Master Services Agreement

 

This Master Services Agreement is entered into by the Customer listed above, and Masterlink, LLC., an Arizona corporation (“Service Provider”) located at 24654 N. Lake Pleasant Pkwy. Suite 103-501 Peoria, AZ 85383. This Agreement is effective when fully executed and approved in accordance with applicable laws, rules and regulations (“Effective Date”).

 

RECITALS

  1. The Customer desires to enter into this Master Services Agreement with Service Provider to provide hosted image storage and viewing services pursuant to the terms of this Master Services Agreement.

 

  1. Service Provider desires to perform the Services at the request of Customer pursuant to the terms and pricing in this Master Services Agreement.

 

AGREEMENT

In consideration of the mutual covenants and representations set forth in this Agreement, Customer and Service Provider agree as follows:

 

  1. THE SERVICES.

 

1.1. Purpose; Term. This Agreement sets forth the terms and conditions under which Service Provider agrees to license certain hosted “software as a service” and provide all other services, support, backup and recovery, necessary for Customer’s use of such software (the “Services”), as further set forth in Exhibit A, attached hereto and incorporated herein. The Agreement shall remain in effect unless terminated as provided herein.

 

1.1.1. Authorized Users. Unless otherwise limited on an Exhibit A, Customer and its employees have the right to operate and use the Services. The Service Provider shall provide the functionality to allow the customer to implement passwords, user identification, and password change management.

 

1.2. Control of Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of Service Provider.

 

1.3. Time of Service Provider Performance of Services. Service Provider shall provide the Services during the Term and as otherwise set forth on Exhibit A.

 

1.4. Security of Customer Data. As part of the Services, Service Provider will host Customer data in a secure, U.S. based facilities. (Canadian Customers are hosted in secure, Canadian based facilities.) Service Provider shall be deemed to have

exercised reasonable care in the maintenance, custody and preservation of Customer data in Service Provider’s possession if such Customer data is treated substantially the same to how Service Provider treats its own like data.

 

1.5. Change Control Procedure. Customer may make a written request to increase the scope of the Services as set forth in Exhibit A.

1.5.1. If Customer requests an increase in the Service Level, Service Provider will within five (5) business days (or other mutually agreed upon period) after receiving the request notify Customer whether or not Service Provider is able to meet the request and if Service Provider is so able, the associated cost increase. If Customer approves, Customer and Service Provider will execute a change order for the Services and cost increase as set forth by the Service Provider.

 

  1. Accessibility And Performance

 

2.1. Service Commitment. Service Provider shall use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage of at least 99.95%, twenty-four hours per day, seven days per week during the Term.

 

2.2. Service Commitment Credit. For each month that Service Provider is unable to meet the Service Commitment Customer shall be entitled to a credit against future fees as follows: 5% of the monthly hosting fee for each hour (or part thereof) of noncompliance after Apteryx Support receives notification of an interruption in the Service Commitment during the month up to a total of 100% of the monthly fee. The Customer must request the credit, which is subject to the exclusions provided in Section 2.3. The foregoing credit is Customer’s sole and exclusive remedy if Service Provider fails to meet the Service Commitment.

 

2.3. Interruption to Service. Service Commitment does not apply to any unavailability, suspension or termination of Services including: (a) standard Wednesday evening system back-up and maintenance; (b) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Service Provider; (c) emergency software, site and/or software updates and maintenance; (d) voluntary actions or inactions from the Customer or any third party; (e) that result from Customer’s equipment, software or other technology and/or third party equipment, software or other technology outside of Service Provider’s control; (f) for any unforeseen cause beyond Service Provider’s reasonable control, including but not limited to Internet service provider or communications network failures, denial of service or similar attacks, or any force majeure events set forth in this Agreement; (g) arising from Service Provider’s suspension and/or termination of Customer’s right to use Service in accordance with this Agreement; (h) or that result from the Customer not following the basic operational guidelines and/or security practices.

 

2.4. Performance. Service Provider will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to

address systems and network infrastructure as required to maintain satisfactory performance of the Services. Service Provider further reserves the right to monitor and reasonably restrict Customer’s ability to use the Services if Customer is using excessive computing resources which are impacting the performance of the Services for other subscribers. Service Provider agrees to notify Customer in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or

work-around solution.

