This Agreement (the “Agreement”) is made and entered into as of the effective date of the Statement of Work (the “Effective Date”) by and between Optimize Cybersecurity LLC, a Delaware corporation with offices at 7730 Laredo Drive Unit #311, Chanhassen, MN 55317 (“Optimize”) and the Client Company (“Customer”).

// Recitals:

Whereas, Optimize is in the business of providing certain information security and cybersecurity assessment and consulting services, and

Whereas, Customer would like to obtain such services from Optimize,

Now, therefore, in consideration of the premises and mutual covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1 // Services

1.1 Optimize agrees to provide the services set forth in each statement of work signed by Customer hereto as a schedule (the “Services”). Each statement of work shall (a) be signed by the parties and (b) be deemed to incorporate all of the terms and conditions set forth herein (“Statement of Work”). In the event of any conflict between the terms and conditions herein and those in any Statement of Work, the terms and conditions in the Statement of Work shall prevail.

1.2 Each Statement of Work shall, to the extent applicable, contain: (a) a description of the project and the services to be performed by Optimize; (b) a description of the tasks and/or expectations to be performed by Customer and any third party; (c) a description of the Deliverables, if any, to be produced by Optimize; (d) the schedule for completion of each deliverable and/or stage of the project; and (e) the fees to be paid to Optimize and a schedule for payment.

1.3 During the course of Optimize’s performance of services under any Statement of Work, Customer may request changes in the Services to be rendered.  Optimize shall incorporate any such changes, provided that the parties execute a change order, signed by both parties, setting forth the amended scope of work, any changes in scheduled completion dates for deliverables and/or services and any change in the applicable fees.

2 // Payment

2.1 Optimize shall invoice Customer for fees due pursuant to the payment schedule set forth in the applicable Statement of Work.  Payment of each invoice shall be due thirty (30) days after Customer receives such invoice. All amounts not paid when due under this Agreement will be subject to a late charge of the lesser of one and one-half percent (1.5%) per month or the highest late charge permitted by law on the unpaid balance until paid in full.

3 // Intellectual Property Rights

3.1 To the extent that any of the services rendered by Optimize under this Agreement result in Optimize’s creation of any works, including, but not limited to, textual, audio or visual works and source code (“Works”), Optimize will retain all right, title, and interest to them, including all modifications to or derivative works of the foregoing and all intellectual property and proprietary rights incorporated into or related to the foregoing.  Customer acknowledges that it may receive certain information (“Confidential Information”) from Optimize that is not publicly available and will hold in confidence and not use or disclose any Confidential information without prior written consent.

4 // Representations, Warranties, and Indemnification

4.1 Customer and Optimize each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement has been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provisions of law or the certificate of incorporation or by-laws of the party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon the party; and (e) it possesses all licenses and other governmental approvals necessary to perform its obligations under this Agreement.

4.2 Optimize represents and warrants that (a) all of the services to be performed hereunder will be rendered using sound, professional practices in a competent and professional manner by knowledgeable, trained and qualified professionals and (b) all Services and deliverables provided under this Agreement shall materially conform to the specifications set forth in the applicable Statement of Work.

4.3 Optimize’s limited warranties in this Section 4 shall not apply to any non-conformities which are the result of (i) customizations, enhancements or modifications not made by Optimize, (ii) use of the Deliverables with third party software, hardware or firmware not provided or authorized by Optimize, (iii) misuse or neglect of the Deliverables, or (iv) incorrect data, or data entry or output, as applicable, by Customer, a third party or third party software, hardware or firmware not provided or authorized by Optimize. No other warranties, express or implied, are made with respect to the Services supplied by Optimize hereunder, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, systems integration, title, satisfactory quality and non-infringement.

4.4 Customer agrees to indemnify and hold harmless Optimize, its affiliates, and their respective directors, officers, employees and agents from any claims, liabilities, costs, damages, fees and expenses, including reasonable attorney's fees.

5 // Confidential Information

5.1 “Confidential Information” as used herein means information identified by either party as “Confidential” and/or “Proprietary,” or information that, under the circumstances, ought reasonably be treated as confidential and/or proprietary. “Confidential Information” shall include, but not be limited to, technical information, market research, membership data, analyses, studies, developments, processes, present and/or future product information, pricing information, business plans or other documents, information and materials that contain or reflect such information.

