This Agreement, between Company (“Company”) and AMR Consulting, LLC (“AMRCON”), a Keyport Limited Liability Company sets forth the legal rights and obligations governing provisions of AMRCON services to Company. AMRCON shall provide Information Technology Management Services (“Services”) designated on the Service Order Agreement (“Agreement” or “SOA”) preceding these terms and conditions. In the event of a discrepancy between this Agreement and an SOA, this Agreement shall control.

Disclosure of and Changes

Company is responsible for providing AMRCON with complete information concerning each Desktop, Server and Managed Site (collectively “Managed Infrastructure”) and to notify AMRCON in writing in the event Company adds components to the managed Infrastructure within five (5) business days of installation. Otherwise if updated hardware in procured through AMRCON, it will be automatically added to the ODS Managed Services Agreement and may incur addition monthly and 1 time costs as stated in the Fee Schedule.

Company Data Protection

If Company has not elected the AMRCON Offsite Backup Service then prior to seeking technical support, Company is solely responsible for adequate protection and backup of Company’s data and software on any Managed Infrastructure that is not covered by the AMRCON Onsite Backup Service. If Company has not elected the CES “Central Endpoint Security” Monitoring, Management, and updates Service, then Company is required to license antivirus software for each computer or server connected to its network.

Pre-existing Conditions Clause

AMRCON has the right, in the first thirty (30) days of the Agreement with the Company, to determine that pre-existing condition reducing performance of the Company’s technology require billable time to resolve and shall pay AMRCON for the time that it takes for AMRCON to resolve such pre-existing condition.

Start of Service

This Agreement shall be effective upon the scheduled Service Start Date as noted in the SOA. If Company notifiesAMRCON in writing that it is not prepared to utilize the service or facility after AMRCON has notified Company that the requested service or facility is ready for use (for reasons other than those set forth above), AMRCON may begin billing by the Service Start Date. AMRCON shall not be liable for any damages what so ever resulting from delays in meeting requested or specified Service Start Date, or inability to provide service. Company agrees to cooperate with AMRCON to accomplish service activation by providing access to Company’s premises and facilitating service delivery requirements. The initial Service term shall be set forth on the SOA.

Renewal, and Cancellation

Company acknowledges that AMRCON incurs significant costs at the beginning of the relationship with Company and further agrees to the minimum Term of services defined in the SOA. Refunds will not be given for cancelled accounts. If Company does not cancel the agreement within sixty (60) days of the end of the Term upon written notice, AMRCON will automatically renew this agreement for (1) additional year after the initial term set as per the SOA.

Default/Termination

If Company (a) fails to pay any amount required under this Agreement when due and such failure continues for ten (10) days after notice to Company that the same is due and payable, (b) fails to comply with any other material provision of this Agreement and such noncompliance continues for thirty (30) days after notice to Company thereof, or (c) Company cancels or terminates service any time before completion of the term, then AMRCON may elect to pursue one or more of the following courses of action, as applicable: (i) terminate this Agreement, whereupon all nonrecurring and recurring charges that would have been due and payable are immediately due and payable for the remainder of the Term, (ii) take appropriate action to enforce payment, including suspension or discontinuance of all or any part of the Service, and or (iii) pursue any other remedies as may be provided at law or in equity.

Additionally, any of the following events shall constitute a default and AMRCON may terminate this Agreement due to any of the following events and pursue any of the remedies outlined in this Section: the insolvency, corporate reorganization, arrangement with creditors, receivership or dissolution of Company; institution of bankruptcy proceedings by or against Company; or assignment or attempted assignment of the Agreement or any interest herein.  AMRCON may charge for reconnection of the Service in the event AMRCON has suspended Company’s Service for default. Notwithstanding the foregoing, any termination of this Agreement by AMRCONshall not be construed as an exclusive remedy and shall not preclude or waive AMRCON rights to pursue any other available remedies.

Transferability

Company may not sell, transfer, or assign this Agreement, except to entities completely controlling or controlled by Company, without the prior written consent of AMRCON, which consent shall not be unreasonably withheld, provided written notice is provided to AMRCON. Any assignment in derogation of the foregoing sentence is null and void, and does not relieve Company of its obligations under this Agreement.

