IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THESE GRAPHGRID, INC. PROFESSIONAL SERVICE TERMS.  BY AGREEING TO AN ORDER FORM (“ORDER FORM”) INCORPORATING THESE GRAPHGRID, INC. PROFESSIONAL SERVICE TERMS, YOU THE “CLIENT” ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THESE GRAPHGRID, INC. PROFESSIONAL SERVICE TERMS AND THE TERMS OF THE GRAPHGRID CUSTOMER AGREEMENT WITH GRAPHGRID, INC. (“GRAPHGRID”), AND THAT YOU AGREE TO BE BOUND BY THE TERMS.  THESE GRAPHGRID, INC. PROFESSIONAL SERVICE TERMS AND EACH ORDER FORM APPLY ONLY TO THE SPECIFIC SERVICES TO WHICH THE SERVICE TERMS RELATE.  IN THE EVENT OF A CONFLICT BETWEEN THESE PROFESSIONAL SERVICE TERMS AND THE TERMS OF THE GRAPHGRID CUSTOMER AGREEMENT THE “AGREEMENT”, THE TERMS AND CONDITIONS OF THIS PROFESSIONAL SERVICE AGREEMENT APPLY, BUT ONLY TO THE EXTENT OF SUCH CONFLICT.

1. Services.

1.1 Services.  GraphGrid will provide to CLIENT the services (the “Services”) and certain documentation and/or materials (“Deliverables”) as described on each Order Form that references these GraphGrid, Inc. Professional Service Terms.

2. Fees and Expenses.

2.1 Fees and Expenses.  GraphGrid shall be paid fees for the Services as set forth in the Order Form.  CLIENT will be responsible for all taxes resulting from the performance of the Services other than taxes on GraphGrid’s income.  Unless otherwise indicated in the Order Form, GraphGrid shall invoice CLIENT for expenses incurred as a result of performing Services in accordance with the Order Form.

2.2 Payment of Fees and Expenses.  The fees, charges and/or expenses invoiced in accordance with this Section 2 shall be payable by CLIENT within thirty (30) days of the date of each invoice.

3. Confidentiality and License Rights.

3.1 Confidentiality.

3.1.1 Confidential Information.  “Confidential Information” means any information which is disclosed by a party (the “Discloser”) in connection with this Agreement, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the other party (the “Recipient”) or any of its employees or agents and that is designated or marked as “confidential” or “proprietary” at the time of disclosure or that, based on the circumstances surrounding the disclosure, the Recipient knows or reasonably should know is considered confidential.  Confidential Information specifically includes, without limitation, the Discloser’s non-public financial information, information about CLIENT’s customers and personally identifiable information.  The restrictions on disclosure set forth in this Section shall not apply to Confidential Information which: (a) becomes publicly known without breach of this Agreement; or (b) the Recipient can show by written records was rightfully in its possession prior to the disclosure by the Discloser or becomes rightfully known to the Recipient without confidential or proprietary restriction from a source other than the Discloser; (c) is approved for disclosure without the restriction in a written document which is signed by a duly authorized officer of the Discloser, or, (d) is independently developed by the Recipient prior to the Effective Date.

3.1.2 Obligations.  Recipient may use the Discloser’s Confidential Information solely for the purpose of exercising its rights and performing its obligations under this Agreement. Recipient agrees to take the same care with the Discloser’s Confidential Information as it does with its own information of a similar nature, but in no event with less than a reasonable degree of care. Recipient shall limit access to the Confidential Information to those persons having a need to know such information in order to exercise Recipient’s rights and obligations under this Agreement. Recipient may disclose Confidential Information: (a) insofar as disclosure is reasonably necessary to carry out and effectuate the terms of this Agreement; (b) insofar as the Recipient is required by law or legal proceedings to disclose provided that the Recipient provides the Discloser with prompt written notice of such requirement to enable the Discloser to seek a protective order; (c) insofar as disclosure is necessary to be made to the Recipient’s independent accountants for tax or audit purposes; and (d) insofar as the parties may mutually agree in writing upon language to be contained in one or more press releases. In addition, neither party will disclose to any third party the terms of this Agreement without the prior written consent of the other party, provided, however, that each party may disclose the existence of this agreement or the existence of a business relationship with the other party.

