PROFESSIONAL SERVICES AGREEMENT

(Version FSIPSA_02-24-2015)

This Professional Services Agreement (“Agreement”) is made and entered into as of the Effective Date as indicated below, by and between you (“You” &/or “Your”) and  Freestyle Solutions, Inc. (“Our”, “Us” or “We” ) a Delaware Corporation having principal offices at 9 Campus Drive, Parsippany NJ 07054.. Capitalized terms not otherwise defined in this Agreement shall have the meaning as set forth in the Agreement.

WHEREAS, We are in the business of providing professional services related to Our software and subscription services; and

WHEREAS, You desire to purchase such professional services; and

NOW, THEREFORE, in consideration of the promises and covenants contained herein the parties agree as of the Effective Date to the following:

  1. Definitions.

Deliverables” shall mean all items developed by Us or Our agents for or provided to You in furtherance of this Agreement as specified in the applicable Statement of Work, including but not limited to any and all software, updates, upgrades, error corrections, derivations, modifications, and enhancements.

Documentation” shall mean the applicable installation guides, service descriptions, technical specifications, on-line help files, and user manuals provided by Us.

Professional Services” shall mean installation, configuration, consulting and/or training services performed by Our personnel and/or agents for Your benefit as described in an applicable Statement of Work.

Quotation” and/or “Quote” shall mean the document or collection of documents, which indicates the Professional Services offered to You, pricing, timing of Professional Services or expiration of use.

Statement of Work” and/or “SOW” shall mean a signed document by You and Us that incorporates by reference this Agreement which details the Professional Services to be provided by Us to You.

  1. Prices & Payment.

2.1 Prices. Prices for Professional Services shall be the prices as reflected the applicable SOW or Quote (“Professional Services Fees” or “Fees”).  Any prepayment of Fees for credit towards anticipated Professional Services from Us must be used by You within twelve (12) months of payment or Your right to the prepaid credit will expire without refund.  All Professional Services Fees are exclusive of sales, use, value-added or other excise tax, however designated or levied; and, therefore, are subject to an increase in an amount equal to any tax We  may be required to collect or pay.

2.2 Payment.  All invoices shall be paid by credit card, or other electronic payment method as may be available. We may impose credit card decline charges or late charges on overdue payments at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate legally permitted by law, calculated from the date payment was due until the date payment is made plus all expenses incurred in collection, including reasonable attorneys’ fees.  In addition to other applicable remedies, if Your account becomes delinquent (falls into arrears), We reserve the right to suspend and/or terminate the Professional Services, upon five (5) calendar days’ prior written notice via email or otherwise. Upon default by You, We shall have other rights and remedies as may be provided by law. Except in the event of termination for material breach under Section 6.2 “Termination for Material Breach”, You acknowledge and agree that all prepaid Fees are non-refundable.

2.3 Taxes. All Fees are exclusive of sales, use, value-added or other excise tax, however designated or levied, and therefore, are subject to an increase in an amount equal to any tax. You shall be liable for payment of all local state and federal sales, use, excise, personal property or other similar taxes or duties that are levied upon and related to the performance of obligations or exercise of rights under this Agreement.  We may be required to collect and remit taxes from You, unless You provide Us with a valid tax exemption certificate.  We will invoice You for all such taxes based on Professional Services provided hereunder.  In no event will either party be responsible for any taxes levied against the other party’s net income.

  1. Intellectual Property & Protections.

We shall have sole and exclusive ownership of all right, title, and interest in and to the Deliverables, Professional Services, Documentation and all copies thereof including all updates, upgrades, error corrections, derivations, modifications and enhancements thereto (including but not limited to ownership of all intellectual property rights).  This Agreement does not provide You with title or ownership of the Deliverables, Professional Services and/or Documentation, but only a right of limited use of such Deliverables, Professional Services and/or Documentation for your internal business solely in conjunction with Your use of Our software and/or subscription services.

  1. Professional Services Warranty.

We warrant and represent that all Professional Services shall be performed in a professional and workmanlike manner, consistent with then-current industry standards (“Professional Services Warranty”).  Your exclusive remedy for a breach of the Professional Services Warranty shall be, at Our option, either to (i) re-perform such Professional Services and/or training; or (ii) to provide You with a refund for the allegedly defective Professional Services.  Such remedy shall only be available to if You notify Us in writing within thirty (30) calendar days of the completion of such Professional Services described in a Quote or SOW or Your receipt of each individual Deliverable, whichever is earlier.  The Professional Services Warranty is Your sole and exclusive remedy and shall be Our entire liability in contract, tort, or otherwise.

  1. Limitation of Liability; Exclusion of Consequential Damages.

5.1 NO FURTHER WARRANTIES. EXCEPT AS SPECIFIED IN SECTION 4, “PROFESSIONAL SERVICES WARRANTY” THE PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS” BASIS. WE MAKE AND YOU RECEIVE NO FURTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND WE SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

5.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

5.3 LIMITATION OF LIABILITY.  WE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE UNLESS SUCH LOSS OR DAMAGE IS DUE TO OUR GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT.  IF WE ARE FOUND LIABLE, THE AMOUNT OF OUR MAXIMUM LIABILITY FOR ANY AND ALL LOSSES AND/OR DAMAGES (IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL PROFESSIONAL SERVICES FEES ACTUALLY PAID TO US WITHIN THE PRIOR THREE (3) MONTHS FROM WHICH SUCH CLAIM ARISES.

