A2C Cloud General Terms

This A2C Cloud General Terms (“Agreement”) sets forth the agreement between A2 Consulting, LLC (“A2C,” “we,” “us,” or “our””) and the entity (the “you” or “your”) that has duly executed a Statement of Work with A2C which incorporates the terms of this Agreement by reference (each an “SOW” or “Statement of Work”). This Agreement shall become effective on the date specified in the SOW, or if none, on the date that such SOW is duly executed by Customer and A2C (“Effective Date”), and sets forth the terms and conditions that govern the SOW.

1. Definitions. Capitalized terms used herein and not defined will have the meanings set forth in Exhibit A Definitions. All other capitalized terms used herein and not defined in Exhibit A will have the meanings ascribed to them elsewhere in this Agreement or the applicable SOW.

2. Services. We will perform the Services for you and your Designated Affiliates and provide the Products, as set forth in the applicable Statement of Work. You will pay us the Fees as set forth the Statement of Work and in accordance with this Agreement, or as we may otherwise expressly agree in the Statement of Work.

3. Statement of Work.

  1. No Obligation to Enter into any SOW. This Agreement does not obligate you to enter into any Statement of Work and no draft or proposal for a statement of work shall be deemed effective (or deemed an SOW for the purposes of this Agreement) unless duly executed by both you and A2C.
  2. Precedence of SOW. If for any reason, the terms in your SOW conflict with the terms of this Agreement, the terms of the SOW will control with respect to such SOW only, but will not have any effect on the terms in any other SOW between you and A2C.
  3. Changes to the SOW. You may submit written requests to us to change the scope of Products or Services to be provided under the Statement of Work (each such request, a “Change Request”). We agree to consider in good faith all Change Requests. We will promptly notify you if we are able to perform the Change Request on the terms requested, and if such performance would require an adjustment to the fees or to the schedule for the performance of the applicable Services or delivery of Products. If we determine that we are not able to perform the Change Request on the terms requested, we will use reasonable good faith efforts to respond with any adjustments that would make the Change Request Acceptable. In the event we agree to perform the Change Request, the parties will negotiate in good faith a reasonable and equitable adjustment to the fees and/or schedule, as applicable. We will continue to perform Services and provide the Products pursuant to the existing Statement of Work. We are not required to perform any Change Request unless and until the parties have executed a written change order to the SOW. You acknowledge that where we have placed orders for Third Party Materials, we may not be able to cancel or change such orders.
  4. Acceptance. Unless otherwise expressly set forth in an SOW, you agree that any Product or Service will be accepted when it is made available for your use pursuant to the terms of the SOW. You agree that you will not withhold or delay payment based on any acceptance condition that has not been expressly agreed by us and included in your SOW which sets forth the maximum amount that may be withheld.
  5. Independent Offerings. Each Product and Service that we agree to provide under a Statement of Work is separate from any other Product or Service described or provided under any other SOW and any other product or service offering from or through A2C. Except as expressly set forth in this Agreement or in the SOW, your rights and obligations with respect to each Product and Service provided under any SOW is independent and not contingent on performance or delivery of any other Product or Service or other offering.

