This SERVICES AGREEMENT (“Agreement”) is entered to and effective as of the date this document is signed (the "Effective Date") between “Service Provider” and “Client” listed in this document.  This Master Services Agreement will remain in place as long as services are being rendered to Client by Service Provider.

Recitals

WHEREAS, Service Provider is in the business of providing technology consulting services, training, website development, and related support services; and,

WHEREAS, Client desires to obtain, and eyeNET desires to provide, technical consulting services for Client’s business as described in this Agreement.

NOW THEREFORE, in consideration of the foregoing recitals, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
Agreement
Article 1
Definitions
For purposes of this Agreement, terms used and not otherwise defined herein shall have the following meanings:

"Agreement" or "this Agreement" shall mean this Master Services Agreement:

"Confidential Information" shall mean this Agreement and all information about Client and eyeNET products, services, customers, strategy, research, development, trade secrets, business plans, finances, personnel data, and other material or information considered confidential by either party regardless of the form or designation of such information.  Confidential Information also includes any third party confidential information disclosed to either party under this Agreement.

"Services" shall mean the services to be provided by eyeNET in accordance with Article 2 hereof, the General Technical Services Statement of Work identified as Exhibit A and any future work described on subsequent Statements of Work as agreed to between the parties.

Article 2
Services

2.1  General.  eyeNET shall perform the services (the "Services") set out in this proposal and incorporated herein by reference, and any additional mutually agreed upon subsequent Statement(s) of Work.  In consideration of eyeNET performing and completing its responsibilities hereunder, Client shall compensate eyeNET as stated in each applicable Statement of Work. 

2.2  Non-Exclusivity.  This Agreement shall be a non-exclusive agreement for the Services.  eyeNET shall have the right to perform similar services to eyeNET customers during and after the term of this Agreement.

2.3  Reporting & Access.  eyeNET will have full access to such information of Client as may be reasonably necessary to complete the Services as described in the Statement of Work in a timely and satisfactory manner.
Article 3
Term & Termination
3.1  Term.  Unless terminated sooner in accordance with this Article or Article 9, (Default), the term of this Agreement (the "Term") shall commence on the date and be in effect for the term specified in the CONTRACT TERM section of this document’s cover page.  At the conclusion of the term, this Agreement will automatically renew for one (1) year term unless either party gives written notice of its intention not to renew in accordance to the terms in notification/cancellation terms of this agreement.  Said renewal of agreement shall be modified, extended or canceled no less than thirty (30) days prior to end of the term of this Agreement.  Terms for Projects and Statement of Work proposals will be specified for each project/proposal.

3.2  Termination.  Either party may terminate this Agreement at any time, by providing the other party with thirty (30) days written notice.  Client agrees to pay penalties and/or early cancellation charges in accordance to the specific services sold under this Master Service Agreement.

3.3  Obligations Upon Termination.  If a party notifies the other as provided in Section 3.2, then the parties will establish an orderly phase-out of the Services.  Within seven (7) business days after the termination, eyeNET will provide Client with a final invoice for all unbilled Services.  Client will pay to eyeNET within 10 days of receiving the final invoice an amount not less than the payments payable hereunder for Services completed prior to the date of termination. Any termination, however, shall not relieve either party from any obligations hereunder that survive termination as specified under Articles 5, 10 and 11 hereof.

Article 4
Representations & Warranty
4.1  Representations and Warranties of eyeNET. eyeNET represents and/or warrants to Client, as appropriate, as follows:

(A)  No Restrictions.  eyeNET represents that it is not under any obligation or restriction which would in any way interfere with or be inconsistent with its performance obligations under this Agreement.

(B)  Quality of Services.  eyeNET warrants that the Services shall be performed in a professional and workmanlike manner, with all due skill and care, and will meet or exceed the specifications set forth in the Statement(s) of Work.

(C)  THE WARRANTIES CONTAINED IN THIS ARTICLE 4 ARE THE ONLY WARRANTIES GIVEN TO CLIENT IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES PERFORMED HEREUNDER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES FOR MERCHANTABILITY AND FOR SUITABILITY OF FITNESS FOR PURPOSE ARE DISCLAIMED.

4.2  Client’s Representations and Warranties.  Client represents and/or warrants to eyeNET, as appropriate, as follows:

(A)  Full Cooperation.  Client represents and warrants to eyeNET that it shall cooperate fully and in good faith with eyeNET for the delivery of the Services described herein.  Such cooperation shall include, but is not limited to, reporting all issues of concern to eyeNET promptly, providing adequate time for remedy by eyeNET, and devoting adequate time and resources to the integration of the Services into Client’s existing technology infrastructure.

