MASTER SERVICES AGREEMENT

MASTER SERVICES AGREEMENT

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This Master Services Agreement (the “Agreement”) is made and entered into between The Web Group of Bradenton, LLC, a Florida limited liability company d/b/a Red1 (“Company”) and the client that has entered into and executed a statement of work (“SOW”) with Company (“Client”). This Agreement shall govern the Services (as defined herein) provided by Company to Client as described herein and in the applicable SOW(s).  

BY SIGNING THE APPLICABLE SOW, CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN THE SOW (“EFFECTIVE DATE”). CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS AND/OR AGREEMENTS THAT ARE AND/OR MAY BE ESTABLISHED BY COMPANY FROM TIME TO TIME AND THE FOREGOING SHALL BE INCORPORATED HEREIN BY REFERENCE. IF CLIENT IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF CLIENT’S LEGAL ENTITY, CLIENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY.  IF CLIENT DOES NOT AGREE WITH THIS AGREEMENT, CLIENT MUST NOT EXECUTE THE SOW.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 16.1, CLIENT AGREES THAT DISPUTES BETWEEN CLIENT AND COMPANY WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND CLIENT WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.  THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT OF ARBITRATION.

1.   SERVICES.

1.1. Services Under Statements of Work.  Company provides remote and/or on-site information technology solutions, including but not limited to server administration, information technology infrastructure, helpdesk, project implementations, consulting services and related support services and Client is engaging Company to provide certain (“Services”) as described in the relevant, duly executed SOWs under this Agreement provided by Company hereunder.  Neither party will have any obligation with respect to any draft SOW unless and until it is executed by both parties.  Except as otherwise provided herein, if any of the terms or conditions of this Agreement conflict with any of the terms or conditions of any SOW, the terms or conditions of such SOW will control solely with respect to the Services covered under such SOW.   

1.2. Third Party Products.  

(a) In some instances, Company, pursuant to an SOW, may provide an estimate for,  the selection or procurement of certain hardware, devices or equipment, operating system software, database software, or other third party software, connectivity, data transport, or other intellectual property rights required to perform the Services (“Third Party Products”).  Except for Third Party Products Company procures for Client pursuant to an SOW, Client is solely responsible for the selection, procurement, costs, and expenses of acquiring the same.  Client agrees that Company is not liable for the performance of any Third Party Products and that any warranty and/or terms related to the use of such Third Party Products are between the Client and the provider of such Third Party Products. Company will not provide any support related Services for Third Party Products that Company does not procure for Client.

(b) In the event Company procures the installation of Third Party Products, such Third Party Products may be licensed, leased or sold by Company. Client agrees to provide a suitable operating environment for the Third Party Products and promptly report any faults in or damage to the Third Party Products, any alteration in its performance, or any change in its operating environment that will affect its operation. Client further agrees not to misuse the Third Party Products. Client acknowledges that certain Third Party Products are the property of Company, and the Client will not obscure or remove any labels or markings from such Third Party Products. Risk in the Third Party Products sold to Client, shall pass to the Client upon first payment for any such Third Party Products. The Client undertakes to effect and maintain adequate security measures to safeguard the Third Party Products from access and/or use by any unauthorized person. In the case of damage to or destruction or loss of the Third Party Products, the Client shall reinstate the same (or its equivalent) unless otherwise agreed by the parties and Company shall not be liable under this Agreement until such Third Party Products are reinstated.

1.3. Service Exclusions. Unless otherwise set forth in any SOW, Services shall not include the diagnosis and rectification of any fault arising from: (a) use of versions of Third Party Products including hardware and the operating system software on Client’s IT equipment  that do not meet the minimum requirements specified by Company in Company’s sole discretion and/or in a way not intended by the Third Party Product provider or recommended by Company; (b) inadequate training by Client of its personnel on the use of the Services and/or Third Party Products, however, if agreed to by the parties, Company may provide training at its then current hourly rates; (c) any use of the Services and/or Third Party Products not in accordance with the documentation or the operating environment recommended by Company, or otherwise contrary to Company’s instruction; (d) modifications or enhancements to the Services and/or Third Party Products, or made without Company’s prior written consent; and/or (e) failure by Client to implement Company’s recommendations or solutions. Company may require certain equipment and/or configuration changes prior to performing any Services in a legally and/or contractually non-compliant environment, for example if Client is out of compliance under HIPPA, PCI or any other industry and/or regulatory compliance standards. By entering into an SOW with Company, Client represents and warrants that its IT environment is legally and contractually complaint; or if Client’s current IT environment is knowingly out of compliance with certain legal and/or industry standards, Client agrees to notify Company of such non-compliance and/or suspected non-compliance and enter into an SOW with Company that includes Services to bring Client’s IT environment into compliance with any related technical requirements. Company does not warrant that its Services will always be legally compliant and disclaims all warranties related thereto.  Unless expressly set forth on the applicable SOW, any services provided by Company outside of the scope of the Services set forth in the applicable SOW shall be provided at Company’s then-current rates. Company makes no warranty that the Services will comply with the laws or regulation of Client’s jurisdiction or meet any contractual obligations between Client and another party.

