Terms and Conditions

THIS MASTER SERVICES AGREEMENT (“Agreement”) is made between InnoTek Computer Consulting, Inc., a Pennsylvania Corporation having its principal offices at 24 West Main St. Bloomsburg, PA 17815 (“INNOTEK”) and the Client indicated on the corresponding Statement of Work (“Client”).

SCOPE OF AGREEMENT

This Agreement is as a master agreement and applies to Client’s and its Affiliates’ purchases from INNOTEK of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services (collectively, “Product”). No Product or Services will be provided under this Agreement alone, but may require the execution of a written or electronic order form, (each, an “SOW”), upon execution, is deemed incorporated in this Agreement for all purposes. In the event of any conflict between the terms of the Statement of Work and those of this Agreement, the terms of the SOW will prevail.

TERM AND TERMINATION

This Agreement will begin on the Effective Date of the SOW and will continue until each SOW expires or is terminated. INNOTEK may: (a) terminate a specific SOW if Client fails to pay any applicable fees due for that SOW within 30 days after receipt of written notice from INNOTEK of non-payment; and/or (b) terminate this Agreement or a SOW if Client commits any other material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice from INNOTEK. Upon any termination of the right to use a Product, Client will immediately uninstall (if the Product is software) and cease to use the terminated Product and, upon INNOTEK’s written request, immediately return such Product to INNOTEK. If a SOW for Services is terminated, Client will promptly pay INNOTEK for Services rendered, and expenses incurred through the termination date. INNOTEK may terminate any license granted for a Deliverable (as defined below) if (i) Client does not pay INNOTEK for that Deliverable in accordance with this Agreement, or (ii) if Client materially breaches any part of Section 4 of this Agreement.

PAYMENT AND DELIVERY

Client will pay INNOTEK all fees due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable under this Agreement are exclusive of sales, use, and any other applicable transaction taxes, which Client will pay. If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) per month from the date due until paid in full. Client shall pay all expenses, including actual attorneys’ fees, incurred by INNOTEK or its representatives in enforcing its rights under this Agreement, provided that INNOTEK is successful on the merits. Client’s obligation to pay undisputed amounts due for Services and INNOTEK’s right to all such amounts are absolute and unconditional. All Fees will be detailed in a SOW. Unless otherwise stated in a Statement of Work, Client agrees to pay or reimburse INNOTEK for all actual, necessary, and reasonable expenses incurred by INNOTEK in performance of such Statement of Work. INNOTEK will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Statement of Work.

PROPRIETARY RIGHTS AND CONFIDENTIALITY

Mutual Confidentiality. This Section sets out the terms for identification of information which is considered confidential and proprietary by a party (the “Discloser”), and restrictions against use and disclosure of such Confidential Information after disclosure to the other party (the “Recipient”).

a. Definition. The term “Confidential Information” means all proprietary or confidential information that is disclosed to the Recipient by the Discloser, and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its Client-related and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials; (ii) the Product; and (iii) the terms of this Agreement. Confidential Information does not include information that is or becomes a matter of public knowledge through no fault of Recipient; is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or is or was independently developed by or for Recipient.

b. Disclosure Restrictions. Recipient may not disclose Confidential Information of Discloser to any third party without the prior written consent of Discloser.

ALLOCATION OF RISK

Disclaimer of Damages. EXCEPT FOR VIOLATIONS OF SECTION 4, NEITHER PARTY ARE LIABLE TO THE OTHER PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST COMPUTER USAGE, AND DAMAGE OR LOSS OF USE OF DATA), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF THE NEGLIGENCE OF EITHER PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.

Limitation of Liability

EXCEPT FOR VIOLATIONS OF SECTION 4, INNOTEK’S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE GREATER OF THE AMOUNT PAID OR PAYABLE BY CLIENT FOR THE APPLICABLE PRODUCT.

Injunctive Relief

Both parties acknowledge that their violation of Section 4 may cause the other party immediate and irreparable harm. In the event of such breach, the breaching party agrees that the other party may seek, in addition to any and all other remedies available at law, an injunction, specific performance or other appropriate relief.

