Professional Services Agreement

Effective date: December 5, 2016
This Project Insight Professional Services Agreement ("PSA") is between you ("you", "your", or "Customer"), and Metafuse Incorporated dba Project Insight ("Project Insight" or "us" or "we" or "our"). If you are agreeing to this PSA not as an individual but on behalf of your company, then "Customer" or "you" or "your" means your company, and you are binding your company to this PSA and represent and warrant that you have all necessary authority to do so.
This PSA sets forth the terms under which Project Insight will provide you with certain professional services described on order forms (including online orders) referencing this PSA ("Order Forms" and such services, "Services"). Services are provided on an item-by-item basis for the Subscription Term or License Term designated in the Project Insight Customer Agreement. This PSA governs Customer's initial purchase of Services as well as any future purchases made by Customer. The PSA also includes any Project Insight policies or documents attached to or referenced in this document, as well as any Order Forms entered into by the Parties.
This PSA is separate from the Project Insight Customer Agreement that Project Insight has with its end users (as may be modified by Project Insight from time to time, regarding the use of Project Insight Products (the "Products").
This PSA does not have to be signed in order to be binding. You indicate your acceptance of the terms by clicking on the "I agree" (or similar button) that is presented to you at the time of your order or by signing an Order Form.

During the applicable Term, Project Insight agrees to use diligent efforts to render the Services by the delivery dates specified on the applicable Order Form, if any. Subject to Section 4 (Project Insight Products) below, any reports, recommendations or other deliverables provided by Project Insight to you as part of the Services are "Deliverables". Project Insight grants you a worldwide, royalty-free, non-exclusive license to use the Deliverables internally in connection with the applicable Products.

Customer agrees to provide Project Insight with reasonable access to Customer materials, personnel, equipment or facilities (including without limitation Customer's instances of the Products) to the extent such access is necessary for the performance of Services. To the extent that Customer does not timely provide the foregoing access required for Project Insight to perform the Services or deliver the Deliverables, Project Insight shall be excused from performance until such items are provided. Customer hereby grants Project Insight a limited right to use any Customer materials provided to Project Insight in connection with the Services (the "Customer Materials") solely for the purpose of performing the Services for Customer. Customer owns and will retain ownership (including all intellectual property rights) in and to the Customer Materials (subject to Project Insight's ownership of any underlying Products, service descriptions, documentation, and underlying technology ("Project Insight Technology").

Project Insight owns and will retain ownership (including all intellectual property rights) in and to the Deliverables and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any Feedback). If Customer provides any feedback, comments, suggestions, ideas, description of processes, or other information to Project Insight about or in connection with the Products, Deliverables or Services, including without limitation any ideas, concepts, know-how or techniques contained therein ("Feedback"), then Project Insight owns and will retain ownership (including all intellectual property rights) in and to the Feedback for any purpose, without any compensation to Customer or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed Customer's Confidential Information, and nothing in this PSA, including without limitation Section 9 (Confidential Information), limits Project Insight's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

For the avoidance of doubt, the rights to and delivery and use of any Project Insight Technology (including any Product) is governed by the terms of the Project Insight Customer Agreement and not the terms of this PSA, and, even if listed in an Order Form, no Project Insight Technology (including any Product updates, upgrades, patches and bug fixes) shall be considered a Deliverable hereunder. Customer acknowledges that the Services are being purchased separately from any Product licenses or subscriptions and that no such license or subscription is being provided or offered under this PSA. Fees for the Services are separate from any fees paid for Products, and Customer's payment obligations hereunder are not contingent on the purchase or use of any Product.

5.1. Payment. Customer will pay Project Insight the amounts and at the times set forth on the applicable Order Form. Customer agrees to reimburse Project Insight for reasonable travel, lodging and meal expenses incurred in the course of performing the Services at any location other than Project Insight's site. Project Insight will invoice Customer for expenses incurred and at Customer's request and expense, Project Insight will provide copies of receipts for which charges are incurred. All payments are non-refundable and all payment obligations non-cancellable. Payments shall be made in U.S. dollars per the Project Insight invoice. Customer will be responsible for all taxes, withholdings, duties and levies in connection with the Services (excluding taxes based on the net income of Project Insight). Upon termination, all payments for Services shall be accelerated and become immediately due and payable. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

This PSA takes effect on the Effective Date and, unless earlier terminated in accordance with this Section 6, remains in effect until expiration or termination the Subscription Term or License Term. The "Effective Date" of this PSA is the date which is the earlier of (a) Customer's initial receipt of Services or (b) the effective date of the first Order Form referencing this PSA. Either party may terminate this PSA or any Order Form if the other party: (i) fails to cure any material breach of this PSA within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Sections 3 (Ownership of Deliverables and Feedback), 4 (Project Insight Products), 5.2 (Payment) (but only with respect to orders placed during the term hereof), 7 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Confidential Information), 10 (Publicity), 11 (Dispute Resolution; Governing Law), 14 (Assignment) and 15 (General) will survive any termination or expiration of this PSA. Unless termination is for Customer's breach, Customer's right under Section 1 (Services and Deliverables) to use Deliverables shall survive so long as Customer has a valid right under the Project Insight Customer Agreement to use the applicable Product and provided that Customer remains in compliance with the applicable use restrictions and confidentiality obligations in Sections 1 and 9 herein.

ALL SERVICES AND DELIVERABLES ARE PROVIDED "AS IS" AND PROJECT INSIGHT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8.1. Waiver of Consequential Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PROJECT INSIGHT NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. Liability Cap. TO THE FULLEST EXTENT ALLOWED BY LAW, PROJECT INISGHT'S AND ITS THIRD-PARTY SUPPLIERS' ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO PROJECT INSIGHT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE.

Each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party ("Receiving Party") by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Project Insight Technology and any performance information relating to the Products shall be deemed Confidential Information of Project Insight without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS." EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the other party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set forth this Agreement.

10.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the American Arbitration Association under the Commercial Mediation Rules. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Orange County, California (USA). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
10.2. Governing Law; Jurisdiction. This PSA will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 10.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Orange County, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Orange County, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Project Insight may bring a claim for equitable relief in any court with proper jurisdiction.
10.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 10, nothing in this PSA shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
10.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this PSA. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this PSA regardless of when or where adopted.

Neither party shall be liable to the other for any delay or failure to perform any obligation under this PSA (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.

Project Insight may use the services of subcontractors for performance of Services under this PSA, provided that Project Insight remains responsible for (a) compliance of any such subcontractor with the terms of this PSA and (b) for the overall performance of the Services as required under this PSA.

Customer may not assign this PSA without the prior written consent of Project Insight (which consent will not be unreasonably withheld, except however, you may assign this Agreement to a purchaser of all or substantially all of your assets, a subsidiary or business unit, or a successor by merger or operation of law so long as such purchaser, subsidiary, business unit or successor agrees to be bound by the terms of this Agreement. Project Insight may assign its rights and obligations under this PSA in whole or in part without consent of Customer. Any permitted assignee shall be bound by the terms and conditions of this PSA.

This PSA is the entire agreement between you and Project Insight relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by this PSA. If any provision of this PSA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. No supplement, modification, or amendment of this PSA shall be binding, unless executed in writing by a duly authorized representative of each party to this PSA. As used herein, "including" (and its variants) means "including without limitation" (and its variants). If either party to this PSA breaches any provision of this PSA relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this PSA. No failure or delay by the injured party to this PSA in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This PSA shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party. Any notice, report, approval or consent required or permitted under this PSA will be in writing to the address specified on the Order Form or such other address as may be given in writing by either party to the other.