APEXAIQ Inc.
Managed Service Provider Terms and Conditions

By using the Apexa SaaS Platform, you (“User” or “MSP”) agree, on behalf of the Organization (meaning the company you own in whole or part, are an employee, subcontractor or consultant for, or are a managed service provider offering the Apexa SaaS Platform to your clients and End Users) to these ApexaIQ, Inc. (“Apexa” or “Company”) terms and conditions (“MSP T&C Agreement”) between ApexaIQ Inc., a Delaware corporation with a principal place of business at 100 Medway Road, Suite 403, Milford, MA 01757 , and Organization or MSP . Company, Organization, User, and MSP each may be referred to herein individually as a “Party” and, together, as the “Parties.” This T&C Agreement, together with a mutually signed proposal from Company, an applicable executed order form(s), or purchase order (each, an “Order Form”), as may be amended from time to time and in effect comprise the entire agreement between the Parties with respect to the subject matter hereof (the “Agreement”). The Initial Service Term is defined in the Order Form. The “Effective Date” is defined as the date that MSP signed the Order Form.

YOU REPRESENT AND WARRANT THAT YOU HAVE THE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE MSP. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT BECOMES BINDING AND EFFECTIVE ON MSP UPON (1) ACCESS TO OR USE OF THE SAAS PLATFORM BY ANY INDIVIDUAL OR END USER, (AS DEFINED BELOW) OF THE MSP, OR WHEN MSP ENTERS INTO A VALID ORDER FORM (AS DEFINED ABOVE), WHICHEVER IS THE EARLIEST. IF YOU DO NOT AGREE TO COMPLY WITH AND BE BOUND BY THIS AGREEMENT, OR IF YOU DO NOT HAVE AUTHORITY TO BIND THE MSP, PLEASE DO NOT ACCEPT THIS AGREEMENT OR ACCESS OR USE THE SAAS PLATFORM.

RECITALS

WHEREAS MSP desires to subscribe to Company’s software as a service platform (“SaaS Platform” as defined below) and Company desires to allow MSP to subscribe to Company’s SaaS Platform based upon the terms and conditions set forth herein

and

WHEREAS Company desires to authorize MSP to distribute and manage Company’s Software as a Service for the MSP’s End Users (as defined below).

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions.
    1.1 “Asset” means a managed or unmanaged endpoint device that is on any network where the endpoint device is treated by SaaS Platform as a single item (i.e., a server with an operating system, database and application running on it is still regarded as one item). Some examples of Assets are virtual servers, physical servers, VOIP phones, PCs, storage arrays, and network switches. Each Asset will be considered a unique Asset within each MSP Tenant.

    1.2 “Tenant” means a virtual environment or domain within the SaaS Platform that encompasses SaaS Platform’s technologies such as, but not limited to, Collectors, Accelerators, tags, and rules.  Tenants may be deployed to represent various development or operational environments such as production, staging, development, or testing.

    1.3 “Sub-Tenant” means a Tenant that is subsidiary to another Tenant (an MSP Tenant). A Sub-Tenant may only have one MSP Tenant and may not have its own Sub-Tenants.

    1.4 “MSP Tenant” means a Tenant that has one or more Sub-Tenants. An MSP Tenant can manage its own data along with the data from multiple Sub-Tenants. This includes adding, updating, managing and deleting data from its Sub-Tenants.

    1.5 “Collector” means a virtual server that sits within an area of a network and collects asset information. Some End Users may require multiple Collectors.

    1.6 “Accelerator” means a network management utility, tool or component that speaks to existing data repositories to acquire data thereon. Some examples of Accelerators are ServiceNow, AWS, CrowdStrike, vCenter and Active Directory.

    1.7 “End User” means the MSP’s client(s) who utilizes the Company’s Software as a Service through contract with the MSP.

    1.8 “SaaS Platform” means access to the ApexaIQ Inc. proprietary Software as a Service platform that provides visibility into the health of a customer’s IT organization, in a single dashboard, accompanied with a risk rating score and an action plan to remediate and improve that score, in accordance with the terms of the Agreement.

    1.9 “Order Form” means the document by which the MSP orders from the Company on their behalf or the behalf of the End User's Organization.

    1.10 “ACV” means the annual contract value pursuant to a contract, purchase order, Order Form, or order document, with a minimum initial term of one year. ACV does not include any amounts received and is calculated net of all discounts, refunds, and rebates and before any taxes.
  2. Term.
    The Initial Term of this Agreement shall be as defined in the Order Form, commencing on the Effective Date. The term of this Agreement shall automatically renew for successive periods of one (1) year after expiration of the Initial Term, unless terminated at least sixty (60) days prior to the renewal date, by either party, in writing.
  3. MSP and End User.
    MSP may promote, market, and utilize the SaaS Platform in accordance with this Agreement. The MSP agrees to be bound by, and comply with, this Agreement by means of reference to the Agreement terms and conditions, in the signed Order Form submitted.

