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Professional Services Agreement

NEOSTELLA LLC

PROFESSIONAL SERVICES AGREEMENT

Effective Date: 02/15/2024

This agreement (“Agreement”) is between Neostella LLC, a Wisconsin limited liability company located at 325 E. Chicago Street, 5th Floor, Milwaukee, WI 53202 (“Neostella”) and Test Company, a Wisconsin  C Corporation  located at 233 North Water Street, Milwaukee, WI 53202 (“Customer”).

  1. Schedules. “Schedules” are part of this Agreement and may be attached or signed and added later. Each Schedule only applies to Services referenced and does not affect any other Schedule.
  2. TOSs. Terms of Service (“TOSs”) are part of this Agreement and may be attached or signed and added later. Each TOS only applies to Services referenced and does not affect any other TOS.
  3. SOWs. Neostella will provide the services (“Services”) to Customer listed in one or more statements of work or quotes (“SOW”). Each SOW is incorporated into this Agreement. If a conflict exists between an SOW, a TOS, a Schedule, or this Agreement, the terms of such document will control in the order listed.
  4. Affiliates and Subcontractors. Neostella may use (i) its subsidiaries and affiliates (“Affiliates”) or (ii) third parties (“Subcontractors”) to perform Services. Such Affiliates or Subcontractors will follow this Agreement and will have all rights of Neostella under this Agreement. Neostella is responsible for all Services its Affiliates and Subcontractors perform. Neostella’s current list of Affiliates and Subcontractors is at https://www.neostella.com/legal-affiliates/, and Customer may sign-up to be notified of any updates.
  5. Customer Responsibilities. Customer will promptly give Neostella all access, information, approvals, and documentation reasonably necessary to perform Services. To clarify, Customer remains responsible for (i) its business, systems, and personnel; and (ii) securing all rights, licenses, and consents (or providing all notices) needed for Neostella to access any provided software, services, cloud services, code, data, and other materials without violating any third-party’s intellectual property or proprietary rights or applicable law.
  6. Term. This Agreement will start on the Effective Date and go until terminated as allowed by this Agreement (“Term”).
  7. Termination- For Convenience. Neostella may terminate this Agreement for convenience with five (5) days’ written notice.
  8. Termination- For Cause. Either party may terminate this Agreement upon written notice to the other party (“Defaulting Party”), if Defaulting Party materially breaches this Agreement and (i) Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice; or (ii) such breach cannot be cured. If Customer terminates this Agreement per this provision where Neostella is the Defaulting Party, Neostella will refund to Customer all unused prepaid fees.
  9. Termination- Breach of Customer Responsibilities. Neostella may immediately terminate this Agreement upon written notice if Neostella cannot complete any Services due to Customer’s acts or omissions. Upon such termination only, (i) any SOW will be deemed completed; and (ii) Customer will pay Neostella for all Services performed (as set forth below) along with any reimbursable expenses. If Services are provided on a “Time and Materials” basis, Customer will pay for Services performed per the applicable SOW. If Services are provided for a “Fixed Price”, Customer will pay for Services performed at the hourly bill rate in the SOW (or $200/hr if no rate is listed).
  10. Termination- Effects. When this Agreement ends, Neostella will (i) give Customer all documents, work product, and other materials Neostella prepared while performing Services (if Customer has fully paid Neostella for the same); and (ii) remove any Neostella-owned property, equipment, or materials from Customer’s locations.
  11. Fees- Generally. For Neostella’s performance of Services and Customer’s rights under this Agreement, Customer will pay fees per the applicable SOW (“Fees”).
  12. Fees- Changes. Neostella may, upon thirty (30) days’ written notice, annually change Fees for Services provided on a Time and Materials basis.
  13. Expenses. Customer will reimburse Neostella for all pre-approved expenses incurred while performing Services.
  14. Invoicing. Neostella will invoice Customer per the applicable SOW. Each invoice will include reimbursable expenses incurred.
  15. Payment Terms. Invoices are due with terms of NET 30. All payments will be in US dollars and made by ACH or wire transfer. If any good faith dispute arises as to part of an invoice, the undisputed part will be paid. Invoices over thirty (30) days past due (sixty (60) days after invoice date) will be in default and work will stop until the invoice is fully paid. Any such work stoppage will not relieve Customer of any obligations under this Agreement. If Customer has to pay an initial deposit at the start of an SOW, Neostella may refuse to start performing Services under such SOW until Customer pays such initial deposit.
