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IT Management Services Master Agreement

Active Version: 2018.2

This IT Management Services Master Agreement (AGREEMENT) is between BRIGHTWIRE NETWORKS, LLC, a Washington limited liability company (BRIGHTWIRE), and the Entity whose name, signatory and contact information appear in the signature box of any Service Schedule referenced or attached to this AGREEMENT (CLIENT).

BRIGHTWIRE and CLIENT agree that the following terms and conditions of this Master Agreement (this AGREEMENT) will apply to and govern all services provided by BRIGHTWIRE to CLIENT. BRIGHTWIRE and CLIENT acknowledge that the AGREEMENT version posted to the website https://www.brightwirenetworks.com/terms supersedes any previous AGREEMENT.

1.0 SERVICES PROVIDED.
1.1 BRIGHTWIRE will provide services (collectively, “Information Technology Professional Services” and each “Information Technology Professional Service”) as described in one or more schedules or work authorizations attached to or executed subsequent to this Agreement (collectively, “Schedules” and each, a “Schedule”). If a provision in a Schedule directly conflicts with the terms of this AGREEMENT, the terms of the Schedule shall control.

2.0 WORK AUTHORIZATION.
2.1 If CLIENT requests that BRIGHTWIRE perform IT Professional Services outside of the scope of any the professional services defined in any attached Schedule, BRIGHTWIRE will provide CLIENT with a written work order setting forth the requested professional services and the charges for such work (“Work Authorization”). No work will commence until the Work Authorization is accepted by CLIENT. Such acceptance may be made via confirming email authorizing BRIGHTWIRE to proceed. Upon acceptance by both parties, each Work Authorization shall automatically become a Schedule of, and governed by, this AGREEMENT.

3.0 TAXABILITY OF INFORMATION TECHNOLOGY PRODUCTS AND PROFESSIONAL SERVICES WHEN BOTH SOLD.
3.1 The various products and services provided by BRIGHTWIRE are subject to various Washington state tax laws. To appropriately itemize services for the purpose of collecting sales tax and/or submitting the correct B&O tax as required by law, BrightWire will outline its retail products and services and its profession services on separate schedules and will itemize its charges accordingly. Please note that BRIGHTWIRE does not sell retail products or services as a package with professional services. Such items are sold separate and apart from one another and are separately itemized to reflect their actual sales price and value. Refer to: WAC 458-20-15502 Taxation of computer software and RCW 82.04.215.

4.0 CHARGES.
4.1 All charges and Fees for recurring monthly services shall be as indicated on the applicable Schedule and CLIENT shall be invoiced in advance of the first day of each month for the month in which such services are to be provided. Services provided on a non-recurring basis are billed in arrears. Unless otherwise indicated on a Schedule, fees and charges are based on the selected BRIGHTWIRE services and aggregate size of the infrastructure discovered or reported during audits. If applicable, hourly rates for services will be listed in the Schedule(s). Hourly Rates are applicable to in-scope services provided by system engineers and/or technicians during BRIGHTWIRE normal business hours, unless otherwise noted in a Schedule.

4.2 Unless otherwise indicated in this Agreement, or in an attached Schedule, contracted recurring fees for IT services will increase 3% up to a maximum 5% on January 1st of each calendar year.

4.3 Invoices for hardware or software purchased by BRIGHTWIRE on behalf of CLIENT and pre-authorized by CLIENT’S employee are Due-upon-Receipt payable by company check or ACH. BrightWire will typically order pre-authorized hardware and software in advance if necessary, but hardware and/or software cannot be installed or delivered to CLIENT until full payment is received.

4.4 Billing Disputes. All bona fide disputes or requests for billing adjustments must be submitted in writing within fifteen (15) days of receipt of the invoice giving rise to the dispute accompanied by a reasonably detailed explanation for the basis of such dispute. Payment of all undisputed amounts will be paid timely, however, in no event may CLIENT withhold more than ten (10%) percent of the total amount due. BRIGHTWIRE may request additional information or supporting documentation from CLIENT to substantiate the billing dispute.