4. Our Personnel Resources.

  1. Point of Contact. Each Statement of Work will designate a primary point of contact to you for all matters relating to our engagement and the delivery of Products and Services under the SOW (which point of contact we may change upon notice to you).
  2. Qualifications. All Personnel that we assign to perform the Services will be qualified, skilled, experienced, and reasonably fit for the performance of their assigned tasks. If, in your reasonable judgement, you determine that any Personnel assigned to your project do not meet this standard, we will in good faith discuss alternatives with you, and if necessary, use reasonable efforts to replace Personnel. You acknowledge that any replacement of Personnel may cause delay in the performance of the Services, and in the case of “Block of Hours” of “Temp to Full-Time Services”, an increase in any blended fee or staffing fee, as applicable, if additional expenses are incurred to procure a suitable replacement.
  3. Code of Conduct. Our Personnel are subject to the standards of professionalism and codes of conduct set forth in our personnel policies which include, without limitation, an obligation to comply with our policies on protecting customer information, prohibitions on illegal drugs and any impaired job performance, avoiding conflicts of interest, and acting ethically at all times.
  4. Use of Subcontractors. We may provide Services through subcontractors that we have prescreened to meet the applicable requirements set forth in this Agreement and the Statement of Work. We will be responsible for our subcontractors’ compliance with this Agreement and the applicable Statement of Work. Upon your request, we will identify any subcontractor that we are using or plan to use to provide Services to you, and will cooperate in good faith to provide you with all relevant information reasonably requested regarding such subcontractors.
  5. Block of Hours Service. If your SOW includes “Block of Hours” Services, we will assign a predetermined team of Personnel to provide Services as set forth in your Statement of Work (“BOH Resources”). You will pay the Fee in advance for such BOH Resources set forth in the Statement of Work for the quantity or hours purchased. Unless otherwise set forth in the Statement of Work, any unused prepaid hours included in the Block of Hours Service will expire 12 months after the date of purchase. You may carry forward a portion of any unused hours not to exceed 10% of the total Block of Hours purchased for such period, provided you renew the Block of Hours Service for no less than quantity of hours (excluding the hours to be carried forward) and at the rates applicable for the term immediately preceding such renewal. You will not receive a refund or any further credit for any unused hours. Except as set forth in the SOW, upon the expiration or exhaustion of the designated hours (“BOH Expiration”), the Block of Hours Service will terminate whether or not such hours are consumed unless you provide us with notice on or prior to the BOH Expiration.
  6. Temp to Full-Time Personnel. If your SOW includes Temp to Full-Time Services, the SOW will identify the specific Personnel to be assigned to provide the Services (“TTFT Resources”). You may elect to solicit for hire any or all of the TTFT Resources upon providing written notice to us at any time after you have engaged such TTFT Resource, provided: (a) you have performed your obligations under the SOW as required, including timely payment of all amounts which have become due, up to and through the date when such TTFT Resource accepts your offer and converts to your employee; (b) you agree to a reasonable timetable, not to exceed 30 days, to allow us to transition such TTFT Resource in an orderly manner where you intend to hire such TTFT Resource prior to the expiration of such 6 month period, you pay any conversion fee set forth in the SOW to the extent permitted by applicable law; and (c), if the TTFT Resource has provided services for (i) greater than 6 consecutive calendar months under the SOW, you pay a conversion fee equal to that stated in the SOW (or if none, 10%) or (ii) less than 6 consecutive months you enter into a transition agreement with us and pay a conversion fee equal to that stated in the SOW (or if none, 25%). We agree to waive the restrictions set forth in Section 13 (Nonsolicitation) with respect to those TTFT Resources that you have elected to hire in compliance with the preceding sentence. You acknowledge that we cannot compel any TTFT Resource to accept, or guarantee that such TTFT Resource will accept, any offer of employment from you.
  7. Overtime and Premium Pay for BOH Resources and TTFT Resources. Fees for BOH Resources and TTFT Resources (as used in this Section, “Covered Resources”) exclude any charges for premium payment for overtime compensation required under applicable federal, state, or local law (“Overtime”), or premium wages required by state or federal requirements or contract specifications (“Premium Pay”). Unless Overtime or Premium Pay is expressly included in the Block of Hours or Temp to Full-Time Services described in your SOW, such Services exclude any performance to the extent such performance would require Overtime or Premium Pay. In the event that you request any Covered Resource to perform Services that would entitle such Personnel to receive Overtime or Premium Pay not expressly agreed in a Statement of Work, you will provide us with advance written notice of such request detailing the nature and extent of the Services required. We will use diligent efforts to provide an estimate of any additional charges that may apply, which shall be added to the Fee chargeable Covered Resources should such Covered Resources perform the Services. We cannot guarantee that we will be able to approve any such requests by you after execution of the Statement of Work.
  8. Employee Benefits. We acknowledge and agree that our Personnel are not eligible for or entitled to receive any compensation, benefits, or other incidents of employment that you make available to your employees. As between you and A2C, we are solely responsible for all employment related taxes, expenses, withholdings, and other similar statutory obligations arising out of the relationship between us and our Personnel and the performance of Services by such Personnel

5. Compliance.

  1. Our Security Practices. We implement and follow an enterprise security program, with policies, plans, and procedures that are consistent with industry standards. Our Personnel will be subject to the data protection and confidentiality obligations set forth in this Agreement with respect to any of your data that we may have access to in connection with the Services. Notwithstanding the foregoing, you agree that you will not provide to us with any private customer data, including but not limited to industry- regulated data such as PCI, PHI, etc. belonging to you, your employees, or any other third party (“Customer Data”). We do not require access to any Customer Data to provide Products or Services hereunder. As such, we will not be responsible for maintaining Customer Data, non-disclosure of Customer Data, or for the security of your Customer Data provided to us in violation of this Agreement.
  2. Compliance with Your Security Program for Onsite Services. While on your premises, our Personnel will comply with your security practices and procedures generally prescribed by you for onsite visitors and service providers, provided that such policies have been provided to us and approved in writing in prior to or contemporaneously with our execution of the SOW. After such time, we agree to discuss in good faith any condition or requirement you may request for our Personnel that are different from our standard policies; however you acknowledge and agree that any additional requirement may delay Services unless such requirements have been expressly set forth in a Statement of Work. We cannot guarantee that we will be able to approve any requirements requested by you after execution of the Statement of Work.
  3. Compliance with Laws. We will at all times comply with all applicable laws to the extent such laws apply to our delivery of the Products and Services under this Agreement and the SOW and impose direct obligations on us in our role as an information technology services provider with respect to such delivery. You will at all times comply will all applicable laws to the extent such laws apply to your use and receipt of the Products and Services provided under this Agreement and the SOW.
  4. Permissions for Access. You may require any Personnel to sign any waivers, releases, or other documents reasonably requested as a condition to gain access to your networks or premises for performance of the Services (“Access Documents”), and agree that: (a) Personnel who will be required to sign Access Documents will sign on behalf of A2C, (b) any additional or conflicting terms in Access Documents with this Agreement or the SOW will have no effect, and (c) you will pursue any claims for breach of any terms in the Access Documents against A2C and not the individual signing such Access Documents.
  5. Cooperation. The SOW will set forth the Client Responsibilities (“Client Responsibilities”) and Assumptions (“Assumptions”) that we will rely upon to perform the Services and provide the Products to you. You acknowledge that the accuracy of the Assumptions, your timely and complete performance of the Client Responsibilities and the provision of (and our access to) your facilities, equipment, assistance, cooperation, data, information and materials from your officers, agents and employees (the “Cooperation”) are essential to the performance of the Services in accordance with the objectives set forth in the SOW. We will not be liable for any delay or deficiency in performing the Services or providing the Products to the extent resulting from your failure to perform the Client Responsibilities or provide the necessary Cooperation, or any failure of the Assumptions to be accurate (“Client Non Performance”). In the event that as a result of Client Non-Performance, we incur any additional expenses to perform the Services or provide the Products such as Overtime, late fees, or additional hours, such charges will be added to the Fees payable to us for which you are responsible upon written notice to you. As part of the Cooperation and mitigate the risk of Client Non-Performance, you will (1) designate a project manager or technical lead to liaise with us while we perform the Services, (2) allocate and engage additional resources as may be required to assist us in performing the Services, and (3) make available to us any data, information and any other materials reasonably required by us to perform the Services, including any data, information or materials specifically identified in an applicable Statement of Work.