1.4. Data Security.  Client acknowledges and agrees that Company may utilize third-party providers to provide various services, including but not limited to cloud-based functions such as the hosting and storage of Client data.  The protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality and integrity of Client’s data.  Client is responsible for taking appropriate steps to maintain security, protection and backup of any Client data and Client agrees that Company will not, and is not required to, monitor or in any way check the content of any data being transmitted by Client or any third party via the Services provided by Company.  Without prejudice to the foregoing, if Company discovers the transmission of data or other matter relating to data or the use of the Services that is in contravention of any law, regulation, order or other similar rule of any competent authority, Company may (without any liability or penalty whatsoever) take all action required to ensure compliance with such laws, regulations, orders or rules. Client shall pay for any costs and charges associated with such action. In performance of the Services, it is possible that data files may be destroyed.  Company will use commercially reasonable precautions to avoid destruction of data, but will not be held responsible in the event that such destruction occurs.  Except when Company is providing back-up related Services to  Client pursuant to a SOW, it will be Client’s responsibility to ensure that back-up copies are made on a regular basis and available to Company in the event of a required reload.

1.5. Personnel.  Company shall provide qualified, competent Representatives (as defined in Section 6.2) to perform the Services.  No Company Representative shall be required to perform Services exclusively for Client during the term of this Agreement and/or SOW.  Company shall supervise the performance of the Services and shall be entitled to control the manner and means by which the Services are performed, subject to the terms of this Agreement and/or the applicable SOW.  Client acknowledges and agrees that Company may subcontract any of its obligations hereunder. Company will remain fully liable for the acts and/or omissions of its subcontractors as if performed by Company.

1.6 Referrals. If Company refers Client to a third party service provider for Services outside of the scope of this Agreement and/or any SOW (for example, cabling services and advanced cybersecurity work) such referral is as a courtesy only, and Company shall incur no liability for or related to the services performed by such third party service provider.

2. CLIENT OBLIGATIONS.

2.1. General.  During the term of this Agreement, Client shall: (i) provide a suitable operating environment (including without limitation a suitable electrical power supply), safe workplace and reasonable access to any  devices and/or equipment for Company’s Representatives providing Services; (ii) ensure, unless specifically requested by Company, that no person other than Company and its authorized Representatives removes, adjusts, repairs, maintains and/or otherwise interferes with any part of the Services; (iii) provide stable internet access for any remote Services (iv) ensure that its network and systems comply with the relevant specifications provided by Company from time to time, and provide Company with information as may be required by Company in order to render the Services; (v) ensure that all third-party software related to the Services not purchased from Company has been properly licensed; (vi) provide Company Representatives top-level administrative access to all networks and/or systems as reasonably requested by Company to perform the Services;; and (vii) provide to Company such information as Company reasonably requires in order to perform its obligations under this Agreement.  If Client breaches the obligation set forth in (ii) herein, Company will no longer provide Services for the altered equipment and any service warranty, if applicable, shall be void.  Client further agrees that it shall be fully responsible for the acts and/or omissions of all of its employees, consultants, contractors, subcontractors, agents and other representatives.

2.2. Cooperation.  At all times during the term of this Agreement, Client and its personnel will behave in a professional and workmanlike manner, shall promptly and fully cooperate with Company, and shall promptly make competent, qualified personnel available to assist and answer questions of Company, as necessary and appropriate and as reasonably requested by Company. Client shall make available to Company, free of charge, all information, facilities and services reasonably required by Company to enable it to perform the Services.  Company shall bear no liability or otherwise be responsible for delays in the provision of the Services or any portion thereof caused by Client’s failure to timely provide information requested by Company.  

