Terms and Conditions

MCPc, Inc. Policies and Procedures


MCPc MASTER SERVICES AGREEMENT
GENERAL TERMS AND CONDITIONS
1.       DEFINITIONS.    Unless otherwise specified, capitalized terms used in this Agreement will have the meanings attributed to them in this Section 1 or in the Order Document in which such term appears.
       1.1                “Affiliate” means, with respect to each Party, any entity which directly or indirectly controls, is controlled by, or is under common control with, such Party.
       1.2               “Agreement” means this Master Services Agreement, all Order Documents, and any amendments and exhibits to the foregoing.
       1.3               “Business Day” means any day other than Saturday, Sunday, or a statutory holiday observed by MCPc.
       1.4               “Confidential Information” means material, data, systems and other information concerning the operation, business, projections, market goals, financial affairs, products, services, customers and Intellectual Property Rights of the other Party that may not be accessible or known to the general public.  Confidential Information includes the terms of the Agreement, and any information which concerns technical details of operation of any of MCPc’s Services, Software or Hardware offered or provided hereunder.
       1.5               “Hardware” means hardware, if any, provided to Customer under any Order Document issued hereunder in connection with the Services.
       1.6               “Intellectual Property Rights” means any and all now known or hereafter existing rights associated with intangible property, including registered and unregistered, United States and foreign copyrights, trade dress, trade names, corporate names, logos, inventions, patents, patent applications, software, know-how and all other intellectual property and proprietary rights (of every kind and nature throughout the universe and however designated).
       1.7               “Order Document” means either a services order (“Services Order”), a statement of work (“SOW”) or such other similar document, as applicable, that has been issued pursuant to this Agreement (and that specifically references this Agreement) and that is mutually executed by the Parties.  An Order Document is the only means by which Customer may purchase Services in connection with this Agreement.  A standalone purchase order (or similar document) will not be effective.  
       1.8               “Services” means the MCPc services to be provided to Customer under any Order Document issued pursuant to this Agreement, and includes Hardware or Software, and related deliverables, if any is provided.  
       1.9               “Software” means software owned or licensed by MCPc, which may be provided to Customer under any Order Document issued pursuant to this Agreement in connection with the Services, whether standalone, or as incorporated in Hardware, including any APIs, guides, or documentation provided therewith.
 
2.       ESTABLISHING AND DELIVERING ORDERS.
       2.1      Purchase and Provision of Services.  All Services (including, as applicable, Software and/or Hardware) to be provided by MCPc hereunder will be purchased or licensed under an Order Document.  An Order Document will contain a description of the Services being obtained, and/or additional terms and conditions specific to such Services.  Customer agrees that each Order Document will be signed by a representative having the authority to bind Customer and that MCPc may presume that such representative has such authority. All signed Order Documents are subject to the terms and conditions of this Agreement.  Any Services not expressly set forth on an Order Document are excluded; there are no implied Services.  Each Order Document is intended to define a separate contract particular to such order, incorporating by reference the applicable portions of this Agreement.  Each Order Document will cover only the Customer entity(ies) specifically identified therein.  A binding order is created when MCPc accepts and executes the Customer-executed Order Document.  Upon request, Customer will provide MCPc with an internal purchase order or reference number for invoicing purposes, subject to Section 2.4 (“Additional or Conflicting Terms”). Alternatively, if Customer’s procedures allow payment of invoices without a purchase order, Customer will provide a letter stating that fact to MCPc.  
       2.2               Change Orders.  An Order Document may be amended only by a written change order (a “Change Order”) that is mutually executed by the Parties. Any such Change Order must (i) specifically reference the Order Document being modified, (ii) identify with specificity the Services that are to be modified and how the same are to be modified, and (iii) identify any change in the fees and/or payment terms.
       2.3               Cancellation.  Customer may not cancel an Order Document, 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 Order Document 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: (i) MCPc’s Return Policy (a copy of which is available upon request) and (ii) a written Return Material Authorization (“RMA”). Customer will return the purchased Products in accordance with MCPc’s instructions in their original package and in good condition, without alteration. Products not returnable under a manufacturer’s return policy, or which are customized for Customer, are non-returnable.
       2.4               Additional or Conflicting Terms.  MCPc’s acceptance of any purchase order or similar document submitted by Customer is expressly made in reliance on Customer’s assent to all the terms and conditions of this Agreement.  No additional or contradictory terms and conditions included on any Customer purchase order will operate as an amendment to this Agreement, and will have no force and effect, even if such terms and conditions expressly state that they are intended to supersede the terms of this Agreement, MCPc is required to countersign the purchase order, and/or MCPc fails to object to such terms and conditions. Without limiting the generality of the foregoing, in the event of conflicting, contradictory, or additional terms or conditions between this Agreement and any Order Document (including on the face of Customer’s purchase order), this Agreement will control (with exhibits taking precedence over these General Terms and Conditions), unless the Order Document specifically identifies the conflicting or contradicting term or condition as being conflicting or contradicting and specifically notes that the Order Document will control. MCPc’s failure to object specifically to provisions contained in any communication from Customer will not be deemed a waiver of the provisions contained in this Agreement.

3.       FEES AND PAYMENT TERMS.
       3.1               General.  Customer will pay MCPc, when due, all amounts specified in the applicable Order Document, without deduction or setoff arising from any other Order Documents or agreements.  Such payment will be made:  (i) in U.S. Dollars; (ii) within thirty (30) days from the invoice date unless otherwise stated in the applicable Order Document; and (iii) in accordance with the remittance instructions as set forth in the applicable invoice.  Unless otherwise expressly stated in an applicable Order Document, all amounts due under this Agreement will be invoiced to Customer upon shipment of the Hardware or Software, or performance of the Services, as applicable.  Except as otherwise set forth in this Agreement, all orders are non-cancelable, and all fees paid are non-refundable.  In order to be valid, an invoice dispute must be initiated in good faith, in writing, within thirty (30) days following the applicable invoice date; otherwise, such right to dispute the applicable invoice will be deemed waived.
       3.2               Taxes.  Prices and fees do not include, and Customer will pay, any and all sales, use, services, excise, value-added, tariffs, duties or similar taxes or charges unless Customer provides MCPc with valid tax exemption certificates. The fees stated are exclusive of tax.  All taxes, duties, fees and other governmental charges of any kind (including sales, services, use, and value-added taxes, but excluding taxes based on the net income of MCPc) which are imposed by or under the authority of any government or any political subdivision thereof on the fees for any of Services, Software and/or Hardware will be borne by Customer and will not be considered a part of, a deduction from or an offset against such fees.  All payments due to MCPc will be made without any deduction or withholding on account of any tax, duty, charge or penalty except as required by law, in which case the sum payable by Customer from which such deduction or withholding is to be made will be increased to the extent necessary to ensure that, after making such deduction or withholding, MCPc receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required.
       3.3               Deposits.  MCPc reserves the right to request a deposit, or full payment in advance, for any single Order Document (or series of Order Documents) totaling Fifty Thousand Dollars ($50,000) or more.
       3.4               Expenses.  Customer agrees to reimburse MCPc’s reasonable and actual expenses incurred related to providing Services under this Agreement, unless otherwise set forth in an Order Document.
       3.5               Effect of Late Payment.  MCPc may refuse or delay shipping Products and/or suspend performing any Services, if Customer fails to timely pay all amounts owed to MCPc hereunder.  In addition, in the event of late payment, MCPc reserves the right to modify payment terms, including by requiring advance payment of all outstanding and future fees.  Beginning the day after the due date of the invoice, interest will be due and payable by Customer at the rate of one and one-half percent (1.5%) per month or the highest rate allowed by law, whichever is less, on any portion of MCPc’s invoice which has not been paid.  In addition, Customer will pay MCPc’s costs of collection of any unpaid invoice.  The foregoing rights are without prejudice to MCPc’s other rights and remedies, at law or in equity, arising out of or relating to Customer’s failure to timely pay any MCPc invoice.