6. Use of Services and Third Party Materials.

  1. Service Usage. Our Services are provided to you for your legitimate internal business purposes and that of your Designated Affiliates. You agree that you will not knowingly (a) make any Service or Content available to anyone other than your employees and subcontractors who make use of such Services exclusively for your benefit, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service, Third Party Material, or third-party data contained therein, (f) attempt to gain unauthorized access to any portion of the Third Party Material Service its related systems or networks, (g) decompile, reverse assemble, or reverse engineer any portion of the Service or Third Party Material.
  2. Third Party Materials. Your SOW may include products or services that we have agreed to source from materials licensed or sold by third party vendors in connection with our provision of the Products or Services (“Third Party Materials”). Your SOW will specify any Third Party Materials that are bundled with or necessary for us to perform or provide the Products or Services described in your SOW. You agree to be bound by and comply with the terms of any license, purchase or other agreement for Third Party Materials (“Third Party Entitlements”) that may be required by the applicable vendor from which such Third Party Materials are sourced (each a “Third Party Vendor”) Examples of Third Party Vendors include, but are not limited to, Amazon Web Services, Inc. its Affiliates or distribution partners (other than A2C, “AWS”)) and your use of such Third Party Materials is further subject to such compliance. In connection with your use of Third Party Materials, you acknowledge and agree that:
    • The Third Party Vendors are permitted to perform audits on our systems with respect to the use of their respective Third Party Materials. You agree to cooperate with us to perform fulfill our obligations with respect to such audits, including, but not limited to granting access to necessary information regarding your use and compliance with Third Party Entitlements, provided such Third Party Vendor has agreed to keep such information confidential on terms no less rigorous than those set forth in this Agreement.
    • All trademarks and other Intellectual Property rights associated with or attached to Third Party Materials belong solely to the relevant Third Party Vendor and are licensed from such Third Party Vendor.
    • Except as permitted in the Third Party Entitlements, nothing herein grants to you any right, title, or interest in or to a Third Party Vendor’s Intellectual Property.
    • Where we source Third Party Materials as part of the Services, such as pursuant to a Third Party Vendor reseller program, we will pass through any warranties provided by the Third Party Vendor to the extent permitted by such Third Party Vendor.
    • We make no, and expressly disclaim any and all, warranties of any kind, whether express or implied, regarding the quality, accuracy, reliability, validity, or continued existence of any or all aspects of Third Party Materials, and disclaim all liability for any and all representations or warranties made by the Third Party Vendors with respect to the Third Party Materials.
    • Third Party Materials may, at any given time, be no longer be available or may be revoked at the discretion of the Third Party Vendor.
    • Any statements with respect to Third Party Materials made by us or our Personnel, or any third party entity related to us, is provided for information purposes only and does not constitute an endorsement or recommendation by us.
    • Your breach of any the terms of your Third Party Entitlements shall be deemed to be a material breach of this Agreement.
    • Where Third Party Materials will be obtained or provided by us from AWS, the terms set forth in Exhibit B, AWS Product and Service Terms shall deemed incorporated herein by reference, and Customer shall comply as applicable with the AWS Customer Agreement, the Acceptable Use Policy and other applicable AWS Service Terms available at www.aws.amazon.com/legal, as amended from time to time.

7. Price and Payment.

  1. Payment. You agree to pay us the Fees set forth in the applicable Statement of Work. We will provide invoices twice each month on a bi-weekly basis and you agree to pay such invoiced amounts in full within thirty (30) days of the date of each invoice. If you believe that any invoice is incorrect, you will promptly notify us. In the event you believe the error reflects an overcharge you may withhold the disputed amount provided that you pay the amount that is not in dispute and notify us in writing within such 30 day period with sufficient detail for us to understand the dispute. Both parties will use diligent good faith efforts to resolve the dispute. Pending such dispute resolution, the parties shall continue to perform their respective obligations under this Agreement. We may, in addition to any other rights, charge interest on unpaid amounts that have not been disputed in accordance with this Section at the lesser of 1.5% per month or the highest lawful rate, and may suspend our performance where such undisputed amounts are not paid within twenty
    (20) days after the applicable due date. If we incur any additional fees and expenses (including collection agency or legal fees) to collect past due unpaid amounts, such fees and expenses will be added to the Fee amount due and payable by you.
  2. AWS Funding. You may be eligible for funding from AWS towards the Fees charged for the Services (“AWS Funding”). Your SOW will describe any AWS Funding to the extent it is available to you. You will be solely responsible for ensuring all AWS Funding requirements are met promptly and fully in order to receive any AWS Funding and shall be responsible for timely payment of any portion of AWS Funding that is not received by us.
  3. Taxes. We will be solely responsible for taxes assessable to us based on our net income, property, and employees. You are solely responsible for all other taxes in respect of the Products and Services, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity. If you are required by law to make any deduction or to withhold from any amount payable to us hereunder, then the amount payable by you upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, we receives and retain, free from liability for such deduction or withholding, a net amount equal to the amount we would have received and retained in the absence of such required deduction or withholding. In the event that we pay or are required to pay any taxes for which you are responsible, you will promptly reimburse us for such amounts.
  4. Other expenses and costs. We agree to invoice you for pre-approved expenses incurred as a result of performing Services and providing the Products as set forth in the SOW. You will pay such expenses pursuant to Section 7.1. In the event that the SOW does not state that expenses are included in the Fees, then you will reimburse us for any expenses reasonably incurred in our performance of the Services, provided that we submit copies of valid receipts to you.

