A.  Services:

1. During the term of this Agreement, in exchange for the compensation set forth herein and/or in any corresponding Statement of Work, Profit Labs agrees to perform for Partner the services and deliverables as may be set forth from time to time in one or more Statements of Work or similar written instrument signed by each of the Parties. Profit Labs shall perform the Services in a timely and professional manner, using an adequate number of qualified personnel. The terms of any Statement of Work referencing this Agreement shall be incorporated into this Agreement.
2. From time to time, the Parties may modify, supplement and amend any or all applicable Statements of Work only by a written instrument signed by each of the Parties
3. Profit Labs may enter into a Statement of Work directly with a company controlling, controlled by, or under common control with Partner (each an “Affiliated Company”). Affiliated Companies are only intended to be third party beneficiaries of this Agreement and any Statement of Work if such Affiliated Company enters into the applicable Statement of Work or such Statement of Work is entered into by Partner expressly on behalf of such Affiliated Company.

• Compensation: Partner will pay Profit Labs for Services as set forth in the applicable Statement of Work (collectively, “Service Fees”). Unless otherwise agreed in writing, all amounts due under this Agreement and any corresponding Statements of Work shall be in U.S. Dollars.
• Invoicing: In the event that Profit Labs will submit invoices to Partner for services provided, such invoices will be sent via electronic email and will be due upon receipt if automatic billing has not successfully completed
• Payment of Services Fees. Partner shall pay to Profit Labs any applicable Service Fees no later than 30 days after delivery of the corresponding invoice for such Services.The Agency reserves the right, in its sole discretion, to modify, amend, or adjust its pricing structure for any and all services provided by the Agency at any time without prior notice. Such modifications, amendments, or adjustments may be implemented in response to, but not limited to, changes in the economic environment, market conditions, or the Agency’s operating costs. The Client acknowledges and agrees that the Agency shall have no obligation to maintain the same pricing for any services provided, and that any such changes shall be binding upon the Client’s continued use of the Agency’s services following such adjustments.

B.  Confidentiality:

1. Any Party to this Agreement that receives Confidential Information (defined below) (the “Receiving Party”) from the other Party (the “Disclosing Party”) shall maintain in trust and confidence and not disclose to any third party or use for any unauthorized purpose any Confidential Information received from the Disclosing Party. The Receiving Party may use such Confidential Information only to the extent required to accomplish the intent of this Agreement. The Receiving Party shall not use Confidential Information for any purpose or in any manner which would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied shall not be reproduced in any form except as required or reasonably necessary to accomplish the intent of this Agreement.

• All Confidential Information (including all copies thereof) shall remain the property of the Disclosing Party, and shall be returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired, or upon request of the Disclosing Party, and in any event, upon completion or termination of this Agreement.

• Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure (i) is in response to a valid order of a court or other governmental body (ii) is otherwise required by law, or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement.

• For purposes of this Agreement:

1. “Confidential Information” shall mean all information or materials concerning the disclosing party and its past, present and proposed business activities provided to the receiving party, or an agent or representative thereof, that are proprietary and confidential in nature, including without limitation, Intellectual Property (defined below), financial, technical and project information; provided, however, Confidential Information shall not include information or materials (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; (ii) is known by the receiving party at the time of receiving such information as evidenced by its records; (iii) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure; (iv) is the subject of a written permission to disclose provided by the disclosing party; or (v) is independently developed by the receiving party without reliance on or reference to Confidential Information.

• “Intellectual Property” means all trade secrets, processes, copyrights, trademarks, service marks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents, and all improvements, rights, and claims related to the foregoing.

• Partner agrees that, during the term of this Agreement and for a period of one year thereafter, Partner will not directly or indirectly engage or participate in the solicitation or attempt to knowingly solicit or in any manner encourage employees or independent contractors of Profit Labs (“Profit Labs Personnel”) to terminate their employment or engagement with Profit Labs or hire any such Profit Labs Personnel.