SERVICES-SPECIFIC TERMS

Limited Warranty. INNOTEK warrants that the Services performed will be of a quality conforming to generally accepted practices that are standard within the IT services industry for a period of ninety (90) days from completion of the Services under the applicable Statement of Work. Client’s exclusive remedy and INNOTEK’s entire liability under this warranty will be for INNOTEK to re-perform any non-conforming portion of the Services within a reasonable period of time, or if INNOTEK cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Services. This warranty will not apply to the extent Client, its contractors or agents have modified any Deliverable, unless otherwise authorized by INNOTEK in writing. THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Insurance. INNOTEK will provide and maintain during its rendition of the Services, but only for losses arising out of INNOTEK’s work for Client: (a) Worker’s Compensation and related insurance as prescribed by the law of the state applicable to the employees performing such Services; (b) employer’s liability insurance with limits of at least five hundred thousand dollars ($500,000); (c) comprehensive/commercial general liability insurance including products liability with one million dollars ($1,000,000) per occurrence combined single limit and two million dollars ($2,000,000) general aggregate, including coverage for the use of subcontractors who carry insurance at limits equal to or greater than those stated in this section, products liability and completed operations; (d) comprehensive motor vehicle liability insurance, including coverage for owned, hired, leased, rented and non-owned vehicles of at least one million dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and (e) professional liability insurance covering the effects of errors and omissions in the performance of professional duties in the amount of one million dollars ($1,000,000) for each occurrence and in the aggregate associated with Services.

Independent Contractor. Nothing in this Agreement will be construed to make either party an employer, employee, agent or partner of the other, and this Agreement will not be construed to create rights, express or implied, on behalf of or for the use of any party other than INNOTEK and Client. All of the Services performed by INNOTEK will be performed as an independent contractor. INNOTEK will perform such Services under the general direction of Client, but INNOTEK will have sole discretion to determine the manner, method and means of performing such Services subject to the provisions of this Agreement and applicable Statement of Work. Neither party will have any authority to make any contract in the name of or otherwise to bind the other party.

Mutual Non-Solicitation. During the term of this Agreement, and for a period of six (6) months thereafter, neither party will solicit for employment any employees of the other party or its affiliates who, within six (6) months prior to such solicitation: (a) directly performed under this Agreement, (b) had substantial contact with the hiring party in relation to this Agreement, or (c) the hiring party became aware of due to, or derived from information learned through the performance of, this Agreement. The parties acknowledge and agree that a breach of this “Non-Solicitation” clause will not give rise to a right of termination of this Agreement; the party not in breach will only have the right to seek and recover direct damages from the breaching party.

Mutual Indemnity. Each party will indemnify, defend and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Client’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.

MISCELLANEOUS/OTHER PROVISIONS

Severability. Should any provision of this Agreement be invalid, or unenforceable, the remainder of the provisions will remain in effect. In the event of a dispute, the prevailing party in any litigation or arbitration will be entitled to recover its attorneys’ fees and cost incurred from the other party.

Force Majeure. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement. This provision does not apply to the payment of monies or any breach of Section 4.

Entire Agreement. This Agreement, together with each Statement of Work, constitutes the entire agreement between Client and INNOTEK, and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, concerning this subject matter. This Agreement, and each Statement of Work, may be modified only in a mutually signed writing between Client and INNOTEK. In the event of a conflict between this Agreement, any Statement of Work, the terms of the SOW will control, followed by the terms of the applicable Statement of Work and then this Agreement.

Dispute Resolution and Governing Law. In the event of a dispute at law or equity between Consultant and Client with respect to this Agreement, both INNOTEK and Client hereby consent and agree to submit to jurisdiction in Columbia County, Pennsylvania. NOTHING CONTAINED IN THIS SECTION WILL LIMIT EITHER PARTY’S ABILITY TO SEEK INJUNCTIVE RELIEF IN ANY COURT.

Survival. Sections 2, 4, 5, 6 and 7 will survive the termination or expiration of this Agreement. The prevailing party in any litigation or arbitration proceeding is entitled to recover, from the other party, its reasonable attorneys’ fees and necessary costs incurred in such proceeding.

This Agreement is effective only upon execution of a SOW by INNOTEK and Client. Each party hereto warrants and represents that this Agreement constitutes the legal, valid and binding obligation of such party as of the Effective Date.