4.       PERSONNEL.
       4.1               Selection of Personnel.  MCPc will, in its sole discretion, determine the assignment of its personnel for providing the Services. MCPc will endeavor to honor a request for a specific associate, subject to staffing or scheduling considerations. Customer may request that MCPc remove any MCPc employees or agents not so complying. 
       4.2               Nonsolicitation.  Customer acknowledges that MCPc provides a valuable service by identifying and assigning personnel for the performance of Services hereunder.  Customer further acknowledges that Customer would receive substantial additional value, and MCPc would be deprived of the benefits of its work force and would experience substantial cost, if Customer were to hire or contract with MCPc’s personnel after they have been introduced to Customer by MCPc.  Without the prior written consent of MCPc, Customer shall not solicit for hire or engagement any personnel of MCPc who have been introduced to Customer by MCPc or who are or have been assigned to perform Services for Customer hereunder until one (1) year after the termination of the applicable Order Document under which such Services were performed.  In the event that Customer hires or contracts directly or through a third party with any personnel of MCPc who have been introduced to Customer by MCPc or who are or have been assigned to perform work for client in violation of this Agreement, Customer shall pay to MCPc an amount equal to twenty five percent (25%) of the total first year compensation client pays to such personnel, as a fee for the additional benefit obtained by Customer. 

5.       WARRANTIES.
       5.1               Performance.  MCPc warrants to Customer that the Services performed by MCPc under this Agreement will be performed in a professional, workmanlike manner in accordance with applicable commercial standards.  MCPc does not warrant results or achievements of Services and MCPc is not responsible for the work or activity of any non-MCPc employed personnel.   
       5.2               Third Party Warranties.  Customer acknowledges that MCPc does not manufacture proprietary Hardware or develop proprietary Software and, instead, MCPc is a distributor of third party Hardware and Software.  As such, MCPc will endeavor to pass through warranties from the manufacturer or licensor of such Hardware or Software (“Manufacturer”), and to the extent that MCPc does pass through such warranties, Customer will look solely and exclusively to the Manufacturer with respect to all defects, breaches, liability, claims, damages, obligations, and costs and expenses related to such Hardware or Software, except to the extent attributable to MCPc’s performance of Services. MCPc makes no representation, covenant or warranty with respect to the extent or enforceability of the Manufacturer’s warranty or indemnity, and MCPc disclaims any and all liability with respect thereto.
       5.3               Exclusions.  MCPc will have no liability of any kind for an alleged breach of any of the warranties in this Section 5 if:  (i) any Software or Hardware provided by MCPc has been modified by Customer or any third party, unless authorized by MCPc in writing; (ii) the Hardware has been serviced or changed by any party other than MCPc, unless otherwise authorized by MCPc or expressly permitted by MCPc’s documentation; (iii) any Hardware or other computer equipment, devices, or other products on which MCPc installed any Software has been serviced or changed by any party other than MCPc, unless otherwise authorized by MCPc or expressly permitted by MCPc’s documentation; (iv) any computer equipment, device, or peripheral supplied by Customer does not have sufficient capacity, is not in good operating order or is not installed, handled, or used in a suitable operating environment or manner; (v) to the extent that the alleged breach was caused by Customer or its agents or other third party; (vi) Customer fails to reasonably provide timely notice to MCPc of the alleged breach after discovery thereof; (vii) the warranty issue is not reproducible; (viii) Customer fails to comply with MCPc’s or the Manufacturer’s instructions regarding remediation of the warranty issue, and/or RMA procedures; or (ix) damage from accidents, abuse, misuse, or negligence, or other factors beyond MCPc’s control, such as fire or flood, any breakdowns, fluctuations, or interruptions in electrical power, air conditioning, the telecommunications network; or (x) Customer’s violation of this Agreement.
       5.4               Remedy.  Customer’s sole and exclusive remedy for breach of any warranty or representation of this Agreement for which MCPc is responsible will be, at MCPc’s option, either (i) to re-perform the Services, as applicable, at MCPc’s cost; or (iii) to refund the cost relating to any non-conforming Services. No repair, replacement or reperformance will extend any warranty period. 
       5.5               Disclaimer.  EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 5, THE SERVICES ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTIES OF ANY KIND.  MCPC MAKES NO OTHER WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AS WELL AS ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS ARISING THROUGH THE USE BY MCPc OF ANY SAMPLES OR DEMONSTRATIONS, ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  MCPC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE.  BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THESE TERMS IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION.  THE DISCLAIMERS IN THIS SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY.  THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR FROM JURISDICTION TO JURISDICTION.  THE SERVICES ARE NOT DESIGNED, INTENDED, OR CERTIFIED FOR USE IN COMPONENTS OF SYSTEMS INTENDED FOR THE OPERATION OF WEAPONS, WEAPONS SYSTEMS, NUCLEAR INSTALLATIONS, MEANS OF MASS TRANSPORTATION, AVIATION, MEDICAL SYSTEMS, DEVICES, IMPLANTS, OR EQUIPMENT, POLLUTION CONTROL, HAZARDOUS SUBSTANCES MANAGEMENT, OR FOR ANY OTHER DANGEROUS APPLICATION IN WHICH THE FAILURE OF THE SERVICES COULD CREATE A SITUATION WHERE BODILY INJURY OR DEATH MAY OCCUR.  CUSTOMER UNDERSTANDS THAT USE OF THE SERVICES IN ANY SUCH APPLICATION IS SOLELY AT CUSTOMER’S RISK.

