Master Service Agreement

1. SCOPE OF AGREEMENT

1.1 General. This Agreement serves as a master agreement and applies to Client’s purchases from EnCompass Iowa, of product including hardware, support and maintenance services, licenses for software and hardware, and/or subscription services, (each a “Product”) and of information technology services (“Services”) as more particularly set forth in a Statement of Work (“Statement of Work” or “SOW”). Services may include but not limited to Disaster Recovery, Cloud Backup, IT Infrastructure Services, and/or Hosted Services. No Product or Services will be provided under this Agreement alone but require the execution of a written or electronic purchase order form, or other mutually acceptable order documentation, which contains terms relating to this Agreement, each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all purposes. Each subsequent Statement of Work incorporates all the provisions within this Agreement. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Statement of Work and those of this Agreement, the terms of this agreement will prevail over the Statement of Work.

1.2 Definitions. Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Work, unless the language or context requires otherwise. SOW-specific definitions, if any, shall be included in the applicable SOW, and shall apply only with respect to such SOW. As used in this Agreement:

“Confidential Information” means any information furnished by Discloser to Recipient during the term of this Agreement, including, without limitation, pricing, methods, processes, financial data, lists, statistics, software, systems or equipment, programs, research, development, strategic plans, operating data, or related information of each of the parties and/or its or their customers and suppliers, concerning past, present, or future business activities of said entities. This Agreement is the Confidential Information of EnCompass Iowa. All other Confidential Information must be clearly designated as “Confidential.” Information provided orally will be considered confidential only if a written memorandum of such information clearly designated as marked “Confidential” is delivered to Recipient within thirty (30) days of the Disclosure. As to any particular Confidential Information, “Discloser” means the Party disclosing the Confidential Information and the “Recipient” means the Party receiving the Confidential Information.
“Content” means information, software, Client Data and other data including, without limitation, HTML files, scripts, programs, recordings, sound, music, graphics, and images that Client or any of its Users create, install, upload or transfer in or through a Client device or Client’s network.
“Client Components” means the hardware, software, other products, and other Content including, without limitation, those specified in a SOW as being provided by Client.
“Client Data” means all data and information about Client’s business(es), customers, employees, operations, facilities, products, markets, assets, or finances that EnCompass Iowa obtains, creates, generates, collects or processes in connection with its performance of Services and is stored in any Client device or on the Client network.
“Disclosure” means the release, publication, or dissemination of Confidential Information by a Party and excludes the release, publication, or dissemination of Confidential Information by a third party.
“Products” means any order for software, hardware, or Resold Services (“Products”) made by Client pursuant to a quotation issued by EnCompass Iowa (“Quotation”). Orders for Products are governed by this Master Services Agreement and Addendum B, “Terms Specific to Product Sales Only” attached hereto and incorporated herein by reference.
“Services” means the information technology services to be delivered by EnCompass Iowa under this Agreement as specified in any Statement of Work and does not include Third Party Services. Services may include Hosting Services where included in a SOW.
“Third Party Services” means the information technology services to be delivered by a third party under this Agreement as specified in any Statement of Work.
“User” means any entity or individual that receives or uses the Services, or the results or products of the Services, through Client.

2. TERM AND TERMINATION

2.1 Term. This Agreement will begin on the Effective Date and will continue until terminated.

2.2 Effects of Termination. If an Order for Services is terminated, Client will promptly pay EnCompass Iowa for Services rendered, and expenses incurred through the termination date.

2.3 Termination for Convenience. Either Party may terminate this Agreement for convenience at any time upon written notice to the other Party. If there are any active Statements of Work, termination shall be effective upon the expiration or termination of the last Statement of Work. If there are no active Statements of Work, termination shall be effective upon receipt of the written notice.

2.4 Termination for Breach. Either Party may terminate this Agreement or any individual SOW in accordance with Cure subsection below (in certain circumstances where an opportunity to cure must be provided) or No Opportunity to Cure subsection below (in certain circumstances where an opportunity to cure is not available):

Cure. If the other Party breaches any material provision of this Agreement or any SOW and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching Party (“Cure Period”). The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of the breach and how the breach can be cured within the Cure Period. If the breaching Party fails to cure the breach within the Cure Period, then termination shall be effective on the thirty-first (31st) day following receipt of such notice by the breaching Party.
No Opportunity to Cure. If: (a) the other Party breaches any representation or warranty in this Agreement; (b) any representation or warranty is inaccurate, incomplete, false or misleading in any material aspect; or (c) the breach is of a type or nature that is not capable of being cured within such time period (such as, by way of example and not limitation, an obligation relating to Confidential Information). The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of any breach. Termination shall be effective immediately upon receipt of such notice by the breaching Party.

