MSA

This MASTER SERVICES AGREEMENT (the "Agreement") applies to all Services and each individual subsequent component applies to the particular Services you have ordered from US ITEK, INCORPORATED, a New York Corporation, located at 1016 NIAGARA FALLS BLVD. TONAWANDA, NEW YORK 14150 (“Service Provider”), in your signed Statement of Work or Accepted Order.

1. SCOPE OF AGREEMENT. This Agreement serves as a master service agreement and applies to Client's and its Affiliates’ purchases from Service Provider, or any of its Affiliates, of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, "Product"). For purposes of this Agreement, "Affiliate" means any entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or under common control with Client or Service Provider, as the case may be. No Product or Services will be provided under this Agreement alone. Rather, all Product or Services will require the delivery and acceptance of a written or electronic order form, or other mutually acceptable order documentation (including, without limitation, Statements of Work for Products and Services as further described below) (each, an "Order"). Each Order must be executed by both parties unless receipt and acceptance of the Order, without modification, is acknowledged by Service Provider in writing. Upon execution and/or acceptance of an Order, the terms of this Agreement shall be deemed incorporated Any Statement of Work will contain the information listed in and will be substantially in the form of Exhibit A attached hereto. The parties anticipate that they may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of an Order or Statement of Work and those of this Agreement, the terms of the Order or Statement of Work will prevail.
2. TERM AND TERMINATION. This Agreement will begin on the Effective Date of your Statement or Work or Signed Order and will continue for five (5) years or until each Order expires or is terminated in writing and, as to each party, all of its obligations as to such Order have been satisfied in full or waived in writing by the other party. Service Provider may: (a) terminate a specific Order if Client fails to pay any fees due for that Order within 30 days after receipt of written notice from Service Provider of non-payment; and/or (b) terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of Service Provider. Upon termination of the right to use a Product, Client will immediately uninstall (if the Product is software) and cease to use the terminated Product and, upon Service Provider's written request, immediately return such Product to Service Provider, together with all related documentation, and copies thereof. Upon written request of Service Provider, Client will promptly certify in writing to Service Provider that all copies of the Product have been returned, and that any copies not returned have been destroyed. If an Order for Services is terminated, Client will promptly pay Service Provider for Services rendered, and expenses incurred, through the termination date. Service Provider may terminate any license granted for a Deliverable (as defined below) if (i) Client does not pay Service Provider for that Deliverable in accordance with this Agreement, or (ii) if Client materially breaches any part of Section 4 of this Agreement.
3. PAYMENT AND DELIVERY. Client will pay Service Provider all fees due ("Fees") upon receipt of an invoice specifying the amounts due. All Fees payable under this Agreement are exclusive of sales, use, VAT, customs duties, excise, and any other applicable taxes, which Client will pay (excluding taxes based upon the net income of Service Provider). If payment is not received by any invoice due date, interest shall accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) per month from the date due until paid in full. Client shall pay all expenses, including reasonable attorneys’ fees and court costs, incurred by Service Provider or its representatives in enforcing its rights under this Client’s obligation to pay, and Service Provider’s right to collect, undisputed amounts due (including undisputed portions of amounts due) is absolute, unconditional and not subject to setoff, protest or holdback, all of which are waived as to such amounts. All Product is FOB shipping point. Unless otherwise stated in a Statement of Work, Client agrees to pay or reimburse Service Provider on demand for all actual, necessary and reasonable expenses incurred by Service Provider in performance of such Statement of Work. Service Provider will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Statement of Work.
4. PROPRIETARY RIGHTS AND CONFIDENTIALITY
   1. Proprietary Rights Service Provider, or its Affiliates or licensors, retains all right, title and interest in and to any and all intellectual property, informational, industrial property and moral rights incorporated into the Product, and copies Except as expressly stated otherwise in an Order, Service Provider neither grants nor otherwise transfers any rights of ownership in the Product to Client. The Product is protected by applicable patent, copyright and trade secrets laws, and other forms of intellectual property, informational and industrial property protection.
