Master Services Agreement

Absent any preexisting and effective Master Services Agreement between Company and Client, this Master Services Agreement(“Agreement”) becomes effective (“Effective Date”) in conjunction with the execution date of the most recent statement (scope) of work (“SOW”) Agreement between Lewis IG, Inc., (d/b/a iwerk) a Michigan corporation, with offices at 856 E. 9 Mile Road Ferndale, MI 48220 (“Company”) and Client represented in the aforementioned SOW.

The Client desires that Company, a technology solutions Company, perform various technology services (“Services”) to be described in specific SOW’s, and Company desires to perform such Services.

In consideration of the mutual promises, Agreements, and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound mutually agree as follows:

1.0: Services.

This Agreement shall apply to the delivery of various technology (hardware, software, and customer care) Services as set forth in SOW Agreements to be executed in conjunction with and under this Master Services Agreement. The delivery and financial details in connection with any Services will be specified in the SOW Agreement, which shall be incorporated herein by reference. In the event of any modification or revision to a SOW, the Parties shall prepare and sign a new SOW or amendment, which shall not become effective unless and until agreed to and signed by both Parties. To the extent Client requires or requests additional Services, Company will charge an additional fee for such additional Services.

2.0: Compensation, Invoicing and Payment Terms.

Client will pay Company all invoiced fees, expenses, and costs as specified in the SOW Agreement. Such amounts are exclusive of any federal, state, or local sales or use taxes or any other taxes or fees assessed on or in connection with any of the Services rendered herein. Unless specified otherwise in the SOW Agreement, Client will pay all invoices within thirty (30) days of invoice date thereof. Company reserves the right to charge interest at the rate of one and one-half percent (1.5%) per month on the outstanding balance of all receivables over thirty (30) days past due.

3.0: Term, Termination, and Survival.

A.) Term. This Agreement becomes effective in conjunction with the execution effective date of the most recent statement of work (SOW) (or otherwise titled, fully executed work for hire contract) and shall continue until terminated by either party pursuant to the terms herein. Unless, however, a period of one year passes during which time, the Client has no outstanding financial balances owed to Company, and the Parties have not conducted business together. In which case, the Agreement will automatically terminate at the end of the one (1) year period of inactivity.

B.) Termination. Either party may terminate this Agreement, without cause, at any time with thirty (30) days written notice, provided that the resulting effective termination date follows the delivery of, and payment for, any active SOW (or otherwise titled, fully executed work for hire contract) by at least thirty (30) days.

C.) Survival. Except as expressly provided herein, upon the expiration or termination of this Agreement for any reason, nothing herein shall be construed to release either party from any obligation that matured or accrued prior to the effective date of any such termination, including, without limitation, any Client payment obligations to Company.

4.0: Confidentiality.

Client and Company each agree to keep in confidence and not to disclose or use for its own benefit or for the benefit of any third party (except as may be required for the performance of Services under this contract or as may be required by law), any information, documents, or materials which are identified by a party, at the time that they are made available, to be proprietary or confidential (the “confidential information”), provided, however, that such obligation of confidentiality shall not extend to any information, documents or materials that become publicly available without breach of this covenant, and provided further that such obligations shall expire upon the first anniversary of the Effective Date of termination of this contract. Notwithstanding the foregoing, should either party be legally obligated to disclose any confidential information pursuant to a subpoena, court order, summons, or other such manner, the party required to make such disclosure of confidential information may make such disclosure as required but must notify the other party that it has received such subpoena, court order, summons, etc. And present the party whose confidential information is subject to disclosure with the opportunity to object or seek a protective order as the owner of the confidential information deems necessary.

5.0: Ownership of Materials Related to Services.

The Parties agree that any proprietary materials prepared and delivered by Company in the course of providing the Services shall be considered works made for hire. All rights, title, and interests of such materials shall be and are assigned to Client as its sole and exclusive property upon fulfillment of the Client’s payment obligations. Client represents to the Company and unconditionally guarantees that any elements of text, data, graphics, photos, designs, trademarks, or other artwork furnished to the Company for inclusion in the Services are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Company and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.

6.0: Intellectual Property.

Notwithstanding anything in this Agreement to the contrary, in connection with any Services provided under this Agreement or any supplemental Agreement, Company shall retain all rights, title or interest related to any of Company’s proprietary information, which may or may not be embodied or present in any Agreement or supplemental Agreement, and no such rights, title or interest shall be transferred or licensed to Client, express or implied. Company intellectual property and proprietary rights include any skills, know-how, modifications, or other enhancements developed or acquired in the course of configuring, providing, or managing the service. Each party agrees that it will not, directly or indirectly, reverse engineer, decompile, reproduce, or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology of the other party or its licensors.

