Master Services Agreement

This Master Services Agreement (“Agreement”) takes effect upon approved execution of any quotation or, if earlier, upon use of any service offerings (“Effective Date”). This Agreement is entered into by and between Innovative Computing Systems, Inc., a California corporation (“ICS”), with its principal place of business at 1000 Wilshire Boulevard, Suite 1900, Los Angeles, CA 90017, and the designated entity as specified on any quotation for products and/or services (“Client”).

Subject to the Terms and Conditions of the Master Services Agreement, (“Ts & Cs”) attached as Attachment A, and the terms and conditions set forth in any other subsequent Quotations, which are incorporated herein by this reference, the parties agree as follows:

ICS Services. ICS will perform services for Client described in statement(s) of work and quotations (“Quotations”) that may be entered into pursuant to this Agreement from time to time. ICS may perform Consulting Services, MSP Services, BDR Services, provide Cloud Services or shall agree to provide, pursuant to a Quotation, the combined offering of hardware and software products, Consulting Services, MSP Services, BDR Services, Cloud Services, and training for Client, or any combination of the foregoing (as each service is defined below individually and referred to collectively in this Agreement as the “ICS Services”).

Consulting Services. If selected or ordered in the future, ICS shall provide consulting services to Client, which shall be governed by this Agreement and the Ts & Cs, together with separate executed Quotations that define the scope of consulting services for each consulting project (collectively, “Consulting Services”).

Managed Services. If selected or ordered in the future, ICS shall provide Managed Service Program (MSP) services to Client, which shall be governed by this Agreement and the Ts & Cs, together with a separately executed Quotation that defines the scope of the MSP services for each MSP engagement (collectively, “MSP Services”).

Backup and Disaster Recovery Services. If selected or ordered in the future, ICS shall provide a backup and disaster recovery solution to Client, to be governed by this Agreement and the Ts & Cs, together with a separately executed Quotation that defines the scope of the backup and disaster recovery services (the “BDR Services”).

Cloud Services. If selected or ordered in the future, ICS, as a reseller, shall provide to Client web services that provide compute capacity in the cloud (“Cloud Services”) subject to Service Level Agreements (“SLAs”) relating to Amazon Web Services, Microsoft Azure, Microsoft Office 365, or such other service from a provider from which ICS determines to contract (such agreement with ICS and the provider referred to as the “Master Cloud Agreement”). The links to each Master Cloud Agreement and SLA for the parties with whom ICS currently contracts are as follows: https://aws.amazon.com/agreement/ and https://www.microsoft.com/en-us/servicesagreement. Any Master Cloud Agreement and SLA may be updated periodically, and ICS has no obligation to provide updated links to Client which, instead, is the responsibility of Client. ICS is not responsible for any assurances of a provider under any Master Cloud Agreement or SLA which, by their terms, expressly limit liability.

Hardware, Software, Licensing and Access. If selected or ordered in the future, ICS and Client shall commit to a Quotation pursuant to which ICS shall provide Consulting Services, hardware and software (products), licensing or access, or a combination, all of which shall be governed by this Agreement and the Ts & Cs, together with separate executed Quotations that define the scope of the purchase and implementation for each such transaction. Quotations commonly include third party Vendor fees wherein user counts and/or usage fluctuate on a monthly basis. Examples include but are not limited to Amazon Web Services, Microsoft Office 365, Duo Security, LogicMonitor, EventTracker, StorageCraft, OpenDNS and Sophos. Client shall be invoiced for periodic fluctuation based on each Vendor’s highest reported usage.

Engagement of Services. Each Quotation shall be executed or acknowledged by both parties and become a part of this Agreement and is expressly made a part hereof by this reference. In the event of any conflict between the terms of this Agreement and the Ts & Cs, on the one hand, and any of the terms and conditions contained in any Quotation, on the other, the following priority (in descending order of priority) shall apply with respect to which provisions shall control: (1) this Agreement and the Ts & Cs, and (2) the Quotation.

Fees and Costs. Client will pay to ICS fees and materials costs, as identified in applicable Quotation and/or a related invoice (“Invoice”), subject to the terms of the Ts & Cs.

Term. This Agreement will commence on the Effective Date and continue until terminated in accordance with the Ts & Cs.