(B)  No Restrictions.  Client represents that it is not under any obligation or restriction that would in any way interfere with or be inconsistent with its performance obligations under this Agreement.
Article 5
Invoicing, Taxes, and Records
5.1  Invoicing.  eyeNET will invoice Client per the terms agreed upon for each statement of work and/or project.  If payment terms are not specified for a given service and/or project, client agrees to make payment for invoices 10 days prompt from the invoice date.  Payments received more than 10 days late are subject to a 1.5% late charge per invoice.  In the event that any Client invoice is more than 29 days past due, eyeNET reserves the right to stop all work, until the account is brought current. Client agrees to bear full responsibility and reimburse eyeNET for any and all collection costs incurred by eyeNET due to Client’s non-payment or late payment of fees and other costs enumerated herein. Such collection costs may include but are not limited to, attorney fees and court costs.
5.3  Taxes.  Client is responsible for all taxes, however designated or levied, that are based on the Services, including, state or local sales, use or excise taxes that eyeNET is required by applicable law or regulation to pay or collect.  However, eyeNET is responsible for all taxes based on its net income.
5.4  Records.  eyeNET will maintain records to substantiate its charges under this Agreement for a period of one (1) year after the performance of said Services.
Article 6
Confidential Information
6.1  No Reproduction.  Each party agrees not to use directly or indirectly or reproduce the Confidential Information of the other for any purpose except for carrying out the terms of this Agreement and agrees not to disclose the Confidential Information of the other to any third parties except in accordance with this Agreement.

6.2  Non-Disclosure.  Each party agrees to use its best efforts to protect such Confidential Information from disclosure to third parties. Disclosures of the Confidential Information shall be restricted to the parties' employees who are directly participating in the efforts covered by this Agreement, have a need to know such Confidential Information and are bound by the provisions of this Article 6.

6.3  Limitations.  The limitations on reproduction, disclosure, and use of the Confidential Information shall lapse upon the occurrence of one of the following:

(1)  If such Confidential Information is publicly available or later becomes publicly available other than through a breach of this Agreement; or,

(2)  If the disclosing party generally furnishes its Confidential Information to a third party without similar confidentiality restrictions on the third party's rights; or,

(3)  If such Confidential Information is independently developed by the receiving party subsequent to such disclosure without use of Confidential Information disclosed hereunder; or,

(4)  If such Confidential Information is lawfully obtained by the receiving party from a third party without obligations of confidentiality; or,

(5)  Confidential information disclosed in response to a valid order of a court and/or other governmental body of the United States of America or state in which the Client conducts business, but only to the extent of and for the purposes of such order, provided, however, that the Party so ordered to make the disclosure shall notify the other Party of the order in a timely manner so that other Party may seek a protective order.

6.4  Promotional Disclosure.  Client grants to eyeNET the right to list Client’s business name as a Client of eyeNET for eyeNET promotional purposes so long as eyeNET performs its duties under the terms of this Agreement and Client accepts the Services provided without issue.  Use beyond a listing of Client’s name shall require the Client’s review and approval of any such use or publication, the reasonable use of which shall not be unreasonably withheld.


Article 8
Indemnification
8.1  Mutual Indemnification.  Each party (the "Indemnitor") will indemnify and hold harmless the other party (the "Indemnitee") from and against  losses, damages, judgments, settlements, reasonable attorney's fees, costs, and expenses which the indemnitee may sustain, incur, or be required to pay (a) arising out of or resulting from negligent action or inaction of the Indemnitor, or a person employed by the Indemnitor, in the performance of this Agreement; or (b) a breach of any of the representations and warranties or obligations made by the Indemnitor (breaching party) hereunder; or (c) any actual or alleged violation of any law, statues or ordinance of any governmental administrative order, rule or regulation with respect to the Indemnitor’s obligations under this Agreement.
Article 9
Default
9.1  Event of Default.  An "Event of Default" shall occur under any of the following conditions:

(A)  Either party fails to perform any material obligation to be performed by it hereunder within thirty (30) days after written notice from the other party that time for such performance has passed. 

(B)  Either party becomes insolvent or unable to pay its debts as they become due, makes an assignment for the benefit of creditors or files a petition in any insolvency proceeding or in any bankruptcy, reorganization, scheme of arrangement or reconstruction, or similar proceeding.

(C)  A receiver, manager or liquidator is appointed for any of a party's assets or a petition is filed in any insolvency, bankruptcy, reorganization, scheme of arrangement, reconstruction or similar proceeding, and such receiver, manager or liquidator is not discharged, or such petition is not withdrawn, within sixty (60) days after such appointment or filing.  

