Groff NetWorks – Terms

TERMS AND CONDITIONS

1. Services. During the Term, Groff shall furnish to Client certain information technology services (the “Services”), as more completely described on the Groff Statement of Work. Client agrees that Groff is responsible only for furnishing the Services, and Groff is not responsible for furnishing any services or performing any tasks not specifically set forth on the Groff Statement of Work. The Services shall include neither management functions relating to Client’s business nor any management decision-making. Groff will not commence the Services until the Groff Statement of Work is signed, accepted and delivered by Client to Groff.

2. Additional Services. From time to time and throughout the Term, Groff may furnish certain additional services to Client not originally contemplated as part of the Services, including, but not limited to, facilitating and assisting with hardware and software purchases and updates (the “Additional Services”). Groff shall not be obligated to provide the Additional Services until the same are set forth in a writing mutually agreed upon by the Parties, which writing shall specifically cite the Groff Statement of Work and these Terms and Conditions (the “Additional Services Agreement”). The Additional Services Agreement shall set forth the compensation to be provided by Client to Groff for the provision of the Additional Services, which compensation shall be in addition to the Fees.

3. Fees. As consideration for the Services to be furnished by Groff, Client shall compensate Groff in the amount set forth on the Groff Statement of Work (the “Fees”). The Fees shall be due, in advance, on the 1st day of each calendar month during the Term. The first payment of Fees shall be due on the Effective Date. If the Effective Date falls on a date other than the 1st day of a calendar month, said first payment shall be prorated based upon a 30-day month. If Client fails to pay any Fees for any reason, or if Groff is unable to effectuate a ACH (debit) deposit for the Fees for any reason, by the 10th day of any calendar month during the Term, a late charge of the greater of one and one-half percent (1.5%) per month, or the maximum allowable under applicable law, shall also be due and payable by Client to Groff. In addition, the Client’s failure to fully pay any Fees within fifteen (15) days after such Fees are due shall be deemed a material breach, justifying: (i) suspension of Groff’s obligation to furnish the Services, which action may be taken in Groff’s sole discretion; or (ii) the immediate termination of this Agreement by Groff, which may be taken in Groff’s sole discretion. Notwithstanding the foregoing, any suspension of Groff’s obligation to furnish the Services under this Section 3 shall not relieve Client from its obligation to pay any and all current or past due Fees, plus all late fees thereon. In the event Groff commences collection enforcement, Client shall be responsible for any costs associated with such collection including, but not limited to, reasonable attorneys’ fees and collection agency fees.

(a) Fees for Additional Services. All terms and conditions imposed upon Client for the payment of the Fees as consideration for the Services shall likewise be imposed upon Client for the payment of all additional consideration due Groff for any Additional Services, unless otherwise agreed upon by the Parties in the Additional Services Agreement.

(b) Survival of Payment Obligations. Client expressly acknowledges and agrees that all of its payment obligations arising under this Agreement shall survive the expiration or earlier termination of this Agreement.

(c) Fee Increases. Upon annual renewal, fee increase will be three percent (3%) of the pre-tax invoice amount for each Additional Term entered into by the Parties. Increase in the Fees shall take effect on the anniversary of the Effective Date. Client expressly acknowledges and agrees to Groff’s right to increase the Fees pursuant to this Section 3(c).

(d) ACH Payment. Client shall pay the Fees set forth herein by ACH. Client hereby authorizes Groff to initiate debit entries on behalf of Groff to debit the Fees from Client’s account provided on the Groff Statement of Work, and to do so on or about the 1st day of each calendar month during the Term, as well as the Effective Date. No further authorization shall be needed from Client to debit its account pursuant to this Section 3(d). In the event any amounts in addition to the Fees become due and owing to Groff hereunder, but for any late payments, Groff shall receive authorization from Client prior to effectuating any such debit entries, which authorization may be via e-email or in any other writing permitted hereunder.

4. Travel Expenses. If a Client’s place of business is located within forty (40) miles of Troy, New York, the Parties acknowledge and agree that the Fees set forth on the Groff Statement of Work shall include all travel costs incurred by Groff when providing that Client with the Services on-site. If a Client’s place of business is located more than forty (40) miles from Troy, New York, the Parties acknowledge and agree that, in addition to the Fees, Groff may charge that Client for all of its reasonable travel expenses (the “Travel Expenses”).

5. Term and Termination. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall expire on the one (1) year anniversary thereof; provided, however, that unless otherwise terminated in accordance herewith, the Term shall automatically renew for successive one (1) year terms (each, an “Additional Term”), each of which shall be deemed a part of the Term and shall be governed upon the same terms and conditions set forth in this Agreement, unless stated otherwise herein.

(a) Trial Period. For a period of ninety (90) days commencing on the Effective Date (the “Trial Period”), either Party may terminate this Agreement by providing written notice to the other Party, which termination shall become effective on the last day of the subsequent month following the date such notice is received.

