Standard Terms for Professional and Consulting Services

This Master Services Agreement (this “Agreement”) is dated as of DATE, and is between TALLYFY, INC., a Delaware corporation (”Tallyfy”) and CLIENT, Inc, a ________________  corporation (“CLIENT”).

The terms of this Agreement, including its exhibits and Statements of Work (as defined below), shall govern the services provided by Tallyfy to CLIENT.

1.     Definitions.

In this Agreement, the following definitions apply:

“Action” has the meaning given it in Section 7.1.

“Affiliate” means, with respect to a given person or an entity, a person or entity that controls, or is controlled by, or is under common control with the subject person or entity.  For purposes of this Agreement, the term “control” means the direct or indirect beneficial ownership of at least fifty percent (50%) of the voting interests (stock, membership interest, partnership interest, etc.) of, or at least fifty percent (50%) interest in the income of, such corporation or other business entity.

“Background Technology” means all Software, data, know-how, ideas, methodologies, specifications and other technology in which Tallyfy owns such Intellectual Property Rights as are necessary for Tallyfy to grant the rights and licenses granted to CLIENT or its Affiliates as required under any Statement of Work, and for CLIENT (including its licensees, successors and assigns) to exercise such rights and licenses, without violating any right of any third party or any Law or incurring any payment obligation to any third party, and that were or are developed or otherwise acquired by Tallyfy prior to the Effective Date, with respect to any Statement of Work, or the date of CLIENT’s request for additional Services.

“Confidential Information” has the meaning given it in Section 3.1.

“Deliverables” has the meaning given it in Section 2.1.

“Discloser” has the meaning given it in Section 3.1.

“Excluded Information” means information that comes within any of the following categories (with the Recipient having the burden of establishing that any information constitutes Excluded Information):

(1)            information that is or becomes public other than as a result of a breach of any obligation under this Agreement;

(2)            information that, when it is disclosed, is already in the possession of the Recipient or any of the Recipient’s Representatives as the result of disclosure by a Person that (A) was not then under an obligation to the Discloser to keep that information confidential or (B) that was then under an obligation to the Discloser to keep that information confidential, if after reasonable inquiry the Recipient was unaware of that obligation;

(3)            information that, after it is disclosed under this Agreement, is disclosed to the Recipient or any of the Recipient’s Representatives by a Person that (A) was not then under an obligation to the Discloser to keep that information confidential or (B) was then under an obligation to the Discloser to keep that information confidential, if after reasonable inquiry the Recipient was unaware of that obligation; and

(4)            information that the Recipient develops independently without use of or reference to the Discloser’s Confidential Information.

“Fees” has the meaning given it in Section 5.

“Initial Term” has the meaning given it in Section 9.1.

“Intellectual Property Rights” means all or any of the following: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases; (d) trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the universe.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Legal Order” has the meaning given it in Section 3.4(b).

“Losses” has the meaning given it in Section 7.1.

“Notes” has the meaning given it in Section 3.1.

“Person” means an individual, a corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a governmental authority.

“Prevailing Party” has the meaning given it in Section 10.4.

“Recipient” has the meaning given it in Section 3.1.

“Renewal Term” has the meaning given it in Section 9.1.

“Representative” means, as to any entity, such entity’s Affiliates, and its and their respective directors, officers, managers, general partners, members, employees and agents, advisors (including without limitation, financial advisors, legal counsel, and accountants), and controlling Persons.

“Services” means technical, consulting, education and support services provided by Tallyfy and described in more detail in the Statement(s) of Work attached hereto.

“Software” means the computer program(s), including programming tools, scripts and routines, that Tallyfy is required to or otherwise does develop or otherwise provide under this Agreement, as described more fully in each Statement of Work, or any other agreement between Tallyfy and CLIENT (or any of its Affiliates), or any license by Tallyfy (or any of its Affiliates) to CLIENT (or any of its Affiliates), including all updates, upgrades, new versions, new releases, enhancements, improvements and other modifications made or provided by Tallyfy. For the avoidance of doubt, all software, software-as-a-service, online applications, and cloud-based software, including, without limitation, the “Tallyfy” cloud-based software licensed to CLIENT (and/or its Affiliates) constitutes Software under this Agreement.

