BACKGROUND

DEFINITIONS

1. SCOPE OF AGREEMENT; WORK ORDERS.    This Agreement establishes a framework by which MCPc will provide Services to Customer. The specific Services that MCPc will provide to Customer will be set forth in one or more mutually agreed upon orders for work (each a “Work Order”). Each Work Order will include, to the extent applicable, following items:  (a) description of the Services to be performed under the Work Order (b) Customer Contact for the Services to be provided under the Work Order, (c) any deliverables, milestones and target completion dates, (d) any method or schedule for compensation, and (e) Customer’s tasks and the Customer resources required for MCPc to perform the Services. Upon execution by each of the Parties, each Work Order will be a part of, and incorporated into, this Agreement.
2. OBLIGATIONS OF THE PARTIES.
   1. MCPc Obligations
      1. MCPc will use commercially reasonable efforts to perform the Services in accordance with the applicable Work Order during the term of this Agreement with respect to Supported Hardware or Platforms.
      2. Customer is entitled to appoint the number of individual contacts (“Customer Contacts”) specified and identified in the applicable Work Order.  MCPc will provide Services to Customer solely by communicating with the Customer Contacts. 
      3. The Services will be provided in a professional and workman-like manner by qualified personnel.
      4. If applicable, MCPc will provide any Hardware and Software to Customer in conjunction with the Services, subject to the third party provider’s applicable EULA and applicable terms and conditions.
   2. Customer Obligations 
      1. Customer will appoint the Customer Contacts and provide technical and other assistance required for MCPc to perform the Services on an as needed basis.
      2. Customer shall make commercially reasonable efforts to maintain consistent Customer Contacts for the term of this Agreement or any applicable Work Order.  Customer may change a Customer Contact if the individual previously designated has terminated employment with Customer or is no longer involved with day-to-day administration of the Customer’s Supported Hardware or Platform.  Customer must notify MCPc of any change in Customer Contacts in writing. Customer shall allow one calendar week for MCPc to process any changes in Customer Contacts. 
      3. Customer may not use a Customer Contact to act as a mere forwarding service for other personnel.  The Customer Contacts may not use Services to benefit any person or entity other than the Customer.
      4. Customer will perform the tasks and provide the resources specified in the Work Order and this Agreement including, without limitation, workspace and network and telephone connections and access if required to perform the Services.
      5. If Customer provides MCPc with use of, or access to, materials that are subject to proprietary rights of, or controlled by, Customer, Customer hereby grants MCPc, or agrees to obtain for MCPc, all necessary licenses and rights with respect to such materials to perform the Services and Customer warrants that such use or access will not infringe on the rights of any third party.
      6. Customer agrees to provide MCPc all information and all access to Customer's computer systems and information as reasonably requested by MCPc to enable MCPc to provide the Services.  Such information may include, but is not limited to, the type of hardware Customer is using, a description of the problem for which Customer seeks Services, and additional software Customer is using that falls outside the scope of coverage. Customer understands and agrees that the completeness and accuracy of the information Customer provides to MCPc may affect MCPc's ability to provide Services and/or have an effect on the cost to Customer of the Services.​
   3. Changes to Work and Delays.
      1. Changes. From time to time, Customer or MCPc may request a change in a Work Order.  In such case, Customer and MCPc agree that they will negotiate in good faith regarding any proposed changes to the Work Order.  Proposed changes will be affected through a written change order, signed by both parties, and those will constitute amendments to the applicable Work Order.  Any work performed under a written change order will be considered Services for purposes of this Agreement.  If MCPc agrees to provide additional resources, then such resources will be provided and priced separately.
      2. Delays. In the event that Customer changes any of the specifications of the work to be done, delays the delivery to MCPc of any Customer deliverable specified in the Work Order, delays the start date of the Services, fails to provide MCPc information necessary for MCPc to perform the Services or in any way causes delays to the work schedule, MCPc is entitled to modify the schedule or reschedule the Services, with no penalty to MCPc.
      3. Cancellation. Customer may not cancel a Work Order, in whole or in part, without MCPc’s prior written approval (which may be granted or withheld in MCPc’s sole discretion).   Notwithstanding MCPc’s right to grant or withhold such approval, for any Work Order so cancelled, Customer will be responsible for, and will pay to MCPc, on demand: (i) any expenses incurred by MCPc in modifying, adapting or creating any specially ordered Services on Customer’s behalf, including work in progress; and (ii) out-of-pocket costs incurred by MCPc arising from such cancellation (including the amount charged to MCPc from its manufacturers, vendors, distributors, or subcontractors caused by Customer’s request for cancellation). Customer may only return purchased Products in accordance with MCPc’s Return Policy.
3.  INTELLECTUAL PROPERTY RIGHTS.
   1. Customer Pre-Existing Property. Customer will retain all right, title and interest in and to all pre-existing information, ideas, data, software, tools and other materials developed by or for Customer prior to commencement of the Services (“Customer Pre-Existing IP”). Customer grants to MCPc a non-exclusive, worldwide, royalty-free license to use the Customer Pre-Existing IP solely for MCPc to perform the Services.
   2. MCPc Pre-Existing Property. MCPc will retain all right, title and interest in and to all pre-existing information, data, software, tools and other materials developed by or for MCPc prior to commencement of the Services (“MCPc Pre-Existing IP”).
   3. Deliverables. Customer will own all right, title and interest in and to the deliverables set forth in the Work Order (“Deliverables”).  To the extent that the Deliverables contain MCPc Pre-Existing IP and subject to the terms and conditions of this Agreement, MCPc grants to Customer a perpetual, non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free license to use such MCPc Pre-Existing IP solely in connection with the Deliverables.
   4. Third Party Materials. Any pre-existing information, data, software, tools and other materials developed by any third-party licensor of MCPc (“Third Party Materials”) that is included in the Deliverables will remain the property of such third party licensor and MCPc grants to Customer a perpetual, non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free license to use such Third Party Materials solely in connection with the Deliverables.
   5. Deliverables and Software. MCPc agrees that (a) the data and information (including without limitation, computer software, computer database, computer software documentation, specifications, design drawings, reports, blueprints and the like) generated by MCPc in the performance of the Services and derived from the Deliverables and (b) any data and information that are specified to be delivered or that are in fact delivered to Customer pursuant to this Agreement, which data and information are derived from Customer’s proprietary data and information shall be and remain the sole property of Customer; provided, however that the Software and any data or information (including without limitation, computer software, computer database, computer software documentation, specifications, design drawings, reports, blueprints) that is the property of MCPc shall remain the property of MCPc. Any ideas, data, software, tools, and other materials developed by MCPc during the course of the engagement which are not specified in the Work Order, do not arise from Customer’s proprietary data and information, or are not otherwise derived directly from the Deliverables shall remain the property of MCPc.
   6. MCPc Marks. No right or license, express or implied, is granted by this Agreement for the use of any of MCPc’s trademarks, including, without limitation, the distribution of the Software utilizing any MCPc trademarks.
       
