Master Services Agreement

Background Statement

Customer is [insert description of Company business generally]. Core12 provides information technology systems management support and related services. Customer desires to have Core12 provide information technology systems management and support services. This Agreement provides the terms and conditions under which Core12 will provide, and Customer will purchase, the Services. The Parties agree as follows:

Article I — Term

1.1 Term

The term of this Agreement will commence on the Effective Date. The initial term of this Agreement (the “Initial Term”) shall be defined in the applicable Statement of Work, Service Agreement, or Service Plan executed by the parties (“Service Agreement”) unless earlier terminated in accordance with Article XVI (“Termination”). Upon expiration of the Initial Term, unless otherwise specified in the applicable Service Agreement, the term of this Agreement will automatically be renewed on a month-to-month basis (the “Renewal Term”), unless either Party gives at least sixty (60) days written notice to the other Party of its intent to terminate. Unless otherwise specified in the applicable Service Agreement, the fees payable by the Customer will be increased by twenty percent (20%) during the Renewal Term. The Initial Term, together with the Renewal Term, is collectively referred to as the “Term.”

Article II — Services

2.1 Overview

Core12 will provide the Base Services to Customer in accordance with Exhibit A (“Base Services”), commencing on the Effective Date and during the remainder of the Term. Core12 will provide the Customer New Services in accordance with Section 2.3 (“New Services”). (Base Services and New Services are, collectively, the “Services”). During the Term, Core12 will be the exclusive provider to Customer of services of the type comprising the Services.

2.2 Customer Service Responsibilities

Customer will perform the obligations expressly allocated to Customer in Exhibit A (“Base Services”) (the “Customer Service Responsibilities”). The Parties acknowledge that Core12’s ability to perform the Services in accordance with the terms of this Agreement is dependent in part upon Customer’s performance of the Customer Service Responsibilities. Accordingly, Core12’s failure to perform Core12’s responsibilities under this Agreement will be excused if (and to the extent that) that failure is caused in any material respect by Customer’s failure to perform any Customer Service Responsibilities and notice of such failure has been provided to Customer. Core12 will be entitled to be compensated for any additional reasonable out-of-pocket costs actually incurred by Core12 as a result of any delay or failure to perform by the Customer. Customer’s failure to perform Customer Service Responsibilities will not affect Customer’s obligation to pay Service Charges in accordance with Article IX (“Service Charges”).

2.3 New Services

Customer may request that Core12 provide services that are outside the scope of the Base Services (“New Services”). New Services include (1) services required to support entities acquired by Customer during the Term, and (2) services required to support additional Customer personnel, locations or new functions and systems. Any agreement of the Parties with respect to such New Services will be addressed in accordance with the Change Order Procedures.

Article III — Resources

3.1 Customer Materials

Customer retains all financial, administrative and maintenance responsibility for any software, tools, data, databases and methodologies licensed by Customer and Customer acknowledges that Core12 will require access to such materials for purposes of this Agreement. Customer is responsible for (i) obtaining any consents required for Core12 to access, use, copy, modify and enhance such materials, all to the extent necessary for Core12’s performance under this Agreement and (ii) maintenance of materials, including upgrades necessary to correct defects, at the most current release (or no more than two releases back from the most current release).

3.2 Core12 Materials

Any content, software, tools, databases, data or methodologies that are (i) owned by Core12 or Core12 Affiliates before the Effective Date or acquired by Core12 or Core12 Affiliates after the Effective Date, (ii) developed by Core12 or Core12 Affiliates other than pursuant to this Agreement or any other agreement with Customer that requires that Core12 assign ownership thereof to Customer, or (iii) licensed by Core12 or Core12 Affiliates from a Third Party, including any such items used by Core12 or Core12 Affiliates to provide the Services to Customer, are collectively referred to as the “Core12 Materials.” As between the Parties, Core12 will be the sole and exclusive owner of the Core12 Materials. Core12 will be responsible for (i) obtaining any consents required to provide the Services using the Core12 Materials, and (ii) maintenance of the Core12 Materials, including upgrades necessary to correct defects.

Article IV — Service Locations

4.1 Service Locations

The Services will be provided at Customer Service Locations and Core12 Service Locations specified in Exhibit A (“Base Services”).

4.2 Service Location Policies

When working at any Customer Service Locations or other Customer facilities, Core12 personnel will comply with Customer’s standard workplace security, administrative, safety and other policies and procedures applicable to Customer’s own employees. Customer will provide Core12 with a copy of each such policy and procedure and will notify Core12 of any subsequent modifications or amendments to those policies. If any such policies or procedures impose increased material costs or obligations on Core12, the Parties will seek to establish mutually acceptable alternative arrangements and to make appropriate adjustments to their respective obligations under this Agreement (including the charges payable to Core12).