This Agreement (which includes all executed Quotations and delivered Invoices now or in the future and all attachments hereto) is the entire agreement between the parties and supersedes all previous agreements, communications and course of dealing between the parties regarding the subject matter hereof. The parties agree to be bound by the terms of this Agreement and have caused this Agreement to be executed as of the Effective Date by a duly authorized representative.

Both parties acknowledge that any references to “Delivery Date” and/or “Expiration Date” in the header of MSA quotations, only apply to the quotation in which the Agreement was published and do not in any way impact this Agreement or its terms and conditions. This binding contract continues in perpetuity until such time that it is terminated by either party according to the procedures detailed in Termination section of Attachment A.

Attachment A – Terms and Conditions

These Terms and Conditions of ICS Services (“Ts & Cs”) apply to the ICS Services provided under the ICS Master Services Agreement (“Master Services Agreement”) entered into between the parties (together with each executed or acknowledged Quotation, the “Agreement”). All capitalized terms not defined herein shall have the meaning ascribed to them in the Master Services Agreement.

1. Payments. All payments owing shall be paid in full within thirty (30) days of the Invoice Date, unless stated differently on a Quotation or Invoice. Acceptance of partial payments shall not be construed as acceptance of payment in full nor waive any rights of ICS to seek full payment or otherwise exercise its rights resulting from nonpayment. Fees and costs due from Client may not be withheld or offset for any reason. All fees and costs are payable in US dollars.

Any payment or other charge that is not paid on or before the date due shall, in addition to all other remedies available to ICS, bear interest at a rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law (whichever is less), for the number of days such payment is delinquent. ICS may suspend or cancel performance of ICS Services if any payment is delinquent for more than five (5) days following Client’s receipt of a written notice from ICS regarding such delinquency. Client agrees that all ICS invoices are binding upon Client, and not subject to further adjustment, unless Client notifies ICS in writing within ten (10) days of the receipt of the invoice specifically describing any bona fide inaccuracies, discrepancies or errors.

Client agrees to pay for any ICS Services for which services are rendered on an hourly basis, including Consulting Services or MSP Services, in .1 hour increments including for one-way travel time, with services delivered at the facilities of Client subject to a one hour on-site minimum, and services delivered off-site subject to an eighteen minute (.3 hour) minimum. To the extent applicable, ICS consultant hours will be itemized as services are performed.

In addition to all payments for services, Client agrees to reimburse ICS for reasonable travel expenses including, but not limited to, ground transportation, lodging, meals, parking and associated expenses, each as incurred.

2. Provision of Services and Additional Services. ICS shall perform all of its services in a professional manner and, when applicable, in accordance with the requirements prescribed in the appropriate manufacturer’s operation and installation manuals. ICS cannot and does not guarantee a particular result, except, when applicable, as set forth in each such manual. ICS reserves the right to determine the use and mix of personnel in order to maintain the necessary and proper progress of its performance. Changes in scope of any Quotation caused by Client or other factors beyond the reasonable control of ICS will require an equitable adjustment to ICS’s fees and/or date of performance, or both, and ICS shall not be required to undertake such additional work unless and until both parties have agreed, in writing, upon such adjustment. Client may request for ICS to perform additional services that are not expressly included within the scope of ICS Services (“Additional Services”). ICS may in its sole discretion, but shall not be obligated to, agree to perform any such Additional Services. Additional Services shall be provided pursuant to mutually executed or acknowledged written supplemental Quotations detailing the Additional Services to be provided, the time line for performance, and the fees payable for such Additional Services; however, Client shall also be responsible for payment for any Additional Services for which it receives a benefit not expressly set forth in a Quotation or supplemental Quotation whether by Invoice or otherwise.
3. Designated Representatives. ICS and Client will each designate a representative who has overall responsibility for the project described in each Quotation (“Project Manager”). The Project Manager shall be responsible for coordinating such party’s performance and assisting the other party as required in gathering and exchanging information, procuring services and performing related activities under the Agreement. Either party may at any time change its Project Manager by providing written notice of such change to the other party’s Project Manager.
4. Client Obligations. Client shall provide ICS with access to its facilities as is reasonably necessary for the performance of the ICS Services. Client shall cooperate fully with ICS and its employees, agents and subcontractors and reasonably make available its resources that are necessary to enable ICS to provide the ICS Services and make available a reasonable amount of secure space or storage by ICS of such items as ICS deems necessary. Client shall, if necessary, obtain waivers or consents from Client’s landlord, or other consents or waivers that may be required, prior to installation, to permit the above. All risk of loss with respect to any hardware, software, equipment or other tangible personal property shall be borne by Client upon delivery to Client’s facilities or other Client designated shipment location. Client shall provide ICS, in a timely fashion, with all information necessary as reasonably requested by ICS to perform the ICS Services. Client represents that all information presently known to Client to be necessary to ICS’s performance of the ICS Services has been disclosed or provided to ICS, and Client will keep ICS timely informed of any updates or supplemental information of which Client becomes aware and that is material to ICS’s performance of the ICS Services. In the event of Client’s failure to perform its responsibilities hereunder, ICS may, at its option, assume or fulfill any and/or all of Client’s responsibilities (at Client’s cost), or suspend or cancel performance of the ICS Services.
5. Acceptance of Deliverables. All deliverables provided to Client by ICS under a Quotation (each a “Deliverable”) will be promptly reviewed and accepted or rejected by Client’s Project Manager, in accordance with any acceptance procedures specified in the applicable Quotation or other written materials provided by ICS.