C.  Intellectual Property:

1. Each of the Parties acknowledges and agrees that unless expressly set forth herein or in a corresponding Statement of Work, nothing in this Agreement or any Statement of Work shall be construed as a license, assignment or other transfer of any Intellectual Property of the other Party. If, from time to time, the Services contemplated by this Agreement or a corresponding Statement of Work expressly provide for the creation of Intellectual Property by Profit Labs on behalf of Partner (“Transferred IP”), such instrument shall clearly set forth the nature and extent of such Intellectual Property to be licensed, assigned or transferred.
   1. In the event that the Services result in Transferred IP, Partner acknowledges Profit Labs’s and its licensors may claim proprietary rights in preexisting works of authorship and other intellectual property Profit Labs uses in providing Services under this Agreement.

D.  Term and Termination:

1. Term. The initial term of this Agreement begins on the Effective Date and expires on the Initial Term Expiration Date listed on the signature page to this Agreement (the “Initial Term“), unless earlier terminated in accordance with the terms of this Agreement. After the expiration of the Initial Term, the term of this Agreement will be automatically renewed on a month-to-month basis, unless either party gives notice of its intent not to renew at least 30 days before the expiration of the Initial Term or the then current term.
2. Termination for Convenience. Either Party may terminate this Agreement and any or all Statements of Work at any time for such Party’s convenience by providing 30 days prior written notice of such termination to the other Party.
3. Effect of Termination. Termination of this Agreement is without prejudice to any other right or remedy of the parties. Termination of this Agreement for any cause does not release either party from any liability which, at the time of termination, has already accrued to the other party, or which may accrue in respect of any act or omission prior to termination or from any obligation which is expressly stated to survive the termination. Notwithstanding anything in this Agreement to the contrary, upon the expiration or termination of this Agreement, the rights and obligations set forth in Sections, C, D, F, G, I, J, and K of this Agreement shall survive expiration or termination and shall remain in full force and effect.

E. Indemnification:

1. Partner will indemnify and defend Profit Labs, its parent, subsidiaries, affiliates, and their respective directors, officers, agents and employees (each, a “Profit Labs Indemnitee”) from and against all claims, damages, losses, liabilities, costs, expenses, reasonable attorneys’ fees and litigation expenses (collectively “Damages“) arising out of a claim by a third party against a Profit Labs Indemnitee insofar as such Damages are asserted as a result of: (i) for violations of applicable laws by Partner or Partner personnel or (ii) related to or arising out of a breach of this Agreement by Partner.

• Limitation of Liability:

NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER OR NOT A PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.

• Insurance:
  • During the term of this Agreement, Profit Labs shall procure and maintain commercially reasonable insurance policies, as determined in good faith by Profit Labs.
  • Profit Labs’s insurance coverage’s/limits may be achieved through use of one or more umbrella policies. Profit Labs shall, upon written request by Partner, submit to Partner at the address provided for notice, certificates of insurance evidencing the insurance policies that it maintains are in full force.

F.  Dispute Resolution:

1. Prior to undertaking any litigation or arbitration as provided hereunder, unless delay would prejudice the rights of a Party the Parties shall make reasonable efforts to resolve all disputes informally, including by means of a conference between the executives at each party who have authority to resolve the dispute. Profit Labs will continue performance of Services during the pendency of any dispute, unless Partner terminates the Agreement.

• Waiver of Jury Trial. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING AMONG THE PARTIES, WHETHER UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD

PARTY CLAIM OR OTHERWISE. The agreement of each Party to waive its right to jury trial will be binding on its successors and assignees.

• Arbitration. If for any reason the jury waiver is held to be unenforceable, the Parties agree to binding arbitration for any dispute arising out of this Agreement or any claim arising under any federal, state or local statutes, laws or regulations, under the applicable commercial rules. Any arbitration will be held in UTAH and be subject to the Governing Law provision set forth in the Agreement.

