This MASTER SERVICES AGREEMENT (“Agreement”) is between the legal entity or entities (CLIENT) that accept(s) this Agreement by physical or electronic signature, or by a click-through acceptance, and the applicable Simpatico Systems, LLC a Texas Limited Liability Corporation, with headquarters located at 8101 Viola Ave, Lubbock, TX 79424 (“SIMPATICO”). This Agreement is effective as of the earlier of the date set forth on the signature page hereto or the date on which this Agreement is accepted through an accompanying Order Form, as applicable (such date, the “Effective Date”), to provide certain services to Client, subject to the terms and descriptions set forth below:

1. SERVICES PROVIDED BY SIMPATICO. SIMPATICO and Client have agreed that SIMPATICO will provide Client with the services set forth on the Exhibits attached to this Agreement (“Services”), subject to the terms and conditions set forth in this Agreement and the Exhibits hereto. In the event that SIMPATICO agrees to provide any services for Client that are beyond the scope of what is described in the Exhibits hereto, then the terms and conditions of this Agreement shall apply, unless SIMPATICO and Client agree in writing to other terms.

2. PURCHASES MADE FOR CLIENT. Upon the request of Client, SIMPATICO may at times purchase equipment, software or other goods (collectively, “Equipment”) on behalf of Client. When SIMPATICO makes such purchases of Equipment, SIMPATICO will charge the quoted price, plus all applicable expenses including sales taxes and other applicable taxes, to Client. Unless otherwise agreed to in writing by SIMPATICO, all such purchases of Equipment must be paid in full prior to delivery. In the event SIMPATICO agrees to bill Client for such purchases, payment for such purchases shall be subject to Section 3 below.

3. BILLING. SIMPATICO sends regular invoices for services rendered and expenses incurred. Full payment on all invoices is due and payable upon receipt. In the event that any amounts remain unpaid for longer than thirty (30) days after the date of an invoice, (a) Client agrees to pay SIMPATICO a finance charge in an amount equal to the lesser of (i) 1.5% per month (18% per year) or (ii) the highest interest rate permitted by applicable law; and (b) SIMPATICO may suspend performance of the Services after (i) giving written notice to Client of SIMPATICO’s intent to suspend the Services and (ii) any amounts remain unpaid for three (3) days after such notice. Client agrees to be responsible for all costs of collection, including without limitation reasonable attorneys’ fees, expenses and court costs.

4. TERM. The initial term of this Agreement shall commence on the effective date as defined and terminate on last day of the month from the commencement date (“as stated on quote”). Thereafter, the term shall automatically be renewed for the additional contract period(s) of one (1) year periods and upon the same terms and conditions in existence immediately prior to the end of the then-current contract period, unless either party shall give the other written notice to the contrary not later than thirty (30) days prior to the end of the then-current contract period (the Initial Term and such renewal period(s) are collectively referred to herein as the “Term”).

5. SIMPATICO PERSONNEL. Client and SIMPATICO agree that all employees, representatives or agents of SIMPATICO who provide any goods or services for Client shall at all times remain the employees, representatives and agents of SIMPATICO and shall at all times remain under the control and direction of SIMPATICO. Client acknowledges that SIMPATICO personnel require constant training and constitute an integral part of the SIMPATICO team, and if Client were to hire such personnel, SIMPATICO would lose a valuable asset and would suffer irreparable injury. Therefore, Client agrees that, for the period through and including twelve (12) months after the last date that SIMPATICO provides any goods or services for Client, Client will not directly or indirectly solicit for hire, contract with, or recommend another to engage or receive any goods or services from any employee, representative or agent of SIMPATICO (or any person who was an employee, representative or agent of SIMPATICO within the prior six (6) month period), except with SIMPATICO’s prior written consent. Since the parties agree that it is difficult to estimate SIMPATICO’s damages in the event of any breach of this paragraph, the parties agree that, in the event Client breaches the provisions of this paragraph, SIMPATICO shall be entitled to: (a) injunctive relief; and (b) liquidated damages in an amount equal to the annual salary in effect at the time of breach for the SIMPATICO employee, representative or agent in question. For SIMPATICO employees, representatives or agents paid on an hourly basis, the “annual salary” is the amount paid per hour at the time of breach multiplied by forty hours by fifty-two weeks. In the event that Client breaches the provisions of this paragraph, SIMPATICO shall also be entitled to recover all costs incurred in enforcing its rights as described in this paragraph, including without limitation reasonable attorneys’ fees, expenses and court costs.

