Masters Service Agreement

CONSCIOUS NETWORKS, INC. MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT (“MSA”) is by and between CONSCIOUS NETWORKS, INC. (“Company”) and ______________ (“Customer”) and is entered into as of the date it is accepted by Company following Customer’s execution (“Effective Date”).

  1. Services. Company will provide the Services described on EXHIBIT A (as the same may be modified from time to time by mutual written agreement of the parties) in accordance with the Agreement. The “Agreement” means this MSA plus all applicable EXHIBITS, schedules and any other documents that are expressly incorporated herein (collectively “Service Attachments”).
  2. Term. The term of the Agreement will commence on the Effective Date and continue until the expiration of the last Service term described on EXHIBIT A, unless earlier terminated in accordance with the Agreement (“Term”).
  3. Billing and PaymentBilling for each Service shall be as set forth on EXHIBIT B (as the same may be modified from time to time by mutual written agreement of the parties). Invoiced amounts are due in full within forty-five (45) days after the date of the invoice (“Due Date”). In addition to the Service charges, Customer will pay all applicable foreign, federal, state, or local taxes and charges assessed or incurred in connection with the Service, including without limitation, all governmental excise, use, sales, value-added, or occupational levies and environmental assessments or charges, regulatory administration and similar pass through fees, and other similar surcharges and levies, but excluding any taxes based on Company’s net income. Except for amounts disputed in good faith by Customer, any amount not received by the Due Date will be past due and subject to interest at the lesser of 1% per month or the highest rate permitted by applicable law, whichever is less. The prevailing party in any such collections action shall be reimbursed by the non-prevailing party for reasonable and necessary attorneys’ fees and costs incurred by the prevailing party in such collections action. Company may, upon 30 days prior notice, require a deposit if Customer has failed to pay its invoices by the Due Date three times in any twelve month period. To dispute a charge on an invoice, Customer must identify the specific charge in dispute and provide a written explanation of the basis of the dispute by the Due Date. The parties will work in good faith to resolve the dispute. If the parties determine that a disputed charge is in error, Company shall issue a credit or reverse the amount incorrectly billed. If the parties determine that a disputed charge was billed correctly, Customer’s payment shall be due no later than 10 days after Company provides notice of such determination. Customer’s failure to timely pay any undisputed invoice shall constitute “cause” for the Company to terminate this Agreement.
  4. Compliance and Security; Audit Rights. Each party shall comply with all laws and regulations applicable to the provision (in the case of Company) and use (in the case of Customer) of the Services provided hereunder. Company has adopted and implemented, and shall maintain throughout the Term, a corporate information security program designed to comply with applicable laws and protect Customer information, materials and data (“Customer Data”) from loss, misuse and unauthorized access or disclosure. Such program includes annual employee security awareness training and formal information security policies and/or procedures. Customer will ensure that all customer data stored or transmitted via the Service complies with all applicable laws and reasonable information security practices, including without limitation those relating to the encryption of data. In addition, as of the Effective Date, Company has completed a SAS70 Type II audit in certain data centers and intends to continue to conduct such audits under SSAE 16, ISAE 3402 or a similar standard. Customer will be entitled to receive a copy of the then-available SAS70 report, which is Company Confidential Information. The Company information security program is subject to reasonable changes by Company from time to time.

Customer and its authorized auditors, contractors or agents, at Customer’s own expense, shall have the right on no less than five (5) business days written notice to monitor, inspect, interview and audit the staff, facilities, documentation, systems, records, internal policies and controls, materials (“Audit Information”) of Company applicable to the Services and activities relating to this Agreement for the purpose of reviewing Company’s compliance and ability to comply with this Agreement, (including to audit any breaches or suspected breaches, compliance with confidentiality and applicable law and regulations, security and business continuity and disaster recovery and fraud or suspected fraud) to the extent such Audit Information is made available to Company customers. Customer’s authorized auditors, contractors or agents are required to enter into a mutually agreeable non-disclosure agreement and agree to comply with rules for any accessed Company facility. Company shall co-operate with Customer and give all information and explanations to Customer in relation to the Services and activities in connection with this Agreement as Customer or any such person shall reasonably request. For the purposes of clarification, no access will be given to areas of the data center to which Company does not generally allow access to its customers (e.g., areas which house equipment used to support services for multiple customers). Customer shall make reasonable efforts to exercise its rights in a manner that does not cause material disruption to Company’s business.

