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:

• SERVICES 

1. 1. 1. Scope.  Company shall provide services to Customer pursuant to one or more written statements of work or other project order document, each of which is incorporated herein by reference, for ordering Services (each, an “SOW”). The SOW shall specify the services, applicable fees, scope of work, and/or appropriate project timelines, as well as any terms and conditions which differ from or add to the general provisions of this Agreement, as mutually agreed upon from time to time by the Parties pursuant to this Agreement (services described in each SOW are collectively referred to as the “Services”). Each SOW shall specify the Services to be provided, including, but not limited to, all deliverables (“Deliverables”), and other particulars that shall govern the Services rendered under each SOW. The first SOW (“SOW #1”) is set forth herein in Exhibit A.

      2. Additional Services. Customer may elect additional Services as set forth in one or more additional SOW. Each additional SOW shall set forth the fees for such additional Services.

      3. SOW Authorization and Modification. The SOW(s) are to be signed on behalf of Customer exclusively by authorized individuals of Customer.  Any deviation from or modification to a SOW must be by mutual agreement, in writing, by the Parties.  In the event of any conflict or inconsistency between the provisions of a SOW and the provisions of this Agreement, the provisions of the SOW shall govern and control with respect to the interpretation of that SOW; provided, however, that the provisions of the SOW shall be so construed as to give effect to the applicable provisions of this Agreement to the fullest extent possible.

      4. Acceptance of Deliverables. Unless otherwise agreed to in a SOW, Customer shall have ten (10) business days following Company’s delivery of any Deliverable described in a SOW to accept the Deliverable.  Customer’s acceptance shall be deemed to have occurred upon the expiration of the ten (10) business day review period. If Customer does not accept the Deliverable, Company shall have a reasonable period of time (not to exceed ten (10) business days unless otherwise agreed to by the Parties) to remedy the deficiencies or to present a plan to remedy the deficiency which is reasonably acceptable to Customer.  

• FEES, PAYMENT AND TAXES

1. 1. 1. Fees for Services.  Customer shall pay Company the charges set forth in each SOW (the “Fee”). Unless otherwise specified in the applicable SOW, actual and reasonable expenses incurred by Company in connection with the Services shall be charged to Customer, so long as such expenses are approved in writing by Customer. 

      2. Invoicing and Payment.  Unless otherwise stated in a SOW, (i) Customer shall pay to Company an amount equal to 100% of the aggregate Fee set forth in any SOW prior to commencement of Services, which amount shall be applied toward the Services; and (ii) Company shall invoice Customer [quarterly]. Customer shall pay Company within thirty (30) calendar days from the date of invoice for any of the Services and expenses provided or incurred hereunder. Company may charge Customer interest and late fees on any overdue or unpaid portion of the Fees in an amount one and on half percent (1.5%) per month or the highest amount permitted by law, whichever is less.

      3. Taxes.  All Fees and other amounts payable by Customer under this Agreement are inclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.

• CUSTOMER OBLIGATIONS

1. 1. Customer agrees to fulfill its responsibilities set forth in each SOW and to cooperate with Company as reasonably necessary for Company to perform the Services set forth herein. If Customer fails to satisfy in a timely manner its responsibilities in any material respect (a “Customer Delay”), the due date for Company’s performance under the SOW shall be extended for the amount of time caused by Customer Delay. Furthermore, if a Customer Delay causes the Deliverables to be delayed by more than thirty (30) calendar days, Company may, at its option, terminate the SOW and this Agreement.  Termination of such SOW shall not affect Customer’s payment obligations thereunder.  Notwithstanding anything herein to the contrary, if Customer fails to respond to Company’s communications regarding an alleged Customer Delay, Company may, in addition to any rights it may have, and at its option, suspend all work under a SOW or terminate the SOW.  

   2. Customer represents and warrants that it has all necessary rights, title, and interest in, to, and under all Confidential Information (as defined in Section 6), data, content, artwork, and designs which are provided to Company hereunder.  

   3. Customer shall not modify or cause any third party to modify any Service or Deliverable without the prior written consent of Company.  

   4. During the Term (as defined below), Company shall be Customer’s exclusive provider of services and deliverables competitive with the Services and Deliverables contemplated herein.  

1. 1. TERM AND TERMINATION

      1. Term. Except as otherwise set forth in a SOW, this Agreement shall commence on the Effective Date and remain in effect for a period of twelve (12) months (the “Initial Term”).  

      2. Termination. 

         1. Termination for any Reason. Either Party may terminate this Agreement or any SOW for any reason with at least ninety (90) calendar days’ written notice to the other Party. In the event Customer terminates this Agreement pursuant to this Section 4.2.1, Customer shall pay Company for Services provided up to the date of termination of the SOW or this Agreement, and Customer shall not be entitled to a refund of its initial deposit or advance payments, if any, as set forth in the SOW. Termination of a SOW shall not have the effect of terminating this Agreement or other SOWs, if any.  However, termination of this Agreement shall terminate all SOWs, if any, between the Parties. 

