Terms and Conditions of NetGain Technologies Offerings

Last updated:  05/01/2023

These Terms and Conditions of NetGain Technologies Offerings (“Terms”) shall apply to all services and products, goods, and/or equipment provided by or through NetGain Technologies, LLC, a Kentucky corporation with a principal address of 2031 Georgetown Road, Lexington, KY 40511 (“Provider”), or any of its affiliates, agents, employees, or subcontractors or consultants, to the recipient of such services or related products, goods, and/or equipment (“Client”). By accepting any services or goods from Provider, and in consideration of the benefit of being provided such services or goods, plus other good and valuable consideration acknowledged by such receipt and acceptance, Client accepts and agrees to be bound by these Terms, as updated from time to time by Provider:

1. Background; Provision of Services or Products.

1.1 NetGain Offerings. Provider provides information technology and other services through its various programs and offerings, including Provider’s Technology OneSource, Security Services, Consulting and Retainer Services, Cloud Services, and Subscription Services programs and other offerings. All services (the “Services”) and any related products, goods, subscriptions, and/or equipment (the “Products”) and their provision by or through Provider to Client or any other person, whether incidental to the foregoing offerings or otherwise, are subject to these Terms.

1.2 Proposal or Other Agreement Initiating Services. Client’s use of the Products and Services is governed by the separate written proposal, purchase or sales order, quote, agreement, or similar document issued by Provider under which Client obtained the Services and/or Products (the “Proposal”), including all exhibits, attachments, schedules, addendums, and other documents and terms incorporated in the Proposal (which includes these Terms) (together, the “Agreement”).

1.3 Additional or Changed Scope. From time to time the Client may request that Provider perform certain functions or services or furnish any other items that are not included in the applicable Proposal (“Additional Services”). If Client requests or if Provider determines that such Additional Services are necessary, Provider will notify Client. Should Provider agree (in its sole discretion) to provide the Additional Services, the Client shall pay for such Additional Services on a time and materials basis or via a separate fixed-fee proposal, to be invoiced in accordance with the rates stated in the Proposal; or, if no such rates are stated that are applicable to the Additional Services, such rates may be found at https://www.netgainit.com/standard-hourly-rates/ (password: NetGainHourlyRates), and may be updated from time to time at the discretion of the Provider. The Services and Additional Services are collectively referred to as the “Services” and subject to the terms and conditions of the Agreement.

1.4 Changes. Subject to the terms and conditions of the Agreement (including Sections 1.3 and Article 6), neither Party may change any Proposal without the other Party’s prior written consent. Material modifications to a Proposal shall be made by written change order executed by Client and Provider (a “Change Order”). A revision in designs, specifications, services, subscriptions, materials, shipments, completion dates, or other information or circumstances relating to the Proposal may result in additional cost to Client, subject to a change request submitted by Provider. Client shall not unreasonably withhold or delay approval of change requests. All changed Services shall be subject to the terms and conditions of this Agreement.

1.5 Service- or Product-Specific Terms. Certain Service- or Product-specific terms will apply depending on the Proposal offered (each a “Proposal-Specific Term”) and are stated in the following exhibits to these Terms:

1.5.1 Exhibit A – Technology OneSource Services;
1.5.2 Exhibit B – Security Services (which may include Essential Security Services, SOCaas – MDR, MR, & MA, and Risk Assessment Services as indicated in the Proposal);
1.5.3 Exhibit C – Consulting and Retainer Services;
1.5.4 Exhibit D – Cloud Services (which may include Datto, Duo, iLand, Sophos, or other cloud services as indicated in the Proposal);
1.5.5 Exhibit E – Microsoft Subscription;
1.5.6 Exhibit F – Fixed Fee Projects; and
1.5.7 Exhibit G – Hosted Infrastructure.

The foregoing Exhibits are incorporated in these Terms by reference, and the Proposal-Specific Terms stated in them shall supplement these Terms if the applicable Service or Product is being provided. If there is a dispute over whether or which Scope-Specific Terms apply, Provider will determine which term(s) apply in its discretion, and Provider’s decision shall be final. All capitalized terms not otherwise defined in an Exhibit or the Proposal shall have the meanings given to them in these Terms, Articles 1 through 12.

1.6 Exclusivity. During the Term (as defined in Article 2 or the applicable Scope-Specific Term, as the case may be) and to the fullest extent permitted by law, Provider shall be the exclusive provider of the Services to Client. Client shall not seek or accept similar services from other providers covered under an existing Proposal without prior written approval from Provider. For avoidance of doubt, Client acknowledges and agrees that Provider is free to provide and to enter into agreements to provide the same or similar subscriptions, licenses, products, and/or services as the Services and/or Products provided under this Agreement to other third parties during the Term.

2. Term and Termination.

2.1 Term. Unless stated otherwise in the Proposal or the applicable Proposal-Specific Terms, the term of this Agreement shall commence on Client’s acceptance of the Proposal or when Provider first provides the Services or Products, whichever is earlier, and continue for a period of one-year (the “Term”), and the Term shall automatically renew for successive periods equal in length until terminated in accordance with this Article 2. For avoidance of doubt, the terms and conditions of this Agreement (including these Terms) apply during the Term and any “set-up” or “onboarding” period that precedes the Term, if provided for in the applicable Proposal-Specific Terms, including the 30-day set-up period referenced in Exhibit A for Technology OneSource Services.

2.2 Termination for Cause. During the Term, this Agreement may be terminated by either party upon any material breach or default of the other party. Upon such material breach or default, the party claiming such default must first provide written notice to the other party giving reasonable details of the claimed breach and opportunity to cure. The defaulting party then has 30-days from the date of such notice to cure the default, provided that for defaults other than non-payment for Services, the defaulting party shall have such reasonable time as required to cure the default if it begins diligently prosecuting such cure within the 30-day notice period. If the defaulting party fails to cure the breach within the 30-day (or other reasonable period, if applicable pursuant to this Section 2.2), then this Agreement (or the applicable Proposal) may be terminated effective upon seven (7) days additional termination notice from the non-defaulting party.

2.3 Early Termination Fee. In no event may Client terminate this Agreement prior to the expiration of the then-current Term absent “Provider Cause.” As used herein, “Provider Cause” shall only exists if Provider fails to perform a material obligation under this Agreement for more than 30 days after written notice and opportunity to cure are given by Client to Provider and Provider fails to cure or commence a cure of the material default within the time period provided in Section 2.2 above. In the event that Client terminates this Agreement without Provider Cause prior to the expiration of the then-current Term, Client shall pay Provider an early termination fee (the “Early Termination Fee”), plus Provider’s costs and expenses associated with such termination, including all subcontract costs and/or other charges of third parties (including subscription costs and the cost of any hardware), the costs of any install and/or uninstall, and any processing or other costs associated with the early termination. For purposes of this Section 2.3, the Early Termination Fee shall be calculated as: 100% of Client’s total Fee and any other monthly recurring charges for all Services and (if applicable) Products covered by the applicable Proposal multiplied by the remaining months in Client’s then-current Term. The Parties agree that the Early Termination Fee is a fair and reasonable representation of the damages anticipated to be suffered by Provider in the event of an early termination by Client and that the Early Termination Fee is not a penalty.

2.4 Termination for Convenience. Provider may terminate the Agreement or any Proposal for its convenience effective on 90 days written notice. Client shall pay Provider for all Services and other charges accrued and for all Fees owed as of the effective date of such termination.

2.5 Effect of Termination. Upon termination of the Agreement or any Proposal, any licenses granted to Client under Section 10.1.1 or otherwise shall terminate, Client shall cease using all Services and Products (as applicable, (including any software, subscriptions, or cloud services provided by Provider), Client shall delete all copies of Products and destroy or return associated software and media, and each party shall promptly return all property of the other party’s. Upon termination or expiration of the Agreement, all Client data will be deleted by Provider, and it is solely the responsibility of Client to create a backup.

3. Limitations of Liability.

3.1 PROVIDER’S ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE LESSER OF (I) THE ACTUAL AMOUNT THAT HAS BEEN PAID TO PROVIDER BY CLIENT FOR PROVIDER’S PERFORMANCE UNDER THE APPLICABLE PROPOSAL FOR THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGE, LESS THE ACTUAL COST FOR GOODS AND SERVICES; OR (2) TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS LESS; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY LOSS, DAMAGES, OR DOWNTIME ARISING FROM CLIENT’S NEGLIGENCE, CARRIERS’ COMMUNICATION LINES OR EQUIPMENT, OR OTHER CAUSES OUTSIDE OF THE CONTROL OF PROVIDER. IN ADDITION TO THE FOREGOING LIMITATIONS, IN NO EVENT SHALL PROVIDER BE LIABLE FOR, AND CLIENT HEREBY WAIVES, ALL CLAIMS FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING LOST PROFITS, LOSS OF FINANCING, LOST USE OF EQUIPMENT, LOSS OF STORED MEMORY OR DATA, LOSS OF SETTINGS OR CONFIGURATION DUE TO LOSS OR SURGE OF ELECTRICAL POWER, COST OF SUBSTITUTE EQUIPMENT, OR OTHER DOWNTIME COSTS) OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF CLIENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES, REGARDLESS OF THE FORM OF SUCH CLAIM, MAY BE BROUGHT BY CLIENT MORE THAN ONE (1) YEAR AFTER THE ACT OR OMISSION GIVING RISE TO THE CLAIM OR WHEN CLIENT KNEW OR SHOULD HAVE KNOWN OF SUCH ACT OR OMISSION, AND CLIENT WAIVES ALL CLAIMS NOT TIMELY BROUGHT IN ACCORDANCE WITH THIS AGREEMENT.