(b) Termination by Groff. Groff may terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from Groff of non-payment; and/or terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice from Groff; and/or suspend service pursuant to Section 3. if the monthly payment is not received within five days following the date due. Notwithstanding anything herein to the contrary, Groff may terminate this Agreement immediately if there has been a material violation or breach by Client of any covenant or agreement or failure of any representation or warranty under this Agreement. If Groff elects to terminate this Agreement immediately due to a material violation or breach by Client, Groff shall provide written notice to Client of the same, which termination shall become effective on the date such notice is received. In the event Groff terminates this Agreement for any reason set forth herein, Groff shall not have any further duties or obligations to Client hereunder, and all Fees owed by Client to Groff through the date of termination shall be paid to Groff within fifteen (15) days of the date of termination.

(c) Termination by Client. After the expiration of the Trial Period, Client shall have the right, at any time during the Term, to terminate this Agreement upon written notice to Groff, which termination shall become effective at the expiration of the Term or the then-current Additional Term, but only if such notice is received at least thirty (30) days prior to the expiration of the Term or the then-current Additional Term. All fees owed by Client to Groff up to the date of termination shall be paid to Groff within fifteen (15) days of the date of termination. Notwithstanding the foregoing, in the event Client notifies Groff in writing of an alleged default hereunder, Client shall have the right, again upon written notice to Groff, to terminate this Agreement if Groff has failed to cure such default within thirty (30) days of Client’s original written notice (or, if such default is not reasonably curable within thirty (30) days, if Groff has not commenced in good-faith to cure such default within such time period).

(d) Mutual Termination. Nothing herein shall be deemed to prohibit the Parties from mutually agreeing to terminate this Agreement at any time. In such event, all Fees owed by Client to Groff through the date of termination shall be paid to Groff within fifteen (15) days of the agreed-upon date of termination.

6. Confidentiality. Each Party agrees, at all times during the Term and thereafter, to hold in strictest confidence and not to use (except to the extent necessary to perform its obligations hereunder) or to disclose to any person, firm, corporation or other entity, without written authorization of the other Party, any Proprietary Information, as hereinafter defined. Each Party further agrees not to make copies of such Proprietary Information except as authorized by the other Party (except to the extent necessary to perform its obligations hereunder).

(a) Proprietary Information. Each Party understands that “Proprietary Information” means any Groff or Client proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, suppliers, Client lists and Clients, prices and costs, markets, software, developments, inventions, notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, software, marketing, licenses, finances, budgets or other business information disclosed to a Party by the other Party, either directly or indirectly in writing, orally or by drawings or observation or created by a Party during the Term. Each Party understands that Proprietary Information also includes, but is not limited to, information pertaining to any aspects of the other Party’s business which is either information not known by actual or potential competitors of the other Party, or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the other Party, whether of a technical nature or otherwise. Each Party further understands that Proprietary Information does not include any of the foregoing items which have become publicly and widely known and made generally available through no wrongful act of a Party or of others who were under confidentiality obligations as to the item or items involved.

(b) Prior Obligations. Each Party represents that its performance of all terms of this Agreement will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by it prior or subsequent to the commencement of this Agreement, and neither Party will disclose or use any inventions, confidential or non-public proprietary information or material belonging to any previous client, employer or any other party.

(c) Required Disclosure. In the event either Party receives a request from a court of competent jurisdiction, a governmental body or any other third party to disclose all or part of the other Party’s Proprietary Information, each Party agrees, to the extent it may lawfully do so, to: (i) immediately notify the other Party of the request and the circumstances surrounding the request; (ii) give the other Party a reasonable opportunity to take defensive legal action; and (iii) if disclosure is required, furnish only that portion of the Proprietary Information which is required to be disclosed.

(d) Return of Proprietary Information. Each Party agrees that, upon the termination of this Agreement, it will deliver to the other Party (and will not keep in its possession, recreate or deliver to anyone else) any and all Proprietary Information of said Party and any and all devices, records, data, notes, reports, proposals, lists, correspondence, sketches, materials, equipment and other documents or property, or reproductions thereof, developed by said Party during the Term or otherwise belonging to the other Party, its successors or assigns. Either Party may require the other Party to provide an affidavit from an authorized individual confirming its compliance with this Section 6(d) within fifteen (15) days of the termination of this Agreement.

7. Representations and Warranties of Client. Client represents and warrants to Groff each of the following: (a) Client is duly-incorporated and validly existing under the laws of its State of domicile, and is in good standing in such State; (b) Client has the power to execute and deliver this Agreement and to consummate the transactions contemplated hereby; (c) this Agreement, and the performance by Client of its obligations hereunder, have been duly and validly authorized by all necessary corporate action and constitute a legal, valid and binding obligation of Client enforceable against it in accordance with its terms; (d) no consent, approval or action of, filing with or notice to any governmental or regulatory authority or any other non-governmental third party is required in connection with the execution, delivery and performance of this Agreement that has not been obtained by Client; and (e) Client is in compliance with all applicable laws, statutes, orders, ordinances, regulations and requirements, whether federal, state or local in connection with its business.

