TERMS AND CONDITIONS OF SALE/MASTER SERVICES AGREEMENT

Unless otherwise agreed to in writing by the Parties (defined herein) in the form of a signed master services agreement, this Master Services Agreement ("MSA") is made upon receipt of an Order (defined herein) based upon MarketWise's proposal ("Acceptance"), by and between MarketWise Advising, LLC, doing business as MarketWise (“MarketWise”), with its offices at 8256 Foxberry Drive, Savage, Minnesota 55378 and MarketWise's customer ("Client"). Together, MarketWise and Client may be referred to as "Parties" and individually as a "Party" to this MSA.

WHEREAS, MarketWise is a provider of strategic commercialization services, including but not limited to market research, strategic planning and commercial execution assistance;

WHEREAS, MarketWise delivers its services in the form of consulting engagements, workshops, educational presentations and fractional roles; 

WHEREAS, Client desires that MarketWise perform certain services and MarketWise desires to perform such services, subject to the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:

1. Definitions.

A. "Order" - as used herein, means any written confirmation provided by an authorized official of the Client, for the purpose of purchasing Services from MarketWise, as outlined in the Proposal (defined herein).

B. "Effective Date" - As used herein, refers to the point at which the Client has placed an Order with MarketWise.

C. "Services" - as used herein, means the work provided by MarketWise and/or its subcontractors, as described in the Proposal.

D. "Services Completion" - as used herein, means the point at which individual Services have been delivered, as reasonably determined and documented by MarketWise in good faith.

2. Prices and Payments.

A. Unless otherwise agreed to in writing, acceptable payment methods include check, wire transfer, or ACH, paid in U.S. dollars, without right of setoff. No discounts are authorized, unless otherwise agreed to in writing by MarketWise. Payment by Client is due thirty (30) days from date of invoice. All overdue balances are subject to late fees of 1.5% per month, compounded monthly. 

B. Except as otherwise instructed in writing, checks shall be delivered to the MarketWise office address listed herein.  

3. Sale of Goods and Services. 

A. To the extent Client purchases Services from MarketWise, the details of such Services are specifically set forth in the proposal presented by MarketWise ("Proposal"), which is hereby incorporated into this MSA and made a part hereof once Acceptance by Client occurs. Specific terms, such as pricing, quantities, payment milestones, and the level of Service(s) being provided, shall be as set forth in the Proposal. Any subsequent transactions or Service offerings will be added to the MSA by way of a subsequent Proposal or change order, as agreed to by the Parties in writing. 

B. MarketWise agrees to use commercially reasonable efforts to perform the Services during the timeframe outlined within the Proposal, but it reserves the right to extend that timeframe if necessary to complete the work. Services are deemed accepted upon Services Completion.

4. Term and Termination. 

A. The term of this MSA will begin on the Effective Date and will continue so long as there is an active Proposal. Notwithstanding the forgoing, upon an "Event of Default" (as defined in Section 4.B) that continues for thirty (30) days following the delivery of written notice to the defaulting Party without the defaulting Party curing such default or commencing to cure such default and continuing such efforts to cure, the non-defaulting Party shall have the right to immediately terminate this MSA and exercise any other rights such Party may have with regards to the subject matter hereof. Upon termination of this MSA, sums due for any partially completed work will be paid per Section 2.A of this MSA, on a pro-rata basis, as reasonably deemed appropriate by MarketWise in good faith.

B. For purposes hereof, the following events shall constitute "Events of Default" hereunder: (a) a material breach by either Party of any of its obligations under this MSA; (b) either Party’s insolvency or dissolution, either Party's making an assignment for the benefit of creditors, or either Party's ceasing to do business as a going concern; and (c) the institution by or against either Party of any bankruptcy, reorganization, receivership, conservatorship or insolvency proceedings. 

C. The Parties acknowledge and agree that the remedies at law for a material breach of this MSA may be inadequate and that the non-breaching Party shall be entitled to injunctive relief for any material breach of this MSA by the breaching Party. Nothing herein shall be construed as limiting either Party's right to any other remedies at law, including the recovery of damages for breach of this MSA.

