Computerbilities, Inc.

Master Services Agreement

1. DEFINITIONS: The following capitalized terms, when used in this Agreement, will have the meanings described herein:
   1. “Client Content” will mean all creative design assets, copy, trademarks, logos, images, photos, brand imagery, customer, order, and catalog data, and other website content and materials provided or made available by or on behalf of Client or its designee to Computerbilities.
   2. “Confidential Information” will mean all information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing of whatever kind and in whatever form or medium, and whether or not marked as “confidential,” or “proprietary,” including, but not limited to, trade secrets, product data, designs and specifications, know-how, business and technical methods and information, data files, customer listings, pricing schedules, product designs, business and marketing strategies, memoranda, written or oral agreements, reports, records, research data, computer retained information, encryption information and designs, notes, passwords, financial information, and business records. Confidential information will not include any information that a Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party before its disclosure by the Disclosing Party; (iii) was independently developed or discovered by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
2. SERVICES – CLIENT COOPERATION.
   1. Subject to the terms and conditions outlined in this Agreement, Computerbilities will provide the services and make available to Client all products, software, hardware, and materials as agreed in a quote, order, or statement of work executed by the parties hereunder (collectively, “Services”) as agreed by the parties in such quotes, orders or statements of work (“SOW”) from time to time (each, a “Statement of Work”).
   2. The Client agrees that Computerbilities may use third parties to assist it in providing the Services and may outsource the provision of the Services or portions thereof to third parties. To this end, Computerbilities may share Client Confidential Information with such parties. Computerbilities may also obtain products, hardware, or software licensed or made available to Client hereunder from third parties. The Client agrees to comply with all terms of use and other terms and conditions applicable to such use as the licensor of such materials may make available, and as such, terms are modified from time to time. Computerbilities will provide the Client with a link to or copy of all such terms upon request.
   3. Client agrees to cooperate with Computerbilities during its provision of Services hereunder, and to make available to Computerbilities all access to Client systems, information, personnel, and materials as needed for Computerbilities to perform its duties pursuant to each applicable SOW.
3. PROPRIETARY RIGHTS.
   1. Except as explicitly stated in a Statement of Work, the parties agree that, as between Client and Computerbilities, Computerbilities owns and will retain ownership of all deliverables, software, hardware, and materials provided to the Client hereunder, including all modifications, edits, and enhancements thereof, and any and all intellectual property rights therein and thereto. The Client will have no rights in any such materials except as set forth in this Agreement. Computerbilities hereby grants to Client, and Client accepts, a worldwide, non-exclusive, revocable, limited license for the Term to access and use any deliverables and materials made available to Client hereunder pursuant to the terms of this Agreement and each applicable SOW solely for its own internal business needs and never for the benefit of any third party.
   2. The parties agree that Client owns and will retain ownership of Client Content and any and all intellectual property rights therein and thereto. Client hereby grants to Computerbilities, and Computerbilities accepts, a worldwide, non-exclusive, royalty-free, fully paid up, limited license for the Term to access and use the Client Content solely to provide Services and make available deliverables, hardware, or software hereunder.
   3. Each party reserves all rights not explicitly granted herein.
4. REPRESENTATIONS AND WARRANTIES.
   1. Each party represents and warrants to the other that: (i) it is duly organized and validly existing in the state of its organization or formation and that it has full power and authority to enter into and perform its obligations pursuant to this Agreement in accordance with its terms; and (ii) this Agreement represents a binding and enforceable obligation of such party.
   2. Industry Standards. Computerbilities will implement appropriate technical and organizational security measures that comply with Industry Standards in all applicable goods, services, equipment, software systems, and platforms that Computerbilities uses to access, process, and/or store Data. “Industry Standards” means security measures that are commercially reasonable in the information technology industry and designed to ensure data security, integrity, and confidentiality and protect against Security Incidents.
   3. Except as explicitly set forth in this Agreement or in an applicable Statement of Work, Client acknowledges and agrees that the services, products, software, hardware and all other materials are provided “as is”, “as available” and ‘with all faults”. Client agrees and acknowledges that service outages, service failures, failures or defects in software or hardware provided or made available hereunder, or errors in performance of any such items, and failures of the public internet or other means of communication are not the provider’s responsibility. Provider does not guarantee continuous, uninterrupted, or secure access to the services, software or hardware or any systems pursuant to which client accesses same. The provider is not liable for any damages of any type caused by such interference. Provider hereby disclaims all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability and fitness for a particular purpose with respect to the services or any software, hardware, or other materials provided or made available hereunder. No warranty, representation, guarantee, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, durability, accuracy, completeness, performance, non-infringement of third-party rights, merchantability, quiet enjoyment, or fitness for a particular purpose or use of the services, software, hardware or materials is given or assumed by provider and all such warranties, representations, conditions, undertakings and terms are hereby excluded to the fullest extent permitted by law, as are any warranties arising from course of dealing or usage. Provider does not warrant that defects in the services, software or hardware will be corrected.