4. FEES, INVOICES, TAXES, REPORTINGS AND AUDIT.
   1. ​Fees and Expenses. All fees are stated in the currency designated in the Work Order, and must be paid by Customer to MCPc in that designated currency.  Customer will reimburse MCPc for its reasonable, out-of-pocket expenses in performing the Services including without limitation travel, lodging, shipping, courier, document reproduction, postage, and non-routine supplies, in accordance with MCPc’s travel and expense policies.
   2. Invoice. MCPc will invoice Customer for the agreed upon fees in accordance with the applicable Work Order. Any and all payments made by Customer pursuant to this Agreement are non-refundable. Customer will make payment within thirty (30) days of the date specified on the invoice. MCPc reserves the right to terminate this Agreement if actual payment has not been received within the aforementioned thirty (30) day period. However, MCPc will notify Customer before such termination and will give Customer 14 days from receipt of said notice before actually terminating this Agreement to either: (a) provide MCPc with a written explanation of its inability to pay; or (b) to remit payment to MCPc.
   3. Taxes. All fees for Services are exclusive of any taxes due to be paid under the applicable laws including national, federal, state, local, VAT, sales, excise, use, or similar taxes.  Except for taxes relating to MCPc’s income, Customer agrees to pay all other taxes that, as per applicable under the applicable laws, are incumbent on the buyer or beneficiary of the Services provided by MCPc to Customer hereunder.
   4. Audit. During the term of this Agreement and for one (1) year thereafter, MCPc has right to audit Customer’s facilities and records from time to time in order to verify Customer’s compliance with the terms and conditions of this Agreement.  Any such audit will only take place during Customer’s normal business hours and upon no less than ten (10) days prior written notice from MCPc.  MCPc will conduct no more than one such audit in any twelve-month period except for the express purpose of assuring compliance by Customer where non-compliance has been established in a prior audit.  MCPc will give Customer written notice of any non-compliance, and Customer will have fifteen (15) days from the date of such notice in which to make payment to MCPc for such deficiency.
       