6.       CUSTOMER’S POLICIES/TRAINING.
MCPc will, whenever on the Customer’s premises, obey all reasonable policies regarding physical security required by the Customer and attached to an Order Document.

7.       TERM AND TERMINATION.
       7.1               Term.  This Agreement will begin on the Effective Date and will continue until terminated as set forth below.  Each Order Document will commence on the effective date identified therein, and will terminate pursuant to the terms and conditions set forth below, or such other terms as may be set forth in such Order Document.  With regard to any Order Document that sets forth a renewable term, such term will automatically renew for successive one (1) year terms (each, a “Renewal Term”, unless either Party provides written notice to the other Party at least sixty (60) days prior to the commencement of a Renewal Term of its intent not to renew.  The initial term and any Renewal Terms of a Services Order are collectively referred to as the “Term.” 
       7.2               Termination for Convenience.  Either Party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other (“Termination for Convenience”).   In the event of a Termination for Convenience, this Agreement will remain in effect solely for the completion of any ongoing Order Document(s). 
       7.3               Termination for Cause.  Either Party may terminate this Agreement (or any Order Document) for material breach by the other Party of a material term of this Agreement (or such Order Document) upon giving the other Party written notice identifying specifically the alleged breach, provided the breaching Party does not cure such breach within ten (10) days of receipt of the notice.  If MCPc terminates this Agreement (or an Order Document) pursuant to this Section 7.3, MCPc may, at its option, suspend or cease providing any Services under such Order Document, and may further terminate any ongoing Order Documents.
       7.4               Effect of Termination.  Within thirty (30) days of termination of this Agreement or an Order Document by either Party for any reason, each Party will promptly return to the other all data, materials, and other properties relating thereto (including Confidential Information as defined below) of the other held by it.  The fees outstanding to MCPc under any terminated Order Document will remain due and payable in their ordinary terms pursuant to the terms hereof.  Termination of any one Order Document will not modify the term of this Agreement or any other Order Documents.  Termination of this Agreement will immediately terminate any and all Order Documents executed hereunder.  The terms and conditions applicable to any Renewal Term(s) will be the same as those in effect for the immediately preceding portion of the Term unless otherwise stated in the applicable Order Document.  Notwithstanding the foregoing, MCPc may increase fees for any Renewal Term by providing written notice of such increase to Customer at least ninety (90) days prior to the commencement of such Renewal Term. 
       7.5               Survival.  The following Sections will survive the termination of this Agreement for any reason: General Terms and Conditions: Sections 1 (“Definitions”), 2.3 (“Cancellation”), 2.4 (“Additional or Conflicting Terms”), 3 (“Fees and Payment Terms”), 4.2 (“Nonsolicitation”), 5 (“Warranties”), 7.4 (“Effect of Termination”), 7.5 (“Survival”), 8 (“Limitation of Liability”), 9 (“Confidential Information; Ownership”), and 10 (“Miscellaneous”); Exhibit A: Sections 6 (“If Delivery is Refused”), 7 (“Security Interest”), and 8 (“Insurance”); Exhibit B: Sections 2 (“Title”), 3 (“Restrictions”), 4 (“Ownership”), 5 (“Terms Applicable to Third Party Software”), 6 (“Software Audit”), and 7 (“Archiving and Backup Responsibilities”), Exhibit C: Section 1 (“Definitions”), 4 (“Reliance on Customer Materials”), 5 (“Segmentation”), 6 (“Milestone Payments”), and 7 (“Ownership; Licenses”); Exhibit D: Section 5 (“Payment for Hardware Purchased with Managed Services or Other Services”), 14.4 (“Data Backup”), 14.5 (“Third Party Warranties”); and Exhibit E: Section 2 (“Conversion”).

8.       LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT WITH REGARD TO CUSTOMER’S LIABILITY TO PAY FOR CONTRACTED HARDWARE, SOFTWARE, OR SERVICES, IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT LIABILITY, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW) EXCEED THE FEES RECEIVED BY OR OWED TO MCPc DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT OR OCCURRENCE FROM WHICH THE LIABILITY ARISES.  THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.  THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, AND WILL NOT APPLY TO A BREACH OF SECTION 4 (“PERSONNEL”) OR SECTION 9 (“CONFIDENTIAL INFORMATION; OWNERSHIP”) IN THESE GENERAL TERMS AND CONDITIONS, OR CUSTOMER’S BREACH OF EXHIBIT B OR THE LICENSE PROVISIONS SET FORTH IN SECTION 7 OF EXHIBIT C (“OWNERSHIP; LICENSES”), OR SECTION 2 OF EXHIBIT F (“CONVERSION”).  CUSTOMER ACKOWLEDGES THAT THE FEES AND PRICING SET FORTH OR REFERENCED IN THIS AGREEMENT REPRESENT THE ALLOCATION OF RISK SET FORTH IN THESE TERMS, AND THAT IN THE ABSENCE OF THESE LIMTATIONS ON MCPC’S LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.  IN ADDITION, MCPC DISCLAIMS ANY AND ALL LIABILITY ON BEHALF OF MCPC’S SUPPLIERS AND LICENSORS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN).