9.2  Remedy.  If either party causes to occur an Event of Default as specified in Section 9.1, then the non-defaulting party, at its option, shall have the right to terminate this Agreement by written notice as provided in Article 3 and pursue any other remedy hereunder or otherwise available to it at law or in equity. 

9.3  Compensation.  Client hereby expressly agrees and acknowledges that termination of this Agreement by either party shall not entitle Client to any termination compensation or render eyeNET liable for damages on account of any loss of prospective profits or on account of any expenditure, investment or obligation incurred or made by Client, or otherwise.
Article 10
Limitation of Liability
10.1  Limitations of Liability for Damages.  eyeNET will not be liable for indirect, incidental, special or consequential damages, including but not limited to lost profits, however arising, or for any similar claim against Client or its representatives by any other party.  Notwithstanding the foregoing, if eyeNET acts with gross negligence to the provisions of this section shall not apply.  
Article 11
Miscellaneous
11.1  Order of Priority.  In the event of a conflict between this Agreement, the Statement of Work and any outstanding agreements between eyeNET and Client, the order of priority of this Agreement shall be as follows: (a) this Agreement, (b) the Statement(s) of Work and (c) other exhibits hereto.

11.2  Force Majeure.  Neither party shall be liable for delays in its performance of this Agreement occasioned by strikes, fires, accidents, acts of terrorism, or other causes beyond its control. In the event of a stoppage or delay suffered by eyeNET resulting from any such cause, eyeNET shall perform such parts of the work as eyeNET is capable of performing and shall resume full performance of the Services as soon as is reasonably practicable thereafter.

11.3  Survival.  The provisions of this Agreement related to Limitations of Liability, Ownership, Confidentiality, and Indemnification shall survive termination of this Agreement. 

11.4  Assignment.  Neither party to this Agreement shall assign any rights hereunder without the prior written consent of the other party. In the event of a merger or consolidation involving either party in which that party is not the surviving legal entity, the Agreement will transfer or be assigned to the resulting corporation or entity without approval provided that such acquirer does not provide written objection to eyeNET within thirty (30) days of assuming effective control of the Client. This Agreement shall be binding upon and inure to the benefit of the parties and their successors, executors, administrators, legal representatives and assigns.

11.5  Severance.  In the event that any provision of this Agreement shall be held by a court of law or other governmental agency to be void, voidable, or unenforceable, the remaining portions hereof shall remain in full force and effect.

11.6  Relationship. eyeNET and its personnel are independent contractors of Client and nothing contained herein shall constitute either party as an employee or agent of the other party for any purpose whatsoever, and neither party shall bind or attempt to bind the other party to any contract or the performance of any other obligation, or represent to any third party that it has the right to enter into any binding obligation on the other party's behalf.

11.7  Governing Law.  All questions concerning the validity and operation of this Agreement and performance of the obligations imposed upon the parties hereunder shall be governed by the substantive laws of the State of North Carolina without regard to conflict of laws principles.  Jurisdiction and venue shall be in Wake County. 

11.8  Headings.  The headings and titles to the Articles and Sections of this Agreement are inserted for convenience only and shall not be deemed a part hereof or affect the construction or interpretation of any provision hereof.

11.9  Remedies.  Unless otherwise expressly provided herein, the rights and remedies hereunder are in addition to, and not in limitation of, other rights and remedies available to the parties, and exercise of one right or remedy shall not be deemed a waiver of any other right or remedy.

11.10  No Amendment or Waiver.  No amendment, modification, deletion, addition or other change in this Agreement or any provision hereof, or waiver of any right or remedy herein provided, shall be effective for any purpose unless specifically set forth in a writing signed by the party to be bound thereby. No waiver of any right or remedy in respect of any occurrence or event on one occasion shall be deemed a waiver of such right or remedy in respect of such occurrence or event on any other occasion.

11.11  Software Licensing.  eyeNET does not support unlicensed software. Client represents that all software installed on corporate owned machines is licensed. In the event that Client has any unlicensed software on premises, Client is responsible for notifying eyeNET of such so that a remediation plan can be prepared and implemented to assist Client in achieving 100% license compliance.

11.12  Hiring of eyeNET Staff and Contractors.  Client agrees to not recruit or hire or retain any eyeNET staff and/or outside contractors for employment or work of any kind, either as an employee or an independent contractor, except through eyeNET, during the duration of eyeNET servicing Client and for a period of twelve (12) months thereafter. In addition, Client recognizes that because of the substantial recruitment and training costs in the Information Technology industry, Client agrees that liquidated damages for such a breach will be twenty-five percent (25%) of the staff member’s or contractor’s then current annualized compensation. 