3. PAYMENT

3.1 Fees. Client will pay EnCompass Iowa all fees due upon receipt of an invoice specifying the amounts due (“Fees”). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month from the date due until paid in full. Client’s obligation to pay undisputed amounts due for Services and EnCompass Iowa’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Fees will be detailed in an Order. All such Fees, including any potential overage fee, will be agreed upon by both parties prior to the service being provided by EnCompass Iowa. Without limiting the foregoing, if Client’s account remains unpaid for thirty (30) days or more past the due date, EnCompass Iowa reserves the right to suspend all Services until all such overdue amounts (and any applicable interest charges, as specified above) are paid. In addition, Client agrees to reimburse EnCompass Iowa for all expenses incurred in connection with the collection of amounts payable hereunder, including court costs and reasonable attorneys’ fees.

3.2 Taxes. All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of EnCompass Iowa). This provision shall not apply to any taxes for which Client is exempt and for which Client has furnished EnCompass Iowa with a valid tax exemption certificate authorized by the appropriate taxing authority.

3.3 Reimbursable Expenses. Unless otherwise stated in a Purchase Order, Client agrees to pay or reimburse EnCompass Iowa for all actual, necessary, and reasonable expenses incurred by EnCompass Iowa in performance of such Purchase Order, which are capable of verification by receipt. EnCompass Iowa will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Purchase Order or Statement of Work.

4. CONFIDENTIALITY AND NON-DISCLOSURE

4.1 Restrictions on Use; Non-Disclosure. Recipient agrees that it will use the same care and discretion to avoid Disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish, or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not: (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers, agents and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement.

4.2 Exceptions. The obligations set forth in Section 4.1 shall not apply to Confidential Information that: (a) before the time of its Disclosure was already in the lawful possession of the Recipient; or (b) at the time of its Disclosure to Recipient is available to the general public or after Disclosure to Recipient by Discloser becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully and independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement.

4.3 Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.

4.4 Disposal of Confidential Information. Upon termination of this Agreement or upon Discloser’s request at any time, Recipient agrees to promptly return to Discloser all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed. EnCompass Iowa will return to the Client, all Client Data in its possession at the date of termination in its then-existing format and on its Client-supplied media, however, EnCompass Iowa may keep a copy in accordance with its record retention policy. Any conversion of format or media performed by EnCompass Iowa in order to discharge its obligations under this Section shall be at Client’s expense.

4.5 Remedies. The Parties acknowledge and agree that a breach of this Agreement by either Party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Discloser shall therefore be entitled, in the event of any actual or threatened violation of this Agreement by Recipient, and in addition to any other remedies available to it, to seek to obtain a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief.

4.6 Duration. The obligations set forth in this Section 4 shall apply during the term of this Agreement and for a period of one (1) year thereafter.

5. NO-HIRE AGREEMENT

In the event either directly or indirectly employs or solicits for employment any employee of the other party, the hiring party agrees to pay the other as a recruitment and training fee and not a penalty an amount equal to 50% of the total annual salary of the subject employee or $50,000, whichever is greater.

6. PROVISIONS OF MATERIALS AND SERVICES TO ENCOMPASS IOWA

Client agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of EnCompass Iowa performing the services. Client will also provide EnCompass Iowa with access to all information, passwords and facilities requested by EnCompass Iowa that is necessary for EnCompass Iowa to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that the EnCompass Iowa may be unable to perform their duties adequately and if such a situation should exist, the EnCompass Iowa will be held harmless.

7. WORKING ENVIRONMENT

Client acknowledges that from time to time (a) EnCompass Iowa may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for EnCompass Iowa to meet Client’s requirements. In connection therewith, Client agrees to work in good faith with EnCompass Iowa to effectuate such purchases or changes. In the event that EnCompass Iowa is required to purchase any assets deployed at client site, including computer hardware and/or software, in connection with EnCompass Iowa providing the services, all such assets will remain the sole property of EnCompass Iowa unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to EnCompass Iowa do not infringe or violate the rights of any third party. Unless Client has engaged EnCompass Iowa for Co-Managed Cloud Backup or Disaster Recovery, Client will maintain adequate backup for all data and other items furnished to EnCompass Iowa.

It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to EnCompass Iowa’s products deployed at client site and EnCompass Iowa disclaims all responsibility for any loss including data.