9.       CONFIDENTIAL INFORMATION; OWNERSHIP.
       9.1               Nondisclosure.  Each Party agrees that any information identified to the other Party in writing as “Confidential Information” or “Proprietary Information” will not be used for its benefit or the benefit of any third party or duplicated or disclosed to any third party, unless such use, duplication or disclosure is authorized by the disclosing Party. Each Party will protect the confidentiality of the Confidential Information of the other Party in the same manner as it protects its own Confidential Information of like kind, using no less than a reasonable degree of care, and will restrict access to those of the recipient’s personnel on a need to know basis. This obligation will not apply to any information which was already known to the receiving Party prior to its receipt from the disclosing Party, has become publicly available by means other than by a violation of this clause, or has been developed independently by the receiving Party having no access to the Confidential Information.  In the event either Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other Party, the recipient will promptly notify the other Party of such receipt and may comply with such subpoena or process, to the extent permitted by law. All Confidential Information will be returned or destroyed upon written request by the disclosing Party. Each Party may retain, subject to the obligations of this section, a single copy of the Confidential Information for legal defense purposes only, subject to the protections set forth above.
       9.2               Injunctive Relief.  Each Party acknowledges and agrees that unauthorized disclosure or use of Confidential Information or other proprietary materials of the other Party, or violation of the other Party’s (or its suppliers’) proprietary rights with respect thereto, may cause immediate and irreparable harm for which money damages cannot adequately compensate. Accordingly, notwithstanding any other provision of this Agreement, each Party agrees that in the event of any such unauthorized disclosure or use, the other Party may seek injunctive relief from any court or tribunal with jurisdiction over the Parties and the matter.
       9.3               Intellectual Property Rights.  Customer acknowledges and agrees that MCPc and its suppliers exclusively own all right, title, and interest, including all Intellectual Property Rights worldwide in and to the Services, the results thereof, and the deliverables provided in connection therewith (except if the Order Document specifically identifies deliverables that Customer will own). MCPc and its suppliers expressly reserve all rights not expressly granted to Customer in this Agreement.  There are no implied licenses granted hereunder.  Customer will not engage, and will not authorize or direct any third party to engage, in any act or omission that would impair any Intellectual Property Right of MCPc or any of its suppliers.  Any questions, comments, or feedback provided by Customer to MCPc regarding the Services and any other products, services, or materials provided by MCPc (collectively, “Feedback”) will be deemed non-confidential and non-proprietary information for purposes of these Terms. MCPc will have no obligation to Customer or any third party with respect to such Feedback, and be free to use and exploit such Feedback in any form or manner and for any purpose and without payment of any consideration to Customer or any third party.
       9.4               Unauthorized Products and Brand Protection.  Customer will not remove, deface, or obscure any MCPc (or its suppliers’) copyright or trademark notices and/or legends or other proprietary notices on, incorporated in, or associated with the Services.  Customer may not alter, unbundle or break the Software or Hardware down to components for distribution, transfer, resale or any other purposes. Customer is strictly prohibited from separating a Software license key from the associated Software and transferring the license key to a third party for any purposes.  If, in MCPc’s reasonable judgment, the original acquisition of Hardware or Software from MCPc (or MCPc’s authorized resellers, as applicable) occurred through unauthorized means, MCPc has no obligations to provide customer services or any support to Customer for the Hardware or Software in question or to allow any associated Software licenses to continue. 

10.   MISCELLANEOUS.
       10.1            Export.  Customer acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin. Customer agrees that it will not export or re-export the Services in any form without the appropriate United States and/or foreign government licenses. The Services are "commercial items," as that term is defined at 48 C.F.R. 2.101. Any technical data provided with the Services is commercial technical data as defined in 48 C.F.R. 12.211. All Services and Documentation constitute "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212, and are provided to the U.S. Government only as commercial end items. Consistent with 48 C.F.R. 12.211 through 12.212, 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government customers acquire the Services with only those rights set forth in this Agreement.
       10.2            Publicity.  Any and all press releases and other public announcements relating to the existence or terms of the Agreement or the related transactions between MCPc and Customer must be approved in advance by the Parties in writing. 
       10.3            Assignment.  Customer may not assign any right or delegate any obligation under this Agreement without MCPc’s written consent, which will be not unreasonably withheld. Customer may, upon notice but without consent, assign this Agreement and/or delegate obligations hereunder to the successor to Customer by merger or consolidation. MCPc may not assign any right or delegate any obligation under this Agreement without giving Customer written notice thereof.  MCPc will remain responsible for the discharge of obligations so delegated.  
       10.4            Severability.  If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such term or provision will not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the Parties.  Without limiting the generality of the foregoing, the limitation of liability provisions will apply notwithstanding any failure of essential purpose of any limited remedy set forth herein.
       10.5            Force Majeure.  Neither Party will be liable for any delay or failure in delivery or performance, other than the payment of money, due to causes beyond its reasonable control, which causes will include acts of God, acts of civil or military authorities, fire, strikes, power surges or outages, epidemics, quarantine restrictions, flood, natural disasters, riot, war, delays in transportation or inability to obtain necessary labor, materials or supplies not caused by a Party, or widespread and prolonged loss of use of the internet. In the event of any delay, the set date(s) of delivery and performance, if any, will be extended for a reasonable period, or, at the unaffected Party’s option, cancelled.
       10.6            Governing Law.  This Agreement will be governed exclusively by the laws of the State of Ohio without application of its conflict of laws principles. The applicability of the United Nations Convention on Contracts for the International Sale of Goods, and any other laws that direct the application of the laws of any other jurisdiction, are expressly excluded. Any suit relating to this Agreement will be instituted exclusively in any state or federal court in Cuyahoga County, Ohio, and the Parties submit to the exclusive jurisdiction of any such court.
       10.7            Notices.  Any notice or other communication hereunder will be in writing and will be effective upon personal delivery, or on the third (3rd) business day following deposit into the United States mail (certified mail, return receipt requested) or on the next business day if sent by a national overnight delivery service (with proof of delivery), addressed to such Party at the address set forth at the first page of this Agreement.
       10.8            Independent Contractors.  Each Party is an independent contractor and the Parties will not have the authority to bind, represent or commit the other. MCPc may use Customer’s name in its resumes or its client list. Nothing in this Agreement will be deemed or construed to create a joint venture, partnership or agency relationship between the Parties for any purpose.
       10.9            Waiver.  The waiver by a Party of any breach or default herein will not be deemed to be a waiver of any later breach or default of the same nature or of any other breach or default.  The exercise or failure to exercise any remedy will not preclude the exercise of that remedy at another time or of any other remedy at any time.  In order to be valid, any waiver, authorization, or approval by MCPc as required or permitted under this Agreement must be signed by MCPc’s Chief Financial Officer.
       10.10        Headings; Construction.  The headings used herein are for the convenience of the Parties only and will not affect the construction or interpretation hereof.  As used herein, the term “including” means “including without limitation”.
       10.11        English Version.  If the Agreement is translated into any language other than English, and if there is a conflict between the English version and the translated version, then the English version will prevail in all respects.
       10.12        Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument. The Agreement may be executed and delivered electronically or by facsimile and the parties agree that such electronic or facsimile execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each Party may use such electronic or facsimile signatures as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.

       10.13        Entire Agreement.  This Agreement, all exhibits attached hereto, and all documents referenced herein and therein, including all Order Documents (each of which is incorporated into this Agreement by this reference), constitutes the entire understanding between MCPc and Customer with respect to the subject hereof and thereof and supersede all prior agreements, arrangements, representations and communications, whether oral or written, in such regard.
 

EXHIBIT A
TERMS SPECIFIC TO HARDWARE PURCHASES

The terms contained in this Exhibit A, together with the terms contained in the General Terms and Conditions to which this Exhibit A is attached, will govern the purchase and sale of Hardware by MCPc to Customer.  In the event of a conflict between this Exhibit A and the General Terms and Conditions with regard to Hardware purchases and sale, the terms in this Exhibit A will take precedence for such purpose.

1.                   QUOTATIONS AND PRICING.  Any Hardware or pricing referred to in a MCPc quotation is subject to availability and does not constitute an offer by MCPc.  MCPc reserves the right to change prices for Hardware at any time, effective immediately upon notice to Customer for all orders of Hardware submitted following the effective date of such notice.