3.2 CLIENT RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO PROVIDER’S CONTROL. CLIENT AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO PROVIDER’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF CLIENT’S INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. PROVIDER SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CLIENT OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). PROVIDER IS NOT LIABLE FOR ANY BREACH OF SECURITY ON CLIENT’S NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. CLIENT AGREES THAT CLIENT WILL NOT HOLD PROVIDER RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM PROVIDER MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, PROVIDER IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, CLIENT AGREES THAT CLIENT WILL NOT HOLD PROVIDER RESPONSIBLE FOR (A) THIRD-PARTY CLAIMS AGAINST CLIENT FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CLIENT’S RECORDS OR DATA OR SOFTWARE MAINTAINED OR STORED BY PROVIDER, OR (C) LOSS OR DAMAGE TO CLIENT ASSOCIATED WITH THE INOPERABILITY OF CLIENT’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OF THE PROVIDER NETWORK. CLIENT AGREES TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST PROVIDER AND WAIVES ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.

4. Limitation of Warranties.

4.1.1 CLIENT AGREES TO ACCEPT THE SERVICES AND ANY PRODUCTS ON AN “AS-IS” NON-WARRANTABLE BASIS. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, PRODUCTS, OR ANY OTHER WORK OR ITEM FURNISHED BY OR THROUGH PROVIDER. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES (EXPRESS OR IMPLIED), INCLUDING THOSE OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, OR USAGE OF TRADE, ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING DISCLAIMER, PROVIDER DOES NOT AND CANNOT WARRANT ANY SERVICES OR WORK IT PERFORMS FOR CLIENT’S SYSTEMS OR USE, OR IN LOADING DATA OR SOFTWARE ONTO, OR OFF, ITS EQUIPMENT OR SYSTEMS USED INTERNALLY OR EXTERNALLY. CONSEQUENTLY, PROVIDER SHALL NOT BE LIABLE FOR ANY TIME LOSS, DATA LOSS, SYSTEM CONFIGURATION ISSUES, OR ANY OTHER DAMAGES THE CLIENT OR OTHERS MAY CLAIM OR SUFFER BECAUSE OF PROBLEMS WITH CLIENT’S SYSTEMS OR SOFTWARE, AND CLIENT WAIVES ALL CLAIMS AGAINST PROVIDER RELATING TO SUCH MATTERS. ADDITIONALLY, PROVIDER IS NOT RESPONSIBLE FOR COMMUNICATION LINE(S) CHARGES OF ANY KIND, INCLUDING MISCONFIGURATIONS OR ANY OTHER ISSUE.

4.1.2 TO THE EXTENT PROVIDER IS SUPPLYING ANY PRODUCTS, THE ONLY WARRANTY AND EXCLUSIVE REMEDY FOR ANY DEFECT(S) IN SUCH PRODUCTS SHALL BE THE MANUFACTURER’S WARRANTY, IF ANY, AND CLIENT WAIVES ANY DIRECT CLAIMS AGAINST PROVIDER ARISING OUT OF SUCH PRODUCTS. SUCH MANUFACTURER’S WARRANTY SHALL IN ALL CASES BE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING ALL LIMITATIONS ON WARRANTY OR LIABILITY) OF THE MANUFACTURER. Due to low manufacturer warranty reimbursement rates, Client may be required to pay Provider additional fees to process warranty claims with the manufacturer. Provider shall not be liable for any delays resulting from the execution or any denial of such warranty.

5. Payment Terms.

5.1 Fees. Client agrees to pay Provider for the Services and Products according to the base rates, fees, and other compensation stated in the Proposal (the “Base Fee”) and other pricing terms, fee schedule, rates, fees, incidental charges (including third-party Products purchased through Provider, shipping fees, sales tax where applicable and other expenses) and other terms set forth in the Agreement (collectively, the “Other Fees” and together with the Base Fee, the “Fees”).

5.2 Billing; Invoice. Client shall timely pay in full for all Services and Products. Unless stated otherwise in the Proposal or any Proposal-Specific Terms, all payments are due within fifteen (15) days from the date invoiced. If Client disputes any invoice or part of it, Client must notify Provider in writing within seven (7) days of receipt of the disputed invoice and state the specific reasons for such dispute in reasonable detail. The parties will use their best efforts to resolve such disputes expeditiously, but there shall be no setoff or deductions by Client against any amount invoiced, and Client shall pay all invoices in full notwithstanding a dispute. If Client fails to provide such a dispute notice, Client waives and releases Provider from all claims relating to such invoice. At Provider’s option, payments will be made by Client via automated clearing house (ACH), and Client will cause all forms and take all such actions as reasonably necessary to effectuate such ACH payments.

5.3 Interest. If payment for any Fees is not received by Provider on or before when such payment is due, interest shall begin to accrue and be payable at the rate of one and one-half percent (1.5%) per month or the highest contractual rate permitted by applicable law, whichever is higher, from the date due until paid in full.

5.4 Reimbursable Expenses; Travel. Provider may invoice certain reimbursable expenses as provided in this Agreement or otherwise agreed by the parties, which shall include travel time. Travel time is defined as the time to travel from the nearest Provider’s location to the Client’s location in connection with the Services or work provided and will be included in the total time reported for the related Service or Proposals. Client agrees to reimburse Provider for any support costs and/or other reasonable and customary expenses incurred by Provider during Provider’s Services provided to the Client. Provider will invoice the Client for reimbursable expenses, and such Other Fees shall be paid, in accordance with Section 5.2. Client is also responsible for payment or reimbursement to Provider of any rental costs or other necessary expenses required in connection with any Services.

5.5 Suspension. If Client fails to pay Provider any amounts owed when due, Provider may immediately suspend performance of Services and suspend any deliveries until payment is made in full. Provider shall have no liability for service disruption that may result from such suspension of Services or deliveries, and Client waives and releases Provider from any related claims, liability, and damages. Additionally, Provider shall have the right to pursue collections in any manner necessary and any other rights or remedies under this Agreement or applicable law, which are cumulative, and Client agrees to pay for all collection costs Provider may incur, including attorneys’ fees and costs.

5.6 Currency. All of the Fees are payable in U.S. dollars. ACH transfer fees are included in Client’s Fees.

5.7 Client’s Financial Condition. At any time in Provider’s discretion, Provider may require proof of Client’s financial condition, which may include credit reports, financial statements, balance sheets, profit and loss and cash flow statements, or similar documentation in form acceptable to Provider. Client may also be required to provide security in a form acceptable to Provider.

6. Price Adjustment and Escalation; Taxes.

6.1 Price Adjustment and Escalation.

6.1.1 Fees based upon a per site, per user, per seat, or similar fee may be adjusted monthly by Provider to account for increases in per unit calculation. Client agrees to promptly inform Provider whenever it hires/terminates employees or authorizes or proposes to authorize additional users, seats, or locations. In addition, Provider implements automated auditing and reporting procedures to identify such changes, and Provider reserves the right to automatically adjust Client’s monthly (or other) Fees as necessary to accurately reflect all current users or seats. If a prior Service location remains installed after a new Service location is installed, Client will be responsible for Service charges for both Service locations until terminated as provided for each Service. New services or upgrades/relocations will result in additional Fees.

6.1.2 In addition to per user, seat, or location (or similar) adjustments as provided in Section 6.1.1, if during the performance of this Agreement the cost of supporting the Client increases, the price of Services may be adjusted by Provider in its discretion to account for such increases and any other costs of providing the Services or Products (including but not limited to inflation, supply chain or subcontract costs, taxes or other regulatory costs, and/or any other cost increases as Provider may determine as necessary and appropriate in its discretion). Provider shall provide 30 days’ notice of such Fee increases under this Section 6.1.2. Without limiting the foregoing, Client acknowledges and agrees that, in addition to any adjustments to the Fee under Section 6.1.1 or 6.1.2, the Fee may be increased by a minimum of five percent (5%) each year, to be determined in the discretion of Provider.

6.2 Taxes. Client acknowledges and agrees that fees paid to Provider do not include local, state or federal use, excise, personal property or other similar taxes or duties or regulatory fees, and that any such taxes and charges, if applicable, are the responsibility of and shall be paid by Client. Client is responsible for payment or reimbursement to Provider of all taxes calculated prior to or after the sale as imposed upon Provider.

7. General Product Terms.

7.1 Refunds / Returns. Provider does not accept returns of Products provided under this Agreement or any Proposal under it. Any requests for an exception to this policy must be made in writing within fifteen (15) days of the invoice date for such Product(s). If the request is approved by Provider (in its discretion) and by Provider’s distributor via a Return Manufacturers’ Authorization (“RMA”) form, such Products may be returned in strict accordance with the terms offered by the manufacturer, and Client will be charged any cost, charges, and restocking or other fees incurred according to manufacturer terms.