“Statements of Work” has the meaning given it in Section 2.1.

“Tallyfy” has the meaning given it in the introductory paragraph.

“Tallyfy Personnel” means all employees of Tallyfy or any of its Representatives involved in the performance of Services or providing Deliverables hereunder.

“Tallyfy-Owned Work Product” means all updates, upgrades, new versions, new releases, enhancements, improvements and other modifications to any Background Technology that are not based in whole or in part on, and do not incorporate, any Confidential Information of CLIENT or its Affiliates.

“Term” has the meaning given it in Section 9.1.

“CLIENT” has the meaning given it in the introductory paragraph.

“CLIENT Indemnitee” has the meaning given it in Section 7.1.

“Work Product” means any Deliverables (as defined below), intellectual property, products, ideas, know-how, applications, techniques, and Software, including any enhancements or modifications made to existing CLIENT systems or projects, and data accumulated, compiled, prepared or generated by Tallyfy or a third party retained by Tallyfy for CLIENT, including, but not limited to, work papers, notebooks, files, diagrams, flow charts, and reports, dealing with or in any way relating to the Services rendered by Tallyfy under this Agreement.

2.     Services.

2.1.         Services and Deliverables. During the Term, Tallyfy shall provide the Services described in the statements of work attached hereto and incorporated herein by this reference (collectively, the “Statements of Work” and each a “Statement of Work”), including the service levels referenced therein, if any, and deliver written reports, final projects and other deliverables resulting from such Services (the “Deliverables”) to CLIENT and its Affiliates.  The parties hereby acknowledge and agree that CLIENT’s Affiliates may execute Statements of Work hereunder and that all Services, final products and other Deliverables provided hereunder may be utilized by CLIENT and its Affiliates as determined by CLIENT in its sole discretion.  Nothing contained in this Agreement shall obligate CLIENT to procure or Tallyfy to perform any services hereunder until such time as the parties execute a Statement of Work.

2.2.         Statements of Work.  All Services to be provided under this Agreement shall be evidenced by one or more Statements of Work signed by each party.  Each Statement of Work will contain a description of the Services, a detailed budget, including the Fees (as defined below) to be paid by CLIENT to Tallyfy for the Services, period of performance, milestones and milestone dates, and such other terms and conditions consistent with this Agreement.  No Statement of Work will be binding until it is signed by both parties.  Statements of Work may be separately executed and upon execution shall be attached hereto, incorporated herein by reference and made a part hereof.  In the event of a conflict between a provision of this Agreement and a provision of a Statement of Work, the provisions of this Agreement shall supersede any conflicting provisions in that Statement of Work, unless the Statement of Work expressly states that such conflicting term prevails over this Agreement.  Any changes in the scope of a Statement of Work will be mutually agreed upon between the parties and addressed in a separate Statement of Work or by way of written amendment or change order to the existing Statement of Work.

2.3.         Electronic Communications.  All electronic data transfers, including but not limited to FTP or HTTP, will be secured through standard SSL encryption and Tallyfy will certify that the data is being held on a secure server operating in an enterprise level firewalled environment to prevent any unintended disclosure or access to CLIENT data prior, during or after data transfer.  Tallyfy will take all reasonable measures to adhere to standard best practice security.  Any security failure of Tallyfy systems must be immediately reported to CLIENT and Tallyfy will begin remediation thereof upon discovery of any security failure.

2.4.         General Conduct.  Tallyfy shall provide all Services and Work Product hereunder in a timely, professional and workmanlike manner and in accordance with the terms, conditions and Specifications set forth in this Agreement and each Statement of Work.

2.5.         Tallyfy Personnel.

(a)            Tallyfy is solely responsible for all Tallyfy Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.