2.                   SHIPPING.  Products are shipped F.O.B. point of origin.  Title to Hardware (excluding any Software embedded on or provided with the Hardware) and risk of loss will pass upon MCPc’s delivery of Hardware to carrier. Customer will pay all shipping, handling, freight, delivery, customs, duties, taxes, special packing, and insurance charges for shipments of Hardware. Choice of carrier and shipping method and route will be at the election of MCPc.  All shipments will be made to the address specified in the applicable Order Document.  MCPc reserves the right to make delivery in installments, with all such installments to be separately invoiced and paid for individually, without regard to subsequent deliveries.  Delay in delivery of any installment will not relieve Customer of its obligation to accept remaining deliveries. Returns of Hardware will not be permitted unless expressly authorized in writing by MCPc.

3.                   DELIVERY.  MCPc will use commercially reasonable efforts to ship the Hardware to Customer’s delivery point, pursuant to any applicable terms of the Order Document.  Unless otherwise stated on an applicable Order Document, Customer acknowledges that it will accept delivery of such Hardware within twelve (12) months of providing MCPc with an executed Order Document for such Hardware.  MCPc agrees to assume and bear the entire risk of casualty or damage to the Hardware from any cause whatsoever from the date of shipment of a Hardware from MCPc’s dock to Customer’s premises.  Customer agrees to assume and bear the entire risk of casualty or damage to the Hardware from any cause whatsoever from the date of delivery acceptance at Customer’s premises.  No casualty or damage, after such delivery, will relieve Customer from the obligation to make payments or to comply with any other obligations under this Agreement. Customer’s acceptance of delivery of any Hardware hereunder will be deemed Customer’s acknowledgement that (a) all of the Hardware listed in the applicable Order Document has been received, and (b) such Hardware shows no obvious signs of physical damage.  Customer’s acceptance of delivery does not constitute or imply Customer’s acceptance of installation or that the Hardware is in working order.

4.                   ACCEPTANCE.  Upon receipt of Hardware, Customer agrees to inspect and/or test the Hardware. The Hardware will be deemed accepted by Customer unless Customer provides MCPc, within 10 days of the delivery date, a written notice specifying all defects or discrepancies in the quality or quantity of Hardware.

5.                   IF DELIVERY IS REFUSED.  If Customer refuses or fails to take delivery of Hardware provided in accordance with this Agreement, any risk of loss of or damage to the Hardware will nonetheless pass to Customer, without prejudice to any other rights or remedies MCPc may have, including: (i) MCPc will be entitled to immediate payment in full for the Hardware (and related Services) ordered, and either to effect delivery by whatever means MCPc considers appropriate, or to store Hardware at Customer’s sole risk and expense; (ii) Customer will be liable and pay on demand all costs of Hardware storage and additional costs incurred as a result of Customer’s refusal or failure to take delivery; and (iii) if Customer refuses to take delivery for thirty (30) days, MCPc may dispose of the Hardware ordered by Customer, at MCPc’s discretion. 

6.                   SECURITY INTEREST.  Customer hereby grants to MCPc a security interest and lien in the Hardware wherever located, and all replacements of the Hardware, or cash proceeds, to secure the obligations of the Customer to pay for such Hardware; provided, however, that MCPc agrees to release such security interest upon the reasonable request of the Customer in the event that Customer provides MCPc collateral in substitution therefor which is acceptable to MCPc in MCPc’s sole discretion. Customer will execute and return for filing all documents reasonably requested by MCPc for the perfection of such security interests, such as a form UCC-1, and MCPc may file a copy of this Agreement in connection therewith. Customer will not grant any lien to any third party on any Hardware or proceeds without the prior written consent of MCPc.

7.                   INSURANCE.  Until the purchase price and all related amounts for each unit of the Hardware is paid in full, Customer agrees, at its own cost and expense, to (a) keep such Hardware fully insured against loss; and (b) provide MCPc, at MCPc’s option, certificates or other evidence of such insurance reasonably acceptable to MCPc.
 

EXHIBIT B
TERMS SPECIFIC TO SOFTWARE LICENSES

 
The terms contained in this Exhibit B, together with the terms contained in the General Terms and Conditions to which this Exhibit B is attached, will govern the licensing of Software by MCPc to Customer.  In the event of a conflict between this Exhibit B and the General Terms and Conditions with regard to Software licenses, the terms in this Exhibit B will take precedence for such purpose.
1.                   LICENSE GRANT.  Subject to the terms and conditions of this Agreement (including Customer’s obligation to pay to MCPc any and all amounts when due), and subject to any third party license terms that are set forth below, or on the applicable Order Document, or on the applicable Software, MCPc grants to Customer a limited, nonexclusive, fully paid up, non-transferablenon-sublicensable license, in object code form only, to use the Software for Customer’s internal business purposes, by such number of users and during such period of time as may be set forth on the applicable Order Document.  In no event will the term of any license to the Software exceed the period during which Customer owns or leases the applicable Hardware (or any Customer-provided computers, if applicable).  In addition, Customer may: (a) use only the number of copies of the Software as identified in the Order Document; (b) use the related Software documentation only in connection with such use of the Software; and (c) make only one (1) machine-readable copy of the Software, which copy may be used only for internal non-production purposes.

2.                   TITLE.  Software is licensed, not sold.  Title to and ownership of the Software, documentation and MCPc Confidential Information, as well as any and all adaptations, modifications or derivative works thereto and any and all Intellectual Property Rights therein or relating thereto, will at all times remain with and vest in MCPc and its licensors.  Nothing in this license will be interpreted as conveying to Customer any rights in the Software or documentation other than those granted in Section 1 above.

3.                   RESTRICTIONS.  Customer agrees that it will not, and that it will not authorize or permit any third party to:
       (a)          sell, lease, transfer, license or sublicense any or all of the Software, documentation and/or MCPc Confidential Information or otherwise use any Software for the benefit of any sublicensee or third party;
        (b)          decompile, disassemble, re-program, analyze, reverse-engineer or create or attempt to create any derivative work or any other software based upon the Software or documentation or any portion thereof; or

        (c)           provide, copy, transmit, disclose, divulge, or make available to, or permit use of the Software or documentation by any third party or entity or machine (other than as expressly provided for herein) without MCPc’s prior written consent on a case by case basis, which may be granted or withheld in MCPc’s sole discretion.