6. CLIENT RESPONSIBILITIES. Under this Agreement, Client will provide access to all facilities, networks, software licenses, IT records, and Users.
Additionally Client will cooperate with SIMPATICO to help achieve the goals of this Agreement and help facilitate scheduling and access to necessary personnel as related to this Agreement.

7. CONFIDENTIALITY. SIMPATICO and Client agree that they may, in the course of this relationship, be exposed to or acquire certain information which is proprietary to or confidential to SIMPATICO or Client (collectively, “Confidential Information”). Any and all non-public information, in all forms and formats (including, without limitation, written, oral, electronic, automated, audio and video) obtained by either party arising from or related to this relationship, shall be deemed to be Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information which is (i) in or becomes part of the public domain other than by disclosure by the other party; (ii) demonstrated to be previously known to the other party prior to receipt of same from the disclosing party, (iii) independently developed by the other party outside of this Agreement and relationship without the use of any portion of SIMPATICO or Client Confidential Information, or (iv) rightfully obtained by the other party from third parties who are not subject to confidentiality obligations regarding the information. The parties agree to hold the Confidential Information of the other party in strict confidence, and not to copy, reproduce, sell, assign, license, market, transfer or otherwise give or disclose such information to third parties except to the extent (i) expressly authorized herein or necessary to obtain the benefits of this Agreement, (ii) expressly authorized in writing by the other party, and then only to the extent strictly necessary to perform the respective obligations of the parties; or (iii) such disclosure is legally required by a court or government agency. In the event disclosure is required pursuant to (iii) above, the party required to disclose the information shall give the other party notice of such intended disclosure so as to allow the owner of such information the opportunity to obtain a protective order.

8. WARRANTIES. Except as otherwise set forth in this agreement or in the exhibits hereto, SIMPATICO makes no warranties, expressed or implied, regarding the services to be performed, or the purchases of equipment to be made for Client, pursuant to this agreement, and Client hereby acknowledges and agrees that the services performed, and the purchases made for the Client, under this agreement are provided “AS IS” without warranty of any kind, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement, informational content or completeness, accuracy, quality, suitability or functionality, uninterrupted service or uninterrupted access. Additionally, for avoidance of doubt, the parties hereunder further acknowledge and agree that because of the complex nature of software, SIMPATICO does not warrant that the deliverables under this agreement will be error free.

9. PRICING. Addendums to this contract determine actual pricing. Client realizes that pricing may change from time to time, including 3rd party services, vendor prices, and annual price updates etc. Annual changes of less than Consumer Price Index (CPI) + 2% or less are expected as normal course of business and don’t require specific notification.

10. COVERED EQUIPMENT. Monthly quantity updates will happen automatically and according to audits performed by SIMPATICO personnel. Quantity changes will be reviewed at customer request.

11. LIMITATION OF LIABILITY. In no event shall SIMPATICO be liable for any consequential, incidental, indirect, special, punitive, or exemplary damages (including without limitation, loss of business, profits, assets, data or information, or loss of use of hardware or software) arising out of or related to this agreement (including any such damages resulting from the performance or non-performance by SIMPATICO of any services or the purchase of equipment) however any such damages may arise, whether in contract, tort, strict liability or otherwise, whether foreseeable or not, even if the company has been advised of the possibility of such damages. Notwithstanding anything in this Agreement to the contrary, the Parties hereby acknowledge and agree that SIMPATICO’s aggregate liability with respect to, arising from, or in connection with this Agreement, whether in contract or in tort, or otherwise, is limited to an amount equal to the total amount actually paid by Client to SIMPATICO for Services delivered pursuant to this Agreement (but specifically excluding from such calculation amounts paid pursuant to Section 2 of this Agreement) during the one month period immediately prior to the events that gave rise to the liability.