 

2.5. Customer Backup Availability. Service Provider will provide a backup of Customer’s Data upon Customer request. Backup data will be sent to Customer via electronic transfer and/or digital media. Customer is responsible for any and all fees associated with providing the backup including, but not limited to, data transmission fees, media, and shipping. Customer is limited to requesting backup data to once per quarter.

 

2.6. Customer’s Internet Connection. Customer acknowledges that Service Provider is not responsible for Customer’s Internet connection and/or connectivity. Customer is responsible for all problems arising from its own Internet connectivity.

 

2.7. Disabled Access. Customer acknowledges that Service Provider may disable Customer’s access to the Services and/or Customer data for (a) continued nonpayment of Services and/or (b) termination of this Agreement for any reason.

 

  1. MAINTENANCE AND SUPPORT

 

3.1. Maintenance. Service Provider shall maintain the Services and provide fixes to the Services at no additional cost. Maintenance does not include major releases of new versions of software, additional functionality, or custom software programming, which Service Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties.

 

  1. TERM AND TERMINATION.

 

4.1. Term. Unless this Agreement is terminated earlier in accordance with the terms set forth in this Section, the initial term of the Services set forth in Exhibit A (the “Initial Term”) shall commence on the Effective Date and continue for Twelve (12) months thereafter. Following the Initial Term, this agreement shall automatically renew for successive month terms (each, a “Renewal Term”) until such time as Customer provides Service Provider with at least thirty (30) calendar days prior written notice of termination. “Term” shall collectively mean and include the Initial Term and each Renewal Term, if any.

4.2. Termination for Cause. If either party materially breaches any of its duties or obligations hereunder, including two periods of successive failure of Customer to make payments when due, and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach, then the non breaching party may terminate this Agreement for cause as of a date specified in such notice.

4.3. Termination of Agreement for Service Commitment Non-Compliance. If Service Provider fails to meet a Monthly Uptime Percentage of 98.00% for a three (3) consecutive month period or five (5) months cumulative within any consecutive twelve (12) month period, Customer may terminate this Agreement without cause or penalty. Customer shall still be responsible for paying any outstanding fees.

4.4. Payments Upon Termination. Upon the expiration or termination of this Agreement for any reason, Customer shall pay to Service Provider all amounts due and payable hereunder, including, without limitation, those amounts set forth on Exhibit A.

4.5. Early Termination Fees. Except for termination of this Agreement due to Service Provider’s breach of this Agreement, in the event that this Agreement is terminated prior to the expiration of the Term, Customer shall pay Service Provider, within ten (10) days after the date of such termination, (a) all accrued and unpaid fees for Services provided through the effective date of termination, plus (b) a cancellation fee equal to 50% of Customer’s remaining subscription fees till the end of the current Term. The parties agree that, if Services are cancelled prior to the completion of the Term, Service Provider’s damages shall be difficult or impossible to ascertain, and therefore, the amounts set forth in this Section are intended to establish liquidated damages in the event of cancellation and are not intended as a penalty.

4.6. Early Termination Database Conversion Service Fee. Except for termination of this Agreement due to Service Provider’s breach of this Agreement, in the event that this Agreement is terminated prior to the expiration of the Term, and in the event that the Customer received free or discounted Database Conversion services, Customer shall pay Service Provider, within ten (10) days after the date of such termination, the difference in price between the free/discounted Database Conversion services and the then retail price of Apteryx’s Database Conversion services as listed on Apteryx’s website.

4.7. Return of Materials. Upon expiration or earlier termination of this Agreement, each party shall: (a) promptly return to the other party, or cause the destruction of any of the following of the other party held in connection with the performance of this Agreement or the Services: (i) all Confidential Information and (ii) any other data, programs, and materials; and (b) return to the other party, or permit the other party to remove, any personal property of the other party then situated on such party’s premises. Notwithstanding the foregoing, the return of Customer data shall be subject to Section 5 of this Agreement. Furthermore, neither party shall be required to destroy any such Confidential Information, data, programs or materials that are maintained on such party’s back up data systems nor such Confidential Information that the party is instructed by legal counsel to maintain. Section “Non-Disclosure of Confidential Information” shall continue to apply to such Confidential Information so maintained.

