THESE LEADOUS TERMS AND CONDITIONS (“TERMS”) ARE INCORPORATED BY REFERENCE INTO EACH STATEMENT OF WORK (“SOW”) EXECUTED BY THE LEGAL ENTITY THEREIN (“CLIENT”) AND LEADOUS. INC. (“LEADOUS”), UNDER WHICH THE CLIENT AGREES TO PURCHASE THE DEFINED SERVICES PROVIDED BY LEADOUS. THESE TERMS AND EACH SOW TOGETHER FORM A BINDING AGREEMENT BETWEEN CLIENT AND LEADOUS, EFFECTIVE AS OF THE DATE OF EXECUTION OF THE FIRST SOW BY CLIENT (“EFFECTIVE DATE”). THESE TERMS AND ALL SOWs ARE COLLECTIVELY REFERRED TO HEREIN AS THE “MSA.” CLIENT OR LEADOUS MAY BE REFERRED TO INDIVIDUALLY AS A PARTY OR COLLECTIVELY AS THE PARTIES.

A. Statements(s) of Work. From time to time, Client and Leadous may agree that Leadous shall provide specific Services on behalf of Client, which shall be described in one or more SOW(s), which, when executed by both parties, shall become subject to the terms of this MSA. Any SOW(s) may be amended only if agreed to in writing by the parties. If the terms of any SOW conflict with this MSA, the SOW shall be the controlling document. Terminating Services described in one SOW will not affect performance under any other SOW.

B. Change in Scope.  All requests for incremental Services or previously unidentified risks outside the scope of an SOW will be considered additional work and negotiated separately with the Client; such change in scope will be documented and signed by the parties. Leadous is responsible for notifying the Client if any additional work requested will affect the costs described in the SOW. Until such change in scope is documented as described in this Section, Leadous will not provide the Services.

 C. Timing.  All timelines and estimated fees in a SOW are based upon the project starting within 30 days from the date of the SOW. New estimates will be required for any SOW executed by the Client more than 30 days following the date signed by Leadous.  

 D. Results. All Services will be provided with reasonable diligence under the SOW.  LEADOUS will use personnel who are suitably skilled, experienced, and qualified to perform the Services; in addition, Leadous reserves the right to choose or replace the personnel it uses to provide the Services.

A. Fees for the Services.  Client shall pay Leadous’ fees for the Services as specified in the SOW.

B. Reimbursable Expenses.  Unless otherwise specified in the SOW, Client agrees to reimburse Leadous for all actual and reasonable travel and out-of-pocket expenses incurred by Leadous in connection with the performance of the Services.

C. Taxes.  Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder; provided, however, in no event shall Client pay or be responsible for any taxes imposed on, or concerning, Leadous' income, revenues, gross receipts, personnel or real or personal property or other assets.

D. Billing and Payment. Leadous shall invoice Client as specified in the SOW, and each undisputed invoice shall be payable as per the invoice date. Amounts outstanding fifteen (15) days after the due date of any undisputed invoice shall bear interest at the maximum rate allowed unless not permitted by law, in which case, such invoice shall be subject to interest expense at the highest rate permitted by law. Any breach of Client’s payment obligations will be considered a material breach of this MSA, in which case Client shall be liable for the costs and expenses of collection, including reasonable attorney fees, and Leadous may immediately cease the performance of Services without any liability to Client until Leadous has received payment.

E. Credit Card Processing Fees: If Client chooses to pay any invoices by credit card, a processing fee of four and a half percent (4.5%) of the total invoice amount will be applied to cover transaction costs.

A. Term.  This MSA (and each SOW) shall remain in effect and enforceable unless terminated according to Section 3C below (or other termination rights provided in the SOW). 

B. Renewal: This MSA and all Statements of Work (SOWs) shall automatically renew for successive one-year terms unless either party provides written notice of non-renewal at least sixty (60) days before the end of the then-current term. At which time, Fees for Services shall increase by eight percent (8%) annually, effective upon each renewal term, unless otherwise agreed in writing.