5.2 Neither party shall disclose to a third party Confidential Information of the other party. The receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care, to maintain in confidence the Confidential Information of the disclosing party.  The foregoing obligations shall not apply to any Confidential Information that: (a) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (b) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (c) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information, as evidenced by the receiving party’s written records; (d) is provided  to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (e) is required to be disclosed by law, provided that the receiving party takes reasonable and lawful actions to avoid and/or minimize such disclosure and promptly notifies the disclosing party so that the disclosing party may take lawful actions to avoid and/or minimize such disclosure.

6 // Publicity

6.1 Neither Party will publicly release any information concerning this Agreement, or any part thereof, or make any public announcements except as may be required by law, to any third party, member of the public, press or official body, without the prior written consent of the other Party.

7 // Term and Termination

7.1 The term of this Agreement shall commence on the Effective Date set forth above and, unless sooner terminated pursuant to provisions herein, shall continue in perpetuity.

7.2 Notwithstanding any provisions to the contrary, this Agreement may be terminated in accordance with the following:

a.     by the non-breaching party upon the occurrence of a material breach of the other party’s obligations under this Agreement, which breach is not cured within thirty (30) days after receipt of written notice of breach from the non-breaching party;

b.     by either party, in the event that the other party ceases to function as a going concern, is adjudged a bankrupt or makes an assignment for the benefit of creditors, or bankruptcy, insolvency (including, without limitation, Chapter 11 bankruptcy proceedings), debt reorganization or arrangement, debt adjustment or receivership proceedings shall be instituted by or against such other party;

c.      or by either party upon forty-five (45) days written notice.

7.3 Notwithstanding the termination of this Agreement for any reason, neither party shall be relieved of any duty, obligation, debt or liability that arose or accrued prior to the termination of this Agreement.

7.4 The provisions of this Agreement that should by their nature survive termination of this Agreement shall survive such termination, including, but not limited to, Sections 2, 3, 4, 5, 7.3, 8 and 9.

8 // Relationship of Parties

8.1 In rendering the Services, Optimize shall be acting as an independent contractor and not as an employee or agent of Customer.  Optimize and its employees shall have no claims or rights to receive or participate in any employee benefit plans or arrangements of Customer.  As an independent contractor, Optimize shall have no authority, express or implied, to commit or obligate Customer in any manner whatsoever, except as specifically authorized from time to time in writing by an authorized representative of Customer, which authorization may be general or specific. Nothing contained in this Agreement shall be construed or applied to create a partnership or joint venture.  Optimize shall be responsible for the payment of all federal, state and local taxes payable with respect to all amounts paid to Optimize under this Agreement. Optimize agrees to indemnify and hold Customer harmless from the withholding or payment of any income, withholding, social security or other payroll or similar taxes or charges with respect to amounts paid to Customer pursuant to this Agreement.

8.2 Optimize shall maintain offices separate from those of Customer and, unless specified otherwise in a Statement of Work, will bear all expenses and obligations incurred in connection with the services Optimize provides, including, but not limited to, expenses for mail, travel, entertainment and telephone.

9 // Miscellaneous

9.1 This Agreement, including any Schedules attached hereto, constitutes the entire agreement between the parties hereto and shall supersede any and all prior written or oral promises or representations.  No amendments to, or modifications of, this Agreement shall be binding upon either party unless in writing signed by both parties.

9.2 Neither the waiver by either party hereto of any breach of or default under any of the provisions of this Agreement nor the failure to exercise any rights hereunder shall be construed as a waiver of any subsequent breach or default or as a waiver of any such rights or provisions hereunder.

9.3 If any part of this Agreement shall be held to be invalid or unenforceable under applicable law, such part shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting there remaining parts of this Agreement.

9.4 All notices, consents and other communications hereunder shall be made in writing, by mail or courier, to the addressees designated below:

Optimize Cybersecurity
ATTN: Matthew Quammen

7730 Laredo Drive #311
Chanhassen, MN 55317

9.5 This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws principles.  Customer and Optimize agree that all actions arising under or in respect of this Agreement or any other document executed in connection herewith shall be litigated in a court of competent jurisdiction in Delaware.

9.6 Any prevention of or delay in either party’s performance hereunder due to labor disputes, acts of God, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond such party’s control shall excuse such party’s performance of its obligations hereunder for a period equal to the duration of any such prevention or delay.

9.7    This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Neither party may assign this Agreement or its rights or duties hereunder without the prior written consent of the other party, which consent shall not unreasonably be withheld.

9.8 This Agreement may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed an original, but all of which together shall constitute one and the same instrument.