8. Intellectual Property.

  1. Your Materials. We will not obtain any rights in or to your Customer Materials, except that you grant us the right to use Customer Materials in order to provide the Products and Services. Nothing in this Agreement will be deemed to transfer to us any ownership of your Customer Materials.
  2. Services Materials and Customizations. You acknowledge that the Services Materials we create for one customer may be re-used in connection with our services for other customers, and except with respect to Customer Owned Work Product set forth in Section 8.3, the Services we perform and the Services Materials we offer, create, and deliver to you in connection with the Services, are generally applicable to our business. For the avoidance of doubt, our use of the Services Materials created for you in connection with Services will comply with our ongoing obligations and restrictions with respect to your Customer Materials and your Confidential Information, and we will not utilize personal information provided by you or identify you in any way in connection with our further use of such Services Materials. Subject to your ownership rights in Customer Owned Work Product and Customer Materials, we will own all rights in and to all Services Materials and you hereby assign to us all rights, title and interest in and to all Services Materials (including all Intellectual Property Rights therein), excluding in all cases any Customer Owned Work Product and Customer Materials.
  3. Customer Owned Work Product. If the parties agree that Services Materials for a project are custom work product unique to your business, and not applicable to other customers generally, we will expressly identify them as “Customer Owned Work Product” under a Statement of Work for ownership to pass to you. Upon payment of applicable Fees under the Statement of Work, we hereby assign to you all rights, title and interest (including all Intellectual Property Rights therein) in and to all Services Materials identified as Customer Owned Work Product (but excluding any and all Pre-Existing A2C IP incorporated into the Customer Owned Work Product). At your request and expense, we will assist and cooperate with you in all reasonable respects and will execute documents, and take such further acts reasonably requested by you to enable you to acquire, transfer, maintain, perfect and enforce your ownership rights in such Customer Owned Work Product.
  4. License Rights. For those Services Materials that are not Customer Owned Work Product, To the extent Services Materials are incorporated into the Services or deliverables provided under this Agreement (collectively, “Work Product”), we grant you a non-transferable, non-exclusive, world-wide and royalty free license to use the Work Product solely for the internal business purposes of you and your Designated Affiliates upon payment in full of all fees and expenses due to us for the applicable Services and deliverables and subject to any use restrictions, provided that you may modify and enhance deliverables consisting of scripts and code solely for the internal business purposes of you and your Designated Affiliates. You agree not to reverse engineer any software included in the Work Product.
  5. Reservation of Rights. Each party reserves all intellectual property rights not expressly granted to the other party under this Agreement. You acknowledge and agree that, subject to our confidentiality obligations in Section 13 (Confidentiality), we are not restricted from developing, implementing, marketing or selling services or deliverables for other customers or projects that are similar to the Services or deliverables provided under this Agreement.

9. Warranties.

  1. A2C Warranties. We warrant that we will provide the Services in a professional and workmanlike manner. In the event of a breach of this warranty, we agree to re-perform the applicable Services within a reasonable time provided that you notify us in writing within 30 days following the date of acceptance of the Services in accordance with Section 3.4, above. The foregoing warranty excludes any Third Party Materials, or errors, defects or conditions resulting from the use thereof, and constitutes your sole and exclusive remedy, and our sole and exclusive obligation, for any breach of the warranty set forth in this Section 6.1.
  2. Third Party. A2C does not warrant any Third Party Materials. Except to the extent expressly set forth in this Agreement or the Statement of Work, the terms of your access and use of any Third Party Materials are governed by the terms of the Third Party Entitlements between you and the applicable Third Party Vendor, and you agree that we have no liability or obligation to you for such Third Party Materials, the results of the use thereof, or the effect that the use thereof has on your use of the Services.
  3. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, OR IN SECTION 6 OF EXHIBIT B (IF APPLICABLE) THE PRODUCTS, SERVICES AND THIRD PARTY MATERIALS ARE PROVIDED HEREUNDER ON AN “AS IS” BASIS, AND A2C MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR OTHERWISE) WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY AS TO NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE PERFORMANCE OR CONFORMITY TO SPECIFICATIONS.

