Modicum Services Agreement.

1. Services

A. Modicum will provide to Client the Services as provided in the applicable signed SOW and subject to the terms and conditions of this Agreement. “SOW” means any written agreement between Client and Modicum for the purchase of the Services which incorporates this Agreement and which may be amended or revised as mutually agreed. In the event of a discrepancy arising between a SOW and the Agreement, the term outlined in the SOW shall take precedence. Modicum may make changes to the Agreement from time to time with or without notice to Client; however, any existing SOW will be governed by the Agreement effective as of the earliest signature date of the applicable SOW. Any new or amended SOWs will be governed by the then-current Agreement.

B. Performance. Modicum shall provide the Services in a timely and professional manner consistent with industry standards, in accordance with applicable laws, this Agreement, and any terms set forth in the applicable SOW. Modicum shall provide its own personnel, equipment, tools, and other materials for the provision of the Services at its own expense. All Modicum personnel shall be experienced and qualified. Modicum agrees that all of its personnel acting under its authority in the performance of this Agreement or any SOW shall be obligated under a binding written agreement to assign to Modicum, or as such, Modicum shall direct all Work Product invented or otherwise created by such personnel in connection with this Agreement. Modicum shall retain the sole control and discretion to determine the methods by which Modicum performs the Services and the places at which, the equipment and supplies with which, and the hours during which such Services are to be rendered. Client recognizes that completion of deliverables in any SOW is dependent on the Client’s timely responses to communications, submission of materials, decision-making, and approvals.

2. Work product and property rights

A. “Work Product” shall include, without limitation, all software, applications, source code, object code, copyrightable works, ideas, inventions (whether or not patentable), technology, designs and other creations, and any related work-in-progress, improvements or modifications to the foregoing, that are created, developed or conceived (alone or with others) in connection with Modicum’s performance of this Agreement and/or the SOW. Work Product shall include, without limitation, all documents and materials delivered to Client in connection with this Agreement and/or the SOW. The Work Product will be considered a “work-made-for-hire” to the extent permissible under applicable law.

B. Property Rights. Excluding Modicum’s pre-existing intellectual property and purchased content, and upon full payment, all Work Product shall be the sole property of Client, with Client having the right to obtain and hold in its own name all intellectual property rights in and to such Work Product. Client shall have no ownership rights until paid in full. In compliance with any confidentiality obligations to Client, Modicum shall have the right to identify Client as a client and use all or part of the Work Product for promotional purposes.

C. License. To the extent, if any, that Modicum retains any right, title, or interest in or to any Work Product, Modicum hereby grants to Client a perpetual, irrevocable, fully paid-up, royalty-free, transferable, sublicensable, exclusive, worldwide right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify, make, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Client) all or any portion of such Work Product, in any form or media (now known or later developed). Modicum further waives any “moral” rights or other rights with respect to attribution of authorship or integrity of such Work Product Modicum may have under any applicable law.

D. Third-Party Materials. Modicum will not incorporate any proprietary information owned by any third party or anything subject to an open source license into any Work Product without Client’s express prior written consent and, in any case, with proper license for the contracted use of the Work Product.

3. Confidential information

A. “Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would reasonably be considered confidential or proprietary and excludes any information that (i) is now or hereafter becomes generally known or available to the public, through no act or omission on the part of the recipient; (ii) was known by the recipient prior to receiving such information from the discloser and without restriction as to use or disclosure, (iii) is rightfully acquired by the recipient from a third- party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving party without use or reference of the disclosing party’s Confidential Information.

B. Acceptable Use. The receiving party shall use the disclosing party’s Confidential Information solely for the purpose of exercising its rights and performing its obligations hereunder and shall use reasonable care to safeguard the disclosing party’s Confidential Information. The receiving party shall only disclose Confidential Information to its employees, contractors, and agents (“Representatives”) who have a need to know for the purposes of this Agreement and are bound by substantially similar confidentiality obligations. Each party shall be responsible for any breach of confidentiality by its Representatives. Promptly upon the disclosing party’s request, the receiving party shall either return or certify the destruction of all of the disclosing party’s Confidential Information. Neither party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such party’s backup, security and/or disaster recovery procedures, provided that such archived copy will eventually be erased or destroyed in the ordinary course of such party’s data processing procedures and will remain fully subject to the obligations of confidentiality stated herein.

C. Compelled Disclosure. Nothing herein shall prevent a party from disclosing this Agreement or any of the other’s Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement, or similar requirement or investigation, provided, prior to any such disclosure, the receiving party shall use commercially reasonable efforts to promptly notify the disclosing party in writing of such requirement to disclose and cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

D. Personal Identifying Information. In the course of providing the Services, Modicum generally does not require, and therefore, Modicum generally does not request, any personally identifiable information of Client’s employees or customers that may have been collected by Client in the course of Client’s provision of products and services to such members.