(b)            Prior to any Tallyfy Personnel performing any Services hereunder, Tallyfy shall require such Tallyfy Personnel to execute written agreements, in form and substance reasonably acceptable to CLIENT, that bind such Tallyfy Personnel to confidentiality provisions that are at least as protective of CLIENT’s information (including all Confidential Information) as those contained in this Agreement and, upon CLIENT’s request, provide CLIENT with a copy of each such executed agreement.

3.     Confidentiality.

3.1.         Confidential Information.  Each party acknowledges and agrees that, by virtue of this Agreement, each party may obtain, learn, develop or have access to Confidential Information of the other party and its Affiliates.  “Confidential Information” means any information that one party or its Affiliates or Representatives (in any case, such party being the “Discloser”) identifies or marks as confidential or proprietary at the time of disclosure to the other party (the “Recipient”), or that reasonably appears to be proprietary or confidential in nature because of legends or other markings, the circumstances of disclosure or the nature of the information itself, together with all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (collectively, the “Notes”) prepared by or for the Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.  The parties agree that (i) the terms of this Agreement shall be the Confidential Information of both parties, (ii) information pertaining to CLIENT’s clients and/or legal matters relating thereto constitute Confidential Information of CLIENT, (iii) information pertaining to a Discloser’s Affiliates will be deemed to be Confidential Information of the Discloser to the same extent as if such information pertained only to the Discloser, and (iv) no Excluded Information constitutes Confidential Information.

3.2.         Protection of Confidential Information.  The Recipient shall protect the Discloser’s Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care, as the Recipient uses to protect its own Confidential Information against unauthorized use, disclosure or publication.

3.3.         Restrictions on Use of Confidential Information.  The Recipient shall not use the Discloser’s Confidential Information, or permit it to be accessed or used, for any purpose other than the for the purpose of providing the Services or any related transactions between the parties.

3.4.         Permitted Disclosures.

(a)            The Recipient shall not disclose any such Confidential Information to any Person, except to the Recipient’s Representatives who (1) need to know the Confidential Information to assist the Recipient, or act on its behalf, in relation to the Services or to exercise its rights under the Agreement, (2) are informed by the Recipient of the confidential nature of the Confidential Information, and (3) are subject to confidentiality duties or obligations to the Recipient that are no less restrictive than the terms and conditions of this Agreement.

(b)            Any Disclosure by the Recipient or its Representatives of any of the Discloser’s Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”) shall be subject to the terms of this Section. Prior to making any such disclosure, the Recipient shall, except as prohibited by applicable law, make commercially reasonable efforts to provide the Discloser with (1) prompt written notice of such requirement so that the Discloser may seek, at its sole cost and expense, a protective order or other remedy, and (2) reasonable assistance, at the Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

(c)             If, after providing such notice and assistance as required herein, the Recipient remains subject to a Legal Order to disclose any Confidential Information, the Recipient (or its Representatives or other persons to whom such Legal Order is directed) shall disclose no more than that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, such Legal Order specifically requires the Recipient to disclose and, upon the Discloser’s request and at the Discloser’s expense, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

3.5.         Unauthorized Disclosure or Use by Representatives. If any one or more Representatives of the Recipient disclose or use Confidential Information other than as authorized in this Agreement, the Recipient will be liable to the Discloser for that disclosure or use to the same extent that the Recipient would have been had the Recipient disclosed or used that Confidential Information.

3.6.         Additional Confidentiality Obligations.  Except as required by applicable federal, state or local law or regulation, or otherwise as mutually agreed to in writing by the parties, neither party shall, nor permit any of its Representatives to, disclose to any person (other than its Representatives):  (i) that the Confidential Information has been made available to it or its Representatives, or that it has inspected any portion of the Confidential Information; (ii) that discussions or negotiations may be, or are, underway between the parties regarding the Confidential Information or the Services, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or the Services.