10. Indemnification.

  1. General. Each party shall indemnify, defend and hold the other party harmless from the all claims, losses, liabilities, damages, costs and fees (including reasonable attorneys’ fees and expenses) finally awarded by a court of competent jurisdiction or agreed to in settlement or compromise, to the extent that such fees and costs arise from a third party claim, proceeding or suit which is based on the grossly negligent acts or willful misconduct of its employees or agents, that directly causes damage or bodily injury to persons or property, real or tangible, and such damage or bodily injury directly arises out of performance of this Agreement (a “Claim”).
  2. Procedure. Our obligations hereunder shall be conditioned on you promptly notifying us of any such Claim and permitting us to assume full control over the defense and settlement of such Claim; provided however, that: (a) we shall keep you informed of, and consult with you in connection with the progress of such litigation or settlement; and (b) we shall not have any right, without your written consent (which shall not be unreasonably withheld), to settle any such Claim if such settlement contains a stipulation to or admission or acknowledgment of any liability or wrongdoing (whether in contract, tort or otherwise) on your part, or requires any specific performance or non-pecuniary remedy by you.
  3. Exceptions. Notwithstanding the foregoing, we will have no obligation to you under this Section 10 to the extent that any such Claim arises or results from (a) the unauthorized or improper use by you of the Product, Services or Third Party Materials provided by us under this Agreement; (b) the combination of the Services provided by us under this Agreement with other products or services not provided by us; (c) the alteration or modification of the Products, Services or Third Party Materials by or for you without our written consent; (d) your direction or specifications; or e) a Claim that could have been avoided by your use of alternative products or services provided or offered to you by us.
  4. IP Remedies. Should any Services provided under this Agreement become, or in our reasonable opinion be likely to become, the subject of an infringement Claim, we may, in our sole discretion and expense, either: (a) procure for you the right to exercise its rights under this Agreement; or (b) re- perform the Services in a manner that is non-infringing, provided that Customer receives the material benefits of the Services. If we determine in our sole discretion that (a) or (b) are not commercially reasonable, we shall notify you in writing and as applicable, suspend or cancel the Services under this Agreement. Upon our written notice of such termination, You shall return to us all affected deliverables provided in connection with the affected Services in Customer’s possession for a pro-rata refund of those Fees paid by you to us for the affected Services calculated on a straight-line basis over the duration of the Services purchased.
  5. Entire Obligation. The foregoing states our entire liability and your exclusive remedy with respect to any Claim.

11. Insurance. Throughout any period of Services we perform for you, we will maintain insurance policies in the types and amounts described below at our own expense. Certificates evidencing such coverage will be provided upon request:

  1. Commercial General Liability Insurance with a limit of not less than $1,000,000 per occurrence and a general aggregate limit of not less than $2,000,000.
  2. Business Auto Insurance with a limit of not less than $1,000,000 per accident. Such Insurance will cover liability arising out of “hired and non-owned” automobiles.
  3. Worker’s Compensation Insurance as required by workers’ compensation, occupational disease and occupational health and safety laws, statutes and regulations.
  4. Technology Errors & Omissions Insurance with a limit of not less than $1,000,000.
  5. Umbrella/Excess Insurance with a limit of not less than $2,000,000.

12. LIMITATION OF LIABILITY.

  1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS OR, FOR CUSTOMER, COSTS OF PROCURING SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, SERVICES,THIRD PARTY MATERIALS OR ANY WORK PRODUCT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE OTHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S TOTAL LIABILITY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL EXCEED THE AMOUNTS PAID UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER.
  2. THE LIMITATION OF LIABILITY HEREIN WILL NOT APPLY TO: (A) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR THE FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; (B) CLAIMS FOR FEES AND EXPENSES DUE TO US UNDER THIS AGREEMENT OR THE SOW; (C) DAMAGES RESULTING FROM CUSTOMER’S BREACH OF SECTION 8 OR 5.3; OR (D) DAMAGES RESULTING FROM A2C’S BREACH OF SECTION 4.8. THE FOREGOING DISCLAIMERS OF DAMAGES WILL ALSO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. TO THE EXTENT SUCH A LAW APPLIES TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
  3. This limitation of liability is cumulative and not per incident (i.e., the existence of two or more claims will not enlarge this limit). You acknowledge and agree that we have provided terms, set our prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect a fair allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and result in consequential loss), and forms an essential basis of the bargain between the parties. THE LIMITATIONS OF THIS SECTION 12 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.

13. Confidentiality.

  1. Scope of Confidential Information Obligations. The restrictions on disclosure set forth in this Section 13 shall not apply to Confidential Information which: (a) becomes publicly known without breach of this Agreement; or (b) the Recipient can show by written records was rightfully in its possession prior to the disclosure by the Discloser or becomes rightfully known to the Recipient without confidential or proprietary restriction from a source other than the Discloser; (c) is approved for disclosure without the restriction in a written document which is signed by a duly authorized officer of the Discloser; or (d) is independently developed by the Recipient prior to the disclosure without reference to the Discloser’s Confidential Information.
  2. General Obligations. Recipient may use the Discloser’s Confidential Information solely for the purpose of exercising its rights and performing its obligations under this Agreement. Recipient agrees to take the same care with the Discloser’s Confidential Information as it does with its own information of a similar nature, but in no event with less than a reasonable degree of care. Recipient shall limit access to the Confidential Information to those persons having a need to know such information, provided that each such employee and consultant is subject to a written agreement containing confidentiality obligations no less protective than those contained in this Agreement. Recipient may disclose Confidential Information: (a) insofar as disclosure is reasonably necessary to carry out and effectuate the terms of this Agreement; (b) insofar as the Recipient is required by law or legal proceedings to disclose such information provided that the Recipient provides the Discloser with prompt written notice of such requirement to enable the Discloser to seek a protective order; (c) insofar as disclosure is necessary to be made to the Recipient’s independent accountants for tax or audit purposes; and (d) insofar as the parties may mutually agree in writing upon language to be contained in one or more press releases. In addition, neither party will disclose to any third party the terms of this Agreement without the prior written consent of the other party.