5. TERM AND TERMINATION.
   1. ​Term. The term of this Agreement will begin on the Effective Date and will terminate when MCPc has performed all Services under any Work Order and the parties have not entered into any new Work Order for a period of 180 days, unless terminated earlier in accordance with Section 4.2 or 5.2. If no Effective Date is given, the term shall begin upon the second signature of the two parties to the Agreement.
   2. Termination. This Agreement may not be terminated by either MCPc or Customer except as follows: (a) as provided under Sections 4.2 or 5.1, (b) by either Party upon fifteen (15) days prior written notice for any material default or breach of the terms and conditions of the Agreement by the other Party, unless the defaulting Party has cured such failure or default within such 15-day period, provided however, that no such cure period will be permitted for a breach of Section 7.1 hereof.
   3. Effect of Termination. If this Agreement is terminated for any reason, the obligations of the Parties under Sections 3, 4 and 6 through 11 of this Agreement will survive such termination.
       
6. DISCLAIMER OF DAMAGES AND LIMITATION OF LIABILITY.
   1. ​TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MCPC BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN TORT OR IN CONTRACT, INCLUDING LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF (A) THE SERVICES, (B) ANY INTERRUPTION OF USE OF THE SERVICES, OR (C) FOR LOSS, INACCURACY OR CORRUPTION OF DATA, EVEN IF MCPC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  
   2. MCPC’S LIABILITY HEREUNDER WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT THAT CUSTOMER PAID TO MCPC FOR THE SERVICES AND/OR THE SOFTWARE OR HARDWARE FROM WHICH THE LIABILITY AROSE AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY.
7. ​DATA SECURITY AND PRIVACY
   1. In providing the Services, MCPc will (i) store, process and access Customer Data only to the extent reasonably necessary to provide or improve the Services, and (ii) implement and maintain commercially reasonable technical, physical and organizational measures to protect the security, confidentiality and integrity of Customer Data hosted by MCPc or our authorized third party service providers, from unauthorized access, use, alteration or disclosure.
8. CONFIDENTIALITY AND PUBLICITY.
   1. ​Confidentiality. The Parties agree that confidential information exchanged under this Agreement will be treated in accordance with the Confidentiality Agreement.
   2. Publicity. Each Party agrees not to use the name of other Party or any trademark, trade name or service mark or symbol owned by the other Party or otherwise refer to the other Party in writing to any third party without the prior written consent of the other Party; provided however, MCPc may reference its relationship to Customer during discussions with financial analysts, presentations to investors, meetings with the press and Customer briefings.
9. WARRANTY. Except as otherwise provided in this Agreement, MCPc does not provide any warranty with respect to Hardware, SOFTWARE, OR Services.  Except as provided in this Agreement, THE SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY MCPC (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. MCPC DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE.
    