  1. Use of Service. Customer and its end-users, customers, agents or any other third parties who utilize or access the Services or Company data centers via the Services provided hereunder will not use or access the Services or any Company data center in a manner that: materially interferes with or harms the Company infrastructure or any third parties; is tortious or violates any third party right; or violates any policy of Company applicable to Customer (including, without limitation, Company’s Acceptable Use Policy) as the same may be modified, amended or established from time to time. Each of the foregoing shall constitute “cause” for the Company to terminate this Agreement. Company agrees to post current versions of all applicable Company policies to Company’s website. Customer agrees to defend, indemnify and hold Company harmless from third party claims, losses, damages, liabilities, costs and expenses, including, without limitation, reasonable attorneys’ fees arising from non-compliance with the preceding sentence.
  2. Termination. Either party may terminate the Agreement or affected Services upon thirty (30) days prior written notice in the event of a material, uncured breach of the Agreement by the other party. Customer may terminate for convenience this Agreement upon thirty (30) days prior written notice. Company may suspend the affected Service or terminate for cuase: (a) upon five (5) days’ notice in the event of any uncured payment default; or (b) upon notice in the event Customer violates Section 5. If Customer terminates for convenience, Customer will pay a termination charge equal to one month’s Services, plus all out-of-pocket costs incurred by or imposed upon Company (e.g., ordered equipment, licenses, carrier termination charges). If the Service or this Agreement is terminated by Company for cause, then, Customer shall be liable for: (a) an early termination charge, equal to 25% of the then current monthly charges for the affected Services multiplied by the number of months remaining in the Service term; (b) Service charges accrued but unpaid as of the termination date; and (c) any out-of-pocket costs incurred by or imposed upon Company (e.g., ordered equipment, licenses, carrier termination charges), which out-of-pocket costs were preapproved by Customer prior to Company agreeing to incur such costs. The parties agree that any termination charge set forth in the Agreement constitute liquidated damages and are not intended as a penalty. If a particular Service is terminated upon which another service is dependent, all such dependent services shall be deemed to be terminated as well.

In the event that this Agreement is terminated, regardless of the reason for such termination (except for payment default), or upon the expiration of this Agreement, Company will cooperate in good faith with Customer to assist with the orderly transition of the Services provided by Company under this Agreement to another service provider or to Customer itself. At Customer’s request, Company shall provide Transfer Assistance and such Transfer Assistance shall be provided for a minimum period of six (6) months after termination or expiration of this Agreement, unless a longer period is otherwise mutually agreed to by the parties. Transfer Assistance shall be provided at the same rates as for the Services, unless otherwise mutually agreed by the parties. “Transfer Assistance” means services to migrate the Services to another service provider or to Customer itself upon the termination or expiration of this Agreement. Transfer Assistance Services shall include such services as mutually agreed upon by the parties, including, but not limited to, Company providing Customer assistance in obtaining any third party services that Company may have used in connection with the performance of the Services.