5. PAYMENT AND FEES.
   1. Computerbilities will invoice Client monthly unless the Statement of Work states otherwise, and Client will pay all undisputed amounts due no later than fifteen (15) days after receipt of such invoice. Payments are due by good check or electronic funds transfer in U.S. dollars. Payments that are more than fifteen (15) days past due will be subject to interest at the rate of one percent (1%) per month (or the maximum allowed by applicable law, if less). The client will reimburse Computerbilities for any collection costs incurred for the Client’s failure to timely pay, including reasonable attorneys’ fees and court costs.
      1. Client will reimburse Computerbilities for its reasonable out-of-pocket expenses actually incurred pursuant to any SOW, including transportation, lodging, mileage, miles, all third-party charges, including vendor support fees, parts, fees applicable to usage or media, fees applicable for recovery or storage of data, licensing fees, usage fees, fees to receive software/service updates, training or other materials and supplies, third party services fees and costs pertaining to ethical hacks, audits, risk assessments and other third party security audits and services, and fees for third party licensor/vendor support or maintenance fees incurred in the course of providing Services hereunder or otherwise supporting the Client’s systems (collectively, “Expenses”).
   2. Client will pay, reimburse, and/or hold Computerbilities harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however, designated, which are levied or imposed by reason of the performance of the Services under this Agreement, except for taxes based on Computerbilities’ income, employees or real property. Computerbilities will invoice the Client for all such taxes in each applicable invoice.
   3. Client may, after giving Computerbilities prior written notice at least five (5) business days prior to payment becoming due, with full particulars of the reasons therefor, withhold payment of any invoiced amounts that Client disputes in good faith, pending resolution of the matter. Dispute resolution will be conducted in accordance with Section 10.4 (Disputes).
   4. Fees set forth in each SOW are subject to annual adjustment by Computerbilities on each anniversary of the effective date thereof by no more than ten (10%) percent. Computerbilities will send to the Client a notice containing the fees applicable for the next annual term prior to the anniversary hereof.
6. TERM AND TERMINATION.
   1. This Agreement is effective from the Effective Date of the Scope of Work (SOW) unless earlier terminated, with annual auto-renewals thereafter (each such year a “Renewal Term,” and together with the Initial Term, the “Term”) unless either party gives notice to the other of non-renewal or termination no later than thirty (60) days before the end of the then-current term.
   2. The term of each SOW will be set forth therein.
   3. This Agreement or any applicable SOW may be terminated by either party for cause upon written notice to the other if the other party breaches any material obligation hereunder or thereunder and fails to cure such breach within thirty (30) days after receipt of notice from the non-breaching party.
   4. Client may terminate an SOW at any time for its convenience by giving Computerbilities at least thirty (30) days written notice prior to the effective date of such termination. However, Client agrees that it will, no later than ten (10) days after the effective date of termination hereof, pay to Computerbilities all outstanding fees and (a) all Expenses incurred by Computerbilities up to and including the effective date of termination, and (b) a sum equal to 25% percent of all remaining monthly fees that would have become due throughout the remainder of the term of all outstanding Statements of Work. Any additional termination rights shall be set forth in applicable SOWs.
   5. Either party may also terminate the Agreement if there are no then-current outstanding SOWs upon sixty (60) days’ written notice to the other party.
   6. Computerbilities may suspend the provision of Services and/or terminate this Agreement or any SOW (i) upon thirty (30) days prior written notice if Client fails to timely pay any undisputed amounts due unless such breach is cured within such thirty (30) day period; or (ii) immediately if Computerbilities loses a right to provide the Services or loses the grant of a license or right required to provide the Services or any portion thereof hereunder.
   7. Upon termination of this Agreement or any SOW, Client will, no later than thirty (30) days after the effective date of termination, pay to Computerbilities all fees due and owing in accordance with this Agreement, together with any interest due on overdue amounts.
   8. Upon Client’s request, Computerbilities will, for up to a three (3) month period, provide reasonable assistance to Client in transitioning the Services from Computerbilities to Client or Client’s other chosen service provider. Any period during which Computerbilities provides such transition assistance services will be considered part of the Term.
   9. No later than thirty (30) days after the end of the Term, (i) Computerbilities will refund to Client any prepaid fees paid by Client in respect of any period after the end of the Term, and (ii) each party will return to the other all Confidential Information of the other party (and any copies thereof) in the party’s possession or under its control, and Client will return to Computerbilities all materials, deliverables, software, and hardware it has received from or on behalf of Computerbilities. Computerbilities will also return Client Content its possession or under its control to Client.
7. LIMITATION ON LIABILITY.