Each Quotation will include a description of the work or service to be provided; conditions specific to the provision of that service; and a description of billing rates and/or costs. If Client requests ICS to modify the scope or to change the direction of any ICS Services, the following guidelines will apply: ICS will complete a project change request form (which will include the estimated cost of making the change, and the time period it will take to complete the change) and submit the form to the Client’s designated representative for consideration. The Client will either authorize or decline the change in writing within a reasonable time. If the parties cannot agree on a proposed change within a reasonable period of time, the Quotation will not be amended and the terms of the original Quotation shall remain in full force and effect. The foregoing notwithstanding, the parties acknowledge that more immediate timing requirements or deadlines, or other unplanned exigencies may preclude execution or acknowledgement of an amended or new Quotation, and that in such instances Client shall be responsible for payment for any ICS Service provided or rendered in good faith.

6. Ownership and License. All rights in any technology, code, data or other materials developed by or for ICS or Client independent of the Agreement that are provided pursuant to a Quotation(“Pre-Existing Property”) shall remain the sole property of the party providing the Pre-Existing Property.

All third-party software products that are provided to Client pursuant to a Quotation or otherwise by ICS shall be licensed to Client according to the terms of the applicable license agreement provided with such software product.

Except as provided in this section, all rights in any modifications or derivative works of Client Pre-Existing Property developed by ICS and provided to Client in the course of its performance of a Quotation shall be owned by Client, and ICS agrees to assign and does hereby assign to Client all right title and interest that ICS may acquire during the term of the Agreement in all modifications and derivative works of Client Pre-Existing Property.

Notwithstanding anything to the contrary, (a) ICS shall retain the right to use its knowledge, experience and know-how to provide ICS Services and develop deliverables for its other customers, irrespective of any similarity to the ICS Services or Deliverables provided under the Agreement; (b) any feedback provided by Client respecting any ICS Services or Software (“Feedback”) is voluntary and, without any additional consideration owing to Client, and Client hereby automatically assigns to ICS all rights and interests in and to all Feedback; and (c) nothing contained in the Agreement shall limit in any way ICS’s right to use the ICS Services, Software or Feedback for itself or any third party.