   2. Product. Client may only use and disclose Product in accordance with the terms of this Agreement and applicable Service Provider reserves all rights in and to the Product not expressly granted in this Agreement. Client may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product's source code from executable code, except to the extent expressly permitted by applicable law despite this limitation. Nor may Client provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without Service Provider’s prior written approval in each instance. The Product is for Client’s own internal use only. Except as expressly authorized in this Agreement or an Order, Client may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or service provider business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product - applicable installation instructions or release notes will contain the relevant details.
   3. Services Deliverables licensed under this Agreement
      • (a) License. Subject to the terms of this Agreement, Service Provider grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other deliverables provided as part of the Services (“Deliverables”) solely for Client’s own internal use and solely within the geographical territory set forth in the Order or Statement of Work therefor, if any.
      • (b) Pre-Existing License Agreements. Any software product provided by Service Provider in its capacity as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party (such agreement, an “SLA”), will continue to be governed by the SLA. Neither Service Provider’s delivery of the Services nor Client’s acceptance of the same will relieve or alter either party’s (or any third party’s) obligations or responsibilities under such SLA.
      • (c) Ownership. Service Provider owns all right, title and interest in the Deliverables, including all intellectual property rights embodied therein. Nothing in this Agreement is intended to or will have the effect of vesting in or transferring to Client rights in Service Provider’s or its Affiliates’ or its or their suppliers’ software, methods, know-how or other intellectual property, regardless of whether such intellectual property was created, used or first reduced to practice or tangible form in the course of performance of the Services, whether solely by Service Provider or jointly with Client.
   4. Mutual Confidentiality. This Section sets out the terms for identification of information which is considered confidential and proprietary by a party (the “Discloser”), and restrictions against use and disclosure of such Confidential Information after disclosure to the other party (the “Recipient”).
      • (a) Definition. The term “Confidential Information” means all non-public, proprietary or confidential information that is disclosed to the Recipient by the Discloser, and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its Client-related and financial information, source and executable code, checklists, standards, knowledgebases, flowcharts, drawings, techniques, specifications, development and marketing plans, strategies, budgets, forecasts, and sales and marketing materials; (ii) the Product; and (iii) the terms of this Confidential Information does not include information that Recipient can show: (A) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (B) is or becomes a matter of public knowledge through no fault of Recipient; (C) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (D) is or was independently developed by or for Recipient.
      • (b) Disclosure Restrictions. Recipient may not disclose Confidential Information of Discloser to any third party without the prior written consent of
      • (c) Proprietary Legends. Recipient may not remove, obscure, or alter any proprietary legend relating to the Discloser’s rights on or from any form of Confidential Information of the Discloser, without the prior written consent of the Discloser, except as expressly authorized in an
5. LIMITATIONS OF LIABILITY
   1. Exclusion of Indirect Damages. NEITHER PARTY, NOR ITS AGENTS, AFFILIATES AND LICENSORS, ARE LIABLE TO THE OTHER PARTY, OR ITS AGENTS, AFFILIATES OR LICENSORS, FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST COMPUTER USAGE, AND DAMAGE OR LOSS OF USE OF DATA), WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF THE FORESEEABILITY OF SUCH DAMAGES.
   2. Limitation of Liability. EXCEPT FOR VIOLATIONS OF SECTION 4, SERVICE PROVIDER'S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT IS LIMITED TO THE AMOUNT PAID BY CLIENT IN THE PREVIOUS 3 MONTHS FOR THE SPECIFIC PRODUCT OR SERVICE ALLEGED TO HAVE CAUSED THE DAMAGE.