Software License

Company agrees not to reproduce, modify, translate, transform, decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine source code from any AMRCON or third-party software, or permit or authorize a third party to do so. Title to such software, and all related technical know-how and intellectual property rights therein are and shall remain the exclusive property of AMRCON and/or its suppliers. Company shall not take any action to jeopardize, limit or interfere in any manner with AMRCON and its supplier’s ownership of and rights with respect to any licensed software. Company acknowledge and agrees that the name AMRCON and the accompanying logo are protected trademarks and Company is not permitted to use the nameAMRCON and the accompanying logo without the express prior written consent of AMRCON.

AMRCON PROVIDES, AND COMPANY HEREBY ACCEPTS, ANY AMRCON OR THIRD PARTY SOFTWARE PROVIDED TO OR USED BY COMPANY IN CONNECTION WITH THE SERVICES “AS-IS” WITH NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NOTHING HEREIN SHALL BE INTERPRETED TO ENHANCE OR CREATE ANY WARRANTY WITH RESPECT TO ANY THIRD PARTY SOFTWARE. AMRCON DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF THE DELIVERY, INSTALLATION, SUPPORT OR USE OF ANY SOFTWARE. AMRCONASSUMES NO OBLIGATION TO CORRECT ERRORS IN ANY SOFTWARE. COMPANY UNDERSTANDS AND ACCEPTS ALL RESPONSIBILITY FOR ANY SOFTWARE MEETING COMPANY’S REQUIREMENTS OR EXPECTATIONS.

Warranties

AMRCON’S SERVICES, THE AMRCON WEBSITE, AND ALL OTHER INFORMATION, DOCUMENTS, LINKS, REFERRENCES, AND PRODUCTS, SOFTWARE, DOWNLOADS, REPAIR SERVICES, ADVISE, AND INFORMATION PROVIDED BY AMRCON AND ANY OF ITS THIRD-PARTY PRODUCT OR SERVICE PROVIDERS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

AMRCON ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMMISSIONS OR OTHER INADEQUACIES IN THE MEMBERSHIP SERVICES, THE AMRCON WEBSITE, OR ANY OTHER INFORMATION, DOCUMENTS, LINKS, REFERENCES, PRODUCTS, SOFTWARE DOWNLOADS, REPAIR SERVICES, ADVISE, AND INFORMATION PROVIDED BY AMRCON OR ANY OF ITS THIRD-PART PRODUCT OR SERVICES PROVIDERS.

AMRCON MAKES NO REPRESENTATION OR WARRANTY WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, SYSTEM EQUIPMENT OR AMRCON OWNED OR PROVIDED EQUIPMENT USED BY COMPANY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR EQUIPMENT FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS. AMRCON SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY, AND MAKES NO WARRANTY, FOR THE SUBSTANCE, ACCURACY OR QUANTITY OF INFORMAITON OBTAINED THOUGH ITS NETWORK, AN ACCOUNT, OR THAT THE SERVICE WILL BE ERROR-FREE, WHETHER OF NOT SUCH SERVICE IS USED BY COMPANY OR AN END-USER. IN ADDITION, AMRCON MAKES NO WARRANTY WITH RESPECT TO ANY SOFTWARE OR HARDWARE PRODUCTS (“PRODUCTS”) USED OR PROVIDED BY AMRCON IN CONNECTION WITH AN ACCOUNT. ANY PATENT, COPYRIGHT, TRADEMARK, TRADE  SECRET OR OTHER INTELLECTUAL PROPERTY CLAIMS, WETHER ACTUAL OR ALLEGED, ARE THE DIRECT RESPONSIBILITY OF THAT PRODUCT’S MANUFACTURER. AMRCON ASSUMES NO RESPONSIBILITY FOR ANY ACTIONS OR LIABILITIES ARISING FROM THE POSSESSION OR USE OF THE PRODUCTS.

AMRCON makes every attempt to obtain information directly and indirectly from the actual vendors of said hardware and software, to provide the right solution, opinion, and solution to projects, add-ons, or any other jobs required by Company. AMRCON uses industry standard and industry best practice for implementation and recommendations of hardware and software. In most cases AMRCON has working experience with the solutions recommended to Company. New technologies required that are not familiar will be disclosed prior to work implementation.