12. RIGHT TO SUBCONTRACT. SIMPATICO shall have the right to delegate or subcontract any of the Services, provided that (a) no such delegation or subcontracting shall relieve SIMPATICO of its responsibility for the performance of the Services hereunder and (b) SIMPATICO shall not disclose any Confidential Information of Client to a subcontractor unless and until such subcontractor has agreed to protect the confidentiality of such Confidential Information in a manner substantially required under this Agreement and (c) subcontractor meets all contract award qualification standards required for performance of this Agreement.

13. SEVERABILITY. If any term or provision of this Agreement shall be found to be unenforceable, the same shall not invalidate the remaining terms and provisions of this Agreement.

14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between Client and SIMPATICO relating to the subject matter hereof and supersedes all previous estimates, communications, representations, or agreements, whether oral, written or otherwise, with respect to the subject matter hereof. No representations or statements of any kind made by any representative of either party which are not stated herein shall be binding upon any other party. Except as expressly permitted in this Agreement, no addition to or modification of any provision of this Agreement shall be binding upon any party unless made in writing and signed by duly authorized representatives of such party.

15. CHOICE OF LAW AND FORUM. This Agreement shall be interpreted and applied pursuant to the laws of the State of Texas. The parties also agree that any legal action concerning this Agreement may only be initiated and litigated in the state courts located in Lubbock County, Texas.

16. NOTICE. Wherever under this Agreement one party is required to give notice to the other, such notice shall be in writing and shall be delivered personally, sent by nationally recognized express courier (obtaining a signed receipt upon delivery), or sent by certified, registered, or first class mail. Any such notice shall be deemed given when actually received when so delivered personally or by express courier. Either party may change its address for notices upon giving ten days written notice of the change to the other party in the manner provided above.

17. TERMINATION WITH CAUSE. Either party may terminate this Agreement prior to the expiration of the applicable Term if the other party materially breaches this Agreement, provided that the defaulting party has been given thirty (30) days advance written notice of the cause of such termination, and during such thirty-day period, the defaulting party has failed to cure such breach to the reasonable satisfaction of the non-defaulting party.

18. TERMINATION WITHOUT CAUSE. If Client terminates this Agreement a Contract Termination Fee equivalent to remainder of the current TERM will be due concurrent with the cancellation notice. Upon payment, SIMPATICO will (a) make available any Client related documentation or information and (b) continue to provide requested support and migration services for the earlier of either (i) 60 days past the notice date or (ii) thru the original termination date.

19. ASSIGNMENT. Except as otherwise set forth in this Agreement, neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party and any such attempted assignment shall be null and void; provided that the foregoing restriction shall not apply to an assignment made in connection with a merger or sale of all or substantially all of a party’s assets, stock or other ownership interests. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and permitted assigns.

20. SURVIVAL OF COVENANTS AND CONDITIONS. It is expressly agreed that all covenants and conditions relating to the rights and obligations of the parties hereto subsequent to the termination of this Agreement shall survive the termination and shall continue in full force and effect in accordance with the terms of the specific provision.

21. WAIVER. Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing and signed by a duly authorized representative of the waiving party.

22. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement shall not become effective until it is executed by both parties to this Agreement.

23. BINDING EFFECT. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto, and their respective successors, legal representatives, heirs and permitted assigns, and no other person shall have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provision herein contained.

24. REMEDIES. The remedies provided to the parties by this Agreement are not exclusive or exhaustive, nor cumulative of each other and in addition to any other remedies the parties may have.

