Microsoft Cloud Agreement – Master Services Agreement

1. Term. The term of this Agreement is for one year from the Effective Date and shall automatically renew for additional one-year terms until termination by either Party as agreed to below. In addition, the term of this Agreement shall survive until any Statement of Work issued pursuant to this Agreement has been complete.

2. Consulting Services. Company agrees to provide consulting and support services to Client, based upon Client needs as outlined in the unique Statements of Work approved by Client, which shall reference this Agreement.

3. Travel. Travel costs for all services are in addition to the quoted costs, and will be charged at cost plus per diem. Travel estimates will be identified in each Statement of Work under this Agreement.

4. Payment. Company will be paid based on the work and at the rates quoted in each Statement of Work created under this Agreement. Each Statement of Work will identify if it is a Firm Fixed Price, Time & Materials, Monthly Managed Services or Software/Hardware Purchase engagement. Client agrees to pay Company any undisputed amounts within thirty (30) calendar days of receipt of invoice. Invoices not rejected or partially rejected within 15 days after acceptance shall be deemed accepted. An interest rate of 1.5%, or the maximum amount allowable by law, will be charged monthly for past due invoices, and Clientagrees to pay for all cost of collection of past due invoices, including reasonable attorneys’ fees.

A.Time & Materials: Every effort has been made to provide Client with an accurate estimate. Client agrees that the actual amount may be more or less, based upon actual Client requirements. Company will bill actual time and material expenses incurred on a monthly basis, with separate invoices issued for each Statement of Work. Company may invoice up to 10% over the approved project value per each Statement of Work created under this Agreement without a change order, in order to cover actual time spent. Client shall not be liable to Company for payments exceeding 110% of the approved project value per each Statement of Work created under this Agreement until such time as the Parties execute a written change order mutually agreeing to a revised project value.

B. Firm Fixed Price: Milestone Payments as identified in a Statement of Work will be invoiced within 5 business days of completion of the Milestone, or transmission of any Deliverable(s).

C. Monthly Managed Services: Invoices will be delivered at the first of each month for all managed services to be provided during that month.

D. Software/Hardware Purchase:

1. Azure Services: Invoiced Monthly based on actual usage for the previous billing period.

2. Office 365 GCC / GCC High through the AOSG Program: Invoiced yearly for the amounts identified in the associated quote.

3. Office 365 Commercial / GCC through the CSP Program: Annual contract invoiced monthly based on usage for the previous billing period.

4. Hardware: Invoiced immediately upon purchase for the amounts identified in the associated quote / statement of work. Shipping and Handling charges, if any, will be billed at cost.

5. Other: Invoicing and Specific terms are identified in the associated quote / statement of work.

5. Acceptance. Unless agreed otherwise, Deliverables related to any development milestone shall be delivered on the date set forth herein. Company shall give Client the best advance notice practical should it not be able to deliver a Deliverable against a development milestone in a timely fashion, and shall provide any relevant information related to issues associated with any delay in delivery. Upon delivery of a Deliverable, Client shall diligently inspect and test the Deliverable to determine if it is acceptable and meets the agreed-upon specifications and requirements. As soon as reasonably practical, the Client shall notify Company whether the Deliverable is accepted, or if it is rejected. In the event a Deliverable is rejected, the Client shall communicate to Company specific reasons why the Deliverable has been rejected along with relevant data supporting such rejection. Company shall as soon as reasonably practical respond to the Client with respect to any rejected Deliverable and the Parties shall work to resolve outstanding issues. Any Deliverable that has been delivered but not accepted or rejected within 15 days shall be deemed accepted.

6. Change Order Process. Company strives to be as accurate as possible during our initial project scoping. However, there is always the possibility that modifications may be necessary based on changing timelines, service additions or modifications, or other changes to an agreed upon Statement of Work. In order to effectively handle these changes, Company has a Change Order process that ensures both Company and the Client approve all modifications in writing. Company will manage the Change Order process, and will route the necessary change request documentation through the Client’s project contact. The signed change request must be approved, in writing, by the responsible Client point of contact Identified in the Statement of Work before work may commence on changes to the engagement.