4.5 Late Payments. In addition to any rights and remedies available to BRIGHTWIRE hereunder, at law, or in equity, if CLIENT fails to pay any fees due hereunder within thirty (30) days from the date due, BRIGHTWIRE may impose a late charge equal to the lesser of one and one half percent (1.5%) per month interest or the maximum allowable rate under applicable law. In the event BRIGHTWIRE in its discretion elects not to charge CLIENT a late charge or interest for a particular invoice, such election will not waive BRIGHTWIRE’s rights to charge a late charge or interest for any other invoice, including future invoices. BRIGHTWIRE may suspend Services if CLIENT’s account with BRIGHTWIRE is or becomes more than sixty (60) days past due.

5.0 SERVICE REQUESTS, PRIORITIZATION AND RESPONSE COMMITMENTS.
5.1 To request service, CLIENT should contact BRIGHTWIRE at 360-528-6017 or send an electronic message to BRIGHTWIRE at help@brightwire.it between the hours of 8:00 a.m. and 5:00 p.m. Pacific Standard Time; excluding legal and company holidays. Should emergency service be required outside the standard business hours, the CLIENT shall call the main BRIGHTWIRE number (360-528-6017) and follow the instructions on the message.

5.2 CLIENT agrees to allow BRIGHTWIRE service personnel or its subcontracted personnel reasonable access to the premises and facilities where the CLIENT equipment is located. CLIENT hereby grants to BRIGHTWIRE a limited right to access, connect and/or interconnect with CLIENT's computer network(s), computer workstation(s), servers, shared or private Internet connection(s) and any other devices or processing units (e.g., mobile devices, PDAs, notebook computers, smart phones, etc.) that are interfaced with or connected to the foregoing (collectively, “Client's Network”), as necessary for BRIGHTWIRE to perform the applicable services. CLIENT warrants and represents that it has the power and authority to grant the foregoing access rights to BRIGHTWIRE, and shall indemnify and hold BRIGHTWIRE harmless from any and all costs, fees, expenses and liabilities that BRIGHTWIRE incurs as a result of accessing any portion or component of Client’s Network.

6.0 WORK NOT PERFORMED BY BRIGHTWIRE.
6.1 Service time required for diagnosing, troubleshooting or correcting work performed by anyone other than a BRIGHTWIRE employee or authorized sub-contractor is expressly excluded from any service schedule, even if that work would normally be covered under the schedule. Furthermore, if CLIENT performs or allows anyone other than BRIGHTWIRE to perform any maintenance or software installation on any covered machine, BRIGHTWIRE is not responsible for the consequences of such actions and CLIENT may be charged at regular service rates to diagnose and remedy any problems caused by the unauthorized work.

6.2 For Schedules attached to this Master Agreement that include project services & implementation in the periodic monthly charges, BrightWire reserves the right to exclude any necessary project services & implementation, that would otherwise be covered by the Schedule if CLIENT purchases or otherwise procures any hardware, software, licensing, or any 3rd party services necessary to complete the project. BrightWire will prepare a separate project scope of work for CLIENT for signed approval prior to start of project.

6.3 For Schedules attached to this Master Agreement that include project and/or help desk services, BRIGHTWIRE reserves the right to charge CLIENT at standard hourly rates plus reasonable charges to cover roundtrip travel expenses for any onsite project work or help desk services performed for CLIENT at CLIENT locations outside the standard BRIGHTWIRE service territory, The standard service territory is defined as the following five Washington State Counties: Thurston; Pierce; Mason; Grays Harbor; and Lewis.

7.0 TERMINATION OR DEFAULT.
7.1 Termination of Recurring Services; Liquidated Damages: Where the services provided to CLIENT are provided at fixed rate over a period of greater than 3 months (“Recurring Services”), CLIENT acknowledges that BRIGHTWIRE has or will assume significant overhead to properly meet its obligations to the CLIENT including 3rd party service subscription(s), hardware, software, bandwidth, employee capacity, and other long-term costs in the planning for and servicing CLIENT for the term of the Recurring Services schedule, that standard service fees have been significantly discounted and other valuable considerations negotiated in exchange for a long term commitment from CLIENT, that BRIGHTWIRE will suffer substantial damages and losses if such Recurring Services schedules are terminated prior to the end of their full term; and that such damages and losses are difficult to accurately estimate. Therefore, in the event of breach, default or early termination by CLIENT of any schedule calling for Recurring Services, e.g. Schedule A1 through Schedule A7 BRIGHTWIRE will be entitled to the following specified amount as damages: the amount of the remaining fees due for the term of the applicable Recurring Service Schedule or the amount of thirty percent (30%) of the total monthly charges under such Recurring Service Schedule, whichever is less. CLIENT agrees and acknowledges that these damages are in no way a penalty, but rather a reasonable estimate of losses due BRIGHTWIRE for not having the full value of the entire term of applicable Recurring Service Schedule.