   3. Injunctive Relief. Both parties acknowledge that their violation of Section 4 may cause the other party immediate and irreparable harm. In the event of such breach, the breaching party agrees that the other party may seek, in addition to any and all other remedies available at law, an injunction, specific performance or other appropriate
6. SERVICES-SPECIFIC TERMS.
   1. All Necessary Rights. If, as part of Service Provider’s performance of Services, Service Provider is required to use, copy or modify any third party system (hardware, software or other technology) provided or licensed to Client, then prior to Service Provider’s performance of such Services, Client will acquire all rights necessary for Service Provider to perform such
   2. Limited Warranty. Service Provider warrants that the Services performed will be of a quality conforming to generally accepted practices that are standard within the information technology services industry for a period of ninety (90) days from completion of the Services under the applicable Order or Statement of Work. Client’s exclusive remedy and Service Provider’s entire liability under this warranty will be for Service Provider to re- perform any non-conforming portion of the Services within a reasonable period of time, or if Service Provider

      cannot remedy the breach during such time period then refund the portion of the fee attributable to such non- conforming portion of the Services. This warranty will not apply to the extent Client, its contractors or agents have modified any Deliverable, unless otherwise authorized by Service Provider in writing. THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

   3. Intellectual Property Indemnity
      • (a) Infringement Claims. If a third party asserts a claim against Client asserting that the Deliverables and/or Service Provider’s performance of the Services in accordance with the terms of this Agreement violates a patent, trade secret or copyright (an “Intellectual Property Right”) owned by that third party (“Infringement Claim”), then Service Provider will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Client for any damages finally awarded against Client, but only if Client promptly notifies Service Provider of any Infringement Claim. Service Provider retains sole control of the defense of any Infringement Claim and all negotiations for its settlement or compromise. Client will provide all reasonable assistance requested by Service Provider in defending such claim. Service Provider will not be liable for any expenses or settlements incurred by Client without Service Provider's prior written
      • (b) Remedies. If an injunction or order is obtained which prohibits Service Provider from performing the Services for Client and/or Client using the Deliverables, in either case by reason of an allegation of infringement, or if in Service Provider’s opinion the Services and/or Deliverables may violate a third party's proprietary rights, then Service Provider will, at its expense: (a) procure for Client the right to continue to receive the Services and/or use the Deliverables;
        (b) modify or replace the Services and/or Deliverables with a comparable, functionally equivalent substitute; or (c) if neither
        (a) nor (b) are commercially practical, terminate this Agreement and release Client from its obligation to make future payments for the Services and/or Deliverables. This Section 6.3 contains Client's sole and exclusive remedy, and sets forth Service Provider's sole liability, for claims of third-party infringement. Should they become applicable, the limitations set forth in Sections 5.1 and 5.2 shall also apply.
   4. Insurance. Service Provider will provide and maintain during its rendition of the Services, but only for losses arising out of Service Provider’s work for Client: (a) Worker's Compensation insurance as required by law; (b) employer's liability insurance with limits of at least one million dollars ($1,000,000) for each occurrence; (c) commercial general liability insurance including products liability with one million dollars ($1,000,000) per occurrence combined single limit and two million dollars ($2,000,000) general aggregate, including coverage for the use of subcontractors, products liability and completed operations; (d) motor vehicle liability insurance, including coverage for owned, hired, leased, rented and non- owned vehicles of at least one million dollars ($1,000,000) for combined single limit for bodily injury, including death, and/or property damage; and (e) professional liability insurance covering the performance of professional services in the amount of one million dollars ($1,000,000) for each occurrence and in the
   5. Independent Contractor. The parties are and shall remain independent contractors. Nothing in this Agreement will be construed to make either party an employer, employee, agent, joint venture or partner of the other, and this Agreement will not be construed to create rights, express or implied, on behalf of or for the use of any party other than Service Provider and Client. All of the Services performed by Service Provider will be performed as an independent Service Provider will perform such Services under the general direction of Client, but Service Provider will have sole discretion to determine the manner, method and means of performing such Services subject to the provisions of this Agreement and applicable Statement of Work. Neither party will have any authority to make any contract in the name of or otherwise to bind the other party. Service Provider will be responsible for and will pay all unemployment, social security and other payroll taxes, and all worker's compensation claims, worker's compensation insurance premiums and other insurance premiums, with respect to Service Provider and its employees.