   Subject to additional limitations set forth herein, the parties agree that Computerbilities’ and its third-party providers’ total aggregate liability for all damages, losses, expenses, costs, and liabilities arising hereunder, regardless of the cause of action, whether in contract, tort (including negligence), strict liability or otherwise, will not exceed the amounts paid or payable by Client under this Agreement for the six (6) months immediately preceding the date upon which the cause of action arises. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE PROVIDER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST, STOLEN, DAMAGED, CORRUPTED OR COMPROMISED DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The Client agrees that this limitation on liability is a reasonable allocation of risk.

8. CONFIDENTIALITY.
   1. The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose without the other’s prior written consent other than as authorized hereunder. Each party agrees to secure and protect the other party’s Confidential Information in a manner consistent with the maintenance of such party’s own confidential information and to take appropriate action by Agreement with its employees, consultants, or other agents who are permitted access to the other party’s Confidential Information to satisfy the obligations under this Section. Each party’s Confidential Information will remain that party’s sole and exclusive property.
   2. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure.
9. FORCE MAJEURE.

   Except with regard to payment obligations, either party will be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent that the delays or failures result from causes beyond the reasonable control of the affected party.

10. MISCELLANEOUS.
    1. This Agreement will be governed and construed in accordance with the laws of the State of North Carolina, and the parties consent to the sole and exclusive jurisdiction of the state courts and U.S. federal courts located in the city, county and State of North Carolina for any dispute arising out of this Agreement. The parties hereby agree to the laying of such venue and irrevocably subject themselves to the jurisdiction of such courts. No action by Computerbilities or Client arising under this Agreement may be brought at any time more than one (1) year after such party learns of the facts upon which the cause of action is based.
    2. Any written notice or demand (except for communications between the parties in the ordinary course) required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth on the first page hereof. The notice will be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, and (b) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
    3. This Agreement together with all exhibits, schedules, and Statements of Work executed hereunder sets forth the entire Agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. Except as specifically set forth herein, this Agreement may be amended only by a written agreement signed by both parties.
    4. Client and Computerbilities agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, will be submitted by either party to arbitration in North Carolina and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Each party will bear its own costs and fees associated with such arbitration. Notwithstanding the foregoing, this Section will not preclude either party from seeking temporary, provisional, or injunctive relief from any court without the posting of a bond.
    5. In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions will remain valid and in force.
    6. Neither party will be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
    7. The following provisions will survive termination or expiration of this Agreement: Sections 3 (Proprietary Rights), 4 (Representations and Warranties), 6 (Payment and Fees), 7 (Limitations on Liability), 8 (Confidentiality), and this Section 10 (Miscellaneous).
    8. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party will have the right to assign this Agreement as a whole to any entity that acquires all or substantially all of its assets or voting securities or in connection with a merger.
    9. The remedies available to the parties under this Agreement are cumulative and not exclusive to each other, and any such remedy will not be deemed or construed to affect any right which either of the parties is entitled to seek at law, in equity or by statute.
    10. This Agreement may be executed in counterparts (including counterparts delivered by facsimile or other electronic means), which, taken together, will form one legal instrument. Counterparts may be shared electronically.
    11. Computerbilities values its staff and has made significant investments in each of them. In the rare circumstance that Client wishes to hire one of Computerbilities’ employees who has worked on any SOW hereunder, Computerbilities will charge, and the Client agrees to pay, a recruiting fee equal to fifty percent (50%) of the annual salary that the employee will receive at Client’s organization, as fair and equitable compensation for Computerbilities’ loss.
    12. The Client is responsible for compliance with all laws and regulations that may be applicable to its business and its use and maintenance of its own software that may be required to access or use the Services, software, or hardware provided hereunder. If Client requires Computerbilities to comply with any laws applicable to Client’s business, it will notify Computerbilities immediately and assist Computerbilities in achieving such compliance by all reasonable means.
11. CYBER SECURITY DISCLAIMER
    1. Computerbilities provides a portfolio of products, solutions, systems, and services that includes security functions that support the secure operation of systems, machines, and networks. In order to protect systems, machines, and networks against cyber threats, it is necessary to implement – and continuously maintain – a holistic, state-of-the-art security concept. Computerbilities’ portfolio only forms one element of such a concept. Unless otherwise stated in the SOW, you are responsible for preventing unauthorized access to your systems, machines, and networks, which should only be connected to an enterprise network or the internet if and to the extent such a connection is necessary and only when appropriate security measures (e.g., firewalls and/or network segmentation) are in place. Additionally, Computerbilities’ guidance on appropriate security measures should be taken into account.