7.2 Freight. All Products to be delivered to Client by Provider under any Proposal are “FOB point of origin, freight collect” (i.e., risk of loss upon buyer upon placement with carrier), except that title to Products shall not pass to Client until Provider has received full payment of the invoice for such Products. Client grants to Provider a security interest (or comparable security under applicable law) in all Products, and Client shall execute and deliver to Purchaser financing statements or such other documents as Provider may reasonably request to protect and perfect such security interest under applicable law. Where Client has not specified method of shipment, Provider will ship in the most economical way consistent with applicable requirements of this Agreement, unless previously specified in writing in advance by Client and approved by Provider in its sole discretion. Provider will have no liability for damage, loss, or delay once the Products are placed in the possession of the carrier, and Client must make any related claims exclusively against the carrier. In the event of shipment delay allowed under this Agreement and requested in writing by Client, Provider will store all material affected thereby for a reasonable time period (as determined in Provider’s discretion) and at Client’s sole risk and expense. Provider will invoice Client at the full price for the material, including an additional storage fee.

8. Client Responsibilities and Representations.

8.1 Provider Right. If at any time during this Agreement, Provider determines that the Client repeatedly fails in its obligations hereunder, Provider reserves the right to and may revert to a billable time and materials arrangement (in addition to exercises any of Provider’s other rights and remedies under this Agreement or applicable law). In such case, Provider will advise the customer in writing.

8.2 Technical Contacts. Client shall identify in writing and make available at least one qualified Client employee (“Client Relationship Manager”) and an alternate with authority to (i) advise Provider of Client’s requirements or criteria for any Services, which must not be inconsistent with this Agreement or serve to expand Provider’s scope of Services or liability under it; (ii) provide information and give data with respect to the requested Service; and (iii) act and make binding decisions on behalf of Client. Until a different employee is identified by Client, the person signing the Proposal on behalf of Client will be the Client Relationship Manager. Provider may rely on all information provided by Client, including through the Client Relationship Manager.

8.3 Administrative Resources. Client shall provide the administrative resources to complete the implementation of Services (e.g., copying, phones, existing application information, Internet access information, authorized user lists, etc.). Client shall also provide the necessary documentation, if required, to complete any installations, including locally defined LAN addresses, naming conventions, administrator passwords, etc. Client will also be responsible for providing access to user workstation areas and the name, phone number, e-mail address, and title for each authorized user. If managed IT or similar services are provided, every user on the network must be listed as an authorized helpdesk caller. If applicable to the Proposal, Client shall provide media for any existing software licenses that Provider will be supporting or installing and appropriate communication line(s) for “event monitoring.”

8.4 Workspace. Client shall provide a safe and appropriate workplace for Provider’s employees and independent contractors in compliance with all local, state, and federal safety, health, and environmental laws and regulations. Client shall provide adequate electrical service, certified cabling, and business class communications lines that meet present industry and technological standards. Unless specifically designated otherwise in the Agreement, Client shall provide all computer, software, and related equipment with respect to Client’s business and all computer software license and upgrade protection. Except as otherwise set forth in this Agreement, Provider will have unrestricted access to Client’s site and any other locations at which Services are to be performed at all times.

8.5 Scheduling; Downtime. Client shall cooperate with Provider and all contractors regarding scheduling of the Services. Provider shall control scheduling and reserves the right to schedule technical staff and other matters as Provider deems appropriate, including the sequence and duration of certain Services. For example, the schedule for technicians to be at Client’s facilities or working remotely may include some full days, some partial days, some after-hours work, and some non-consecutive days. Additionally, Client understands and agrees that unanticipated downtime may occur in connection with Services. Additional terms regarding scheduling of Services may be provided in the Proposal, if applicable.

8.6 Information and Technology. Client shall provide accurate information to Provider in connection with the Services. Client shall maintain current software, hardware, and operating systems necessary for the provision of the Services. Client understands that the Services, Products, and system (as applicable under the Proposal(s)) are subject to the influence of external events that are not within the control of Provider. Client shall ensure that its internet connection is secure. Client shall obtain all necessary software licenses, hardware warranties, data file storage, backups, and other support necessary for Provider to provide the Services. In addition to the Services provided by Provider, Client shall take any and all additional steps Client believes to be necessary and prudent to protect its systems, servers, network, hardware, software, and data (collectively, the “Client Network”) from and against any and all forms of cyberattack, intrusion, infiltration, data exfiltration, hacking, malicious code, and all other activities, processes, and procedures that could pose a risk to the Client Network. Client shall take, and have the sole responsibility for taking, any and all additional steps and implement such additional procedures as Provider deems to be necessary for the backup and recovery of all of Client’s electronic files, information, and other data including creating local hard copy backups, utilizing cloud storage resources of Client’s choosing, and engaging a service provider to provide appropriate data backup and recovery services, and Client expressly understands and acknowledges that data backup and recovery services are not included within the scope of the Agreement, unless specifically stated otherwise in the Proposal. In addition, Client makes the following representations and warranties to Provider:

8.6.1 All software and other materials provided by Client are owned or properly licensed by Client and such software and materials do not infringe any intellectual property rights of any third party.

8.6.2 Client acknowledges and fully understands the risks associated with not properly updating and maintaining older unsupported software and legacy software, including, without limitation, that such software may pose security, hacking, infiltration, data exfiltration, and other potentially material risks to the Client’s business and acknowledges that Provider has no obligation to update and maintain unsupported or legacy software.

8.6.3 Client understands that if Provider provides consulting advice and services to Client, then Client shall be responsible for following and adhering to such advice, and that Provider shall have no liability to Client if Client chooses to act against or fails to act upon Provider’s professional recommendations.

8.6.4 Client (i) has complied and will comply with all applicable laws and regulations (including applicable import/export, environmental, privacy and data privacy or security, labor, and anti-corruption laws); (ii) has complied and will comply with all terms, conditions, and other requirements applicable to the Products or subscriptions or their use, including those specified or made available through any Third Party; and (ii) is authorized to enter into this Agreement, including under applicable law and its bylaws or other organizational documents.

8.7 EULAs. Portions of the Services may require Client to accept the terms of one or more third-party end user license agreements (“EULAs”). If the acceptance of an EULA is required in order to provide the Services to Client, then Client hereby accepts such EULA(s) and grants Provider permission to accept the EULA(s) on Client’s behalf. EULAs may contain service levels, warranties, and/or liability limitations that are different than those contained in this Agreement. Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, Provider is required to comply with a third-party EULA and the third-party EULA is modified or amended, Provider reserves the right to modify or amend any applicable Proposal with Client to ensure Provider’s continued compliance with the terms of the third-party EULA.

8.8 BYOD. Client hereby represents and warrants that Provider is authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones, and tablet computers) that are connected to the system, regardless of whether such device(s) are owned, leased, or otherwise controlled by Client. Provider will not be obligated to provide the Services to any mobile device or temporarily connected device unless that obligation is specifically stated in an applicable Proposal. Further, unless otherwise stated in a Proposal, devices will not receive or benefit from the Services while the devices are detached from, or unconnected to, the System.

8.9 No Delay or Interference. Client shall promptly perform its responsibilities under this Agreement so as not to cause delay in or interference with the provision of the Services. Client shall not interfere with or hinder the rights, property, and technical work of Provider. If Client, its affiliates, or their respective agents, representatives, employees, contractors, or consultants (collectively, and together with Client, “Client Representatives”) destroy or tamper with Provider’s property (tangible or intangible), including its network systems, Client shall be responsible for the remediation involved and technical hardware required to correct the issue or damage (including costs relating to research and audit, troubleshooting, correction, and/or replacing hardware) and all resulting damages. Client shall be responsible for the acts of any Client Representatives or such other persons for whom Client may be responsible.

8.10 Records. Client shall keep records and data relating to all use of the Services or any Proposal, and Provider may (at its own expense) review such records to verify compliance with these Terms at any time. Client must promptly provide information reasonably requested by Provider or its independent auditors in furtherance of such verification, including access to systems and use of Services or Products.

9. Indemnification. Client shall indemnify, defend, and hold Provider and its officers, directors, employees, agents, and representatives harmless from and against third-party claims, demands, actions, losses, liabilities, costs, and expenses (including reasonable attorney’s fees) arising out of or resulting from (i) the negligent acts or omissions or violation of applicable law by any Client Representative or anyone else for whom Client may be responsible; (ii) breach of this Agreement (including breach of any representations or warranties given by Client under the Agreement); (iii) Client’s (including any Client Representative’s) unauthorized use of any Product or component of a Product, including the infringement or misappropriation or alleged infringement or misappropriation of intellectual property rights in connection with any Product; or (iv) Client’s failure to comply with applicable law (including data privacy laws). Provider shall indemnify, defend, and hold Client harmless from and against any and all third-party claims, demands, actions, losses, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or resulting from the grossly negligent acts or omissions in the performance of this Agreement or violation of applicable law by Provider or its agents, representatives, or anyone for whom Provider may be responsible. Notwithstanding the foregoing, nothing in this Section shall be construed to require a party to indemnify or hold harmless the other party to the extent the indemnified loss or liability is caused by the indemnified party’s negligence, willful misconduct, or breach of this Agreement.