Article V — Contract Management

5.2 Customer Account Representative

Customer will appoint one individual (the “Customer Account Representative”) to coordinate the performance of Customer’s obligations under, and to act as Customer’s representative regarding, this Agreement. The Customer Account Representative will act as the single point of contact for Customer under this Agreement and will have the authority on behalf of Customer to decide all questions of a day-to-day nature that may arise under this Agreement and to provide all approvals on behalf of Customer.

5.3 Core12 Account Advisor

Core12 will appoint one individual (the “Core12 Account Advisor”) to coordinate the performance of Core12’s obligations under, and to act as Core12’s representative regarding, this Agreement. The Core12 Account Advisor will serve as the single point of contact under this Agreement and have the authority on behalf of Core12 to decide all questions of a day-to-day nature that may arise under this Agreement and to provide all approvals on behalf of Core12.

5.4 Change Order Procedures

Either Party may request in writing that Core12 make changes, modifications or enhancements to the Services being provided pursuant to this Agreement (“Service Changes”). To request a Service Change, the requesting Party will deliver a written request (the “Change Order Request”) to the Account Representative of the other Party, specifying: (a) the proposed Service Change, (b) the objective or purpose of such Service Change, (c) the requirements and specifications of the deliverables to be delivered pursuant to such Service Change, and (d) the requested prioritization and schedule for such Service Change.

The Parties will cooperate with each other in good faith in discussing the scope and nature of the Change Order Request, and the time period in which such Service Change will be implemented. As soon as practicable after receipt of Customer’s Change Order Request or after submission of a Change Order Request to Customer, and to the extent applicable, Core12 and/or Customer will prepare and deliver to the other Party an analysis (the “Change Order Analysis”) (i) describing any changes in products and services that the Party believes would be required, (ii) estimating the increase or decrease in the Core12 charges that would be required due to such Service Change (if any), (iii) specifying how the proposed Service Change could be implemented, (iv) describing the effect, if any, such Service Change would have on this Agreement, (v) estimating all resources required to implement such Service Change, (vi) describing the delivery benefits or risks and associated risk mitigation plans, and (vii) containing such other information as may be relevant to the proposed Service Change.

If the Parties agree that making the Service Change (either individually or in the aggregate when such Service Change is considered with other Service Changes) will affect the provision of the then existing Services or Core12’s charges, then the Parties must provide approval (a “Change Order”) to the Change Order Request to authorize the making of the Service Change. Change Orders will constitute part of this Agreement.

Article VI — Marketing Assistance

6.1 Client Lists

Core12 may disclose that Customer is a client to other clients or potential clients, and may include a description of the general nature of the engagement provided for under this Agreement in one-to-one communications (e.g., responses to other requests for proposals). In making any such disclosures, Core12 will not disclose any Customer Confidential Information in violation of Section 10.1 (“Confidentiality”).

Article VII — Human Resource Matters

7.1 General Principles Regarding Core12 Personnel

(a) The personnel assigned to the Customer account by Core12 (or its subcontractors) will possess the training, education, experience, necessary certifications, and skill levels appropriate for the Services to be provided by such personnel. (b) The personnel assigned to the Customer account by Core12 (or its subcontractors) will be and remain employees of Core12 (or such subcontractors), and Core12 (or such subcontractors) will provide for and pay the compensation and other benefits of such personnel, including salary, health, accident and workers’ compensation benefits and all taxes and contributions that an employer is required to pay with respect to the employment of employees.

7.2 Limitations on Recruiting

During the Term and for a period of twenty-four (24) months following expiration or termination of the Term, neither Party will, directly or indirectly, knowingly solicit for employment, offer employment to or employ or retain (whether as an employee, officer, agent, consultant, advisor or in any other capacity) any active employee of the other Party whose job responsibilities are substantially related to this Agreement, except for the right of each Party to engage in general solicitations (e.g., through mass media “want ads” or similar personnel recruiting not directed at the employees or consultants of a Party).

Article VIII — Payment

8.1 Service Charges

Customer will pay Core12 for Services at the times and in the amounts specified in Exhibit A (“Base Services”). Customer will reimburse Core12 for certain expenses incurred by Core12 in connection with the performance of the Services, in accordance with the expense reimbursement provisions set forth in Exhibit A (“Base Services”).