  1. Disclaimer of Warranties. THE SERVICES AND ANY RELATED EQUIPMENT, SOFTWARE AND OTHER MATERIALS PROVIDED BY COMPANY IN CONNECTION WITH THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, COMPATIBILITY OF SOFTWARE OR EQUIPMENT, OR ANY RESULTS TO BE ACHIEVED THEREFROM. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS THAT ANY SERVICE WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF HACKING OR SIMILAR MALICIOUS ACTIVITY, OR ANY ACT OR OMISSION OF THE CUSTOMER.
  2. Limitation on Liability. NEITHER PARTY, NOR ITS AFFILIATES, CONTRACTORS, SUPPLIERS OR AGENTS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, CONSEQUENTIAL DAMAGES, ANY LOST OR IMPUTED PROFITS OR REVENUES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY. THE TOTAL AGGREGATE LIABILITY OF EACH PARTY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO TWENTY-FOUR (24) TIMES THE MONTHLY RECURRING CHARGE PAID OR PAYABLE IN THE MONTH IMMEDIATELY PRECEDING THE DATE IN WHICH THE CLAIM ARISES. THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO (I) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER; (II) CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 5; (III) EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9; (IV) COMPANY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10, BUT ONLY TO THE EXTENT SUCH CLAIM IS WITH RESPECT TO COMPANY-OWNED TECHNOLOGY; OR (V) A BREACH BY A PARTY OF SECTION 11, BUT ONLY TO THE EXTENT SUCH CLAIM ARISES FROM A BREACH OF CONFIDENTIALITY RELATED TO A PARTY’S CONFIDENTIAL INFORMATION EXCHANGED WITH RESPECT TO THE FORMATION AND IMPLEMENTATION OF THE AGREEMENT.
  3. General IndemnitiesEach party (the “Indemnifying Party”) agrees to defend at its expense and indemnify and hold harmless the other party (the “Indemnified Party”) and its partners, affiliates, employees, agents, successors and assigns from any and all losses, costs, damages, liabilities and expenses (including, without limitation, reasonable legal fees and expenses) arising from or in connection with: (i) the death or bodily injury of any person caused by the gross negligence or willful misconduct of the Indemnifying Party; or (ii) the damage, loss or destruction of any real or tangible personal property caused by the gross negligence or willful misconduct of the Indemnifying Party.
  4. Intellectual Property Infringement. Company shall, at its own expense, indemnify, defend and hold harmless Customer against any claim, demand or suit made or brought against Customer by a third party alleging that Customer’s use of the Services as allowed hereunder infringes or misappropriates the patent, copyright, or trademark rights of a third party and Company shall pay any costs of settlement or any damages finally awarded against Customer.  Company shall have no obligation hereunder to the extent that a claim arises from (a) the combination, use or operation of any Services with any service or product not provided by Company (other than combinations approved in writing by Company); (b) any modification of the Services made by Customer or by any party at Customer’s direction; (c) use by Customer other than the then current unaltered release of any software used in the Services, or (d) use or operation by Customer or its agents or contractors of the Service other than in accordance with this Agreement.  This Section 10 provides the sole and exclusive obligations and remedies of the parties in connection with any third party claim, suit or other demand described herein.
  5. Confidentiality. “Confidential Information” means non-public information of the parties hereto relating to their business activities, financial affairs, technology, marketing or sales plans that is exchanged by the parties in the formation and implementation of the Agreement. Confidential Information includes the terms and pricing of the Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information. All Confidential Information furnished by a party in tangible form to the other in the course of performing under this Agreement shall remain the property of and be deemed proprietary to the disclosing party. Each party agrees: (i) to receive such Confidential Information in strict confidence and not disclose it to any third party without the prior written consent of the disclosing party; (ii) to accord such Confidential Information at least the same level of protection against unauthorized use or disclosure that the receiving party customarily accords to its own confidential, proprietary or trade secret information of a like nature, but in no event less than reasonable care; and (iii) to use such Confidential Information solely and exclusively for the purposes of and in accordance with the terms of this Agreement. In the event of any disclosure or loss of, or inability to account for, any Confidential Information of the disclosing party, the receiving party shall notify the disclosing party promptly upon becoming aware thereof. The provisions of this Section 11 shall survive the termination or expiration of this Agreement for any reason. Promptly following the termination or expiration of this Agreement for any reason, and as the disclosing party elects, the receiving party shall either destroy or deliver to the disclosing party all Confidential Information of the disclosing party in the receiving party’s possession, custody or control in whatever form held (including without limitation all documents or media containing any of the foregoing and all copies, extracts or embodiments thereof). Except for Company’s gross negligence or willful misconduct, Company is not responsible for unauthorized access to, or alteration, theft, or destruction of, Customer Confidential Information or Customer Data, programs or other information through accident, wrongful means or any other cause while such information is stored on or transmitted across Company-provided network or data center facilities.