11.13  Risk of Data Loss.  Client assumes all risk of data loss from any and all causes or in any way related to or resulting from the repair or service of computer hardware, software or other equipment by eyeNET, unless the Service performed was grossly negligent.  Client agrees to bear full responsibility for all data backup prior to any repair or service of computer hardware, software or other equipment by eyeNET. Client hereby releases eyeNET from any claim or liability related to data loss for any reason other than gross negligence in the course of performing the Services hereunder.  

11.14  Insurance.  eyeNET will carry workers and or employees liability insurance as required by the laws of the State of North Carolina.

11.15  Entire Agreement. This Agreement supersedes all other agreements, oral or written, heretofore made with respect to the subject matter hereof and the transactions contemplated hereby and, with the Attachments hereto, contains the entire agreement of the parties.

11.16  Notices. Notices and communications required or permitted to be given under this Agreement shall be written in English and shall be sent to the parties listed on the first page of this Master Services Agreement.  

Notice shall be sent by registered mail, postage prepaid, return receipt requested, by reputable overnight courier, paid by the sender, or by facsimile with confirmation of receipt. The date of receipt shall be deemed to be the date on which such notice was actually received. Each party shall promptly give the other party written notice of any change of address.

11.17  Legal Compliance. Client and eyeNET agree to comply fully with all federal, state and local laws.

11.18  Attorneys' Fees. The prevailing party in any dispute shall have all court costs, expenses, reasonable attorneys' fees, and any other relief a court orders paid by the other party.

11.19  Counterparts. This Agreement may be executed in counterparts or by facsimile, each of which shall be an original, and all of which together shall constitute one and the same agreement. 

 

eyeNET Security, Inc.
Managed Services Statement of Work

1.  Services.  eyeNET shall provide technology consulting  services will be principally comprised of ongoing projects, ad-hoc training, project management, network administration, procurement, troubleshooting, upgrades and proactive planning.  All work for this Statement of Work must be approved in advance by individuals listed “Authorized Contacts” document that is on file with eyeNET at the time service is requested.  Individual Projects with an estimated cost over $1000 may require a separate Statement of Work.

2.  Term.  Unless terminated sooner in accordance with this Article or Article 3 of the Master Services Agreement, the term of this Statement of Work (the "Term") shall commence and expire in accordance with the term selected by the client as listed in the NOTES / ADDITIONAL TERMS & CONDITIONS / EXCEPTIONS or in the DETAILS sections of this agreement.  At the conclusion of the original term of this agreement, it will be automatically renewed for one (1) year term unless either party gives written notice of its intention not to renew in accordance to the terms in notification/cancellation terms of this agreement.  After initial one year renewal, client will be placed on a month to month agreement.  Said renewal of agreement shall be modified, extended or canceled no less than sixty (60) days prior to end of the term of this Agreement.

3.  Financial Terms

3.1  Service Rate.  The monthly rates for the level of managed service are specified in the Managed Service section of this document and they will apply through the term of this Statement of Work.

3.2  Hourly Rate Billing Terms.  In the event that work is required that is NOT covered by this managed service agreement, the following rate multipliers will apply.

Business Hours    1.00x rate     Mon - Fri 7a - 6p
Nights        1.50x rate     Mon - Friday 9p - 7a
Weekends        1.50x rate     Sat - Sun 12a - 11:59p
Holiday/Emergencies    2.00x rate   Holidays & Emergencies

3.3  Hourly Minimums and Billing Increments.   There is a one hour minimum charge for any onsite support that is provided as part of this statement of work, additional time will be billed in six (6) minute increments.  There is a twelve (12) minute minimum for any remote support provided as part of this agreement, additional time will be billed in six (6) minute increments.  eyeNET representatives may elect to waive any and all minimum charges at their discretion.  There is a one (1) hour minimum for remote support provided during a holiday or emergency.  There is a two (2) hour minimum for onsite nights/weekends/holiday/emergency support billed at the rate multipliers specified in item 3.2 of this Statement of Work.
3.4   Hourly Rate Estimates.  Hourly service work estimates are not a fixed-price commitment and are estimates based on needs analysis and design requirements.  Client will be notified as soon as it is determined that project or service call is going to exceed the estimated time by 10% or more.

3.5  Credit Limit.  Client’s credit limit will be $1000.00 which may be increased at the client’s request and eyeNET's discretion.