7. Representations and Warranties. Each party represents and warrants to the other that:
   a) it is duly organized and validly existing under the laws of the state/province of its incorporation or formation and has full corporate power and authority to enter into the Agreement and to carry out its provisions;
   b) it is duly authorized to execute and deliver the Agreement and to perform its obligations, and
   c) the Agreement is valid and legally binding upon it and the execution, delivery and performance of the Agreement by such party does not conflict with any other agreement, instrument or understanding to which it is a party or by which it may be bound nor would violate any law or regulation of any court, governmental body or agency having jurisdiction over it.
8. BDR Services. If Client has declined any BDR Services, Client acknowledges that ICS has no obligation to backup Client data and ICS has no obligation to recover Client data under any circumstances. Client hereby agrees to waive and release all claims, suits, encumbrances, injunctions, damages, judgments, liabilities (the “Release” or the “Releases”) against ICS, ICS’s employees, owners, members, shareholders, agents, assigns, independent contractors, trade partners, channel partners, vendors, resellers, wholesalers, trade group or coop members, successors in interest, third party service providers, or any other party acting on ICS’s behalf for the direct or indirect benefit of Client (collectively with the ICS, the “ICS Release Parties”) and Client releases, covenants not to sue, and agrees to hold harmless, indemnify and defend ICS and the ICS Release Parties.Client further covenants to Release and not to sue, release, hold harmless, defend and indemnify the ICS Release Parties in relation to all claims, damages, suits, demands, trials, tribunals, dispute resolution proceedings and causes of action arising from any consequences resulting from failure (including, without limitation inadvertence, mistake, negligence, gross negligence or willful misconduct of Client and affiliates of Client, owners, managers, employees, agents, contractors, members, shareholders, officers, directors, professionals, experts, vendors, successors and assigns) of Client to maintain an adequate BDR system for any of Client’s data including, but not limited to, personally identifiable information, medical data and personal health information), including data for Client’s employees, Client’s customers, employees of Client’s customers and any data subject to Client’s obligations under any applicable Federal, state, local law or regulation or any other contractual obligation Client may have with respect to the maintenance, security, confidentiality and privacy of any data, including (but not limited to) third party data, for which Client has a duty, or other legal, administrative, regulatory or contractual obligation.
9. Cybersecurity Services. If Client has declined all or a portion of cybersecurity services or failed to implement in full related recommendations (“Cybersecurity Services”) including, without limitation, written or oral advice in connection with the same, whether before or after the Effective Date, then Client acknowledges that ICS will not be providing the recommended level of cybersecurity protections, which may increase the risk of cyberattacks against Client’s network security and any damages which may result therefrom. Client hereby Releases and waives all claims against ICS and the ICS Release Parties with respect thereto.Client further covenants to Release and not to sue, release, hold harmless, defend and indemnify the ICS Release Parties in relation to all claims, damages, suits, demands, trials, tribunals, dispute resolution proceedings and causes of action arising from any consequences resulting from failure (including (but not limited to) inadvertence, mistake, negligence, gross negligence or willful misconduct of Client and affiliates of Client, owners, managers, employees, agents, contractors, members, shareholders, officers, directors, professionals, experts, vendors, successors and assigns) of Client to accept Cybersecurity Services in order to reduce the risk of cyberattacks and all damages resulting therefrom.The foregoing notwithstanding, nothing in this section is intended to eliminate, reduce or otherwise affect any of the liability protection provisions afforded to ICS including, without limitation, as described in Sections 11 and 12 of the T’s and C’s.
10. Warranty and Disclaimer. All software, ICS services, and deliverables are provided “as is” without any warranty of any kind including, without limitation, any warranty of merchantability, fitness for a particular purpose or non-infringement. ICS does not warrant that any software, ICS services or deliverable are or will be maintained error-free, that they will operate without interruption, that any defects will be corrected through any of its ICS services, that they will correctly process data and information, or that they will function correctly with any other software or hardware. Client acknowledges and agrees that ICS is not responsible for and will have no liability for hardware, software or other items or any services provided by any persons other than ICS, all of which shall be limited to the warranties provided by the software or hardware supplier, or in the event of cloud services, subject to the warranties and remedies provided in or as otherwise limited by the service level agreements made available by the party with which ICS has contracted under a master cloud agreement and for which any relief is available to ICS as a reseller.
11. Limitation of Liability. Notwithstanding any other provision within this Agreement, to the maximum extent permitted by law, ICS will not be liable with respect to the software or any deliverable or ICS services provided hereunder, under any contract, negligence, strict liability or other legal or equitable theory for:
    a) Any amounts in excess in the aggregate of the amounts paid by client under the applicable quotation for consulting services, MSP services and BDR services during the twelve month period immediately proceeding the date on which the claim arose, orb) Any special, incidental or consequential damages of any character, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, loss of data, or any loss of profits, even if ICS has been advised of the possibility of such damages, or
    c) The cost of procuring substitute goods, services, software or technology.

Any claim by client against ICS relating to the agreement must be made in writing and presented to ICS within ninety (90) days after the ICS services relating to such claim were provided. The parties acknowledge and agree that the limitations of liability, disclaimers of warranties, and limited remedies set forth in the agreement represent an inseparable allocation of risk (including, without limitation, in the event of a total and fundamental breach of the agreement) that is an essential basis of the bargain between the parties.