         2. Termination Upon Breach. In the event either Party materially breaches any provision of this Agreement or a SOW and fails to remedy such breach within fifteen (15) calendar days of receipt of written notice from the non-breaching Party, then the non-breaching Party may immediately terminate this Agreement and/or the applicable SOW. Notwithstanding the foregoing, Company may suspend performance under a SOW due to a Customer’s failure to fully pay the amount due, as set forth therein, after ten (10) calendar days prior written notice by Company to Customer. Either Party may terminate this Agreement and any SOW then in effect upon written notice to the other Party in the event the other Party (i) discontinues its business; (ii) files a petition for bankruptcy; (iii) becomes insolvent; or (iv) makes an assignment for the benefit of creditors. In the event of termination pursuant to this Section 4.2.2, Customer shall pay Company the entire Fee owed and payable to Company through the Initial Term, pursuant to the payment terms of each SOW between Company and Customer, and Customer shall not be entitled to any refund of any payments made pursuant to the Initial Term, if any, as set forth in the SOW. 

         3. Termination Upon Unauthorized Modification or Breach of Exclusivity. Company may terminate this Agreement or any SOW upon written notice to Customer upon any breach of Sections 3.3 or 3.4.  In the event of termination pursuant to this Section 4.2.3, Customer shall pay Company for all Fees and reasonably incurred costs and charges accrued prior to the termination date.

         4. Mutual Agreement to Terminate. The Parties may mutually agree in writing, at any time, to terminate this Agreement or any SOW. 

         5. Effect of Termination. In the event of any termination of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement, including, but not limited to, any payment obligation accrued by Customer hereunder.  

• WORK PRODUCT AND PROPRIETARY INFORMATION

1. 1. Subject to Section 5.2, 5.3 and 5.4, all work product created by Company for Customer as a result of the Services (“Work Product”) is “Work Made For Hire” in accordance with Title 17 of the United States Code, United States Copyright Law, as amended. In the event that any Work Product is held not to be a “Work Made For Hire”, Company hereby assigns to Customer all right, title, and interest therein.

   2. Notwithstanding Section 5.1, Company and its licensors reserve and retain ownership to all Company Technology. Company grants to Customer the non-exclusive license to use Company Technology provided to Customer by Company in the course of performing the  Services solely  for  Customer’s  internal use  in  connection  with  Customer’s use  of  the  Work Product. “Company Technology” together with any materials described in a SOW as “Preexisting Technology” or “Generic Components,” shall mean: (i) all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information, and tools acquired by Company prior to, or independently of, Company’s provision of the Services, including, without limitation, any modifications, improvements or derivative works, of any of the foregoing; and (ii) all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information, and tools, including, without limitation, software and programming tools, developed in the course of providing the Services to support Company product and/or service offerings and which can be used in services, applications, and deliverables other than those developed under this Agreement, and can be used without Confidential Information supplied by Customer.  With respect to the Company Technology, Customer shall not: (x) copy, modify, or create derivative works of any Company Technology, (y) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of any Company Technology; or (z) remove, delete, alter, or obscure any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Company Technology.

   3. Further, Company and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any assignment, so long as it or they acquire and apply such information without disclosure of any Confidential Information supplied by Customer and without any unauthorized disclosure of Work Product.

   4. If specified in a SOW, Work Product may include Third-Party Materials. “Third Party Materials” means materials containing intellectual property owned or authored by third parties. Certain Third Party Materials may be provided to Customer pursuant to license directly from the third party, or pursuant to a sublicense from Company, as agreed by the parties. Certain other Third Party Materials may be open source materials, and as such are governed by open source software license agreements supplied with such open source materials, such as the GNU General Public License.

   5. Company makes no claim of ownership of Third-Party Materials or any open source materials, and such open source materials are supplied in accordance with the license agreements accompanying such materials. Further, although as between Company and Customer, Customer owns all rights to modifications made by Company, all such rights are constrained by the license agreements applicable to the open source materials so modified. Customer understands that open source materials may not be classified as Confidential Information if such classification would result in violation of any applicable open source license.

   6. Customer represents and warrants that Customer has effective license agreements which permit Company access to (and use by Company on Customer’s behalf of) third party software and equipment which the Work Product is intended to interoperate with or which Customer has requested that Company modify under any SOW. Customer will provide licensing information to Company upon request, will indemnify Company against breach of this warranty, and if, in Company’s judgment, it is necessary to upgrade software or hardware to enable the performance of Services or use of Work Product, Customer shall bear the cost of such upgrade.