3.6  Timeframe, Volume Discount and Monthly Commitment.  In return for eyeNET providing volume discount on hourly rates, a dedicated project manager (virtual IT director), priority scheduling, priority response time and reduction of rate premiums for emergency and after-hours service, Client agrees to sustain projects and tasks driving service billing at a the monthly fee selected by client when executing this agreement.

3.7  Terms for Payment are “10 days” prompt.  Invoices for recurring managed services contracts are issued approximately 10 days before the start of each month.  Client agrees to pay eyeNET in accordance to the due date on the invoice and in accordance with Article 5 of the Master Services Agreement.

3.8  Rate Lock.  The rates described in this Statement of Work will be honored for the term of this Statement of Work.

4.  Primary Contact(s).  The Primary Contact for this Statement of Work is listed in the "Contract Term" of this document. 

5.   Miscellaneous

5.1  Materials.  Due to the volatile nature of the industry, estimates for hardware, software, peripherals and procured services are not a fixed-price commitment and are only estimates, based on needs analysis and network design. Prices and specifications are subject to revision at the time of ordering. Client will be notified in writing upon request, of any material differences before proceeding.

5.2  Sanctity of Passwords.  Client agrees that all reasonable attempts will be made to ensure only authorized and properly trained Client employees are privy to the current administrator password(s). In addition, Client agrees that these authorized employees who have access to administrator password(s) will be available for both initial and ongoing training with eyeNET staff.

5.3  Hidden Administrator Account.  eyeNET does not maintain client password lists, but will, at the Client’s request create a “hidden” user account that has administrator’s rights which will allow eyeNET to access the system in the event that an Administrator password is lost, locked out or compromised.  This request must be made in writing by an authorized Client representative.

5.4  Computer Viruses, Spyware and Malware.  Client agrees to take all reasonable measures to protect Client’s computer systems from computer viruses, including installation and maintenance of the latest versions of anti-virus, spyware and malware software. Client assumes all risk of computer viruses, spyware and malware and will not hold eyeNET responsible. Client is responsible for the costs of consulting time and materials required to remove and/or prevent any computer viruses, spyware or malware.

5.5  Record-Keeping and Reporting.  Client will keep accurate records of software licenses, hardware purchases, and information specific to the Client’s technology environment. This includes but is not limited to a listing of vendor contact information, system and procedure documentation, and other information deemed important by the client.

5.6  Documentation.  eyeNET will provide Client with documentation for change orders, network configurations, and other information as requested by the client.  Creation and preparation of such documentation will be billed at the standard rates quoted in items 3.1 and 3.2 of this Statement of Work.

5.7  Product and Third Party Services Procurement.   At Client’s request, in support of projects and tasks scheduled with Primary Contact listed above, eyeNET will manage the procurement of technology assets and services. This will include, but isn’t limited to, interviewing and selecting vendors, developing specifications, securing price quotes, placing orders, tracking open orders and determining vendor compliance to specifications following delivery.  In the event that Client requests eyeNET to recruit a specialty contractor, there will be a 2-hour minimum charge for contractor interviewing and “headhunter” services.  All estimated product prices exclude freight and applicable sales tax required by federal and state taxing authorities.

6.   Service Level Agreement Definitions

6.1  Initial Response Time.   Response time is started when the client places the call to eyeNET or generates a service ticket.   Initial response times are calculated when a member of the eyeNET Team contacts the client and/or arrives onsite.  Initial response time does not indicate a “time to resolution” rather how quickly eyeNET will respond to a client’s request for support.

6.2  Time of Day Definitions.

6.2.1  Business Hours.   Business hours are defined as Monday through Friday starting at 7:00am local time and ending at 6:00pm local time.  

6.2.2   After Hours.   After hours are defined as Monday through Friday starting at 6:00pm local time and end at 9:00pm local time.

6.2.3  Nights.   Nights are defined as Monday through Friday starting at 9pm through 7:00am local time.   

6.2.3.  Weekends.   Weekends are defined as Friday starting at 7:00pm and ending on Monday at 7:00am local time

6.2.4.  Holidays/Emergencies.  Holidays are defined as any federal, local or eyeNET designated holiday where the office is closed for normal business operations.   Emergencies are defined as any time eyeNET must be onsite to address an issue and is required to leave a previous commitment with a client to address the issue.

6.2.5.  Exceptions/Custom Times.   eyeNET and Client may agree to different start and stop times for each of the aforementioned times of day to meet clients business needs and those times must be noted in the Notes/Additional Terms & Conditions/ Exceptions section of the service agreement and those times supersede the times mentioned in 6.2.1 – 6.2.4.