12. Additional Protections. a) ICS shall not be liable for any unlawful or unauthorized access, damage, loss or intrusion to client data, nor shall ICS be liable for any unlawful or unauthorized access, damage, loss or intrusion to any data of client’s clients, any data of any entity or person serviced by client, and/or any entity or person to whom client otherwise owes a duty of care, whether such duty of care arises pursuant to contract or as a matter of applicable law. Client shall be solely responsible for determining what applicable compliance standards, if any, it must or should adhere to or maintain for itself, its clients, clients or other third parties concerning data compliance, storage, backup, retention and restoration for anyone to whom client is responsible and/or otherwise owes a duty of care concerning such data compliance, storage, backup, retention and restoration.
    b) Client fully and forever Releases and discharges ICS and the ICS Release Parties from any and all injuries, losses, damages, claims (including negligence claims), demands, lawsuits, expenses, and any other liability of any kind, of or to Client, its property, Client’s clients, employees, suppliers or any other person, directly or indirectly arising out of or in connection with services provided by third party vendors.

    Further, Client will defend, indemnify, hold harmless, and reimburse ICS from and for all damages, losses, costs, or expenses (including legal fees) incurred by the ICS or paid by them to any person (including Client or its respective insurers) in respect of any liability resulting from services provided by third party vendors. In addition, Client will not initiate any claim, lawsuit, court action, or other legal proceeding or demand against ICS, nor join or assist in the prosecution of any claim for money or other damages which anyone may have, on account of injuries, losses, or damages sustained by Client, its clients, employees or suppliers, other parties, or any such person’s property in connection with any services provided by third party vendors

    c) ICS shall not be liable for any inability of ICS, Client or Client’s clients to access, maintain, recover or restore any of Client’s data, including (but not limited to) any inability as a result of force majeure, acts of God and nature, war, terrorism, bankruptcy, insolvency or shutdown of any business of Client, Client’s clients, Client’s vendors, or ICS’s vendor or vendors, channel partners, licensees or licensors, VOIP service providers, or agents, except as otherwise required by law. For purposes of this section, “vendor” or “vendors” includes, but is not limited to, vendors storing Client’s Data or Client’s Client data in the “cloud”, such as offsite storage facilities.

13. Client Insurance. Due to the complexity and severity of the exposures created by the use of computer systems, Client shall consult with a qualified risk manager to evaluate its exposures. Client shall carry the following insurance policies, including:
    a) Commercial General Liability Insurance. Client shall maintain coverage with limits no less than one million dollars ($1,000,000) per occurrence combined single limit and two million dollars ($2,000,000) in the aggregate, including coverage for contractually assumed liability as contained herein.Client fully and forever Releases and discharges ICS and the ICS Release Parties from any and all injuries, losses, damages, claims (including negligence claims), demands, lawsuits, expenses, and any other liability of any kind, of or to Client, its property, Client’s clients, employees, suppliers or any other person, directly or indirectly arising out of or in connection with services provided by third party vendors.
    b) Property Insurance. Client shall maintain property insurance with a coverage extension for electronic data. The computer equipment policy will pay for loss or damage caused by or resulting from an accident to computer equipment. Computer equipment means covered property that is electronic computer or other data processing equipment, including, ‘media’ and peripherals used in conjunction with such equipment, including loss of income.
    c) Cyber and Privacy Insurance. Policy coverage at a minimum shall include the following:
    (i) Cyber-extortion coverage
    (ii) Data asset coverage
    (iii) Computer fraud
    (iv) Business interruption
    (v) Extra expense
    (vi) Privacy notification and crisis management expenses
    (vii) Information security and privacy liability
    (viii) Website media content liability
    (ix) Mechanical breakdown and electrical failure
    d) Certificate of Insurance. As to any insurance policies referenced above in this section, if any, Client shall provide a certificate of insurance to ICS upon written request.
    e) Waiver of Subrogation. Notwithstanding anything in this Agreement to the contrary, ICS hereby releases and waives unto Client, its successors and assigns, and Client hereby releases and waives unto ICS, its successors and assigns, all rights to claims for damages as long as the amount of such damages has been paid to either ICS or Client or any party claiming through them, under the terms of any policy of insurance. ICS and Client each waive the insurance carriers’ rights of subrogation.
14. Indemnification.

