Master Service Agreement

The following terms and conditions govern our business relationship with you. Please read these terms carefully and print a copy for your records.

Scope; Services

This master agreement (this “Agreement”) governs all services, products, and licenses that Techworld Technologies Inc., a New York corporation (“us”, “our”, “we” or “TROINET”), provides, sells, or re-sells to you (“Customer”, “you”, or “your”).

In this Agreement, “Services” means the performance of all obligations of TROINET to you, including all obligations related to  our consulting services, staffing services, development, programming, management, operations, sales (including sales of Products), value-added, and other services as described in one or more statements of work (each, a “SOW”) that we provide to you. “Services” are intended to include all of the foregoing regardless of the length of our relationship and regardless of the amount of fees, or frequency of your payment, for the Services (e.g., free-trial, subscription, installment, monthly, etc.). “Products” means any hardware, equipment, or software that we sell, re-sell, lease, or license to you pursuant to a SOW.

By accepting a SOW, you agree to the terms of this Agreement. If you do not agree with the terms of the SOW and/or this Agreement, you should not accept the SOW. Please note: By entering into this Agreement, you agree to resolve all disputes with TROINET through arbitration on an individual basis rather than jury trials or class actions, as provided below.

Conflict

If there is a material difference between the language in a SOW and the language in this Agreement, then the language of the SOW will control except in situations involving any modification of our limitations of liability. Under those limited circumstances, the terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.

Delivery

TROINET shall determine the most appropriate means of providing the Service, including the method, technology, and route of delivery of the Service to you, and TROINET may vary the method, technology, and route of delivery at any time without notice.

 

Fees; Payment

Fees

You agree to pay the fees, costs, and expenses described in each SOW. You are responsible for all taxes, including but not limited to import or export duties, sales, use, VAT, and excise taxes associated with the Services. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption.

Schedule

All fees will be due and payable in advance of the provision of the Services. Unless otherwise expressly stated in a SOW, all Products must be fully paid for prior to delivery. If applicable, recurring payments made by ACH will be deducted from your designated bank account on the first business day of the month in which the Services are to be provided, and, if applicable, your designated credit card will be charged on the first business of the month in which the Services are to be provided.

Nonpayment

Fees that remain unpaid for more than fifteen (15) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely received by us, and monthly or recurring charges shall continue to accrue during any period of suspension. Notice of disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on which you pay an invoice, whichever is later; otherwise, you waive your right to dispute the fee thereafter.

 

Your Obligations

In addition to any of your obligation under a SOW or as described elsewhere in this Agreement, you agree to the following:

Cooperation

The Services require your cooperation and, depending on the scope of the SOW, may require your ongoing involvement or input. You agree to cooperate with our personnel at all times and to timely provide your input and/or information when reasonably requested by TROINET. TROINET will be held harmless from any delays occasioned by your failure to cooperate with our personnel or your failure to timely provide information when reasonably requested.

Access

Portions of the Services may require us to access your physical or virtual premises, including any servers, workstations, mobile devices, and related hardware that we manage, administer, or for which you have requested technical support (collectively, “Managed Environment”). You hereby grant to us and our designated third party vendors the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us to provide the Services. It is your responsibility to secure, at your own cost, any necessary rights of entry, licenses (including third party software licenses), permits or other permissions necessary for TROINET to provide the Services to the Managed Environment and, as applicable, at your designated physical premises. Proper and safe environmental conditions must be provided and assured by you at all times. TROINET shall not be required to engage in any activity or provide any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.

Advice

From time to time, we may provide you with specific advice and directions related to the Services. You are strongly advised to promptly follow our advice which, depending on the situation, may require you to make additional purchases or investments in the Managed Environment or the location in which the Managed Environment is maintained, at your sole cost. We will not be responsible for any problems or issues caused by your failure to promptly follow our advice. If, in our reasonable discretion, your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable or impracticable to provide, then we may terminate the applicable SOW for cause by providing notice of termination to you. Unless specifically and expressly stated in a SOW, any services required to remediate issues caused by your failure to follow our advice or directions are out-of-scope and not covered under any SOW.