5. Intellectual Property. 

A. "Intellectual Property" shall mean all intellectual property and industrial property rights and assets, however arising, recognized under the laws of any jurisdiction throughout the world, whether registered or unregistered, including without limitation any and all patents, including design patents and utility patents, all reissues, divisions, continuations, continuations-in-part and extensions thereof, improvements thereto and, in each case, as applicable, applications therefor, patent applications and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models), statutory invention registration, utility models, trademark of any type, whether registered or unregistered, including service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or other indications of origin slogans, certification marks, assumed names, and the registrations and applications therefor, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral and neighboring rights and all registrations, applications for registration and renewals of such copyrights; inventions, copyright registrations, copyright applications, works of authorship, mask works, moral rights and design rights, applications and renewals for any of the foregoing together with the goodwill connected with the use of and symbolized by and all registrations, all rights in Internet domain name registrations, any confidential and proprietary information, including, but not limited to, trade secrets, discoveries, business and technical information and know-how, databases, data collections and other confidential information and all rights therein, formulae, client lists, manufacturing information and data in whatever form, technical specifications and plans for products, procedures and processes, software and firmware, including data files, source code, object code, scripts, mark-up language, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation.

As may be required in this MSA, including the Proposal, MarketWise may use the trademarks and trade names of Client in connection with its provision of Services and/or other business uses and Client hereby licenses such trademarks and trade names to Client for such purposes.

6. Confidentiality. 

A. The Parties shall hold in confidence all data and information, including Intellectual Property, that is marked CONFIDENTIAL or PROPRIETARY if disclosed in documentary form, or which is so identified at the time of disclosure if disclosed in any other form. The following information shall not be protected by this paragraph: (i) information that is publicly available without breach of any obligation; (ii) information that is rightfully received from a third party without restriction; (iii) information that is independently developed by a Party; and (iv) information that is properly in the possession of a Party without restriction prior to disclosure. MarketWise may state in its marketing materials, including MarketWise’s website and sales and corporate presentation materials, that Client is a customer of MarketWise. Subject to the prior consent of Client and provided such consent will not to be unreasonably withheld or delayed, Client shall also serve as a reference for MarketWise, on a reasonably limited basis. Such a reference may, as mutually agreed upon, include activities such as confirming Client’s status as a customer, a published “success story”, a mutually agreed upon press release, or a favorable reference to an industry analyst or prospective customer of MarketWise.

7. Indemnification. 

A. Each Party shall indemnify, defend and hold harmless the other Party and its officers, directors, employees, agents, representatives, subsidiaries, parents, affiliates, vendors, independent contractors, successors and permitted assigns (collectively, "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this MSA and the cost of pursuing any insurance providers, incurred by the Indemnified Party or awarded against the Indemnified Party relating to, arising out of, or resulting from any claim of a third party arising out of or occurring in connection with the other Party’s gross negligence, willful misconduct, violation of any applicable law or regulation, or breach of this MSA.

B. The Party seeking indemnification (the "Indemnified Party") shall notify the party from which the Indemnified Party is seeking indemnification (the "Indemnifying Party") promptly after the Indemnified Party receives notice of a claim for which indemnification is sought under this MSA, provided, however, that no failure to so notify the Indemnifying Party shall relieve the Indemnifying Party of its obligations under this MSA, except to the extent that it can demonstrate damages directly attributable to such failure. The Indemnifying Party shall have authority to defend or settle the claim; provided however that the Indemnified Party, at its sole discretion and expense, shall have the right to participate in the defense and/or settlement of the claim and provided further, that the Indemnifying Party shall not settle any such claim imposing any liability or other obligation on the Indemnified Party without the Indemnified Party's prior written consent.

8. Limit of Liability.

THE LIABILITY OF MARKETWISE, WHETHER UNDER CLAIMS OF WARRANTY, NEGLIGENCE, INDEMNIFICATION OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF: 1) AGGREGATE SUMS BILLED TO CLIENT BY MARKETWISE IN THE PREVIOUS TWELVE (12) MONTHS; OR 2) MARKETWISE'S INSURANCE COVERAGE LIMITS, AS DESCRIBED IN ITS THEN CURRENT CERTIFICATE OF INSURANCE. MARKETWISE AND/OR ITS SUBCONTRACTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, REMOTE CONSEQUENTIAL OR PUNITIVE DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOST PROFITS, SAVINGS, OR REVENUES, HOWEVER ARISING FROM OR CAUSED, DIRECTLY OR INDIRECTLY, BY THE USE OF SERVICES BY CLIENT, OR BY THE PERFORMANCE OR FAILURE OF MARKETWISE TO PERFORM UNDER THIS MSA, OR BY ANY OTHER ACT OR OMISSION OF MARKETWISE, OR BY ANY OTHER CAUSE, EVEN IF MARKETWISE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