    Terms and Conditions. Subject to all the terms and conditions of this Agreement, Company hereby appoints MSP for the term of this Agreement, as a nonexclusive managed service provider of the SaaS Platform to End Users. MSP may market, promote, and utilize the SaaS Platform, which has been licensed to MSP, provided the MSP agrees to flow down MSP’s obligations under Company’s then-current license terms (“Terms and Conditions”) to End Users. Company’s current up to date Terms and Conditions are available at https://www.apexaiq.com/legal/terms-conditions/. Company may update the Terms and Conditions from time to time. Nothing in this Agreement shall be construed as limiting in any manner Company's marketing or distribution activities or its appointment of other dealers, managed service providers, partners, licensees, or agents.

  4. AUTHORIZATION.

    Subject to MSP's compliance with this Agreement, Company hereby grants to MSP a non-exclusive right to promote, market, and utilize the SaaS Platform during the term of this Agreement and in accordance with the terms and conditions of this Agreement. Company reserves the right to promote, market, and resell and to appoint other persons or entities to promote, market and resell the SaaS Platform on a standalone basis or bundled with third party hardware or software, directly or indirectly, without any liability or obligation to MSP. Where appropriate, and as mutually agreed on a deal-specific basis, Company and MSP may work together to promote and market the SaaS Platform.


    MSP is an independent contractor pursuant to this Agreement. Nothing in this Agreement creates any joint venture, partnership, or other form of joint enterprise, or any agency, employment, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any End User or other third party.

  5. PRICES, PAYMENT, AND ORDERING.
    5.1 Pricing. “Fees” may consist of Service Fees and Implementation Fees (both of which are defined in the Order Form. Company reserves the right to change the Fees subject to automatic annual increases not to exceed the greater of five percent (5%) or the annualized change in the Consumer Price Index for All Urban Consumers (CPI-U). MSP shall have the right, in its sole discretion, to determine the prices for SaaS Platform sold by MSP to its End Users.

    5.2 True-Up. MSP’s use of the SaaS Platform shall include up to the number of Assets as they are defined in the Order Form (as “Service Capacity”) fully executed by both Parties. Company shall monitor and audit MSP’s use and number of Assets on a quarterly basis on the last day of each quarter (“True- Up”). At this time, Company and MSP shall calculate a True-Up which will adjust the MSP’s Service Capacity Level (as defined in the Order Form) to the current level of Service Capacity and pricing. Any additional Fees which are related to a True-Up will be prorated to be coterminous with the current Term and invoiced accordingly. The Service Capacity may not be reduced to be lower than the agreed upon Service Capacity as it is defined within the Order Form.

    5.3 Bulk Tier. At any time, MSP may commit to a higher MSP Bulk Tier (as defined in the Order Form) to recognize larger discounts for the SaaS Platform. In order to commit to a new MSP Bulk Tier, MSP must submit a new Order Form to Company. If MSP’s Initial Service Term is three (3) years or greater, MSP may move to a different Bulk Tier one (1) time annually with no additional annual term commitment to Company. If MSP’s Initial Service Term is less than three (3) years, MSP must commit to a minimum of one (1) additional annual term of service from Company. At any time, if MSP commits to three (3) years of service from Company, MSP will have the option to change Bulk Tiers one (1) time annually during the current term with no new annual term commitments to Company. The Bulk Tier may not be reduced during an active Term.

    5.4 Payment. MSP shall pay all undisputed amounts for all SaaS Platform consumed by MSP and/or End Users hereunder in U.S. currency by check, ACH, or wire transfer net thirty (30) days from date of Company’s invoice. MSP shall bill End Users directly and be solely responsible for all collection efforts related to payments from MSP's End Users. MSP shall at all times remain obligated to make timely payments to Company regardless as to whether MSP receives payment from the applicable End User. Company reserves the right to refuse, cancel, or withhold its SaaS Platform in the event MSP fails to make timely payment of undisputed amounts in accordance with this Agreement. All amounts that are not paid by MSP as required by this Agreement shall be subject to a late charge equal to one and one-half percent (1.5%) per month starting 15 days after the actual due date. MSP will reimburse Company for all reasonable costs (including bank charges, collection agency fees and reasonable attorneys’ fees) incurred by Company in connection with collecting any overdue amounts. The payments to Company shall not include any taxes, duties, fees, or other amounts assessed or imposed by any government authority. MSP is responsible for collecting and paying all such taxes, duties, fees, and other amounts, as well as all penalties and interest, with respect to the SaaS Platform, other than taxes imposed on Company’s income. MSP will pay or reimburse Company for all such amounts upon written demand showing receipt of payment by Company or provide evidence of payment or tax exemption. MSP will not offset the amounts payable to Company with amounts MSP claims are due it. MSP will bring any claims or causes of action it may have in a separate action and waives any right it may have to offset, set off, or withhold payment for the SaaS Platform pursuant to this Agreement. All payments made by MSP to Company are non-refundable except as explicitly stated in this Agreement.

