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This Master Service Agreement (“Agreement”) made between viLogics (“Service Provider”), and Customer (“Customer”) is effective upon date of Customer Signature (“Effective Date”).

The parties agree as follows:

1.  Services. Service Provider agrees to provide Customer the services described in all directly associated Scopes of Work/Project Scopes of Work (SOW/PSOW). The Service Provider may, from time to time, alter the Services provided to Customer under this Agreement based on market or vendor modifications. In the event such a change materially alters or decreases the Services, Service Provider will provide written notice of such change to Customer, and Customer may terminate this Agreement, in writing, within thirty (30) days of Service Provider’s notice of said change. Customer’s termination will take effect sixty (60) days following Customer’s written notification of termination. Service Provider may agree to provide Customer with any additional services not covered by this agreement at rates set forth in the applicable SOW/PSOW Fee Schedule.

2.  Term and Termination.

A .  Term. The Initial Term is explicitly defined in Customer’s contract commencing on the Effective Date. Thereafter, this Agreement will automatically renew on each anniversary date, for an additional one (1) year term unless terminated in accordance with the terms of this Agreement.

B.  Termination. This Agreement may be terminated as follows:

 

A.  Either party may terminate this Agreement at the end of a contract term with thirty (30) days written notice to the other party prior to the end of the initial or additional term;

B.  Upon Customer’s written notice to Service Provider of a material defect in the Services, Service Provider must correct said defect within thirty (30) days. Should the failure not be corrected within this time period, the Customer may provide thirty (30) days’ written notice of termination; or

C.  Upon Customer’s failure to pay any outstanding charges within ten (10) days of receipt of written notice from the Service Provider of delinquency. The Service Provider may terminate this Agreement immediately.

C. Effect of Termination. Upon termination of this Agreement, Customer will be liable for all charges incurred as of the date of termination, in addition to any costs incurred by Service Provider that are directly related to the termination of the Services. If applicable, any costs caused by the Customer’s early termination will be invoiced directly to Customer. Sections 2, 6, 10, 11, 12, 14, and 16 shall remain binding following early termination of the Agreement.

D.  Termination Fees. If Customer does terminate this Agreement based on section 2.b prior to the expiration of this Agreement, then Customer will pay Service Provider 100% of any outstanding invoices. If Customer terminates this Agreement for reasons outside of section 2.b, the termination shall be for ‘no cause’, and Customer will be responsible for all remaining payments listed in the SOW/PSOW Fee Schedule.

3.  Eligibility. Customer Equipment must meet minimum eligibility requirements in order to qualify for a maintenance program. All equipment must be recognized on Vendor Support Lists and cannot exceed Vendor End of Life dates. If equipment does not meet the minimum eligibility requirements, Service Provider may provide a separate proposal for the legacy services necessary to achieve the eligibility requirements.

4.  Payment.

A.  Fees. Service Provider will charge Customer for services set forth in the applicable SOW/PSOW Fee Schedule.

B.  Taxes. Amounts payable by Customer hereunder do not include local, state, or federal sales, use, value-added, or other taxes or tariffs of the United States of America or other countries based on the licenses or services provided under this Agreement and the Customer’s use thereof. Customer will pay such taxes or tariffs as may be imposed upon Service Provider or Customer, except income taxes imposed on Service Provider by the United States of America or any state or local government therein. Customer will be invoiced for, and Customer will pay, any such taxes or tariffs if Service Provider is required to pay them on the Customer’s behalf.

C.  Failure to Pay. Customer acknowledges that its failure to pay, in a timely manner, any of the fees payable hereunder, or any portion thereof, will be a material breach of the Agreement for which Service Provider may, in addition to pursing all other remedies, withhold Services and/or terminate this Agreement.

D.  Monthly Fees. All monthly fees are due on the first of the month for that month’s services.

5.  Customer Responsibilities.

A.  Customer Authorized Contact. Customer will identify an individual to be Service Provider’s primary Customer contact and another individual to be the secondary contact as noted in the SOW/PSOW. Customer represents that these people have authorization to make decisions on behalf of Customer and may be relied on by Service Provider when providing the Services.