9. General Provisions. 

A. Entire Agreement. This MSA, including any documents attached hereto and incorporated by reference, supersedes any and all other prior agreements, understandings, negotiations, or communications, either oral or in writing, between the Parties or their representatives and constitutes the entire understanding of the Parties with respect to its subject matter. No form, invoice, bill of lading, shipping document, purchase order, receipt or other document provided by either Party shall operate to supersede, modify or amend any provisions of this MSA, even if either Party has initialed, signed or otherwise acknowledged such document, regardless of the timing of the execution or presentment in relation to the execution of this MSA, unless the document expressly states that it modifies or amends this MSA and is signed by authorized representatives of both Parties. This MSA may not be modified, altered, or waived, in whole or in part, except in a writing signed by the duly authorized representatives of the Parties hereto. In the event of any conflict between the terms of the addenda, schedule, exhibits, terms and conditions or schedules, if any, to this MSA, the terms of the conflicting provision in the addenda, schedule, exhibits, terms and conditions shall supersede the conflicting terms in this MSA. Wherever possible, the terms of the addenda, schedule, exhibits, terms and conditions or schedules, if any, to this MSA shall be read to be in addition to and not in conflict with, this MSA.

B. Notices. Written notices as required under this MSA shall be deemed to have been given or made on the next business day when sent via email (with delivery receipt), or by the use of overnight courier; or on the fifth business day after deposit, postage prepaid in the U.S. mail for certified or registered mail to the addresses of the Parties.

C. Effect of Waiver. The failure of either Party to insist on strict compliance with any of the terms, covenants or conditions of this MSA by the other Party will not be deemed a waiver of that term, covenant or condition; nor will any waiver or relinquishment of that right or power be for all or any other times.

D. Non-Solicitation. Each Party agrees during the term of this MSA and for a period of twelve (12) months thereafter, that it will not directly solicit for hire the employees of the other, without the written consent of the other Party. Employees hired in response to general employment solicitations advertised in the usual and customary manner by either Party shall be excluded from this provision.

E. Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this MSA shall be resolved through good-faith negotiations. Such negotiations shall begin immediately after one Party has delivered to the other Party a written request for negotiation. If after thirty (30) days the Parties are unable to resolve the dispute as described in this Section, the Parties agree to attempt in good faith to settle the dispute by mediation, which is to take place in Hennepin County or Ramsey County, Minnesota. Either Party shall initiate the mediation by requesting in writing. Within ten (10) calendar days of its receipt, the Parties hereto shall select a mutually agreeable mediator and confirm the availability of such mediator. Said mediation shall take place at a mutually agreeable location. In the event the Parties are unable to settle such dispute through mediation, either Party may submit the dispute for commercial arbitration in Hennepin County or Ramsey County, Minnesota before a single arbitrator with American Arbitration Association, with limited discovery and conduct arbitration proceedings based upon written submissions from the Parties and without any depositions or testimony. Judgment on an award rendered by the arbitrator may be entered in any court having competent jurisdiction. Notwithstanding the foregoing, either Party may apply to any court of competent jurisdiction in the State of Minnesota for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this provision. Each Party shall be responsible for its own mediation and arbitration costs.

F. Force Majeure. MarketWise is not liable for acts of God, acts of civil or military authority, fires or other casualty, labor disputes, strikes, pandemics, floods, war, earthquakes, delays in transportation, riots, fire, hurricane, typhoon, lightning, explosion, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, and acts of state or governmental action prohibiting or impeding any party from performing its respective obligations; inability beyond MarketWise's reasonable control to obtain necessary labor or materials; or any other commercial impracticability or cause beyond MarketWise's reasonable control. 

G. Taxes and Duties. Prices do not include sales, use, excise, value-added or other taxes or duties. All taxes and duties in effect or levied which are applicable to Client’s purchases shall be paid by Client, except income taxes that result from income to MarketWise.

H. Status of MarketWise. It is mutually agreed that MarketWise and its employees, subcontractors and/or agents, if applicable, are independent contractors and not employees, participants in a joint venture, partners, or agents of Client for any purpose whatsoever. MarketWise shall not make any representation, expressed or implied, that MarketWise is an employee, agent, or legal representative of Client, nor is MarketWise authorized to assume or incur any liability or obligation of any kind to any third party in the name of or on behalf of Client.

The fees described in the Proposal shall be the total payment for MarketWise’s work paid by Client and MarketWise acknowledges that neither it nor its employees are eligible for any benefits provided by Client to its employees, if any; and that Client has not promised any such benefits to MarketWise or its employees, including, without limitation, vacation pay, holiday pay, sick pay, retirement benefits, medical benefits, life insurance, equity or bonus awards, worker’s compensation, disability, unemployment benefits, or any federal, state, or other employee benefits not mentioned above.

MarketWise agrees that as an independent contractor, it is fully responsible for the payment of all taxes, including federal, state and local income taxes, self-employment taxes, Social Security taxes, unemployment taxes, workers’ compensation or other disability insurance and any similar obligations arising out of monies paid to MarketWise under this Agreement.