    5.5 Price List & Service Change. Company reserves the right to change its offering of SaaS Platform, and to update, change, or discontinue any, at any time; provided, however, that Company shall abide by any Company warranty Terms and Conditions with respect to any SaaS Platform previously sold. Company shall provide MSP with at least thirty (30) days prior written notice of such update, change, or discontinuation in accordance with the terms of this Agreement. Upon MSP's request, Company will provide MSP with the price of the SaaS Platform, which will include both Company’s list price and MSP's discounted price.

    5.6 Terms and Conditions. MSP acknowledges that the SaaS Platform will be licensed directly by Company to the MSP pursuant to the Company’s Terms and Conditions. MSP agrees to flow down MSP’s obligations under Company’s license Terms and Conditions, including confidentiality conditions to End Users prior to any offering of the SaaS Platform to any End User. If any modification or alternate software license agreement is proposed by an End User, then MSP is required to obtain Company’s prior written approval before entering into such an agreement with such End User. MSP will promptly notify Company in writing of any suspected or actual breach of the Terms and Conditions it becomes aware of and will reasonably cooperate with Company with respect to any investigation by Company of any suspected or actual breach of the Terms and Conditions and any action by Company to enforce the Terms and Conditions. Company may suspend or terminate any MSP’s access to the SaaS Platform in the event that Company reasonably determines MSP or any MSP’s End Users have violated the Terms and Conditions.

    5.7 Reserved.
  6. MSP'S RESPONSIBILITIES.
    6.1 Marketing. MSP shall use commercially reasonable efforts to promote and market the SaaS Platform to End Users. Company will, upon request, reasonably provide MSP with Company’s standard MSP advertising, marketing, and sales materials at no charge. MSP will obtain Company’s prior permission if MSP creates any Company specific marketing materials and will advise Company promptly concerning any market information which comes to MSP or Affiliates attention regarding Company, the SaaS Platform, the market position of the SaaS Platform or the continued competitiveness of the SaaS Platform in the marketplace. MSP will confer with Company on a monthly basis concerning matters relating to (a) market conditions, sales forecasting, SaaS Platform and Service planning and (b) competing SaaS Platform and technologies, and potentially competing SaaS Platform and technologies.

    6.2 Use of Logo. MSP agrees to grant Company the express right with written consent in each instance to use MSP's name and logo in marketing, sales, financial, and public relations materials, and other communications solely to identify MSP as a Company MSP. Other than as expressly stated herein, neither party shall use the other party's marks, codes, drawings, or specifications without the prior written permission of the other party.

    6.3 Joint Press Release. MSP may, at its sole discretion, participate in a joint press release if requested in writing by Company. The joint press release will be issued on a mutually agreed upon date. MSP and Company will have the right to approve the press release in advance, but such approval will not be unreasonably delayed or withheld.

    6.4 Support Services. Company will provide MSP with its standard Level 2 and Level 3 support services. MSP shall be responsible for all support requested by End Users (typically referred to as Level 1 support). Upon MSP’s request, should Company, in its sole discretion, deem that additional technical support is needed with regards to the Company’s SaaS Platform, Company will provide support to the MSP’s End User for a mutually agreeable fee paid by MSP. Company support services are further described in the online MSP Terms and Conditions located at https://www.apexaiq.com/legal/service-level-agreement/ (“Service Level Agreement”). MSP shall provide support services to the End User that are at least as beneficial as the Company’s support services described in the Service Level Agreement.

    6.5 Business Practices. MSP agrees to: (a) conduct business in a manner that reflects favorably at all times on Company, including its affiliates, and the SaaS Platform, and the good name, goodwill and reputation of Company and its affiliates, (b) avoid any deceptive, misleading or unethical practices that are or might be detrimental to Company, including its affiliates, and/or the SaaS Platform, (c) not make any false or misleading representations with regard to Company, including its affiliates, and/or SaaS Platform, and (d) not make representations, warranties or guarantees of any kind to potential or actual End Users with respect to the specifications, functionality, features or capabilities of the that are inconsistent with the Company’s published documentation.