3.2 License Rights.  GraphGrid hereby grants to CLIENT a non-exclusive, perpetual license to use the Deliverables for CLIENT’s internal business purposes.  CLIENT shall have no right to sublicense the Deliverables or to disclose the Deliverables to third parties.  CLIENT and its suppliers own and maintain any and all right, title and interest in and to Client’s Confidential Information.  Except for any CLIENT Confidential Information contained in the Deliverables, GraphGrid owns all right, title and interest in and to the Deliverables; provided however, that GraphGrid covenants not to reuse or distribute in any manner any portions of the Deliverables that incorporate CLIENT’s Confidential Information.

4. Warranties.

4.1 GraphGrid Warranties.  GraphGrid represents and warrants that the Services provided hereunder shall be provided in a professional and workmanlike manner.  In the event of a breach of this warranty, GraphGrid shall re-perform the applicable Services within a reasonable time provided that CLIENT notifies GraphGrid within fifteen (15) days following the date of completion of the Services.  The foregoing shall be CLIENT’s sole and exclusive remedy, and GraphGrid’s sole and exclusive obligation, for a breach of the warranty set forth in this Section 4.1.

4.2 Disclaimer.  EXCEPT AS SPECIFICALLY PROVIDED FOR IN SECTION 4.1, THERE ARE NO WARRANTIES WITH RESPECT TO THE SERVICES OR THE DELIVERABLES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.

5. Term & Termination.  This Agreement shall commence on the Effective Date and shall continue in full force and effect thereafter unless and until terminated in accordance with the provisions of this Agreement or until completion of the Services provided for herein and in the Order Forms.  Either party may terminate this Agreement for the other party’s material breach that is not cured within thirty (30) days of the date of notice of the breach.  In the event of any termination of this Agreement, CLIENT agrees to pay GraphGrid, within fifteen (15) days from date of termination, for all Services performed, whether invoiced or work in process, up to the effective date of termination.  Sections 3, 4.2, 6 and 7 shall survive termination or expiration of this Agreement for any reason.

6.  LIMITATION OF LIABILITY.  EXCEPT WITH RESPECT TO BREACH OF THE TERMS SET FORTH IN SECTION 3: (I) NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) IN NO EVENT SHALL GRAPHGRID’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AMOUNTS PAID TO GRAPHGRID BY CLIENT UNDER THE ORDER FORM GIVING RISE TO SUCH CAUSE OF ACTION.  THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

7.  General.  Neither party shall be liable for delay in performance hereunder due to causes beyond its control, including but not limited to acts of God, fires, strikes, acts of war, or intervention by governmental authority.  CLIENT may assign this Agreement in its entirety to (i) any entity under the common control of CLIENT; or (ii) any successor in interest to CLIENT by way of merger or consolidation located in the United States; or (iii) a purchaser of all or substantially all of the assets of CLIENT, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement. GraphGrid is acting in performance of this Agreement as an independent contractor.  Any notices or communication under this Agreement shall be in writing and shall be hand delivered or sent by registered mail return receipt requested at the address set forth above, or such other address as either party may in the future specify to the other party.  This Agreement will be governed by the laws of the State of Ohio in the United States of America.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement must be brought in the courts in Wayne County, Ohio.  The parties agree that this Agreement is written and construed in the English language.  A failure of either party to exercise any right provided for herein, shall not be deemed to be a waiver of any right hereunder.  This Agreement and each Order Form set forth the entire understanding of the parties as to the subject matter therein and may not be modified except in a writing executed by both parties.  Any preprinted terms on Client’s purchase order or similar ordering or other document, any previous proposal, letters of intent, memorandum of understanding or similar documents are hereby rejected.  In the event of a conflict between this Agreement and the Order Form, the terms of such Order Form shall control with respect to the Services provided pursuant to such Order Form.  In the event any one or more of the provisions of this Agreement or of any Order Form is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.  This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall together constitute one and the same Agreement.

Last updated: May 4, 2018

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