law to establish, maintain and continue perfected Company’s purchase money security interest in the equipment or otherwise protect its rights in and to said equipment.

V. Ownership of Intellectual Property

Company will assign to Client the right, title and interest, including, without limitation, Client owned trademarks and copyrights, in and to the Deliverables. The term “Deliverables” includes all work created by Company for hire by Client, and includes data, modules, components, designs, utilities, subsets, objects, program listings, and specifications.  Deliverables does not include Company tools, models, methodologies, programs, systems, analysis frameworks, leading practices, trade secrets and proprietary rights including data, modules, components, designs, utilities, subsets, objects, program listings, and specifications, owned or developed by Company prior to, or independently from, its engagement by Client (“Technical Elements”) and any third party works and products (“Supplier’s Technical Elements”) and any modifications or enhancements to Supplier’s Technical Elements developed in the course of performing the Services (collectively, “Company Technical Elements”), whether or not embedded in the Deliverables. Company retains exclusive ownership rights to all Company Technical Elements. Accordingly, to the extent that any Company Technical Elements are integrated into any Deliverables, Company grants to Client a perpetual, worldwide, non-exclusive, limited license to use and modify such Company Technical Elements as integrated into such Deliverables for Client purposes only.  Notwithstanding anything to the contrary in this Section, where Company utilizes a third-party software vendor to provide Services, Client’s rights to any materials developed by such third party will be subject to the terms of any software license of such third party. Notwithstanding anything to the contrary contained herein, Company retains all rights and license to its knowledge, experience and know-how (including processes, ideas, concepts and techniques) acquired or developed by Company prior to, or in the course of performing the services for Client, but independently from its engagement hereunder (“Company knowledge, experience and know-how”).

VI. Confidentiality

Company and Client both acknowledge that in the course of this Contract, each party may have access to the other’s Confidential Information. “Confidential Information,” as used in this Contract, means information not known to the public, in written, oral or any other form, that a party designates as being confidential or that, under the circumstances surrounding disclosure, should be clear that it is confidential. Confidential Information includes trade secrets, consisting of formulas, patterns, devises, processes, and compilations of information, specifications, records, customer information, vendor and sub-contractor information, and all files, records, documents, drawings, specifications, equipment, and similar items relating to the business of the parties, whether they are prepared by Company or Client or come into either party’s possession in any other way, are and will remain the exclusive property of such party’s business and will not be removed from the premises of such party under any circumstances whatsoever without the prior written consent of such party. The parties will not misuse, misappropriate, or disclose any of the Confidential Information described herein, directly or indirectly, or use them in any way, either during the term of this Contract or at any time thereafter.

Each party will take all necessary steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Contract, and in any event each party will exercise the same prudent practice in preserving this information as it does to preserve its own Confidential Information.

The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Contract pursuant to the order or requirement of a court or other governmental body, provided that the party required to make such disclosure gives prompt notice to the other party to enable it to contest such order or requirement. Furthermore, Company reserves the right to monitor any and all communications through or with our facilities for the purposes of the ECPA requirements.

VII. Non-Solicitation of Employees

Client agrees that neither party will solicit or offer employment to the respective employee(s) or sub-contractor(s) of the other, whether directly or indirectly, during the term of this Agreement or within 1 year of termination of Agreement, or during their employment or within 1 year of termination of their employment, except with the prior written approval in each case.

Our professionals represent our team of skilled professionals and in the event you wish them converted to your employ or any subsidiary or related party of yours or another employer to whom you refer them, you agree to pay a conversion fee regardless of the employment classification.

The conversion fee will equal 35% of the professional’s aggregate annual compensation, including bonuses. The conversion fee is owed and invoiced upon your hiring of our professional, and payment is due upon receipt of invoice. The same calculation will be used if you convert our professional on a part-time basis, using the full-time equivalent annual compensation.

VIII. Indemnification and Limitation of Liability

Client agrees to indemnify and hold Company harmless from any costs, demands, claims, damages, losses, and costs of defense including reasonable attorney’s fees (collectively, “Losses”) incurred by Company as a result of any breach by Client of any covenant, warranty, or representation made by Client hereunder, including the representations and warranties herein.

Client agrees to indemnify and hold Company harmless for all claims made or threatened, damages, penalties, loss, and costs of defense including Company’s attorney’s fees incurred in defense of any such claim arising out of the content of Client’s data.  Such indemnification will extend to all claims including claims made by any party that such data or files infringe upon any protected technology, trade secret, or protected right of use, and will further extend to all claims brought against Company by any third party containing any allegation that Client data was illegally obtained by Client, illegal due to its content, or in any way tortuously or illegally infringes upon the rights of any person.

Client is and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of its information management systems, including but not limited to, obtaining any consent and/or acknowledgement from your employees and service providers (if applicable). Client agrees to indemnify and hold Company harmless from any Losses incurred by Company as the result of Client’s breach of these responsibilities.  Client acknowledges and agrees that Company’s responsibilities and liability do not extend to the internal management of Client’s information policies and that Company is merely a data-processor and does not control and is not responsible for the management, administration, or security of Client’s content or policies.

Client agrees to adhere to system policies as published or provided by Company including restrictions on services available with each account type, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service provided by Company. Client agrees to abide by any and all future Company policy decisions.

Company will not be liable to Client or any other person or entity for any damages (punitive, incidental, special, exemplary, indirect or consequential) arising from the use or inability to use the services provided by Company to Client, or arising from or related to the engagement of Company, whether based in contract, tort (including negligence), intended conduct or otherwise even if Company has been advised of the possibility of such potential damages, including without limitation: expenses; lost profits, savings, income, goodwill, revenue or prospective compensation; or expenditures, investments, leases or any type of commitment made in connection with the business of Client accepting this Contract or in reliance on the existence of this Contract in any action.   In no case is Company liable for any damage claims made by the Client or customers of the Client engaging Company.  Additionally, under no conditions will Company’s total amount out-of-pocket liability arising under this Contract exceed an aggregate amount equal to the fees paid by Client to Company during the month of the causation of the damages.

Company will not be liable to Client or any other person or entity for acts of God, fire, disaster, national security, or other circumstances outside of Company’s control.

IX. Governing Law

The terms of the Contract are governed by the laws of the State of Missouri.  Any action at law or in equity to enforce or interpret the Contract will be brought in the Circuit Court for the County of St. Louis, State of Missouri.

X. Notices

All notices required to be sent under this Contract must be in writing and delivered in person or sent to the names and addresses of the parties as referenced in the Service Agreement or otherwise provided in writing. Notices are deemed to have been given upon (i) the date actually delivered in person, (ii) the date transmitted via email or fax with confirmation of receipt (iii) the day after the date sent by overnight courier with confirmation receipt or (iv) 3 days following the date such notice was mailed by first class mail certified with return receipt.