B.  Provision of Materials and Services to Service Provider. Customer agrees to timely furnish, at its own expense, all necessary personnel, hardware, software, related materials, and appropriate and safe workspaces. Customer will also provide Service Provider with access to all pertinent information, passwords, and facilities as requested and required for services to be performed. Access may be denied for any reason at any time. However, if access to information, passwords, or facilities is denied, Customer understands that Service Provider may be unable to perform its duties adequately. If such a situation should exist, the Service Provider will not be responsible for failure to provide the Services.

C.  Customer Responsibility for Equipment. Customer shall provide a suitable working environment for any Equipment located at a Customer’s facility. Such environment includes, but is not limited to, the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Customer shall bear the risk of loss of any Equipment located at Customer’s facility.

D.  Customer Responsibility for Equipment or System Change. Customer acknowledges Service Provider may identify additional items to be purchased by Customer, and/or required changes to Customer’s system to meet the terms of this agreement. In connection therewith, Customer agrees to work in good faith with Service Provider to effectuate such purchases or changes. In the event that Service Provider is required to purchase any assets including hardware and/or software, in connection with Services rendered, all such assets will remain sole property of Service Provider unless specifically stated otherwise in writing. Customer will be responsible for the quality, integrity, and workmanship of any purchased technology product or service and for ensuring that the materials provided to Service Provider do not infringe or violate the rights of any third party.

E.  Timeliness. Any timetable for Services is dependent upon timely receipt of all necessary items and authorizations from Customer. In the event of a delay in delivery of such items, any estimated completion date will be deferred for a period equal to the time lost because of the delay.

F.  Software Installation or Replication. If Service Provider is required to install or replicate Customer software as part of the Services, Customer will independently verify that all such software is properly licensed. Customer’s act of providing any software to Service Provider will be deemed Customer’s affirmative acknowledgement to Service Provider that Customer has a valid license permitting Service Provider to perform the Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless Service Provider, in a written SOW/PSOW, expressly agrees to conduct such monitoring. Customer will bear sole responsibility for all damages and expenses it may incur (including reasonable attorney fees and disbursements) related to the provision of infringing materials or any Customer breach of this Section 5(f).

6.  Proprietary Rights.

A.  Service Provider and Intellectual Property. The parties acknowledge and agree that Service Provider may use pre-existing proprietary computer software, techniques, or other intellectual property (Service Provider Intellectual Property). Service Provider may also create additional intellectual property based upon services rendered. Customer agrees that any and all proprietary rights to the Service Provider Intellectual Property, as it exists or is modified in the course of providing Services, including patent, copyright, trademark, and trade secret rights are the sole and exclusive property of Service Provider.

B.  Customer Rights to Deliverables. Service Provider hereby grants to Customer a perpetual, worldwide, royalty-free, non-exclusive, non-transferable right and license to use, execute, reproduce, transmit, display, perform, and create derivative works from, make, have made, sell and import the deliverables provided hereunder including such Service Provider Intellectual Property solely as it may be incorporated therein, only for its own internal business purposes and to provide services to its customers consistent with the purposes of the Services.

C.  Customer Data Ownership and Responsibility. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information, or material proprietary to Customer and provided or submitted by Customer to the Service Provider in the course of using the Services (collectively, “Customer Data”). Service Provider shall not be liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. In the event that this Agreement is terminated, Service Provider shall make a secure Customer data file available at Customer’s written request and in a mutually agreed upon time frame.

D.  Restrictions. Customer will not copy, use, modify, or distribute any Service Provider Intellectual Property, except as expressly licensed in this Agreement. Service Provider’s Intellectual Property may not be removed from any deliverables, modified, distributed, reverse engineered, decompilated, disassembled or otherwise translated by Customer. Any identification, including copyright and trademark notices, shall remain on all copied materials.

 

7.  Relationship of Parties; No Solicitation of Employees. Service Provider is an independent contractor. Neither party has the right or authority to assume or to create any obligation or responsibility on behalf of the other party. This Agreement shall not be construed to create a joint venture or partnership between the parties. During the term of this Agreement and for a period of one (1) year thereafter, each party shall not directly or indirectly induce any such employee, affiliate, or third-party vendor to terminate his or her employment with the other party.

