2. Change Control Process. Lever may require a formal request, in writing via email, approved by Customer for any change that impacts or deviates from the work outlined in this SOW (“Change Order”). In the event a Change Order is needed the work described in the Change Order will not be performed until Customer has approved the change in writing. Lever is responsible for creating and managing all Change Order requests submitted on the project according to the following process:

2.1 Provide the reason for the change, designation of the change as a change in scope or schedule, description of the change, and the cost impact in dollars to the designated Customer lead for the project.

2.2 Track the status of each Change Order by submitted, in review, approved or rejected.

2.3 Customer is responsible for the timely review and disposition of Change Orders. Delays in providing disposition or resolving project integrity issues which could result from a rejected Change Order may delay project.

3. Intellectual Property.

3.1 Lever IP. Lever retains all right, title and interest to the means, processes, methods, Lever software (the “Services”), Documentation, designs, know-how (collectively the “Background Materials”) which Lever creates independently of the Professional Services for Customers. Background Materials will at all times remain the property of Lever, and Customer will receive a non-exclusive, fully-paid license to use the Background Materials that are provided under a SOW solely in connection with the Deliverables with which they were provided under the terms of the Agreement.

3.2 Deliverables. All work product, custom software designs and custom documentation defined in a SOW and delivered to customer as part of a Professional Services engagement, excluding Background Materials (“Deliverables”) produced by Lever in the course of providing the Professional Services identified in a SOW shall be owned solely by Lever. Lever hereby grants Customer a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to a successor by way of merger, reorganization or sale of assets), royalty-free license to use and modify the Deliverables solely for its internal business purposes.

3.3 On Premise License. Licenses for Deliverables or for Services made available for download by Customer (“On Premise Services”) or Professional Services will become, effective upon payment by Customer in full, the exclusive property of Customer

4. Fees.

4.1 Fees. Customer will pay Lever the applicable fees described in the SOW or applicable Order Form (collectively, “Fees”) in accordance with the terms of this Agreement. Except as expressly set forth in this Agreement, all Fees are non-cancellable and non-refundable. 

4.2 Invoices. All Fees for fixed priced Professional Services will be invoiced upfront upon the effective date of the applicable Order Form or SOW, unless otherwise identified in the Order Form or SOW. All Fees for time and materials Professional Services will be beilled monthly in arrears as the Professional Services are actually performed. Unless otherwise specified in an Order Form, Lever will bill through an invoice and full payment for invoices issued must be received by Lever thirty (30) days after the electronic delivery date of the invoice. 

4.3 Taxes. Any amounts payable hereunder are exclusive of, and Customer shall be responsible for all taxes, including general sales tax, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Lever, unless Customer provides to Lever a valid tax-exempt certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Lever on account thereof.

4.4 Forfeiture. The Professional Services start date (“Kickoff Date”) will be communicated to Customer within ten (10) business days of the Effective Date of the Order Form. If the Kickoff Date is more than four weeks in the future, Customer will be notified via email three weeks prior to the Kickoff Date to confirm participation. Should Customer elect to postpone the Professional Services, Customer must notify Lever via email and a new Kickoff Date or follow-up date will be noted. If Customer postpones the Professional Services within ten (10) days of the Kickoff Date or does not attend the scheduled kickoff call, this will be considered an “attempt” to provide the Professional Services. The Professional Services will be forfeited after three (3) “attempts” or one (1) year from the first scheduled Kickoff Date, whichever occurs first (“Forfeiture Event”). In the event of a Forfeiture Event, Customer will not be entitled to a credit or refund for the Professional Services.

5. Confidentiality. Each party agrees that all non-public information it obtains (Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified in writing as confidential at the time of disclosure, is identified as confidential in writing within thirty (30) days of the disclosure, or is of a nature that a reasonable person with knowledge of the Disclosing Party’s business would understand to be confidential. For the avoidance of doubt, Confidential Information includes all Customer Data, code, inventions, know-how, business, technical, financial and personal data the Receiving Party obtains from the Disclosing Party. Except as provided herein (including, without limitation, as required for Lever to provide the Services), the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party. The Receiving Party’s non-use and non-disclosure obligations hereunder will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or becomes publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party without restriction on use and/or disclosure from a third party; (iv) is independently developed by or for employees of the Receiving Party without use of or reference to any Confidential Information of Disclosing Party; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

6. Liability. In no event shall either party be liable to the other for any incidental, consequential, or special damages caused as a result of work performed under this SOW. Neither party will be responsible for performance delays caused by circumstances outside its reasonable control. In no event will either Party or their respective directors, officers, agents, or employees be liable to the other party for any reason, whether in contract or in tort for any claims or liability arising out of or based upon this SOW in excess of four times the amount actually paid by the customer to Lever in the twelve months preceding the first incident out of which the liability arose, regardless of the form in which any legal or equitable action may be brought.

7. Miscellaneous.

7.1 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and to the contact identified in the SOW.

7.2 Entire Agreement. This PSA in combination with the SOW that references this PSA constitute the entire understanding of the parties with respect to the Professional Services and supersedes all previous agreements, statements and understandings from or between the parties regarding the subject matter of this Agreement.  This Agreement also supersedes any conflicting language contained in any applicable past or future purchase order regarding the subject matter of this Agreement.

7.3 Independent Contractors. The parties are responsible for the supervision, direction, control, and compensation of their respective personnel. Lever reserves the right to determine the assignment of its personnel. The parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this SOW to create an agency, partnership, or joint venture between the parties. Nothing in this SOW shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and either Lever or any employee or agent of Lever.

7.4 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control.

7.5 Dispute Resolution.

7.5.1 This SOW shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to its conflicts of laws principles.

7.5.2 In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, the parties will use their best efforts to settle the dispute. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.

7.5.3 If the parties do not reach such solution within a period of sixty (60) days, then, upon notice by either party to the other, all disputes shall be finally settled by binding arbitration taking place in San Francisco, California. Each of the parties to this Agreement hereby agrees and consents to such venue and waives any objection thereto. The arbitration shall be conducted in English, on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. The prevailing party shall be entitled to an award of reasonable attorney fees. An award of arbitration may be confirmed in a court of competent jurisdiction sitting in San Francisco County, California.

7.6 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

Please contact Lever at 1125 Mission St., San Francisco, CA 94103 with any questions regarding these Terms.