7.2 Where BRIGHTWIRE either (a) materially breaches its performance requirements and after notice and opportunity to cure, fails to cure said breach or (b) terminates a Schedule or Work Authorization other than in accordance with the terms of such schedule or this AGREEMENT, the parties acknowledge that CLIENT will incur significant expenses in replacing the services of BRIGHTWIRE. Accordingly, CLIENT shall provide written notice of any act it believes to be a material breach of performance by BRIGHTWIRE and CLIENT may suspend payment of the applicable fees. BRIGHTWIRE shall have a period 30 days from receipt of notice (the “cure period”) to remedy such breach (provided that if the period reasonably necessary to cure said breach is longer than 30 days, the cure period shall be extended so long as BRIGHTWIRE is diligently pursuing a remedy). If BRIGHTWIRE is unable to fully remedy the alleged breach within the cure period, CLIENT may immediately terminate AGREEMENT and CLIENT shall not be responsible for paying any fees or other expenses for the period following the written notification of breach, nor shall CLIENT be responsible for any termination damages as stated herein.

7.3 BRIGHTWIRE or CLIENT, at their sole discretion, may terminate this AGREEMENT if either party: (a) becomes the subject of any proceedings under the Bankruptcy Act or other insolvency law, voluntary or involuntary; (b) suffers a receiver to be appointed for its affairs or property; or (c) enters into an assignment, or other arrangement, for the benefit of its creditors, or suffers an attachment against or a seizure of a substantial part of its assets, equipment or its parts and inventories. However, both parties are responsible for past due amounts that shall survive each bankruptcy proceeding provided the acknowledgment of such liability by either party will not affect the discharge of either party regarding other general creditors. Collection Cost Add-On for Commercial Debt Collection: In the event a debt to BRIGHTWIRE is submitted to formal collections, BRIGHTWIRE may add collection costs up to the full extent allowed by law, of the original commercial debt as the result of a default. The undersigned agrees to pay these collection costs, plus attorney’s fees in the event collection services are used to enforce this AGREEMENT and any attached Schedules.

7.4 In the case of default by either party under this AGREEMENT, the defaulting party will reimburse the non-defaulting party for all costs and expenses arising from the default, including reasonable attorney fees if the non-defaulting party engages in legal counsel to preserve or enforce such rights under this AGREEMENT, including the collection of any payments due.

7.5 Termination of this AGREEMENT will not adversely affect any right existing as the effective date of termination. The rights and remedies provided under this AGREEMENT are cumulative and in addition to any other rights or remedies available at law and in equity, and any other contract instrument or paper.

7.6 Upon termination of this AGREEMENT, BRIGHTWIRE will uninstall all remote monitoring and management software from all CLIENT equipment. CLIENT acknowledges that this may leave its computers and other equipment without adequate systems monitoring, backup or antimalware protection. In the event of termination of this agreement by either party, BrightWire agrees to provide the necessary assistance and information for CLIENT to transition to an alternate IT vendor, provided contract is currently in force, otherwise hourly fees will be billed at prevailing rates.

7.7 Destruction of Data and Records. Upon termination of this Agreement and delivery or transfer of all CLIENT Data to CLIENT, each party will return or, after a reasonable period of time, but in no event less than thirty (30) days after termination, destroy the Confidential Information of the other party, unless the other party has requested in writing that such Confidential Information be returned. BRIGHTWIRE will remove all CLIENT Data and CLIENT Information stored on BRIGHTWIRE Systems; provided, however, that, notwithstanding the foregoing, BRIGHTWIRE reserves the right to maintain a digital backup tape in a secure location for a reasonable period of time solely for legal purposes.