• Information Security: When Profit Labs has access to Partner data (including but not limited to Partner customer data (collectively, “Partner Data”)) or Partner’s systems, Profit Labs shall take at minimum the following precautions with regards to (i) Profit Labs’s own information technology environment, (ii) Partner Data in Profit Labs’s possession, and (iii) Profit Labs’s connectivity to or interaction with Partner’s computer and communications environment:

1. Information Security Management. Profit Labs shall have a security policy that provides guidance to its personnel to ensure the confidentiality, integrity and availability of information and systems accessed, maintained or processed by Profit Labs and shall provide: (i) express instructions regarding the steps to take in the event of a compromise or other anomalous event; (ii) delegation and assignment of responsibilities for security; (iii) management oversight for the policy and its deployment; (iv) means for managing security within the enterprise; (v) policies and procedures for data confidentiality and protection and access to and handling of Partner and end-user data and (vi) planning for incident response in the event of a breach of security or unauthorized disclosure of Partner Data.

• Security and Processing Controls. Profit Labs shall maintain standards and procedures commensurate with industry standards to address the configuration, operation and management of systems, networks, services and Partner and end-user data.

G.  Miscellaneous:

1. Section headings are included for convenience only and are not to be used to construe or interpret this Agreement.
   1. No delay, failure or waiver of either Party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving Party.
   1. The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party. Personnel supplied by Profit Labs shall work exclusively for Profit Labs and shall not, for any purpose, be considered employees or agents of Partner. Profit Labs assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
   1. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired thereby. To the fullest extent possible, the provisions of this Agreement shall be construed as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
   1. No changes, amendments or modifications of any provision of this Agreement will be valid unless made by an instrument in writing signed by both Parties.
   1. This Agreement may be executed by the Parties in one or more counterparts, and each of which when so executed will be an original but all such counterparts will constitute one and the same instrument. Facsimile and electronic signatures shall have the same force and effect as original signatures.
   1. This Agreement will be governed by the laws of the United States of America and particularly those of the State of UTAH, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. Both Parties agree to submit to jurisdiction of federal and state courts located in Utah and further agree that any cause of action arising under this Agreement or any corresponding Statement of Work, not otherwise resolved in accordance with the Dispute Resolution provisions of Section I, may only be brought in a court in Utah County, Utah.
   1. Neither Party shall be in breach of this Agreement if there is any failure of performance under this Agreement (except for payment of any amounts due hereunder) occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, prevention from or hindrance in obtaining energy or other utilities, labor disputes of whatever nature or any other reason beyond the control of either Party.
   1. This Agreement, together with any documents, addendums and exhibits incorporated herein, is the final, full and exclusive expression of the agreement of the Parties and supersedes all prior agreements, understandings, writings, proposals, representations and communications, oral or written, of either Party with respect to the subject matter hereof and the transactions contemplated hereby.

“Exhibit A”

Profit Labs Service Level Agreement

DATA CONNECTIVITY

It is Profit Labs’s responsibility to ensure that the network connectivity between Profit Labs’s facilities and Vendor’s is adequate for Profit Labs to support the required applications, and performance obligations under this SLA. Within the first hour of any outage or system unavailability, Profit Labs will notify the Vendor that Profit Labs’s systems are down with the estimated time that Profit Labs expects that its systems will remain unavailable and the impact to business processes. In the event that Profit Labs’s systems remain unavailable, Profit Labs shall provide hourly updates to Vendor regarding the outage.

VENDOR SECURITY REQUIREMENTS

Profit Labs will comply with the following: (a) use current security measures to protect any computer system or network device that Profit Labs uses to provide services hereunder against the risk of infiltration, access penetration by or exposure to a third party by (i) protecting against Vendor-side intrusions, (ii) securing the computer systems and network devices, and (iii) protecting against intrusions of operating systems or software; (b) with respect to any of the Services or any other information or material, if any, provided by Profit Labs to Vendor via electronic mail, a website and/or otherwise via the Internet, provide security to protect any web server and/or software that Profit Labs accesses or uses to provide the foregoing against the risk of infiltration, access penetration by or exposure to a third party by (i) protecting against Vendor-side intrusions, (ii) securing such server, and (iii) protecting against intrusions of operating system software; and (c) maintain state-of-the-art commercially reasonable firewalls and provide general maintenance and monitoring of firewalls and implementation of firewall rule set changes and active 24/7 monitoring of firewalls in order to identify attempted security violations.

