Standard Terms and Conditions for Professional Services

This document contains standard terms and conditions for professional services furnished by cQuant.IO, Inc., a Delaware corporation (“Contractor”), to one of its customers (“Customer”) under an order form submitted by Customer to Contractor (“Order Form”). (Customer and Contractor are referred to together as the “Parties” and singly as a “Party”.)

1. Contents of Agreement. The Parties are entering into a professional services agreement (the “Agreement”), consisting of: (a) a signed Order Form; (b) a work order attached to the Order Form (“Work Order”); and (c) these terms and conditions. If there is an inconsistency between any provision of these terms and conditions and any provision of an Order Form or Work Order, the order of precedence will be as follows: Order Form; Work Order; and these Terms and Conditions. For clarity, any provision of these Terms and Conditions may be modified by the Parties in an Order Form or Work Order, but the modification will only apply to the Work performed under the Order Form or Work Order in question.
2. Engagement of Contractor. Customer hereby engages Contractor to perform certain work, including professional services (“Work”), as stated in one or more Work Orders, each of which will be substantially in the form of Exhibit A to these Terms and Conditions. Contractor will perform the Work stated in each Work Order, and Customer will pay for such Work, under the terms and conditions of the Agreement.
3. Compensation. Contractor’s compensation and the terms of payment of such compensation will be as stated in the applicable Work Order. Contractor will issue invoices to Customer from time to time, consistent with the applicable Work Order; each invoice will reference the applicable Work Order. Contractor will be entitled to reimbursement of its reasonable expenses, which will be included on its invoices and will be due and payable 30 days from the date of the invoice. Contractor will include documentation supporting its reimbursement claim with each invoice.
4. Independent Contractor Relationship. Contractor’s relationship with Customer is that of an independent contractor. Nothing in the Agreement creates a partnership, agency, joint venture, employment, or similar relationship. Contractor will not be entitled to any of the benefits that Customer may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing, or retirement benefits. Contractor is not authorized to make any representation, contract, or commitment on behalf of Customer unless specifically requested or authorized in writing to do so by a Customer manager. Contractor is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state, or local tax authority with respect to the performance of Work and receipt of fees and other amounts under the Agreement. Contractor is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing Work under the Agreement. No part of Contractor’s compensation will be subject to withholding by Customer for the payment of any social security, federal, state or any other employee payroll taxes. Customer will regularly report amounts paid to Contractor with applicable local, state, and federal governments as required by law.
5. Disclosure and Assignment of Work Resulting from Work Orders.
   1. “Customer Work Product” means Intellectual Property owned by Customer before the Effective Date and Intellectual Property created or developed solely by Customer.
      • “Contractor Work Product” means all Intellectual Property that is created or developed by Contractor, alone or in concert with others, in the course of performing Work, including analytic models.
      • “Intellectual Property” means patents, patent applications, patentable and non-patentable inventions, copyrightable and non-copyrightable works of authorship, including computer programs and code, designs, trade secrets, know-how, ideas, mask works, trademarks, service marks, trade names and any other items commonly referred to as intellectual property in the United States or elsewhere in the world, whether or not registrable.
      • Notwithstanding the above definitions, the Parties expressly may agree in a Work Order that a particular item of Intellectual Property will be Customer Work Product or Contractor Work Product, and that agreement will take precedence over the above definitions.
   2. Assistance; Power of Attorney. Customer will perform, during and after the term of the Agreement, all acts that are reasonably necessary or desirable to permit and assist Contractor in obtaining, perfecting, and enforcing such Party’s rights and benefits in, to, and under Intellectual Property embodied in Contractor Work Product. If Contractor is unable for any reason to secure the signature of Customer or any of Customer’s employees or contractors on any document necessary or desirable in connection with the filing, prosecution, registration, or memorialization of Contractor’s rights in any Contractor Work Product, Customer hereby irrevocably designates and appoints Contractor and Contractor’s duly authorized officers and agents as Customer’s agents and attorneys-in-fact to do so in the name, place, and stead of Customer, all with the same legal force and effect as if the document or instrument in question were executed by Customer. The foregoing is deemed a power coupled with an interest and is irrevocable.
   3. Ownership of Work Producta) Contractor Work Product will be the sole and exclusive property of Contractor from the moment of its creation. The Customer shall and hereby does assign and quitclaim unto Contractor all Customer’s right, title, and interest in, to, and under Contractor Work Product.
      
      b) Customer Work Product will be the sole and exclusive property of the Customer from the moment of its creation. Contractor shall and hereby does assign to Customer, to the extent necessary to more fully evidence Customer’s right in any Customer Work Product, all of Contractor’s right, title, and interest in, to, and under Customer Work Product.
      
      c) The incorporation of any Customer Work Product into Contractor Work Product will not affect the ownership of the Customer Work Product or the Contractor Work Product.
      