Company shall promptly deliver up, or provide access to, or destroy Customer Data, at the request of Customer. In event Customer purchases back-up services from Company, Company shall back-up Customer Data in the possession or control of Company hosted on Company systems in accordance with Company’s product-specific Service guide, which Company may modify from time to time, effective upon posting on Company’s website.

  1. Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its principles for resolving conflicts of law. In the event of litigation, each party expressly waives its right to have its claims or defenses heard by a jury. In the event that any dispute arises between the parties with respect to the interpretation or implementation of this Agreement, or any rights, responsibilities, duties, entitlements or obligations arising hereunder, the parties will discuss the dispute and negotiate in an effort to resolve it without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of: (i) each of the parties has concluded that amicable resolution through continued negotiation does not appear likely; or (ii) thirty (30) calendar days after the initial request to negotiate the dispute; provided that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief.
  2. Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement (other than a failure to comply with payment obligations) due to an event beyond a party’s reasonable control, including, but not limited to acts of God, war, civil commotion, terrorism, fire, explosion, or other event that causes a failure or delay in a party’s performance under the Agreement without the fault or negligence of the non-performing party (each a “Force Majeure Event”). If a Force Majeure Event prevents the provision of Service for a period of 30 days, either party may terminate the affected Service by providing 30 days written notice to the other party.
  3. Notices. All notices required to be given hereunder shall be in writing and deemed given if sent to the addressee specified below either (a) by registered or certified U.S. mail, return receipt requested, postage prepaid, three days after such mailing; or (b) by national overnight courier service, the next business day. Other routine operational notices (e.g., notice reminder of non-payment) may be sent via facsimile or email and will be deemed given on the day such notice is delivered.

To Company:

1934 Old Gallows Rd.
Suite 350
Vienna, VA 22182

To Customer:

To the address set forth on the signature page hereof.

  1. Insurance. Each party shall carry and maintain during the Term, at its own cost and expense, insurance as follows (and provide the other with proof upon request): for Customer, commercial general liability $1 million per occurrence and $2 million aggregate; and for Company, $1 million per occurrence and aggregate for commercial general liability and $1 million per occurrence and aggregate for errors and omissions, including miscellaneous professional services, technology, electronic media, network security and privacy liability. Upon request, Company shall provide evidence of such insurance.
  2. Maintenance. Customer acknowledges that the Services may be subject to routine maintenance or repair and agrees to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair.
  3. Waiver. Except as otherwise expressly set forth in the Agreement, neither party’s failure to insist upon strict performance of any provision of the Agreement shall be construed as a waiver of any of its rights hereunder. Neither the course of conduct between parties nor trade practice shall act to modify any provision of the Agreement.
  4. Miscellaneous. All provisions in the Agreement which by their nature are intended to survive expiration or termination shall so survive, including, without limitation, Company’s right to be paid for undisputed past due invoices. If any term of the Agreement is held unenforceable, the unenforceable term shall be construed as nearly as possible to reflect the original intent of the parties and the remaining terms shall remain in effect. The Agreement is intended solely for Company and Customer and does not provide any third party with any right or benefit. Neither party may assign this Agreement or any portion hereof without the other party’s prior written consent, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, either party may assign this Agreement or a portion thereof: (i) in the event of a merger in which the party is not the surviving entity; (ii) in the event of a sale of all or substantially all of its assets; or (iii) to any party that controls, is controlled by or is in common control with such party.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Except as otherwise set forth herein, all amendments to the Agreement shall be in writing and signed by the parties’ authorized representatives. This MSA together with all applicable Service Attachments constitutes the entire agreement of the parties with respect to the subject matter hereof and thereof, and supersedes any other prior or contemporaneous agreement or understandings, whether oral or written, related to the subject matter hereof and thereof. All modifications to the Agreement which are not mutually agreed to in writing are null and void.