8.2 Invoices; Method of Payment; Finance Charges

(a) Core12 will invoice Customer for the Service Charges on a monthly basis during the Term as more particularly set forth in Exhibit A (“Base Services”). Each invoice will include such detail as reasonably requested by Customer. (b) Customer will pay each invoice within twenty (20) days after Customer’s receipt of the applicable invoice. Any amount owed by Customer to Core12 that is not paid on or before the date such amount is due will bear interest at the rate of one percent (1%) per month.

8.3 Disputed Charges

Customer may withhold payment of charges with respect to which Customer reasonably and in good faith disputes the calculation thereof. Any amounts not so disputed otherwise must be paid by the applicable payment due date. Customer will notify Core12 in writing on or before the payment due date of any disputed charges for which Customer is withholding payment and describe, in reasonable detail, the reason for such withholding. Customer and Core12 will diligently pursue an expedited resolution of such dispute in accordance with Article XVI (“Dispute Resolution”).

8.4 Taxes

(a) Each Party will be responsible for (i) any personal property taxes on property it owns or leases (other than property subleased to the other Party), and (ii) taxes based on its net income or gross receipts. (b) Customer will be responsible for sales, use, excise, value-added, services, consumption and other taxes that are due in accordance with applicable law with respect to the provision of the Services (including the reimbursement of expenses) or goods received by Customer from Core12 or Core12 Affiliates. (c) The Parties will reasonably cooperate with each other to more accurately determine each Party’s tax liability and to minimize such liability to the extent legally permissible.

Article IX — Representations and Warranties

9.1 Core12 Representations and Warranties

Core12 hereby represents and warrants to Customer as follows: (a) Organization; Power. Core12 is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Georgia. Core12 has all requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. (b) Authority; Enforceability. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all requisite action on the part of Core12. This Agreement constitutes the legal, valid and binding agreement of Core12, enforceable against Core12 in accordance with its terms. (c) Non-contravention. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not conflict with or result in any violation of any provision of the charter or bylaws of Core12.

9.2 Customer Representations and Warranties

Customer hereby represents and warrants to Core12 as follows: (a) Organization; Power. Customer is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation. Customer has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. (b) Authority; Enforceability. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all requisite corporate action on the part of Customer. (c) Non-contravention. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will not conflict with or result in any violation of any provision of the charter or bylaws of Customer.

9.3 Disclaimer

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING ANY MATTER UNDER THIS AGREEMENT, INCLUDING ANY DELIVERABLES OR WORK PRODUCT, AND THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE ARE MADE EXPRESSLY IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR OTHERWISE. CORE12 EXPRESSLY DISCLAIMS ANY WARRANTY OF THE ACCURACY OR COMPLETENESS OF DATA, OPERATIONAL CRITERIA OR PARAMETERS PROVIDED BY THE CUSTOMER.

Article X — Confidentiality

10.1 Confidentiality

In connection with this Agreement, each of the Parties has disclosed and may continue to disclose to the other Party information that relates to the disclosing Party’s business operations, financial condition, customers, products, services or technical knowledge. “Confidential Information” means all information of a Party marked confidential, restricted, proprietary or with a similar designation. The terms and conditions of this Agreement, and all correspondence, information and other materials disclosed during the negotiation of this Agreement will be deemed Confidential Information.

Each Party’s Confidential Information will remain the property of that Party except as otherwise expressly provided in this Agreement. Each of the Parties will use at least the same degree of care to safeguard and to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure or publication of its own information of a similar nature, but in no event less than a reasonable degree of care.

Neither Party will (i) make any use or copies of the Confidential Information of the other except as contemplated by this Agreement, (ii) acquire any right in or assert any lien against the Confidential Information of the other, or (iii) sell, assign, lease or otherwise commercially exploit the Confidential Information of the other Party. Upon expiration or any termination of this Agreement, each Party will return or destroy, as the owner may direct, all documentation in any medium that contains or refers to the other Party’s Confidential Information.

10.2 Unauthorized Acts

Each Party will: (a) notify the other Party promptly of any material unauthorized possession, use or knowledge of the other Party’s Confidential Information; (b) promptly furnish details of the unauthorized activity and use commercially reasonable efforts to assist in investigating or preventing recurrence; (c) cooperate in any litigation deemed necessary to protect proprietary rights; and (d) promptly use commercially reasonable efforts to prevent a recurrence of any such unauthorized activity.

10.3 Knowledge Capital

Nothing in this Agreement will preclude Core12 from marketing, developing or using for itself or others, services or products that are the same as or similar to those provided to Customer by Core12 pursuant to this Agreement. Core12 will continue to be free to use its general knowledge, skills and experience and any ideas, concepts, know-how and techniques related to the scope of this Agreement. This Section does not diminish Core12’s obligations regarding Confidential Information under Section 10.1.

