Master Services Agreement

Rutter Networking Technologies, Inc.
Master Services Agreement

This Master Services Agreement ("MSA") is between Rutter Networking Technologies, Inc., with an address at 10 High Street, Andover, MA 01810 ("Rutter"), and the Rutter Customer.

WHEREAS, Rutter is a provider of IT Technical Services and related services (the "Services"); and

WHEREAS, Customer wishes to engage Rutter to provide the Services;

NOW, THEREFORE, the parties agree as follows:

1. Statement of Work. For each matter in which Customer wishes to use the Services, the specifications and rates shall be set forth in a written Statement of Work (“SOW”). Each SOW shall be deemed to incorporate the terms and conditions of this MSA and, in the event of a conflict between the MSA and the SOW, the MSA shall take precedence.

2. Fees. Rutter will invoice each project on a monthly basis and payment shall be due within thirty (30) days of invoice. If payment is not made within sixty (60) days of invoice, interest may be assessed at one percent per month until payment is received.

3. Rights in Information.

(a) As used in this MSA, the term “Information” shall mean data, information, reports, inventions, know how, software, improvements, designs, devices, apparatus, practices, processes, methods, formulations, screens, assays, databases, products and other work product and related materials, whether patentable or not. The term “Services Information” shall mean all Information which is made, developed, conceived or first reduced to practice by Rutter, its agents or employees, either solely or jointly with others, in the course of or as a result of performance of the Services hereunder.

(b) Each party will retain all rights in and to Information that it owned prior to the date of this MSA or developed after the date of this MSA without reference to or use of the Information of the other party. Customer will own the Services Information free and clear of any claim of Rutter, its agents or employees; provided, however, that any Services Information that is an improvement to any Information owned by Rutter will be owned by Rutter.

4. Confidential Information. Each party agrees to maintain in confidence the proprietary, confidential, and non-public information of the other party that may be disclosed in connection with this MSA (the "Confidential Information"). Except as otherwise required by law or as necessary to perform the obligations under this MSA, Confidential Information shall not be used or disclosed without the express written consent of the providing party. These restrictions all not apply to any portion of the Confidential Information which: (i) is already or becomes generally available to the public through no fault or action by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a source other than the other party or its agents; (iii) the receiving party can demonstrate to have had rightfully in its possession prior to disclosure; (iv) is independently developed by the receiving party without the use of or access to any Confidential Information; or (v) is required by law to be disclosed provided, however, that the receiving party shall first use reasonable efforts to give written notice of such requirement to the disclosing party to enable the disclosing party to intervene. The provisions of this section are enforceable independent from this MSA and shall survive the termination of the MSA.

5. Responsibilities of the Parties and Limitations.

(a) Rutter shall (i) perform the Services in a professional and competent
manner, consistent with applicable industry standards; (ii) utilize only trained and qualified personnel; and (ii) comply with all applicable federal, state, and local laws.

(b) Customer shall (i) provide access to all resources necessary for Rutter to provide the Services, which includes but is not limited to physical premises, equipment, drawings and other documentation, and personnel; (ii) provide reasonable workspace for Rutter personnel when performing Services on-site; (iii) provide relevant security policies and practices in place; and (iv) fully cooperate with
Rutter as necessary for the performance of the Services.

(c) If Customer is subject to specific legal requirements, such as court orders, confidentiality stipulations, regulations such as HIPAA, HITECH, FCRA, 201 CMR 17, or other circumstances that may require special handling or procedures, it shall be the responsibility of Customer to inform Rutter so that Rutter can take the appropriate measures to comply with those requirements.

(d) Customer shall identify to Rutter by full name, affiliation, and email address the individuals who will be Authorized Users for each engagement. Rutter shall provide the Authorized Users with access credentials including logons and passwords. Customer and its Authorized Users shall take such actions as are necessary to protect the confidentiality of the access credentials.

6. Term and Termination. The term of this MSA begins when executed upon signature on Agreement with Rutter and continues for a period of 24 months, unless terminated earlier. Either party may terminate the MSA by providing thirty (30) days prior written notice to the other party.

7. Warrantees, Disclaimers, and Limitations of Liability.

(a) THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. RUTTER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

(b) CUSTOMER ACKNOWLEDGES THAT THE INTERNET IS NOT AN ERROR FREE OR COMPLETELY SECURE ENVIRONMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR THE COMPUTERS, SOFTWARE, AND COMMUNICATION EQUIPMENT WITHIN ITS CONTROL AND RUTTER SHALL HAVE NO RESPONSIBILITY FOR SUCH ITEMS OR FOR COMPUTERS, SOFTWARE, OR COMMUNICATION EQUIPMENT NOT WITHIN ITS DIRECT CONTROL. RUTTER MAKES NO REPRESENTATION, AND ASSUMES NO LIABILITY FOR THE NEGLIGENT OR FRAUDULENT USE OF LOGON CREDENTIALS BY AUTHORIZED USERS OR THIRD PARTIES WHO RECEIVE LOGON CREDENTIALS THROUGH OR FROM AUTHORIZED USERS.