8. CLIENT IS RESPONSIBLE FOR EQUIPMENT

9. CLIENT DATA OWNERSHIP AND RESPONSIBILITY

Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any data, information or
material submitted by Client to EnCompass Iowa.

9.1. Software Installation or Replication. If EnCompass Iowa is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. Client’s act of providing any software to EnCompass Iowa will be deemed Client’s affirmative acknowledgement to EnCompass Iowa that Client has a valid license that permits EnCompass Iowa to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client’s equipment for the installation of unlicensed software unless EnCompass Iowa in a written statement of work (“SOW”) expressly agrees to conduct such monitoring. Client will indemnify and hold harmless EnCompass Iowa against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Client providing infringing materials to EnCompass Iowa or any Client breach of this Section.

9.2. Data Encryption. Unless otherwise set forth in the SOW and/or SLA personal data and non-public data shall be encrypted at rest (public or multi-tenant), and in transit (traversing public networks). The SOW and/or SLA will specify which party is responsible for encryption. If the SOW and/or SLA are silent then the Client is responsible for encryption.

10. INTELLECTUAL PROPERTY

EnCompass Iowa retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Client acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.

10.1. License Agreements.
(a) License. Subject to the terms of this Agreement, EnCompass Iowa grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.
(b) Pre-Existing License Agreements. Any software product provided to Client by EnCompass Iowa as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party, will continue to be governed by the third party license agreement.
(c) EULA. Client hereby consents permission to EnCompass Iowa to sign all EULA’s necessary for any software product installed on Client’s computer system.

10.2. Third-Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by EnCompass Iowa. EnCompass Iowa’s sole obligation is to act on behalf of Client to assist in the satisfaction of any such warranty

11. WARRANTY

11.1 By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is in compliance, and will continue to comply during the term of this Agreement,
with all laws and regulations governing its possession and use of Client Data and its provision or use of the Services; and (c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.

11.2 By Client. Client represents and warrants to EnCompass Iowa that: (a) it owns, or is a licensee of, having the right to sublicense, the Content and that Client has the right to grant EnCompass Iowa the rights that Client purports to grant in this Agreement; (b) EnCompass Iowa’s possession or use of the Content or Client Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or
other proprietary right of any third party; and (c) it will not use, nor will it allow any third parties under its control to use, the Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.

11.3 By EnCompass Iowa. The Services shall be performed in a good, workmanlike, professional and conscientious manner by experienced and qualified employees of EnCompass Iowa according to the generally accepted standards of the industry to which the Services pertain. For any breach of the foregoing warranty, EnCompass Iowa will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to EnCompass Iowa specifying in reasonable detail such non-conformance. If EnCompass Iowa concludes that conformance is impracticable, then EnCompass Iowa will refund all fees paid by Client to EnCompass Iowa hereunder, if any, allocable to such nonconforming Services.

11.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF ERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF ENCOMPASS IOWA IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF ENCOMPASS IOWA. CLIENT IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES. IN ADDITION, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH ENCOMPASS IOWA CANNOT BE HELD LIABLE.

12. SOFTWARE, HARDWARE & SECURITY

Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, procedures set forth in Addendum A (“Network Security & Data Protection Policy”) attached hereto and incorporated herein by reference.

13. TERRORISM AND CYBER TERRORISM

In no event, shall EnCompass Iowa, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut- down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.

14. TELEMARKETING & UNSOLICITED EMAILS

15. EXTRAORDINARY EVENTS

16. LIMITATIONS OF LIABILITY

16.1Limit on Types of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL (AND ENCOMPASS IOWA’S SUPPLIERS AND LICENSORS WILL NOT) BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY CLAIMING THROUGH A PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT, ANY SOW, OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, STRICT LIABILITY AND NEGLIGENCE), EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (C) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOW FAILS OF ITS ESSENTIAL PURPOSE.

16.2 Limit on the Amount of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENCOMPASS IOWA’S TOTAL CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY, AND NEGLIGENCE), SHALL BE LIMITED IN ALL CASES TO AN AMOUNT WHICH SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID BY CLIENT TO ENCOMPASS IOWA DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE SOW.

16.3 Non-Managed Systems. EnCompass Iowa shall not be liable for any damages caused by services, systems, software, or other components that neither it nor its employees, agents or subcontractors furnish or manage pursuant to this Agreement.

16.4 Applicability. The terms in this Section 16 shall apply to the maximum extent permitted by applicable law. If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions or capping its liability for certain acts or omissions, then the terms in this Section 16 shall apply to not limit liability for such acts and omissions but will apply for all other acts and omissions.

