Master Service Agreement

Each Order Document (herein defined) issued by Applied Tech Solutions, LLC dba Applied Tech, hereinafter referred to as “Applied Tech” is an offer to sell Products and/or Services (herein defined) to purchaser (“Client”) and includes, is governed by, and Client agrees to be bound by, this IT Master Solutions Agreement (“Agreement”). Applied Tech’s Order Document and this Agreement shall be deemed accepted by Client upon Applied Tech’s receipt of a purchase order or a signed SOW. Acceptance of Applied Tech’s Order Document and this Agreement is expressly limited to the terms contained in Applied Tech’s Order Document and this Agreement. Applied Tech rejects any terms and conditions contained in Client’s forms that are additional to or different from those set forth in Applied Tech’s Order Document or in this Agreement. Client and Applied Tech are sometimes referred to individually in this Agreement as a “Party” and collectively as the “Parties.” This Agreement shall be effective as the first time Client submits a purchase order to Applied Tech, signs an Applied Tech Order Document, or otherwise accepts an Applied Tech Order Document (“the “Effective Date”).

Now, therefore, in consideration of the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client and Applied Tech agree as follows:

1. ENGAGEMENT OF SERVICES
   • Service Agreements and Quotes: This Agreement contains general contractual terms for all information technology services to be provided by Applied Tech.  The specific information technology services that Applied Tech will provide, applicable pricing and payment terms, service level agreement, if any, and other transaction-specific provisions will be agreed upon through Service Agreements, Quotes, or other such project assignments (each a “Service Attachment or “Quote” or, collectively, “Order Document”).  Each Order Document shall be signed by both parties and will be deemed to incorporate all of the provisions of this Agreement by reference.  Each Order Document will be separate agreements between Applied Tech and Client.  Each Order Document issued by Applied Tech is an offer to sell software, hardware, or Resold Services (as defined below) (“Products”), and/or information technology services to be delivered by Applied Tech (“Services”) to Client, for its own internal use and not for resale. 
   • Order of Precedence: In the event of any inconsistencies between the terms of this Agreement and the terms of any Order Document, the terms of this Agreement shall control. The parties may specify in the applicable Order Document that a particular provision of the Order Document is to supersede a provision of this Agreement, in which case the superseding Order Document provisions shall be applicable only to such Order Document and shall be effective for such Order Document only if such provision expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement.
   • Performance of Services: The manner and means by which Applied Tech chooses to complete the Services are in Applied Tech’s sole discretion and control.
     • In the event that Client requires additions to or modifications of existing equipment or an existing network, either Local Area or Wide Area, Applied Tech reserves the right to inspect said equipment or network. If Applied Tech determines that said equipment or network does not meet minimum standards of performance or practices, Applied Tech shall inform Client of identified equipment network deficiencies. Applied Tech shall then make recommendations in writing necessary to bring said equipment or network up to minimum standards of performance or practices. In any event Applied Tech shall not be held responsible or liable for guarantees of prices, performance, or time frames resulting from such existing network or equipment deficiencies.
     • Applied Tech may install software and/or hardware to assist in the process of managing and maintaining the client’s network. Client agrees to abide by the licenses of the respective software publishers and hardware manufacturers. Copies of the respective licenses are available upon request. Upon expiration or termination of this Agreement, Client agrees to remove and return all property of Applied Tech promptly. Client will not hold any equipment belonging to Applied Tech for claims of set-off or reduction for any purpose whatsoever. Client agrees to de-install all software associated with Applied Tech. If Client fails to return any software and/or hardware, Applied Tech is entitled to collect Applied Tech published list price of product in damages. All equipment belonging to Applied Tech shall be kept physically secure and free from liens and encumbrances.
     • In the event Client wishes to add additional programs, applications or data sources, systems servers, network devices of any kind (hubs, routers, switches), or otherwise requests an expansion in the scope of the Services, then Client shall present its request for such alterations of its network to Applied Tech for scoping. No alterations will be permitted under this Agreement without a signed PCR.  A “PCR” means a project change request (change order) signed by both parties authorizing a change in the scope of the Services.
   • Client Responsibilities
     • The Client will provide Applied Tech, free of charge, all information, materials, documentation, resources, and make facilities and equipment available in a safe and appropriate space, as is reasonably necessary to allow the Applied Tech to provide the Services and the Deliverables (as defined in the Order Documents, if any). The Client shall not allow or admit any hazardous material in, on, under, or near the Applied Tech’s workspace and equipment, unless Applied Tech first provides written consent, and such hazardous materials are present in accordance with all applicable laws.
     • The Client will ensure that its staff, contractors and other third-party providers co-operate fully with Applied Tech and cause no delay. Where Applied Tech needs the Client to provide information or to make a decision, the Client will do so promptly so as not to delay Applied Tech. Applied Tech is not responsible for delays caused by Client’s breach of this Section.
     • The Client shall designate a single point of contact to interface with Applied Tech. This includes triage of calls, assignment of work orders to internal personnel or Applied Tech, and documentation of the completion of all work orders.
     • As used in this Agreement, “Required Consents” means any consents, licenses, or approvals required to give Applied Tech, or any person or entity acting for Applied Tech under this Agreement, the right or license to access, use and/or modify in electronic form and in other forms, including, without limitation, derivative works, the Client Components (“Client Components” means the hardware, software, and other products, including, without limitation, those specified in an Order Document as being provided by Client), without infringing the ownership or intellectual property rights of the providers, Applied Tech, or owners of such Client Components.  Client shall obtain and keep in effect all Required Consents necessary for Applied Tech to perform all of its obligations as set forth in this Agreement.  Upon request, Client will provide Applied Tech evidence of any Required Consent.  Applied Tech will be relieved of its obligations to the extent that they are affected by Client’s failure to promptly obtain and provide Applied Tech any Required Consents. Applied Tech will adhere to reasonable terms and conditions pertaining to Content as notified in writing to Applied Tech.  Applied Tech agrees not to remove or alter any copyright or other proprietary notice on or in any Content without Client’s consent.
     • Client shall (a) use reasonable security precautions in connection with its use of the Services, i.e., maintain up-to-date virus scanning and operating system security patches and firewall protection; (b) require each user to use reasonable security precautions, i.e., maintain up-to-date virus scanning and operating system security patches and firewall protection. In addition, Client shall not take any action or install any software that may preclude or impair Applied Tech’s ability to access or administer its network or provide the Services.
     • Client shall encrypt at the application level Confidential Information, Client data (including without limitation: all data and information about Client’s business(es), customers, employees, operations, facilities, products, markets, assets or finances that Applied Tech obtains, creates, generates, collects, views, accesses, or processes in connection with its performance of Services and is stored in any Client network), and all data that is considered sensitive data or that must be treated as confidential under state or federal law or under Client’s contractual obligations to others. This includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).