(c) EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA OR BUSINESS INFORMATION, INTERRUPTION OF BUSINESS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FINES OR SANCTIONS IMPOSED BY A COURT OR OTHER TRIBUNAL, OR LOSSES SUFFERED BY ANY PARTY TO A JUDICIAL PROCEEDING INVOLVING THE SOURCE MATERIAL) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL CUSTOMER HAVE ANY RECOURSE AGAINST ANY THIRD-PARTY LICENSOR OR PROVIDER FOR ANY CLAIMS ARISING OUT OF ITS USE OF THE SERVICES, BUT SHALL SEEK ANY REMEDIES (SUBJECT TO LIMITATIONS SET FORTH HEREIN) SOLELY FROM RUTTER.

(d) EXCEPT TO THE EXTENT THAT RUTTER’S LIABILITY ARISES FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL RUTTER’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER EXCEED THE FEES ALREADY PAID BY THE CUSTOMER TO RUTTER IN ACCORDANCE WITH THE APPLICABLE
SOW.

(e) EXCEPT TO THE EXTENT THAT CUSTOMER’S LIABILITY ARISES FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL CUSTOMER’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AMOUNT OWED TO RUTTER IN ACCORDANCE WITH THE APPLICABLE SOW.

8. Dispute Resolution.

(a) In the event of a dispute arising under the MSA or SOW, the parties will attempt to resolve the dispute through Alternative Dispute Resolution (“ADR”). Should the parties be unable to resolve the dispute through ADR, the dispute will be subject to arbitration under the Commercial Arbitration Rules of the American Arbitration Association by one arbitrator selected in accordance with said rules. Any such arbitration shall be held in a neutral location in Massachusetts to be agreed upon by the parties. By agreeing to this arbitration provision, the parties agree to waive rights to trial by jury or judge. Notwithstanding this provision, neither party shall be prevented from seeking injunctive or other equitable relief from a court of competent jurisdiction in the event such party believes that failure to do so may cause it immediate and irreparable harm.

9. Miscellaneous Provisions.

(a) Force Majeure. Neither of the parties shall be held responsible for any delay or failure in performance due to act of war, earthquake, flood, embargo, riot, sabotage, strike or labor strife, court orders, requirements imposed by Government regulation or acts, civil or military authorities, acts of God or by the public enemy or other causes beyond such party's reasonable control (except Customer's obligation to make payment hereunder).

(b) Severability. If any provision of this MSA is found to be void, invalid, or otherwise unenforceable, the remaining provisions of this MSA shall nevertheless be binding and valid as if the voided, invalid, or unenforceable provision had been deleted.

(c) Notice. Any notice required or permitted to be given under this MSA must be in writing and must be (i) delivered in person, (ii) sent by certified mail return receipt requested, or (iii) sent by nationally recognized overnight courier service, to the address provided herein. Notices will be considered to have been given at the time of actual delivery if in person, or three business days after deposit if sent by certified mail, or one business day after delivery if sent byovernight courier service.

(d) Non-Solicitation. Customer agrees that it will not, during the Term of this MSA and for one year following its termination, directly or indirectly, hire, employ, solicit or attempt to hire or solicit for employment or consulting (or otherwise induce or attempt to induce such persons to leave the employ of Rutter) any persons employed by Rutter. In Customer breaches this provision, and Rutter takes legal action to enforce this provision, Customer agrees Rutter shall be entitled to injunctive relief and to recover from Customer its reasonable attorney’s fees and costs incurred in such legal action. This provision is enforceable independent from this MSA and shall survive the termination of the MSA.

(e) Entire Agreement. This MSA, all applicable executed SOWs, and all documents incorporated herein or therein by reference, sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior agreements of the parties relating to such. All modifications to this MSA must be in writing and executed by both parties to be valid and enforceable.

(f) Governing Law. This MSA shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflicts of law provisions. Subject to Section 8(a), any disputes regarding this MSA shall be subject to the exclusive jurisdiction of the Massachusetts state courts in and for Middlesex County, Massachusetts (or, if there is exclusive
federal jurisdiction, the United States District Court for the District of Massachusetts), and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.

(g) Section and Other Headings. The section, paragraph, and other headings are for reference purposes only and shall not affect in any way the meaning or interpretation of this MSA. This MSA will not be construed more strongly against or in favor of either party, regardless of which party drafted or prepared this MSA.

(h) Survival of Obligations. The obligations of the parties under this MSA, which by their nature would continue beyond the termination, cancellation or expiration of this MSA, shall survive termination, cancellation or expiration of this MSA.

(i) Waiver. Any waiver of the provisions of this MSA or of a party's rights or remedies under this MSA must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this MSA or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this MSA and will not in any way affect the validity of the whole or any part of this MSA or prejudice such party's right to take subsequentaction.