Master Services Agreement: Bureau of Internet Accessibility®

This Master Services Agreement ("Agreement") is made between You ("Customer") and Bureau of Internet Accessibility Inc., a Delaware corporation with a principal place of business at 5600 Post Road #114-274, East Greenwich, RI 02818 ("BOIA") and shall become effective upon Customer and BOIA executing a Statement of Work. Customer and BOIA may each be referred to herein individually as a "Party" or collectively as the "Parties."

In consideration of the covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Products and Services.

   • 1.1. Statements of Work. Pursuant to this Agreement, BOIA shall provide Customer with the services ("Services") and products and/or software (collectively "Products") set forth in one or more statements of work mutually executed by the Parties that reference and are subject to the terms of this Agreement (each, a "SOW"). In return for such Services and Products, Customer shall pay BOIA the fees and expenses set forth in the applicable SOW.
   • 1.2. Changes. At any time Customer may request a change to Services or Deliverables (as defined below) provided pursuant to a SOW ("Change"). BOIA will respond in writing within five (5) business days of its receipt of such request for Change advising Customer of any cost, scheduling, or other impacts on the Services to which the Change applies. The terms associated with any Change shall be incorporated into an amendment to the applicable SOW mutually executed by the Parties.
   • 1.3. Deliverables Unless otherwise provided in a SOW, with respect to any reports, data, software, tools or other works of any kind designated to be made, conceived, or developed by BOIA in connection with a SOW ("Deliverables"), Customer shall have the right to review such Deliverables upon their completion by BOIA to determine if they conform to the applicable written specifications stated in the SOW (collectively, the "Acceptance Criteria"). Customer will notify BOIA within five (5) business days of delivery of the Deliverable if the Deliverable has not met the Acceptance Criteria and acceptance has not occurred. In the event acceptance of a Deliverable does not occur, BOIA will, at its cost, make any necessary changes to the Deliverable within a commercially reasonable time frame so that it conforms to the Acceptance Criteria and resubmit the Deliverable to Customer. If Customer does not notify BOIA within five (5) business days of the delivery of the Deliverable that the Deliverable has not met the Acceptance Criteria, the Deliverable shall be deemed to have been accepted by Customer.

2. Invoice and Payment.

   • 2.1. Invoices. Unless otherwise provided in a SOW, BOIA shall deliver invoices associated with the Services on a monthly basis, provided that BOIA may invoice Customer for Products any time following delivery of such Products. Unless otherwise provided in a SOW, all invoices submitted pursuant to this Agreement shall be payable in full in U.S. funds within thirty (30) days following the date such invoice is received by Customer. Customer will reimburse BOIA for travel and other expenses stated in a SOW. All payments required by this Agreement are exclusive of federal, state or other governmental taxes and excises, and Customer will be responsible for all such amounts.
   • 2.2. Disputed Amounts. Customer may withhold payment of any amount that it in good faith disputes as due or owing ("Disputed Amounts"). In such case, Customer shall pay any undisputed amounts and provide to BOIA a written explanation of the basis for its withholding of the Disputed Amounts. Any controversy relating to amounts owed by Customer hereunder shall be considered a Dispute (as defined below) and subject to resolution as provided in this Agreement. In the event it is determined that any Disputed Amount is owed to BOIA, Customer shall pay to BOIA such Disputed Amounts within five (5) days of such resolution.
   • 2.3. Late Payments. Late payments (other than Disputed Amounts) not received within five (5) days of the due date will be subject to a late fee of 1.5% per month on all unpaid balances. Customer agrees that it will be responsible for all of BOIA's costs and expenses, including collection agency fees, court costs, and reasonable attorneys' fees, incurred by BOIA to collect any monies owed by Customer or to otherwise enforce the terms of this Agreement. BOIA may suspend or terminate Services immediately without notice for non-payment of monies owed under this Agreement (other than Disputed Amounts).

3. Term and Termination.

   • 3.1. Term This Agreement shall become effective when Customer and BOIA first execute a SOW and shall remain in effect until terminated as provided herein.
   • 3.2. Termination. This Agreement and/or any individual SOW may be terminated by either Party (i) in the event the other Party fails to cure a breach of any material term of this Agreement or any applicable SOW within ten (10) business days of receipt of written notice describing such breach; or (ii) immediately upon the giving of written notice by such Party in the event the other Party is adjudged insolvent or bankrupt, or upon the institution of any proceeding against the other Party seeking relief, reorganization or arrangement under any laws relating to insolvency, or upon the appointment of a receiver, liquidator or trustee of any of the other Party's property or assets, or upon liquidation, dissolution or winding up of the other Party's business.
   • 3.3. Effect of Termination. Upon termination of this Agreement as provided hereunder (a) each Party may demand the immediate return of all Confidential Information (as defined below), (b) Customer may demand the immediate return of all Customer Materials, and (c) Customer shall promptly pay all amounts payable with respect to Services provided and Products delivered prior to termination.