Limitation of liability

In no event shall AMRCON be liable to any person for any special, general, incidental, indirect, consequential, or punitive damages of any kind, including, without limitation, those resulting from negligent or criminal acts of third parties, loss of use, loss of data, lost profits, or computer hardware damage, in connection with any  of the membership services, the AMRCON website (including all information, services, and products that are referenced or linked to in the AMRCON website), or any other information, documents, products, software, downloads, repair services, advise, and information provided by AMRCON or any of its thirds-party product or service providers, whether such person is advised of the possibility of such damages. In any case, Company understands and acknowledges that AMRCON shall not be responsible for any lost data or work delays resulting from any technical support services, other services, or products provided by AMRCON.

AMRCON’S CUMULATIVE LIABILITY TO COMPANY AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICE OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), SHALL NOT EXCEED THE TOTAL FEES ACTUALLY RECEIVED BY AMRCON FROM COMPANY, WITH RESPECT TO THE SERVICE PROVIDED TO COMPANY DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.

Acts Beyond AMRCON’s Control

AMRCON shall not deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, fire, floods, earthquakes, natural disaster, accident, riots, acts of government, civil disturbances, terrorist act, computer “hacking” attack or computer virus, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of Company’s agents or Company’s third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, the Distributor, suppliers, subcontractors) or any cause beyond its reasonable control. Nothing contained in this Section shall operate as a basis for Company to delay payment to AMRCON which payment requirement shall be absolute and timely.

Confidentiality

“Confidential Information” means any of Company’s Data. Confidential Information shall be held in confidence by AMRCON, its employees, and subcontractors and be used only for the purposes of providing the Services or as otherwise provided for in this Agreement. AMRCON shall use the same degree of care to safeguard Confidential Information as it utilize to safeguard its own and its subcontractors utilizes to safeguard their own confidential information. Confidential Information shall not include: (i) Information that is in the public domain, (ii) information that has been disclosed to AMRCON by a third party through no fault of AMRCON, or (iii) information that Company agrees may be disclosed to AMRCON.

AMRCON or its subcontractors may comply with any subpoena or similar order of a court or other government body or political subdivision thereof related to data on the AMRCON Server or otherwise stored by AMRCONpursuant to this Agreement, or with any other legal requirement requiring disclosure of such data, provided thatAMRCON notifies Company promptly upon receipt thereof, unless such notice is prohibited by law. Company shall pay AMRCON reasonable expenses and charges for such compliance.

Non-Solicitation of Employees

During the term of this Agreement and for one (2) year period after terminations of expiration of this Agreement, Company will not in any way, directly or indirectly, approach, solicit, entice or attempt to approach, solicit or entice any AMRCON employees or AMRCON Affiliates to leave the employment of AMRCON. Company acknowledges and agrees that in the event of a breach of the terms and conditions of this Agreement, there may be no adequate remedy at law, and that any such breach may allow the Company or third parties to unfairly compete with AMRCON resulting in irreparable harm to AMRCON and, therefore, thatupon any such breach or any threat thereof by the Company, AMRCON shall be entitled to seek appropriate equitable relief in addition to whatever remedies it may have at law and equity. Moreover, in the event that a Court determines that this provision is vague or overly broad, then the parties hereto agree to the reduction in length, scope or protected activity to the extent that shall enable a Court to enforce this Section to the maximum extent under applicable law.

Force Majeure

AMRCON takes every action to employ the best possible Disaster Recovery plan for its NOC. Backup generators, backup ISP’s, and other measures are in place to prevent downtime and unavailability at AMRCON’s NOC. In the event AMRCON’s delivery of the Services is delayed, prevented, or otherwise made impracticable by reason of any acts of God, fires, floods, earthquakes, or other natural catastrophes; national emergencies, strikes, lockouts or other labor difficulties; computer “hacking” attack or computer virus; any law, order, regulation or other action of any governing authority; or any other cause beyond AMRCON’s reasonable control, then AMRCON shall be excused from such delivery to the extent that it is delayed or prevented by such cause.

Modifications to Terms of Service & SLA

AMRCON reserves the right to amend the Terms of Service and/or SLA at any time by sending information regarding any amendment to the email address of the Primary Contact and/or Billing Contact Company provides to AMRCON with thirty (30) days notice prior to implementation of said amendment.  Company’s continued use of the Services after the thirty (30) day period during which such amended Terms of Service have been sent to Company shall be deemed acceptance by Company of the amended Terms of Service. In the event the change relates to any base rates or fees, Company shall have the right to request a formal review and explanation. Continuation of the notified change in the billing rate will act as confirmation of acceptance.