14.1 Indemnity Generally. Each party agrees to defend, indemnify and hold the other party harmless from all claims for death or bodily injury of any person, or damage to real and/or tangible personal property, and any and all damages, liabilities, costs and expenses resulting from such claims, to the extent proximately caused by the gross negligence or willful misconduct of such party or any of its employees or agents. Nothing in this paragraph relieves either party from liability for its own act, omission, or negligence, The right of a party (the “indemnified party”) to indemnification under the Agreement shall be conditioned upon the following: prompt written notice to the party obligated to provide indemnification (the “indemnifying party”) of any claim, action or demand for which indemnity is claimed; control of the investigation, preparation, defense and settlement thereof by the indemnifying party; and such reasonable cooperation by the indemnified party, at the indemnifying party’s request and expense, in the defense of the claim. The indemnified party shall have the right to participate in the defense of a claim by the indemnifying party with counsel of the indemnified party’s choice at the indemnified party’s expense. The indemnified party shall not, without the prior written consent of the indemnifying party enter into any settlement or compromise concerning any claim subject to indemnification pursuant to this section.

14.2 Infringement. In addition to the foregoing, and except as excluded below, ICS will defend, indemnify and hold Client harmless (or cause the manufacturer or provider to do the same) from and against any and all claims or suits against Client which allege infringement of a United States patent or copyright due to Client’s use of hardware or software that are subject to the Agreement, provided that ICS is notified promptly in writing of the suit, (a) Client gives ICS (or the equipment or software manufacturer, as applicable) the sole right to defend and settle any suit, and (b) Client fully cooperates in the defense when and as requested by ICS. Should Client’s continued use of equipment or software be enjoined, ICS will, at its option and expense, either: (c) procure for Client the right to continue using the affected equipment or software, or (d) replace or modify the same so that infringement is eliminated. This indemnity shall not apply to any claims or suits concerning: (e) items manufactured by ICS at Client’s request and according to Client’s production specifications, (f) use of equipment or software in a manner or for a purpose not contemplated by this Agreement, (g) equipment or software used by Client, but which was not supplied by ICS, or (h) commercial merchandise available on the open market or its equivalent. The indemnity contained in this paragraph shall survive the delivery of products and professional services.

15. Confidential Information.

15.1 Confidentiality Obligations. The parties acknowledge and agree that, as a result of negotiating, entering into and performing the Agreement, each party (a “receiving party”) has and will have access to certain Confidential Information (as defined below) of the other party (a “disclosing party”). Each receiving party acknowledges and agrees that misuse and/or disclosure of the Confidential Information of the disclosing party could adversely affect the disclosing party’s business. Accordingly, the parties agree that, during the term of the Agreement, the receiving party shall: a) use and reproduce the disclosing party’s Confidential Information only to perform its obligations hereunder and for the purposes specified in the Agreement,b) restrict disclosure of the disclosing party’s Confidential Information to its employees and contractors with a need to know the Confidential Information to enable the receiving party to perform its obligations under the Agreement,

c) not disclose the disclosing party’s Confidential Information to any third party (including, but not limited to, any third-party consultant, contractor, or agent) without the prior written approval of the disclosing party and without first obtaining such third party’s written agreement to maintain the confidentiality of the disclosing party’s Confidential Information under terms and conditions at least as stringent as those set forth in this section, and

d) following the expiration or earlier termination of the Agreement, it shall promptly return to the disclosing party all Confidential Information of the disclosing party or destroy such Confidential Information and so certify in writing to the disclosing party.

Notwithstanding the requirements of this section, the receiving party may disclose Confidential Information of the disclosing party to the extent it is required to do so under law or in a judicial or other governmental investigation or proceeding, provided that the receiving party gives the disclosing party prompt written notice of the compelled disclosure and cooperates with the disclosing party in seeking a protective order or any other available protections available to limit the disclosure of the disclosing party’s Confidential Information.

15.2 Confidential Information Defined. As used herein, the term “Confidential Information” shall mean all information disclosed in tangible form to a party and marked as “confidential” or “proprietary”, or when disclosed orally the disclosing party notifies the receiving party in writing of its confidential nature within ten (10) business days of disclosure. All Client data to be hosted or serviced by ICS and any Deliverables from Client to ICS delivered pursuant to this Agreement shall be the Confidential Information of Client. Neither party shall disclose the terms of the Agreement to any third party (including, without limitation, any press release relating to the Agreement) without the prior written consent of the other party, except to potential investors, lenders, underwriters and acquirers of the receiving party. Notwithstanding the foregoing, the term “Confidential Information” specifically excludes:

a) information that is in the public domain or enters the public domain through no action or default of the receiving party;b) information that is known to the receiving party without restriction, prior to receipt from the disclosing party;

c) information that the receiving party receives from a third party known by the receiving party to have a legal right to transmit such information, and not under any obligation of confidentiality; or

d) Information that was independently developed by the receiving party’s employees or agents without any use of the disclosing party’s Confidential Information.

