MASTER SERVICES AGREEMENT

Standard Legal Terms and Conditions

The “Client” hereby agrees to the following terms and conditions for all Common Sense Solutions, Inc. (“CSS”) services (“Services”) or products ordered by Client and/or provided by CSS.

1. Service Orders; Engagement.

1.1.        Upon the mutual execution of each Service Order, Client agrees to engage CSS to provide the Services described thereon, and CSS agrees to provide such Services.  Each Service Order applies only to the Services and Deliverables (as defined below) thereon.  Notwithstanding any other terms on any proposal or any form submitted by Client, solely the terms of the MSA and each applicable Service Order shall apply to the Services and the Deliverables.

1.2.        “Service Order” means a writing which (a) is executed by each party, (b) describes services, and/or software or hardware products to be provided by CSS to Client, and/or incorporates a Purchase Order or Statement of Work (“SOW”) describing the same, and (c) states that it is governed by this MSA.  “Services” means the services described on a Service Order or SOW to be provided by CSS.  “Agreement” means all Service Orders and this MSA. “Deliverable” means each item of hardware, software, or other material to be delivered by CSS to Client under a Service Order.  Except when stated as “fixed,” fees or time periods on a Service Order are estimates only.

1.3.        CSS shall perform the Services in a professional and workmanlike manner, and in accordance with applicable industry standards. CSS’ obligation to provide Services and/or deliver any Deliverables shall be subject to Client’s timely provision of information, assistance, approvals, facilities, equipment, materials, or other support as described in a Service Order, or as requested by CSS.  Delays caused by Client or any third parties (other than CSS subcontractors) may result in additional fees or expenses.  All Service Orders are non-cancelable by Client and non-refundable, each except as expressly stated therein.

1.4.        Items or services not expressly included in a Service Order shall be deemed excluded therefrom.  Changes to the scope of a Service Order will require a change order signed executed by each party (“Change Order”) describing all changes.  Except as provided on a Service Order, CSS has not provided an estimate for any hardware or equipment, connectivity, data transport, operating system software, database software, or other equipment, services, third party software, or other intellectual property rights required for use of a Deliverable.  Client shall be solely responsible for acquiring any infrastructure required to support Client’s use of the Deliverables or the Services.  Use in production of any Deliverable by Client shall be deemed to be acceptance thereof unless otherwise stated in a Service Order.  Once approved by Client, changes to the approval status of any Deliverable or other previously approved item may require a Change Order, as determined by CSS.

1. Fees and Payment Terms

2.1.        Client shall pay to CSS all fees, rates, charges, or other amounts for Services and Deliverables (“Fees”) and/or expenses as described on a Service Order.  Unless otherwise specified on a Service Order, the following default terms apply:  Client shall pay for Services on a time (hourly) and materials basis at CSS’ then effective rates; Services provided at the request of Client outside of business hours (8 am to 6 pm business days) may be billed at a premium to be quoted by CSS; CSS may charge for round-trip travel time; travel expenses to be billed at cost; CSS payment terms are outlined  on the Service Order and are net 15.  CSS may require a deposit, and need not commence or continue with any Services until it receives such deposit.

2.2.        Amounts past due beyond 45 days accrue interest at the lower of 15% per annum or the highest rate allowed by law.  Time is of the essence for payments, and, without limitation to any other remedy available, (i) CSS may suspend Services if payment is more than 30 days late, and (ii) CSS may terminate any or all Service Orders if payment is more than 30 days late.  Client is responsible for all costs and expenses of collecting any amounts due, including attorneys’ or collectors’ fees and expenses.  Billing disputes must be provided in writing prior to the invoice due date.  Client shall pay all taxes and similar charges applicable to Services or Deliverables except for taxes based upon the net income of CSS (or any payroll or similar taxes assessed upon CSS).

1. Term and Termination

3.1.        The term of this MSA (the “Term”) commences on the Effective Date and shall continue for three years, after which it shall renew for successive one-year periods each unless a party provides the other with at least 15 days’ prior written notice of non-renewal.  Notwithstanding any termination, the MSA shall remain in effect so long as any Services are being provided or executory obligations remain under any Service Order, but solely with respect to such Service Order.  Each Service Order shall have the term set forth on such Service Order and shall continue until all Services thereunder have been completed and all payments received by CSS therefor, subject to any express termination provisions thereon (“Early Termination Requirements”).  A party may terminate the MSA or a Service Order or suspend performance under it (other than payment obligations for Services rendered), if the other party breaches any material term of the MSA or such Service Order and fails to cure such breach within 30 days after written notice from such party.

3.2.        If CSS terminates any Service Order(s) due to default by Client, or if Services remain incomplete due to failure by Client to provide necessary support, information or participation, Client shall be deemed to have terminated without meeting applicable Early Termination Requirements, and Client shall pay CSS, as liquidated damages and not as a penalty, (i) if any, the “Early Termination Damages” on the applicable Service Order, or (ii) if no Early Termination Damages are stated, Fees otherwise payable during the time period of any “Minimum Termination Notice” on the Service Order, or (iii) if no Minimum Termination Notice is stated, Fees otherwise payable during a 30 day period following such termination.  If Client terminates a Service Order due to default by CSS, CSS shall refund a pro-rated portion of prepaid Fees (and return unused prepaid expenses) based on Services actually rendered.

