Terms and Conditions

1. NATURE AND SCOPE OF WORK. Client desires to retain Esker as an independent contractor to provide professional services in connection with Client's installation of Esker Product(s) for which Esker is qualified to render to Client (the "Services"). In performing the Services hereunder, Esker shall at all times remain an independent contractor and shall not be considered to be an agent, employee, or representative of Client for any purposes. The nature and extent of the Services to be performed by Esker and the compensation to be paid to Esker is described in detailed earlier in the applicable SOW. If Client requests professional services in addition to those described in the applicable SOW, a modified SOW, Quick Assist SOW, or Change Order describing such additional professional services, fees, performance milestones, and any other material matters with respect thereto it shall be executed in writing by both parties and amended hereto. The Services will be completed to the satisfaction of Client; however, the actual details of the Services shall be under Esker's control and Esker shall determine jointly with Client the manner and means by which the Services will be performed. The Services shall be performed in accordance with the applicable SOW and in accordance with such requirements or restrictions as may be lawfully imposed by governmental authorities.

2. FEES AND EXPENSES. In consideration of the Services to be performed by Esker, Client shall pay Esker the fees specified in the applicable SOW. Esker shall submit invoices to Client on a monthly basis for the Services performed pursuant to the applicable SOW. Each invoice shall identify the applicable SOW and the fixed fee billing milestone and/or the number of hours or days, whichever is applicable, worked and the applicable rate. Payment terms are Net Twenty (20) days from date of Esker's invoice. Client shall make all payments to Esker in U.S. dollars either by wire transfer, check drawn on a U.S. bank account, or a credit card acceptable by Esker. Client shall pay all bank fees that are charged by its bank that are associated with the payment of Esker's invoice. Any shipping charges, duties, insurance and taxes are the responsibility of Client. If the Client disputes an invoice amount, Client shall promptly notify Esker and immediately remit the uncontested amount. Client and Esker agree to work in good faith to promptly resolve any disputed invoice amounts.

3. CONFIDENTIALITY. "Confidential Information" means any information relating to or disclosed in the course of the applicable SOW, which is or should be reasonably understood to be confidential to the disclosing party. Confidential Information shall not include information (a) already lawfully known to the receiving party without obligation of confidentiality, (b) disclosed in published materials without fault of the receiving party, (c) generally known to the public without fault of the receiving party, (d) lawfully obtained from a third party not under any obligation to maintain the confidentiality of either party, (e) required by applicable law or regulations to be released, or (f) independently developed by receiving party, provided the person or persons developing the same have not had access to relevant proprietary information of disclosing party. Each party agrees to maintain the Confidential Information of the other party in confidence to the same extent that it protects its own similar Confidential Information and to use such information only as permitted under the applicable SOW. Each party agrees to take all reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information only to its employees and agents (a) with a need to know in order to fulfill its respective party's obligations hereunder, and (b) who are a party to a written agreement with either Client or Esker which incorporates similar or stricter terms and conditions of confidentiality as those herein. Each party acknowledges that unauthorized disclosure or use of the Confidential Information by the receiving party may cause irreparable harm and damage to the business of the disclosing party which may be difficult to ascertain and which may not be adequately compensated by damages at law. Therefore, each party agrees that, in the event of a breach or threatened breach of the terms of the applicable SOW, disclosing party is entitled to seek an injunction prohibiting any unauthorized disclosure or use of its Confidential Information. Any such injunctive relief shall be in addition to, and not in lieu of, any other legal remedies that may be available and any other appropriate monetary damages.

4. WARRANTY DISCLAIMER. EXCEPT AS SET FORTH ELSEWHERE IN THE APPLICABLE SOW, ESKER MAKES NO OTHER REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND WHETHER WRITTEN OR ORAL, EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE SERVICES, ESKER PRODUCT(S), AND THIRD PARTY PRODUCTS PROVIDED UNDER THE APPLICABLE SOW AND EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, ANY WARRANTY OF ERROR FREE PERFORMANCE OR ANY WARRANTY OF THIRD PARTY PRODUCTS OR FUNCTIONALITY OF CLIENT'S HARDWARE, SOFTWARE, FIRMWARE, OR COMPUTER SYSTEMS. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES, SO TO THE EXTENT NOT ALLOWED BY LAW SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO THE PARTIES.

5. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, CONTRACT, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, AND STRICT LIABILITY) OR OTHERWISE, SHALL EITHER PARTY HERETO OR ITS RESPECTIVE SUPPLIERS BE LIABLE OR RESPONSIBLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, ANTICIPATED PROFITS, ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF USE OF EQUIPMENT, LOSS OF DATA WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF THE AMOUNT PAID OR PAYABLE BY CLIENT TO ESKER UNDER THE APPLICABLE SOW EVEN IF PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. PARTIES HEREBY RELEASE EACH OTHER AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE AFOREMENTIONED LIMITATION. SOME JURISDICTIONS DO NOT ALLOW FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO, TO THE EXTENT NOT ALLOWED BY LAW, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO THE PARTIES.

6. OWNERSHIP. Unless otherwise specified in the applicable SOW, any expression or result of Esker’s Professional Services or the work, findings, analyses, conclusions, opinions, recommendations, ideas, concepts, approaches, methodologies, techniques, know-how, designs, programs, tools, applications, interfaces, enhancements, skills, expressions, processes, software, and other technical information (collectively “Work Product”) created by Esker in the course of performing the Services hereunder are the property of Esker and are licensed to Client, without further license fees, provided, however, to the extent such Work Product provided to Client by Esker contains Client’s Confidential Information, Client shall retain title to such Confidential Information. Client shall have no right to sublicense, transfer, assign, convey or permit any third party to use or copy any Work Product.

7. TERM & TERMINATION. Either party shall have the right to terminate an applicable SOW with or without cause with a minimum of thirty (30) business day’s advance written notice to the other party. In the event of such termination, neither party shall have any further liability to the other except Client shall pay Esker for the Services provided by Esker up to and including the date of termination at the rate set forth in the applicable SOW(s) plus any incurred expenses. Furthermore, upon the termination of an applicable SOW, Esker shall deliver to Client all equipment, tools, identification cards, security passes, and other materials owned by Client and furnished to Esker to facilitate the performance of the Services.

8. MISCELLANEOUS. The applicable SOW, including any exhibits attached to the Order Form, states the entire agreement between the parties on this subject and supersedes all prior negotiations, understandings, and agreements between the parties concerning the subject matter. The applicable SOW specifically supersedes the terms and conditions of any "click-through" agreement forms such as those which may accompany the Esker Product(s) or which may be displayed upon installation of the Esker Product(s). No amendment or modification of the applicable SOW shall be made except by a writing signed by both parties. All Services supplied pursuant to the applicable SOW will be provided pursuant to the terms and conditions hereof, which will supersede and override any and all preprinted terms and conditions on any documents provided by Client in connection with its obligations hereunder, including but not limited to, sales order acknowledgement forms, statement of work forms, packing slips, bills of lading, purchase orders, and invoices. The applicable SOW shall be deemed to have been entered into and shall be construed, governed, and interpreted in accordance with the laws of the State of Wisconsin, without giving effect to principles of conflict of law. No provision or ambiguity shall be strictly construed against any party by virtue of having drafted or prepared the same. If any provision of the applicable SOW shall be held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, then such provision shall be enforced to the fullest extent permitted by applicable law, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The failure of either party to exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of the applicable SOW. Neither party may assign or otherwise transfer its rights or delegate its obligations under the applicable SOW without the other party's prior written consent. No agency, partnership, joint venture, or employment is created as a result of the applicable SOW and neither party has any authority of any kind to bind the other in any respect whatsoever or to take any action which shall be binding on the other, except as provided herein or authorized in writing by the party to be bound. Sections 3-8; along with any other Sections that by their nature survive expiration or termination of the applicable SOW, will survive the expiration or termination of the applicable SOW.