2.3. Compliance with Laws.  Client shall be solely responsible for Client’s compliance with all applicable laws and governmental regulations affecting the operation of the business of Client or use of the Services. Client may not use the Services other than for Client’s own legitimate and lawful business purposes and in a manner that complies with this Agreement and all applicable laws and regulations.

3. Fees.

3.1. Fees.  In consideration of the provision of the Services described herein and/or in any SOW, Client agrees to pay Company the fees set forth in the duly executed SOW.  All fees due and payable by the Client to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. The fees reflected in such SOW(s) shall be in U.S. dollars.  Notwithstanding anything herein to the contrary, in the event third party providers increase their fees for Third Party Products, Company may pass on such increase in fees to Client, and Client shall pay such fees in accordance with the terms and conditions of this Agreement.  Unless expressly set forth in the applicable SOW, any services provided outside of the scope of Services set forth herein and/or in the applicable SOW shall be provided at Company’s then-current rates for such out-of-scope services and shall be due and payable in accordance with the terms and conditions set forth herein.

3.2. Taxes.  All fees due and payable under this Agreement are exclusive of taxes, which will be added at the prevailing rate from time to time.

3.3. Expenses.  Reasonable travel and out-of-pocket expenses are not included in the fees set forth in the relevant SOWs and will be invoiced separately. Client agrees to reimburse Company for all reasonable, documented out of pocket expenses incurred in connection with the Services including travel to Client’s offices and/or other locations as requested by Client.

3.4. Third-Party Fees.  In the event Company utilizes Third Party Products on Client’s behalf or otherwise enters into a subscription or license with such third party providers on Client’s behalf, Client agrees it shall remain liable for all such third party expenses, fees, subscription and/or license costs through the remainder of the then-current term of such license and/or subscription. Client agrees to reimburse Client for reasonable out-of-pocket expenses including but not limited to Third-party product fees and travel in connection with providing the Services.

3.5. Invoices. Unless otherwise set forth herein or in the applicable SOW, Company will provide Client with an invoice and/or receipt for fees that become due hereunder and fees shall be due and payable as follows: (i) monthly service fees including any applicable fees for Third Party Products shall be due on the first date of install and if payment is made by automatic credit card or ACH debit, due monthly in advance on the same day each month thereafter during the term of such SOW, or if paid by check, the first monthly fee shall be due on the first date of install and thereafter Company shall issue client an invoice for monthly service fees which are due and payable three (3) months in advance; (ii) except as expressly set forth herein or the applicable SOW, charges for all other Services provided to Client shall be due upon completion of Services and payable by Client within thirty (30) days of the invoice date.  Invoices submitted by Company to Client are deemed accepted and approved unless disputed by Client in accordance with the terms and conditions contained herein. Any invoice in an amount equal to or greater than ONE THOUSAND DOLLARS ($1,000.00) must be paid by check or ACH.

3.5. Payments.  

(a) If client designates a payment account, all fees shall be deducted through automated clearing house (“ACH”) transfers from Client’s designated payment account or credit card.  Client authorizes Company to automatically charge the ACH and/or credit card account for the fees (plus applicable sales tax) in advance or as otherwise agreed to by the parties in writing without any further authorization from Client. Be advised that monthly services fees are determined based on Client’s current IT environment and will change based on changes to such environment. Company will provide Client a receipt for all automatic payments made through Client’s designated account. Client acknowledges that the authorization will remain in effect until Client cancels such authorization by providing written notice to Company.  If Client’s account on file is closed or the account information is changed, or if, for any reason, a charge is rejected, Client shall immediately update Client’s account or supply a new payment account, as appropriate.  If Client is unable to update its account with appropriate information, Company may suspend Services until the account is properly updated without liability. Client agrees to notify Company in writing of any changes to Client’s account information or termination of its authorization at least thirty (30) days prior to the next billing date. In the event payment dates fall on a weekend or holiday, Client understands that the payments may be executed on the next business day. Client hereby agrees to undertake any and all required actions, execute any required documents, instruments or agreements, or to otherwise do any other thing required or requested by Company in order to effectuate the requirements of this Section 3.5.  In addition, Client permanently and irrevocably waives any and all right to enact a ‘chargeback’ (that is, a disputed, reversed or contested charge with the applicable credit card or bank) against such payments for any reason whatsoever against Company.