1. Termination.
   
   16.1 Notice of Termination.Except as otherwise expressly agreed in a Quotation, the Agreement (and the ICS Services arising therefrom) may be terminated, with or without cause, upon ninety (90) days advance written notice by either party. Since ICS incurs significant costs in the beginning months when performing services defined in a Quotation relating to MSP Services, an “Early Termination Fee” may apply for all contracts cancelled prior to the designated term (as defined in each applicable Quotation). Client acknowledges and agrees that certain ICS Services, including BDR Services and Cloud Services, may require time commitments as long as three (3) years depending upon the Quotation, and an early termination may require payment by Client to ICS of a significant Early Termination Fee as set forth in the applicable Quotation. Client shall owe all amounts owing under Invoices relating to Quotations including Early Termination Fees notwithstanding any notice of termination as provided in Section 16.4.

16.2 Breach. The Agreement may be terminated by either party if the other party materially breaches any provision of the Agreement and such breach is not cured within thirty (30) days after demand for cure is made in writing. ICS also has the right to suspend or cancel any ICS Services if Client fails to make any payment when due. ICS’s right to suspend or cancel the ICS Services is without limitation of any other remedy available to it arising out of Client’s breach, including termination.

16.3 Insolvency or Bankruptcy. Either party may immediately terminate the Agreement by written notice to the other party (without prior advance notice), if the other party: (i) makes an assignment for the benefit of its creditors; (ii) becomes insolvent, or voluntary or involuntary proceedings are instituted by or against such other party under any bankruptcy or insolvency laws and such proceedings are not terminated within sixty (60) days; or (iii) if a receiver is appointed for such other party or its assets for a period of more than sixty (60) days.

16.4 Effect of Termination. Termination of the Agreement shall terminate all Quotations (subject to Client’s obligations upon termination). Upon the expiration or any termination of the Agreement,
a) each party shall promptly return all papers, materials and other properties of the other party held by it;

b) all licenses granted to Client shall immediately terminate; and

c) Client shall immediately discontinue all use of any Deliverable not then accepted or paid for, which Deliverable(s) shall be immediately returned to ICS. If development of any Deliverable is terminated prior to its acceptance, Client shall be obligated to pay ICS such amounts as are due and owing under the applicable Quotation as of the date of such termination, or ICS’s time and materials rates for the ICS Services actually provided through the date of termination (up to the fees due on completion), whichever is higher.

d) Neither party shall be relieved of any obligation accruing under the Agreement, an Invoice or a Quotation prior to its termination.

16.5 Survival. The provisions of Section 1 and Sections 6 through 21 of the Ts & Cs and any accrued rights to payment of amounts due ICS for ICS Services but unpaid, will survive any termination of the Agreement.

17. Force Majeure.Except for the payment of any amounts due hereunder, if either party is delayed or prevented from performing, or is unable to perform any of its obligations under the Agreement due to fire, strike, riot, explosion, flood, acts of God, the public enemy, or any other acts or circumstances beyond the reasonable control of such party, which could not have been prevented or eliminated by the exercise of due diligence (“Force Majeure”), shall not be deemed in breach of this Agreement. The party claiming Force Majeure will give prompt written notice of any Force Majeure to the other party, and shall exercise due diligence to resume the performance of its obligations under this Agreement.
18. Assignment.Client may not assign the Agreement or any of its rights or obligations hereunder without the prior written consent of ICS; provided, however, that Client may assign the Agreement to an acquirer of all or of substantially all of its equity securities, assets or business relating to the subject matter of the Agreement or to any entity controlled by, controlling or under common control with Client. ICS shall cooperate with Client to the extent necessary to secure lease or related financing, subject to the understanding that such lease or similar arrangement shall not limit ICS’s recourse against Client or the leasing company, or both, or otherwise limit ICS’s remedies hereunder. ICS may assign the Agreement to another party upon thirty (30) days written notice to Client. Any purported assignment agreements in violation of this section shall be null, void and of no effect.
19. Relationship of Parties. ICS and Client are independent contractors under the Agreement. Each party shall be responsible for all of its employees and agents and its labor costs and expenses arising in connection with the performance of its obligations herein. Neither party has authority to enter into agreements of any kind on behalf of the other.
20. Arbitration.