14. Non-Solicitation. During the term of this Agreement and for sixty (60) days thereafter, you agree not to, directly or indirectly, hire or solicit any of our Personnel, or encourage or induce any of our Personnel to terminate his or her relationship with us; provided, however, that the foregoing shall not prohibit you soliciting or hiring TTFT Resources if permitted pursuant to Section 4.6 or from recruiting generally in the media or from hiring Personnel who answers any general advertisement or otherwise voluntarily applies for hire without having been specifically solicited by you.

15. Term and Termination.

  1. Term. This Agreement will commence upon the Effective Date and unless terminated pursuant to the terms herein, will remain in effect for the term set forth in the Statement of Work, or if none is specified, then until we have completed delivery of the Products and Services required thereunder.
  2. Termination. Either party may terminate this Agreement by written notice to the other party in the event of a material breach of this Agreement or the SOW that is not cured within 30 days of receipt of such notice, except that if, as a result of your breach, a Third Party Vendor terminates any of your Third Party Entitlements included in any SOW we may terminate this Agreement immediately upon written notice.
  3. Survival. The termination or expiration of this Agreement will not affect any provisions herein which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, ownership of intellectual property, confidentiality, payment obligations, effect of termination, limitation of liability, and the “Miscellaneous” section in this Agreement.
  4. Effect of Termination. Upon the expiration or termination of this Agreement: (a) each party will promptly return to the other party all Confidential Information of the other party in its possession and control; and (b) you will, within 30 days after receipt of our final invoice, pay all accrued and unpaid Fees. Notwithstanding the foregoing, copies of routinely backed-up information constituting Confidential Information may be retained subject to destruction in the ordinary course of such retaining party’s business, subject in all cases to the restrictions on use and disclosure under this Agreement.

16. Miscellaneous.

  1. Publicity. You agree that we may publish a description of your use of the Services and identify you as our customer on any of our or our Affiliates’ websites, customer lists, press releases, and/or other marketing materials.
  2. Independent Contractors. The relationship of you and A2C is that of independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on the other’s behalf or to represent itself as the other’s agent or in any way that might result in confusion as to the fact that the parties are separate and distinct entities. You acknowledge that we are not agents of, and not authorized to act on behalf of or bind, any Third Party Vendor.
  3. Force Majeure; Covid-19 Pandemic Impact.
    1. Neither party shall be liable for any loss, damage, or penalty resulting from delays or failures in performance resulting from acts of God, material shortages, or other causes beyond such party’s remedy or control.
    2. Owing to the uncertainties of the evolving Covid-19 pandemic situation, the provision of any Services under this Agreement are subject to the Personnel being permitted and able to perform such Services taking into consideration applicable laws and regulations, including those pertaining to health, safety and mobility (whether in the country of service provision and/or the country of location of the delivery resources). If the provision of any Services is materially adversely affected due to circumstances related to or arising from the Covid-19 or other pandemic situation, You agree to cooperate in good faith to review such impact and, if necessary, amend any resource plans, work plans, service specifications, time schedules and the like. For the avoidance of doubt, this section is without prejudice to the parties’ rights and obligations under the Section 16.3(a).
  4. Governing Law. This Agreement will be governed and construed under the laws of the Commonwealth of Pennsylvania without giving effect to any choice of law principles that would require the application of the laws of a different jurisdiction. You irrevocably and unconditionally (a) consent to submit to the exclusive jurisdiction of the state and federal courts located in the Eastern District of Pennsylvania (“Venue”) for the resolution of any dispute between the parties concerning the Products and Services specified herein; (b) agree not to commence any such proceedings except in such courts; and (c) waive any objection to the laying of venue of any such proceedings in the state or federal courts located in the Venue; except that either party may seek injunctive relief in any court of competent jurisdiction.
  5. Notices. All notices under this Agreement are required to be sent either via electronic delivery to the designated email address set forth in the SOW or to the principal addresses specified above by commercial overnight courier with written verification of delivery. All notices so given will be deemed received upon the date of receipt if by electronic delivery or two (2) days after dispatch for courier deliveries.
  6. Severability. If any provision of this Agreement is held invalid by the final determination of any court or other tribunal of competent jurisdiction, such provision shall be reformed only to the extent necessary to make it enforceable, and shall not affect the enforceability of (a) such provision under other circumstances or jurisdictions, or (b) any other provision under all circumstances or jurisdictions. The invalid or unenforceable provision will be construed by such judicial body so as to be enforceable to the maximum extent compatible with applicable law.
  7. Headings. The headings used in this Agreement are for ease of reference only and will not be used to interpret any aspect of this Agreement.
  8. Assignment. Customer may not assign or transfer this Agreement, nor any rights or obligations under this Agreement without the prior written consent of A2C. Any attempted assignment in violation of the foregoing shall be void and of no effect. However, notwithstanding the foregoing, either party may assign this Agreement in its entirety to (a) any Affiliate of such party; (b) any successor in interest to such party by way of merger or consolidation; or (c) a purchaser of all or substantially all of the assets of such party, provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement. This Agreement shall be binding on and inure to the benefit of the successors and permitted assigns of the parties.
  9. Entire Agreement. This Agreement together with the SOW and all Exhibit and Schedules to the foregoing, constitutes the entire agreement between A2C and Customer with respect to the subject matter hereof, and supersedes all prior agreements, understandings and negotiations, both written and oral, between the parties with respect to such subject matter. No waiver, amendment or modification of any provision of this Agreement shall be enforceable against A2C unless it is in writing and signed by A2C. Except for the exclusive remedies specified herein, each party will have all rights and remedies available to it at law or in equity for the protection of its rights hereunder, including an injunction enjoining the breach or threatened breach of this Agreement. This Agreement is not governed by the United Nations Convention of Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of each of which is hereby expressly excluded.
  10. Counterparts. This Agreement shall be deemed to be executed upon execution of the SOW. The SOW may be executed in two (2) counterparts, both of which taken together shall constitute one (1) single agreement between the parties. The parties may execute the SOW by electronic signature which shall be deemed an original signature for all purposes. The parties agree that a version of this Agreement or the SOW transmitted by means of electronic message or electronic record (electronic mail, electronic data interchange), once duly signed by the authorized representatives of each party, shall constitute a binding agreement and shall have the same force and effect as a document bearing original signatures.