10. Intellectual Property; Technology.

10.1 Intellectual Property Rights.

10.1.1 Provider will have and retain full and exclusive ownership of all intellectual property rights associated with any design, data, specification, know-how, software, device, technique, algorithm, method, discovery or invention, whether or not reduced to practice, relating to any (a) Service, including any Provider work product, (b) result of a Service, (c) joint development, and/or (d) enhancement or improvement to or derivative of any of the foregoing (collectively, “Provider Property”). The intellectual property rights associated with Provider Property are referred to collectively as “Provider IP”. Client receives no right, title, or interest in or license to use any Provider IP. However, Client does receive a non-exclusive, nontransferable, terminable license to use such of the Provider IP that is necessary for Client to use the Services under the Proposal(s), but solely in connection with and only for the term of the applicable Services and subject to the terms and conditions of the Agreement (including these Terms). Client will not allow access to Provider Property, including without limitation, software, and systems, by anybody other than Client’s employees and subcontractors who (i) are bound by law or written agreement to comply with Client’s duties under this Agreement with respect to Provider Property and Confidential Information, and (ii) require such access to assist Client in its permitted use thereof. Client will not directly or indirectly reverse engineer, decompile, disassemble, or copy any Provider Property. Client will return all Provider Property to Provider at the conclusion of the applicable Services. Client will cooperate to take such actions reasonably requested to vest ownership of Provider IP and Provider Property in Provider.

10.1.2 Provider reserves all intellectual property rights not expressly granted in the Agreement, and no rights will be granted or implied by waiver or estoppel. Rights to access or use software on a device do not give Client rights to implement associated patents or other intellectual property in the device itself or any other software or hardware. It is Client’s sole responsibility to comply with all laws and terms and conditions relating to intellectual property, including those of third parties. Except as expressly permitted in the Agreement or such other third party’s terms and conditions, Client may not distribute, sublicense, rent, lease, lend, resell, or transfer any products, in whole or in part, or use them to offer hosting services to a third party.

10.2 Property Destruction. At all times, Client shall respect the rights, property, and technical work of Provider. If Client, any Client Representative, or any of their employees or contractors destroy or tamper with Provider’s property (tangible or intangible), including its network systems, Client will be monetarily responsible for the remediation involved and technical hardware required to correct the issue. This may include, but not be limited to, time spent researching and auditing the problem, correcting the problem, and replacing any technical hardware, cabling, etc., to fix the issue. System problems at the Client site caused by conditions of the environment often require remediation. When this happens, as determined at the sole discretion of Provider, remediation will be charged to the Client at current time and materials rates. Provider is to similarly respect the rights, property, and technical work of Client and perform all Services in a manner so as not to destroy or tamper with Client’s property, including its network systems.

10.3 Data Loss. Under no circumstances will Provider be responsible for any data lost, corrupted, or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) Provider’s failure to backup or secure data from portions of the system that were not expressly designated in the applicable Agreement as requiring backup or recovery services. Provider does not warrant or guarantee that any maintained storage device or functionality, data backup device or functionality, or load balancing functionality will operate in an error-free manner, and all warranties are disclaimed as provided in Article 4 or elsewhere in the Agreement.

10.4 Third-Party Services. Portions of the Services may be acquired from, or rely upon the services of, third-party manufacturers or providers, such as data hosting services, domain registration services, and data backup/recovery services (“Third-Party Service”). Not all Third-Party Services may be expressly identified as such in a Proposal, and at all times Provider reserves the right to utilize the services of any third-party provider or to change third-party providers in its sole discretion as long as the change does not materially diminish the Services to be provided to Client under the Proposal. Provider will not be responsible, and will be held harmless by Client, for the failure of any third-party provider or manufacturer to provide Third-Party Services to Provider or to Client.

10.5 Software Licenses. Client is responsible for payment or reimbursement to Provider for all necessary software licenses or software charges associated with software benefitting Client or necessary for provision of Services. Provider will undertake reasonable efforts to procure the appropriate and necessary software licenses related to the Services provided, and Client will be responsible for payment or reimbursement to Provider for the costs of such licenses. Client acknowledges that at times software vendors may later claim that different or additional licenses are needed. Client understands and agrees that it will be responsible for payment or reimbursement for any different or additional licenses that are subsequently required by a software vendor.

10.6 Data Security. Client acknowledges that Provider may have access to Client’s data in connection with this Agreement, but it is not Provider’s ordinary practice to host or keep such data. Client is solely responsible for the content, security, and maintenance of its data. EXCEPT AS EXPRESSLY REQUIRED BY APPLICABLE LAW, PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PRIVACY OR SECURITY OF ANY INFORMATION (INCLUDING PERSONALLY IDENTIFIABLE INFORMATION) OR DATA PROVIDED TO PROVIDER OR A THIRD PARTY OR THE TREATMENT OF SUCH INFORMATION AND, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ANY SUCH WARRANTIES.

11. Restrictive Covenants.

11.1 Privacy and Confidentiality.

11.1.1 Provider acknowledges that in the course of providing Services, Provider may be supplied with or come into possession of information of Client, or Client’s customers, which Provider knows Client considers to be confidential and proprietary, and which Client discloses to Provider pursuant to this Agreement (“Client Confidential Information”). Examples may include: customer lists, pricing, purchase records, financial records, tax records, medical records, legal records. Provider hereby agrees that it will use commercially reasonable efforts to maintain confidentiality of Client Confidential Information and will not use it for Provider’s own benefit or disclose Client Confidential Information to third parties without the prior written consent of Client, except as expressly permitted herein. Provider may disclose Client Confidential Information to its employees, subcontractors, consultants, or others in order to perform Services for or provide Products to Client. Provider agrees to take such commercially reasonable action as may be necessary or appropriate by way of agreement with, and/or instruction to, its employees, subcontractors, or consultants so as to maintain the confidentiality of Client Confidential Information. This provision shall not extend to information which Provider already knew, or learns independently of Client, or which is or becomes generally available through no fault of Provider, or which Provider is or becomes legally obligated to disclose.

11.1.2 Client acknowledges that in the course of Provider providing Services, Client may come into possession of proprietary checklists and installation/configuration procedures or other confidential or proprietary information concerning Provider’s business which Provider considers to be confidential and proprietary (“Provider Confidential Information”). Without limiting the foregoing definition, the Proposal and all Fees stated in them, in addition to any information relating to Provider’s Fees or other charges (including rates for Provider personnel) or other business terms, are Provider Confidential Information. Client hereby agrees that it will use commercially reasonable efforts to maintain confidentiality of Provider Confidential Information and will not disclose Provider Confidential Information to third parties or use such information for Client’s or any third party’s benefit without the prior written consent of Provider. Client agrees to abide by Provider’s Privacy Policy, as may be amended from time to time, as found at https://www.netgainit.com/privacy-policy/.

11.2 Marketing and Publicity. Client agrees that Provider may identify Client as a customer on Provider’s website as well as in any written and/or electronic marketing material relating to Provider’s products and/or services, which may include a reasonable description of the Services and/or Products offered by Provider under the applicable Proposal(s) . Otherwise, except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches, or advertisements concerning the other party nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent, not to be unreasonably withheld or delayed.

11.3 Non-Solicitation. Client shall not solicit or encourage, directly or indirectly through subsidiaries or any other financially related firms to work elsewhere; tender an offer of employment to; place on their payroll; or contract with any present employee or subcontracted employee of Provider (or any former employee or subcontracted employee who has provided services to the Provider during the preceding 12-month period) (collectively, “Provider Employee”) during the Term of or within twelve (12) months after the termination of the Term of Services under the applicable Proposal, as applicable, without the prior written approval of Provider. If written approval is not provided by the CEO of Provider and Client hires or contracts with a Provider Employee contrary to this Section, the Client shall pay the Provider liquidated damages in an amount equal to the total compensation, including salary, wages, bonuses, commissions, and employee benefits, cost of training, etc., that the Provider Employee received during the prior twelve (12) months of employment or $100,000.00, whichever is greater. Because of the unique services Provider offers and the difficulty of determining actual damages in losing trained Provider Employees, the parties acknowledge that any measure of liquidated damages stated in this Section is reasonable. This provision for damages under this Section shall not limit remedies against Client for any other breach of this Section or from asserting any cause of action independent of it.

12. Miscellaneous.

12.1 Independent Contractor Status. The parties are independent contractors. This Agreement (including any Proposal) shall not create a partnership or joint venture between the parties, or constitute either party as an agent, legal representative, employee, or servant of the other for any purpose. All Services performed or furnished by Provider are performed as an independent contractor. Provider will have sole discretion to determine the manner, method, and means of performing the Services, subject to the provisions of this Agreement. Provider may perform any of the Services through its own employees or through third-party consultants or subcontractors. Neither party may bind the other or create any obligation on the other’s behalf, except as specifically provided in this Agreement.

12.2 Assignment. This Agreement will be binding on the successors and assigns of both parties. Client may not assign, delegate, or transfer Client’s rights, passwords, or duties in connection with the Services provided by Provider without the prior written consent of Provider. All transfers of rights or duties herein, without the advanced permission in writing of Provider, shall be void and unenforceable as a matter of law.

12.3 Binding Effect; Contrary Terms. This Agreement shall govern the contractual relationship between the Provider and Client and shall be incorporated by reference into any Proposal between them or between Client and any affiliate of Provider. This Agreement shall be binding on and shall accrue to the benefit of the Provider and the Client and their respective successors and permitted assigns. No additional or different terms appearing on the face or reverse side of any Client purchase order or any other document issued or published by Client shall become part of the Agreement, and all such additional or different terms provided by Client are rejected by Provider.