   7. Use of Trademarks. The Parties agree and understand that Customer hereby grants Company a limited right to use any and all trademarks of Customer pursuant to this Agreement. Company acknowledges that such trademarks remain the proprietary property of Customer and Company shall have no right to use any such trademark outside the scope of this Agreement.

• DATA

1. 1. 1. Customer Data. Customer shall own all its data, information, and materials provided by Customer to Company (the “Customer Data”), and Customer shall be solely liable for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all such data, information, and materials. “Customer Data” includes any Customer-specific content created by Company for Customer using data, information, or materials provided by Customer to Company.  Customer hereby licenses to Company the limited right to use or modify the Customer Data delivered by Customer to Company solely for the purpose of permitting Company to perform the Services requested by Customer hereunder including to compile statistical and performance information related to the provision and operation of the Services.

      2. Return of Customer Data. In the event this Agreement expires or is terminated as set forth herein, upon Customer request, Company will make available to Customer a file of such Customer Data at any time prior to the one (1) year anniversary of expiration or termination.  Customer agrees and acknowledges that Company has no obligation to retain such Customer Data and may delete such Customer Data upon termination.

• CONFIDENTIALITY

1. 1. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) non-public, proprietary, and confidential information of the Disclosing Party (“Confidential Information”). Confidential Information includes all information identified by the Disclosing Party as confidential, including but not limited to, information regarding its business, employees, financial condition, products, operation, or other financial and business matters.  Each Party’s Confidential Information shall (i) remain the sole property of that Party and (ii) be used by the other Party only as described herein. Confidential Information may not be disclosed or made otherwise available to any third party except to the extent that the Disclosing Party’s employees or agents (such as subcontractors) have a need to know the Confidential Information in the scope of their work during the time they are performing services under this Agreement. Confidential Information does not include information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7.1; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information; or (iv) information disclosed in accordance with a valid court order or other valid legal process.  If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. Each Party agrees to hold the Confidential Information of Disclosing Party in strictest confidence and not to copy, reproduce, distribute, publish, or disclose such Confidential Information to any person except as expressly permitted by this Agreement.

• LIMITATION OF LIABILITY; INDEMNIFICATION

1. 1. 1. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO COMPANY UNDER THE SOW FROM WHICH THE CLAIM ARISES.  CUSTOMER AGREES THAT DELIVERABLES AND SERVICES PURCHASED HEREUNDER MAY BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO, OR BE PACKAGED TOGETHER WITH THE PRODUCTS OR SERVICES SUPPLIED BY OR PERFORMED BY THIRD PARTIES (“THIRD PARTY PRODUCTS AND SERVICES”). COMPANY MAKES NO REPRESENTATIONS AND WARRANTIES REGARDING ANY THIRD PARTY PRODUCTS AND SERVICES, AND UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM RELATED TO ANY THIRD PARTY PRODUCTS AND SERVICES NOR ANY DAMAGE AS A RESULT OF THE COMBINATION OR INTEGRATION OF ANY DELIVERABLE OR SERVICES PROVIDED HEREUNDER WITH ANY THIRD PARTY PRODUCTS AND SERVICES. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABILE TO CUSTOMER OR ANY THIRD PARTY WITH REPSECT TO ANY CLAIM RELATED TO MODIFICATIONS TO THE SERVICES OR DELIVERABLES BY ANY THIRD PARTY.

      2. Indemnification by Customer.    Customer shall indemnify, defend, and hold harmless Company and its affiliates, officers, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees and other costs of defense, arising from or relating to (a) Customer’s breach of any terms of this Agreement; (b) the use of the Service and Deliverables in the conduct of its business; (c) any violation of applicable law; (d) any modifications to the Services or Deliverables by Customer or any third party; or (e) any claims of infringement of the intellectual property rights of any third party except for any claim related exclusively to the Company Technology.

      3. Indemnification by Company.   Company shall indemnify, defend, and hold harmless Customer and its affiliates, officers, directors, employees, agents, successors, and assigns, for, from, and against all claims, demands, liabilities, damages, and costs including, without limitation, its reasonable attorneys’ fees and other costs of defense, arising from or relating to (a) Company’s breach of any terms of this Agreement; or (b) any claims of infringement of the intellectual property rights of any third party with respect to any claim related exclusively to the Company Technology.

      4. The Party seeking indemnification (“Indemnitee”) shall provide the other Party (“Indemnifying Party”) prompt written notice of any knowledge it may have of such an infringement or other indemnity claim, and the Indemnitee shall reasonably cooperate in the defense and settlement of any such claim.  The Indemnifying Party shall have the right to control the defense, negotiation, and settlement of any such claim and the Indemnifying Party shall pay all damages and costs awarded by a court of competent jurisdiction against Indemnitee arising out of such claim or the amount of any settlement to which the Indemnifying Party may agree.