8.0 NOTIFICATIONS SENT IN HARD COPY.
8.1 All notices herein provided for or which may be given in connection with this AGREEMENT shall be sent via regular mail, postage prepaid or prepaid private carrier (UPS, FedEx, etc.). If any such notice shall be given by CLIENT to BRIGHTWIRE, it shall be addressed to:

BRIGHTWIRE NETWORKS, LLC
2102 Carriage Dr. SW Suite J-102
Olympia, WA 98502

9.0 SIGNIFICANT CHANGES TO PERSONNEL AND/OR TECHNOLOGY INFRASTRUCTURE.
9.1 The fee for BRIGHTWIRE service plan levels for Recurring Services are based on the CLIENT’S personnel headcount, and/or the systems and devices that together comprise the CLIENT’S computer network as defined in an applicable schedule’s Scope of Work. BrightWire may periodically evaluate significant personnel changes in the CLIENT’S organization or significant changes in the complexity of the computer network in order to make reasonable adjustments to the Monthly Recurring Fee. A significant change is generally an increase in headcount of either 20% or more from the original staff count defined in the appropriate schedule or 5 additional users, whichever is less. We recognize that defining significant change is difficult and may involve both objective and subjective analysis. Examples of significant change include, but are not limited to: a company merger or acquisition; an additional location; the addition of a networked system that BRIGHTWIRE would be responsible to support (e.g. new phone system, new business software application). In the event a significant change occurs that merit a proposed fee increase, BRIGHTWIRE will provide 30 days advance written notice of any such adjustment. In the event CLIENT rejects a proposed increase as set forth in the terms above, BRIGHTWIRE may exclude from coverage the additional personnel and/or systems that triggered the proposed fee increase, and charge any support for the excluded personnel and/or systems at the prevailing hourly rate, until an agreement can be reached with regard to the significant changes in the CLIENT’S IT infrastructure. In no event shall the base monthly fee be less than the base monthly fee charged on the date this applicable Schedule is signed and nothing in this section removes the obligation of BRIGHTWIRE or CLIENT’S to honor the terms of its original agreements.

10.0 CONFIDENTIALITY.
10.1 BRIGHTWIRE and CLIENT each recognize that in the course of performing and receiving services, they may have access to each other’s confidential and proprietary information, and trade secrets concerning BRIGHTWIRE and CLIENT business and operations, including, without limitation, financial and tax information, business plans and development strategy, and marketing methodology, (collectively referred to as “Confidential Information”). BRIGHTWIRE and CLIENT each recognize that disclosure of Confidential Information to competitors; non-authorized third parties or the general public would be detrimental to BRIGHTWIRE and/or CLIENT. Accordingly, each party agrees that it will keep secret and treat confidentially the Confidential Information, and will not disclose any of the Confidential Information to any person or entity nor shall he use the Confidential Information for any purpose other than what is required to fulfill this AGREEMENT.

11.0 NON-SOLICITATION OF PERSONNEL.
11.1 Both parties agree and acknowledge that each are involved in a highly strategic and competitive businesses. Both parties further acknowledge that either party would gain substantial benefit and that either party would be deprived of such benefit, if either party were to directly hire any personnel employed by either party. Therefore, except as otherwise provided by law:

11.1 Both parties agree and acknowledge that each are involved in a highly strategic and competitive businesses. Both parties further acknowledge that either party would gain substantial benefit and that either party would be deprived of such benefit, if either party were to directly hire any personnel employed by either party. Therefore, except as otherwise provided by law:

11.2 During the term of the AGREEMENT, and for a period of one (1) year following the last date on which BRIGHTWIRE provides services to CLIENT, neither party shall, directly or indirectly, employ or engage or offer to employ or engage in any capacity, any employee of the other party. If a party hires or contracts with any employee of the other party during the term of this AGREEMENT or at any time for one year following the last date which BRIGHTWIRE provides services to ¬¬¬¬ CLIENT, the hiring party shall immediately pay the other party a hiring fee equal to 50% of the current annual salary of the employee hired. Annual salary would be substantiated with current payroll W2 or equivalent documentation.