3.3.        Upon termination of a Service Order, Client will pay CSS for Services rendered and reimbursable expenses incurred by CSS to termination, and CSS shall return all Client owned materials.  Those terms hereof (including without limitation payment terms, limitations of liability, and confidentiality obligations) which, by the nature thereof should survive any termination hereof shall so survive.

1. Intellectual Property and Confidential Information

4.1.        Deliverables may comprise (i) intellectual property owned by third party software vendors; and/or (ii) custom configurations, tools, and code developed and owned by CSS (“CSS Tools”).  Services may include hosting software or automated business processes which Client may have the right to access or use, but does not own.  Except as expressly provided on a Service Order, (i) this Agreement does not transfer title in any intellectual property rights created or owned by (or licensed to) a party to the other, (ii) CSS shall own all right, title, and interest in all CSS Tools, except for materials provided by the Client; (iii) CSS has no obligation to deliver any items not specifically identified as “Deliverables” on a Service Order, and (iv) Client shall continue to own its existing intellectual property rights, and CSS and its licensors shall continue to own their respective existing intellectual property rights.  CSS does not grant Client any rights in any third party intellectual property rights except as expressly stated in a Service Order.  Client may be required to separately license third party software, as described on a Service Order.

4.2.        Each party may have access to confidential information or trade secrets (collectively “Confidential Information”) of the other party, including without limitation information regarded by the disclosing party as confidential and information relating to such party’s research, development or business affairs, which such party does not disclose to the public, and which such party has used reasonable means to designate as confidential.  Each party agrees to keep, and have its employees and agents keep, confidential, any and all Confidential Information belonging to the other party in the same manner as it protects its own confidential information of like kind, but in no event with less than reasonable care, and not to (nor allow any third party within its control to) reproduce, use, publish or otherwise disclose to others any Confidential Information of the other party without the other party’s prior written approval, except as contemplated by as Service Order.  The foregoing shall not prohibit or limit either party’s use of information or materials: (i) previously known to it; (ii) independently developed by it without reference to the other party’s Confidential Information; (iii) acquired by it from a third party without restriction on use; (iv) which is or becomes, publicly available through no breach by it of the Agreement; or (v) required to be disclosed under applicable law.

4.3.        Each party shall be entitled to enforce its rights under this section specifically, to recover damages by reason of any breach hereof, and to exercise all other rights existing in its favor hereunder.  Each party agrees and acknowledges that money damages may not be an adequate remedy for any breach of this section and that an aggrieved party may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without bond) to enforce the provisions hereof.

4.4.        If any Deliverable, software, or process hosted by CSS for Client is, or in CSS’ opinion is likely to be, held to be infringing upon any third party rights, CSS shall have the option, at its expense and sole discretion, to (i) procure the right for Client to continue using it, (ii) replace it with a non-infringing substantial equivalent, (iii) modify it to make it non-infringing, or (iv) direct the return (and/or cessation of use, as applicable) of the Deliverable or and refund to Client the fees paid for such Deliverable less a reasonable amount for Client’s use of the Deliverable to such time.  Client shall cooperate in any such remedy.  CSS shall have no liability with respect to any claim of infringement which is related to (a) Client’s misuse or modification of a Deliverable; (b) Client’s use of a Deliverable in combination with any item not developed by CSS; (c) information, specifications or materials provided by Client or any third party or (d) any other circumstance outside of CSS’ fault.

4.5.        Any CSS technology which is used by the U.S. Federal government, its agencies and/or instrumentalities, or any other government, is provided with Restricted Rights.  Manufacturer is Common Sense Solutions, Inc., 2859 83rd Street, Darien, IL  60561.  Client is responsible to assure that all downstream distributors and users are subject to the foregoing restriction.

1. Warranties and Limitations of Liability

5.1.        CSS represents: (a) CSS (i) is duly organized and validly existing under the laws of Illinois; (ii) has the authority to carry on its business as now conducted; and (iii) has the authority to execute and perform the MSA, Service Order(s); and (b) the Agreement constitutes a legal, valid, and binding obligation of CSS, enforceable against CSS in accordance with its terms.

5.2.        EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN A SERVICE ORDER, THE WARRANTIES OF CSS SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES.  CSS SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CSS DOES NOT WARRANT THAT THE OPERATION OF ANY DELIVERABLES WILL BE ERROR FREE OR UNINTERRUPTED.  CLIENT HAS CHOSEN THE DELIVERABLES SPECIFICATIONS AND CSS DOES NOT WARRANT THAT ANY DELIVERABLES MEET CLIENT’S SPECIFIC NEEDS.  THE SERVICES, DELIVERABLES, AND OTHER MATERIALS PROVIDED BY CSS ARE NOT INTENDED FOR “MISSION CRITICAL” USE OR EQUIPMENT (EQUIPMENT WHICH, IF DISABLED, COULD HAVE ANY IMPACT ON PUBLIC SAFETY OR RESULT IN THE DISABLING OF CLIENT’S BUSINESS).