3.7.         Return or Destruction of Confidential Information. At any time during or after the term of this Agreement, at the Discloser’s written request, the Recipient and its Representatives shall promptly return to the Discloser all copies, whether in written, electronic or other form or media, of the Discloser’s Confidential Information, or destroy all such copies and certify in writing to the Discloser that such Confidential Information has been destroyed. In addition, the Recipient shall also destroy all copies of any Notes created by the Recipient or its Representatives and certify in writing to the Discloser that such copies have been destroyed.  Notwithstanding the foregoing, the Recipient may retain data or records in electronic form containing Confidential Information for the purposes of backup, recovery, contingency planning, or business continuity planning, so long as such data or records, to the extent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not accessed except as required for backup, recovery, contingency planning, or business continuity purposes.  If such data or records are restored or otherwise become accessible, they must be permanently deleted.

4.     Ownership.

4.1.         All Work Product associated with or arising from the Services, including, without limitation, all Deliverables, are solely owned by CLIENT.  All Work Product, including, without limitation, all Deliverables, shall be “works made for hire” for CLIENT within the meaning of the United States Copyright Act.  To the extent any of the Work Product is not considered works made for hire, Tallyfy hereby assigns the copyright and all other right, title and interest in the Work Product, all finished products provided hereunder, all Deliverables, and all elements forming a part thereof, including, but not limited to, any and all intellectual property created, contained or forming a part of any of the foregoing to CLIENT in the United States and elsewhere throughout the world.

4.2.         Tallyfy shall cooperate with CLIENT in taking all reasonable steps necessary or desirable to secure ownership rights of CLIENT in such intellectual property including, without limitation, cooperation, at CLIENT’s expense, in completing any patent applications relating to such Intellectual Property Rights, as well as executing and delivering any instrument that may be reasonably required to assign, convey and transfer any ownership interest that the other party may have in such Intellectual Property Rights to the appropriate party.

4.3.         Without limiting the generality of the foregoing, the parties hereby agree and acknowledge that CLIENT will be the sole and exclusive owner of all right, title and interest in and to the process and content developed under any Statement of Work which relates to the preparation of business processes and materials for CLIENT, which process will be Confidential Information of CLIENT and Work Product owned by CLIENT, and CLIENT shall have the sole and exclusive right to prosecute, register, perfect, record or enforce its rights therein or any Intellectual Property Right Therein, including, without limitation, by applying for a process patent with the U.S. Patent and Trademark Office with respect thereto.

4.4.         Notwithstanding the foregoing, Tallyfy is and will remain the sole and exclusive owner of all right, title and interest in and to the Background Technology and the Tallyfy-Owned Work Product, including all Intellectual Property Rights therein, subject to any license granted to CLIENT and/or its Affiliates as required under any Statement of Work.

5.     Fees.

5.1.         CLIENT shall pay Tallyfy the undisputed fees set forth on the applicable Statement of Work (“Fees”) in accordance with this Agreement and the applicable Statement of Work.  If not otherwise specified on the Statement of Work, Fees will be due within ten days of after the later of (i) CLIENT’s receipt of the proper invoice therefor, together with such supporting information as CLIENT may reasonably request, or (ii) the due date for such amounts as set forth in the applicable Statement of Work.  Tallyfy shall submit each invoice in electronic format, via such delivery means as are specified by CLIENT in writing from time to time.  CLIENT may withhold from payment any amount disputed by CLIENT in good faith, pending resolution of the dispute.  Tallyfy shall have the right to stop performing its obligations in accordance with this Agreement notwithstanding any such dispute or actual or alleged nonpayment that is the subject of the dispute, pending its resolution.

5.2.         Tallyfy shall give CLIENT signed W-9s and other documentation reasonably requested by CLIENT from time to time.