10. GOVERNING LAW/CONSENT TO JURISDICTION The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of Ohio.  Customer hereby consents to jurisdiction of the courts of both the state or federal courts of Ohio.   
11. GENERAL PROVISIONS.
    1. Notices. Any notice to be given pursuant to this Agreement, including any notice of change of address for notice, will be deemed given (a) three (3) business days after being deposited with the U.S. Postal Service, postage prepaid, first class, certified, return receipt requested; (b) upon receipt when delivered in person; (c) two (2) business days after being deposited with a reputable international overnight delivery service; or (d) one (1) business day after being transmitted by facsimile with confirmation of delivery to the address or facsimile telephone number for such party set forth below.   

    2. If to MCPc:

       MCPc, Inc.

       Attention: General Counsel

       21500 Aerospace Parkway

       Cleveland, OH 44142

       Email: contracts@mcpc.com

       Facsimile:

    3. Assignment. This Agreement is assignable by Customer only with MCPc’s prior written consent, which will not be unreasonably withheld.  If Customer is assigning this Agreement to an Affiliate, or as a result of a merger or a sale of all or substantially all of Customer’s assets or stock, then prior approval for the assignment is not required as long as the cost and/or number of persons supported does not increase as a result of such assignment and the rights, risks and obligations of MCPc are not adversely affected. MCPc may subcontract Services under this Agreement without the prior approval of Customer; provided, however, that such subcontractor must agree to keep any proprietary information received from MCPc or Customer confidential.
    4. Independent Contractor. MCPc is an independent contractor and nothing in this Agreement or related to MCPc’s performance of any Work Order will be construed to create an employee relationship between Customer and MCPc or any MCPc consultant. MCPc will be solely responsible for payment of applicable taxes, deductions or other payments and benefits for its personnel.
    5. Export Responsibilities. MCPc may supply Customer with technical data that may be subject to export control restrictions. MCPc will not be responsible for compliance by Customer with applicable export obligations or requirements for such technical data and hardware. Customer agrees to comply with all applicable export control restrictions.
    6. Headings. The title and paragraph headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
    7. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the Parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement and further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
    8. Waiver.  The failure of either Party to exercise any rights hereunder will not constitute or be deemed a waiver of forfeiture of such rights.
    9. Dispute Resolution. Customer satisfaction is an important objective to MCPc in performing its obligations under this Agreement. If Customer is not satisfied with the Services provided by MCPc, Customer agrees to give MCPc a written description of the problem(s) and to make a good faith effort to amicably resolve the problem with MCPc before commencing any proceeding. MCPc also agrees to make a good faith effort to amicably resolve any problem with Customer before commencing any proceeding.
    10. Prevailing Party. In the event of a dispute between the Parties regarding payment under this Agreement, the prevailing Party’s reasonable attorney’s fees will be paid by the other Party.
    11. Force Majeure. Neither Party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions or other causes beyond its control. In the event of the occurrence of any of the foregoing, the date of performance will be deferred for a period of time equal to the time lost by reason of the delay.  The affected Party will notify the other in writing of such events or circumstances promptly upon their occurrence.
    12. Complete Agreement. This Agreement and Work Orders that are executed by each of the Parties under this Agreement will constitute the exclusive terms and conditions with respect to the purchases of Software or Services under this Agreement by Customer from MCPc, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Customer in such transactions.  This Agreement and the Work Orders that are executed by each of the Parties under this Agreement contains the final, complete and exclusive statement of the agreement between the parties with respect to the transactions contemplated herein and all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter herein are merged herein.  This Agreement and any Work Order that is executed by each of the Parties under this Agreement may not be amended, supplemented or modified (or any right or power granted hereunder waived) except by written instrument signed by authorized officers of the parties hereto (or in the case of a waiver, signed by the party to be bound), which instrument makes specific reference to this Agreement or the applicable Work Order.  In the event of any conflict between this Agreement and any Work Order, this Agreement will take precedence unless otherwise specified in the Work Order.
    13. Non-Solicitation. Customer agrees not to solicit or hire any personnel of MCPc with whom Customer has had contact in connection with this Agreement until at least one year after the termination of this Agreement.
    14. Counterparts and Facsimile Signature. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute the same agreement. The Parties may exchange signature pages by facsimile and such signatures will be effective to bind the Parties.