 
4.                   OWNERSHIP.  Customer irrevocably assigns to MCPc and MCPc’s licensors all of Customer’s worldwide right, title and interest in and to any and all derivative works of the Software and documentation, as well as any and all any inventions or other subject matter developed relating to the Software; and all Intellectual Property Rights in or relating to any of the foregoing.  Customer agrees to perform all acts reasonably necessary to perfect the foregoing assignment and to enforce and defend the assigned Intellectual Property Rights.  If any or all of the foregoing subject matter is not assignable for any reason, then Customer hereby grants to MCPc a worldwide, perpetual, unrestricted, royalty-free, fully paid up, exclusive license, including the right to grant sublicenses, under all Intellectual Property Rights, to the non-assignable subject matter.  If, as a matter of law, any of the foregoing is not assignable or licenseable to MCPc as set forth above, Customer waives the enforcement against MCPc of any Intellectual Property Rights with respect thereto.   Except as otherwise stated herein (or in an Order Document), nothing in this Agreement will create any right of ownership or license in and to the other Party’s Intellectual Property Rights, and each Party will continue to independently own and maintain its Intellectual Property Rights.

5.                   TERMS APPLICABLE TO THIRD PARTY SOFTWARE.  MCPc will distribute the third party proprietary Software to Customer subject to the applicable third party licensor’s standard license terms (e.g., “shrink wrap” licenses) that will be provided to Customer by MCPc in printed or electronic form (by appearing on the applicable documentation or packaging materials, or on a computer screen when using the software or accessing a specified URL). In the event that Customer and the third party licensor have agreed to a software license agreement governing any software, the terms thereof will supersede the standard license terms.

6.                   SOFTWARE AUDIT.  For a period of the Term and three (3) years thereafter, or three (3) years from the time of creation of such a book, record or account, whichever is later, Customer will keep accurate books, records and accounts as are reasonably necessary to verify Customer’s compliance with this Exhibit B as it pertains to the use of the Software, and will, upon reasonable notice, permit MCPc or its representatives to inspect all such books, records and accounts and to make copies of or extracts from such books.  Any on-site audit conducted pursuant to this Agreement will be performed during normal business hours.  The audit will be performed at MCPc’s expense; provided, that the total cost of such audit will be promptly paid by Customer if such audit reveals an underpayment by Customer of greater than five (5%) percent of the amount payable by Customer to MCPc.  Any unpaid amounts that are discovered will be promptly paid by Customer, together with interest as specified in the General Terms and Conditions.  MCPc will minimize the disruption of Customer’s normal business activities to the extent reasonably practicable.

7.                   ARCHIVING AND BACKUP RESPONSIBILITIES.  Customer will be solely responsible for “backing up” and archiving its data and data generated by Customer’s internal use of the Software on a regular basis in accordance with Customer’s internal IT policies.

 

EXHIBIT C
TERMS SPECIFIC TO PROFESSIONAL SERVICES

The terms contained in this Exhibit C, together with the terms contained in the General Terms and Conditions to which this Exhibit C is attached, will govern the provision of installation, configuration, implementation, consulting, and other professional services (“Professional Services”) by MCPc to Customer.  In the event of a conflict between this Exhibit C and the General Terms and Conditions with regard to Professional Services, the terms in this Exhibit C will take precedence for such purpose.

1.       DEFINITIONS. 
       1.1               “Customer Materials” means the materials and technology owned or controlled by Customer which MCPc reasonably requires to perform the Professional Services.
       1.2               “Deliverables” means the materials, devices, products or other deliverables that are provided by MCPc to Customer as a result of performing Professional Services.

2.       OVERVIEW.  MCPc will provide such resources and utilize such employees and/or consultants as it deems necessary to perform the Professional Services.  The manner and means used by MCPc to perform the Professional Services desired by the Customer are in the sole discretion and control of MCPc.   

3.       COOPERATION.  Subject to the provisions of each applicable Order Document regarding the respective duties of MCPc and Customer, each of the Parties will cooperate with the other in fulfilling its obligations under such Order Document.  Except as otherwise stated in an Order Document, if any Services are performed at Customer’s location, Customer will provide appropriate computer hardware, software and communications resources, system and user documentation, office space, telephone service, copying, facsimile or business postage and general office supplies and support to MCPc as necessary to perform the Services. Customer acknowledges that MCPc’s performance under this Agreement is dependent on Customer’s timely and effective performance of Customer’s responsibilities, and Customer’s timely decisions and approvals.  In addition, Customer acknowledges that if the applicable Order Document specifies that Customer personnel are to work with MCPc in connection with an engagement, then Customer’s failure to assign sufficient Customer personnel having skills commensurate with their role with respect to such engagement could adversely affect MCPc’s ability to provide the Services pursuant to this Agreement. In the event that Customer’s delays impact MCPc’s ability to perform the Services, without limiting MCPc’s rights and remedies, MCPc’s performance will be excused until such time as Customer fulfills Customer’s performance obligations, which time may be further equitably adjusted until MCPc’s schedule will allow MCPc’s performance to recommence.

4.       RELIANCE ON CUSTOMER MATERIALS.  Customer acknowledges and agrees that MCPc may, in performing its obligations pursuant to this Agreement, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that MCPc shall be entitled to rely upon the accuracy, completeness, and legal sufficiency of such information in performing the Services.  In performing the Services, MCPc may be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of Customer; MCPc shall not be liable to Customer for any result obtained or not obtained as a consequence of Customer’s implementation of such advice or recommendations. Customer shall defend, indemnify, and hold MCPc harmless from and against any and all damages, expenses, costs (including reasonable attorneys’ fees and allocated costs of in-house counsel) and other liabilities arising from MCPc’s reliance on any information, data, or personnel provided by Customer to MCPc.
 
5.       SEGMENTATION.  Unless otherwise expressly set forth in this Agreement, a signed writing between the Parties or, as applicable, an Order Document, MCPc is not providing to Customer any Software or Hardware pursuant to this Exhibit C.  In the event MCPc provides Hardware and/or Software, such Hardware and/or Software, they will be deemed provided only under the General Terms and Conditions of this Agreement and the applicable exhibit(s) respectively, for the provision of such Hardware and/or Software.

6.       MILESTONE PAYMENTS.  In the event milestone payments are mutually agreed to by the Parties and set forth in an Order Document as to the performance of Professional Services as based upon certain milestone events (“Milestone Payments”), achievement of such milestone events by MCPc will thereby trigger the obligation by Customer to pay the applicable Milestone Payment as listed in the Order Document. Upon achievement of the milestone, MCPc will provide to Customer a statement showing achievement of the milestone and an invoice for the amount of the applicable Milestone Payment. 