 

Limited Warranties; Limitations of Liability

Produced Purchased Through TROINET

All Products purchased through TROINET are generally non-refundable once the Product is obtained from TROINET’s third party provider, reseller, or applicable software vendor (the “Third Party Vendor”). If you require a refund, then the Third Party Vendor’s return policies will apply. We do not guarantee that Products will be returnable, exchangeable, or that re-stocking fees can be avoided. You will be responsible for the payment of all re- stocking or return-related fees charged by the Third Party Vendor. We will use reasonable efforts to assign, transfer, and facilitate all warranties (if any) and service level commitments (if any) for the Products to you, but will have no liability whatsoever for the quality, functionality or operability of any Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Products. All Products are provided “as is” and without any warranty whatsoever as between TROINET and you (including but not limited to implied warranties).

Liability Limitations

This paragraph limits the liabilities arising under this Agreement or any SOW and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that TROINET would not enter into any SOW or this Agreement unless it could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to TROINET), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or

any SOW, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below) shall not be limited by the foregoing limitation. Except for your payment obligations and your indemnification obligations described in this Agreement, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to TROINET for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.

No Guaranties

Without limiting the generality of the foregoing, we do not warrant that (i) any particular results will occur as a result of your use of the Services or any Product, or that at any Services, Product, or data will be free from errors, defects, or bugs, or that (ii) the Services or any Product will not interfere with or disrupt any of your networks, security or other systems, or software. We expressly disclaim, and you expressly waive under this Agreement, all implied warranties including warranties of merchantability, fitness for a particular purpose, non-infringement, system integration, accuracy of informational content, and accuracy of the methodology used to develop or provide the Services.

Indemnification

Each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all third party costs, third party expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that an Indemnified Party incurs and which arise from, or are related to, the Indemnifying Party’s breach of this Agreement or any SOW. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and

(ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

 

Term; Termination

Term

This Agreement begins on the earliest date on which you accept a SOW and continues until terminated as described in this Agreement. Each SOW will have its own term and will be terminated only as provided herein, unless otherwise expressly stated in the applicable SOW. The termination of one SOW shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other SOW between the parties.

Termination without Cause

Unless otherwise agreed by the parties in writing or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, a SOW is in progress or if amounts are due and owing by you to TROINET. In addition, no party will terminate a SOW without cause prior to the SOW’s natural expiration date. Notwithstanding the foregoing, if TROINET decides to cease providing a service to all of its customers generally, then TROINET may terminate an applicable SOW (or the applicable portion of the SOW) without cause by providing no less than one hundred and twenty (120) days prior written notice to you. If you terminate a SOW without cause and without TROINET’s consent, then you will be responsible for paying the termination fee described in the “Termination for Cause” section, below. If no SOW is in progress, then either party may terminate this Agreement without cause by providing the other party with five (5) days prior written notice.

Termination for Cause

In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Customer) following receipt of written notice of breach from the non-Defaulting Party. If TROINET terminates this Agreement or any SOW For Cause, or if you terminate any SOW without cause prior to such SOW’s expiration date, then TROINET shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to TROINET had this Agreement or SOW (as applicable) remained in effect. If you terminate this Agreement or a SOW For Cause, then you will be responsible for paying only for those Services that were properly delivered and accepted by you up to the effective date of termination; and, if applicable, you will be refunded any pre-paid fees that you paid to us for Services that were not delivered satisfactorily.

Customer Activity As A Basis for Termination

In the event that you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, then TROINET will have the right, upon ten (10) days prior written notice to you, to terminate this Agreement or the applicable SOW For Cause or, at our discretion.

Consent

You and we may mutually consent, in writing, to terminate a SOW or this Agreement at any time.

Equipment / Software Removal

Upon termination of this Agreement or applicable SOW for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which TROINET-owned equipment or software (collectively, “TROINET Equipment”) is located to enable us to remove all TROINET Equipment from the premises. If you fail or refuse to grant TROINET access as described herein, or if any of the TROINET Equipment is missing, broken or damaged (normal wear and tear excepted) or any of TROINET-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items. Certain services may require the installation of software agents in the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.

Transition; Deletion of Data

. In the event that you request TROINET’s assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to TROINET providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as  we may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. Unless otherwise expressly stated in a SOW, we will have no obligation to store or maintain any of your data in our possession or control following the termination of any SOW under which such data was provided to us. We will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, our deletion of your data beyond the time frames described in this section.