    6.6 Compliance with Laws; Export Regulations. MSP will comply with all applicable laws, rules, and regulations, including any applicable anti-corruption, data protection and privacy laws, in performing this Agreement and in its dealings with respect to the SaaS Platform and End Users. Without limiting the generality of the foregoing, MSP understands that the SaaS Platform or any part thereof, the use of and the export and re-export of the SaaS Platform may be controlled by applicable export control and other national security-related laws of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations. MSP will not engage in any activities in violation of such laws, including the export or release of the SaaS Platform to any party involved in sensitive or unsafeguarded nuclear activities, or activities related to chemical or biological weapons or missiles, or to any prohibited country blacklisted under such laws or any national of such prohibited country.

    6.7 Records Audit. MSP will maintain full and complete records of its distribution for at least three (3) years after the distribution of such SaaS Platform for any End User has ended or in compliance with any law. Company may, no more than once annually during the period when MSP is obliged to maintain such books and records, upon reasonable written notice to MSP, and during MSP's normal business hours, audit such books and records in order to confirm the accuracy of the records. MSP will reasonably cooperate with Company in such an exercise and provide Company with reasonable access to its books, records, and other required resources applicable to the SaaS Platform and the applicable MSP’s End Users. Any such audit shall be expressly limited to the books and records directly related to its performance under this Agreement, and performed at Company’s expense, provided that the cost of such audit shall be paid by MSP if such audit reveals a material breach of this Agreement or an underpayment by MSP of more than five percent (5%) of the amounts payable by MSP to Company for any SaaS Platform or individual End User , in which case MSP will bear the cost of the audit.

    6.8 Costs and Expenses. Except as expressly provided in this Agreement or agreed in writing by the parties, MSP will pay all costs and expenses incurred in the performance of MSP's obligations under this Agreement.
  7. RESERVED.

    7.1 Reserved.
  8. LIMITED WARRANTIES AND LIMITATION ON DAMAGES.
    8.1 Company Warranty.  Company makes no warranties to MSP or any MSP affiliate with respect to any of the SaaS Platform and are provided “AS IS”.  Company’s sole warranty to any End User with respect to any of the SaaS Platform shall be the warranty set forth in the Terms and Conditions, if any.

    8.2 Limitation of Liability. EXCEPT IN CONNECTION WITH EACH PARTY’S OBLIGATIONS AS PROVIDED IN SECTIONS 6, 9, 10, AND 11, COMPANY, MSP AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING LOST PROFITS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT AND/OR THE RESALE OF THE SAAS PLATFORM, REGARDLESS OF THE FORM OF ACTION AND WHETHER SUCH DAMAGES ARE FORESEEABLE OR KNOWN IN ADVANCE TO BE POSSIBLE. EXCEPT IN CONNECTION WITH EACH PARTY’S OBLIGATIONS AS PROVIDED IN SECTIONS 6, 9, 10, AND 11, COMPANY’S, MSP'S AND THEIR RESPECTIVE OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’ AND AFFILIATES’ LIABILITY IN CONNECTION WITH THIS AGREEMENT AND/OR THE RESALE OF THE SAAS PLATFORM SHALL NOT EXCEED THE AMOUNTS PAID TO COMPANY BY MSP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE A PARTY NOTIFIES THE OTHER OF THE CLAIM, PROVIDED THAT NOTHING HEREIN SHALL LIMIT MSP'S PAYMENT OBLIGATIONS TO COMPANY UNDER SECTION 5 OF THE AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, INCLUDING WITHOUT LIMITATION ANY ACTION FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.

    8.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT THE SAAS PLATFORM OR USE THEREOF WILL BE ERROR FREE, UNINTERRUPTED OR VIRUS FREE. COMPANY DOES NOT WARRANT THAT THE SAAS PLATFORM OR USE THEREOF WILL ACHIEVE ANY REQUIREMENTS OF MSP OR ANY END USERS, OR ANY OUTCOMES OR RESULTS.