(b) If client pays by check pursuant to Section 3.4, such check must be delivered pursuant to the instructions on the applicable invoice. If Client’s check is rejected or returned by Company’s bank for any reason, including but not limited to insufficient funds, Client shall provide prompt payment by  cashier’s check and shall be liable for and agrees to pay a returned check fee in an amount equal to the greater of twenty-five dollars ($25) or the actual returned check fee incurred by Company.   

3.6. Late Payments.  In the event payment for fees is not made on or before the date such payments are due, Company may, in its sole discretion, upon notice to Client, suspend Services until payment is made in full and/or terminate this Agreement and SOWs without incurring any liability. Be advised that suspension of services may have serious implications for your business, including but not limited to the  loss of an associated phone number and/or domain name. Company disclaims any liability related to the suspension of Services due to late payment.  If Client does not make payment on or before thirty (30) days from the date on which such payment is due to be paid, Company reserves the right, in its sole and absolute discretion, to apply interest calculated at a monthly rate of seven percent (7%) (but with interest accruing on a monthly basis) or the highest rate permitted by law.  Such interest shall accrue from the date upon which payment of such sum becomes due until payment thereof is made in full together with such interest.  

3.7. Invoice Dispute Process.  

(a) If Client has a bona fide dispute in relation to any portion of the fees, Client must pay all fees due and provide notice to Company in writing within thirty (30) days from the date of the applicable invoice and/or receipt.  Such notice shall set forth the details surrounding the dispute.  The parties shall discuss the disputed fees within five (5) business days of the date of the notice. During such time or if the dispute remains unresolved after the parties meet, Company will not make any payments to providers of Third-Party Products which may result in loss of critical services essential to Client’s business. In the event the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to arbitration as set forth in Section 16.1 herein.  

(b) When the dispute is resolved, (a) if a payment is owed to Company, such payment shall be made within five (5) business days of the resolution of such dispute, or (b) if an amount is owed to Client, Company shall credit such amount to Client’s account on Client’s next billing cycle (or within such other timeframe as mutually agreed upon by the parties in writing).  

(c) For avoidance of doubt, all negotiations pursuant to this Section 3.7 shall be treated as confidential compromise and settlement negotiations.  Nothing said or disclosed, nor any document produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.  

(d) Client waives the right to dispute any fees not disputed within thirty (30) calendar days after the date of the applicable invoice.  

4. TERM.

4.1. Term.  This Agreement is effective as of the Effective Date and will continue until terminated in accordance with Article 5.

4.2. SOWs.  The Services will commence on the date set forth in a SOW and continue thereafter as set forth in such SOW, unless otherwise terminated earlier in accordance with the terms of such SOW or this Agreement.

5. TERMINATION.

5.1. Termination for Breach. If a party materially breaches this Agreement and/or any SOW (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the relevant SOW upon written notice to the Defaulting Party.  Termination of a SOW and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.

5.2. Termination for Convenience.  Company may terminate this Agreement and/or any SOW at any time for convenience upon thirty (30) days prior written notice to Client. Except as otherwise provided in the applicable SOW, Client may terminate this Agreement and/or SOW upon thirty (30) days’ advance written notice to Company.

5.3. Termination for Insolvency.  Either party may terminate this Agreement and SOW(s) in the event the other party becomes Insolvent. For purposes of this Section 5.3, “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within sixty (60) days thereafter.

5.4. Effect of Termination.

(a) Upon notice of termination of this Agreement and/or a SOW, the parties will discuss and determine whether Client requires any transition Services to Client or a third party in addition to Company’s regular offboarding process set forth below in subsection (c), and, if so, Company at its option, may work with Client or a third party for a period of up to thirty (30) days (or other timeframe as mutually agreed to by the parties in writing) to provide such transition Services at such rates as Company shall designate, which shall be due and payable by Client in advance.   