 

Response Time; Exceptions

Response

We warrant and represent that we will provide the Services in the manner and within the time period(s) designated in an applicable SOW (“Response Time”) except for (i) those periods of time covered under the Onboarding Exception (defined below), or (ii) periods of delay caused by Customer-Side Downtime (defined below), Vendor-Side Downtime (defined below) or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Managed Environment or our equipment or network, or (iv) delays caused by a force majeure event.

Scheduled Downtime

For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by us but which will not occur between the hours of 8:00 AM and 5:00 PM Eastern Time, Monday through Friday, without your authorization or unless exigent circumstances exist, during which time we will perform scheduled maintenance or adjustments to the Managed Environment. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.

Customer-Side Downtime

We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions (“Customer-Side Downtime”).

Vendor-Side Downtime

We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by third party service providers, third-party licensors, or “upstream” service or product vendors.

Onboarding Exception

You acknowledge and agree that for the first forty-five (45) days following the commencement date of a SOW, the Response Time commitments described in this Agreement will not apply to us, it being understood that there may be unanticipated downtime or delays due to our initial startup activities and/or familiarization with you (the “Onboarding Exception”).

Remedies; Limitations

Except for the Onboarding Exception, if we fail to meet our service level commitment in a given calendar month and if, under such circumstances, our failure is not due to your activities, omissions, or inactivity, then upon receiving your written request for credit, we will issue you a pro-rated credit in an amount equal to the period of time of the outage and/or service failure. All requests for credit must be made by you no later than forty-five (45) days after you either (i) report the outage or service failure to us, or (ii) if applicable, receive a monthly report showing the outage and/or failure. The remedies contained in this paragraph and in the “Term; Termination” section above are in lieu of (and are to the exclusion of) any and all other remedies that might otherwise be available to you for our failure to meet any service level commitment during the term of this Agreement.

 

Confidentiality

Defined

For the purposes of this Agreement, Confidential Information means (i) any and all non-public information of yours that we access pursuant to our provision of the Services or that is provided to us by you, including but not limited to your customer data, customer lists, internal documents, and related information, as well as (ii) TROINET’s proprietary policies and procedures, and TROINET’s pricing rates and schedules. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the receiving party, (ii) was developed independently by the receiving party, or (iii) is or was lawfully and independently provided to the receiving party prior to disclosure by the disclosing party, from a third party who is not and was not subject to an obligation of confidentiality to the disclosing party or otherwise prohibited from transmitting such information.

Use

Each party will keep the other party’s Confidential Information confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the discloser in writing, or (ii) as needed to fulfill the receiving party’s obligations under this Agreement. In any event, a party receiving Confidential Information shall tailor its permitted disclosure to the minimum amount necessary to fulfill that party’s obligations under this Agreement.

Due Care

Each party will exercise the same degree of care with respect to the Confidential Information its receives as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.

Compelled Disclosure

If a party is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, it will immediately notify the other party in writing of such requirement so that the other party may seek a protective order or other appropriate remedy and/or waive the receiving party’s compliance with the provisions of this Section. The receiving party will use its best efforts, at the disclosing party’s expense, to obtain or assist the disclosing party in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, a receiving party may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that it has been advised, by written opinion from its counsel, that it is legally compelled to disclose.

Business Associate

If we enter into a business associate agreement (“BAA”) with you for the protection of personal health information, then the terms of the BAA will be read in conjunction with the terms of the confidentiality provisions of this Agreement. The terms that protect confidentiality most stringently shall govern, and conflicting privacy- or confidentiality-related terms shall be governed by the BAA.

 

Additional Terms

EULAs

Portions of the Services may require you to accept the terms of one or more third party end user license agreements (“EULAs”). If the acceptance of a EULA is required in order to provide the Services to you, then you hereby grant us permission to accept the EULA on your behalf. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree 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, we are required to comply with a third-party EULA and the third party EULA is modified or amended, we reserve the right to modify or amend any applicable SOW with you to ensure our continued compliance with the terms of the third party EULA.