 

  1. Termination Assistance Services. Provided that this Agreement has not been terminated by Service Provider due to Customer’s failure to pay any amount due Service Provider and provided further that Customer agrees to the costs and fees set forth by service Provider’s standard published Support Agreement hourly rate for the Termination Assistance Services (as hereinafter defined), Service Provider will provide to Customer, at Customer’s sole cost and expense, assistance reasonably requested by Customer in order to effect the orderly transition of the applicable Customer data, in whole or in part, to Customer (such assistance shall be known as the “Termination Assistance Services”) during the thirty (30) calendar day period prior to, and/or following, the expiration or termination of this Agreement, in whole or in part (such period shall be known as the “Termination Assistance Period”). Provided that Service Provider and Customer agree as to price and scope of Service Provider’s provisioning of the Termination Assistance Services, such Termination Assistance Services may include:

 

5.1. developing a plan for the orderly transition of Customer data from Service Provider to Customer;

 

5.2. using commercially reasonable efforts to assist Customer and/or a Customer designated partner, at Customer’s sole cost and expense, in acquiring a copy of Customer data;

 

5.3. such other activities upon which the parties may agree.

 

5.4. The provisions of this Section shall survive for not longer than thirty (30) calendar days after the termination or expiration of this Agreement.

 

  1. FEES AND EXPENSES. Customer shall be responsible for and shall pay to Service Provider the fees as described in Exhibit A, subject to the terms and conditions contained therein. Any sum due Service Provider for Services performed for which payment is not otherwise specified shall be due and payable thirty (30) days after receipt by Customer of an invoice from Service Provider.

 

6.1. Automatic Payment Processing. Unless otherwise provided for under Exhibit A, Service Provider shall automatically charge Customer the Monthly Fees specified in Exhibit A to the credit account specified by Customer in Exhibit A beginning when

Customer server and client setup is completed by Service Provider. By entering into this Agreement, Customer hereby authorizes Service Provider to automatically charge said method of payment for all Subscription Periods during the term of this the applicable Subscription Fee, together with a $50.00 late fee, to Service Provider within five (5) days of notice from Service Provider.

 

6.2. Additional Sums. Unless otherwise provided for under Exhibit A, Service Provider shall bill to Customer any additional sums due pursuant to Exhibit A by Automatic Payment Processing.

 

6.3. Invoices. For any fees that fall outside of this Agreement (e.g., software customization fees), Service Provider shall invoice Customer, which will contain: (a) Customer purchase order number, if any, and invoice number; (b) a description of Services rendered; (c) the Services fee or portion thereof that is due; (d) taxes, if any; and, (e) the total amount due. Service Provider shall forward invoices in hardcopy format to the address and contact specified in the “Address For Notice” section of this

Agreement or via email if specified by Customer. Customer shall pay invoices in full within thirty (30) days of the invoice date. Customer shall be responsible for all late fees on overdue invoices. If the account is turned over to collections, Customer agrees to be responsible for all fees associated with collecting on the account including, without limitation, reasonable attorneys’ fees.

 

6.4. Pricing Changes. Service Provider may make reasonable adjustments to the pricing set forth in this Agreement with thirty (30) days notice to Customer.

 

6.5. Sales Tax. The fees described in Exhibit A do not include any sales taxes that may be applicable to the Subscription Fees. Any and all applicable sales taxes will be added to the monthly Service Charges.

 

6.6. Taxes. Service Provider is an independent contractor for purposes of federal, state, and local employment taxes. Service Provider agrees that Customer is not responsible to collect or withhold any such taxes, including income tax withholding

and social security contributions, for Service Provider. Any and all taxes, interest or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied against Service Provider will be paid or withheld by Service Provider.

 

6.7. Other Taxes. The amount of the Subscription Fee does not include any applicable taxes. Customer is responsible for any and all applicable taxes.

 

  1. RIGHT TO USE, OWNERSHIP AND LICENSE IN SERVICES

 

7.1. Non-Exclusive Rights. Service Provider grants Customer a non-exclusive and nonsublicenseable right to access and use the Subscription Services. With the prior written consent of Service Provider, which consent shall not be unreasonably withheld, Customer may transfer this Agreement in connection with a sale or other disposition of substantially all the assets of the Customer’s business to which this Agreement specifically relates. Authorized Customer’s use of the Subscription Services is subject to the following:

7.1.1. EULA. In order to access the Subscription Services, Customer will be required to click through and agree to certain on-line terms and conditions, which are in addition to the terms and conditions of the Master Services Agreement.