2. LENGTH OF AGREEMENT
   • Terms and Termination
     • This Agreement commences on the Effective Date and shall continue in full force and effect until terminated by either party in accordance with the terms of this Section 2.
     • Each Service Agreement, Quote, or project will take effect on its order date and will continue until it expires or is terminated by either party in accordance with the provisions of each Order Document.
     • Either party may terminate this Agreement for convenience at any time upon written notice to the other party. If there are any active Order Documents, termination shall be effective upon the expiration or termination of the last Order Document.  If there are no active Order Documents, termination shall be effective upon receipt of the written notice.
     • This Agreement or any individual Order Document may be terminated in accordance with subsection 2.1.4.1 (in certain circumstances where an opportunity to cure must be provided) or subsection 2.1.4.2 (in certain circumstances where an opportunity to cure is not available):
       • If the other party breaches any material provision of this Agreement or any Order Document and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching party (“Cure Period”). The notice from the non-breaching party shall specify the basis on which the Agreement or Order Document is being terminated, including a description of the breach and how the breach can be cured within the Cure Period.  If the breaching party fails to cure the breach within the Cure Period, then termination shall be effective on the thirty-first (31st) day following receipt of such notice by the breaching party.
       • No Opportunity to Cure. If: (a) the other party breaches any representation or warranty in this Agreement; (b) any representation or warranty is inaccurate, incomplete, false or misleading in any material aspect; or (c) the breach is of a type or nature that is not capable of being cured within such time period (such as, by way of example and not limitation, an obligation relating to Confidential Information).  The notice from the non-breaching party shall specify the basis on which the Agreement or Order Document is being terminated, including a description of any breach.  Termination shall be effective immediately upon receipt of such notice by the breaching party.
     • Either party may terminate this Agreement and all Order Documents upon written notice if the other party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization. Termination shall be effective upon receipt of the written notice.
     • The termination of a Service Agreement, Quote, or project will not affect any other Order Document unless such Order Document expires or is expressly terminated in accordance with this Agreement.