    8.4 MSP WARRANTIES. MSP warrants and agrees that it shall: (a) ensure that each MSP End User is bound by a contract with MSP for MSP SaaS Platform, the terms of which are no less protective of Company than the terms of this Agreement and Company’s Terms and Conditions (b) ensure that each MSP End User ceases to access and/or use the Company’s SaaS Platform if they no longer have a valid agreement with MSP for the supply of MSP SaaS Platform or if this Agreement is terminated; (c) ensure that each MSP End User receives and acknowledges notice about MSP End User-applicable updates promptly and in any event within three (3) business days following Company making such applicable updates available; (d) ensure that each MSP End User is operating with the most current updates within thirty (30) business days following Company making such updates available; (e) ensure that only MSP provides the MSP SaaS Platform; and (f) hold harmless, defend and fully indemnify Company against any claims, actions, proceedings, damages, costs, expenses or other liability whatsoever arising out of, resulting from, or relating to MSP’s and each MSP End User’s use of the Company’s SaaS Platform (including without limitation breach of MSP’s warranties in this Section). MSP further represents, warrants, and agrees not to copy, modify, rent, disassemble, decompile, or otherwise reverse engineer the any Company SaaS Platform, SaaS Platform or software, or otherwise attempt to learn the source code, structure, algorithms, or ideas underlying any Company SaaS Platform or software (except to the extent, and only the extent, this clause is expressly prohibited by applicable law) or allow any others to do the same.
  9. INDEMNIFICATION.
    9.1 Indemnification by Company. Company, if notified promptly in writing and given authority, control, information and assistance at Company’s expense for defense and settlement of same, shall defend MSP against any third party action, suit or proceeding brought against MSP so far as it is based on Company’s breach of this Agreement, gross negligence, willful misconduct, or a claim that the use of the SaaS Platform infringes a United States patent or copyright, and shall indemnify and hold harmless MSP for (i) all attorneys’ fees, and court or tribunal costs incurred by Company with respect to defense and settlement of such third party claim, (ii) any judgments, fines, costs and penalties awarded by any court or tribunal against Company, MSP and/or its End Users for such third party claim and (iii) any amounts paid in settlement of such third party claim as mutually agreed by Company and the third party in such claim. Company agrees that it cannot and will not in any way agree, consent, or admit to any court stipulation, arbitration, or settlement agreement with any third party that assigns any fault, responsibility, or obligation to MSP in any court or arbitration proceeding or settlement agreement regarding which it is seeking indemnification hereunder without the prior written consent of MSP, which MSP shall not unreasonably withhold, condition, or delay. Company shall have no obligation under this section for claims attributable to: (a) any unauthorized use or modification, where such claims relate to such unauthorized use or modification; (b) any unauthorized combination with third party software or SaaS Platform, where such claims relate to such unauthorized combination; (c) adherence to custom design instructions that MSP or any End User provides to Company; (d) the combination or use of the SaaS Platform with any software (including, without limitation, open source software, program or device not provided by Company) if such infringement would not have arisen but for such use or combination; (e) results from MSP or MSP affiliate(s)’ failure to use or distribute an updated version(s); or (f) results from use or distribution by MSP or MSP affiliate(s) after this Agreement is terminated. In the event that it is finally determined by a court of competent jurisdiction (or in a final settlement agreement consented to by Company) that the SaaS Platform infringe or violate a United States patent or copyright, Company may at its option, in addition to Company’s indemnification and defense obligations above: (i) procure for the End Users the right to continue use, (ii) replace with other non-infringing SaaS Platform SaaS Platform of substantially equivalent functionality, (iii) modify so that there is no infringement, provided that such modification provides substantially equivalent functionality, or (iv) refund any pre-paid, non-utilized portion of the purchase price of the SaaS Platform to the indemnified party. THIS SECTION 8.1 SETS FORTH MSP'S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION.

    9.2 Indemnification by MSP. MSP, if notified promptly in writing and given authority, control, information and assistance at MSP's expense for defense and settlement of same, will indemnify, protect, defend, and hold harmless Company from and against any and all costs, liabilities, claims, damages, lawsuits, actions, and expenses (including without limitation attorneys’ fees) and judgments including damages of any kind resulting from, arising out of or in connection with any actual or claimed: (a) negligent act or omission by, or willful misconduct of, MSP or a MSP affiliate’s employees, contractors or agents; or (b) as a result of (i) any modification or amendment of the terms of the Terms and Conditions, or any other agreement with an End User that Company did not specifically approve, (ii) any warranty, condition, representation, indemnity or guarantee granted by a MSP or MSP affiliate that was not specifically provided or approved by Company in writing, (iii) any unapproved omission or inaccuracy in MSP or MSP affiliate’s advertisements and promotional materials that relate to the SaaS Platform, or (iv) any modification of or addition to the SaaS Platform not specifically provided or approved by Company. MSP shall extend these indemnification terms as flow-down terms to each MSP affiliate. MSP agrees to reimburse Company for any and all reasonable costs and expenses (including attorneys’ fees) incurred in responding to any subpoena or other compulsory process relating to any of the foregoing. MSP agrees that it cannot and will not in any way agree, consent, or admit to any court stipulation, arbitration, or settlement agreement with any third party that assigns any fault, responsibility, or obligation to Company in any court or arbitration proceeding or settlement agreement regarding which it is seeking indemnification hereunder without the prior written consent of Company, which Company shall not unreasonably withhold, condition, or delay.
  10. TERM & TERMINATION.
    10.1 Termination for Cause. Each party may immediately terminate this Agreement at any time if the other party: (a) breaches this Agreement and fails to cure the breach within thirty (30) business days after receiving written notice of such breach from the other party; (b) makes, or attempts to make, an assignment for the benefit of its creditors; (c) commences proceedings for relief under any bankruptcy, insolvency or debtor’s relief law; (d) is the subject of a bankruptcy, insolvency or debtor’s relief proceedings, and fails to have such proceeding dismissed within sixty (60) days; or (e) liquidates or dissolves or attempts to liquidate or dissolve.