5.3.        CSS is not an agent for any third party hardware or software providers and as such is not liable for the performance of any third party hardware or software except as expressly set forth on a Service Order or Purchase Order.  Any warranty for third party products and services will be provided by the developer or manufacturer thereof.

5.4.        NOTWITHSTANDING ANYTHING, (I) CSS SHALL NOT BE RESPONSIBLE FOR INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, SAVINGS OR DATA, OR LOSS OF OR INTERRUPTION OF BUSINESS), SPECIAL, OR NON-DIRECT DAMAGES, EVEN IF CSS HAS BEEN ADVISED OF THE LIKELIHOOD THEREOF, AND (II) CSS’ LIABILITY ARISING OUT OF THE AGREEMENT SHALL NOT EXCEED CHARGES PAID BY CLIENT TO CSS PURSUANT TO THE SERVICE ORDER TO WHICH SUCH LIABILITY RELATES IN THE THREE MONTHS PRIOR TO THE DATE SUCH CLAIM AROSE, REGARDLESS OF THE FORM OF ANY LEGAL OR EQUITABLE ACTION.  CSS SHALL NOT BE LIABLE FOR THE FRAUDULENT OR UNLAWFUL ACTS OF ANY THIRD PARTY. CSS’ OBLIGATIONS PERTAINING TO SOFTWARE OR DATA BACKUP SHALL BE LIMITED TO CONFIGURING THE DELIVERABLES ACCORDING TO THE SPECIFICATIONS THEREFOR SET FORTH ON A SERVICE ORDER AND CSS SHALL NOT BE LIABLE FOR LOSS OF DATA.

5.5.        Client represents and warrants: (i) Client (A) is, if applicable, duly organized and validly existing under the laws of the jurisdiction of its organization; (B) has the authority to own its property and carry on its business; and (C) has the authority to execute, deliver and perform the Agreement; (ii) the Agreement constitutes Client’s legal, valid and binding obligation, enforceable against Client in accordance with its terms; and (iii) Client has valid rights to authorize CSS to use, copy, modify and make derivative works of, the materials and data Client provides to CSS pursuant to each Service Order hereunder (if any).

5.6.        Neither party hereto shall be deemed to be in default of any non-payment provision of the Agreement resulting from “force majeure” events beyond the reasonable control of such party (including without limitation floods, fires, acts of government, and the like), provided that the non-disabled party may terminate the Agreement or the affected Service Order should the period of such disability continue beyond 60 days.

1. Miscellaneous

6.1.        The Agreement, together with any attachments referred to therein, constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to such subject matter. If any term of the Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and all other portions hereof will remain in full force and effect.

6.2.        The parties are independent contractors and nothing herein creates or implies an agency, partnership, or joint venture relationship between them.  Except as expressly stated in a Service Order, there are no third party beneficiaries hereof.

6.3.        During the period of each Service Order and for two (2) years thereafter, Client shall not, directly or indirectly, solicit or offer employment to or hire any employee, former employee, contractor, or former contractor of CSS.  In the event of a breach by Client of the foregoing restriction, CSS shall be entitled to liquidated damages in an amount equal to twice the annualized salary or other compensation paid to the affected individual by CSS.

6.4.        Neither party may assign the Agreement, in whole or in part, without the prior written consent of the other party, provided that a party may transfer the Agreement in conjunction with a merger, consolidation, corporate reorganization, or sale of substantially all of the assets of such party to a party who assumes the assigning party’s obligations in writing. The Agreement will inure to the benefit of, and be binding upon the parties’ respective permitted successors and assigns.  CSS may use third parties to host servers, transmit data, process materials or provide Services, and shall remain responsible for the performance thereof.

6.5.        The Agreement is governed by and construed in accordance with the laws of the State of Illinois without regard to its conflicts of law rules.  Any action or proceeding arising out of the Agreement shall be brought only in the Circuit Court of DuPage County, Illinois or the United States District Court, Northern District of Illinois, Eastern Division, and the parties hereby consent to such venue and to the jurisdiction of such courts.

6.6.        The waiver by any party of any term or breach hereof will not be construed to be a waiver of any succeeding breach or any other covenant.  All waivers must be in writing, and signed by the party waiving its rights.  The Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.  The Agreement, and any instrument referred to herein or executed and delivered in connection herewith, shall not be construed against any party as the principal draftsperson hereof or thereof.  The documents comprising the Agreement shall, in the case of any direct conflict of terms, have the following order of priority (highest priority first): (a) a Service Order, but only as it applies to the Services or Deliverables described thereon, and (b) this MSA (except when stated herein that another document governs or may contain an exception); and (c) any ancillary documents executed by each of the parties.

6.7.        Client may provide non-legal notices to CSS by electronic mail to info@cssworks.com, provided that any legal notice from Client to CSS must be provided in writing, to the following address:  Common Sense Solutions, Inc., 2859 83rd Street, Darien, IL  60561.