16.5 Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 16 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CLIENT FOR THE SERVICES WOULD HAVE BEEN HIGHER.

17. INSURANCE

Each Party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, cyber liability, and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement. For the avoidance of doubt, each Party is solely responsible for insuring its personal property wherever located, and each Party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite Party.

18. INDEMNIFICATION

18.1 Indemnification by EnCompass Iowa. Subject to the terms and conditions in this Agreement, EnCompass Iowa will, at its cost, (i) defend Client and its officers, directors, shareholders, employees, agents, successors and assigns(collectively the “Client Indemnified Parties”) from and against any claim, suit, action, or proceeding (threatened or otherwise) (each a “Claim”) made or brought by a third party against Client Indemnified Parties to the extent based upon (a) any breach by EnCompass Iowa of any of it representations and warranties under Section 11.1; (b)real property damage or personal injury, including death, solely and directly caused by EnCompass Iowa’s employees or contractors in the course of performance under this Agreement; (c) any breach by EnCompass Iowa of Section 4 but only with respect to the Disclosure of Confidential Information and to the extent the Disclosure is the result of actions predominantly attributable to EnCompass Iowa; and (d) and any allegation that Client’s receipt of the Services under this Agreement infringes any of such third party’s copyrights, or any such third party’s patents issued in the United States as of the Effective Date, or misappropriates any of such third party’s trade secrets (each an “IP Claim”); and (ii) EnCompass Iowa shall pay any final award of damages (or settlement amount approved by EnCompass Iowa in writing and) paid to the third party that brought any such Claim.

18.2 Indemnification by Client. Client will indemnify, defend and hold harmless EnCompass Iowa and its officers, directors, shareholders, employees, agents, successors and assigns from any and all liabilities, damages, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claim, suit or proceeding(threatened or otherwise) made or brought by a third party against EnCompass Iowa or its officers, directors, shareholders, employees, agents, successors and assigns based upon (a) any breach by Client of any of it representations and warranties under Section 11; (b) real property damage or personal injury, including death, directly caused by Client; (c) any breach by Client of Section 4 but only with respect to the Disclosure of Confidential Information and to the extent the Disclosure is the result of actions predominantly attributable to Client; (d) any breach by Client of its obligations under Section 9.2 or Addendum A; (e) any breach by Client of Section 28; and (f) any claim that EnCompass Iowa’s possession, storage, or transmission of the Content or possession or use of the Client Components, infringes on, violates, or misappropriates any patent, copyright, trademark, service mark, trade secret or other intellectual property or proprietary rights of such third party.

18.3 Procedure. A Party (or other person) having a right to defense and indemnification under this Agreement(“Indemnified Party”) that desires such indemnification shall tender to the Party having an obligation to defend and indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly inwriting of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 18. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial, and defense of any Claim. In no event shall either Party make any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.

18.4 Mitigation for IP Claims. At any time after notice of an IP Claim, or if EnCompass Iowa believes there is a basis for an IP Claim, EnCompass Iowa has the right, at EnCompass Iowa’s sole option and expense, to either (a) procure the right for Client to continue receiving the Services as provided in this Agreement, or (b) replace or modify the applicable Service with a service that has substantially similar functionality and that EnCompass Iowa believes would not be subject to the IP Claim. If EnCompass Iowa deems (a) or (b) not feasible or not commercially reasonable, EnCompass Iowa has the right to terminate the applicable SOW. In the event of any such termination, EnCompass Iowa will refund to Client the unused portion of any amounts paid by Client for the affected Service. In addition, upon any such termination, Client shall cease the use of the applicable Service.

18.5 Limitations as to IP Claims. Notwithstanding anything to the contrary, EnCompass Iowa shall have no obligations or liability under Section 18.1 (Indemnification by EnCompass Iowa) if the IP Claim is based upon, arises out of, or is related to, in whole or in part, or if any of the following apply: (a) the combination of the applicable Service with any product, software, solution, or service not entirely developed and provided by EnCompass Iowa, (b) use of the applicable Service outside the scope of the licenses or rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement, (c) Client’s failure to comply with EnCompass Iowa’s direction to cease any activity that in EnCompass Iowa’s reasonable judgment may result in an IP Claim, (d) any allegation by a third party that does not specifically reference a EnCompass Iowa Service, or that does not reference a feature of function of a EnCompass Iowa Service, or (e) any IP Claim for which Client does not promptly tender control of the defense thereof to EnCompass Iowa.