12.4 Force Majeure. Each party shall be excused for delay in the performance of any of its obligations hereunder (other than the Client’s obligation to pay Fees or other compensation to Provider for Services or Products provided) when such delay is the result of acts of God, governmental authority, delays in transportation, subcontractors not being able to honor their commitment(s), war, act of terrorism, weather, manufacturer’s or supplier’s delays, etc., or any other cause beyond the affected party’s reasonable control.

12.5 Modification; Waiver. This Agreement may only be amended, modified, waived, or supplemented by an agreement in writing signed by the parties; provided, however, that Provider may update or amend these Terms from time to time, and by using, accessing, or accepting the Products or Services, Client agrees to be bound by the Terms as updated. If Provider updates or amends these Terms, provider will publish such amended version at http://www.netgainit.com/master-terms-and-conditions, and such amendment will take effect 30 days after Provider gives notice to Client. For avoidance of doubt, Client’s acceptance of the Services or Products (as applicable) constitutes express acceptance of the Terms as amended or updated. No waiver by either party of any of the provisions of this Agreement shall be effective unless in writing and signed by the party granting the waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege arising under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

12.6 Severability. If any provision of this Agreement is held to be unenforceable as applied to a particular circumstance by a court or tribunal of competent jurisdiction, then that provision shall be construed by (i) modifying it to the minimum extent necessary to make it enforceable (if permitted by applicable law) or (ii) disregarding it (if modifying it is not permitted by applicable law); but, the rest of this Agreement shall remain in effect as written and the provision modified shall remain in effect as written in all other circumstances.

12.7 Survival. Sections 3, 4, 8, 9, 10, 11, 12 and any other provision of this Agreement which by its nature must survive termination or expiration in order to achieve the fundamental purposes of this Agreement or such provision will survive the expiration or termination of this Agreement and each Proposal under it.

12.8 Dispute Resolution.

12.8.1 Governing Law. This Agreement and all questions arising out of or relating to its validity, interpretation, performance, or enforcement shall be governed by the laws of the Commonwealth of Kentucky without regard to its or any other jurisdiction’s choice of law provisions.

12.8.2 Venue. Client and Provider irrevocably submit to the jurisdiction and venue of the federal courts sitting in Lexington, Kentucky, or state circuit courts in Fayette County, Kentucky, for the purpose of any suit, action, or proceeding arising out of or relating to this Agreement (including any Proposal) or the Services or Products furnished by Provider. Such courts shall be the sole and exclusive venue for settling any dispute, claim, or controversy arising out of or relating to this Agreement (including any Proposal) or the Services or Products (each a “Dispute”), and Client and Provider hereby irrevocably waive any and all defenses to the jurisdiction and venue of such courts, including any motion to dismiss venue and the defense of an inconvenient forum to the maintenance of any such suit, action, or proceeding.

12.8.3 Informal Resolution. Client and Provider will resolve Disputes informally to the maximum extent possible. The parties shall negotiate all matters of joint concern in good faith. The parties agree that statements made in connection with informal dispute resolution efforts shall not be considered admissions or statements against interest by either party. Without limiting the generality of the foregoing, if a Dispute arises, then within five (5) business days after a written request by either party, Provider and Client shall promptly confer to resolve the Dispute. If the representatives of Provider and Client cannot resolve the Dispute or either of them determines they are not making progress toward the resolution of the Dispute within ten (10) business days after their initial conference, then the Dispute may be submitted via certified mail to: NetGain Technologies, LLC, Attn: VP of Operations, 2031 Georgetown Road, Lexington, KY 40511., who shall promptly confer to resolve the Dispute. If the Dispute is not resolved, or either of the designated management persons determine that they are not making reasonable progress toward resolution of the Dispute, within five (5) business days after the Dispute is first submitted to such management persons or twenty (20) business days have passed since the initial request for negotiations at this level, then the parties may either (i) mutually agree to attempt to resolve the Dispute by arbitration in accordance with Section 12.8.4 or (ii) pursue all rights or remedies at law or in equity, subject to the terms and conditions of this Agreement (including the venue provisions of Section 12.8.2).

12.8.4 Arbitration. This Section 12.8.4 shall apply only if the parties mutually agree in writing to conduct binding dispute resolution by arbitration. If the parties do not agree in writing to conduct binding dispute resolution by arbitration, then binding resolution of any Dispute shall be by litigation as provided in Section 12.8.2. If parties can not mutually agree to settle the dispute then the unresolved Dispute will be settled in binding arbitration by a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association (the “AAA Rules”). The arbitration shall be held in Lexington, Kentucky, and both parties shall agree on the selected arbitrator. If the parties cannot agree on the arbitrator, then he or she shall be selected in accordance with the AAA Rules. Each party will, upon written request of the other party, promptly provide the other party with copies of non-confidential documents relevant to the claim(s) in dispute; confidential documents may be provided if shown to be relevant and necessary to determine the Dispute, subject to an appropriate protective order entered by the arbitrator. At the request of a party, the arbitrator shall have the discretion to order examination, by deposition, of witnesses to the extent that the arbitrator deems such discovery relevant and appropriate. The arbitrator’s award shall be final and binding and accompanied by a reasoned opinion.

12.9 Injunctive Relief. If Provider is required to seek judicial intervention to enforce this Agreement (including Article 11), in addition to the remedies set forth in the Agreement, Provider shall be entitled to injunctive relief without the requirement of posting a bond and shall be entitled to recovery of its attorneys’ fees and costs.

12.10 Insurance. At all times when Provider will be performing Services at the premises of Client, Provider agrees to maintain insurance coverage required by this Agreement at limits suitable to Provider’s operations, as determined by Provider in its reasonable discretion. If requested by Client in writing, Provider shall provide Client with Certificates of Insurance evidencing such coverage. Such insurance coverage should include statutory workers compensation in accordance with the state’s laws where the services are being provided, the Provider’s usual commercial general liability insurance, automobile liability insurance (if applicable), crime insurance, cyber risk insurance, and such other insurance as Provider determines to carry in its discretion. Additionally, Client shall carry its usual commercial liability insurance, workers compensation insurance, property insurance, and other insurance coverages suitable to Client’s business and operations and name Provider as an additional insured on those policies; provided that Client’s general liability, automobile liability, and umbrella coverage limits shall be no less than the limits carried by Provider for such coverages. If Client is leasing property or equipment from Provider, Client’s applicable insurance policy or policies must list Provider as a loss payee and additional insured with respect to that property or equipment. Client’s policies maintained under this Section 12.10 shall be on a primary and non-contributory basis over Provider’s policies. Upon Provider’s request, Client shall provide certificates of insurance and applicable endorsements and, if requested, copies of policies showing that the foregoing coverages are in effect, and such coverages shall not be cancelled or materially modified during the Term. At all times, Client will bear the risk of any loss, damage or destruction of Client’s assets, equipment or property provided or maintained by Provider, from fire, water damage, theft, or other casualty, and Client shall be solely responsible for insuring Client’s property and filing insurance claims for losses associated therewith. Client agrees to transfer financial responsibility for insurable losses to the insurance policies described in this Section 12.10. Accordingly, to the fullest extent permitted by law, Client fully and finally waives all rights against Provider and its insurance providers for loss or damage covered or intended to be covered by such policies, including policies maintained by Client after the term of the Agreement.

12.11 Financing. Any financial products or services referred to in Provider’s offerings or advertisements are offered by third parties who are not affiliated with Provider or white-labeled by Provider. Provider cannot ensure that Client will be satisfied with any products or services purchased from such a third party. PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS AS TO INFORMATION, PRODUCTS, OR SERVICES PROVIDED BY THIRD PARTIES (WHETHER THROUGH PROVIDER OR OTHERWISE) AS TO THE PERFORMANCE OR MERCHANTABILITY OF THE PRODUCTS OR SERVICES OFFERED BY FINANCIAL COMPANIES OR OTHER THIRD PARTIES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED. TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE PRIVACY OR SECURITY OF ANY INFORMATION (INCLUDING PERSONALLY IDENTIFIABLE INFORMATION) YOU MAY BE REQUESTED TO GIVE PROVIDER OR A THIRD PARTY FOR PURPOSES OF USING SUCH THIRD-PARTY PRODUCTS.

12.12 Entire Agreement. This Agreement (including the Proposal and the Proposal-Specific Terms, if applicable) constitutes the entire agreement of the parties with respect to its subject matter, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter. The Proposal, these Terms, and all Exhibits to the Terms are intended to be complementary and shall be construed as a single instrument. However, in the event of a direct conflict between a provision of the foregoing documents, such documents will control in the following order of precedence: (i) Change Orders to the Proposal in reverse chronological order (i.e., the more recent Change Order controls), (ii) the Proposal, (iii) Proposal-Specific Terms as referenced in the Exhibits of this document, (iv) Articles 1 through 12 of these Terms. If there is no written agreement signed by Provider applicable to the Services or Products, then these Terms (including Exhibits) are the only terms and conditions that govern the provision of Services or Products by Provider to Client and prevail over any of Client’s general terms and conditions, whether conflicting or additional to these Terms, regardless of whether or when Client submitted its request for proposal, order, or such other terms, all of which are expressly rejected. Provision of Services or Products to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.