(b) In the event of any termination under this Agreement and/or any SOW, upon termination (i) Company will cease providing Services, (ii) Client will pay all outstanding fees, charges, Third Party Product charges and expenses incurred through the termination date, (iii) Client shall remain responsible and agrees to pay all Third Party Product costs in accordance with Section 3.3 herein; (iv) Client will return any Company Property in its possession within fifteen (15) days of the date of termination of the Agreement and/or SOW and if such Company Property is not returned will be charged for the value of such property; and  (v) Client will cease using any Third Party Products not owned by Client and promptly surrender the Third Party Products to Company in good order and condition as originally delivered, normal wear and tear excepted within fifteen (15) days of the date of termination of the Agreement and/or SOW.  Unless expressly set forth in the applicable SOW, if Client terminates this Agreement or any SOW for convenience pursuant to Section 5.2 or Company terminates this Agreement or any SOW for breach and/or insolvency pursuant to Sections 5.1 or 5.3, no prepaid fees will be refunded. Notwithstanding the foregoing, no prepaid monthly service fees will be refunded for any reason even if pre-paid on an annual basis. In addition, upon termination, Company may remove the Third Party Products (other than Third Party Products to which title has passed to Client) and Client grants Company a license to enter all locations upon reasonable notice for that purpose. Notwithstanding anything to the contrary contained herein, Company shall not be liable for any loss, cost, damage or expense whatsoever resulting from the cessation of Company’s Services.

(c) Following notice of Termination and subject to prompt payment in full of all fees due, Company will as part of its normal offboarding process will reasonably assist Client with the transfer of its current Services to a new service provider, provide all reasonably necessary documentation related to Client’s IT system to Client and/or designated third party, and  answer basic questions related to Client’s IT systems related to the Services provided by Company. Notwithstanding the foregoing, Company will not provide any assistance that can be performed absent Company’s assistance unless Client engages Company and pre-pays for any transition Services pursuant to subsection (a).

6. CONFIDENTIALITY.

6.1. Confidential Information.  “Confidential Informationincludes all information related to the business of one party (“Disclosing Party”) and any of its affiliates, clients and other third parties, to which the other party (“Receiving Party”) has access, whether in oral, written, graphic or machine-readable form, in the course of or in connection with the Services, including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, personally identifiable customer or employee information, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement.  The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”  

6.2. Representatives.  The Receiving Party will keep the Confidential Information confidential, and may disclose the Confidential Information to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement.  The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement.  The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written permission and without such third party having a contractual obligation (consistent with this Article 6) to keep such Confidential Information confidential.  The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.  

6.3. Exclusions.  Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party prior to its receipt from the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.

6.4. Legal Requirements.  If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.  If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.

6.5. Disclosure.  In the event that the Receiving Party learns or has reason to believe that Confidential Information has been disclosed or accessed by an unauthorized party, the Receiving Party will immediately give notice of such event to the Disclosing Party.  

6.6. Disposition of Confidential Information on Termination.  Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control.  Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation, and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.

6.7. Equitable Relief.  Each party acknowledges that a breach of this Article 6 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.

7. Representations & Warranties.

7.1. Client Warranties.  Client represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; (ii) has the power and authority to enter into this Agreement and SOW(s); and (iii) has not and will not enter into any agreement or perform any act which might contravene the purposes and/or effects of this Agreement.

7.2. Company Warranties.  Company warrants that Services will be performed in a good and workmanlike manner in accordance with applicable industry standard and shall correct any defects (not caused by Client) that appear within three (3) months from the date the applicable Services were performed by Company (the “Service Warranty”). Company further represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; and (ii) has the power and authority to enter into this Agreement and SOW(s). Except as expressly set forth in this Agreement and/or SOW, Client’s sole and exclusive remedy and Company’s sole and exclusive liability for any breach of the warranty set forth in this Section shall be for Company to re-perform the Services at no cost to Client.  

7.3 Third Party Product Warranties. COMPANY MAKES NO WARRANTY FOR THIRD-PARTY PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY HARDWARE PROVIDED IN CONNECTION WITH THE SERVICES. SUCH WARRANTY FALLS UNDER THE MANUFACTURER’S WARRANTY FOR THE THIRD PARTY PRODUCT AND IS BETWEEN CLIENT AND THE PROVIDER OF SUCH THIRD PARTY PRODUCTS. Company will manage and service any warranty claims on Client’s behalf for any hardware provided in connection with the Services at no cost to Client for up to three (3) months from the date of installation and/or set-up by Company. After such period, Client will service the manufacturer’s warranty at Client’s request but will charge for such service at Company’s then current rates.