B.  Virus Protection

Profit Labs will use and follow the following computer virus detection/scanning services and procedures:

• employ, implement and maintain the then current state-of-the-art computer virus detection/scanning program (including, without limitation, a feature to prevent the spread of computer viruses between parties which access or exchange data or files through network connectivity) prior to sending any data, files or other material to Vendor and, upon detecting an actual, potential or suspected computer virus, notify Vendor and as soon as reasonably possible cease Data Sending and shall not resume the same until the computer virus has been eliminated or contained to the satisfaction of Vendor; (b) install and use such computer virus detection/scanning on all Data Sending mechanisms as well as at any other points reasonably requested by Vendor; and (c) install and use anti-virus anti-malware software on all desktops used by Agents, support staff and managers for the Vendor Program.

C.  Data Integrity

Profit Labs will use the following data communication security services: (a) safeguard the confidentiality and integrity of all Vendor or user data being transmitted over any form of data network; (b) implement and maintain strong, industry standard encryption techniques for all cases in which Vendor’s data identified as “sensitive” or “confidential” are transmitted over any data network (for example, SSL for Web browser sessions, or PGP file encryption for bulk data transfers); (c) not allow network access from any party other than authorized employees of Profit Labs, Vendor and third parties designated by Vendor by any means except via the public Internet; and (d) Profit Labs will take steps to insure the integrity of data and employ practices that protect data from malicious or accidental altering.

D.  Uptime and Resiliency

Supplier’s Service Level Agreement guarantees uptime of 99.9% every month. Supplier’s uptime is achieved by planning in redundancy at key points, coupled with careful quality assurance, planned code deployments and change management. For maintenance needs, Supplier will send out notifications and updates at least 24 hours in advance or as soon as it is aware that maintenance time is required to help mitigate any service interruption. Supplier to maintain regular technical support and 24/7 service for escalations and voice hotlines.

Profit Labs SECURITY PRACTICES

1. Profit Labs shall maintain and secure Vendor’s system in at least the same manner as it maintains and secures Profit Labs’s own systems. Profit Labs shall disclose to Vendor Profit Labs’s physical, personnel, communications, data and operational and security policies, procedures and methodologies and all hardware, software and other technology used to implement such policies, procedures and methodologies, including, without limitation, those related to network firewalls, access control, system administration and maintenance, intrusion detection, virus detection and eradication, data encryption, data backup, system restoration, redundant systems, backup power and

disaster recovery used by Profit Labs to meet the Vendor Security Requirements (singularly or collectively, “Profit Labs Security Practices”).

• Vendor may conduct audits, upon a minimum of 5 business days prior written notice and during normal business hours so as not to materially affect Profit Labs’s operation of its business, to determine Profit Labs’s state of compliance with respect to obligations set forth in this Section.

Network Security

Profit Labs agrees that entrance to the Profit Labs network should be protected by firewalls. Access to the production systems is granted on an as-needed basis, and is monitored for any possible abuse or unauthorized users. Profit Labs will provide 15 days advance notice, in writing, of any desire to relocate any of Vendor’s contract service operations to a new or different facility(s).

HOURS OF OPERATION

1. Regular office hours

Profit Labs maintains its operation in the Eastern Time Zone and holds regular office hours from 9:00am to 5:00pm Eastern Time.

• Customer support hours

Profit Labs will maintain customer service hours based on Eastern  time Zone hours to provide a medium for a national client base. These hours will be 9:00am to 5:00pm Eastern Tim