3. INDEPENDENT CONTRACTOR RELATIONSHIP
   • Applied Tech is an independent contractor: Applied Tech’s relationship with Client shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, agency, or employer-employee relationship between the parties. Applied Tech is not Client’s agent and is not authorized and shall not have authority to make any representation, contract, or commitment on Client’s behalf, or otherwise bind Client in any respect whatsoever.  This engagement is nonexclusive and nothing in this Agreement will in any way restrict the Client’s right to engage others to render the same or similar services.  Likewise, nothing in this Agreement will in any way restrict Applied Tech’s right to provide same or similar services to other clients.
   • Agreement not to hire: While this Agreement is in effect, and for a period of one year thereafter Client agrees not to solicit, induce, retain for consultation, attempt to hire, or hire any employee of Applied Tech, or assist in such hiring by another person or business entity or encourage any such employee to terminate his/her/their employment with Applied Tech for a period of twelve (12) months from employees last date of employment with Applied Tech, or twelve (12) months from the termination date of Agreement, whichever date is later. For consideration of Applied Tech’s investment to identify, recruit, retain and train its employees, and in the event Client hires any of Applied Tech employees or subcontractors, in breach of this Section, Client agrees to pay Applied Tech a finder’s fee equal to the greater of 100% of the annual gross salary paid by the new employer, or 100% of the employee’s salary when last employed at Applied Tech. Client shall reimburse Applied Tech for all reasonable expenses, including attorney fees, incurred by Applied Tech as a result of a breach of the terms of this Section.    This Section will not apply to job opportunities posted on recruiting websites or in other publications in which one party seeks to find candidates for open positions (absent direct solicitation and/or recruitment).

4. WARRANTY
   • Services: Applied Tech agrees to perform the Services with the degree of skill and care that is required by current good and sound professional procedures and practices and in conformance with generally accepted and customary standards for the information technology service market within the applicable service area where such work is performed. For Services containing a deliverable, such Services will be deemed accepted by Client if not rejected in a reasonably detailed writing within five (5) days of submission to Client, or as otherwise identified in the applicable Order Document.  In the event the Services provided by Applied Tech are not in conformance with this warranty, Client must provide written notice to Applied Tech within five (5) days after the performance of the Services and such notice will specify in reasonable detail the nature of the breach.  Upon confirmation of the breach, Applied Tech will use commercially reasonable efforts to take the steps necessary to correct the deficiency at no charge to Client. This is Client’s sole and exclusive remedy for breach of this warranty.  Applied Tech cannot and does not guarantee, and does not warrant, that failures of all or a portion of Client’s network will not occur, that all system back-ups performed will operate without failure, that the Client’s computer hardware or network are entirely secure, or that viruses will not penetrate the network.  In no case shall a project dependency or service dependency create a greater liability for Applied Tech.
   • Products: Client acknowledges that Applied Tech is reselling all Products purchased by Client and that Products are manufactured and/or delivered by a third party.  To the extent available, Applied Tech shall pass through to Client the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. In no event will Applied Tech provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fee(s). Client acknowledges that the terms and conditions governing the use of Products shall be solely between Client and the manufacturer of such Products. Accordingly, all Products provided by Applied Tech pursuant to this Agreement along with any accompanying materials (including instructions for use) are provided to Client “as is” without any warranty by Applied Tech, express or implied, of any kind. Applied Tech does not warrant, guarantee or make any representations regarding the use, compatibility, functionality or any particular result from the use of any such software.  In making said recommendations regarding IT planning Applied Tech will reasonably rely upon the manufacturer’s written materials in terms of correctness, accuracy, reliability, and applicability to the current issue. The entire risk as to the results and performance of the software is assumed by Client.
   • EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF APPLIED TECH IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF APPLIED TECH.  CLIENT IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES.  IN ADDITION, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH APPLIED TECH CANNOT BE HELD LIABLE.
   • Network Security: Applied Tech has not been retained, unless specified in a separate Network Security Order Document, to provide recommendations concerning the network security of the computer system. Any changes made to a system may have direct or indirect impacts that are negative to the security of your system(s). Applied Tech cannot anticipate every possible reaction due to system It is imperative that Client periodically tests computer system security to assure compliance with Client’s established security policies. Under no circumstances does Applied Tech guarantee or certify the prior, current or future integrity of the security of any system.