7.       OWNERSHIP; LICENSES.  Subject to Customer’s continued compliance with the terms and conditions in this Exhibit C, MCPc grants to Customer a worldwide, non-exclusive, non-transferable, perpetual, fully paid license under the MCPc Intellectual Property Rights for the sole purpose of using the Deliverables in connection with its internal business operations.  Customer will have no rights to sublicense to third parties the rights granted hereunder except as necessary to allow Customer to carry out its internal business operations.  Customer Materials, to the extent known, will be identified in advance to MCPc.  Customer hereby grants MCPc a royalty-free, non-exclusive, world-wide license under Customer’s Intellectual Property Rights to use the Customer Materials for the sole purpose of enabling MCPc to perform the Professional Services and develop or prepare any Deliverables for Customer.
  

EXHIBIT D
TERMS SPECIFIC TO MANAGED SERVICES

The terms contained in this Exhibit D, together with the terms contained in the General Terms and Conditions to which this Exhibit D is attached, will govern the provision of managed services by MCPc to Customer (the “Managed Services”).  In the event of a conflict between this Exhibit D and the General Terms and Conditions with regard to Managed Services, the terms in this Exhibit D will take precedence, for such purpose.

1.                   GENERAL.  Customer may purchase Managed Services from MCPc pursuant to a mutually executed Order Document. Each Order Document will contain a specific reference to this Agreement, the name(s) of the Managed Service(s) to be provided to Customer, any special obligations of Customer and/or MCPc, a services term, and a schedule of invoicing and rates.  Customer hereby authorizes MCPc to provide the Managed Services, and agrees to cooperate with MCPc as directed by MCPc in MCPc’s performance of such services. 

2.                   TERM OF MANAGED SERVICE.  The Managed Services commence on the date listed in the SOW or the other Order Document and continues through the term (the “Term”) indicated thereon.  As applicable, the number of systems, licenses, installations, deployments, managed end points, or end users for which Customer has purchased the Managed Services, the rate or price, and the applicable Term for each Managed Service is indicated on the applicable SOW or other Order Document.  Unless otherwise agreed in writing between MCPc and Customer, purchases of Managed Service must be solely for Customer’s own internal use and not for resale or service bureau purposes.

3.                   RESCHEDULING.  Once Managed Services have been scheduled, any changes to the schedule must occur at least five (5) business days prior to the scheduled date. If Customer reschedules this service within five (5) business days or less prior to the scheduled date, the Managed Services will be billed and payable in full.  

4.                   PAYMENT FOR HARDWARE PURCHASED WITH MANAGED SERVICES OR OTHER SERVICES. Unless otherwise agreed to in writing, payment for Hardware shall in no case be contingent upon performance or delivery of consulting or Managed Services purchased with such Hardware.

5.                   COMMERCIALLY REASONABLE LIMITS TO SCOPE OF SERVICE.  MCPc may refuse to provide Managed Service if, in its opinion, providing the Managed Service creates an unreasonable risk to MCPc or MCPc’s Managed Service providers or if any requested service is beyond the scope of Managed Service. MCPc is not liable for any failure or delay in performance due to any cause beyond its control, including Customer’s failure to comply with its obligations under this Exhibit D.

6.                   OPTIONAL SERVICES.  Optional services (including point-of–need support, installation, consulting, managed, professional, support or training services) may be available for purchase from MCPc and will vary by Customer location.  Optional services may require a separate Order Document to be executed with MCPc. In the absence of such agreement, optional services are provided pursuant to this Exhibit D and will be billed and payable according to MCPc’s standard, then-current time and materials rates.

7.                   ASSIGNMENT. MCPc may assign or subcontract the Managed Services to qualified third party service providers.  MCPc will remain responsible for the performance of all Managed Services, regardless of whether performed by MCPc or a third party subcontractor.

8.                   CANCELLATION.  MCPc may cancel the Managed Services at any time during the Term for any of the following reasons:
       8.1               Customer fails to timely pay the total price for the Managed Services in accordance with the invoice terms;
       8.2               Customer is abusive, threatening, or refuses to cooperate with the assisting analyst or on-site technician; or
       8.3               Customer fails to abide by all of the terms and conditions set forth in this Exhibit D or the Agreement. If MCPc cancels this Service, MCPc will send Customer written notice of cancellation at the address indicated on Customer’s invoice.  The notice will include the  reason for cancellation and  the effective date of cancellation, which will be not less than ten (10) days from the date MCPc sends notice of cancellation to Customer, unless local law requires other cancellation provisions that may not by varied by agreement. If MCPc cancels the Managed Service pursuant to this paragraph, Customer shall not be entitled to any refund of fees paid or due to MCPc.

9.                    GEOGRAPHIC LIMITATIONS AND  RELOCATION. The Managed Services are not available at all locations. Service options, including service levels, technical support hours, and on-site response times will vary by geography and certain options may not be available for purchase in Customer’s location.  Customer is encouraged to contact Customer’s MCPc account executive representative for these details.

10.               SLA. Some Managed Services will be provided in accordance with service level agreements (“SLAs”). SLAs are for measurement and reporting purposes only. Any failure on the part of MCPc to satisfy any SLA will not entitle Customer to any credit or other remedy, unless otherwise expressly set forth in an Order Document.

11.               EXCLUSIONS. For the avoidance of doubt, the following activities are not included in the scope of Managed Services:
       11.1            Any services, tasks, or other activities other than those specifically included in the Order Document.
       11.2            Development of any intellectual property created solely and specifically for Customer.
       11.3            Cost of consumables, replacement parts, hardware, software, network upgrades, and associated services.
       11.4            Except as otherwise stated in the Order Document, all server, network device, and software upgrades.
       11.5            Manufacturer warranty parts and labor/services.
       11.6            Customer printers (whether standalone or network-attached).
       11.7            Any non-support or administrative-oriented activities such as technical projects, including PC deployments, hardware upgrades, and software installations or relocation of, or additions or changes to any of the foregoing items.
       11.8            Mass installation of software – new or re-installation.
       11.9            File restoration and data backup.
       11.10        Problems occurring in applications or devices not listed in the SOW or Order Document.
       11.11        Setup/configuration of new devices, PCs, or peripherals.
       11.12        Custom application support.
       11.13        Issues arising due to a device past the manufacturer’s “end of life” or being used for tasks for which the device was not designed or recommended.
       11.14        Any additional exclusions set forth in the Order Document.