Article XI — Audit Rights

11.1 Financial Audits

Each Party will maintain complete and accurate records to support and document all amounts payable under this Agreement, in accordance with generally accepted accounting principles. For a period of three (3) years following the Term, each Party and any independent accountants selected by such Party will be entitled once per year, following reasonable notice, to audit the other Party’s records. Any such audit will be conducted during regular business hours and at the expense of the Party conducting the audit, unless such audit reveals a discrepancy of more than 5%, in which event the other Party will pay the cost of such audit.

11.2 General Principles Regarding Audits

(a) Each Party will use commercially reasonable efforts to conduct audits with minimum inconvenience and disruption. (b) Customer will not use any Core12 Competitor to conduct such audits. (c) Prior to conducting any audit, the auditors will execute confidentiality and non-disclosure agreements as the other Party may reasonably request.

Article XII — Indemnification

12.1 Indemnification by Core12

Core12 will indemnify, defend and hold harmless Customer and Customer Affiliates from and against any and all Losses arising from claims by third parties relating to: (a) death or bodily injury caused by Core12’s negligence or willful misconduct; (b) loss or damage to property caused by Core12’s negligence or willful misconduct; (c) failure to perform obligations under third-party agreements; (d) failure to obtain required consents; (e) failure to pay applicable taxes; and (f) failure to comply with applicable laws and regulations relating to the Services.

12.2 Indemnification by Customer

Customer will indemnify, defend and hold harmless Core12 and Core12 Affiliates from and against any and all Losses arising from claims by third parties relating to: (a) death or bodily injury caused by Customer’s negligence or willful misconduct; (b) loss or damage to property caused by Customer’s negligence or willful misconduct; (c) failure to perform obligations under third-party agreements; (d) failure to obtain required consents; (e) third-party claims arising from Customer’s use of deliverables; and (f) failure to comply with applicable laws and regulations.

12.3 Infringement Indemnity

(a) Core12 will defend any third-party action based on a claim that Work Product or Core12 Materials infringe a third party’s copyright or constitute misappropriation of trade secrets. (b) Customer will defend any third-party action based on a claim that materials provided by Customer infringe a third party’s copyright or constitute misappropriation of trade secrets. (c) Core12 will have no liability to the extent an Infringement Claim is based upon misuse, modification, use in combination with non-Core12 materials, or Customer’s failure to use corrections.

THE FOREGOING PROVISIONS OF THIS SECTION 12.3 CONSTITUTE THE PARTIES’ SOLE AND EXCLUSIVE REMEDIES AND EACH PARTY’S ENTIRE LIABILITY, WITH RESPECT TO INFRINGEMENT CLAIMS.

12.4 Indemnification for Third-Party Claims

(a) Promptly after receipt of notice of a Claim, the Indemnitee will give written notice to the Indemnitor and will thereafter keep the Indemnitor reasonably informed. Within 15 days following receipt of written notice, the Indemnitor will notify the Indemnitee that it will assume control of the defense. (b) If the Indemnitor delivers timely Notice, it will have sole control over the defense and settlement, provided the Indemnitee may participate at its own expense and the Indemnitor obtains prior written consent before entering any settlement. (c) If the Indemnitor fails to assume defense within the prescribed period, the Indemnitee may assume defense at the Indemnitor’s cost.

Article XIII — Limitation of Liability

13.1 Limitation of Liability

IF EITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY MATTER RELATING TO OR ARISING FROM THIS AGREEMENT, THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE WILL NOT EXCEED AN AMOUNT EQUAL TO THE CHARGES FOR SERVICES PAID TO CORE12 DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE MOST RECENT EVENT. THIS LIMITATION WILL NOT APPLY TO OBLIGATIONS UNDER CONFIDENTIALITY, INDEMNIFICATION, INFRINGEMENT INDEMNITY, OR CUSTOMER’S PAYMENT OBLIGATIONS. EACH PARTY WILL HAVE A DUTY TO MITIGATE DAMAGES.

13.2 Exclusion of Certain Damages

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES DUE TO BUSINESS INTERRUPTION OR LOST PROFITS, SAVINGS, COMPETITIVE ADVANTAGE OR GOODWILL) ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM OR CAUSE OF SUCH DAMAGES EVEN IF FORESEEABLE.

13.3 Insurance

During the Term, each Party will maintain: (i) statutory workers’ compensation; (ii) employer’s liability insurance of $1,000,000 per occurrence; and (iii) commercial general liability of $5,000,000. Core12 will additionally maintain E&O liability insurance of $1,000,000. Each Party will use good faith efforts to have the other added as an additional named insured. Insurance companies must be rated by A.M. Best with at least an A- rating.