Third Party Services

Portions of the Services may be acquired from, or rely upon the services of, third party manufacturers or providers (“Third Party Services”). Not all Third Party Services may be expressly identified as such in a SOW, and at all times we reserve the right to utilize the services of any third party provider or to change third party providers in our sole discretion as long as the change does not materially diminish the Services to be provided to you under a SOW. We will not be responsible, and will be held harmless by you, for any issues, errors, damages, costs, or expenses arising form or related to (i) the failure of any third-party provider or manufacturer to provide Third Party Services to TROINET or to you, or (ii) our reliance on or use of advice, directions, instructions, code, or other information provided to us by such third party manufacturers or providers.

Data Loss

Under no circumstances will we be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmission errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our failure to backup or secure data from portions of the Environment that were not expressly designated in the applicable SOW as requiring backup or recovery services. Unless expressly stated in a SOW, we do 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.

Devices

You hereby represent and warrant that we are 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 Managed Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in a SOW, Devices will not receive or benefit from the Services while the devices are detached from, or unconnected to, the Environment.

 

Ownership

Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party. If we provide licenses to you for third party software under a SOW, then you understand and agree that such software is licensed, and not sold, to you. You are allowed to use such third party software subject to the terms and conditions (i) of this Agreement, (ii) of the applicable SOW, and (iii) any applicable EULA; no other uses of such third party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.

 

Arbitration

Except for undisputed collections actions to recover fees due to us (“Collections”), all disputes, claims, or controversies arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) pursuant to the AAA’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will

be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

 

Miscellaneous

Compliance

Unless otherwise expressly stated in a SOW, the Services are not intended, and will not be used, to bring Customer into full regulatory compliance with any rule, regulation, or requirement that may be applicable to Customer’s business or operations. Depending on the Services provided, the Services may aid Customer’s efforts to fulfill regulatory compliance; however, the Services are not (and should not be used as) a compliance solution.

Disclosure

You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services.

Security

You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective at times by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are surreptitiously downloaded or installed into the Environment. This is also true of TROINET’s network. Although we employ and maintain effective security processes, procedures, and protocols, we do not warrant or guarantee that all malware or malicious activity in your Environment or on our networks will be capable of being detected, avoided, quarantined or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable.

Unless otherwise expressly stated in a SOW, the recovery of Impacted Data is not included in the scope of a SOW. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents. You are required to obtain and maintain at all times, and at your cost, cyber insurance covering at a minimum, the theft or misuse of private or confidential information, the breach of networked and managed security systems, and any failure to prevent the transmission of computer malware.

Non-Solicitation

For the purposes of this Section, a “Restricted Employee” shall mean:

     

      • Any employee of one party (an “Employing Party”) who worked with the other party (a “Restricted Party”) during the term of this Agreement; and/or,

      • Any employee who departed the employ of the Employing Party within twelve (12) months of a Job Solicitation (defined below) from the Restricted Party.

    Each Restricted Party hereby acknowledges and agrees that during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly solicit, induce, or influence any Restricted Employee to discontinue or reduce the scope of the Restricted Employee’s business relationship with the Employing Party, or recruit, solicit or otherwise influence a Restricted Employee to discontinue his/her employment or agency relationship with the Employing Party (all of the foregoing collectively, a “Job Solicitation”). In the event of an intentional violation of the terms of the restrictive covenants in this section (or, if unintentional, if the breach remains uncured for seven (7) days after the Restricted Party is notified of the breach), the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the Employing Party as liquidated damages and not as a penalty an amount equal to the greater of two times (2x) the total amount of salary (including bonuses, if any) that the Restricted Employee was paid by the Employing Party in the calendar year immediately preceding the date on which the Restricted Party violated the terms of this section, or $50,000. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a Restricted Employee by a Restricted Party will be deemed to be a material breach of this Agreement, in which event the Employing Party shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.

    Collections

    If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.

    Publicity

    You hereby allow us, and hereby provide us with the necessary rights and licenses, to copy, print, and use your corporate name and logo on our website and/or in any of our marketing materials to identify you as a customer of TROINET.

    Merger

    This Agreement and any SOW governed under this Agreement constitute the entire agreement between TROINET and you with regard to the subject matter of the SOW, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning such subject matter.