4. Payment

In consideration of the Services to be rendered pursuant to the SOW, Modicum shall be paid as set forth in the applicable SOW. Unless otherwise agreed in the SOW, Modicum may invoice the Client for a 50% deposit upon execution of the SOW and monthly thereafter for any additional percentage of work completed, including any approved additional scope to the related SOW. Payment for Services shall be due as stated on each invoice. Client shall make full payment to Modicum regardless of whether Client uses the Work Product or the results of its use. A 1.5% monthly charge may be added to past due balances.

5. Term and termination

This Agreement shall commence with the execution of an SOW or use of Modicum Services and continue until terminated. Either party may terminate this Agreement and/or the applicable SOW, with or without cause, by written notice to the other party. Termination of this Agreement shall also be deemed to be a termination of all SOW then in effect, unless the parties agree otherwise in writing. In the event of the termination of an SOW, the Agreement and all other SOWs shall remain in effect. Upon termination of this Agreement and/or SOW, Modicum shall immediately cease performing the applicable Services and Client shall pay Modicum the compensation due through the date of termination. Sections 1 through 9 of this Agreement shall survive termination in their entirety. Client termination of the SOW is subject to a cancellation fee equal to 5% of the SOW total.

6. Business relationships

A. No Agency. This Agreement does not create any partnership, agency, or business relationship between the parties.

B. No Solicitation. Each party acknowledges that relationships with their respective employees, customers, and vendors are valuable assets and agrees that during the term of this Agreement and for one (1) year thereafter, neither party shall divert or attempt to divert any business or hire an employee, through solicitation or otherwise, without the prior written consent of the other.

7. Warranties

Each party represents and warrants that: (a) It has full power and authority to enter into this Agreement and the SOW and to perform its obligation hereunder and thereunder; (b) Entering into this Agreement does not violate any other agreement by which it is bound; (c) the Services and Work Product do not and shall not infringe, misappropriate, or violate the rights of any third party; and (d) the Services and Work Product shall be performed in accordance with all applicable laws, rules, and regulations of the United States.

The Client represents and warrants that it has full legal license to any materials furnished by Client for the provision of Services or a Work Product. Modicum represents and warrants that the Services and Work Product shall be performed in a timely and professional manner consistent with industry standards. Modicum makes no other representations of any kind, and disclaims all other representations and warranties, whether oral or written, express or implied, or arising from a course of performance or dealing or trade usage, including without limitation any warranty of merchantability or fitness for a particular purpose with respect to the deliverables or any other matter contemplated by this Agreement or any SOW.

8. Indemnification

A. Indemnity. Each party will indemnify and hold harmless the other party, including each of their officers, directors, shareholders, employees, representatives, agents, successors and assigns, from all claims, losses, liabilities, damages, settlements, expenses, and costs (including, without limitation, reasonable attorneys’ fees and court costs) (“Claims”) arising from a material breach by the indemnifying party of any of its its representations, warranties, covenants or agreements under this Agreement or the SOW.

B. General. Each party will promptly notify the other party of a Claim and cooperate in defending the Claim. Each party has full control and authority over its own defense, except that: (i) any settlement requiring a party to admit liability requires prior written consent from the affected party that will not be unreasonably withheld, (ii) either party may join in the defense with its own counsel at its own expense.

9. Limitation of liability

NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE, FRAUD, ITS NONDISCLOSURE OR INDEMNIFICATION OBLIGATIONS, OR MATTERS FOR WHICH LIABILITY CAN NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

TO THE EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY LEGAL THEORY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE FEES PAID AND PAYABLE TO MODICUM BY CLIENT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE SUBJECT CLAIM.

10. Miscellaneous

A. Governing Law. The parties agree that this Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to its choice of law rules and as if wholly performed within the State of New York.

B. Insurance. Modicum shall maintain all appropriate insurance coverage that is reasonable and customary in its industry, but no less than the amounts required by applicable federal and state laws.

C. Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings with respect to such subject matter. This Agreement may only be modified by a writing signed in advance by the Client and Modicum.

D. No Waiver. The failure of Modicum or Client at any time to require performance of any provision of this Agreement or to exercise any right provided for herein shall not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver of any breach of any provision of this Agreement or of any right provided for herein shall be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.

E. Severability. The parties agree that this Agreement is severable and that in the event any provision of this Agreement is held to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions will not be affected or impaired.

F. Successors and Assigns. This Agreement will bind and inure to the benefit of parties and their respective successors and assigns. Neither party may assign this Agreement without the prior written consent of the other party; provided, however, that either party may without the other party’s consent assign this Agreement to a successor of the assigning party’s business by reason of merger, sale of all or substantially all of its assets or other form of acquisition. Any purported assignment without the required consent will be void.