8.  Services Warranty. Service Provider warrants that it will perform the Services in accordance with the specifications set forth in the SOW/PSOW. For any breach of the foregoing warranty, Service Provider will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of the Customer’s written notice to Service Provider specifying, in complete detail, the non- conforming Services.

9.  Third Party Products. Product warranties for third-party products, if any, are provided by the manufacturers thereof and not by Service Provider. Service Provider’s sole obligation is to act on behalf of Customer to assist in the satisfaction of any such warranty.

10. DISCLAIMERS.

A.  The express remedies set forth in Section 8 will constitute Customer’s exclusive remedies, and Service Provider’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.

B.  Service Provider shall not be responsible for impairments to the Services or Customer applications caused by acts within the control of Customer or its employees, agents, or vendors.

C.  EXCEPT FOR THE WARRANTIES MADE BY SERVICE PROVIDER IN SECTION 8, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS IS”. NEITHER SERVICE PROVIDER NOR CUSTOMER MAKES ANY ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON- INFRINGEMENT.

D.  SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET CUSTOMER REQUIREMENTS NOT SET FORTH IN ANY ACCOMPANYING SOW/PSOW, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT THE CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.

E.  Except as may be done in accordance with Section 16(b), no statement by any Service Provider employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or otherwise modify this Agreement in any way whatsoever.

11.  LIMITATION OF LIABILITY. SERVICE PROVIDER’S LIABILITY TO CUSTOMER ON ACCOUNT OF ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE LESSER OF ONE-THOUSAND U.S. DOLLARS ($1,000) OR THE AMOUNTS PAID BY CUSTOMER FOR ANY SERVICES DURING THE THREE-MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM FOR DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT.

12.  Essential Basis of Bargain. Customer acknowledges and agrees that the fees charged by Service Provider in this Agreement reflect the overall allocation of risk between the parties, including the limitation of liability and exclusive remedies described in this Agreement. Such provisions form an essential basis of the bargain between the parties and a modification of such provisions would substantially affect the fees charged by Service Provider hereunder. In consideration of such fees, Customer agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk.

13.  Force Majeure. With the exception of Customer payment for services rendered, neither party shall be responsible for any failure to perform nor delay caused where such failure or delay is due to circumstances reasonably beyond the Service Provider’s control. If and to the extent a Service Provider’s performance of any of its obligations under this Contract is prevented, hindered or delayed directly or indirectly by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, strikes or outbreak of communicable disease; pandemics; quarantines; national or regional emergencies or other causes of a similar nature beyond the reasonable control of such Service Provider (each, a “Force Majeure Event”), and such non-performance, hindrance or delay occurs notwithstanding the taking of reasonable precautions by the non-performing, hindered or delayed Service Provider, then the non- performing, hindered or delayed Service Provider will be excused for such nonperformance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such Service Provider continues to use commercially reasonably efforts to promptly recommence performance, including through the use of alternate sources, workaround plans or other means.

14.  Confidentiality. “Confidential Information” means all non-public technical or business information disclosed by either party, marked as proprietary, and which is of a nature or presented under circumstances that would cause one to reasonably conclude that it should be treated as confidential. The receiving party shall hold such information in confidence for seven (7) years after termination of this Agreement, restrict disclosure of such information solely to its employees with a business need to know, and use the same degree of care as used for its own proprietary information to prevent the unauthorized disclosure, use or publication of such proprietary information.

15.  Insurance – Nature and Amounts. Service Provider agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by the nature of this Agreement and by law. Without limiting aforementioned coverage, to the extent this Agreement creates exposure generally covered by the following insurance policies, Service Provider will maintain at its sole cost and expense at least the following insurance covering its obligations under this Agreement:

A. Commercial General Liability including: bodily injury, property, contractual liability coverage, and personal injury, in an amount not less than One Million U.S. Dollars ($1,000,000) per occurrence;

B.  Business Automobile Liability for owned, hired, and non-owned vehicles in an amount of not less than One Million U.S. Dollars ($1,000,000) for each accident;

C.  Workers Compensation at statutory limits; and

D.  Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million U.S. Dollars ($1,000,000). The express remedies set forth in Section 8 will constitute Customer’s exclusive remedies, and Service Provider’s sole obligation and liability, for any claim that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or that the Services were performed improperly.