 

7.1.2. Passive Conduit. Service Provider acts as a passive conduit, and is not responsible, for the online distribution and publication of text, pictures, graphics, sound, video, and other data (“Content”) sent or received by Customer pursuant to this Master Services Agreement. Moreover, as a passive conduit, Service Provider merely transports information and does not access it other than on a random or infrequent basis as necessary to perform required Services under this Master Services Agreement, or as required by law. If it comes to Service Provider’s attention that any Content may, in Service Provider’s sole discretion, create liability for any third party or Service Provider, Service Provider may take any action it deems reasonable or appropriate to protect Service Provider’s rights and interests. Customers and Users are not permitted to transmit data on the Services that: (a) infringes on any third party’s intellectual property or proprietary rights, or rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation; (c) are defamatory, trade libelous, threatening, unlawfully harassing, indecent, abusive, obscene, or contain child pornography; (d) contain viruses or other similar harmful or deleterious programming routines; (e) damage, disable, overburden or impair the Services or any other party’s use of the Services. In addition, Customers and their Users are not permitted to harvest email addresses through the Services.

 

7.1.3. Authorized Use. Customer agrees not to resell the Services or knowingly allow any unauthorized use by a third party. Customer agrees to notify Service Provider immediately if Customer becomes aware of any unauthorized use of the Services provided under this Agreement. Service Provider may terminate the Services without notice if Customer or its Users breach the Agreement.

 

7.1.4. Statistics Gathering. Customer acknowledges that Service Provider may disclose statistics about its users’ usage in

connection with Service Provider’s marketing activities, provided that Service Provider will only disclose such information

in the aggregate.

 

7.1.5. Third Party Intellectual Property. Unless otherwise specified in the Agreement that Customer, on its own, will

acquire and obtain a license to third party intellectual property, Service Provider shall grant to Customer or obtain for

Customer a license to third party intellectual property to the extent necessary for Customer to use third party intellectual

property to use the Services.

 

  1. REPRESENTATIONS AND WARRANTIES.

 

8.1. Mutual Representations and Warranties. Each of Customer and Service Provider represent and warrant that:

 

8.1.1. it is a business duly formed, validly existing, and in good standing under the laws of its state of formation;

 

8.1.2. it has all requisite power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;

 

8.1.3. this Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms;

 

8.1.4. the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;

 

8.1.5. it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations required of it in connection with its obligations under this Agreement; and, 8.1.6. there is no outstanding litigation, arbitrated matter or other dispute to which it is a party which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on its ability to fulfill its obligations under this Agreement.

 

8.2. By Service Provider. Service Provider represents and warrants that:

 

8.2.1. the Services shall be performed in a professional and workmanlike manner.

 

8.2.2. Service Provider shall not knowingly infringe upon any United States copyright or United States patent of any third party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement.

 

8.2.3. THE WARRANTIES CONTAINED IN THIS SECTION “BY SERVICE PROVIDER” MADE BY SERVICE PROVIDER ARE ITS ONLY WARRANTY AND SERVICE PROVIDER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THOSE WARRANTIES OF ERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL OPERATE AT ALL TIMES UNINTERRUPTED OR ERROR-FREE.

 

  1. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential and not intended to be disclosed to third parties.

 

9.1. Meaning of Confidential Information. For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that such disclosing party designates as proprietary or confidential in writing at the time of disclosure by such entity. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving entity without an obligation of confidentiality; (b) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (c) obtained from a source other than the disclosing entity without an obligation of confidentiality; or (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).

9.2. Data of Customer. Customer’s information contained in any Service Provider repository shall also be known as and treated by Service Provider as Confidential Information, and shall be and remain the sole and exclusive property of Customer. Customer shall be entitled to an export of Customer data, upon the request of Customer and upon termination or expiration of this Agreement or an Exhibit A and falls under the terms of the “Termination Assistance Services” section of this Agreement. Service Provider is provided a license to Customer data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display Customer data only to the extent necessary in the provisioning of the Services.

9.3. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or third party contractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and third party contractors of their obligations to keep such information confidential.

 

9.4. Cooperation to Prevent Disclosure of Confidential Information. Each party shall use reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of

the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

 

9.5. Remedies for Breach of Obligation of Confidentiality. The parties acknowledge that breach of its obligations of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, each party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, the immediate termination of this Agreement.

9.6. The provisions of this Section “Non-Disclosure of Confidential Information” shall survive for a period of three (3) years following the termination or expiration of this Agreement.