7.0: Content.

Client is solely responsible for any data, text, software, images, photographs, graphics, messages, files, or other materials (“Content”) which is transmitted, posted, or distributed by Client in connection with the Services, including but not limited to the contents of your e-mail communications, information, photos, or images submitted to the Company. By posting or delivering the content to the Company you warrant and represent that you own all right, title, and interest to that content and any likenesses contained in that content. Client grants Company and its existing and future affiliates (and their successors and assigns as permitted herein) and agents a non-exclusive right and license to use Client’s name and logo for marketing, advertising, and promotion of the Company’s and/or its products, Services, and business based on the Services provided herein.

8.0: Links.

The Services may contain dynamic links to third-party apps, websites, or resources. Client acknowledges and agrees that the Company is not responsible or liable for: (a) the availability or accuracy of such apps, websites, or resources; or (b) the content, products, or services on or available from such apps, websites, or resources. Links to such apps, websites, or resources do not imply any endorsement by the Company of apps, websites or resources or the content, products, or services available from such apps, websites, or resources. Client acknowledges sole responsibility for and assumes all risk arising from your use of any such websites or resources.

9.0: Third-Party Software and Equipment.

Client acknowledges that Company is not the manufacturer of any equipment or licensed software and therefore does not make any representation or warranty of any kind, direct, or indirect, expressed, or implied, with respect to the suitability, durability, design, operation, or condition of such equipment or licensed software with respect to any claims it may have against either. Client understands and agrees that Client is solely liable to and responsible for the purchase and payment of all required software licenses for software installed on its systems. Client understands and agrees that in no event shall Company be responsible for any claims of software piracy or misuse. Client agrees to pay for and provide all required licenses for all software installed by Company on Client’s system. In the event Client requests Company to install software provided by Client, Client agrees to indemnify and hold Company harmless from any claim made, damages or losses alleged or incurred by third parties against Company with respect to such software.

10.0: Connectivity, Space, Backup & Security.

A.) Connectivity. Company shall always make available to Client the server and the Services but shall not, in any event, be liable for interruptions of service or down-time of the server or Services. Client accepts that factors beyond Company control, such as mechanical failure, cyber terrorism, environmental events, including loss of power or natural disaster, and user behavior, may disrupt server and service availability. Company will be accountable for ensuring system stability and uptime and will use every reasonable effort to restore system availability in the event of unexpected downtime.

B) Backup. Client will be responsible for backup and other protection of its data against loss, damage, or destruction. Company will have no obligation or liability with respect to lost, damaged, or destroyed data.

C) Network security. Except to the extent Client engages Company to provide Services with respect to the security of Client’s network or data, Client will remain liable for the security of Client’s network and data.

IN NO EVENT WILL IWERK BE LIABLE FOR ANY DAMAGES RESULTING FROM SECURITY BREACHES REGARDING CUSTOMER’S NETWORK OR DATA UNLESS SUCH SECURITY BREACHES ARISE, IN WHOLE OR IN PART, DUE TO THE ACTS OR OMISSIONS OF IWERK. THIS DISCLAIMER IS IN ADDITION TO, AND NOT INSTEAD OF, ANY OTHER DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT.

D) Client Email and Account Security. Client acknowledges that Company is not responsible for the security of the contents of e-mail sent or received by the Client. Company is not liable for non-receipt, non-delivery or misrouting of e-mail or any other failure of the e-mail system. Client also acknowledges that its end-users are entirely responsible for maintaining the confidentiality of Client number/login, password, credit card number, and any other personal information (collectively, the “account access information”). Client is entirely responsible for all activities that occur under its account. Client agrees to notify Company immediately of any unauthorized use of its account or any other breach of account security. Company will not be liable for any loss that Client may incur because of someone else using Client’s account access information, either with or without Client’s knowledge.

11.0: Data Threats and Loss.

Client understands that all systems are at risk of data loss due to power failure, business disruption, natural disaster, unauthorized access, malware or poor business continuity and disaster recovery planning. Company recognizes that maintaining confidentiality, integrity, and proper accessibility to information by authorized users is at the core of our information security planning and processes. However, Company frequently must adopt and adapt to Clients’ existing technology infrastructures; those that have already been designed, implemented, and maintained by Client personnel or another technology firm. Moreover, Client understands that its employees, personnel, and other third parties have access to the system owned and operated by Client. Therefore, Client understands and agrees that Company is not and will not be held liable in any case for data loss, third-party interruptions, or security breaches; unless such data loss, third-party interruption or security breaches arise, in whole or in part, due to the acts Company omission or negligence.