    Fair Usage

    Our Fair Usage Policy (“FUP”) applies to all Services in a SOW that are described or designated as “unlimited.” An “unlimited” service designation means that you may use the applicable Service as reasonably necessary for you to enjoy the use and benefit of the Service without incurring additional time-based or usage-based

    costs. However, unless expressly stated otherwise in a SOW, all unlimited services are provided during our normal business hours only and are subject to our technicians’ availabilities, which cannot always be guaranteed. In addition, we reserve the right to assign our technicians as we deem necessary to handle issues that are more urgent, critical, or pressing than the request(s) or issue(s) reported by you. Consistent with this FUP, you agree to refrain from (i) creating urgent support tickets for non-urgent or non-critical issues, (ii) requesting excessive support services that are inconsistent with normal usage patterns in the industry (e.g., requesting support in lieu of training), (iii) requesting support or services that are intended to interfere, or may likely interfere, with our ability to provide our services to our other customers.

    Severability

    If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall continue in full force and effect.

    Assignment

    Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business, or any other transferred in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that such assignee expressly assumes our obligations hereunder.

    Amendment

    TROINET reserves the exclusive and unilateral right to modify or amend this Agreement or any SOW by providing you with notice of the changes in writing. If the change is required by operation of law (either in New York or

    in the venue in which our support technicians are located), then the change will take place immediately upon your receipt of our notice. For all other changes: If the changes do not materially diminish the services provided to you, then the changes will take effect fourteen (14) days after notice of the changes are delivered to you; however, if such a change to this Agreement materially diminishes any service provided to you hereunder, then then not withstanding any provision to the contrary in this Agreement, you will be provided with a fourteen (14) day period to terminate this Agreement without cause and you will be responsible solely for paying for all fees that accrue through the termination date. If we do not timely receive your notice of termination, then this Agreement will continue unabated and as modified by the changes that were provided to you.

    Time Limitations

    The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by you) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.

    Severability

    If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.

    Other Terms

    We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless such terms or conditions are incorporated into a duly executed SOW, or unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.

    No Waiver

    The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.

    Force Majeure

     Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, pandemics, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then- current anti-virus or anti-malware software, and acts of God.

    Survival

    The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.

    Insurance

    TROINET and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general

    liability. We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence. All of the insurance policies described herein will not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the other party by certified mail.

    Governing Law; Venue

    This Agreement and any SOW will be governed by, and construed according to, the laws of the state of New York. You hereby irrevocably consent to the exclusive jurisdiction and venue of Richmond County, New York, for any and all claims and causes of action arising from or related to this Agreement; provided, however, that we may bring an action for temporary injunctive relief in any jurisdiction to prevent the actual or anticipated breach of this Agreement or any SOW by you.

    No Third Party Beneficiaries

    The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.

    Business Day

    If a time period set forth in this Agreement expires on a day other than a business day in Rihmond County, New York, such period will be extended to and through the next succeeding business day in Richmond County, New York.

    Notices; Writing Requirement

    Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient. Notices that are sent by U.S. mail or courier to TROINET shall be sent to Troinet, 1412 Richmond Road, Staten Island, New York 10304; and, we may send notices to the last known physical address that we have on file for you. Notwithstanding the foregoing, any notice from you to TROINET regarding any alleged breach of this Agreement by TROINET, or (b) any request for indemnification, or (c) any notice of termination of this Agreement or any SOW, must be delivered to TROINET either by U.S. mail or email, unless such requirement is expressly and specifically waived by TROINET. All electronic documents and communications between the parties, including  email, will satisfy any “writing” requirement under this Agreement.

    Independent Contractor

    TROINET is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between you and either TROINET or any employee or agent of TROINET. Each party will be solely responsible for payment of all compensation owed to its employees, as well as federal and state income tax withholding, Social Security taxes, and unemployment insurance applicable to such personnel as employees of the applicable party. Each party shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits (if any) to which such party’s employees may be entitled.

    Subcontractors

    Generally, we do not utilize subcontractors for to perform onsite services; however, should we elect to subcontract a portion of those services, we will guarantee the work as if we performed the subcontracted work ourselves.

    Data & Service Access

    Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.

    Counterparts

    The parties intend to sign, accept and/or deliver any this Agreement, any SOW, and any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver this Agreement, any SOW, and any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

    Last Updated: January 24, 2022