7. Termination. With the exception of Managed Services and Software Subscriptions, this Agreement shall be terminable at will by either Party upon giving thirty (30) days prior written notice of such Party’s desire to terminate this Agreement, provided, however, in the event of a material breach of either Party’s obligations hereunder, the non-defaulting Party may terminate this Agreement immediately without notice. Client is liable for all services rendered through the date of termination.  Managed Services and Software Subscription terminations are governed by the signed Statement of Work or Quote for each service.

8. Confidentiality. In the process of the negotiation and performance of this Agreement, both Parties may provide each other certain confidential or proprietary information regarding their business operations (collectively, the “Information”). Such Information, whether provided either directly or indirectly, in oral, written, graphic or any other form will be deemed confidential and proprietary and subject to restricted use and limited distribution, regardless of whether it is identified as being confidential and proprietary at the time of disclosure. The receiving Party will: (a) hold such information in confidence and protect it with at least the same degree of care with which it protects its own confidential and proprietary Information; (b) not copy or duplicate such Information without the disclosing Party’s prior written approval; (c) restrict disclosure of such Information only to those employees with a need to know; (d) promptly notify the disclosing Party in the event that the receiving Party becomes legally compelled in a judicial, administrative or governmental proceeding to disclose any of the Information; and (e) advise the disclosing Party promptly upon becoming aware of any loss, disclosure, or duplication of the Information or breach of the confidentiality of the Information. The receiving Party’s obligations with respect to any portion of the disclosing Party’s Information will terminate when the receiving Party can document that such portion of the disclosing Party’s Confidential Information: (a) was in the public domain at the time it was communicated to the receiving Party by the disclosing Party; (b) entered the public domain subsequent to the time it was communicated to the receiving Party by the disclosing Party through no fault of the receiving Party; (c) was in the receiving Party’s possession free of any obligation of confidence at the time it was communicated to the receiving Party by the disclosing Party; (d) was rightfully obtained by the receiving Party from a third party under no obligation of confidentiality to the disclosing Party; or (e) was independently developed by the receiving Party without use of the Information of the disclosing Party. Any obligation of confidence with respect to the Information shall terminate three years after termination of this Agreement.

9. Independent Contractor. Both Client and Company agree that Company will act as an independent contractor in the performance of its duties under this contract, and is not an employee, partner, or agent of the Client. Accordingly, Company shall be responsible for payment of all taxes including Federal, State, and local employment taxes arising out of Company’s activities, including Federal and State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or business licenses fees as required. Company has the right to perform services for others during the term of this Agreement. Company will furnish personal equipment and materials used to provide the services required by this Agreement, unless specified and agreed upon in written proposals. However, Company is never under any obligation to provide any software or any hardware to complete any duty under this Agreement unless specifically called out in a Statement of Work. Company will only work with fully licensed, legal copies of software. Refusal to work with licenses that do not comply with the software licensing agreement between the Client and the software manufacturer shall not constitute a breach of this Agreement. In the event of an emergency, Company has the right to send a qualified substitute consultant.

10. Limitations. To the fullest extent permitted by law, neither Party shall be liable for any consequential, indirect, or exemplary, damages, or lost profits revenue or data use related to this Agreement whether arising under contract, tort, or any other theory of liability. With the exception of personal injury or breach of confidentiality, in no event shall Company’s liability pursuant to this Agreement exceed payments received by Company related to the amount paid pursuant to the Statement of Work under which any claim arises.

11. Notices. All notices required under this Agreement will be deemed properly served when reduced to writing and sent to the addresses set forth above by (a) certified or registered mail, (b) overnight courier, (c) electronic mail, or (d) personal delivery and the date of such notice will be deemed to have been the date on which such notice is delivered as shown by the certified mail return receipt or a commercial delivery service record, or in the case of electronic mail, on the date of receipt of the transmission as shown on a successful transmission confirmation receipt.

12. Amendment. This Agreement may only be amended or modified by a written agreement signed by both Parties.

13. Severability. If any clause or provision herein shall be adjudged invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clause or provision, which shall remain in full force and effect.

14. Third Party Services and Software. In performance of this Agreement, Company may provide services or software from a third party, and Client acknowledges that such services or software form a third party shall be subject to additional licensing agreements with Company or third party. Company may modify those third party services without notification to Client. If the third party software or service experiences a failure, Company will attempt to work around the failure but Company is not responsible for the failure.