Article XIV — Termination

14.1 Termination for Cause

Either Party may, after complying with Section 15.1 (“Informal Dispute Resolution”) and giving at least 60 days prior written notice, terminate this Agreement for material breach by the other Party unless the breaching Party has within such 60-day period either cured such breach or made substantial progress to cure such breach and implemented a plan that results in a cure within 90 days.

14.2 Survival of Provisions

Upon expiration or termination for any reason, the provisions of Article VIII (Payment), Article X (Confidentiality), Article XI (Audit Rights), Article XII (Indemnification), Article XIII (Limitations of Liability), Article XIV (Termination), Article XV (Disputes) and Article XVI (Miscellaneous) will survive indefinitely.

14.3 Early Termination During Initial Term

If this Agreement or any Service Agreement is terminated by Customer prior to the expiration of the Initial Term for any reason other than Core12’s uncured material breach, Customer shall remain responsible for payment of all fees that would have become due through the remainder of the Initial Term. Such amounts shall become immediately due and payable upon the effective date of termination. In addition, Customer shall remain responsible for any applicable offboarding, transition, or disengagement fees set forth in the applicable Service Agreement.

Article XV — Disputes

15.1 Informal Dispute Resolution

The Parties shall attempt in good faith to resolve any claim or dispute concerning the Agreement prior to the commencement of litigation. Upon written request of either Party, each will appoint a designated representative to meet for the purpose of attempting to resolve the dispute. If the representatives do not resolve the dispute within thirty (30) days, then executive officers of both Parties will meet to review and attempt to resolve the dispute prior to the commencement of litigation.

15.2 Exceptions to Dispute Resolution Procedure

The provisions of Section 15.1 will not be construed to prevent a Party from seeking a temporary restraining order or injunctive or other equitable relief with respect to a breach (or attempted breach) of this Agreement by the other Party.

Article XVI — Miscellaneous

16.1 Force Majeure Events

Each Party will be excused from performance under this Agreement (other than payment obligations) for any period and to the extent prevented by a Force Majeure Event. “Force Majeure Events” include explosions, fires, flood, earthquakes, catastrophic weather conditions, acts of war or terrorism, acts of governmental authorities, and labor disputes.

16.2 Injunctive Relief

Each Party will have the right to seek injunctive or other equitable relief to address breaches (or attempted breaches) of this Agreement.

16.3 Assignment

Neither Party will assign this Agreement without the prior consent of the other Party; provided that either Party may assign this Agreement to any successor to substantially all of the business of such Party, or to any Affiliate of the assigning Party.

16.4 Consents

Where agreement, approval, acceptance or consent of either Party is required, such action will not be unreasonably delayed or withheld.

16.5 Relationship of Parties

Core12 is acting as an independent contractor. This Agreement does not create a partnership, joint venture, agency or any other type of joint relationship. In no event will Core12 be deemed to be acting in a fiduciary capacity for Customer.

16.6 Notice

Wherever under this Agreement one Party is required or permitted to give notice, such notice must be in writing and must be delivered personally, sent by email, sent by nationally recognized express courier or sent by certified mail (return receipt requested). Either Party may change its address for notices upon giving ten days written notice.

16.7 Severability

If any provision of this Agreement shall be declared judicially invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties intend that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent.

16.8 No Third-Party Beneficiaries

Nothing contained in this Agreement is intended to confer upon any Person (other than the Parties and the Indemnitees specifically identified in Article XII) any rights, benefits or remedies.

16.9 Publicity

All advertising, press releases, public announcements and public disclosures by either Party relating to this Agreement which includes the other Party’s name or branding will be coordinated with and subject to approval by both Parties prior to release; provided that either Party may indicate that Core12 is providing services to Customer.

16.10 Amendment

This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the Parties.

16.11 Entire Agreement

This Agreement (including the Exhibits) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings.

16.12 Governing Law

This Agreement will be governed by and construed in accordance with the laws, other than choice of law rules, of the State of Georgia.

16.13 Rules of Construction

The article and section headings are for reference purposes only and will not affect the meaning or interpretation of this Agreement. Unless the context otherwise requires, all terms used in the singular will be deemed to refer to the plural as well, and vice versa.

16.14 Inconsistencies

To the extent that the provisions of this Agreement and of any exhibit are inconsistent, the provisions of this Agreement will govern, provided that with respect to the description of the Services, the Exhibits will govern and control.

16.15 Counterparts

This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one agreement binding on the Parties.