Exhibit A

Definitions

  1. “A2C Preexisting IP” means, with respect to any Services Materials, all associated technology and all Intellectual Property Rights created or acquired: (a) prior to the date of the Statement of Work that includes such Services Materials, or (b) after the date of such Statement of Work but independently of the Services provided under such Statement of Work.
  2. “Account Information” means Customer information provided to A2C in connection with the creation or administration of Customer’s account, such as names, usernames, phone numbers, email and business addresses, and billing information necessary for A2C to administer Customer’s account and receive payment.
  3. “Affiliate” means an entity that controls (i.e., parent), is controlled by (i.e., subsidiary), or is under common control with (i.e., sister) a party to this Agreement.
  4. “Cloud Service Provider” means a third-party provider of communication, infrastructure, software and any other cloud services and constituting a part of the Services.
  5. “Confidential Information” means any information which is disclosed by a party (the “Discloser”) in connection with this Agreement or the SOW, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the other party (the “Recipient”) or any of its employees or agents and that is designated or marked as “confidential” or “proprietary” at the time of disclosure or that, based on the circumstances surrounding the disclosure, the Recipient knows or reasonably should know is considered confidential. Confidential Information shall also include the all documents provided with the Services that contain A2C’s confidential trade secret information. Account Information shall not be deemed to be Confidential Information.
  6. “Customer Materials” means the data, information, and materials you provide to us in connection with your use of the Services.
  7. “Designated Affiliate” means any Affiliates that is expressly set forth in the Statement of Work as permitted to access, use or receive the Services.
  8. “Fees” means the fees and expense that are applicable to the Services and Products, as identified in the Statement of Work.
  9. “Intellectual Property Rights” means all worldwide intellectual property rights, including copyrights and other rights in works of authorship; rights in trademarks, tradenames, and other designations of source or origin; rights in trade secrets and confidential information; and patents and patent applications.
  10. “Malicious Code” means code, files, scripts, agents or programs intended to do harm to our or any third party software or networks, including, for example, viruses, worms, time bombs and Trojan horses.
  11. “Personnel” means with respect to either party, any employee, consultant, contractor, or subcontractor of such party.
  12. “Product” or “Products” means products to be provided to you by us as expressly set forth the Statement of Work.
  13. “Services” shall mean the professional services and related deliverables to be provided to you by us as expressly set forth the Statement of Work.
  14. “Services Materials” means the materials and other deliverables that are provided to you as part of the Services, and any materials, technology, know-how and other innovations of any kind that we or our Personnel may create or reduce to practice in the course of performing the Services, including without limitation all improvements or modifications to our proprietary technology, and all Intellectual Property Rights therein.

Exhibit B

AWS PRODUCT AND SERVICE TERMS

The terms of this Exhibit apply only to Third Party Materials required to be provided pursuant to the terms of the Statement of Work and sourced from AWS through A2C as a Select Consulting Partner and authorized reseller. These terms govern fees, payment, pricing, and tax terms for use of any AWS Services (as defined below) provided by AWS through us as a Select Consulting Partner and authorized reseller to you. Any capitalized terms not defined herein have the meaning set forth in the body of the Agreement. All terms and conditions of the Agreement apply to the Third Party Materials described hereunder and are incorporated herein by this reference.

  1. Services. We are a Select Consulting Partner and authorized reseller of the services offered by AWS. Such services, as available from time to time by AWS, are referred to herein as the “AWS Services.” All AWS Services that are linked to a A2C Master Purchase Account are subject to the Agreement and the terms and conditions of this Exhibit. If included in the description of the Services in your SOW, we may assist with provisioning of new AWS Services, subject to the terms and conditions of this Agreement. In addition to provisioning and reselling the AWS Services to you, we may also provide you with supplemental migration and technical support services, as well as other software with respect to the AWS Services for the purposes of facilitating your transition to, and ongoing use of, the AWS Services.
  2. AWS Customer Agreement; Governing Terms. You represent and warrant that you have executed the AWS customer agreement found at https://aws.amazon.com/agreement/ (“AWS Customer Agreement”). This Agreement (and not the AWS Customer Agreement) governs access to and use of the AWS Services with respect to fees, payment, pricing, and tax terms for the AWS Services provided under this Agreement; any terms herein supersede any similar terms in the AWS Customer Agreement. The AWS Customer Agreement (and not this Agreement) governs access to and use of the AWS Services provided under this Agreement with respect to all other aspects of the AWS Services except for fees, payment, pricing, and tax terms; any terms of the AWS Customer Agreement supersede all other terms herein. The AWS Customer Agreement (and not this Agreement) governs access to and use of the AWS Services under End Customer Accounts, except for fees, payment, pricing, and tax terms for use of the AWS Services, which are superseded by such terms set forth in this Agreement. Unless otherwise set forth in a Statement of Work, we will designate your AWS accounts as “End Customer Accounts” (as defined by AWS) pursuant to the AWS Solution Provider Program Terms.
  3. Provisioning of AWS Services. All AWS Services subject to this Agreement must be approved by us in advance. Approval of all AWS Services provided under this Agreement will be contingent upon our satisfactorily completing a review of for purposes of evaluating the extension of credit. You agree to provide any information reasonably requested to assess payment and credit history and worthiness including with respect to any periodic updates to such review during the term of this Agreement. You may maintain or create AWS accounts outside of the A2C Master Purchase Account. Any AWS Services provisioned by you directly through AWS that are in accounts NOT linked to A2C’s Master Purchase Account will not the responsibility of A2C, and unless otherwise expressly included in a Statement of Work (a) are not subject to this Agreement; (b) we will not provide Services for these accounts.
  4. Authorizations. You acknowledges that in order for us to provide the Services, your AWS Services must be unlinked from any existing Consolidated Billing Account (“CBA”) and then linked to A2C’s AWS Master Program Account (“MPA”). You authorize us to take all acts necessary to provision or transfer requested AWS Services and accounts, including, without limitation, accessing any existing accounts with AWS, data setup, data migration, and AWS Services setup, to the A2C Master Purchase Account. Your consent authorizes us to collect, process, and use any personal data transferred to us by you for purposes of this Agreement. You consents to allow us to disclose this data to AWS and allow AWS to collect, process, and use any personal data transferred to us by you for the same purposes.
  5. Responsibilities and Obligations of the Parties.