8. Mutual Indemnity. Each party will indemnify, defend and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Clients premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.

9. Non-Solicitation. Client agrees that during the Term, and for a period of twenty four (24) months immediately following the termination of this Agreement for any reason, Client shall not, either directly or indirectly, solicit, induce, recruit or encourage any of Groff’s employees or consultants to terminate their relationship with Groff, or take away, hire or otherwise engage the services of such employees or consultants, or attempt to solicit, induce, recruit, encourage or take away, employees or consultants of Groff, either for Client, or for any other person or entity, without the express written consent of Groff.

10. Insurance. During the Term, Groff shall maintain, in full force and effect, a policy of commercial general liability and professional liability (or errors and omissions) insurance, in full force and effect, providing coverage with limits of at least One Million Dollars ($1,000,000.00) (U.S.) per occurrence. Such policy of insurance shall be issued by insurers that are Best’s A-rated or better and licensed to sell insurance in the State of New York.

11. Taxes. If applicable, Client shall pay or reimburse Groff for all applicable sales, use, transfer, privilege, excise, or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance of the Services, or by the performance of any Additional Services, under this Agreement. Client’s obligations under this Section 11 are in addition to any Fees due hereunder, but expressly exclude any income taxes on profits which may be levied against Groff.

ALLOCATION OF RISK and LIMITED WARRANTY

a) Disclaimer of Damages. Neither party, nor its affiliates and licensors, are liable to the other party, or its affiliates or licensors, for any special, indirect, incidental, punitive or consequential damages arising out of or relating to this agreement (including but not limited to, loss of clients, loss of contracts, lost profits, lost computer usage, and damage or loss of use of data), even if that party has been advised of the possibility of such damages, and irrespective of the negligence of either party or whether such damages result from a claim arising under tort or contract law.

B) Limitation of Liability. GNW’S LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE GREATER OF THE AMOUNT PAID OR PAYABLE BY CLIENT FOR THE APPLICABLE PRODUCT OR SERVICE.

C) Limited Warranty. GNW warrants that the Services performed will be of a quality conforming to generally accepted practices that are standard within the software services industry for a period of ninety (90) days from completion of the Services under the applicable Statement of Work. Client’s exclusive remedy and GNW’s entire liability under this warranty will be for GNW to re-perform any non-conforming portion of the Services within a reasonable period of time, or if GNW cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Services. This warranty will not apply to the extent Client, its contractors or agents have modified any Deliverable, unless otherwise authorized by GNW in writing. THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

13. Notices. All notices, communications, statements, instructions or other documents required or desired to be given hereunder shall be in writing and shall be deemed given when actually received by the intended recipient Party via either courier, registered or certified mail (return receipt requested), or via e-mail or facsimile if the original thereof is contemporaneously also sent by certified airmail (return receipt requested), addressed to the intended recipient Party at the respective address, e-mail address and/or facsimile number set forth on the Groff Statement of Work, or such other address as either Party hereto may designate in writing to the other from time to time throughout the Term.

14. Force Majeure Event. In the event either Party is rendered unable by reason of an event of Force Majeure to perform, wholly or in part, any obligation or commitment set forth in this Agreement, the obligations of such Party hereunder shall be suspended. The term “Force Majeure,” as used in this Agreement, shall mean any cause whether of the kind enumerated herein or otherwise, not reasonably within the control of a Party, such as acts of God, strikes, lockouts or industrial disputes or disturbances, civil disturbances, arrests and restraint from rulers of people, interruptions by government or court orders, present and future valid orders, decisions or rulings of government or regulatory entities having jurisdiction, acts of a public enemy, wars, riots, blockages, insurrections, terrorist activities inability to secure materials by reason of allocations promulgated by authorized governmental agencies, epidemics, landslides, lightning, earthquakes, fires, storms, floods, tsunamis, washouts, severe weather conditions, and explosions.

(a) Excuse. If either Party, because of an event of Force Majeure, is rendered wholly or partly unable to perform its obligations under this Agreement, that Party shall be excused from whatever performance is affected by the Force Majeure to the extent so affected, and shall not be liable for damages caused by such non-performance, provided that the non-performing Party, within five (5) days after it becomes aware or should have become aware that it would be unable to perform, gives the other Party written notice of the occurrence of the Force Majeure, including an estimation of its expected duration and probable impact on the performance of its obligations hereunder. Notwithstanding anything herein to the contrary, economic hardship of any kind shall not constitute an event of Force Majeure.