6.     Representations and Warranties.

6.1.         Mutual Representations and Warranties.  Each party represents and warrants to the other party that:

(a)            it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;

(b)            it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;

(c)             the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary organizational action of the party; and

(d)            when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

6.2.         Additional Representations and Warranties. Tallyfy further represents and warrants to CLIENT that:

(a)            it will perform all Services in a professional and workmanlike manner in accordance with best industry standards and practices for similar services, using personnel with the requisite skill, experience and qualifications, and shall devote adequate resources to meet its obligations under this Agreement;

(b)            it is in compliance with, and will perform all Services in compliance with, all applicable Law;

(c)             CLIENT will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind; and

(d)            as delivered, installed, specified or approved by Tallyfy and used by CLIENT or its Affiliates, the Work Product: (i) will not infringe, misappropriate or otherwise violate any Intellectual Property Right or other right of any third party; and (ii) will comply with all applicable Laws.

7.     Indemnification.

7.1.         General Indemnification. Tallyfy shall defend, indemnify and hold harmless CLIENT and CLIENT’s Affiliates, and each of their respective Representatives, successors and assigns (each, a “CLIENT Indemnitee”) from and against all any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers that are incurred by a CLIENT Indemnitee (“Losses”) arising out of or resulting from any third party claim, suit, action or proceeding (each, an “Action”) that arises out of or results from:

(a)            Tallyfy’s breach of any representation, warranty, covenant or obligation of Tallyfy (including any action or failure to act by any Tallyfy Personnel that, if taken or not taken by Tallyfy, would constitute such a breach by Tallyfy) under this Agreement;

(b)            any claim that any Work Product infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any Person;

(c)             any gross negligence or willful misconduct in connection with the performance or activity required by or conducted in connection with this Agreement by Tallyfy or any Tallyfy Personnel in connection with performing Services;

(d)            any failure of Tallyfy or any Tallyfy Personnel to comply with any applicable Laws; or

(e)            any bodily injury, death or personal property damages caused by Tallyfy or any Tallyfy Personnel.

7.2.         Indemnification Procedure. CLIENT will promptly notify Tallyfy in writing of any Action for which it seeks to be indemnified pursuant to Section 7.1 and cooperate with Tallyfy at Tallyfy’s sole cost and expense. Tallyfy shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to CLIENT to handle and defend the same, at Tallyfy’s sole cost and expense. Tallyfy shall not settle any Action in a manner that adversely affects the rights of CLIENT or any CLIENT Indemnitee without CLIENT’s prior written consent. CLIENT’s failure to perform any obligations under this Section 7.2 will not relieve Tallyfy of its obligations under this Section 7.1 except to the extent that Tallyfy can demonstrate that it has been materially prejudiced as a result of such failure. CLIENT may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

8.     Limitations on Liability.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, GOODWILL, REVENUES OR PROFITS (WHETHER OR NOT DEEMED TO CONSTITUTE A DIRECT CLAIM), OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSS, DAMAGE, OR EXPENSE (INCLUDING WITHOUT LIMITATION, LOST PROFITS AND OPPORTUNITY COSTS) RELATING TO THIS AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE PROVISIONS OF THIS SECTION 8 SHALL NOT APPLY TO ANY AMOUNTS PAID PURSUANT TO ANY PARTY’S INDEMNIFICATION OBLIGATIONS OR ANY DAMAGES ARISING OR AMOUNT PAID AS A RESULT OF ANY BREACHES OF CONFIDENTIALITY OR ANY PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, LOSSES TO THE EXTENT COVERED BY A PARTY’S INSURANCE, OR A PARTY’S PAYMENT OBLIGATIONS.

9.     Term and Termination.

9.1.         Term.  This Agreement shall commence on the first day of the term and shall continue for five (5) years thereafter (the “Initial Term”).  Upon expiration of the Initial Term, term will automatically renew for additional successive terms of five (5) years each (each a “Renewal Term”), unless and until either party gives the other notice of non-renewal at least ninety (90) days prior to the end of the then-current term (the Initial Term plus all renewal terms (if any) shall be referred to herein as the “Term”).  The pricing for the Services during any automatic renewal Term shall be the same as in the preceding Term unless the parties agree otherwise in writing.