    a. Prior to executing this Agreement, you must execute the AWS Customer Agreement.
    b. Prior to executing this Agreement, you must review the “AWS Solution Provider Program: AWS Distribution Program: Program Guide for End Customers.” This document is information available at https://s3-us-west2.amazonaws.com/solution-provider-program-legal- documents/AWS+Solution+Provider+Program+- +Program+Guide+for+End+Customers.pdf .
    c. You will not resell AWS Services hereunder to any third party.
    d. We will not prevent AWS or you from exercising the rights and the obligations under the AWS Customer Agreement.
    e. Each party acknowledges that AWS has the right to (i) communicate directly with you without our participation, and (ii) terminate your ability to access and use the AWS Services in accordance with the terms of the AWS Customer Agreement.

  6. Representations. We (a) make no representations, warranties, or guarantees to you with respect to the AWS Services; and (b) do not hold ourselves out as an agent or representative of AWS. You represent and warrant to us and to AWS that you, or your licensors own all right, title, and interest in and to the materials and data to be stored and provided to AWS through the AWS Services. You further represents and warrants that none of you materials or data, or any of its users’ use of its materials or data, will violate AWS’s Acceptable Use Policy.
  7. Termination. In addition to termination provisions specified in the body of the Agreement, we or AWS may terminate this Exhibit and all AWS Services if:
    a. you (i) violate applicable law, (ii) expose or threaten to expose AWS or us to any material liability, or (iii) cease to operate in the ordinary course, makes an assignment for the benefit of creditors or similar disposition of assets, or becomes insolvent;
    b. if necessary to comply with applicable law or requests of governmental entities; or
    c. if there is a material change in Customer’s management, ownership, control, or business operations.

  8. Additional Fee and Deposit Terms.

    a. Fees. The fees for the Services are those fees as published by AWS on the AWS public website at http://aws.amazon.com, such fees being incorporated herein by this reference. AWS in its sole discretion, may change the fees charged to us at any time. Any increase in AWS fees will cause an immediate proportional increase in the fees under this Agreement (e.g. if AWS increases its fees by 5% on a particular AWS Service, the fees hereunder for such service will increase by 5%), effective as of the date of the AWS. We may increase the fees under this Agreement, in our sole discretion, upon thirty (30) days written notice to you. For the term of this Agreement, you may be required to subscribe to a minimum of the “Business” tier of Premium support as described at: https://aws.amazon.com/premiumsupport.
    b. Deposit. We may require a deposit as security for the AWS Services provided under this Agreement. A deposit may be required upon the execution of this Agreement or at some time during the term of this Agreement in the event we have reason to believe that a deposit is necessary to secure full and prompt payment for fees and charges that become due hereunder. In the event a deposit is so required, we may use such deposit to cover all fees and charges incurred and unpaid by you. Upon the termination of this Agreement any unused deposit will be refunded to you. Deposits will not accrue interest and will not be maintained in a separate or trust account.

  9. Indemnification. In addition to indemnification terms specified in the Terms and Conditions of the Agreement, you shall also defend, indemnify, and hold us harmless from and against any liabilities, damages, losses, costs, attorney fees arising out of or relating to any third party claim, including a claim from AWS as a result of any action or inaction of Customer in violation of, or arising out of, this Agreement (including any breach of any representation or warranty contained herein), the AWS Agreements, or your use or misuse of the AWS Services.

  10. Security and Data Privacy. Security and Data Privacy of data transmitted stored or processed on or by the AWS Services is the responsibility of you and AWS. We make no representations or warranties, regarding your data security controlled by you or AWS. AWS provides that you may specify the AWS region in which you data is stored and accessed. Any such requests may be facilitated by us if included in the Services.

  11. Customer Responsibilities. Unless expressly set forth in the Statement of Work, you are solely responsible for properly configuring and using the AWS Services and maintaining appropriate security, protection, and backup of your materials and data, including using encryption technology to protect its materials and data from unauthorized access and routinely archiving its materials and data.

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