Portland Spreadworks Service Agreement

THIS AGREEMENT constitutes the general terms of business governing the business relationship between Portland Spreadworks, LLC d/b/a Excel Rain Man ("Portland Spreadworks"), and you, the "Client." If you agree completely to all of the Terms and Conditions contained herein, please sign the bottom of this form where indicated and return it by fax or mail, or scan it and attach it to an e-mail. These Terms and Conditions shall govern all matters between us. Portland Spreadworks and Client, intending to be legally bound, agree as follows:

1. SCOPE OF SERVICES. Portland Spreadworks will perform Excel spreadsheet services and will attempt to complete the following tasks on or before the Deadline for Solution you submitted in your Request. However, Portland Spreadworks cannot guarantee that any task will be complete on the Deadline for Solution date.

2. COMPENSATION. In consideration of its services, Client shall pay Portland Spreadworks the amount quoted for the project. Client will not be required to pay Portland Spreadworks unless Client confirms via e-mail that he or she accepts the amount quoted for the Scope of Services. You are obligated to compensate Portland Spreadworks immediately upon accepting, via e-mail, our quote for services.

3. LATE PAYMENT. If Client fails to pay the compensation amount when due as a result of a credit card payment being disputed, denied or otherwise invalid, Client shall pay interest at the rate of 1.5% per month (or such lesser rate as is the maximum rate allowable under applicable law) on the outstanding amount from the date of project acceptance until the payment date. If Portland Spreadworks undertakes collection or enforcement efforts, Client shall be liable for all costs thereof, including, without limitation, reasonable attorneys' fees. If Client is in arrears on any payment due, Portland Spreadworks may, on giving notice, apply any deposit thereto and withhold or cancel further performance of services or delivery of work product until all arrearages are brought current. Portland Spreadworks may suspend or terminate services for non-payment.

4. DISPUTED CHARGES. Written notice of any disputed charge must be received by Portland Spreadworks within twenty (20) days of the date of performance of the Scope of Services in question or Client shall forfeit its right to dispute such charge. This notice must include the confirmation number for the project in dispute, the item(s) and amount(s) disputed and a complete description of the basis for Client withholding payment. Upon resolution of the disputed charge, Portland Spreadworks shall issue a credit memo or Client shall pay the total amount outstanding referenced by the dispute. Portland Spreadworks reserves the right to assess and accrue late payment fees with respect to any disputed charge resolved in Portland Spreadworks' favor.

5. OWNERSHIP OF WORK. The ownership of all original source codes, formulae, design, templates, charts, artwork, and any other materials created in the process of performance of services or execution of tasks shall remain with Portland Spreadworks. Client is granted a perpetual license to use such work for its own purposes.

6. CONFIDENTIALITY OF INFORMATION. Portland Spreadworks acknowledges its responsibility, both during and after the term of its engagement hereunder, to exercise reasonable care to preserve the confidentiality of any proprietary or confidential information or data developed by Portland Spreadworks on behalf of Client in the course of its services hereunder, or disclosed by Client to Portland Spreadworks. Any obligation of Portland Spreadworks pursuant to the foregoing sentence shall not extend to:

• Information that is in the public domain at the time of disclosure to Portland Spreadworks or that enters the public domain through no fault of Portland Spreadworks
• Information that is in the possession of Portland Spreadworks or its employees at the time of disclosure to Portland Spreadworks;
• Information that Portland Spreadworks, or its employees, receives from a third party under no obligation of confidentiality to Client; and
• Information that is required to be disclosed pursuant to a court order or any applicable law.

Notwithstanding the above, the obligation on the part of Portland Spreadworks to maintain the confidentiality of any such information that it maintains in its possession or control shall cease three (3) years from the termination of this agreement.

7. INDEMNIFICATION. Client agrees to indemnify, defend and hold the Portland Spreadworks, its owners and its agents, officers, directors, lawyers, accountants, and employees, harmless from and against any and all losses, claims, demands, damages, liabilities, costs and expenses, including but not limited to reasonable attorneys' fees and the costs of any legal action arising from Client's use of the services. Such indemnification shall include, but not be limited to, claims for libel, slander, infringement of copyright, theft of misappropriation of intellectual property, or unauthorized use of any trademark, trade name, or service mark.

8. LIMITATION ON DAMAGES. Portland Spreadworks will endeavor to provide high quality services and a high quality product. However, Portland Spreadworks is not, and will not be responsible for any consequential or incidental damages resulting from Portland Spreadworks's services, including, but not limited to, any interruptions of service, or data loss (including lost transactions) regardless of whether such damages arose from Portland Spreadworks's negligence. Although Portland Spreadworks will endeavor to safeguard any data provided by the Client, the Client agrees that it is responsible for safeguarding its data, including maintaining a backup of all data provided to Portland Spreadworks.

9. TERMINATION OF AGREEMENT.

1. Material Breach. If either party is in material breach this Agreement, the non-breaching party may serve the breaching party with a written notice specifying the material breach and requesting the breaching party to cure it. If the breaching party fails to cure the material breach within ten days after its receipt of the notice, the non-breaching party may terminate this Agreement by sending a written notice of termination to the breaching party. The termination of this Agreement shall take effect immediately on the receipt of such notice of termination by the breaching party.
2. Termination Absent a Breach. Either party shall have the ability to unilaterally terminate the Agreement at any time and may exercise this right by sending the other party a written notice stating that it is terminating the Agreement.
3. Effect of Termination. On any termination of this Agreement pursuant to this paragraph, Portland Spreadworks may immediately cease providing services to the Client, and neither party shall have any further obligation to the other under the Agreement, provided that neither party shall be relieved from any obligations or liabilities arising under the Agreement prior to its termination.