      
6. Confidentiality
   1. Definition of Customer Confidential Information. “Customer Confidential Information” means (a) any technical and non-technical information related to the Customer’s business and its current, future, and proposed products or services, including trade secrets, financial results and plans, marketing plans, and customer and vendor data; and (b) any of the foregoing information that Customer has received from others and is obligated to treat as confidential or proprietary. Notwithstanding the foregoing, “Customer Confidential Information” does not include any information that is or becomes, through no fault of Contractor: (i) in the public domain, i.e., known to members of the public; (ii) provided to Contractor by third parties under no duty of confidentiality; (iii) independently developed by or previously known to Contractor; (iv) required to be disclosed by court order or legal process, provided that Contractors makes commercially reasonable efforts to inform the Customer of such order or process in advance of disclosure.
   2. Nondisclosure and Nonuse Obligations. Contractor shall not use, disseminate or disclose Customer Confidential Information to any other person without the consent of the Customer. Contractor may use the Customer Confidential Information solely to perform Work. Contractor shall treat all Customer Confidential Information with the same degree of care as Contractor accords to Contractor’s own confidential information, but in no case shall Contractor use less than reasonable care. Contractor shall disclose Customer Confidential Information only to those of Contractor’s employees who have a need to know such information. Contractor certifies that each such employee will have agreed, either as a condition of employment or in order to obtain the Customer Confidential Information, to be bound by terms and conditions at least as protective as those terms and conditions applicable to Contractor under the Agreement. Contractor agrees not to communicate any information to Customer in violation of the proprietary rights of any third Party. Contractor shall return all Customer Confidential Information to Customer on demand at such time as it is no longer needed to perform Work.
7. Confidentiality of Contractor Work Product. All Contractor Work Product is proprietary and confidential to Contractor. Customer shall not disclose any Contractor Work Product to any person without the consent of the Contractor and shall not use or permit any other person to use Contractor Work Product for any purpose other than the purpose for which it was created or developed by Contractor under the Agreement, if such purpose is stated in the applicable Work Order.
8. No Conflict of Interest. Contractor warrants that, to the best of Contractor’s knowledge, Contractor owes no contractual or other duty to any person that conflicts with its obligations under the Agreement.
9. Term and Termination.
   1. Term. The Agreement will be effective for a term of three years after the Effective Date, at which time it will terminate; provided, however, that if there are any Work Orders that have not been fully performed as of the foregoing termination date, the Agreement will remain in effect as to such Work Orders until they have been fully performed. Notwithstanding the foregoing, the Agreement may be terminated early under the other provisions of this Section 9.
   2. Termination for Convenience. Either Party may terminate the Agreement for convenience at any time on 5 days’ notice, except termination for convenience will not affect any Work Order that has not been fully performed as of the time of termination; such Work Order will terminate when it is fully performed, and the Agreement will remain in effect as to such Work Order until the Work Order has been fully performed.
   3. Termination for Breach. Either Party may terminate the Agreement if the other Party has committed a material breach, except for nonpayment, and fails to cure such breach within 10 working days after the aggrieved Party has notified the breaching Party of the breach, describing the same in reasonable detail. Termination will take effect immediately and automatically upon the expiration of the cure period. If Customer fails to make any payment due hereunder within 3 working days after Contractor has notified the Customer of the non-payment, Contractor may terminate the Agreement, effective immediately. Any termination under this Section 9.3 will terminate all outstanding Work Orders.
   4. Effect of Expiration or Termination. The expiration or termination of the Agreement for any reason will not affect Contractor’s right to be receive payment for Work performed, and to receive reimbursement for expenses incurred, prior to such expiration or termination, subject to Customer’s right to withhold payment for Work not performed or performed improperly and for expenses not properly reimbursable. The Customer may withhold payment only for those items on an invoice that are in dispute. The Parties will cooperate to resolve any issues regarding withheld amounts as soon as reasonably possible. Termination will not affect the any provision of the Agreement or any Work Order whose survival is reasonably necessary to give effect to the intent of the Parties, including any provision regarding confidentiality, nonsolicitation, or the ownership or protection of Intellectual Property.
10. Nonsolicitation. During the term of the Agreement and for one year immediately following the termination or expiration of the Agreement for any reason, neither Party will solicit or induce any employee or independent contractor of the other Party to terminate or breach an employment, contractual, or other relationship with such other Party; provided, however, that this paragraph will not apply to contacts initiated by the employee or contractor in question or to contacts made by the employee or contractor in question as a result of a job posting of general circulation.
11. General Provisions
    1. Certain Rules of Construction. Headings and titles in the Agreement are for reference only and will be ignored for purposes of construing and applying the Agreement. The word “including” will be construed as though it is followed by the words “without limitation”.
    2. Successors and Assigns. Contractor may not subcontract or otherwise delegate Contractor’s obligations under the Agreement without Customer’s prior written consent. Subject to the foregoing, the Agreement will be for the benefit of Customer’s successors and assigns, and will be binding on Contractor’s assignees.
    3. Injunctive Relief. Injunctive relief will be available to either Party under the Agreement to prevent or stop a breach by the other Party of its confidentiality or nonsolicitation obligations or in any other appropriate circumstances.
    4. Notices. Any notice required or permitted by the Agreement shall be in writing, which includes email. Notice will be deemed given when it is actually received. Notice shall be sent to the addresses set forth above or to such other address as either Party may provide in writing.
    5. Governing Law; Forum. The Agreement shall be governed by Colorado law, without regard to its conflict of laws principles, and by United States law regarding copyrights, patents, and other exclusively federal matters. Each of the Parties consents to the nonexclusive personal jurisdiction and venue of the federal and state courts located in Denver, Colorado, for all purposes relating to the Agreement.
    6. Severability. If a court of law holds any provision of the Agreement to be illegal, invalid, or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision, and (b) the legality, validity, and enforceability of the remaining provisions of the Agreement shall not be affected thereby.
    7. Waiver of Jury Trial. Each party hereby irrevocably and forever waives its right to trial by jury in any action arising out of or in connection with the Agreement.
    8. Waiver; Modification. If Customer waives any term, provision or Contractor’s breach of the Agreement, such waiver shall not be effective unless it is in writing and signed by Customer. No waiver of a breach of the Agreement shall constitute a waiver of any other or subsequent breach. The Agreement may be modified only by mutual written agreement of the Parties.
    9. Entire Agreement. The Agreement constitutes the entire agreement between the Parties relating to its subject matter and supersedes all prior and contemporaneous agreements concerning such subject matter, whether written or oral.