7.4 Security. Company cannot and does not warrant, represent, or guarantee that any network security measures will always maintain administrative, technical, or physical security safeguards which (i) ensure the security and confidentiality of non-public personal information; (ii) protect against threats or hazards to the security or integrity of non-public personal information; (iii) protect against unauthorized access or use of non-public personal information that could result in substantial harm or inconvenience; or (iv) ensure that any Service or Work Product is free from computer viruses or malicious code, at the time of delivery or in the future.

7.5. Additional Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND/OR SOW, COMPANY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.  THE SERVICES AND MATERIALS ARE PROVIDED BY COMPANY ON AN “AS-IS” BASIS AND COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES (EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SOW), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, ERROR FREE OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY) WILL BE CORRECTED. FOR THE AVOIDANCE OF DOUBT, cOMPANY SPECIFICALLY DISCLAIMS.  COMPANY DOES NOT REPRESENT, WARRANT, AND/OR COVENANT THAT THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY COMPANY IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. COMPANY  IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, BREACH OF DATA AND/OR OTHER LOSS AND/OR DAMAGE RESULTING FROM TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR INABILITY TO ACCESS AND/OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON AND/OR OTHERWISE.

8. Limitation of liability.

COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW SHALL IN NO EVENT EXCEED THE CHARGES PAID BY CLIENT TO COMPANY UNDER THE APPLICABLE SOW THAT GAVE RISE TO SUCH CLAIM DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF SUCH CLAIM.  IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

9. Indemnification.

9.1. Client Indemnification.  Client shall indemnify, defend and hold harmless Company and its Representatives from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorneys’ fees (“Claim”), arising out of, and/or relating to (i) Client’s and/or its Representatives’ acts and/or omissions; (ii) Client’s and/or its Representatives’ breach of the terms of this Agreement and/or SOW; and/or (iv) Client’s and/or its Representatives’ failure to Comply with applicable laws.

9.2. Company Indemnification.  Company will indemnify, defend and hold harmless Client and its Representatives against any Claim that Client’s use of Company’s Services (excluding any Third Party Products or services) constitutes an infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Client acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such Claim.  The indemnity in this Section 9.2 shall not apply (i) to a Claim arising from any modification of the Services of Company by Client or any third party, or from the use of the Services in combination with any other items not provided by Company, to the extent such modification or use in combination resulted in the Claim, unless such modification or use in combination is with Company’s express written consent, and/or (ii) if such Claim results from any breach of Client’s obligations under this Agreement, or the use of the Services other than in connection with this Agreement, or in a manner not reasonably contemplated by this Agreement.  In the event of a Claim pursuant to this Section 9.2, Company shall be entitled at its own expense and option to either (a) procure the right for Client to continue utilizing the Services which are at issue; (b) modify the Services to render the same non-infringing; or (c) replace the Services with an equally suitable, functionally equivalent, compatible, non-infringing Service.  This Section 9.2 sets forth the Client’s sole and exclusive remedy from Company for any claim, demand, proceeding and/or action by a third party in relation to a Claim.

9.3. Procedure.  The indemnities set forth herein shall only be given on the condition that (i) the indemnified party gives notice to the indemnifying party of any Claim immediately upon becoming aware of the same; (ii) the indemnified party gives the indemnifying party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the indemnifying party; and (iii) the indemnified party acts in accordance with the reasonable instructions of the indemnifying party and gives the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents.  The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such Claim.  The indemnified party may reasonably participate in such defense, at its sole expense.

10. Force Majeure. 

Neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation, fire, flood, earthquake, elements of nature, epidemics, pandemics, acts of God, communications or computer (software and hardware) services, prevention by restrictions of a legal or regulatory nature from supplying the Services, acts of war, terrorism, strikes (or other labor unrest), riots, civil disorders or rebellions (“Force Majeure Event”).  In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. This Section does not apply to any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.

11. Independent Contractor.

Company is an independent contractor and will determine the method, details and means of performing the Services.  No party shall have the authority to bind, represent or commit the other. Nothing in this Agreement shall be deemed or construed to create a joint venture or agency relationship between the parties for any purpose.  Nothing contained herein shall give or is intended to give any rights of any kind to any third persons.