5. Limitation of Liability
   • Limit on Types of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL (AND APPLIED TECH’S SUPPLIERS AND LICENSORS WILL NOT) BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY CLAIMING THROUGH A PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL,  INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT, ANY ORDER DOCUMENT, OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, STRICT LIABILITY AND NEGLIGENCE), EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (C) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY ORDER DOCUMENT FAILS OF ITS ESSENTIAL PURPOSE.
   • Limit on the Amount of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLIED TECH’S TOTAL CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY, AND NEGLIGENCE), SHALL BE LIMITED IN ALL CASES TO AN AMOUNT WHICH SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID BY CLIENT TO APPLIED TECH DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE ORDER DOCUMENT.
   • Applicability. The terms in this Section 5 shall apply to the maximum extent permitted by applicable law.  If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions or capping its liability for certain acts or omissions, then the terms in this Section 5 shall apply to not limit liability for such acts and omissions but will apply for all other acts and omissions.
   • For the purpose of this Agreement, “Installation and Acceptance Date” is herein defined as the date upon which the equipment is installed, or services performed at Client’s premises and is substantially functionable or the first date the managed services are performed. The estimated installation date is an approximate date and Applied Tech shall not be liable for damages special, consequential or otherwise, for delays in Installation and Acceptance Date, including, but not limited to those caused by circumstances beyond Applied Tech’s reasonable control or for unforeseen circumstances in the installation of the equipment.
   • Applied Tech is not responsible for successful “willful act” attacks on Client of any kind (unless the result of negligence of Applied Tech staff), whether internal or external. This Agreement specifically does not cover the cost of any repairs or recovery efforts due to such an attack. This includes, but is not limited to, hacking, viruses, ransomware, deletion of files, hardware damage, and business damage due to a willful attack. Although under this Agreement, Applied Tech may have the responsibility to oversee Client’s security, backup and business continuation systems such as firewall, anti-virus software, and backup software and hardware, Applied Tech cannot be held responsible for attacks which are designed to circumvent these safeguards and attack Client.
   • Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 5 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CLIENT FOR THE SERVICES WOULD HAVE BEEN HIGHER.

6. INDEMNITY
   • Indemnification: Each party to this Agreement (the “Indemnifying Party”) shall indemnify and hold harmless and, at the other party’s request, defend the other party (the “Indemnified Party”) and its affiliates, successors, and assignees (and its and their officers, directors, employees, sub-contractors, clients, and agents (each an Indemnified Party) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, reasonable attorney’s fees and court costs) which the Indemnified Party may incur, which arise out of or relate to any claim, cause of action, civil action, or suit asserted by any third party against the Indemnified Party due to (a) any injury or the death of any person or any damage to or destruction of any real or personal property caused by the breach of this Agreement, or (b) by gross negligence of the Indemnifying Party, provided that the scope of indemnity under this sub-clause shall be limited by the comparative negligence of each party hereto (each a “Claim”).
   • The Indemnified Party shall tender to the Indemnifying Party sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly in writing of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim.  The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 6.  The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Claim.  In no event shall either Party makes any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned

7. CONFIDENTIALITY
   • Confidential Information: “Confidential Information” shall mean any information, technical data, or know-how which relates to the business, clients, Applied Tech providers, services or products of a party to this  Agreement including, without limitation, any research, products, services, developments, inventions, processes, techniques, designs, distribution, engineering, marketing, financial, merchandising, sales and/or salary information which is disclosed by such party or on its behalf, before or after the date hereof, to the other party or its employees or agents, directly or indirectly, in writing, orally or by drawings or inspection and is designated in writing as confidential, provided that if such information is in non-tangible information. Confidential Information does not include information, technical data or know-how which (i) is already published or available to the public other than by a breach of this Agreement; (ii) is rightfully received from a third party not in breach of any obligation of confidentiality; (iii) is independently developed by personnel or agents of the receiving party without access to the Confidential Information or the other; or (iv) is proven to be known to the receiving party at the time of disclosure. As to any particular Confidential Information, “Disclosing Party” means the party disclosing the Confidential Information and the “Receiving Party” means the party receiving the Confidential Information.
   • Receipt of Confidential Information: Receiving Party agrees that it will use the same care and discretion to avoid disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Disclosing Party, Receiving Party agrees that it will not:  (a) use the Confidential Information of Disclosing Party for any purpose other than the purpose for which Disclosing Party disclosed the information; or (b) disclose or reveal Confidential Information of Disclosing Party to any person or entity other than its employees, directors, officers, agents and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement.. The Receiving Party agrees to promptly advise the disclosing party in writing of any misappropriation or misuse by any person of such Confidential Information, which may come to its attention.
   • Disclosures Required by Law. If Receiving Party becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Receiving Party shall notify Disclosing Party of the requirement promptly in writing so that Disclosing Party may seek a protective order or other appropriate remedy.  If a protective order or other remedy is not obtained, or if Disclosing Party waives in writing compliance with the terms hereof, then Receiving Party shall furnish only that portion of the information which Receiving Party is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
   • Return of Information and Equipment: Upon termination of this Agreement or upon Disclosing Party’s request at any time, Receiving Party agrees to promptly return to Disclosing Party all copies of Confidential Information.  If return is impossible as to any portion of the Confidential Information, then Receiving Party shall certify to Disclosing Party promptly that all such Confidential Information of Disclosing Party, including all copies thereof, has been totally and permanently destroyed.  .
   • No Acquisition of Additional Rights: No party acquires any rights of ownership or title in the other party’s Confidential Information by virtue of this Agreement. Nothing contained herein shall be deemed to limit or restrict the rights of the Disclosing Party to assert claims for patent or copyright infringement against the Receiving Party. During the term of this and for a period of two (2) years after the expiration of this Agreement, it is understood and agreed that certain business and trade information which the parties deem confidential may be provided or disclosed by one to the other.
   • Right to Injunctive Relief: The Receiving Party acknowledges and agrees that its obligations and promises under this Agreement are of a unique character that gives them a particular value. The Receiving Party acknowledges and agrees that a breach of any promise or covenant related to Confidential Information or proprietary rights contained in this Agreement will result in irreparable and continuing damage to the other party for which there may be no adequate remedy at law and, in the event of such a breach, the other party shall be entitled to seek injunctive relief and/or a decree for specific performance and such other relief as may be proper.
   • Duration. The obligations set forth in this Section 7 shall apply during the term of this Agreement and for a period of one (1) year thereafter.

8. INTELLECTUAL PROPERTY
   • Ownership of Work Product: All Services provided under this Agreement, to the extent that Services contain any knowledge, processes, methodologies, formats, or other types of intellectual property that are possessed and owned by Applied Tech at the time Applied Tech begins to provide Services under this Agreement, or the Services will result in any modification to such intellectual property (“Applied Tech Knowledge”), the parties agree that Applied Tech is the owner of Applied Tech Knowledge.  Applied Tech hereby grants to Client a non-exclusive revocable, non-transferable license to use Applied Tech Knowledge as Client deems necessary to make full use of the Services as allowed under this Agreement.  Client shall use Client’s best efforts to protect and keep confidential all intellectual property provided by Applied Tech to Client and shall make no attempt to copy, alter, reverse-engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Client shall not resell, transfer, export or re-export any Products, or any technical data derived there from, in violation of any applicable United States or foreign law.  Nothing in this Agreement will be deemed to be intended to imply that any intellectual property rights will be transferred or otherwise assigned to either party, or to third parties.