C.  Default. If either party defaults on any of the obligations hereof, the injured party may, but is not required to, terminate this MSA (or an SOW) after first providing thirty (30) days written notice specifying the default and allowing an opportunity to cure such default during the thirty (30) days.  A party becoming subject to any bankruptcy or insolvency proceeding under Federal or state statute or becoming subject to direct control by a trustee or similar authority shall be considered an event of default. Upon termination or expiration of this MSA (or a SOW) as a result of default by Client, Leadous may immediately cease all Services (other than those for which Leadous has received payment) and terminate Client access to any Leadous systems and resources.

C. Survival.  Termination of this MSA, or any SOW, shall not relieve any liability of a party accrued before termination. The obligations of the parties outlined in Sections 4 through 8 of this MSA shall survive and continue after the termination of this MSA. Client shall hold Leadous harmless for any liability whatsoever or costs arising from the termination of this MSA by Client or by Leadous for cause such as breach of contract, or any other legal claims recognized at law.

During the term of this MSA, each party may be furnishing certain information (the “disclosing party”) to the other party (the “receiving party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Each party agrees not to use or disclose any Confidential Information of the other party other than in support of the receiving party’s obligations under this MSA unless the disclosing party has expressly granted the right in writing to use such Confidential Information for another purpose. Each party further agrees to protect the Confidential Information of the other party in its possession against disclosure to third parties using the same degree of care as the receiving party uses to protect its own proprietary and confidential information, but at least reasonable care. The restrictions on use and disclosure of Confidential Information will not apply to information that is already lawfully known to or independently developed by the receiving party, is or subsequently becomes generally known to the public without fault of the receiving party, is lawfully obtained from any third party without any obligation of confidentiality, or is required to be disclosed by law. In the event that a party becomes legally obligated to disclose Confidential Information of the other party, to the extent that such party may legally do so, it shall give the disclosing party prompt notice of the required disclosure so that the disclosing party may seek a protective order. The provisions of this Section 4 shall continue for a period of five (5) years after termination of this MSA.

A. Ownership.  Upon payment in full, Client shall own a copy of all materials delivered to Client by Leadous as identified in a SOW. Leadous retains the sole and exclusive ownership of all other materials not specifically identified in the SOW(s).

B. Promotional Use.  Client grants Leadous the right to use Client’s company name and logo as a reference for marketing or promotional purposes on the Leadous website and in other public or private communications with its existing or potential customers, subject to Client’s standard trademark usage guidelines as provided to Leadous from time-to-time. Client may email Leadous at contracts@leadous.com if Client does not want Leadous to use Client’s company name or logo.

C. Client's Right to Access Leadous Systems. If provided access by Leadous, Client agrees to access and use Leadous’ systems and resources solely for Client’s internal business purposes. All rights to the same are specifically reserved by Leadous.
D. Employees.  During the Term of this MSA and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, solicit to hire, hire, or otherwise obtain the services of any employee of the other party with whom such party had direct contact during the term of this MSA; provided, however, that general job advertisements by a party shall not be construed to violate this Section. 

A. Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY, WHETHER IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY WILL SEEK OR APPLY FOR SUCH DAMAGES. OTHER THAN FOR INDEMNIFICATION OBLIGATIONS AS DEFINED BELOW, LEADOUS’ AND CLIENT’S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES TO THE OTHER PARTY, WHETHER UNDER THIS MSA, TORT, STATUTE, OR REGULATION, SHALL BE LIMITED TO THE ACTUAL DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE SERVICE FEES PAID BY CLIENT TO LEADOUS FOR THE SOW UNDER WHICH THE OFFENDING SERVICES WERE PROVIDED. CLIENT AND LEADOUS ACKNOWLEDGE AND AGREE THAT THE ABOVE LIMITATIONS OF LIABILITY ARE REASONABLE.

B. Indemnification.  Each party agrees to indemnify and hold the other party, and its subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against all damages, liability, claims, losses, awards, judgments, settlements, expenses, and costs (including reasonable attorneys’ fees and costs of defense) and defend the other party against any actions, suits, litigation, claims, demands, arbitration or proceeding, and any threats thereof, resulting from or in connection with (i) infringement of the intellectual property rights of a third-party, and (ii) death, disability, or the destruction of tangible personal property, whether caused or occasioned by the gross negligence or willful misconduct of the indemnifying party.

C. Exclusive Remedies.  Any claim related to this MSA or the Services shall be brought within one (1) year after the first date of performance or breach, which in whole or in part gives rise to the claim. The remedies in this MSA are exclusive and instead of all other remedies available at law or in equity for any act performed in connection with this MSA, or related SOW, or for any breach of this MSA whether brought under a theory of tort liability, contract liability, or any other theory recognized at law.