• WARRANTY

1. 1. 1. Warranty. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL DELIVERABLES AND SERVICES ARE PROVIDED “AS-IS” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, WEBSITE, OR OTHER DELIVERABLES PROVIDED UNDER ANY SOW.  COMPANY DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF ANY WEBSITE OR OTHER DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES OR ANY DELIVERABLE MAY BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO, OR BE PACKAGED TOGETHER WITH ANY THRID PARTY PRODUCTS OR SERVICES.  CUSTOMER AGREES AND UNDERSTANDS THAT COMPANY TAKES NO RESONSIBILITY FOR DATA OR FILES AFTER SUCH DATA OR FILES ARE DELIVERED TO CUSTOMER.  CUSTOMER ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS AGREEMENT AND RECOGNIZES AND AGREES THAT THIS PROVISION IS AN IMPORTANT FACTOR IN COMPANY’S WILLINGNESS TO PERFORM SERVICES HEREUNDER.

• ADDITIONAL TERMS  

1. 1. Publicity. Company may include Customer’s name in its published Customer lists and may issue to the general public announcements and written statements concerning the existence of this Agreement and the general substance of Services to be performed and performed hereunder, provided that Company maintains the confidentiality of all proprietary and Confidential Information.

   2. Relationship between the Parties.  The relationship between the Parties is that of independent contractors.  Company shall not be considered or deemed to be an agent, employee, joint venture, or partner of Customer.  Company’s personnel shall not be considered employees of Customer, shall not be entitled to any benefits that Customer grants its employees, and shall have no authority to act or purport to act on Customer’s behalf.  The details of the method and manner for performance of the Services by Company shall be under its own control, Customer being interested only in the results thereof. Company shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services.

   3. Non-solicitation.  Company and Customer agree that during the term of this Agreement and any SOW and for 12 months thereafter, neither Party shall solicit for employment or retention as an independent contractor any employee or former employee of the other Party who provided any Services pursuant to this Agreement.  “Solicit” shall not be deemed to include advertising in newspapers or trade publications available to the public.

   4. Notices.  All notices to be given by the Parties hereto shall be in writing and shall be deemed to be properly given when personally delivered to the specified address below and left with a responsible person or when sent by email (provided the sender receives no “bounceback” or other evidence that the email was not received by the intended recipient), or to such other address as either Party shall have notified the other, in like manner, to be its proper business address.  

   5. Jurisdiction and Venue; Choice of Law.  The Parties mutually acknowledge and agree that this Agreement shall be construed and enforced in accordance with the laws of the state of Delaware, exclusively, without regard to any conflict-of-law provisions, and the Parties agree that in any dispute exclusive jurisdiction and venue shall be in the state and federal courts located in Maricopa County, Arizona.

   6. Negotiation and Escalation; Mediation. If any controversy or claim arises relating to this Agreement, the Parties shall first attempt in good faith to negotiate a solution to their differences.  If negotiation does not result in a resolution within thirty (30) days of when one Party first notifies the other of the controversy or claim, then prior to initiating any legal proceeding, the Parties agree, understand, and acknowledge that (i) the Parties must first participate in mediation with an experienced third-party mediator mutually agreeable to the Parties; (ii) the Party desiring to initiate such action or proceeding must put the other Party on written notice of the dispute and the nature of such dispute; and (iii) the Parties agree to share equally in the costs of the mediation.  If mediation does not result in a resolution of the dispute, either Party may elect to pursue other legal proceedings.

   7. Assignment.  Customer may not assign or transfer this Agreement or any of its obligations hereunder without prior written consent of Company.  Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.  Any assignment or assumption without Company’s prior written consent shall be null and void.  

   8. Subcontractors.  Company may engage subcontractors in connection with its performance of the Services hereunder, which subcontractors shall comply with the terms set forth in this Agreement.

   9. Survival of Terms.  Any terms of this Agreement, which by their nature are intended to extend beyond this Agreement’s expiration or termination, shall remain in effect until fulfilled and shall apply to respective successors and assignees.

   10. Miscellaneous.  

       1. This Agreement, together with all SOWs and any other documents incorporated herein by reference, constitutes the sole agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to the subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any SOW, the following order of precedence shall govern: (i) SOW(s) (the most recent SOW having higher precedence, and so forth); (ii) this Agreement, in each instance, subject to Section 1.2. 

       2. Amendment and Modification; Waiver. Except as set forth in Section 1.2, no alteration, amendment, waiver, cancellation, or any other change in any term or condition of this Agreement shall be valid or binding on either Party unless mutually assented to in writing by authorized representatives of both Parties.  No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly so provided in writing.  The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by either Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a Party to enforce each and every such provision thereafter.  

Severability. If any provision of this Agreement is adjudged by a court to be invalid, void, or unenforceable, the Parties agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of the Parties, and that this Agreement shall in any event otherwise remain valid and enforceable.  The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.