9. FEES
   • Terms: Fees for Services performed, Products purchased, and reimbursable expenses shall be invoiced monthly.  All invoices are due and payable net 30 unless otherwise agreed to by Client and Applied Tech. Client agrees to pay a late payment charge at the rate of one and one-half percent (1.5%) per month, or at the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount for each calendar month (or portion thereof) that any payment is thirty (30) days past due.
   • Taxes: It is understood that any applicable federal, state or local taxes, and tariffs, shall be added to each invoice. Client shall pay any such taxes unless a valid exemption certificate is furnished to Applied Tech.
   • Default: If Client breaches any provision of this Agreement, Client shall be in default hereunder and all unpaid amounts shall become immediately due and payable. Client also agrees to pay up to a 30% collection fee of the invoice amount or a minimum of $100 should it become necessary for Applied Tech to engage outside professional services in the collection of the purchase price due to the Purchaser’s failure to pay the purchase price as shown on the invoice when due and also agrees to pay reasonable attorney’s fees with court costs.
   • Rates: With respect to continuing Services not covered in existing Agreement, unless otherwise provided, Applied Tech reserves the right to change rates by notifying Client thirty (30) days in advance of the effective date of the change.
   • NSF: There will be a $25.00 service charge per check returned unpaid.
   • Restocking Fee: A 20% restocking fee of the purchase price may be applicable on all returned merchandise and canceled orders that are accepted for return by Applied Tech.
   • Termination: On termination or expiration of one or more Service Agreements or Quotes the Client will pay Applied Tech all unpaid charges accrued up to the date of termination or expiration of the Service Agreement or Quote, and for all work done and expenses incurred or agreed to incur in connection with the Services.

10. ADDITIONAL PRODUCT TERMS
    • Shipment and Risk of Loss for Product Sales. All shipments of Products to Client will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Client’s identified point of delivery will be the responsibility of Client. Risk of loss will pass to Client upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Client’s representative at the point of shipment.
    • Product Security Interest. Client grants Applied Tech a security interest in the Products detailed in each Quotation, as security for payment in full. Client authorizes Applied Tech to file and/or record any documents it deems necessary to perfect this security interest.
    • Permitting Compliance for Product Sales. Client will obtain all licenses, permits, and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
    • Export. Client agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Client covenants that it will not, either directly or indirectly, sell, (re)export (including, without limitation, any deemed (re)export as defined by applicable law), transfer, divert, or otherwise dispose of any Product, or related software or technology, to: (i) any country or region of a country (or nationals thereof) subject to antiterrorism controls, or a U.S. embargo, (ii) any destination prohibited (without a valid export license or other authorization) by the laws or regulations of the United States, or (iii) any person, entity, vessel, or aircraft identified on the Consolidated Screening List, a downloadable file of which is accessible at http://export.gov/ecr/eg_main_023148.asp (or utilize any such person, entity, vessel, or aircraft in connection with the activities listed above), without obtaining prior authorization from the competent government authorities, as required by the above-mentioned laws and regulations. Client certifies, represents and warrants that no Product shall be used for any military or defense purpose, including, without limitation, being used to design, develop, engineer, manufacture, produce, assemble, test, repair, maintain, modify, operate, demilitarize, destroy, process, or use military or defense articles. Notwithstanding any sale of Products by Applied Tech, Client acknowledges that it is not relying on Applied Tech for any advice or counseling on export control requirements. Client agrees to indemnify, to the fullest extent permitted by law, Applied Tech from and against any fines, penalties and reasonable attorney fees that may arise as a result of Client’s breach of this Section.