4. Representations and Warranties

   • 4.1. General BOIA represents, warrants, and covenants that (a) the Services shall be performed by qualified personnel in a professional and workmanlike manner in accordance with current industry standards; and (b) neither the Services nor any Product provided by BOIA shall infringe, misappropriate, or otherwise violate the intellectual property rights of any party. Customer represents, warrants, and covenants that it shall not use the Services or Products in any manner contrary to applicable law. Each Party represents and warrants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder.
   • 4.2. Disclaimer of All Other Warranties. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, BOIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5. Confidentiality.

   Except as provided in BOIA's Privacy Policy (http://www.boia.org/Privacy-policy) which is incorporated herein by reference, BOIA and Customer each agree to hold the other's Confidential Information in confidence and not to disclose it to any third party without the prior written consent of the disclosing party. Each Party agrees to use the Confidential Information of the disclosing party only for purpose of performing the Party's obligations under this Agreement. Further, the receiving party shall use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third party of any Confidential Information of the disclosing party, but in no event less than reasonable care. As used in this Agreement, "Confidential Information" shall mean non-public, proprietary information including, without limitation, any information, technical data or know-how relating to ideas, inventions, concepts, software, designs, specifications, processes, data, source code, object code, research and development, and information related to finances, costs, prices, vendors, customers and employees which is disclosed by a Party or on its behalf whether before, on or after the date hereof, directly or indirectly, in writing, orally or by visual inspection, to the other Party or any of its employees or agents. The obligations to protect Confidential Information under this section shall not apply to information which: (a) is or becomes publicly known through no act or failure to act on the part of the receiving party; (b) was rightfully in the receiving party's possession prior to disclosure by the disclosing party; (c) became rightfully known to the receiving party, without confidentiality restrictions, from a source other than the disclosing party; (d) is approved by the disclosing party for disclosure; (e) is or was developed independently by the receiving party without use of the Confidential Information and without violation of any confidentiality restriction; or (f) is required to be disclosed by law.

6. Intellectual Property.

   • 6.1. BOIA Materials. Except as provided herein, as between the Parties, BOIA shall retain all right, title, and interest in and to (i) all patents, trademarks, service marks, copyrights, and other intellectual property or proprietary rights (collectively, "IP") of BOIA used in or otherwise associated with the Services, Deliverables and Products provided to Customer hereunder, and (ii) all works, designs, trade secrets, technical specifications and data, know-how and show-how, inventions, concepts, ideas, and improvements which are authored, conceived, devised, developed, reduced to practice or otherwise obtained by BOIA which arise out of BOIA's performance of the Services, none of which shall be deemed a "work made for hire" under the Copyright Act of 1976 (collectively "BOIA Materials"), and nothing contained herein shall be construed to restrict, impair, transfer, license, convey, or otherwise alter or deprive BOIA of any of its intellectual property or other proprietary interests associated therewith. Subject to the foregoing, BOIA grants Customer a non-exclusive, non-transferable worldwide perpetual limited right and license to access and use such BOIA Materials in connection with the ordinary and intended use by Customer of the Services, Deliverables and Products provided hereunder.
   • 6.2. Customer Materials; Publicity and Trademarks. Except as provided herein, as between the Parties, Customer shall retain all right, title, and interest in and to all IP of Customer provided or made available to BOIA in connection with the Services (collectively "Customer Materials") and nothing contained herein shall be construed to restrict, impair, transfer, license, convey, or otherwise alter or deprive Customer of any of its intellectual property or other proprietary interests associated therewith. Subject to the foregoing, Customer grants BOIA a non-exclusive, non-transferable worldwide limited right and license to access and use such Customer Materials in connection with the provision of Services to Customer hereunder. Further, Customer permits BOIA to identify Customer as a customer of BOIA in BOIA's marketing materials.

7. Indemnity.

   Customer agrees to indemnify, hold harmless, and defend BOIA, its officers, directors, employees, agents, representatives, insurers and affiliates from and against all damages, losses, liabilities, penalties, costs or expenses (including reasonable attorneys' fees and expenses) relating to, caused by or arising out of (i) Customer's breach of this Agreement or (ii) any claim, demand, litigation, suit, proceeding, judgment or other legal action initiated by any party other than Customer and based on, arising from or related to Customer's use of the Services or Products (other than claims that the Deliverables or Products infringe a third party's intellectual property rights).