AMRCON retains the right to change , increase or decrease from time to time, in its sole discretion and without liability to Company, the methods, processes and/or the suppliers by which AMRCON provides Services to Company; as well as to change, add to or delete service offerings with appropriate notice to Company.

Fair Usage Policy; Suspension or Termination of Service

Though AMRCON has set no fixed upper limit on the amount of telephone, online, or onsite support requests a Company may make annually, each Company’s use is subject to AMRCON’s “Fair use” policy. Under this policy, if at any time, in AMRCON’s sole discretion, Company’s use exceeds the level of use reasonably expected from someone using the service for business use, then AMRCON reserves the right to suspend, terminate, or bill for Out-Of-Scope Services. In addition, AMRCON reserves the right to suspend or terminate any Services of any Company that AMRCON, in its sole discretion, determines are being used (a) fraudulently, (b) by any person other than Company, or (c) on any computer system other than Managed Infrastructure.

Choice of Law; Jurisdiction and Venue

This Agreement shall be construed as if it was executed and performed in Keyport, New Jersey and is made under and will be governed by and in accordance with the laws of the State of New Jersey. Company hereby agrees to the exclusive jurisdiction of, and waives any objection to the co-exclusive venue in the United States District Court of New Jersey venued in Newark, and the Supreme Court of the State of New Jersey in Monmouth County. Any cause of action by the Company must be commenced within ninety (90) days after the cause of action arose or it shall be forever waived and barred.

Severability

In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable, or invalid as a whole, and, in such event, any such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or intended provision within the limits of applicable law or applicable court decision. AMRCON’s failure to enforce any provision of the Terms of Service shall not be deemed a waiver of such provision nor of the right to enforce such provision.

Payment

Company shall pay AMRCON for Services pursuant to this Agreement. Prices for Services are exclusive of applicable taxes. Company agrees to pay the applicable setup and service fees as agreed by the parties in the SOA. All fees are non-refundable unless otherwise agreed to in writing by AMRCON. AMRCON may delay activation of Service to Company if the initial invoice is not paid when due. Regular billing for the Service will begin on the Service Start Date (as defined in the SOA). Thereafter, invoices will be for the specified period of Service as defined in the SOA and are payable fifteen (10) days after the date of the invoice, or the date specified on each invoice. Company agrees that any additional Project Service will incur additional fees and charges, and Company agrees to pay these fees and charges when invoiced.

Invoices not paid within thirty (30) days after the date of the invoice, unless otherwise specified on the invoice, will be past due and subject to a 2.0% per month interest fee or maximum rate permitted by law, whichever is less. Company agrees to reimburse AMRCON for any costs incurred as a result of any collection activity, including but not limited to reasonable attorneys’ fees. Company agrees that AMRCON may request information from a reporting agency to enable AMRCON to assess Company’s credit history that such action is not the extension of “credit” to Company, and that AMRCON may alter these billing arrangements as a result, upon notice to Company. In addition, Company acknowledges that AMRCON may require Company to pay for the Term of Service in full prior to providing Service in certain circumstances.

Indemnification

Company agrees to, and shall, indemnify, defend and hold harmless AMRCON, and its officers, directors, employees, agents, successors and assigns from and against any and all claims, demands, actions, damages, losses, expenses (including reasonable attorneys’ fees) and other liabilities arising from actions brought by THIRD PARTIES related in any way to Company’s use of the Services or Company’s alleged breach of this Agreement or the misuse by the Company of any intellectual property licensed to it under this Agreement. Company shall bear full responsibility for the defense (including any settlements) of any such claim; provided however, that (i) Company shall keep AMRCON informed of, and consult with AMRCON in connection with the progress of such litigation or settlement; and (ii) Company shall not have any right , without AMRCON’s written consent, to settle any such claim if such settlement arises from or is part of any criminal or civil action, suit or proceeding or contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of AMRCON.

Entire Agreement

This Agreement, together with the following SLA, SOA and any separately executed Out-of-Scope Project Specifications, constitute the entire understanding between AMRCON and Company with respect to the subject matter hereof. Terms and conditions as set forth in any purchase order submitted by Company to AMRCONwhich differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by AMRCON in writing.