  16. Taxes. Customer is responsible for all applicable taxes on any amounts Customer pays per this Agreement except for any taxes on Neostella’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
  17. Confidential Information- Definition. “Confidential Information” means any non-public information one party (“Discloser”) shares with the other party (“Recipient”), except for any information that (i) is or becomes public (other than due to Recipient’s breach of this Agreement); (ii) Recipient gets from a third party allowed to publicly share such information; (iii) Recipient had before Discloser shared it with Recipient; or (iv) Recipient must share under applicable law (in which case Recipient will tell Discloser of such requirement).
  18. Confidential Information- Use. Recipient will only use Confidential Information to perform its obligations under this Agreement. Recipient will not share Confidential Information with any third party and will protect Confidential Information with the greater of (i) a commercially reasonable manner, or (ii) the same manner as Recipient protects its own Confidential Information.
  19. Confidential Information- Exception. Despite the prior section (and despite any prior NDA signed between Neostella and Customer), Neostella may, without prior consent, disclose: (i) Confidential Information to any personnel, Affiliates, and Subcontractors as needed per this Agreement, if such parties protect Confidential Information per terms materially similar to those in this Agreement; and (ii) Customer’s invoices to Neostella’s referral sources (if applicable).
  20. Confidential Information- Return. If this Agreement ends, Recipient will return or destroy all Confidential Information but may keep copies of Confidential Information per Recipient’s data retention policy. However, Recipient’s obligations regarding Confidential Information will survive for three (3) years after this Agreement (except that any clearly noted trade secrets will remain confidential as long as they are a trade secret under applicable law).
  21. Representations and Warranties- Neostella. Neostella warrants that it will perform Services in a professional and workmanlike manner based on commercially reasonable industry standards. Neostella’s only liability, and Customer’s only remedy, for breach of this warranty will be re-performing the affected Services if Customer notifies Neostella in writing of any breach promptly after Neostella performs such Services.
  22. Disclaimer. Except for any representation or warranty in this Agreement, each party disclaims all other representations and warranties. This Agreement excludes any warranty of merchantability.
  23. Indemnification- Generally. Each party (“Indemnifying Party”) will indemnify or defend the other party and its affiliates, agents, assigns, directors, employees, officers, and successors (“Indemnified Party”) against all actions, awards, claims, costs, damages, deficiencies, expenses, fines, interest, judgments, liabilities, losses, penalties, reasonable legal fees, or settlements Indemnified Party incurs (collectively, “Losses”), relating to any third-party claim arising out of or connected to Indemnifying Party’s (i) intentional misconduct, recklessness, or fraudulent acts or omissions; or (ii) violations of applicable law.
  24. Indemnification- Neostella. Neostella will indemnify Indemnified Party against any and all Losses relating to any third-party claim due to Neostella’s disclosure (including breach) of Customer’s data or sensitive information.
  25. Indemnification- Procedure. Indemnified Party must promptly tell Indemnifying Party in writing of any claim for which it seeks indemnification or defense, and give the requisite information, reasonable assistance, and authority for Indemnifying Party to control the defense. If Indemnified Party fails to give prompt notice, Indemnifying Party is not relieved of its obligations to indemnify Indemnified Party, except (and only to the extent) Indemnifying Party was actually prejudiced by such delay. Indemnifying Party will not settle any claim that finds fault with, or requires specific performance of, Indemnified Party without Indemnified Party’s prior written consent (which will not be unreasonably withheld or delayed). Indemnified Party may choose its own counsel (at it sole cost) to help defend any such claim.
  26. Other Damages. Neostella is not liable to Customer for any (i) loss of use, revenue, profit, or (except as otherwise noted in this Agreement) data, or (ii) consequential, exemplary, incidental, indirect, special, or punitive damages, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable or whether Neostella was told of the chance of such damages.
  27. Limit of Liability. Neostella’s maximum cumulative liability for all damages under this Agreement will not exceed the lesser of (i) one times (1.0x) the amount paid under the SOW under which the claim arose in the prior six (6) months; or (ii) one million dollars ($1,000,000). However, Neostella’s maximum cumulative liability for breaching the IP Warranty defined in a Schedule (if any) will be capped at one million dollars ($1,000,000).