10. WARRANTY. PORTLAND SPREADWORKS WARRANTS THAT SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE PERFORMED IN A PROFESSIONAL AND WORKMANLIKE MANNER.

EXCEPT AS EXPRESSLY SET FORTH IN WRITING, THE PRECEDING IS PORTLAND SPREADWORKS' ONLY WARRANTY CONCERNING THE SERVICES AND WORK PRODUCTS PROVIDED TO CLIENT UNDER THIS AGREEMENT, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. NO WARRANTIES ARE CREATED BY ANY COURSE OF DEALING BETWEEN THE PARTIES, COURSE OF PERFORMANCE, TRADE USAGE OR INDUSTRY CUSTOM.

11. LIMITATION OF LIABILITY. IN NO EVENT WILL PORTLAND SPREADWORKS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, DAMAGE TO, OR LOSS OF, ANY RECORDS OR PROPERTY OR ANY CLAIM OR DEMAND AGAINST CLIENT BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER, EVEN IF PORTLAND SPREADWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN OF SUCH POSSIBILITY.

PORTLAND SPREADWORKS LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR BY STATUTE OR OTHERWISE) TO CLIENT OR TO ANY THIRD PARTY CONCERNING THE PERFORMANCE OR NONPERFORMANCE BY PORTLAND SPREADWORKS, OR ANY MATTER RELATED TO THIS AGREEMENT OR ANY SERVICE REQUEST, FOR ANY AND ALL CLAIMS, SHALL NOT IN THE AGGREGATE EXCEED THE AMOUNT PAID BY CLIENT TO PORTLAND SPREADWORKS THEREUNDER WITH RESPECT TO THE PARTICULAR SERVICE, DELIVERABLE OR PRODUCT PROVIDED UNDER THIS AGREEMENT GIVING RISE TO THE LIABILITY. CLIENT'S EXCLUSIVE REMEDY FOR ANY CLAIM ARISING OUT OF THESE ARRANGEMENTS SHALL BE FOR PORTLAND SPREADWORKS, UPON RECEIPT OF WRITTEN NOTICE, TO USE COMMERCIALLY REASONABLE EFFORTS TO CURE THE BREACH AT ITS EXPENSE, AND FAILING THAT, THE RETURN OF FEES PAID BY CLIENT TO PORTLAND SPREADWORKS FOR THE PARTICULAR SERVICE, DELIVERABLE OR PRODUCT GIVING RISE TO THE LIABILITY.

12. FORCE MAJEURE. Portland Spreadworks may, without liability, delay performance or cancel this Agreement on account of force majeure or other circumstances beyond its control including, but not limited to, acts of God, war, riot, fire, earthquake, explosion, flood, lockout, injunction or telecommunications, electrical or source of supply failure, or the unavailability of services, personnel, products or materials.

13. ASSIGNMENT. This Agreement and the performance of any obligation hereunder, may not be assigned, delegated or otherwise transferred by Client without the prior written consent of Portland Spreadworks. Portland Spreadworks may, without Client's consent, assign this Agreement or the performance of any obligation hereunder, to an any third party of its choosing. The rights and obligations of Portland Spreadworks and Client under this Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of Portland Spreadworks and Client.

14. GENERAL PROVISIONS.

• Entire Agreement. This Agreement sets forth the entire understanding between the parties hereto and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. No other agreements, representations or warranties, whether oral or written, shall be deemed to bind the parties hereto with respect to the subject matter hereof. This Agreement may not be modified or amended except by the mutual written agreement of the parties. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against which it is sought to be enforced.
• Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity shall remain in full force and effect.
• Notice of Default. Neither party may commence a suit or legal action on account of a default by the other party in the performance of any of its obligations under this Agreement, unless the party seeking such suit or action shall first give the defaulting party written notice of the default, specifying the nature and circumstances thereof. Such notice shall be given at least thirty (30) days prior to the commencement of the suit or legal action, except for non-payment which shall only require ten (10) days notice.
• Waiver. The waiver by either party of a breach or default in any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
• Applicable Law. This Agreement and any disputes arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to (a) conflicts of law principles, or (b) any presumption or rule requiring construction or interpretation against the party drafting or causing this Agreement to be drafted.
• Attorneys' Fees. In the event of any legal, equitable or administrative action or proceeding brought by any party against another party under this Agreement, the prevailing party shall be entitled to recover the reasonable fees of its attorneys and any costs, including filing fees, incurred in such action or proceeding including costs of appeal, if any, in such amount that the court or administrative body having jurisdiction over the action may award.
• Notices. Unless otherwise specified herein, all notices, requests, demands, reports and other communications under this Agreement shall be in writing and delivered by overnight delivery service or first class prepaid mail, with return receipt requested, to the respective parties at the addresses set forth on the cover page of the Master Services Agreement, or such other location(s) as may be requested in writing by the parties from time to time.
• Captions. The captions of sections and subsections are for convenience only; they are not intended to indicate all of the subject matter of the text thereunder.
• Counterparts. This Agreement may be executed in counterparts, which, when taken together, shall constitute one and the same agreement.

15. NEWSLETTER/MAILING LIST. By providing your email address to Portland Spreadworks, you agree to be automatically subscribed to the Excel Rain Man email newsletter (the "Newsletter"). The Newsletter is published and distributed from time to time via email to provide updates about Excel Rain Main, its products and services, and tips and tricks for working with Excel. Portland Spreadworks does not sell or provide your contact information to third parties. You always have the option to unsubscribe from the Newsletter at any time by following the instructions contained in the Excel Rain Man newsletter email.

In consideration for the Services of Portland Spreadworks, LLC, Client hereby agrees to be bound by the Terms and Conditions of this Service Agreement.