 

  1. IDENTITY THEFT. In the performance of this Master Services Agreement, Service Provider may have possession or access to documents, records or items that contain Social Security numbers, driver license or state identification card numbers, passport numbers or other United States issued identification numbers, or financial account number, credit or debit card numbers, in combination with any required security code, access code or password that would permit access to a consumers financial account (“Personal Information”). Personal Information is a type of Confidential Information that is highly sensitive and subject to additional protection. Therefore, prior to the receipt of, and during the period in which Service Provider has possession of or access to, any Personal Information, Service Provider shall have in place, a formal information security program that provides safeguards to protect Personal Information from loss, theft, and disclosure to unauthorized persons.

 

10.1. Access To Personal Information. Service Provider shall not breach or permit breach of the security of any Personal Information that is contained in any document, record, compilation of information or other item to which Service Provider receives access, possession, custody or control under this Agreement. Service Provider shall not disclose, or otherwise permit access of any nature, to any unauthorized person, of any such Personal Information. Service Provider shall not use, distribute or dispose of

any Personal Information other than expressly permitted by the Customer, required by applicable law, or required by an order of a tribunal having competent jurisdiction.

 

10.2. Reporting. Service Provider shall report to the Customer, as promptly as possible, any breach of security, use, disclosure, theft, loss, or other unauthorized access of any document, record, compilation of information or other item that contains Personal Information to which the Service Provider receives access, possession, custody or control in the performance of this Agreement.

 

10.3. Customer’s Responsibility. Service Provider shall not be held liable or responsible for any breach of security, use, disclosure, theft, loss, or other unauthorized access of Personal Information due to any dissemination, disclosure, breach of security, malicious act, weak password security, data mining or any other action resulting directly or indirectly from Customer or Customer’s Users.

 

  1. PROPRIETARY RIGHTS.

 

11.1. Title and Ownership. Customer acknowledges that all right, title, and interest in and to the Services and all software used to provide the Services, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, data, trade names, trademarks, or other related materials (collectively, the “Service Provider IP”), is, and at all times shall remain, the sole and exclusive property of Service Provider. The Service Provider IP contains trade secrets and proprietary information owned by Service Provider that is protected by United States and foreign laws relating to intellectual property. Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or any software used to provide the Services.

 

11.2. Restricted Access. Customer shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse

engineer, download, transmit or distribute all or any portion of the Services and/or any software used to provide the Services in any form or media or by any means.

 

11.3. Pre-existing Materials. Customer acknowledges that, in the course of performing the Services, Service Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Service Provider (collectively, the “Pre-existing Materials”) and that same shall remain the sole and exclusive property of Service Provider.

 

11.4. No License. Except as expressly set forth herein, no license is granted by either party to the other with respect the Confidential Information, Pre-existing Materials, or Customer data. Nothing in this Agreement shall be construed to grant to either party any ownership or other interest, in the Confidential Information, Pre-existing Materials, or Customer data, except as may be provided under a license specifically applicable to such Confidential Information, Pre-existing Materials, or Customer data.

 

11.5. Survival. The provisions of this section shall survive termination of this Agreement.

 

  1. INDEMNIFICATION.

 

12.1. General Indemnity. Each party agrees to indemnify, defend, and hold the other and its officers, directors, agents, and employees (each, an “Indemnitee” and collectively, the “Indemnitees”) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, or judgments (collectively “Claims”), including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any negligent act or omission of the indemnifying party, its officers, directors, agents and employees during the Term of this Agreement, including, without limitation, Claims arising out of or relating to bodily injury (including death) or damage to tangible personal or real property.

 

12.2. Promptly after receipt by the Indemnitee of a threat of any action, or a notice of the commencement, or filing of any action against the Indemnitee, the Indemnitee shall give notice thereof to the other, provided that failure to give or delay in giving such notice shall not relieve the indemnifying party of any liability it may have to the Indemnitee except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced thereby.

 

  1. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, SERVICE PROVIDER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SERVICE PROVIDER SHALL BE LIABLE FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF SERVICE PROVIDER, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT,

EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT. THIS SECTION SHALL SURVIVE THE

EXPIRATION OR TERMINATION OF THIS AGREEMENT.

 

  1. GENERAL.

 

14.1. Relationship between Customer and Service Provider. Service Provider is an independent contractor with no authority to contract for Customer or in any way to bind or to commit Customer to any agreement of any kind or to assume any liabilities of any nature in the name of or on behalf of Customer. Under no circumstances shall

Service Provider, or any of its staff, hold itself out as or be considered an agent employee, joint venture, or partner of Customer. In recognition of Service Provider’s status as an independent contractor, Customer shall carry no Workers’ Compensation insurance or any health or accident insurance to cover Service Provider or Service Provider’s agents or staff. Customer shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, any other applicable taxes whether federal, state, or local, nor provide any other contributions or benefits which might be expected in an employer-employee relationship. Neither Service Provider nor its staff shall be eligible for, participate in, or accrue any direct or indirect benefit under any other compensation, benefit, or pension plan of Customer.