Furthermore, Client acknowledge that if Company provides in written form notice of (i) potential loss or failure of Client’s system, and (ii) provides a remedy or mitigation plan related thereto, that Client will, if it does not agree to the remedy or mitigation plan, not hold Company responsible for any data loss or damages, or costs to recover such data, and that all invoices related to the recovery of such data, and replacement of such equipment will be Client’s responsibility.

12.0: Warranty of Services.

Client understands and agrees that the Services and any related equipment, software and other materials provided or installed by Company in connection with the Services are provided on an “as is” and “as available” basis. Once the final and successfully tested product is delivered to the Client, the Company makes no warranty or representations of any kind, whether statutory, express, or implied, including but not limited to, warranties of title, non-infringement, merchantability, fitness for a particular purpose, accuracy, completeness, or any results to be achieved therefrom and disclaims all responsibility and liability for the availability, security, or reliability of the Services or any content thereon. Company will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services. Client also agrees that the Company has no responsibility or liability for the deletion of, or the failure to store or to transmit, any content or data and other communications maintained by the Services. No advice or information, whether oral or written, obtained from the Company or through the Services will create any warranty not expressly made herein. In the event that there is no warranty set forth in the Agreement, the foregoing express limited warranty is in lieu of all other warranties and conditions expressed or implied, oral or written, contractual or statutory, including but not limited to any implied warranties of merchantability or fitness for a particular purpose to the extent applicable.

13.0: Representations and Warranties.

Each party hereby represents and warrants that (i) it has full power, authority, and right to perform its obligations under the Agreement, (ii) this Agreement is a legal, valid, and binding obligation of each party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies), and (iii) entering into this Agreement will not violate the charter or bylaws of either party or any material contract to which that party is also a party.

14.0: Negligence and/or Breach and Indemnity.

A.) Each party will be liable and will defend, indemnify and hold the other party and its parents, subsidiaries, affiliates and employees harmless from, any and all claims, charges, liens, causes of actions, demands, costs, liabilities, damages, and expenses (including, but not limited to, reasonable attorneys’ fees), sustained by the other party to the extent arising from such party’s (including its officers, directors, agents and employees) negligence or willful misconduct, and/or any material breach of such party’s obligations under this Agreement or breach of any representations as contained herein.

B.) Client agrees to defend, indemnify, and hold Company and its parents, subsidiaries, affiliates, and employees harmless from, any and all claims, charges, liens, causes of actions, demands, costs, liabilities, damages, and expenses (including, but not limited to, reasonable attorneys’ fees), sustained by Company to the extent arising from or in connection with:

Such obligations shall include, without limitation, all time charges and expenses (including reasonable attorneys’ fees) incurred by Company in connection with any subpoena, discovery demand or other directive having the force of law or governmental inquiry served upon Company or any of its affiliates that relates to Client or its affiliates, or Client’s or its affiliates business or industry that arises out of any litigation, proceedings, investigations or inquiries involving Client or its affiliates.

C.) Company agrees to defend, indemnify, and hold Client and its parents, subsidiaries, affiliates, and employees harmless from, any and all claims, charges, liens, causes of actions, demands, costs, liabilities, damages, and expenses (including but not limited to, reasonable attorneys’ fees), sustained by Client to the extent arising from or in connection with:

Such obligations shall include, without limitation, all time charges, and expenses (including reasonable attorneys’ fees) incurred by Client in connection with any subpoena, discovery demand or other directive having the force of law or governmental inquiry served upon Client or any of its affiliates that relates to Company or Company’s business or industry that arises out of any litigation, proceedings, investigations or inquiries involving Company.

15.0: Limitation of Liability.

Client agrees that Company is not and shall not be liable for any incidental, consequential, exemplary, special, indirect or punitive damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or Services, loss of data, or interruption of Services or equipment, even if Company has been advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise. In any event, Client’s damages shall be limited to the amount of Fees actually paid to Company under this Agreement during the ninety (90) days immediately preceding the date on which such claim is made. The amount of fees for the Services set by Company under this Agreement have been and will continue to be based upon this allocation of risk. Accordingly, Client releases Company from all obligations, liabilities, and claims in excess of the limitation stated in this section.

16.0: Notices.

Any notices, consents or other communications required or permitted to be sent or given hereunder by any of the Parties to this Agreement shall in every case be in writing and shall be sent by e-mail transmission and/or by express mail service. Notices sent by email shall be sent at least twice (with the second transmission being no sooner than the first business day following the initial transmission). The date of service of such notice shall be the date such notice is acknowledged by the recipient in writing. Notices sent to Company should be sent by (verified receipt) email to Andrew Hofmann at ahofmann@iwerk.com, and Company’s Michigan Address.

17.0: Non-Solicitation of Employees.

