Master Professional Services Agreement

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1. Services. FIGURE8 will perform the professional services described on each Statement of Work to this Agreement (the “Services”). FIGURE8 will perform the Services in a professional manner in accordance with industry standards and Client’s specifications. Client agrees to provide all reasonable assistance requested by FIGURE8 in performing the Services. This includes providing FIGURE8 with full and free access to all equipment, machines, and information, including computer equipment, required to perform the Services. Client agrees to accept services and deliverables upon completion by FIGURE8. Changes in scope of the Services shall be made only in writing executed by authorized representatives of both parties. FIGURE8 shall have no obligation to commence work in connection with any change until the impact of the change on the fee and/or schedule is agreed on in writing by both parties.

2. Compensation. In consideration of the services to be performed by FIGURE8, Client agrees to pay FIGURE8 the amount specified on the Statement of Work (the ”Service Fee”). Client also agrees to reimburse FIGURE8 for all out- of-pocket expenses incurred in performing the Services.

3. Payment. All payments will be due within thirty (30) days of receipt of invoice. Late payments will accrue late charges at a rate equal to the lesser of (a) one and one-half percent (1½%) per month, or (b) the maximum rate allowed by law.

4. Insurance. FIGURE8 shall maintain at its expense for itself and its employees and agents worker’s compensation, unemployment, disability, and liability insurance with reputable insurers, in amounts that are prudent for FIGURE8’s business, covering its employees and agents while performing the Services. FIGURE8 will provide evidence of the insurance coverage to Client upon its request.

5. Back-up Copies. Client is responsible for making back-up copies of all data prior to FIGURE8’s performance of the Services. FIGURE8 will not be responsible for any data loss arising out of its performance of the Services. In addition, FIGURE8 shall use reasonable security policies in good faith, and shall not be held responsible for penetration of Client’s computer network by any third party.

6. Warranties. THIS IS A SERVICE AGREEMENT. FIGURE8 MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES OR ANY PRODUCTS THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7. Confidential Information. Each party to this Agreement shall hold in confidence any and all confidential information of the other party and shall not disclose such information to any other person or entity. FIGURE8 will protect the confidentiality of all trade secrets and confidential information which are identified to FIGURE8 in writing. FIGURE8 will exercise the same care in protecting such information as it exercises in protecting similar information belonging to FIGURE8. Neither FIGURE8 nor Client shall obtain any ownership right, copyright, patent right or other right to the confidential information of the other. All documents, records, apparatus, equipment, and other physical property, whether or not pertaining to confidential information of Client, furnished to FIGURE8 by Client shall remain the sole property of Client and shall be returned to Client prior to the termination of this Agreement when requested by Client.

8. Work Product. Unless otherwise indicated in the Statement of Work, FIGURE8 will retain all ownership rights in any inventions, devices, or programs developed by it in performing the Services (the “Work Product”). Upon final payment, Client shall receive a perpetual, nontransferable, paid-up license for purposes of its internal business to use, copy, modify and prepare derivative works of the Work Product. The parties will cooperate with each other and execute such other documents as may be appropriate to achieve the objectives of this Section. Nothing in this Agreement shall preclude FIGURE8 from developing for itself, or for others, materials which are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to items which may be delivered to Client pursuant to this Agreement.

9. Indemnification. FIGURE8 will not be liable for, and Client will indemnify FIGURE8 from and hold it harmless against, any loss, liability, damage, action, cause of action, cost or expense (including, without limitation, attorneys’ fees) arising out of FIGURE8’s performance of the Services, except those caused by FIGURE8’s gross negligence or intentional misconduct. FIGURE8 shall indemnify and hold Client and its directors, employees, and agents harmless against all claims, losses, and expenses (including reasonable attorney’s fees) resulting from FIGURE8’s gross negligence and willful acts. This section shall survive the termination of the Agreement.

10. Limitation of Liability. FIGURE8’s LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IS LIMITED TO THE FEES PAID BY CLIENT TO FIGURE8 UNDER THIS AGREEMENT. BOTH PARTIES RECOGNIZE THAT THE INHERENT RISK OF DATA LOSS AND DAMAGE TO THE EQUIPMENT WHEN MOVING EQUIPMENT, FIGURE8 SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR DATA LOSS OR DAMAGE TO THE EQUIPMENT ASSOCIATED WITH THIS ENGAGEMENT. IN NO EVENT WILL FIGURE8 BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS.

11. Non-solicitation. For the term of this Agreement and for twelve (12) months after termination, Client and FIGURE8 agree that they shall not, directly or indirectly, solicit, divert, or hire away, any employee or independent contractor of the other without written consent.

12. Notices. All notices must be given in writing, and personally delivered or mailed to the other party by certified mail, return receipt requested: (a) to FIGURE8 307 W. Tremont St. Suite 200, Charlotte, NC 28203; or (b) to Client at the address specified above. Notices will be deemed received upon actual receipt by the addressee. Independent Contractor Status. FIGURE8 is an independent contractor and neither FIGURE8 nor its staff is or shall be deemed to be employed by the Client.

13. Miscellaneous. This Agreement sets forth the entire Agreement of the parties. No terms contained in any other document, including any purchase order, shall be binding upon either party unless such terms are accepted by both parties in writing. Neither Client nor FIGURE8 may assign this Agreement without the prior written permission of the other party. The rights and obligations of the parties will inure to the benefit of, will be binding upon, and will be enforceable by the parties and their lawful successors and representatives. The waiver by Client or FIGURE8 of a breach of any provision of this Agreement by the other party will not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the other party.

    THIS AGREEMENT WILL BE DEEMED TO HAVE BEEN MADE IN THE STATE OF NORTH CAROLINA BY VIRTUE OF FIGURE8’s HAVING ACCEPTED IT IN THAT STATE AND WILL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF NORTH CAROLINA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAW OR CHOICE OF LAW. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY STATEMENT OF WORK SHALL BE SETTLED BY ARBITRATION ADMINISTERED IN CHARLOTTE, NORTH CAROLINA BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, PROVIDED THE ARBITRATOR WILL NOT BE AUTHORIZED TO AWARD PUNITIVE OR EXEMPLARY DAMAGES. ANY JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.