    10.2 Effect of Termination. Immediately upon expiration or termination of this Agreement, (a) the license rights granted by Company to MSP pursuant to this Agreement will cease, (b) MSP's right to access and use the SaaS Platform and any Company documentation will terminate, and (c) MSP will cease promoting, marketing, reselling and distributing the SaaS Platform, cease using the Company’s Licensed Trademarks and discontinue all representations that it is a MSP of the SaaS Platform, and each party will promptly return to the other party all of the other party’s Confidential Information within its possession or control, MSP will return to Company all marketing and promotional materials in its possession within thirty (30) days of the expiration or termination of this Agreement, and each party will confirm in writing that it has complied with such obligations. This return provision shall not apply to copies of Confidential Information which are stored in either party’s backup or recovery systems, however any such copies shall remain under the obligation of confidentiality for so long as they are retained. The expiration or termination of this Agreement shall not discharge or relieve either party from any obligation which accrued prior to termination including, without limitation, any breaching party from liability for damages resulting from such breach, and shall not destroy or diminish the binding force and effect of any of the provisions of this Agreement that expressly, or by reasonable implication, come into or continue effect on or after termination or expiration hereof, including Sections 5, 6, 7, 8, 9, 10, 11 and 12 which Sections shall survive any termination or expiration of this Agreement. Upon expiration or termination of this Agreement, MSP will pay all fees owed to Company as defined in Section 5 of this Agreement. Any termination rights contained in this Section are in addition to, and not in lieu of, any remedies available at law or in equity or otherwise.

    10.3 No Damages for Termination or Expiration. EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON EXPIRATION OR TERMINATION OF THIS AGREEMENT UNDER ANY APPLICABLE LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT. Neither party will be liable to the other on account of expiration or termination of this Agreement for reimbursement or damages for the loss of goodwill, prospective profits, or anticipated income, or on account of any expenditures, investments or commitments made by that party or for any other reason whatsoever based upon or growing out of such expiration or termination. MSP acknowledges that (a) MSP has no expectation and has received no assurances that any investment by MSP in the promotion and marketing of the SaaS Platform will be recovered or recouped or that MSP will obtain any anticipated amount of profits by virtue of this Agreement, and (b) MSP will not have or acquire by virtue of this Agreement or otherwise any vested, proprietary or other right in the promotion and marketing of the SaaS Platform or in the “goodwill” created by its efforts hereunder. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO THIS AGREEMENT AND THAT COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS SET FORTH IN THIS SECTION.
  11. INTELLECTUAL PROPERTY.
    11.1 Trademarks. Subject to MSP's compliance with this Agreement, Company grants MSP a non-exclusive, non-transferable, royalty-free, limited license to use Company’s Licensed Trademarks (as defined below) solely to promote and market the SaaS Platform during the term of this Agreement and in accordance with this Agreement. For clarity, MSP may not use any of Company’s Licensed Trademarks as its trade name (or part of its trade name) or in any way that would imply or suggest that Company and MSP are affiliates or are otherwise related entities. Any use of Company’s Licensed Trademarks by MSP must correctly attribute ownership of such Company’s Licensed Trademarks to Company and must be in accordance with applicable law and Company’s then-current trademark usage guidelines. MSP will not remove or obscure any of Company’s Licensed Trademarks on or in the SaaS Platform, and will not attach any additional names, trademarks, trade names, service marks, service names, logos, or brands on or in the SaaS Platform and will not authorize or permit a third party to do any of the foregoing. If any of Company’s Licensed Trademarks are to be used in conjunction with another trademark on or in relation to the SaaS Platform, then Company’s Licensed Trademarks shall be presented at least equally legibly and equally prominently, but nevertheless separated from the other so that each appears to be a trademark in its own right, distinct from the other mark. MSP acknowledges and agrees Company owns the Company’s Licensed Trademarks and that any and all goodwill and other proprietary rights that are created by or that result from MSP's use of the Company’s Licensed Trademarks shall inure solely to the benefit of Company. MSP will at no time contest, oppose or challenge, or aid in contesting, opposing, or challenging the validity or ownership of any of Company’s Licensed Trademarks or take any action in derogation of Company’s rights therein, including, without limitation, applying to register any name, trademark, trade name, service mark, service name, logo or brand that is similar to any of Company’s Licensed Trademarks. “Licensed Trademarks” shall mean those Company trademarks and trade names provided by Company to MSP.