11.3 The hiring fee reflected herein is not intended as a penalty and is reasonably calculated based upon the projected costs BRIGHTWIRE would incur to identify, recruit, hire and train suitable replacements for such personnel. This section shall not apply if CLIENT hires or otherwise retains a former BRIGHTWIRE representative and CLIENT was not informed of the individual’s prior relationship with BRIGHTWIRE, or can show they could not have reasonably known of the prior BRIGHTWIRE employment.

12.0 WARRANTIES AND DISCLAIMERS.
12.1 BRIGHTWIRE MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED ON ITS OWN REGARDING THE FUNCTIONALITY OF HARDWARE OR SOFTWARE, BUT INSTEAD RELIES ON THE WARRANTIES PROVIDED BY THE MANUFACTURER OF EACH PRODUCT.

13.0 GOVERNING LAW.
13.1 This AGREEMENT and any attached Schedules shall be governed by the laws of the State of Washington and that the exclusive venue for all issues claims or causes of action arising from or related to this Agreement shall be Thurston County, Washington.

14.0 ENTIRE UNDERSTANDING.
14.1 This Master Agreement, and any attached schedules, state the entire understanding between the parties with respect to its subject matter, and supersede all prior proposals, negotiations and other written or oral communications between the parties with respect to its subject matter. Each attached Schedule states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, negotiations and other written or oral communications between the parties with respect to its subject matter. No modification of this Master Agreement or any Schedule, and no waiver of any breach of this Master Agreement or any Schedule, shall be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Master Agreement or any Schedule, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach thereof. Any purchase order submitted by CLIENT to BRIGHTWIRE shall be used only for invoice processing purposes and shall have no legal effect.

15.0 INSURANCE.
15.1 At all times during the term of this Agreement, BRIGHTWIRE, at its sole cost and expense, shall carry and maintain, with a reputable insurance carrier reasonably satisfactory to CLIENT:

  1. Commercial general liability insurance written on an "occurrence" basis (including contractual liability insurance insuring the indemnity obligations of BRIGHTWIRE under this Agreement) with a combined single limit of not less than $1,000,000 for personal injury and property damage;
  2. Workers compensation insurance as required by the law of the jurisdiction(s) in which the Services shall be rendered by BRIGHTWIRE and its employees pursuant to this Agreement and employer's liability insurance with a limit of not less than $1,000,000 each accident; and
  3. Such other or additional insurance as may be reasonably requested by CLIENT during the term of this Agreement.

15.2 BRIGHTWIRE shall furnish CLIENT with a copy of such policies of insurance promptly upon request, with evidence reasonably satisfactory to CLIENT that such insurance coverage remains in effect during the term of this Agreement.

16.0 LIMITATION OF LIABILITY AND REMEDIES.
16.1 Under no circumstances shall either party be liable for lost revenues, lost profits, loss of business, or consequential, indirect, exemplary, special or punitive damages of any nature, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability) or otherwise, and whether or not the possibility of such damages is foreseeable; provided that this exclusion shall not apply to the party’s respective confidentiality obligations under Section 4. CLIENT acknowledges and agrees that for the purposes of this section, “lost profits” and “lost revenues” does not include its payment obligations to BRIGHTWIRE pursuant to this Master Agreement.

16.2 BRIGHTWIRE’s total liability under a Schedule, whether in contract, tort (including negligence or strict liability), or otherwise, shall not exceed (i) the actual Monthly Fees paid by CLIENT to BRIGHTWIRE under that Schedule for the most recent six (6) month period, or (ii) in the case of Professional Services, the actual service fees paid by CLIENT for the Professional Services under that Schedule.

16.3 BRIGHTWIRE shall have no liability for any damage to, or loss or theft of, any of CLIENT’s tangible property located at a BRIGHTWIRE facility or in a BRIGHTWIRE vehicle.