9.2.         Termination.

(a)            CLIENT may terminate, at any time without cause, and without incurring any additional obligation, liability or penalty, (i) this Agreement, by written notice to Tallyfy, and (ii) except as may be set forth in therein, any Statement of Work, by providing at least three days’ prior written notice to Tallyfy.

(b)            Either party may terminate this Agreement and any outstanding Statement(s) of Work, effective upon written notice to the other party, if the other party materially breaches this Agreement or such Statement(s) of Work, and such breach:  (i) is incapable of cure; or (ii) being capable of cure, remains uncured for 10 days after the breaching party receives written notice thereof from the other party.

(c)             Either party may terminate this Agreement and all Statements of Work by written notice to the other party if the other party: (i) becomes insolvent or admits inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

9.3.          Effect of Expiration or Termination.

(a)            Upon any expiration or termination of any Maintenance and Support Services or Statement of Work:

(i)              Tallyfy shall (A) with respect to termination of a Statement of Work, promptly deliver to CLIENT all Work Product generated by Tallyfy under such Statement of Work (whether complete or incomplete); (B) provide reasonable cooperation and assistance to CLIENT in transitioning the Services to an alternate service provider as may be reasonably required by CLIENT, and (C) on a pro rata basis, repay all amounts, if any, paid in advance for any Services or Work Product that have not actually been provided to CLIENT.

(ii)            Each party shall comply with its obligations under Section 3.7.

(b)            If CLIENT terminates any Statement of Work pursuant to Section 9.2(b), CLIENT shall be relieved of any obligation to pay any Fees thereunder.

(c)             Except as set forth in Section 9.3(b), if this Agreement terminates early CLIENT will remain obligated to pay Fees for all Services and Work Product received before the effective date of such termination.

9.4.         Survival.  All sections and any other right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any termination or expiration of this Agreement.

10. Miscellaneous.

10.1.      Assignment.  Tallyfy shall not assign this Agreement without the prior written consent of CLIENT.  All attempted or purported assignments of this Agreement by Tallyfy without CLIENT’s prior written consent are prohibited and shall be null and void.  CLIENT may freely assign this Agreement, in whole or in part, without notice to or consent from Tallyfy, to one or more of its Affiliates or subsidiaries.

10.2.      Governing Law; Forum. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Missouri, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.  With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in St. Louis County, Missouri.

10.3.      Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

10.4.      Attorneys’ Fees and Severability. In any adversarial proceedings between the parties arising out of this Agreement or arising out of disclosure or use of Confidential Information, the Prevailing Party (as defined below) will be entitled to recover from the other party, in addition to any other relief awarded, all reasonable expenses that the Prevailing Party incurs in those proceedings, including legal fees and expenses.  “Prevailing Party” means the party that recovers greater relief in those proceedings. If any such proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the Prevailing Party in those proceedings.

10.5.      Severability.  If any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

10.6.      Entire Agreement.  This Agreement, including the Statement(s) of Work and any exhibits attached hereto or thereto, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled.  No modification, amendment or waiver of any provision of this Agreement (including, without limitation, the Statement(s) of Work and all exhibits attached hereto) will be effective unless in writing and signed by both parties hereto.

10.7.      No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto, the CLIENT Indemnitees, and each of their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

10.8.      Equitable Relief.  Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party.  Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek specific performance and injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond or the showing of actual monetary damages in connection with such claim.

10.9.      Further Assurances. Upon a party’s reasonable request, the other party shall, at such other party’s sole cost and expense, promptly execute all such further documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

10.10.   Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.

10.11.   Notices.  All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties as follows (or as otherwise specified by a party in a notice given in accordance with this Section):

Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail (with confirmation of receipt), if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient; or (d) on the fifth day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

10.12.   Expenses.  Travel, living, accommodation, training, and similar costs and expenses shall only be reimbursed (at the actual costs incurred) if specifically authorized by CLIENT in the Statement of Work.

10.13.   Waivers. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.

10.14.   Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.