12.13 Notices. All notices required hereunder shall be in writing and shall be mailed by first-class mail, postage prepaid, sent by facsimile transmission or electronic mail, or delivered by messenger or reputable overnight courier, and shall be deemed given when received at the address of the receiving party specified in the introductory paragraph of this Agreement, or at such other address as the other party may furnish in writing.

12.14 Counterparts; Electronic Acceptance. The Agreement (including any Proposal) may be executed in any number of counterparts, including through verifiable electronic means, each of which shall be considered an original and all of which shall be considered one in the same document. Such execution of the Agreement through verifiable electronic means may include execution by marking the appropriate boxes in the applicable electronic platform or obtaining signatures through web-based electronic signature technology and digital transaction management services, such as DocuSign.

Exhibit A: Technology OneSource Terms

The following terms and conditions apply to Technology OneSource Services provided through a Proposal issued by Provider:

1. 30-Day Set Up Period. Within the first thirty (30) days after the Proposal has been signed and returned to Provider by Client or when the Provider starts providing the Services, whichever is earlier, Provider will complete an initial list of tasks to set up the Services. Client acknowledges and agrees that Provider may determine that Additional Services and/or Client obligations may be required in order for Provider to support Client’s network and deliver the Technology OneSource Services to Client, and Client agrees that the applicable Proposal will be adjusted accordingly and all additional charges and Other Fees will be payable to Provider as provided in the Agreement.

2. Term. The term of the Agreement for Technology OneSource Services shall commence after the 30-day set-up period referenced in Section 1 of this Exhibit A and continue for a period of five (5) years (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for a successive period equal in length to the Initial Term (the “Renewal Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the Initial Term. At the end of any Renewal Term or Additional Renewal Term, this Agreement will automatically renew for a successive period equal in length to the original Renewal Term (an “Additional Renewal Term” and together with the Renewal Term and the Initial Term, the “Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then-current Renewal Term, or Additional Renewal Term, as the case may be.

3. Onboarding Fee. Initial/New implementation of the Technology OneSource Program requires an onboarding fee. This fee is the greater of one month Technology OneSource or seven thousand five hundred dollars ($7,500), subject to change at the Providers discretion, and covers our costs of setting up remote management and monitoring, software licenses, administrative fees, and the network assessment to properly maintain your system throughout the term.

4. Service Fees. All fees for service are due one month in advance. The Agreement does not go into effect until all invoices for this Agreement have been paid in full and an executed copy of the contract has been provided to the Client. If Clients system expands by 10% or more due to a merger or acquisition, an immediate upcharge shall apply at current rates. If the Clients system shrinks by 10% or more, the client is required to fulfill the term at the rate prior to the shrinkage.

5. Support Services Provided. Services will be available and provided by Provider as described in the Services Defined section of the Proposal. All scheduled proactive maintenance services will be performed after business hours (8AM to 5PM Local Standard Time), Monday through Friday, excluding Provider recognized holidays. Any holiday service will be billed at two (2) times the published standard hourly rate.

6. Covered Equipment. Only the equipment as defined in our addendum shall be covered under the terms of the Agreement. Server support is limited to Microsoft Windows Servers. Client agrees Provider shall be the only vendor authorized to procure IT equipment & generally available software on their behalf to be connected or loaded onto the Clients network. Client agrees not to add any equipment to the operating network connected to the equipment defined in this Agreement without written notification to Provider. Any modifications to the network or covered equipment by the Client shall allow Provider to nullify all warranties and service agreements and client therefore releases Provider from any obligations to maintain said equipment and the full remaining value of this Agreement shall become due and payable.

7. Important Client Information. To request services, Client shall call the Provider’s Service Center at the provided number. With each request for services and at the time of each request, Client will provide Provider with the location, make model and serial number of the equipment to be serviced, a description of the problem or symptoms and a contact name and telephone number. Client agrees to allow Provider’s employees or its subcontracted service provider’s reasonable access to the premises and facilities where the Covered Equipment is located. Client agrees to provide an adjacent work area that includes adequate lighting, power outlets, a telephone line and at least one data transmission line, if applicable, for troubleshooting and testing communications.

Client agrees that Provider will make repairs under this agreement on a best effort basis and is not obligated to provide rental equipment for use during repair time. For products purchased prior to this agreement, if any Covered Equipment is protected under a manufacturer’s warranty, Provider expects and the Client agrees, to supply at Provider’s request within ten (10) days of the date of this Agreement copies of purchase invoices for such Covered Equipment as proof of purchase for warranty verification in order for this warranty to be submitted. Those invoices shall include date of purchase, manufacturer’s part number, description, serial number of the Covered Equipment, and any other information as may be required by the manufacturer to perfect warranty. This Agreement is deemed a service contract under federal law and covers services only unless otherwise specifically stated. Provider reserves the right to cancel coverage on any item of Covered Equipment if the item of Covered Equipment cannot be covered under Manufacturer warranty. Any time delay caused by Client inhibiting our ability to service such item will be billed to Client at our current time & materials rate, plus travel and expenses.

8. Excluded Services. Provider’s obligations hereunder are contingent upon proper use of the Covered Equipment and do not apply to equipment that has been modified or subjected to unusual physical, electrical, or other stress. Network server support services (Proactive, Reactive and Monitoring) are limited to Microsoft Windows Servers only. Provider is not obligated to furnish remedial repair service: (1) if parts replacement, maintenance, adjustment or repair is required because of accident, neglect, misuse, electrical power failure, air conditioning, use of non-manufacturer recommended operating supplies or products, forced extension of equipment past expiration of manufacturer’s warranty, humidity control, damage caused by a freight carrier, or causes other than ordinary use; or (2) if the equipment is maintained or repaired by other than Provider’s personnel, without the prior approval of Provider. If remedial repair service is required due to any of the causes stated above, the service will be made at Provider’s discretion and at current rates and terms. Provider’s Services also exclude (1) any/all product; (2) cabling and/or electrical work external to the equipment; (3) maintenance of accessories, alterations, attachments or other devices not specified; (4) services connected with installation or relocation of equipment; operating system upgrades and modifications; (6) software programming, program maintenance, and other software-related support; performance evaluation/tuning; (8) Software selection services; and (9) Problem resolution with communication line(s) or Internet carriers. All Covered Equipment must be in proper working condition at Client’s location on the effective date of this Agreement in order for the equipment to be subject to this Agreement. Any necessary repairs performed by Provider to bring the Covered Equipment to such operating condition shall be billed at then-current rates and terms. Remedial repair services required because of improper installation of the equipment (provided the equipment was not installed by Provider), operator error or software related problems, are excluded from this Agreement and will be billed at then-current rates and terms. Any on-site service provided for communication lines or carrier related work is not included in this agreement and is billable at Provider’s current service rates.

9. Discontinuation of Support. If the manufacturer of any item of Covered Equipment discontinues support of, or is unable to supply repair parts, components or modules for the Covered Equipment, and Provider is not able to reasonably obtain support, repair parts, components or modules from any other source in a timely fashion, then Provider may elect to discontinue Services for that item. In such case, Provider shall refund to Client, based on Provider’s quoted fee for services relating to that excluded item, a pro -rata portion of any prepaid charges for the unexpired term of this Agreement (note that pricing is based on end-user counts – not all additions or removal of items from the covered components list shall affect pricing). That item shall then be excluded from coverage under this Agreement. Additionally, Client agrees that all covered components must be maintained to industry standard (current OS, recommended RAM, drive space, IOS, patches, updates, etc.). Upon validation from Providers’ Engineer that a covered component does not meet industry standard, written recommendation for upgrade and/or replacement from Provider shall be supplied to Client. Client agrees to provide remedy or to engage Provider under separate agreement to perform such recommendation. If Client elects to not maintain covered equipment or software as recommended, that item shall then be excluded from coverage under this Agreement. Provider shall supply Client with written notification that the applicable item(s) are no longer covered under this agreement.

10. Service Level Specification. For those Agreements (exclusively) that are equal to or greater than $2,500.00 monthly; If Provider fails to meet a total weighted score equal to or greater than 85% in any given month, Client may request a credit for that month in the amount of up to fifteen percent (15%) of Providers total Agreement charges for the applicable month. Credit shall be reflected on the following months invoice. Requests for any credits must be made within thirty (30) days from the period in question. Credits for services provided shall not be given beyond this point. Service level descriptions and measurements may be found at https://www.netgainit.com/technology-onesource-sla-criteria/ (password: NetGainSLA).

Exhibit B: Security Services Terms

The following terms and conditions apply to Security Services (which may include Essential Security Services, SOCaas – MDR, MR, & MA, and Risk Assessment Services) provided through a Proposal issued by Provider:

1. Term. The initial term of the Agreement for Security Services shall commence on the date the Proposal is signed and returned to Provider or when Provider first provides the Services to Client, whichever is earlier, and continue for a period of one (1) year (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew for a successive period equal in length to the initial Term (the “Renewal Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the Initial Term. At the expiration of the Renewal Term, and for each subsequent extended term thereafter, this Agreement shall automatically be extended for additional successive one-year terms (each an “Additional Renewal Term” and together with the Initial and Renewal Term, the “Term”) unless either party gives written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then-current Renewal Term, or Additional Renewal Term, as the case may be.