16.4 BRIGHTWIRE shall have no liability for any of CLIENT’s data, content, software or other materials located, used or restored at a BRIGHTWIRE facility or in a BRIGHTWIRE vehicle, or transmitted using BRIGHTWIRE’s provided services or resold services. If CLIENT’s data is damaged, lost or stolen as a result of BRIGHTWIRE’s breach of contract or negligence, then BRIGHTWIRE shall be liable to CLIENT only for CLIENT’s documented out-of-pocket expenses incurred to recreate such data. Under no circumstances will BRIGHTWIRE be considered the official custodian or record keeper of CLIENT’s data for regulatory or other purposes.

16.5 With respect to each schedule, except as specifically stated in this Master Agreement or such schedule, BRIGHTWIRE makes no representations or warranties, oral or written, express or implied, arising from course of dealing, course of performance or otherwise, including without limitation any implied warranty of merchantability, fitness for a particular purpose, conformity to any representation or description, non-interference or non-infringement.

17.0 FORCE MAJEURE.
17.1 BRIGHTWIRE shall not be liable for failure to perform any of its obligations under this AGREEMENT during any period in which such performance is delayed by accidents beyond BRIGHTWIRE reasonable control, such as, but not limited to fire, flood, or other natural disasters, or, embargo, court order, riot, or other intervention of any government authority, provided that BRIGHTWIRE immediately notifies CLIENT of such delay. If BRIGHTWIRE performance is delayed for these reasons for a cumulative period of forty-five (45) days or more from the date of such notice, CLIENT may terminate this AGREEMENT by giving BRIGHTWIRE written notice.

18.0 INDEMNITY.
18.1 Each party hereby agrees to indemnify and hold the other party harmless from and against any and all third party claims, demands, actions, losses, liabilities, costs and expenses (including reasonable attorney's fees) arising out of or resulting from the performance, or lack of performance, of each party's activities under this Agreement except to the extent caused by either party’s negligence or willful misconduct. BRIGHTWIRE shall defend and indemnify CLIENT against all claims, damages, etc. arising from BRIGHTWIRE employees’ and agents’ activities at CLIENT facilities.

19.0 OWNERSHIP.
19.1 As between BRIGHTWIRE and CLIENT, BRIGHTWIRE is and shall remain the owner of any and all work product and related intellectual property created by BRIGHTWIRE under this AGREEMENT. No party shall acquire ownership or any license in or to the other party’s trademarks, service marks, logos or related intellectual property by virtue of the existence of this AGREEMENT or the services provided under this AGREEMENT.

20.0 INDEPENDENT CONTRACTOR.
20.1 The parties are independent contractors, and neither is an employee, employer or partner of the other. Neither party shall hold itself out at as having any right, power or authority to create any contract or obligation on behalf of the other party.

21.0 WAIVER OF BREACH.
21.1 The failure of any party to enforce any of the provisions of this AGREEMENT shall not be deemed or construed to be a waiver or continuing waiver of the enforcement of such provisions in the future.

22.0 ARBITRATION.
22.1 In the event of differences between CLIENT and BRIGHTWIRE arising out of or relating to this Agreement or associated services Schedules, both parties mutually agree to arbitration and irrevocably waive the right to trial by jury. Any claim or controversy that arises out of or relates to this agreement or the breach of it, as well as all other claims made arbitral by this agreement, will be settled by arbitration in the state of Washington in accordance with the rules of the American Arbitration Association. The arbitrator(s) shall apply the substantive and procedural laws of Washington to all such arbitrations. Judgment upon the award rendered may be entered in any court possessing jurisdiction of arbitration awards.

22.2 Except as otherwise provided in this agreement, BRIGHTWIRE and CLIENT hereby consent to the resolution by arbitration of all claims or controversies for which a court otherwise would be authorized by law to grant relief, in any way arising out of, relating to, or associated with this agreement ("claims") that CLIENT may have against BRIGHTWIRE or that BRIGHTWIRE may have against CLIENT. The arbitrator(s) and not a court will decide any and all issues that are arbitral (e.g., whether a claim is covered by this agreement).

22.3 This agreement to arbitrate does not apply to or cover claims by CLIENT for injunctive and/or other equitable relief for unauthorized use and/or disclosure of trade secrets or confidential information.

23.0 ASSIGNABILITY.
23.1 Neither party may assign this AGREEMENT or any rights hereunder to any person or entity without the prior written consent of the other party, which consent shall not be unreasonably withheld.

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