Client and Company agree, without the prior written consent, not to solicit the employment of each other’s respective personnel during the term of this Agreement and for a period of one (1) year following the termination or expiration of this Agreement. Client and Company agree that damages resulting from breach of this provision would be impracticable and that it would be extremely difficult to ascertain the actual amount of damages.

18.0: Construction.

This Agreement shall be governed by the laws of the state of Michigan and should be enforced by a court of competent jurisdiction in the state of Michigan. The Parties agree that an equitable relief in the form of an injunction is a proper remedy. Further, the prevailing party shall be entitled to reimbursement for all legal fees, expenses, and costs incurred in such action. If any clause or provision herein is found invalid or unenforceable, such clause or provision shall not affect the validity of any other clause or provision, which shall remain in full force and effect. Each of the provisions of this contract shall be enforceable independently of any other provision of this contract and independently of any other claim or cause of action. Failure to exercise or enforce any right or obligation under this Agreement does not constitute a waiver or abrogation of such right. This Agreement contains the entire understanding of the Parties and supersedes all previous verbal and written Agreements. No change or addition to this Agreement shall be effective unless in writing and properly executed by the Parties. This Agreement may be executed in multiple counterparts, and each such counterpart shall be deemed as an original instrument upon execution of this document. Neither party shall have any right to assign or delegate any right or duty of this Agreement without the express written consent of the other party. The headings are provided for convenience and ease of reference and in no way limit or restrict the meanings, definition, or effect of any of the terms and conditions of this Agreement and should be disregarded in the interpretation thereof.

19.0: Miscellaneous.

A.) Assignment of this Agreement is not assignable by either party without the other party’s written consent, except that Company may assign this Agreement to any entity with which it is affiliated, including but not limited to subsidiaries, parent companies, or entities under common control upon written notice to Client.

B.) Amendments. This Agreement may not be modified except by writing referencing this Agreement and signed by both Company and Client.

C.) Severability. If any provision herein shall be deemed or declared unenforceable, invalid, or void by a court of competent jurisdiction, the same shall not affect any of the other provisions contained herein, which shall be enforced in accordance with their terms.

D.) Remedies; Waiver. No failure or delay by Company to exercise any right, power, or privilege provided under this Agreement or by applicable law will operate as a waiver. No single or partial exercise of any such right, power, or privilege will preclude any other or future exercise of any other right, power, or privilege. The remedies provided under this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

E.) Force Majeure. Neither party will be deemed in breach of any of the provisions hereof nor be liable for any costs, expenses, or damages, as a result of any delays or in any failure of performance of any of such provisions, caused by any events or conditions beyond its control, including but not limited to fire, flood, storms, or to other acts of god; terrorism, strikes, lockouts, slowdowns or other labor troubles; inability to obtain materials, facilities, labor or transportation, delays or defaults, which are material in nature, of suppliers or sub-contractors; which are unforeseeable and not within the control of Company, and insurrections, riots, war, acts of terrorism, national pandemics, emergencies or governmental controls.

F.) Ability to Subcontract. Client acknowledges that in providing the Services, Company may subcontract work to other companies or individuals at its sole discretion. Client waives any objection to the Company’s ability to subcontract Services.

G.) Agency Work. If Client has engaged Company to perform the Services for the benefit of another entity (“Agency Work”), Client shall remain responsible for timely payment of invoices according to the payment terms and schedule set forth in this Agreement and the applicable Agreement regardless of when Client receives payment for its agency work. Parties expressly agree that payment shall not be held back, delayed, or otherwise adjusted for any reason, including but not limited to the other entity’s failure to approve the Services or pay Client where Company is performing Agency Work.

H.) Services to Client’s Designees. If Client requests that Company make purchases for or render Services to third-parties, Client and such third-party shall be jointly and severally liable to Company, even though Company may render invoices to, or in the name of, the third-party, if so directed to do so by Client.

I.) Insurance Coverage. Company shall maintain at its sole expense commercial general liability insurance for personal injury and property damage for a general aggregate of $1,000,000 and worker’s compensation insurance as required by law. At Client’s request, Company further agrees to furnish Client with certificates, including renewal certificates, evidencing such coverage within thirty (30) days of commencing performance under this Agreement, at every renewal and at other times as may be reasonably requested by Client.

20.0: Dispute Resolutions.

This Agreement shall be governed by and construed in accordance with the laws of the state of Michigan, without giving effect to any conflicts of law principles of another state. Any lawsuit filed to enforce this Agreement or due to an alleged breach of this Agreement shall only be brought in the State or Federal courts of Oakland County, Michigan. Should Company be forced to commence an action to enforce the covenants set forth in this Agreement, notwithstanding all other remedies available under law, equity, or contract, Company shall be entitled to (a) immediate injunctive relief and (b) all actual attorney fees incurred by Company related the action.