1. Applicability

 These terms of service (these “Terms”) are the only terms that govern the provision of services by Pinpoint Management (“Pinpoint”) to the client named on the applicable Order Form (“Client”). The order form executed by Pinpoint and Client (the “Order Form”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Form, these Terms shall govern, unless the Order Form expressly states that the terms and conditions of the Order Form shall control. These Terms prevail over any of Client’s general terms and conditions regardless whether or when Client has submitted its request for proposal, order, or such terms.

2.  Services

Pinpoint shall provide to Client the services indicated on the Order Form and described in greater detail at Rate Card (the “Services”) in accordance with these Terms.

3. Client’s Obligations

 Client shall cooperate with Pinpoint in all matters relating to the Services and, without limiting the foregoing, shall complete and uninterrupted attention during training or consulting sessions with Pinpoint. If Pinpoint’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Pinpoint shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

4.  Term and Termination.

4.1.   The term of this Agreement (the “Initial Term”) commences on the effective date set forth in the Order Form (the “Effective Date”) and continues thereafter for the initial term length corresponding to the Services selected by Client, unless terminated earlier pursuant to Section 4.2. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) month terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice of nonrenewal at least thirty (30) days before the end of the then-current term, or this Agreement is terminated earlier pursuant to Section 4.2. If the Term is renewed for any Renewal Terms, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal, subject to any change in the Services or the fees payable Customer as set forth in Section 6. If either Party provides timely notice of its intent not to renew this Agreement, then, unless otherwise sooner terminated in accordance with its terms, this Agreement shall terminate on the expiration of the then-current Term.

4.2. In addition to any remedies that may be provided under this Agreement, Pinpoint may terminate this Agreement with immediate effect upon written notice to Client if Client (a) fails to pay any amount when due under this Agreement; (b) breaches any term of this Agreement; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

5. Fees and Expenses; Payment Terms; Interest on Late Payments

5.1.  In consideration of the Services provided by Pinpoint and the rights granted to Client under this Agreement, Client shall pay the applicable fees established by Pinpoint and provided to Client in writing, and which Pinpoint may modify from time to time pursuant to Section 6. For convenience, the fees applicable as of the Effective Date may be set forth in the Order Form.

5.2.  Client authorizes Pinpoint to charge the credit card set forth on the Order Form (or any alternative credit card provided by Client) for all fees due pursuant to Section 5.1 for the Initial Term and any Renewal Term(s). Such charges shall be made in advance of Services for the applicable Term (for example, if the Initial Term is six months, Client will be billed in advance for the first six months, and monthly for each subsequent Renewal Term). Client shall ensure that the credit card information provided to Pinpoint is valid and up to date. If Client’s credit card is refused or if any payment is not received by Pinpoint when due, Pinpoint may (a) charge interest on any unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; (b) suspend performance for all Services until payment has been made in full; and/or (c) terminate this Agreement pursuant to Section 4.2.

5.3.  Except as set forth in Section 10.3(b), all payments made by Client pursuant to this Agreement are nonrefundable.

6.  Changes

Pinpoint may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services. Pinpoint may change the Services or the fees applicable to the Services at any time; provided, however, that any such changes will not apply unless Pinpoint has given Client written notice of such changes at least forty (40) days before the end of the then-current Term, in which case the price change or change in Services will be effective upon the start of the coming Renewal Term and thereafter.

7.  Taxes

 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder.

8. Intellectual Property

 All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Pinpoint in the course of performing the Services (collectively, the “Deliverables”) shall be owned by Pinpoint. Pinpoint hereby grants Client a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.

9.  Confidential Information

 All non-public, confidential or proprietary information of Pinpoint, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Pinpoint to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of Pinpoint. Confidential Information does not include information that is (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party. Client agrees to use the Confidential Information only to make use of the Services and Deliverables. Pinpoint shall be entitled to injunctive relief for any violation of this Section.

10. Limited Warranty

10.1.  Pinpoint represents and warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.

10.2. Pinpoint shall not be liable for a breach of the warranty set forth in Section 10.1 unless Client gives written notice of the defective Services, reasonably described, to Pinpoint within ten (10) days of the time when Client discovers or ought to have discovered that the Services were defective.

10.3. Subject to Section 10.2, Pinpoint shall, in its sole discretion, either (a) reperform such Services (or the defective part); or (b) credit or refund the price of such Services at the pro rata contract rate.

10.4.  THE REMEDIES SET FORTH IN SECTION 10.3 SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND PINPOINT’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.1.

11. Disclaimer of Warranties

EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10.1 ABOVE, PINPOINT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

WITHOUT LIMITING THE FOREGOING, CLIENT ACKNOWLEDGES AND AGREES THAT PINPOINT DOES NOT WARRANT OR GUARANTY ANY PARTICULAR RESULTS OF THE SERVICES. Client understands that the results of the Services depend on many factors, including without limitation Client’s participation, the applicable industry, and the current performance of Client’s business.

12. Limitation of Liability

12.1. IN NO EVENT SHALL PINPOINT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PINPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2. IN NO EVENT SHALL PINPOINT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PINPOINT PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.  Waiver

No waiver by Pinpoint of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Pinpoint. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14. Force Majeure.

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Client to make payments to Pinpoint hereunder), when and to the extent such failure or delay is caused by or results from acts beyond reasonable control of the impacted party (“Impacted Party”), including, without limitation, the following events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic or epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon written notice.

15. Assignment

Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Pinpoint. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.

16. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

17.  Governing Law.

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Utah.

18. Submission to Jurisdiction

 Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Utah in each case located in Salt Lake City, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

19.  Notices

 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Form or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

20.  Severability

 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

21. Survival

 Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, this Section 21 and the following provisions: Section 9 (Confidential Information), Section 17 (Governing Law), and Section 18 (Submission to Jurisdiction).

22. Amendment and Modification

 This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.