18.6 Sole Remedy. THE TERMS IN THIS SECTION 18 (INDEMNIFICATION) SHALL BE CLIENT’S SOLE ANDEXCLUSIVE REMEDY AND ENCOMPASS IOWA’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITHRESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTYINTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 18(INDEMNIFICATION), ENCOMPASS IOWA SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFYCLIENT FOR THIRD PARTY CLAIMS.

19. DISCLAIMERS

The express remedies set forth in this Agreement will constitute Client’s exclusive remedies, and EnCompass Iowa’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly

EnCompass Iowa shall not be responsible for impairments to the Services caused by acts within the control of Client or its employees, agents, contractors, suppliers or licensees, the interoperability of Client applications, or other cause reasonably within Client’s control and not reasonably related to services provided under this Agreement.

No statement by any EnCompass Iowa employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.

20. SEVERABILITY

If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.

21. AMENDMENT

This Agreement may not be amended except by a writing executed by an authorized individual at EnCompass Iowa.

22. RELATIONSHIP

The Parties are independent parties; and this Agreement does not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture.

23. LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Iowa.

24. WAIVER

Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.

25. FORCE MAJEURE

With the exception of Client payment for service rendered, neither party shall be responsible for any failure to perform, or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.

26. ASSIGNMENT

Client may not assign its rights or obligations under this Agreement without EnCompass Iowa’s prior written consent which shall not be unreasonably withheld. EnCompass Iowa may assign this Agreement without the prior written consent of Client in connection with the acquisition of a EnCompass Iowa or the sale of all or substantially all its assets. The rights and obligations contained herein shall inure to the benefit of each Party’s successors and permitted assigns and shall be binding on and enforceable against the relevant Party’s successors and permitted assigns. Any reference in this Agreement to any Party shall be construed accordingly.

27. COUNTERPART AND ELECTRONIC SIGNATURES

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Client’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by the Client’s hand.

28. EXPORT COMPLIANCE

Client agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Client shall be solely responsible for such compliance with respect to Client Data and the Content that it provides to EnCompass Iowa.

29. ACTIVE NEGOTIATIONS

Each Party acknowledges that this Agreement has been the subject of active and complete negotiations, and that this Agreement should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.

30. NO THIRD PARTY BENEFICIARIES

This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties.

31. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein and supersedes all prior and contemporaneous undertakings and agreement of the Parties, whether written or oral, with respect to such subject matter.

ADDENDUM A

NETWORK SECURITY & DATA PROTECTION POLICY

Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that, unless otherwise set forth in a separate SOW and/or SLA, it will follow software and hardware updates and maintain specific security standards, policies, procedures meeting or exceeding those set forth below:

Business Grade Anti-Virus Software will be Installed on all desktops, laptops, and servers.
Ensure that all Critical or Security Related Operating System & 3rd Party Software Patches are Installed on desktops within 2 to 7 Days and are installed on Servers within 30 days of their release. This Includes, but is not limited to Anti-Virus Software, Operating System Updates, and 3rd Party Application Patches such as Adobe, Java, Flash etc.
All External Network Gateways (including the Cloud) are Protected by a Business Grade Firewall with a Comprehensive Security Subscription including Intrusion Detection, and that such subscription is licensed at all times and is downloading and applying new signatures as they are made available.
All Critical Data is Backed Up on at least a Daily Basis & Test Restores of all Back-Ups are Verified on a Quarterly Basis. All Back-Ups are Stored in a Secure Location Offsite or in a Fireproof Safe (Minimum 2 Hour).
All Critical Data is Backed Up on at least a Daily Basis & Test Restores of all Back-Ups are Verified on a Quarterly Basis. All Back-Ups are Stored in a Secure Location Offsite or in a Fireproof Safe (Minimum 2 Hour).

If applicable Protected Health Information (PHI) is stored on client computer and information system:

All Systems (Laptops, Workstations, And Servers) and Devices (Smartphones, USB Drives) Storing Personally Identifiable or Protected Health Information must be Securely Overwritten or Wiped Using an Approved Secure File Deletion Utility or Third Party Company that maintains Industry Certifications such as ISO-27001, ISO-14001, ISO-9001 upon decommission of the device to ensure that the information cannot be recovered.
All Portable Devices (such as Laptops, Tablets and Smartphones) containing Personally Identifiable or Protected Health Information will use Industry-Accepted Full-Disk Encryption Technologies*.
All Removable and Easily Transported Storage Media (such as USB Drives or CDS/DVDS) containing Personally Identifiable or Protected Health Information must use Industry Accepted Encryption Technologies*.
“Industry-Accepted” Means Accepted by the Cryptographic Community.