12.               SERVICE REQUIREMENTS AND LIMITATIONS. The following service requirements and limitations apply:
       12.1            Periodic reboots for such devices as firewalls, routers, and services are required to apply/activate critical update patches and configuration changes. MCPc’s support services within this Agreement are predicated upon Customer’s support and commitment to providing time/scheduling for network device reboots with its staff and/or users.
       12.2            Virus mitigation, if any, within the scope of this Agreement is predicated on Customer satisfying recommended backup schemes and having appropriate anti-virus software installed and operational, with current updates, at all times.
       12.3            This Agreement and the Managed Services herein are contingent on Customer granting MCPc or MCPc’s subcontractor permission to have secure remote access into Customer’s network. Depending on the remote access solution utilized, additional connectivity charges may apply.
       12.4            MCPc is not responsible for Customer-made changes to the network, including if Customer’s or other third party personnel effect or affect configuration changes to managed network devices or servers.
       12.5            MCPc is not responsible for loss of use of the network or for any other liabilities arising from alterations, additions, adjustments, or repairs which have been made to the network other than by MCPc.
       12.6            MCPc reserves the right to suspend or terminate the Managed Service if conditions at the service site pose a health, safety, or security threat.
       12.7            Customer must provide a single point-of-contact to address service-related questions or issues.
       12.8            If any of the volumetric assumptions used to scope the Managed Service (including, time on task, locations, service consumption, and/or configuration factors, MCPc reserves the right to adjust the pricing to reflect such variances.

13.               GENERAL CUSTOMER REPONSIBILITIES.
       13.1            Access. Customer represents and warrants that it has obtained permission for both Customer and MCPc to access and use, whether remotely or in-person, Customer-owned or licensed software, hardware, systems, the data located thereon and all hardware and software components included therein, for the purpose of providing the Managed Services. If Customer does not already have that permission, it is Customer’s responsibility to obtain it, at Customer’s expense, before Customer asks MCPc to perform the Managed Services.  In addition, Customer acknowledges and agrees that MCPc requires remote access to Customer’s networks and systems in order to provide Managed Services.  Accordingly, Customer agrees to provide such access in order to enable MCPc to perform its obligations under this Agreement.  Customer further agrees that a failure to provide such access to MCPc will be deemed a knowing and voluntary waiver of MCPc’s obligations to provide the affected Managed Services.
       13.2            Customer Cooperation. Customer understands that without prompt and adequate cooperation, MCPc will not be able to perform the Managed Services or, if performed, the Managed Services may be materially altered or delayed. Accordingly, Customer will promptly and reasonably provide MCPc with all cooperation necessary for MCPc to perform the Managed Services. If Customer does not provide reasonably adequate cooperation in accordance with the foregoing, MCPc will not be responsible for any failure to perform the Managed Service, and Customer will not be entitled to a refund.
       13.3             On-site Obligations. Where Managed Services require on-site performance, Customer will provide (at no cost to MCPc) free, safe and sufficient access to Customer’s facilities and environment, including ample working space, electricity, safety equipment (if applicable) and a local telephone line. A monitor or display, a mouse (or pointing device), and a keyboard must also be provided (at no cost to MCPc), if the system does not already include these items.
       13.4            Data Backup. Customer will complete a backup of all existing data, software and programs on all affected systems prior to and during the delivery of the Managed Service. Customer should make regular backup copies of the data stored on all affected systems as a precaution against possible failures, alterations, or loss of data. Customer acknowledges that data security is Customer’s responsibility.  Notwithstanding security precautions that MCPc may, in its sole discretion, employ, the responsibility for security of Customer’s data and Customer’s data storage repositories, and for ensuring that any the disclosure of any data is legally compliant, rests solely with Customer and not MCPc.  Accordingly, MCPc cannot and does not guarantee the privacy, security, integrity or authenticity of any information or data used in connection with Managed Services. NOTWITHSTANDING ANYTHING SET FORTH IN THE AGREEMENT TO THE CONTRARY (INCLUDING BUT NOT LIMITED TO THE WARRANTIES, INDEMNIFICATION, AND/OR LIMITATION OF LIABILITY PROVISIONS SET FORTH THEREIN), IN CONNECTION WITH MANAGED SERVICES, MCPC WILL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY CLAIMING UNDER OR THROUGH CUSTOMER FOR:
• ANY OF CUSTOMER’S CONFIDENTIAL, PROPRIETARY OR PERSONAL INFORMATION;
• LOST OR CORRUPTED DATA, PROGRAMS OR SOFTWARE;
• DAMAGED OR LOST REMOVABLE MEDIA;
• THE LOSS OF USE OF A SYSTEM OR NETWORK; AND/OR
• ANY ACTS OR OMISSIONS, EXCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BY MCPC OR A THIRD-PARTY SERVICE PROVIDER ENGAGED BY MCPC.
MCPc will not be responsible for the restoration or reinstallation of any programs or data.
       13.5            Third Party Warranties. The Managed Services may require MCPc to access hardware or software that is not manufactured by MCPc. Some manufacturers’ warranties may become void if MCPc or anyone else other than the manufacturer works on the hardware or software. Customer will ensure that MCPc’s performance of Managed Services will not affect such warranties or, if it does, that the effect will be acceptable to Customer. MCPc does not take responsibility for third party warranties or for any effect that the Managed Services may have on those warranties.

 

EXHIBIT E
TERMS SPECIFIC TO STAFFING RESOURCES/STAFF AUGMENTATION

The terms contained in this Exhibit E, together with the terms contained in the General Terms and Conditions to which this Exhibit E is attached, will govern the provision of staffing resources/staff augmentation services by MCPc to Customer. In the event of a conflict between this Exhibit E and the General Terms and Conditions, the terms in this Exhibit E will take precedence.
1.       GENERAL. Customer may engage one or more MCPc employees or contractors (each, a “Staffing Resource”) from MCPc pursuant to a mutually executed SOW or other Order Document. Each SOW or other Order Document will contain a specific reference to this Agreement, the name(s) of the Staffing Resource(s) to be assigned to Customer, a description of the Staffing Resource’s(s’) role(s) with Customer, any special obligations of Customer and/or MCPc, a performance schedule or anticipated period of engagement (if applicable), and a schedule of invoicing and rates.

2.       CONVERSION. Customer will obtain the services of each person assigned as a Staffing Resource only through MCPc. If Customer wishes to obtain the person’s services by direct hire or by assignment, arrangement, or contract from a source other than MCPc, Customer may do so only by paying a fee based upon the time at which Customer wishes to hire or engage the Staffing Resource, pursuant to the table, below.
When Customer hires or engages a Staffing Resource, either directly or through a third party, Customer will pay a fee to MCPc based on a percent of the Staffing Resource’s annual compensation and how long they the Staffing Resource has been placed with Customer. Such amounts will not be subject to any limitation of liability provisions set forth in the General Terms and Conditions.  Below is the timeline to percent scale:
 

Timeline Hours Conversion Fee %
Direct Hire & 0 to 6 weeks 0 to 260 25%
6 Weeks to 3 Months 260 to 520 20%
3 to 6 Months 520 to 1040  15%
6 to 12 Months 1040 to 2080  5%
After 1 year >2080 0% (No Fee)

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