 

14.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio and the federal laws of the United States of America. The parties expressly stipulate that all litigation under this Agreement shall be brought in the State courts of the County of Summit, Ohio or the United States District Court for the Northern District of Ohio, and for the purpose of any such suit irrevocably submit and consent to the personal and subject matter jurisdiction and

venue of any such court.

 

14.3. Force Majeure. Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, and problems with telecommunications providers to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.

 

14.4. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

 

14.5. Notices. Any notice given pursuant to this Agreement shall be in writing and shall be given by personal service or by United States certified mail, return receipt requested, postage prepaid or by nationally recognized overnight carrier (e.g., FedEx or UPS) to the “Address For Notice” appearing at the end of this Agreement, or as changed through written notice to the other party. Notice given by personal service shall be deemed effective on the date it is delivered to the addressee, notice mailed shall be

deemed effective on the third day following its placement in the mail to addressed to the addressee, and notice dispatched by nationally recognized overnight carrier shall be deemed effective on the next business day following its placement with such

carrier addressed to addressee.

 

14.6. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile

signature or signature delivered by other electronic delivery (e.g., portable document format (PDF) file) may substitute for and have the same legal effect as the original signature.

 

14.7. Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Customer and Service Provider as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties.

 

14.8. Headings. The headings used herein are for organizational purposes only and do not

constitute a part of this Agreement.

 

14.9. Transferability. The rights and obligations of either party shall not be transferable without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. All obligations of the parties herein shall be binding upon their respective successors or assigns.

 

14.10. Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, except in those instances where removal or elimination of such invalid, illegal, or unenforceable provision or provisions would result in a failure of consideration under this Agreement, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or

unenforceable provisions had never been contained herein.

EXHIBIT A

Software as a Service (“SaaS”) Statement of Work

This Exhibit A – Software as a Service (“SaaS”) Statement of Work shall be incorporated in and governed by the terms of the Master Services Agreement by and between “Customer” and “Service Provider” Unless expressly provided for in this Exhibit A, in the event of a conflict between the provisions contained in the Agreement and those contained in this Exhibit A, the provisions contained in the Agreement shall prevail.

 

Apex Cloud SERVICE LEVEL SELECTED BY THE CUSTOMER (please indicate the number of each service)

 

Service Cost Per Month Per Package Upload/Store Limit Per Package

Gigs Per Month

 Download/View Limit Per Package

Gigs Per Month
               X 100 Gigabytes Packages $50 2.5 2.5
               X 2 Terabyte Packages $800 50 8.33

 

ADDITIONAL FEES AND OPTIONS

  1. Set-Up Fees. Customer will pay Service Provider a one-time setup fee of US $150 (One Hundred and Fifty Dollars US) that will be charged during the first month of Service.

 

  1. Capture and Camera/View Stations. To add additional capture and/or advanced viewing capabilities to your network, subscription licenses of Apex Cloud Capture or Camera can be added to your monthly service. Please indicate the number of workstations needed.

 

Service Cost Per Month Per User
X Apex Cloud Capture $25

 

  1. DICOM Encryption Gateway. To add an encryption gateway for unsecure third-party DICOM software, subscription licenses of our DICOM Encryption Gateway can be added to your monthly service. Please indicate the number of locations needed.

 

Service Cost Per Location
X DICOM Encryption Gateway $20

 

  1. Volume Restrictions. Customer will be restricted to the volumes associated with the selected Service Level. If the Customer exceeds the volumes associated with their Service Level, the Customer agrees to the following overage charges.

 

Volume Overage Cost Per Gig
Storage Max $0.50
Upload/Store $0.50
Download/View $0.50

 

  1. Technical Support. Service Provider will provide reasonable technical support concerning the Service during Service Provider’s normal business hours as defined on Service Provider’s website at no additional cost to the Customer. After-hours support may be purchased at additional cost through a separate support agreement through Service Provider. Customer acknowledges that Service Provider only provides support for Service Provider’s software and not for Customer’s infrastructure, Internet connection, operating systems, hardware and/or other non-Service related items.