11. MISCELLANEOUS
    • Entire Agreement: This Agreement supersedes and replaces any and all prior discussions, agreements, understanding, promises and representations, oral or written, between the Applied Tech and the Client in respect of the subject matter herein and, together with the Service Agreement(s) or Quote(s), constitutes the entire agreement between the parties relating to the subject matter.
    • Counterparts: This Agreement may be executed in counterparts, all of which, when taken together, constitute a single Agreement.
    • Severability:   If any provision of this Agreement is held invalid by any law, order, or regulation of any government or by the final determination of any state or federal court, such invalidity will not affect the enforceability of any other provisions not held to be invalid.
    • No Waiver: The failure of either party at any time to require performance by the other party of any provisions of this Agreement will in no way affect the right of such party to require performance of that provision.  Any waiver by either party of any breach of any provision of this Agreement will not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself or a waiver of any right under this Agreement.
    • Amendment:  No addition to or modification of any provision of this Agreement, any Service Agreement, or Quote will be binding on the Applied Tech or the Client unless recorded in writing and signed by a duly authorized officer of Applied Tech and of Client.
    • Notice: All written notices required to be given by either party to the other under this Agreement shall be addressed to the last known address of either Applied Tech or Client. Such notice shall be deemed to have been given five days after post marked by the United States Postal Service, return receipt requested.
    • No Third-Party Beneficiary: All of the provisions of this Agreement are solely for the benefit of the parties hereto and shall not inure to the benefit of any person not a party to the Agreement. Third parties shall have no rights hereunder.
    • Assignment: The Client may not assign, transfer, or otherwise dispose of, either in whole or in part, its interest in or rights under this Agreement or any Service Agreement or Quote without the prior written consent of a duly authorized officer of Applied Tech.  Subject to Client’s rights hereunder, Applied Tech may, without notice to the Client, assign, transfer or otherwise dispose of, either in whole or in part, its interest in or rights under this Contract.
    • Headings/Definitions: The Section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of this Agreement.  Where appropriate in context, the conjunctive will include the disjunctive, any will include all, unless will include until, and vice versa.  Applied Tech cannot be held bound or held responsible for typographical errors or omissions.
    • Use of Name and Publicity: Neither party will use the name, logo, trademark, trade name, or other marks of the other party without such party’s prior written consent.
    • Authority: The parties executing this Agreement warrant that this Agreement is being executed with full corporate authority and that the officers whose signatures appear hereon are duly authorized and empowered to make and execute this Agreement in the name of the corporation and, if applicable, by appropriate and legal resolution of its Board of Directors.
    • Force Majeure: Applied Tech shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, any delay caused by any act or omission of Client, acts of any governmental body, war, insurrection, pandemics, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in third party Services, inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
    • Survival. All sections of this Agreement that by their nature are intended to survive its expiration or termination, will survive the expiration or termination of this Agreement.
    • Joint and Several Liability. If more than one (1) Client is named in this Agreement, the liability of each shall be joint and several.
    • Subcontractors. Applied Tech may engage subcontractors to perform services under any Order Document.  Except as provided herein, Applied Tech shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
    • Insurance. Each party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, cyber liability, and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement.  For the avoidance of doubt, each party is solely responsible for insuring its personal property wherever located, and each party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite party.

12. DISPUTE
    • Dispute Resolution: All disputes between the parties arising out of this Agreement or any Service Agreement or Quote will first be subject to the cure periods set forth in this Agreement (if applicable), and then submitted for informal resolution between the Client’s chief information officer (or similar position) and the officer of Applied Tech having responsibility for the Services.  If the parties are still unable to reconcile their differences, they may seek relief from a court of competent jurisdiction; provided, however, that any such action shall be maintained within the federal or state courts of the state of Wisconsin.
    • Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin without regard to the choice of law or conflict of law principles.
    • Attorneys’ Fees: Should Applied Tech institute any legal action to recover or collect money due on unpaid invoices, Applied Tech shall be entitled to recover reasonable attorneys’ fees and expenses incurred in connection with same, provided that Applied Tech is successful in such action.
    • Remedies: All remedies set forth in this Agreement will be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise, and may be enforced concurrently or from time to time.