8. Limitation of Liability.

   In no event shall either Party be liable to the other Party or any other party for any incidental, special, indirect, exemplary, or consequential damages of any kind, including, without limitation, lost profits, loss of time, money, data or goodwill, which may arise out of this Agreement (including any SOW) or the performance hereof, regardless of whether such Party has been advised, has reason to know, or in fact knows of the possibility thereof. In no event shall BOIA be liable to Customer for (i) any unauthorized access to or alteration of transmissions or data; or (ii) any server, network or website issues caused directly or indirectly by BOIA's automated accessibility scanning. If, notwithstanding the other provisions of this Agreement, BOIA is found to be liable to Customer for any damage or loss which arises out of or relates to this Agreement or Customer's use of the Services or Products, BOIA's liability shall in no event exceed the lesser of (i) the actual damages of Customer and (ii) the total of any fees paid by Customer to BOIA in the six (6) months prior to the date of the initial claim made by Customer against BOIA.

9. General Provisions.

   • 9.1. Order of Precedence. The terms of this Agreement and any SOW are intended to complement each other, and to the extent they conflict, the terms of any SOW shall supersede conflicting terms and conditions in this Agreement but solely with respect to Services or Products provided pursuant to such SOW.
   • 9.2. Subcontractors. Unless otherwise provided in a SOW, BOIA may provide Services hereunder through subcontractors and/or affiliates provided that BOIA shall be responsible for any act or omission of such subcontractor or affiliate in connection with its performance of Services.
   • 9.3. Dispute Resolution. Before initiating any legal claim or action (except with respect to equitable relief), the Parties agree to attempt in good faith to settle any dispute, controversy, or claim arising out of or related to this Agreement or the Services (collectively, a "Dispute") through discussions which shall be initiated upon written notice of a Dispute by either Party to the other Party. If the Parties cannot resolve the Dispute within ten business days, then the Parties shall attempt to settle the Dispute by mediation, and if mediation is unsuccessful, then by arbitration held in Rhode Island pursuant to the Rules of the American Arbitration Association. The Parties hereby consent to the exclusive jurisdiction of the federal and state courts in Rhode Island for purposes of any claims for equitable relief related to this Agreement.
   • 9.4. Status. BOIA is an independent contractor and not an employee, agent or representative of Customer. Nothing in this Agreement shall be construed as creating an employer-employee, partnership, joint venture or agency relationship.
   • 9.5. Notices. Any notice required or permitted hereunder shall be in writing and shall be deemed duly given if delivered to a Party at its address set forth in the signature block of the latest SOW (or the most recent address provided by such Party for notice purposes) by (i) hand delivery, (ii) certified mail, postage prepaid, return receipt requested, or (iii) recognized overnight delivery service. A notice shall be deemed received on date of delivery, if hand delivered or delivered by overnight delivery service, or five (5) days from date of mailing, if mailed by certified mail.
   • 9.6. Entire Agreement; Severability. This Agreement, together with any SOWs, sets forth the entire agreement of the Parties, and supersedes any prior agreements or statements with respect to the subject matter hereof. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions of this Agreement will remain in full force and effect and the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.
   • 9.7. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party, except that BOIA may assign this Agreement to the purchaser in connection with a sale of BOIA's business, provided the purchaser agrees to assume all obligations of BOIA hereunder. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and lawful permitted assigns.
   • 9.8. Amendments and Waivers. This Agreement may be amended or modified only by a written instrument duly executed by each Party. No breach of any term of this Agreement shall be deemed waived unless expressly waived in writing by the Party who might assert such breach. Any failure or delay by either Party to exercise any right, power, or privilege under the Agreement shall not be deemed a waiver of any such right, power, or privilege under the Agreement on that or any subsequent occasion.
   • 9.9. Governing Law. This Agreement shall be governed by the laws of the State of Delaware, U.S.A., without reference to conflicts of law principles that would cause the application of the law of any other jurisdiction.
   • 9.10. Force Majeure. If either Party is prevented from performing any of its obligations under this Agreement due to any cause beyond the Party's reasonable control, including, without limitations, an act of God, fire, flood, war, strike, government regulation, civil or military authority, acts or omissions of transmitters, utilities, providers or hackers, the time for that Party's performance will be extended for the period of the delay or inability to perform due to such occurrence.
   • 9.11. Survival. In addition to such other provisions hereof which, by their terms, survive any termination or expiration of this Agreement, Section 5 (Confidentiality), Section 6 (Intellectual Property), Section 7 (Indemnity), Section 8 (Limitation of Liability), and Section 9 (General Provisions) shall survive any termination or expiration of this Agreement.