    11.2 Notice of Unauthorized Use. MSP shall promptly notify Company of any known unauthorized use of any of the SaaS Platform. MSP shall reasonably cooperate with Company in the prosecution of any claim against unauthorized users, including providing personnel and documents as reasonably required, all at no cost to MSP. Company shall be responsible for all costs in connection with such actions including, without limitation, reimbursing MSP at its then current hourly rates, and shall reimburse MSP for all expenses incurred by MSP.

    11.3 Service Tampering, Reverse Engineering and Unauthorized Uses. Unless authorized by the CEO of Company in writing or as expressly authorized under applicable law, MSP shall not: (a) copy or authorize any third party to copy the SaaS Platform; (b) reverse engineer; or (c) alter the SaaS Platform in any unauthorized way, including without limitation alteration or destruction of any copyright, trademarks, trade names or service marks or other notices affixed to the SaaS Platform. Without limiting the generality of the foregoing, MSP agrees to comply with the restrictions set forth in Section 3 of the Terms and Conditions.

    11.4 Reservation of Rights. The SaaS Platform, the Licensed Trademarks and any corrections, derivatives, enhancements, modifications, updates, and upgrades to the SaaS Platform, including all intellectual property and other proprietary rights therein (the “Company IP”) are the intellectual property of and are owned by Company. As between Company and MSP, Company retains title to and ownership of all right, title and interest in the Company IP, and subject to the applicable limited licenses expressly granted by Company to MSP in this Agreement, MSP does not have any right, title, or interest in the Company IP. All rights not expressly granted in this Agreement are reserved by Company. MSP is not permitted to make any modifications to the Company’s SaaS Platform. Notwithstanding the foregoing, if MSP makes any modifications to the Company’s SaaS Platform, in violation of the foregoing sentence, all rights, title and interest in such modifications shall be assigned to Company.
  12. CONFIDENTIAL INFORMATION.
    A party (“Receiving Party”) may, during the course of this Agreement, acquire non-public information or knowledge of the other party (“Disclosing Party”) that such Disclosing Party designates in writing is confidential or that a reasonable person would understand to be confidential (“Confidential Information”). The Receiving Party will, during the term of this Agreement and for three (3) years thereafter, treat the Disclosing Party’s Confidential Information as confidential and will not disclose any such Confidential Information to any third party nor use such Confidential Information other than in connection with the performance or enforcement of this Agreement. “Confidential Information” shall not include information that the Receiving Party can document was independently developed by the Receiving Party, is or becomes publicly available without breach of this Agreement, is known prior to disclosure by the Receiving Party without any obligation of confidentiality or is acquired by the Receiving Party from a third party free of disclosure obligations. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by applicable law, rule or court order, provided that the Receiving Party gives the Disclosing Party prompt written notice thereof and cooperates, at the Disclosing Party’s expense, in any attempt to obtain a protective order or other confidential treatment of such disclosure, and if the Receiving Party is legally compelled to disclose Confidential Information, the Receiving Party shall furnish only that portion of Confidential Information that the Receiving Party is advised by legal counsel is legally required and shall exercise its reasonable efforts to obtain confidential treatment for such Confidential Information. A violation or breach of this Section will cause severe and irreparable injury to the non-breaching party with no adequate remedy at law. Accordingly, in the event of any actual or threatened violation or breach, the breaching party agrees that the non-breaching party shall be entitled to seek immediate injunctive relief to prevent or stop such violation or breach, as well as other equitable and legal remedies against the breaching party. The obligations set forth in this Section will survive the termination of this Agreement.
  13. NON-SOLICITATION.
    Each party agrees that it and its employees will not, either during the term of this Agreement or for a period of twelve (12) months after termination or expiration of this Agreement, solicit to hire the other party’s employees, contractors, or sub-contractors, as an employee or contractor. If either party hires any employee(s) of the other prior to expiration of the twelve (12) month period, the hiring party agrees to pay to the other party, as applicable, within thirty (30) days of the hiring date, an amount equal to the person’s annual compensation (including bonuses) at the time of his or her departure.
  14. MISCELLANEOUS.
    14.1 Quarterly Pipeline Review. On a quarterly basis, at a mutually agreeable time, MSP will discuss with Company current opportunities MSP is developing with potential End Users and likelihood to forecast future infrastructure and/or support needs.