12. Governing Law and Choice of Forum.

This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Florida, without regard to its choice of laws principles.  Subject to Section 16.1, any action related to and/or arising from this Agreement shall take place exclusively in Manatee County, Florida and the parties hereby submit to such venue.

13. Non-Solicitation. 

During the term of this Agreement and for a period of one year following the effective date of termination, Client shall not, without Company’s prior written consent, directly or indirectly (a) solicit or encourage any Company Representative to leave the employment or other service of Company, or (b) hire, on behalf of the Client or any other person or entity, any Company Representative who performed Services for Client or with whom Client became acquainted during the term of the Agreement. Notwithstanding the foregoing, Client may hire Company’s Representatives who (i) respond to public advertisements, or (ii) have not provided Services to Client for a period of one year or more.  In the event of a breach of this Section 13, Company’s sole and exclusive liability and Client’s sole and exclusive remedy shall be for Client to pay Company one hundred percent (100%) of the Representative’s then-current annual salary and/or engagement fee. Client recognizes and agrees the restrictions set forth in this Agreement, including without limitation the time period, are fair and reasonable, and the restrictions are reasonably tailored so as to meet the legitimate business interests of Company.

14. Assignment.

Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign its rights or obligations under this Agreement upon written notice to the other party in the event of a Change of Control. “Change of Control” means the direct or indirect change in the ownership, operation or control of a party, whether resulting from merger, acquisition (including an acquisition of substantially all of the assets of a party), consolidation or otherwise. No such assignment or transfer shall have the effect of increasing the obligations of either party under this Agreement. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.

15. Notices.

All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.

16. General.

16.1. Arbitration.  Unless otherwise set forth in this Agreement, the parties agree that as to any dispute arising out of or under this Agreement, the parties shall meet to discuss such dispute for resolution within thirty (30) days. If the parties are unable to resolve the dispute, then the parties may bring an action pursuant which shall be settled by binding arbitration. The arbitration proceedings shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time a demand for arbitration. The decision of the arbitrators, including determination of the amount of damages suffered, if any, shall be final and binding on all parties, their executors, administrators, successors and assigns and judgment with respect to such decision may be entered in any court of applicable jurisdiction. Each party shall bear its own expenses in the arbitration, for attorneys’ fees, and for fees with respect to its witnesses; provided that, the prevailing party will be entitled to recover such fees in accordance with Section 16.8 herein. Other arbitration costs, including arbitrators’ fees and administrative fees, and fees for records or transcripts, shall be paid equally by the parties. The location of such arbitration shall be in Manatee County, Florida.

16.2. No Waiver by Conduct.  No waiver of any of the terms of this Agreement or any SOW will be valid unless in writing and designated as such. Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence.

16.3.  No Third-Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create third party beneficiaries of or under this Agreement. Client agrees that Company’s obligations in this Agreement are to Client only, and Company has no obligation to any third party (including, without limitation, Client’s customers, personnel, directors, officers, employees and any administrative authorities).

16.4. Severability.  If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.

16.5. Counterparts; Method of Amendment.  Each SOW and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each of the relevant entities.  Company may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement will become effective upon Client’s execution of a new or additional SOW in which the new terms of this Agreement will be incorporated.

16.6. Headings; Recitals.  The headings and titles of the paragraphs of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. The recitals are hereby incorporated into the body of this Agreement for all intents and purposes as if fully set forth herein.

16.7. Survival.  Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.

16.8. Attorneys’ Fees.  Notwithstanding anything herein to the contrary, if either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys’ fees) incurred in connection with the action.

16.9. No Primary Drafter.  The parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such party or its professional advisor was the drafter, but shall be construed according to the intent of the parties as evidenced by the entire Agreement.

16.10. Entire Agreement.  This Agreement, including all SOWs, exhibits and referenced documents constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.