  28. Insurance. Each party will carry insurance with a reputable carrier during the Term in amounts that are both industry standard and necessary to cover reasonably anticipated claims under this Agreement, and will show proof of such insurance if asked.
  29. Non-Exclusivity. Subject to the confidentiality obligations above, Neostella may provide similar services to other customers.
  30. Non-Solicitation of Employees. During each SOW and for one (1) year after, neither party (“Soliciting Party”) will directly (or indirectly) ask or persuade any employee of the other party (“Non-Soliciting Party”) who has helped provide Services per such SOW to leave Non-Soliciting Party’s employment or become employed by Soliciting Party. However, either party may hire any person (i) who contacts Soliciting Party without Soliciting Party’s direct (or indirect) encouragement; (ii) in response to Soliciting Party’s general ads in public media; or (iii) due to efforts of recruiters who contact such person without Soliciting Party’s knowledge or encouragement.
  31. No Publicity. Neither party will, without prior written consent, (i) issue any announcement, statement, press release, or other public material relating to this Agreement; or (ii) use the other party’s brand names, logos, service marks, symbols, trademarks, or trade names.
  32. No Publicity- Exception. Notwithstanding anything else in this Agreement, Neostella may (i) include Customer’s name or brand features (including without limit its logo) in a public list of Neostella’s customers; and (ii) verbally reference Customer as Neostella’s customer.
  33. Amendment. An amendment to this Agreement is effective only if written and signed by each party.
  34. Anti-Bribery. This Agreement is the result of arms-length negotiations. Neither party has entered into this Agreement with a corrupt motive to obtain or retain business or to secure an unfair business advantage. Each party will comply with applicable anti-corruption laws.
  35. Governing Law. Wisconsin law governs this Agreement and all related claims, without regard to choice-of-law rules.
  36. Forum. Any legal proceeding related to this Agreement will only be filed in state or federal courts in Milwaukee, Wisconsin, and each party agrees that such forum is convenient. Service of process, summons, notice or other document by mail to such party’s address listed in this Agreement (or as updated per this Agreement) will be effective service of process for any proceeding brought in such forum.
  37. Legal Fees. The prevailing party in any action or proceeding arising under this Agreement will be promptly reimbursed by the other party for its related legal fees incurred.
  38. Assignment. Neither party may assign this Agreement without the other party’s reasonable consent except in the case of a merger, sale of substantially all stock or assets, or similar transaction. Any assignment that violates this Section is void.
  39. Construction. No unfavorable contract construction principle will be used against a party that helped draft this Agreement.
  40. Entire Agreement. This Agreement and any other documents incorporated by reference is the parties’ entire agreement for the subject matter.
  41. Equitable Relief. If a party breaches this Agreement’s confidentiality, IP Rights, or non-solicitation of employees provisions (if any), the non-breaching party may seek equitable relief without posting bond or proving actual damages.
  42. Force Majeure. No party will be liable to the other party for any failure or delay in performing under this Agreement (except payment obligations) caused by an event outside the party’s reasonable control (“Force Majeure Event”). Once the Force Majeure Event ends, the affected party will resume performance under this Agreement as soon as reasonably possible.
  43. Headings. This Agreement’s headings are for reference only.
  44. Independent Contractors. The parties are independent contractors, and neither party may bind the other party unless this Agreement allows.
  45. No Third-Party Beneficiaries. This Agreement does not grant any right, benefit, or remedy to any third party unless otherwise stated.
  46. Notice. All notices under this Agreement (“Notice”) will be in writing and addressed to the parties’ addresses noted in this Agreement (or to such other designated address). All Notices will be sent by email, mail (postage pre-paid), or personal delivery. A Notice compliant with this Section is effective only when received, unless otherwise noted in this Agreement.
  47. Severability. If any term of this Agreement is held to be unenforceable, the parties will negotiate in good faith to modify such term based on the parties’ original intent. Any such term will not affect the rest of the Agreement or the enforceability of such term in any other jurisdiction.
  48. Waiver. No failure to exercise any right under this Agreement will be considered a waiver of such right.