    14.2 Independent Contractors. Company and MSP are independent contractors. Nothing in this Agreement shall be construed to have a party a joint venture, MSP, employee, or agent of the other. Neither party will have, and will not represent that it has, any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name.

    14.3 Severability. If any term, provision, covenant, or condition of this Agreement is held invalid or unenforceable in any jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the invalid portions eliminated. The parties agree to substitute for the invalid provision a valid provision, which most closely approximates the intent and economic effect of the invalid provision.

    14.4 Assignment. Except as set forth below, a party may not assign or transfer this Agreement or its rights or duties hereunder, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent. Except as set forth below, any assignment or transfer without written consent will be null and void and of no force or effect. Notwithstanding the foregoing, Company may assign or transfer this Agreement in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law, and MSP hereby gives its consent to such assignment and transfer with the requirement of prompt written notice from Company to MSP of such assignment or transfer. Company may subcontract any services to be performed pursuant to this Agreement without MSP's consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.

    14.5 Waivers. Any delay, omission, or failure to exercise any right or remedy under this Agreement shall not constitute a continuing waiver of such right or remedy.

    14.6 Attorneys’ Fees. If a party brings legal action to enforce this Agreement, the prevailing party in such action shall be entitled to receive all reasonable costs and expenses, including but not limited to reasonable attorneys’, accountants’ and other experts’ fees and expenses, incurred by the prevailing party in connection with such action.

    14.7 Notices. All notices shall be in writing and delivered to the other party to the addresses listed on the signature page of this Agreement, in one of the following manners: (a) by first class mail, postage prepaid; (a) by registered or certified mail, return receipt requested; (b) by nationally-recognized overnight courier, mail, or delivery service; (c) by personal delivery; or (d) by electronic mail. Mailed notices shall be considered given on the date received. Notice delivered personally shall be considered given at the time of delivery.

    14.8 Execution in Counterparts.  This Agreement may be executed electronically and in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.  Delivery of an executed counterpart of this Agreement by facsimile or other electronic transmission, or any other reliable means shall be effective for all purposes as delivery of a manually executed original counterpart.  Each party may maintain a copy of this Agreement in electronic form.  The parties further agree that a copy produced from the delivered counterpart or electronic form by any reliable means (for example, photocopy, facsimile, or printed image) shall in all respects be considered an original.

    14.9 Governing Law. This Agreement is governed by and will be construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles. The parties acknowledge and agree that this Agreement relates solely to the performance of the SaaS Platform (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The SaaS Platform provided hereunder is a “Commercial Item” as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state or federal courts located in Delaware and the parties expressly consent to personal jurisdiction and venue therein. Notwithstanding anything in this Agreement to the contrary, each party shall have the right, at its election, to seek injunctive or other equitable relief in such state or federal courts in order to protect its proprietary or confidential information and to enforce or obtain compliance with this Agreement, which remedy will be cumulative and not exclusive.

    14.10 Good Standing: Authority to Sign and Bind.  Each Party represents and warrants that it is duly organized, validly existing, and in good standing under the laws of its state and/or country of incorporation and all applicable jurisdictions of registration. Furthermore, the individuals signing this Agreement on behalf of their respective Parties hereby expressly represent and certify that they have been given, have received, and have accepted the legal authorization required to sign for and bind their Party to the obligations, terms, and conditions of this Agreement and that this Agreement is a valid and legal agreement binding on the Party and enforceable according to its terms.

    14.11 Entire Agreement. This Agreement is the complete, entire, final, and exclusive agreement between the parties related to the subject matter hereof and supersedes all prior agreements between the parties related to the subject matter hereof. This Agreement may not be modified except in a writing executed by the parties. Except as expressly provided in this Agreement, nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights or obligations.

    14.12 Force Majeure. No party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to war, terrorism, riot, or acts of God.

    14.13 Publicity. Except as expressly provided in this Agreement, neither party may use the other party’s name or trademarks in or on any press releases, marketing materials, websites, or other public announcements without the other party’s prior written consent.

    14.14 Ethical Considerations. Neither party shall engage in any activities that could be deemed illegal, criminal, unethical, corrupt, or fraudulent. In no event shall monies, Confidential Information, or any other consideration received from MSP under this Agreement be used to solicit, procure, fund, sponsor, or otherwise support illegal, criminal, unethical, corrupt, or fraudulent activities.