   6. Mutual Non-Solicitation. During the term of this Agreement, and for a period of twelve (12) months thereafter, neither party will solicit for employment any employees of the other party or its Affiliates who, within twelve (12) months prior to such solicitation: (a) directly performed under this Agreement, (b) had substantial contact with the hiring party in relation to this Agreement, or (c) the hiring party became aware of due to, or derived from information learned through the performance of, this Agreement. For this purpose, "solicitation" does not include contact resulting from indirect means such as public advertisement, placement firm searches or similar means not directed specifically at the employee to which the employee responds on his or her own initiative. Notwithstanding the foregoing, either party may at any time, directly or indirectly, solicit and hire any employee of the other party if such employee did not resign but was terminated by the other party. The parties acknowledge and agree that a breach of this “Non-Solicitation” clause will not give rise to a right of termination of this Agreement; the party not in breach will only have the right to seek and recover direct damages from the breaching
   7. Mutual Indemnity. Each party will indemnify, defend and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at Client’s The foregoing indemnities are contingent upon the party seekingindemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
7. MISCELLANEOUS/OTHER PROVISIONS
   1. Severability. Should any provision of this Agreement be found invalid or unenforceable by a court of competent jurisdiction, the remainder of the provisions will remain in effect. In the event of a dispute, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs incurred from the other
   2. Notices. Unless otherwise provided, notices to either party will be in writing and sent to a party at its address as indicated above, or as later amended, by hand delivery or overnight mail using FedEx or UPS; and notices will be deemed effective when
   3. Verification. Upon Service Provider’s written request, Client will provide Service Provider with a written certification signed by an officer of Client verifying that Product is being used pursuant to the terms of this Agreement, including without limitation the licensed capacity of the Product. Service Provider may, at its expense, audit Client's use of Product to confirm Client’s compliance with this Agreement. Any such audit will be conducted during regular business hours at Client’s facilities and will not unreasonably interfere with Client’s business If an audit reveals that Client has underpaid Fees to Service Provider, Client will pay such underpaid Fees. If the underpaid Fees exceed five percent (5%) of the Fees paid, then Client will also pay Service Provider’s reasonable costs of conducting the audit.
   4. Assignment. Client may not assign this Agreement, or any rights granted in this Agreement to any third party, except with the prior written consent of Service Provider, which may be withheld in Service provider’s sole
   5. No Waivers. Failure of a party to require performance by the other party under this Agreement will not affect the right of such party to require performance in the future. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding
   6. Force Majeure. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement. This provision does not apply to the payment of Fees or any breach of Section
   7. Binding Nature of Agreement. This Agreement shall bind and inure to the benefit of the parties and their successors and
   8. Entire Agreement. This Agreement, together with each Statement of Work and Order, constitutes the entire agreement between Client and Service Provider, and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, concerning this subject matter. This Agreement, and each Statement of Work and Order, may be modified only in a mutually signed writing between Client and Service Provider. In the event of a conflict between this Agreement, any Statement of Work or an Order, the terms of the Order will control, followed by the terms of the applicable Statement of Work and then this
   9. Export Controls. Client will cooperate with Service Provider as reasonably necessary to permit Service Provider to comply with the laws and regulations of the United States and all other relevant countries, relating to the control of exports (“Export Laws”). Client may not import, nor export or re-export directly or indirectly, including via remote access, any part of the Product into or to any country for which a validated license is required for such import, export or re-export under applicable Export Laws, without first obtaining such a validated
   10. Referencing. Client agrees that Service Provider and its Affiliates may refer to Client as a Client of Service Provider, both internally and in externally published media. Client also agrees to instruct appropriate personnel within its organization that Client has agreed to receive and participate in calls, from time to time, with potential Clients of Service Provider who wish to evaluate the technical specifications of
   11. Governing Law; Venue; Jurisdiction. This Agreement will be governed by New York law, without regard to principles of conflicts of law. All disputes arising under this Agreement or Service provider’s delivery of Services or Product to Client shall be brought in the state and federal courts located in and serving Erie County, New York; and the parties hereby submit to the exclusive jurisdiction of such courts. Notwithstanding the foregoing, any judgment obtained in such courts may be enforced in any jurisdiction where a party maintains a place of business orThis Agreement is effective only upon the execution by Service Provider and Client. Each party hereto represents and warrants that this Agreement has been executed by an authorized officer and constitutes the legal, valid and binding obligation of such party as of the Effective Date.