25. PRIOR AGREEMENTS SUSPENDED. This Agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter.

26. FAIR MEANING OF LANGUAGE. The parties have reviewed this Agreement in its entirety and acknowledge that each has had a full opportunity to negotiate the Agreement’s terms. Therefore, the parties expressly waive any and all applicable common law and statutory rules of construction that any provision of this Agreement should be construed against the Agreement’s drafter and agree and affirm that the Agreement and all provisions thereof shall in all cases be construed as a whole, according to the fair meaning of the language used.

27. ATTORNEY’S FEES AND COSTS. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

28. FORCE MAJEURE. Except for the obligation to make any payment required hereunder, neither party shall be liable to the other party for any non-performance of its obligations hereunder caused by circumstances beyond its reasonable control including, but not limited to, work stoppages, delay in transportation, delay in delivery by vendors, fire, civil disobedience, wars, or acts of nature.

SERVICE RATES:

Simpatico will be bill at rates below (all in U.S. dollars) unless otherwise specified in a quotation or Master Services Agreement:

WORKDAY DEFINED:

Our team likes to work hard.  Just to make sure that you, the Purchaser, are on the same page with Simpatico, here are a few items that define when we can work and what rate applies.

a. Emergency Same-Day applies to all work/travel performed on Sundays, Holidays, and work expressly requested by a customer. Holidays            are Simpatico-observed U.S. holidays listed in the following table:

b. Christmas Holidays are subject to change depending upon the specific days Christmas Eve & Day occur.
c. Off Peak applies to all work / travel performed after 40 hours per week, after hours or on Saturday.
d. Simpatico personnel are not required to work more than 12 hours in any 24-hour period.
e. Hazardous Duty work are subject to an additional charge of $220 per day above standard rates.
f. Work requests to be delivered in a country or territory identified as a Travel Warning or Travel Alert destination by the United States Department of State and/or Simpatico Systems, LLC, may be sub-contracted, and/or subject to additional charges, delays, or cancellations.
g. Field Service time, if put on “hold” at job-site or hotel, will be charged at the regular per day rate.

 WHAT’S NOT INCLUDED:

All delivery, travel, expenses, training or consulting services to be billed at published rates for each activity involved unless specifically included in the proposal. Additional parts, labor, modifications to scope due to unforeseen circumstances not specifically defined in the accepted proposal or scope of work are not included in this Agreement and will be billed separately from original proposal.  Any additional work can be approved by change order or email to a Simpatico representative with approval instructions.

Services rendered under this Agreement do not include parts, equipment or software not covered by vendor/manufacturer warranty or support, software licensing or renewals unless specifically included, programming or modification of software, 3^rd party training, or maintenance of applications not included in the Covered Applications list (if applicable).

TRAVEL AND LIVING EXPENSES (per resource when applicable):

Coverage Hours:

Regular business hours are 8:00 AM to 7:00 PM Central time Monday through Friday, excluding holidays. SIMPATICO SYSTEMS will provide Managed Services through remote means during regular business hours. All monitoring services will be provided on a 24/7/365 basis. After hours emergency support is provided until 11pm via an on-call technician.

Support Request Process:

SIMPATICO SYSTEMS has several channels to request support. When requesting support Client may use the following methods (in order of urgency/preference):

• Support email address (support@simpat.co)
• Support chat assist (http://chat.simpat.co)
• Support desk phone (806-224-0300) or your local number.
• After hours support (806-224-0300, press the option for emergency support)

Covered Devices:

Only hardware under a current warranty from the manufacturer will be covered. Network devices (including routers, wireless access points, and firewalls that are SMB class) will be covered as long as the vendor still supports the firmware the device is using at no charge.

All hardware should have Genuine, Currently Licensed and Vendor supported software installed. Should 3rd Party Vendor support charges be required in order to resolve any issues, these will be passed on to the Client after first receiving the Client’s authorization to incur them.

In Witness Whereof, the parties have executed this Master Services Agreement effective as of the date first set above.