15. Warranty. Services performed pursuant to any Statement of Work shall be performed in a professional manner pursuant to the agreed-upon Statement of Work, and Deliverables delivered shall comply with the agreed-upon Statement Work when delivered. This is the sole warranty of Company, and the sole remedy for Client with respect to this warranty and this Agreement shall be reperformance of any noncompliant Services or refund of any fees paid relating to the noncompliant Services, at Company’s option.

16. Insurance. During the term of this Agreement, Company shall maintain comprehensive general liability insurance, including coverage for owned contractual liability for the services it is providing under this Agreement, from a reputable insurance carrier with coverage of $1,000,000.00 general liability per incident, $1,000,000 in cyber liability, $1,000,000 in Errors and Omissions coverage, and such coverage may be partially provided by Umbrella Liability coverage.

17. Import/Export. With regard to each Party’s respective obligations under and performance of this Agreement, each Party shall at all times comply with all export/import laws (including re-export), sanctions, regulations, orders, and authorizations (including the Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC)) that are applicable to the export or import of goods, software, technology, or technical data (“Items”) or services (collectively, “Export/Import Laws”). The Party conducting the export or import shall obtain all export or import authorizations which are required under the Export/Import Laws for such Party to execute its obligations under this Agreement. Each Party shall reasonably cooperate and exercise reasonable efforts at its own expense to support the other Party in obtaining any necessary licenses or authorizations required to perform its obligations under this Agreement. Reasonable cooperation shall include providing reasonably necessary documentation, including import, end user and re-transfer certificates. The Party providing Items or services under this Agreement shall, upon request by the other Party, notify the other Party of the export classification (e.g. the Export Control Classification Numbers or U.S, Munitions List (USML) category and subcategory) of such Items or services as well as the export classification of any components or parts thereof if the classification is different from the export classification of the Item or service at issue. The Parties acknowledge that this representation means that an official capable of binding the Party providing such Items or services knows or has otherwise determined the proper export classification. Each Party agrees to reasonably cooperate with the other in providing, upon request by the other Party, documentation or other information that supports or confirms this representation.

18. Exclusive Agreement. This Agreement and any mutually agreed Statement of Work supersedes all prior contracts and understandings, verbal or electronic, between the parties, including any additional or different terms relating to Client’s purchase order.. This Agreement shall take precedence in the event of conflicting terms in any related Statement of Work.

19. Third Party Rights. This Agreement is entered into between the Parties and there are no intended third-party beneficiaries, and no third party shall have any rights pursuant to this Agreement.

20. Disputes/ Law: Any dispute arising under or related to this Agreement shall be mediated by the Parties prior to any litigation by a mediator selected from the Mediator Roster maintained by the Maryland Center for Dispute Resolution. This Agreement will be governed by the laws of the state of Maryland, except its choice of law provisions, which would require the application of different law, and the state or federal courts having jurisdiction in Anne Arundel County, Maryland shall have exclusive jurisdiction and venue to resolve disputes related to or arising under this Agreement, and each Party consents to such jurisdiction.

21. Force Majeure. Neither Party shall be liable to perform its obligations hereunder where such failure is a result of acts of nature (including but not limited to fire, flood, earthquake or other natural disaster), acts of God, war, government regulation, civil disorder, or terrorist activities, or other event outside the reasonable control of a Party.

22. Survival. Section 4. Payment; Section 8.Confidentiality; Section 10. Limitations; Section 15. Warranty, and any other sections which by their nature do so, shall survive termination or expiration of this Agreement.

23. Nonsolicitation. Without the prior written permission of the other Party, each Party agrees, during the term of this Agreement and for a period of 12 months following its termination or expiration, not to directly or indirectly solicit for employment or hire any employees of the other Party with whom such Party had contact, or who became known to such Party, in connection with this Agreement. A general advertisement for employment position shall not be deemed to be a direct or indirect solicitation for the purposes of this provision.

24. Customer Satisfaction: In order to ensure long-term customer satisfaction, Company provides customer satisfaction surveys via email to our clients at the end of each engagement. Company uses these surveys to improve our customer response and sensitivity to the needs of our customers.Maryland