20.1 All disputes which in any manner arise out of or relate to this Agreement or the subject matter hereof, shall be resolved exclusively by arbitration in accordance with the provision of this paragraph. Either party may commence arbitration by sending a written demand for arbitration to the other party, setting forth the nature of the controversy, the dollar amount involved, if any, the remedies sought, and attaching to such demand a copy of this paragraph.

20.2 There shall be one arbitrator. If the parties shall fail to select a mutually acceptable arbitrator within ten (10) days after the demand for arbitration is mailed, then the parties stipulate to arbitration before a single arbitrator sitting on the Judicial Arbitration Mediation Services (JAMS) panel, and selected in the sole discretion of the JAMS administrator.

20.3 The parties shall share all costs of arbitration. The prevailing party shall be entitled to reimbursement by the other party of such party’s attorneys’ fees and costs and any arbitration fees and expenses incurred in connection with the arbitration hereunder.

20.4 The substantive law of the State of California shall be applied by the arbitrator. The parties shall have the rights of discovery as provided for in Part 4 of the California Code of Civil Procedure and as provided for in Section 1283.05 of said Code. The California Code of Evidence shall apply to testimony and documents submitted to the arbitrator.

20.5 Arbitration shall take place in Los Angeles, California. As soon as reasonably practicable, a hearing with respect to the dispute or matter to be resolved shall be conducted by the arbitrator. As soon as reasonably practicable thereafter, the arbitrator shall arrive at a final decision, which shall be reduced to writing, signed by the arbitrator and mailed to each of the parties and their legal counsel.

20.6 All decisions of the arbitrator shall be final, binding and conclusive on the parties and shall constitute the only method of resolving disputes or matters subject to arbitration pursuant to this Agreement. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a ruling in the Superior Court of Los Angeles County.

21. Miscellaneous.

21.1 Choice of Law. The Agreement shall be exclusively governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed within California, without regard to conflicts of provisions thereof.

21.2 Amendment and Waiver. Except as otherwise expressly provided herein, any provision of the Agreement may be amended or modified and the observance of any provision of the Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only in the form of a writing signed by both parties. The failure of either party to enforce its rights under the Agreement at any time for any period shall not be construed as a waiver of such rights.

21.3 Severability. In the event that any of the provisions of the Agreement shall be held by a court of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.

21.4 Headings. The headings and captions provided in the Agreement are for convenience only and are not to be used in the interpretation of the Agreement

21.5 Notices. All notices required to be given under the Agreement must be given in writing and delivered either by hand, certified mail, return receipt requested, postage pre-paid, or Federal Express or other commercial overnight delivery service with tracking capabilities, all delivery charges prepaid, or by electronic mail (confirmed by concurrent written notice sent first class U.S. mail, postage prepaid) and addressed to the applicable party’s address listed below or such other address as to which the party has notified the other party in accordance with this section.

If to ICS:
Michael Kemps
Innovative Computing Systems, Inc.
1000 Wilshire Boulevard, Suite 1900
Los Angeles, CA 90017
[email protected]

If to Client:
Contact Information as specified on quotation, statement of work, or other duly executed document, unless otherwise specified by the Client entity’s primary point of contact.

21.6 Non-Solicitation. Client and ICS will not, during the term of the Agreement, directly or indirectly, solicit, induce, recruit or encourage any of ICS’s or Client’s employees to leave their employment for any reason. If either ICS or Client solicit or hire an employee, the hiring party shall make a one-time payment, construed to be liquidated damages, in an amount of fifty percent (50%) of such employee’s offered annual salary, in recognition of the disruption and costs to the business of the party from which the employee departs.

21.7 Counterparts and Electronic Signatures. The Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument, this Agreement may be executed by electronic or facsimile signature and both electronic and facsimile signatures shall be given the same effect as original signatures. The parties expressly acknowledge that the Agreement, including all parts hereof such as Quotations, may be validated electronic documents and executed or acknowledged by electronic signature pursuant to the Uniform Electronic Transactions Act (UETA) or the Electronic Signatures in Global and National Commerce Act (E-SIGN).