5.4 ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

  1. Term & Termination.

6.1 Term.  This Agreement shall commence on the Effective Date, as indicated in the Quote or SOW, and shall continue for one (1) year (“Term”).  Thereafter, the Term shall automatically renew on a year-by-year basis, until receipt of written notice of non-renewal, with or without cause, is delivered by either Party to the other not less than ninety (90) calendar days prior to the expiration of the then-current term of this Agreement.  You acknowledge and agree that all applicable Fees are non-refundable.

6.2 Termination for Material Breach.  This Agreement and related Professional Services may be terminated by either Party upon thirty (30) calendar days written notice for a material breach by the other Party, unless such other Party cures the breach within the thirty (30) calendar day notification period.  Upon termination under this Section 6.2, “Termination for Material Breach”, Termination of this Agreement does not relieve You of any outstanding payments due or any liability arising prior to termination.  Such payment shall be due in full upon termination.

  1. Confidentiality.

You acknowledge that the Professional Services, the terms of this Agreement, and any other proprietary or confidential information provided to You by US (“Our Confidential Information”) constitutes valuable proprietary information and trade secrets of Ours and/or Our licensors. We acknowledge that the data provided by You or Your Users (“Your Confidential Information”) constitutes valuable proprietary information and trade secrets of Yours or Your Users. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using such Confidential Information in confidence, solely for its use in furtherance of this Agreement, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this Section 7 “Confidentiality”. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.

  1. Subpoena.

We are authorized to comply with any subpoena or similar order related to the data in its possession, provided that We notify You promptly upon receipt thereof, unless such notice is prohibited by law.  You shall pay Our applicable charges on a time and materials basis at Our then-current rates for such compliance.  We will cooperate with Your efforts to quash or limit any subpoena, at Your expense.

  1. General Provisions.

9.1 Entire Agreement; Integration.  This Agreement, Quote(s), and/or Statement of Work(s), which reference this Agreement, represent the entire understanding between the Parties on the subject matter hereof and supersede all prior discussions, agreements and understandings of every kind and nature between the Parties.  Neither party shall be deemed the drafter of this Agreement. No modification of this Agreement shall be effective unless in writing and signed by both Parties. All additional and conflicting terms and conditions presented with or in any communication, including but not limited to Your purchases order (“P.O.”) are hereby rejected and shall be deemed null and void.

9.2 Headings & Order of Precedence.  All headings used herein are for convenience of reference only and are not a part of this Agreement, nor shall they in any way effect the interpretation hereof. If there is any conflict between this Agreement and any Attachment hereto, the order of precedence shall be that this Agreement shall supersede and then the applicable Attachment.

9.3 Force Majeure.  Neither party shall be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by the other or an end user by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such party’s control including but not limited to strikes, riots, natural catastrophes, terrorist acts, governmental intervention, or other acts of God, or any other causes beyond such party’s reasonable control.

9.4 Relationship with Third Parties.  This Agreement governs the relationship between You and Us. No end user or other person or entity not a party to this Agreement shall be considered a third party beneficiary of this Agreement.

9.5 Severability & Survival.  The illegality or unenforceability of any provision of this Agreement shall not affect the validity and enforceability of any legal and enforceable provisions hereof. Should any provision of this Agreement be deemed unenforceable by a court of competent jurisdiction then such clause shall be re-construed to provide the maximum protection afford by law in accordance with the intent of the applicable provision. The following provisions shall survive any termination of this Agreement; 2, “Prices & Payment”; 3, “Intellectual Property & Protections”; 5, “Limitation of Liability; Exclusion of Consequential Damages”; 7, “Confidentiality”; and 9, “General Provisions”.

9.6 Assignment. Neither party may assign any rights or delegate any obligations hereunder, whether by operation of law or otherwise, except in the case of a sale of either parties business whether by merger, sale of assets, sale of stock or otherwise, or except with the prior written consent of the other party, which consent will not be unreasonably withheld.  Notwithstanding the foregoing, You may not assign this Agreement to a direct competitor of Us. Any attempted assignment or delegation outside these exceptions or without such written consent shall be voidable by the non-assigning party.  This Agreement may also be terminated without a notice period by a written communication to You if as the result of any transaction or a change of control occurs, directly or indirectly, such that a competitor of Us controls You or any entity, which becomes a party to this Agreement, directly or indirectly.  This Agreement binds the parties, their respective participating subsidiaries, affiliates, successors and permitted assigns.

9.7 Applicable Law.  This Agreement and all resulting claims and/or counterclaims shall be governed, construed, enforced and performed in accordance with the laws of the State of New Jersey, USA, without reference and/or regard to its conflicts of laws principles. Each party hereby submits to the exclusive jurisdiction of the courts of New Jersey and hereby waives any objections to venue with respect to actions brought in such courts. Both Parties specifically agree that the U.N. Convention on the International Sale of Goods, the Uniform Computer Information Transactions Act (“UCITA”), shall not apply to any and all actions performed by either party hereunder in furtherance of this Agreement.

9.8 Waiver.  Each party agrees that the failure of the other party at any time to require performance by such party of any of the provisions herein shall not operate as a waiver of the rights of such party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.

9.9 Notices.  All notices under this Agreement shall be in English and shall be in writing and given by registered airmail or overnight delivery.  Notices shall be deemed given when received. Our Notification Information is as follows:

Freestyle Solutions, Inc.

Attn: CFO

9 Campus Drive, Parsippany, NJ 07054

Fax: 973-237-9043