Exhibit C: Consulting & Retainer Terms

The following terms and conditions apply to “Consulting and Retainer Services” provided through a Proposal issued by Provider:

1. Service Rates. Services provided under this Agreement will be invoiced and billed against the Client’s account maintained with Provider and funded upon execution of the Proposal as provided in this Section 1 (the “Account”) at the rates provided in the Proposal. Additional charges may apply under the terms and conditions of this Agreement.

2. Retainer; Account Charges. Before or upon accepting the Proposal, Client shall pay to Provider a retainer in the amount stated in the Proposal, which shall serve as the initial Account balance. The Account balance is reduced by units of time in whole or fractional hours according to monthly Provider invoices for Services provided.

3. Term. The term of the Agreement for Consulting and Retainer Services shall commence on the Effective Date and continue for a period of two (2) years or until the expiration of the Account balance, whichever occurs earlier (the “Initial Term”). Upon depletion of 75% of the initial Account balance, Provider will send an invoice to Client in the full initial Account balance amount to re-fund the Account. Upon payment of such amount by Client, the Agreement will automatically renew for a successive period equal in length to the Initial Term and subject to the same conditions (including conditions of renewal) (each a “Renewal Term” and together with the Initial Term, the “Term”). Unused Account balances shall credit to Provider at expiration or termination of this Agreement, and Provider shall have no responsibility to refund any Account balance to Client. The parties agree that the payment of such remaining account balance and the administrative fee described in the Proposal is a fair and reasonable representation of the loss anticipated to be suffered by Provider in the event of an early termination or non-renewal and is not a penalty. Nothing in this Agreement shall require Provider to provide Services objected to, including when (i) such Services are outside the Proposal; or (ii) the Account balance, in Provider’s discretion, is insufficient to cover remaining Services. Additionally, nothing in this Agreement may prevent Provider from billing for Services that exceed the Account balance remaining in accordance with Provider’s standard rates and/or terms and conditions, and all Services shall be paid for in accordance with this Agreement (including the Provider’s standard Terms).

Exhibit D: Cloud Services Terms

The following terms and conditions apply to Cloud Services (which may include Datto, Duo, iLand, Microsoft Azure, Microsoft Office 365, Sophos, or other cloud services as indicated in the Proposal) provided through a Proposal issued by Provider:

1. Cloud Services. Provider is providing certain “Cloud Services” as indicated in the Proposal documents. Provider and any third-party provider of such Cloud Services retain all right and title in and to the Cloud Services and all components of them, including all software included in or used to provide the Cloud Services and all logos and trademarks reproduced through the Cloud Services. This Agreement does not grant to Client or any Client Representative (a) any right to reproduce, modify, distribute, publicly display, or perform the software included in the Cloud Services or (b) any other right to the Cloud Services not specifically set forth in the Agreement or any Third Party’s agreement, and all rights are expressly reserved.

2. Term. The initial term of the Agreement for Cloud Services shall commence once consumption of the Cloud Services begins and continue for period of one year (the “Initial Term”). Unless either party provides written notice of non-renewal at least ninety (90) days prior to the expiration of the Initial Term, at the end of the Initial Term this Agreement shall automatically extend for successive one-month renewal terms (each a “Renewal Term” and together with the Initial Term, the “Term”), which may be terminated by either party by providing 30 days’ prior written notice to the other party.

Exhibit E: Microsoft Subscription Terms

The following terms and conditions apply to Subscription Services provided through a Proposal issued by Provider:

1. Microsoft Subscription Services. Certain Microsoft subscriptions may be offered as part of Provider’s Technology OneSource Services (see Exhibit A above), Cloud Services (see Exhibit D above), or on a standalone basis.

2. Term. Unless otherwise stated in the Proposal or unless offered as part of the Technology OneSource or Cloud Services with a different Term stated for the subscription(s) under such Services, Microsoft subscriptions will be on a yearly or monthly basis as set forth in the Proposal, commencing upon the provisioning of the subscription(s) from Microsoft for the Client (the “Term”). The Term and applicable subscription(s) shall continue for successive renewal terms of equal length unless a party gives written notice of termination at least 90 days (or, if a monthly term has been selected, 30 days) before the expiration of the current Term. Such termination will become effective upon expiration of the current Term.

3. Billing Periods. For yearly subscriptions the billing period will be annual and for monthly subscriptions the billing period will be monthly. For monthly subscriptions, all fees stated are subject to a 20% premium, which will be charged as Other Fees payable by Client pursuant to the Agreement.

4. Adding and Removing Subscriptions or Seats. Additional subscriptions or seats may be added at any time during the Term, subject to this Agreement. If Client wants to add additional subscriptions, Client shall give prior written notice to Provider. If a request for additional subscriptions is accepted by Provider, Provider will either issue a new Proposal for such subscription(s) or a Proposal addendum reflecting the new subscription(s). New subscriptions will be on their own Term (annual or monthly and pricing, as agreed by the parties, but otherwise subject to the terms and conditions of this Agreement). If requests for additional seats are accepted by Provider, Provider will add the seats to the existing subscription(s) under this Agreement. Provider may then issue a Proposal addendum showing the addition of the new seats. Notwithstanding any other provision of this Agreement, and regardless of whether a new Proposal is issued, Client agrees to pay for all subscriptions, seats, and upgrades that Client receives in connection with this Agreement, and Client’s request or use of any such Products or Services constitutes express consent for Provider to charge Client the normal Fees for them pursuant to this Agreement. All added seats are subject to the terms and conditions of this Agreement. Billing adjustments for added seats will be reflected in a monthly invoice at the beginning of the next billing term and paid as provided in this Agreement. However, for annual subscriptions, Fees for added seats will be reconciled in real time and invoiced and paid upon the seats being added. Fees for added seats will be prorated for the current term in which they are added.

5. Minimum Subscriptions; Cancellation. During the Term, Client shall maintain the minimum number of subscriptions provided for in the Proposal at the stated levels, and Client may not cancel any subscriptions or users during the Term. Client may transfer a subscription within its organization, provided that Client must give Provider written notice of such transfer and comply with all requirements of this Agreement and all Microsoft terms, conditions, and requirements in connection with such transfer. Client may not cancel any subscriptions or seats during the current Term. Client shall be responsible for all subscription charges and seats during the Term, regardless of whether Client actually uses the subscriptions. Early Termination Fees as stated in the Agreement will apply.

6. Upgrading and Downgrading Subscriptions. Client may upgrade subscriptions (i.e., change from a lower level such as “Basic” to a higher level such as “Premium” for a given Microsoft Product) at any time during the Term. However, upgrades must be manually done for each seat assigned to a subscription once provisioning is complete, and additional Fees may apply. Upgrades are in all cases subject to Product availabilities and other Microsoft requirements. Client must give written notice of its request to upgrade to Provider. If requests for upgrades are accepted by Provider, Provider will issue an addendum to the Proposal adding the Product upgrades. All upgrades are subject to the terms and conditions of this Agreement. Billing adjustments for upgrades will be reflected in a monthly invoice at the beginning of the next billing cycle and paid as provided in this Agreement. However, for annual subscriptions, Fees for upgrades will be reconciled in real time and invoiced and paid upon the upgrade being provided. Fees for upgrades will be prorated for the current term in which they are added. Client may not downgrade subscriptions (i.e., change from a higher level such as “Premium” to a lower level such as “Basic” for a given Product) during the Term.

7. Transition Costs. The costs of transitioning any subscriptions or Products to other providers after termination is not included in Provider’s fees, and additional charges and Fees will apply if Provider agrees to provide such services. In addition, except for the limited functions relating to Provider’s role as an intermediary between Client and Microsoft if provided for in the Proposal, services, technical support, and other services are not included in this Agreement or in the standard Fees. If Provider agrees to provide such Services as indicated in a supplemental Proposal, additional terms and compensation shall apply.

8. Microsoft Terms and Conditions. Without limiting any provisions of the Agreement relating to Third-Party Services, EULAs, or similar matters, Client acknowledges that all Microsoft Products are provided by Microsoft and agrees to be bound by all terms and conditions provided by Microsoft. This includes the Microsoft Customer Agreement available at https://www.microsoft.com/licensing/docs/customeragreement as updated (the “Customer Agreement”), any applicable use rights, Service Level Agreements (“SLAs”), and other terms and conditions or requirements that apply. Client also acknowledges and agrees that:

a. By accepting the Proposal or otherwise using any Microsoft Products in connection with it, Client agrees to the Customer Agreement and all other Microsoft terms and conditions and other requirements. Client shall also comply with all technical requirements pertaining to the Products, including minimum system requirements. Specific requirements may be provided in Product descriptions or terms provided by Microsoft.

b. Because the Products are created by Microsoft and subscriptions are only made available through Provider as an intermediary, Provider does not warrant the Products or their use and shall have no liability for them. TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARE DISCLAIMED BY PROVIDER, AND THE PRODUCTS ARE PROVIDED “AS IS.” All limitations in Microsoft’s terms and conditions or other user documentation, including limitations on warranties or liabilities, shall apply. Without limiting the foregoing or any other provisions of this Agreement, Provider shall not be liable to Client for loss or damages arising from: (i) accident, abuse, or use of Products inconsistent with this Agreement or resulting from events beyond Provider’s or Microsoft’s reasonable control; (ii) failure to meet any Microsoft or Provider requirements for operation or use of the Products, including minimum system requirements; or (iii) issues with Product availability, shortages, or discontinuances. Provider may limit order quantities or impose other limitations in the event of such Product shortages or discontinuances.