A. Leadous Warranties.  Leadous warrants that the Services will substantially comply with the specifications outlined in the SOW and that the Services will be performed commercially reasonably. As the exclusive remedy concerning a breach of such warranty, Leadous shall, within a reasonable period, and without further payment concerning such nonconforming Services, correct the non-conformance(s) as required in the SOW.

B. Authority.  Each party represents to the other that it has all necessary rights, power, and authority to enter into this MSA by signing the SOW and performing any obligations hereunder.

C. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES OUTLINED IN THIS SECTION, LEADOUS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESSED OR IMPLIED, STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 

D. Force Majeure.  Neither Client nor Leadous shall be liable for any failure, inability, or delay to perform hereunder if such failure, inability, or delay is due to war, strike, fire, explosion, sabotage, accident, casualty, government law or regulation, or any other cause beyond the reasonable control of the party so failing, and if due diligence shall be used in resuming performance.

F. Notices.  All notices under this MSA shall be in writing and delivered, mailed (by registered or certified mail, postage prepaid, return receipt requested), or sent by facsimile to Leadous (200 Southdale Center, Edina, MN 55435) or Client at the notice address outlined in the SOW, unless another address is designated in writing.

A. No Partnership or Joint Venture.  Nothing contained in this MSA shall be construed as creating any relationship of employer/employee, partnership, agency, joint venture, or otherwise between the parties hereto, nor shall this MSA be construed as conferring on any party any express or implied right, power, or authority to enter into any MSA or commitment, express or implied, or to incur any obligation or liability on behalf of any other party. In addition, this MSA shall not be construed as creating any employment relationship between one party and the other party’s employees. Accordingly, neither party nor its employees shall be entitled, as a result of this MSA, to any of the benefits under any employee benefit plan the other party presently has in effect or may put into effect.

B. Assignment.  Neither party may assign any of its rights or obligations under this MSA without the consent of the other party, which consent shall not be unreasonably withheld or delayed, provided, however, that Leadous may subcontract its obligations under this MSA to an affiliate of Leadous, and provided further, that either party may assign all of its rights and obligations under this MSA to a third party in connection with the acquisition by such third party of all or substantially all of the business assets and liabilities of the assigning party (by means of a sale, merger or otherwise).

C. Non-waiver.  No failure of a party to enforce strictly any term or provision of this MSA in one instance shall be construed as a waiver of the right to enforce such term or provision in the future.

D. Binding Effect.  This MSA shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

E. Governing Law; Dispute Resolution.  This MSA and any dispute arising out of or in connection with this MSA will be governed as to all matters, including, but not limited to, the validity, construction, and performance of this MSA, by and under the laws of the State of Minnesota, United States of America, without giving effect to conflicts of law principles thereof and excluding the U.N. Convention on the International Sale of Goods. (i) The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision.  Except as provided in Section 8. G(ii), each party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portion of any contract between the parties and which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the Parties shall hold at least one meeting (in person or by video or tele-conference) for the purpose of attempting in good faith to resolve the dispute, except as provided in Section 8. G (ii), any and all disputes, claims, or controversies arising from or relating to this MSA shall be submitted to JAMS for mediation before arbitration or any other form of legal relief may be instituted.  Mediation may be commenced by a party providing JAMS a written request for mediation setting forth the subject of the dispute and the relief requested.  The Parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should occur within forty-five (45) days following a request for mediation.  The mediator shall be a retired judge with experience with technology disputes, but the mediator shall not have the authority to award punitive or exemplary damages.  The Parties agree that they will participate in good faith and share equally in its costs.  The mediation shall take place in Minneapolis, Minnesota.  (ii) The dispute resolution procedures in this MSA shall not apply before a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets, or Confidential Information.

F. Severability.  If any provision of this MSA is held invalid or unenforceable, such provision shall be deemed deleted from this MSA and the remaining provisions of this MSA shall continue in full force and effect.

G. Entire Agreement.  This MSA represents the entire agreement between the parties concerning the Services rendered, supersedes all prior agreements and understandings with respect thereto, and may only be modified or amended in writing, signed by duly authorized representatives of both parties.