ADDENDUM B

TERMS SPECIFIC TO PRODUCT SALES ONLY

This Addendum B: Terms Specific to Product Sales Only (“Addendum B”) applies to any order for software, hardware, or Resold Services (“Products”) made by Client, for its own internal use and not for resale, pursuant to a quotation issued by EnCompass Iowa (“Quotation”). As used in this Addendum B, the term “Resold Services” refers to services, which although ordered from EnCompass Iowa, are procured from and supplied by a third party (i.e., EnCompass Iowa does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum B.

Product Returns and Warranty Assistance.

(a) Client acknowledges that EnCompass Iowa is reselling all Products purchased by Client and that Products are manufactured and/or delivered by a third party.

(b) To the extent available, EnCompass Iowa shall pass through to Client the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. In no event will EnCompass Iowa provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the applicable restocking fee(s).

(c) Client acknowledges that the terms and conditions governing the use of Products shall be solely between Client and the manufacturer of such Products.

Product Use and Product Warranty Disclaimer. Client will not use the Products for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. Client agrees that EnCompass Iowa is not liable for any claim or damage arising from such use.

ENCOMPASS IOWA MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. ENCOMPASS IOWA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

Shipment and Risk of Loss for Product Sales. All shipments of Products to Client will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Client’s identified point of delivery will be the responsibility of Client. Risk of loss will pass to Client upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Client’s representative at the point of shipment.
Product Security Interest. Client grants EnCompass Iowa a security interest in the Products detailed in each Quotation, as security for payment in full. Client authorizes EnCompass Iowa to file and/or record any documents it deems necessary to perfect this security interest.
Permitting Compliance for Product Sales. Client will obtain all licenses, permits, and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
Price and Payment. The prices set forth in any Quotation are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Client’s obligation. Prices quoted are firm for thirty (30) days unless otherwise specified in the Quotation. Unless otherwise provided on a Quotation, payment is due fifteen (15) days from the date of the invoice. In the event Client chooses to finance its purchase using a third party, Client remains liable for payment to EnCompass Iowa until EnCompass Iowa receives complete payment from such third party. All payments will be made in US currency. Client will pay interest in the amount of one and one-half percent (1.5%) per month, or the maximum allowed by law whichever is lower, on any outstanding balance owed.
Export. Client agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Client covenants that it will not, either directly or indirectly, sell, (re)export (including, without limitation, any deemed (re)export as defined by applicable law), transfer, divert, or otherwise dispose of any Product, or related software or technology, to: (i) any country or region of a country (or nationals thereof) subject to antiterrorism controls, or a U.S. embargo, (ii) any destination prohibited (without a valid export license or other authorization) by the laws or regulations of the United States, or (iii) any person, entity, vessel, or aircraft identified on the Consolidated Screening List, a downloadable file of which is accessible at http://export.gov/ecr/eg_main_023148.asp (or utilize any such person, entity, vessel, or aircraft in connection with the activities listed above), without obtaining prior authorization from the competent government authorities, as required by the above-mentioned laws and regulations. Client certifies, represents and warrants that no Product shall be used for any military or defense purpose, including, without limitation, being used to design, develop, engineer, manufacture, produce, assemble, test, repair, maintain, modify, operate, demilitarize, destroy, process, or use military or defense articles. Notwithstanding any sale of Products by EnCompass Iowa, Client acknowledges that it is not relying on EnCompass Iowa for any advice or counseling on export control requirements. Client agrees to indemnify, to the fullest extent permitted by law, EnCompass Iowa from and against any fines, penalties and reasonable attorney fees that may arise as a result of Client’s breach of this Section.
Cancelation. The purchase of Products may be canceled by Client only upon written approval of EnCompass Iowa and upon terms that indemnify EnCompass Iowa against all losses related to such cancelation.
Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM ENCOMPASS IOWA FOR WARRANTY CLAIMS. IN ADDITION, IN NO EVENT WILL ENCOMPASS IOWA’S LIABILITY TO CLIENT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM. ENCOMPASS IOWA WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS ADDENDUM B, EVEN IF ENCOMPASS IOWA HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.
Survival. Those provisions that by their nature should survive termination of this Addendum B, will survive termination. Without limiting the generality of the foregoing statement, Sections 2, 4, 7, and 9 shall survive any termination of this Agreement.

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