c. Client’s use of the Products shall in all cases be consistent with the limited license obtained under the Customer Agreement, which confers a limited, non-exclusive license to use the Products subscribed to on a per seat basis, subject to all additional terms and conditions provided in the Customer Agreement and applicable use rights for the Product. All Product-specific terms and conditions provided by Microsoft shall apply. Client’s rights to use the Products under this limited license are in all cases conditional on Client’s continued compliance with the terms and conditions of this Agreement (including payment of the subscription Fees), the Customer Agreement, and all Product-specific terms and conditions. The limited license automatically terminates upon termination of the Agreement or the subscription corresponding to the licensed Product. All rights not expressly granted to Client in writing as part of this Agreement are reserved, and title, copyright, intellectual property rights, and distribution rights of any Product shall remain exclusively with Microsoft. No rights are granted or implied by waiver or estoppel in connection with the Subscription or the Products.

d. Client shall not (i) reverse engineer, decompile, or disassemble any Product; (ii) rent, lease, lend, resell, or host any Product to or for third parties; or (iii) separate and use the components of a Product on two or more computers, upgrade or downgrade components at different times, or transfer components separately. Client must use only original software for the subscribed Products. Installation of certain software may require Client to have a qualifying base license on the applicable user’s hardware unit. Client shall retain all records relating to the installation of software for any Products and, upon request, shall provide such records to Provider or Microsoft for verification. Client must subscribe to sufficient individual Product licenses for the users of such Products and in accordance with all Microsoft requirements.

e. Client acknowledges that it controls the end users of all licensed Products and is responsible for any use of the Products that does not comply with this Agreement. applicable Microsoft terms and conditions, or applicable law.

9. Limited User Support; Other Software Requirements. Client understands and agrees that Provider, as the subscription administrator, will provide limited technical support to initiate configuration and use of the subscription(s), including the limited administrative functions of activation, billing, and management and escalating ongoing problems to Microsoft. However, this Agreement does not otherwise include support, maintenance, or other managed service that may be offered by Provider or its affiliates under separate offerings. Additional terms and Fees may apply for any support services requested in connection with the subscription or any Product. In addition, Client is solely responsible for other software, hardware, or requirements outside of the subscribed Product. Neither Provider nor Microsoft is bound by any terms or conditions governing Client’s use of other software. If Client installs or uses any software outside of the Products, Client shall direct and control the installation and use of such software and be solely responsible for its use.

10. Privacy and Security; Client Accounts. Privacy and security statements are listed in the Customer Agreement and Product use rights. Provider will comply with all applicable privacy and data security laws. However, Provider provides no warranties or guarantees with respect to privacy and security in the use of the Products, and all such warranties are disclaimed to the fullest extent permitted by law. Client is solely responsible for protecting the confidentiality of its account information (including IDs, passwords, or other authentication credentials) associated with Client’s use of the Products. Client is also responsible for all use of the Products and related activities and its dealing with third parties that take place through Client’s accounts. Client must immediately (and in no event later than 24 hours of the incident) notify Provider in writing about any possible misuse of its accounts or any security incident related to this Agreement, the subscription, or the Products. To the extent required for the provision of the subscription, Client consents to the processing of personal data by Provider and its affiliates. Before providing any personal data to Provider, Client is responsible for obtaining all required consents from third parties under applicable privacy and data protection laws.

11. Provider Authorization. Client authorizes Provider (or its designated affiliate) to be a designated reseller of record with respect to the Products and a “Partner” within the meaning of the Customer Agreement and all Microsoft terms and conditions applicable to the Subscription. Client shall execute all forms required by Provider to give effect to such designation, and Provider’s obligations under this Agreement are conditioned on Client timely providing such authorizations.

12. Audits; Unlicensed Uses. During the term of the Agreement and for five (5) years after its termination (or such longer period as required by law or any Microsoft requirements), Client shall keep all records relating to the subscription(s) and Client’s use of the Products under the Agreement, including such records pertaining to the number of licenses in use throughout the Client’s business (including the actual machines or users corresponding to such licenses) compared to the number of licenses issued and/or paid for by Client. Provider or Microsoft may audit such records upon its request for any reasonable purpose, including to verify compliance with this Agreement or Microsoft’s terms and conditions. By requesting an audit, Provider does not waive its rights to enforce this Agreement or exercise any rights or remedies under it. If verification or self-audit reveals any unlicensed use, Client must reimburse Provider for the costs incurred in undertaking the audit and related verification, in addition to acquiring the necessary additional licenses at retail license cost within 30 days and updating the subscription accordingly and any other costs and expenses resulting from the unauthorized use (including costs imposed on Provider by Microsoft).

13. Supplemental Software. To enable optimal access and use of the Products, Client may need to install supplemental software, including such supplemental software or updates as recommended by Provider or Microsoft. Failure to install updates may affect Client’s ability to use certain functions of the Products. Client is solely responsible for compliance and associated costs with such recommended updates and all licenses pertaining to supplemental software.

14. Additional Provisions Regarding Terminations. In addition to the parties’ respective rights to terminate under this Agreement, the following terms shall apply to Microsoft subscriptions. Provider may modify, discontinue, or terminate the subscription(s) if any current or future (i) government regulation, obligation, order, decree, or other requirement or (ii) Microsoft term, condition, or other requirement presents or creates a hardship for Provider to continue offering the subscription(s) or part of it or them without modification or otherwise conflicts with this Agreement. In addition, Client acknowledges and agrees that Microsoft may suspend or cancel the subscription(s) at any time for legal or regulatory reasons or due to revocation of Client’s eligibility to use the Products. In such event, neither Provider nor Microsoft will be liable to Client in connection with such suspension or cancellation, and Provider shall be entitled to invoice the Client for subscriptions ordered and used before the termination.

Exhibit F: Fixed Fee Projects

The following terms and conditions apply to fixed fee projects provided through a Proposal issued by Provider:

1. Fixed Fee Projects: Provider may offer certain Proposals for a solution with defined completion criteria and not covered by other Proposal-Specific Terms on the basis of a fixed or lump sum fee. Unless noted otherwise, Provider’s work and all pricing is based on acceptance of both Services and hardware. Any changes to the design may result in additional costs per Section 1.4 of the Terms.

2. Communication; Project Kickoff: At a time that both parties mutually agree, a Project Kickoff Meeting will be scheduled by Provider’s “Project Manager” and “Lead Engineer” assigned to Client’s project. An estimated timeline will be established during this meeting. Provider utilizes a “Final Acceptance Document” as a means of measuring project completion. This documentation will be reviewed during the Kickoff Meeting. Tracking information will be available after Products (as outlined in the Proposal) have been ordered, and weekly status updates will be provided by the Project Manager through completion of the project. While work is in progress, regular communication can be expected from the assigned Lead Engineer.

3. Product Versions: Provider will begin the project with the latest software versions of the solution available on the start date of the project (unless otherwise specified). Subsequent software releases by the manufacturer during the project requiring upgrades to the existing software versions, as determined by Provider in its discretion, will be processed as Change Orders and paid pursuant to the Agreement.

4. Current Environment Health and Existing Infrastructure: Provider assumes that existing equipment or software requiring connectivity to the proposed solution, e.g., Active Directory, Network Infrastructure, Server Operating Systems, and Proprietary Software do not require additional troubleshooting beyond tasks outlined in this proposal.

5. Licensing: Client is responsible for all licensing outside of the quoted solution, for example, Microsoft Office and Windows Server Licenses, CALs, and other supporting servers that may be required.

Exhibit G: Hosted Infrastructure

The following terms and conditions apply to hosted infrastructure Services (which may include co-locations, data domain, encryption, web, or other Services) provided through a Proposal issued by Provider:

1. Hosting Services. Provider may offer certain Proposals for access to hosting Services not covered by other Proposal-Specific Terms.

2. Term. The initial term of this Agreement shall commence once Services are provided and continue for period of one (1) year (the “Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for a successive period equal in length to the Initial Term (the “Renewal Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the Initial Term. At the end of any Renewal Term or Additional Renewal Term, this Agreement will automatically renew for a successive period equal in length to the original Renewal Term (an “Additional Renewal Term” and together with the Renewal Term and the Initial Term, the “Term”) unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to the expiration of the then-current Renewal Term, or Additional Renewal Term, as the case may be.

3. Change of Hosting Providers. If Client terminates the Services in accordance with the Agreement (including all terms and conditions of the Terms and this Exhibit G), Provider will use commercially reasonable efforts to transition to another hosting provider upon expiration of the Term. However, such services are Additional Services, and if provided in Provider’s discretion, Client shall pay Provider all transition fees based on Providers’ hourly rates, in addition to any Other Fees that may apply. Notwithstanding the foregoing, Provider will provider no services in connection with the transfer, including the transfer of equipment, files, or data, if the Client’s account is not current. Once the account is current and all Fees owed to Provider are paid, Provider will commence services in connection with transfer of files and data, and the Fees for transition services will be due upon the transition.

Version: 05/01/2023