16. General.

A.  Entire Agreement. This Agreement together with the SOW/PSOW(s), which are hereby incorporated by this reference, contain all the agreements, representations, and understandings of the parties and supersedes any previous understandings, commitments, or agreements, oral or written, with respect to the subject matter of this Agreement. To the extent there is any inconsistency between a term of this Agreement and a term of any SOW/PSOW(s), the term of this Agreement will govern the performance of Services thereunder.

B.  Modification. This Agreement may not be modified or amended except in writing and signed by a duly authorized representative of each party that expressly states the sections of this Agreement to be modified. No other act, usage, or custom will be accepted to amend or modify this Agreement.

C.  No Waiver. No failure on the part of either party to exercise, and no delay in exercising, any right, power, or privilege will operate as a waiver thereof. Nor will any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other subsequent default or breach.

D.  Jurisdiction. This Agreement shall be governed by the laws of the State of Pennsylvania without regard to its choice of law provisions.

E.  Interpretation. Any provisions of this Agreement held to be void, illegal, or unenforceable shall be restated to lawfully reflect the parties’ original intents to the fullest extent possible. All other provisions shall remain in full force and effect.

F.  No Third-Party Beneficiaries. This Agreement is an agreement between Customer and Service Provider, and thus confers no rights upon any of the Parties’ employees, agents, contractors, or customers, or upon any other person or entity.

G.  Notices. Any notice required under this Agreement shall be sent by registered mail, return receipt requested, facsimile, overnight express mail, or personal delivery to the address of the party set forth at the beginning of this Agreement. Notices sent by registered mail shall be deemed effective three (3) business days following mailing. Notices sent otherwise shall be deemed effective upon receipt. A party may change its address for notices upon thirty (30) days prior written notice.

H.  Assignment. Customer may not assign its rights or obligations under this Agreement without Service Provider’s prior written consent, which shall not be unreasonably withheld.

I.  Purchase Orders. Customer may, for purposes of administrative convenience, use Customer’s standard form of purchase order to order Services. Both Parties understand and agree that any terms or conditions on any such purchase order in any way different from or in addition to the terms and conditions set forth will have no effect whatsoever on this Agreement and/or SOW/PSOW. Service Provider hereby rejects all such terms and conditions.

J.  Customer’s Review of Agreement. Client has reviewed this Agreement in detail, either electronically or in print, and hereby approves all of the material terms, conditions, and warranties associated with this Agreement.

K.  Disputes: The Parties will endeavor to settle any dispute arising out of or relating to this Agreement. They will 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. If negotiation is unsuccessful, the Parties may resolve the dispute by mediation. If mediation is unsuccessful or not utilized, then any controversy or claim relating to this Agreement, or any breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of any arbitration hearing shall be Pittsburgh, Pennsylvania. The arbitrator(s) shall award to the substantially prevailing party, in any, as determined by the arbitrator(s), all of its costs and fees. “Costs and fees” are defined as all reasonable pre-award expenses of the arbitration, including the arbitrator’s fees, administrative costs and attorney’s fees.

BY MY SIGNATURE VIA DOCUSIGN, I WARRANT THAT I HAVE RECEIVED A COPY OF, AND HAVE READ, THIS AGREEMENT, INCLUDING ALL TERMS AND CONDITIONS; THAT I HAVE FULL AUTHORITY TO SIGN FOR AND BIND CLIENT; AND THAT I DO HEREBY AGREE TO ALL THE TERMS HEREOF. FURTHER, BY SIGNING THIS AGREEMENT, I FIND THE CHARGED AMOUNT SATISFACTORY AND AGREE TO PAY FOR SAME UPON COMPLETION OF INSTALLATION; AND FURTHER AGREE TO PAY FOR COLLECTION FEES, INCLUDING ATTORNEY’S FEES, IN THE EVENT OF MY DEFAULT.

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