15. Groff Statement of Work; Entire Agreement. The Parties acknowledge and agree that the Parties executed that certain Statement of Work: Groff Networks, LLC (the “Groff Statement of Work”) which specifically references these Terms and Conditions, and that the same is incorporated hereby as if fully set forth herein. All references herein to this or the “Agreement” shall mean the terms and conditions herein set forth collectively with the terms and conditions of the Groff Statement of Work. This Agreement constitutes the sole understanding of the Parties with respect to the subject matter hereof. No amendment, modification or alteration of the terms or provisions of this Agreement shall be binding unless the same is in a writing which specifically references this Agreement and which is duly executed by the Parties. This Agreement supersedes all prior agreements and understandings between the Parties with respect to the subject matter of this Agreement.

16. Dispute Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties shall use best efforts, for a period of thirty (30) days, to reasonably negotiate a resolution. If, after such thirty (30) day period, the Parties have not come to a resolution, at either Party’s demand such controversy or claim shall be subject to arbitration administered pursuant to the Commercial Arbitration Rules set forth by the American Arbitration Association. Judgment of any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing contained in this Section 16 shall limit either Party’s ability to seek injunctive relief in any court having jurisdiction hereof. In the event a Party commences arbitration proceedings in accordance herewith, in addition to any award rendered by the arbitrator, the substantially prevailing Party shall be reimbursed all reasonably incurred costs and expenses associated with the arbitration, including reasonable attorneys’ fees.

17. Equipment; DataVault. In the event that Groff, in providing the Services, Additional Services or otherwise, installs or utilizes a My NetWorks DataVault, or any other similar equipment or device (the “DataVault”), and leaves the DataVault at a Client’s place of business for any period of time, Client acknowledges and agrees: (i) that the DataVault shall, at all times, remain the sole property of Groff, and in no event shall the DataVault become the property of Client, unless otherwise agreed to by the Parties in a mutually executed writing; (ii) that it shall indemnify and reimburse Groff for any damage caused to the DataVault for any reason except for the fault or negligence of Groff or any of its employees, agents or representatives; and (iii) shall peacefully return, or permit Groff to remove, the DataVault at the expiration or earlier termination of the Term.

18. Miscellaneous.

(a) Assignment and Benefit; Entire Agreement. This Agreement is binding on, and shall inure to the benefit of, the successors and assigns of the Parties. Neither party shall have the right to assign this contract without the written consent of the other party.

(b) Survival. The terms and obligations set forth on the Groff Statement of Work and in this Agreement shall survive the expiration or earlier termination of this Agreement.

(c) Counterparts. The Groff Statement of Work may be signed in counterparts and/or delivered via facsimile or in .pdf format via e-mail, each of which shall be deemed original and binding signatures and all of which shall constitute one and the same Agreement.

(d) No Waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, will be deemed to constitute a waiver by the Party taking any action of compliance with any representation, warranty or agreement contained herein. The waiver by any Party of any condition or of a breach of any other provision of this Agreement will not operate or be construed as a waiver of any other condition or subsequent breach. The waiver by any Party of any of the conditions precedent to its obligations under the Agreement will not preclude it from seeking redress for breach of this Agreement other than with respect to the condition so waived. No waiver of any right or provision of this Agreement shall be binding unless it is in writing expressly referring to the provision to be waived and signed by the Party against whom such waiver is sought to be enforced.

(e) Further Assurances. From and after the date first set forth above, each Party, at the request of the other Party and at the requesting Party’s expense, will take all such action and deliver all such documents as shall be reasonably necessary or appropriate to confirm the benefits and obligations contemplated by this Agreement.

(f) Governing Law; Consent to Jurisdiction. The execution, interpretation and performance of this Agreement shall be governed by the laws of the State of New York, without giving effect to conflict of law or choice of law rules or principles. The Parties hereby irrevocably consent that any action or proceeding relating to this Agreement shall be brought, at the option of the Party instituting the action or proceeding, in any state or federal court of general jurisdiction in Albany, New York. The Parties waive any objection that they may have to the conduct of any action or proceeding in any such court based on improper venue or forum non convieniens, waives personal service of any and all process upon it, and consents that all service of process may be made by mail or courier service directed to it at the address set forth herein and that service so made shall be deemed to be completed upon the earlier of actual receipt or five (5) days after the same shall have been posted. Nothing contained in this Section 18(g) shall affect the right of any Party hereto to serve legal process in any other manner permitted by law.

(g) Severability. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect and such Agreement shall be construed to the fullest extent possible as to give effect to the intentions of the Parties represented by the provisions found to be unenforceable or invalid.

(j) Advice of Counsel. EACH PARTY EXPRESSLY ACKNOWLEDGES THAT, PRIOR TO EXECUTING THE GROFF STATEMENT OF WORK, IT HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.