EXHIBIT A
ONGOING MAINTENANCE AND SUPPORT SERVICES

Below is a description of the ongoing maintenance and support services offered by the Company:

ActivityFrequencyNotes
Check that backups are running properly (Only  applies if Client has purchased a monthly plan that includes Back-up Services, otherwise not included.)DailyThis is a simple check that backups are running with no errors reported. This is not a complete test of the backup file. Included as part of the backup service ONLY if you have backup services as part of your monthly plan. Backup services are an optional add on.
Monitor and maintain server uptimeConstantlyOnly if Client has an on-site server.
Install software patches, service packs and other updatesAs necessaryUpdates will be tested before being rolled out across the IT system. This only applies to incremental “point” releases. Due to the complexity of major releases, they do not fall under this contract. We may delay some updates indefinitely depending on the nature of the update. (This applies mostly to servers).
Monitor status and availability of cloud servicesConstantlyAutomated systems will be used to check certain cloud services if applicable.
Monitor available disk space on servers and company computersWeeklyCompany will monitor and suggest upgrades as needed.
Perform system and server rebootsAs necessaryNon-essential reboots will be performed at convenient times, usually after-hours.
General server maintenanceAs necessaryOnly if you have an on-site server.
Inform Client of any potential issuesAs necessaryFor example:Equipment showing signs of failureAging equipmentDeteriorating broadband speed
Physical InspectionQuarterlyCompany will send a tech to Client’s office(s) to physically check all covered equipment. Extent of the service is limited to the equipment that is onsite on the agreed upon date.
Monitor all ComputersConstantlyWe will install a small piece of software that monitors the health of computers and servers and performs automatic maintenance.
Create, remove and maintain employee user accounts. (Maximum of 3 per month)As necessaryFor example, when employees:Join or leave the companyRequire access to additional resourcesAny user accounts >3 will be at
Managing networks
Monitor Internet ConnectionConstantlyAutomated monitoring will be used to identify performance issues with or availability of your internet connection(s). Repair of the issue is not covered, and normal repair rates apply
Monitor network capacity and performanceWeeklyCompany will identify when and where network capacity is reaching its limit. Repair of the issue is not covered, and normal repair rates apply.
Maintaining security
Antivirus/Antimalware ProtectionConstantlyCompany will install a small piece of software that monitors for malicious software and report potential issues. Automatic remediation is included. If the infection cannot be fixed automatically, normal repair rates apply.
Check status of security software updatesAs necessaryCompany will verify that all updates are installed in a timely manner.
Firewall as a Service (FaaS) If Client purchases Firewall as a Service pursuant to an SOW, Company will rent a high-end firewall to Client on a monthly basis and provide up to 1 hour of maintenance, software and subscription updates, and customer support related to the firewall each month. Any Firewall related service over 1 hour will be billed at the Company’s then current time and materials rates. Firewall as a Service is not a rent to own program. The firewall rented to Client, remains the property of Company and Client is not permitted to and agrees not to log into or otherwise modify the devise. If Company needs to make any changes and/or adjustments to the firewall as a result of Client tampering with or changing the settings of the firewall such services are not included in the 1 hour of monthly serve and will be billed to Client and Company’s then current time and materials rate.  
VOIP Phone Service If Client purchases VOIP Phone Service pursuant to an SOW, Company will install and configure a VOIP Phone Service for Client as further described in the SOW. VOIP Phone Service involves using a structure’s existing IP infrastructure to send phone traffic to a cloud-based phone server. Client is required to purchase all phones and may be required to purchase upgraded network hardware if indicated by Company. Client at its option, may lease the phones for a monthly rate as further described in the SOW and title will transfer from Company to Client after twelve consecutive months of on-time monthly payments. If  the SOW and/or Agreement is terminated for any reason before the 12-month rent to own period is complete, Client will owe all outstanding amounts due for the remainder of the 12-month period immediately to Company. Client will be required to pay a one-time installation fee based on the size of Client’s IT environment as set forth in the applicable SOW. Phone installation includes set-up of the offsite cloud server, installation of phones and staff training. The monthly VOIP Phone Service fee, will include all service to the phones, the offsite cloud server, changes to your phone server including changing of office messages, configuring forwards to cell phones, and any other feature changes. Company will help implement any already included feature of your selected phone system. Additional features may be configured for additional cost and addressing issues with Client’s IT infrastructure, internet service, and/or any physical damage to the wall port or caused by Client misuse is outside the scope of the VOIP Phone Service. New phones come with a warranty from the manufacturer, refurbished phones come with little or no warranty. Any warranties will be described in the SOW and some instance Company may provide Client with a loaner phone.  Other than the security of the offsite phone server, Company does not address cybersecurity as part of the VOIP Phone Service and disclaims any responsibility for onsite security breaches.