Master Terms and Conditions

THESE MASTER TERMS AND CONDITIONS (“MTCs”) apply to all service orders, service tickets, work orders, service level agreements, and other contracts, agreements and invoices (collectively, the “Instrument(s)”) between NetForward Corp. (“Consultant”) and any client (the “Client”) specifically identified in an Instrument that is signed by both Consultant and the Client, to the extent that these MTCs are expressly incorporated by reference in any such Instrument. By using the Services (as defined herein) from Consultant, Client agrees to be bound by these MTCs.

Whereas, the Consultant is engaged in the business of providing a full range of technology consulting services; and the Client desires to retain Consultant to perform technology services and functions; and in consideration of the mutual promises, covenants and agreements contained herein, the parties have agreed and do agree as follows:

1. Contracted Services

a) These MTCs shall apply to the delivery of technology services, support, and functions as further described in Instruments that may be proposed and approved by the parties. Any such approved Instrument shall be incorporated herein by reference (the services and functions described in any Instrument are hereafter referred to as the “Services”).

b) In the event that the scope of the Services is expanded, revised, or modified, for any Instrument incorporated herein, the parties shall prepare and sign a Change Authorization Order (“CAO”) or a new Instrument, which likewise shall be attached hereto and incorporated herein by reference. Absent the execution of an Instrument, these MTCs do not, in and of themselves, represent a commitment by Client to receive any Services from Consultant or pay Consultant any fees.

2. Term of Agreement:

a) These MTCs are effective upon the execution of the first Instrument by the Client and will continue until terminated by either party as provided below (“Term”). In the event that the Instrument provides for a different Term, the Instrument Term will control for that specific Instrument only.

b) In the event that there is a continuing need for any Services identified in an Instrument, after the expiration of the Instrument and Client requests, in writing, to have Consultant complete the Services, these MTCs will remain in effect automatically for the period of time that it takes for the completion of such Services.

c) An Instrument can be terminated for cause, as defined in paragraph 14(a) herein, at any time provided the alleged breaching party is provided an opportunity to cure the alleged breach in the manner set forth in paragraph 14(a) below or a Permitted Delay, as defined in paragraph 14(d) herein, does not apply.

3. Fees and Payment:

a) In exchange for the Services performed by Consultant, as set forth in any Instrument, Client agrees to compensate Consultant at the rates identified in the fee schedule set forth in an Instrument. Such rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein. Client will pay all undisputed invoices within thirty (30) days of receipt thereof unless otherwise defined by a Instrument for that Instrument.

b) In addition, Client shall reimburse Consultant its actual out-of-pocket expenses as reasonably incurred by Consultant in connection with the performance of Services. Additional expenses for materials, services, training and hardware may only be incurred by Consultant and charged to Client if prior written approval from Client has been obtained.

c) A late charge of one and one-half percent (1½%) per month, or the legal maximum if less, shall accrue on past due billings unless Client notifies Consultant of a billing dispute in writing prior to the payment due date. Client shall be responsible for any costs incurred by Consultant in the collection of unpaid invoices including, but not limited to, collection and filing costs and reasonable attorney’s fees of not less than fifteen percent (15%) of the outstanding balance due.

4. Change Orders or Out of Scope Services:

a) To the extent that Client requires or requests additional services or services that exceed the Services set forth in any Instrument incorporated herein, Consultant will charge an additional fee for such additional services or out of scope work. Fees for such additional services or out of scope work will be set forth in a Change Authorization Order (CAO), which will also provide a description of the changed or additional service(s) being requested. Once a CAO is signed by both parties, it will be incorporated into the source Instrument and have the same legal effect as the Instrument. Additionally, Instruments may include predefined overage rates or charges that may be charged upon notification to the Client of a potential overage state and written acknowledgement by Client of the expected overages and notice to Consultant of any limits to overages for that billing period.

b) CHANGE ORDER PROCEDURE

The following process will be followed if a change to this SOW is required:

i) A Change Authorization Order (CAO) will be the vehicle for communicating change. The CAO must describe the change, the rationale for the change, and the effect the change will have on the project.

ii) The designated Project Manager of the requesting party (Consultant or Client) will review the proposed change and determine whether to submit the request to the other party.

iii) Both Project Managers will review the proposed change and approve it for further investigation or reject it. Consultant and Client will mutually agree upon any charges for such investigation, if any. If the investigation is authorized, the Client Project Managers will sign the CAO, which will constitute approval for the investigation charges. Consultant will invoice Client for any such charges. The investigation will determine the effect the CAO implementation will have on SOW price, schedule and other terms and conditions of the MTCs.

iv) Upon completion of the investigation, both parties will review the impact of the proposed change and, if mutually agreed, a Change Authorization will be executed.

v) A written Change Authorization must be signed by both parties to authorize implementation of the investigated changes.

5. Ownership of Materials Related to Services: The parties agree that any materials prepared and delivered by Consultant in the course of providing the Services shall be considered works made for hire. All rights, title, and interests of such materials shall be and are assigned to Client as its sole and exclusive property. Notwithstanding the foregoing, the parties recognize that performance of Consultant hereunder will require the skills of Consultant and, therefore, Consultant shall retain the right to use, without fee and for any purpose, such “know-how”, ideas, techniques, and concepts used or developed by Consultant in the course of performance of the services of these MTCs.

6. Independent Contractor: The parties accept these MTCs as independent contractors and nothing within these MTCs shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties. All Consultant employees who are assigned to perform services at any Client owned or leased facility shall be considered to be an employee of Consultant only and will not be considered an agent or employee of Client for any purpose. Consultant will be solely responsible for payment of all compensation owed to its employees, including all applicable federal, state, and local employment taxes and will make deductions for all taxes and withholdings required by law. In no event will any Consultant employee be eligible for or entitled to any benefits of Client.

7. Confidential Information:

a) Client understands and acknowledges that Consultant may, from time to time, disclose “Confidential Information” to Client. For purposes of these MTCs, the term “Confidential Information” shall include but not be limited to any nonpublic and/or proprietary information or materials relating to Consultant’s promotional and/or marketing strategy and activity, Consultant’s pricing information (including but not limited to rates, margins, and budgets), Consultant’s financial and budget information, Consultant’s Client lists, information about the education, background, experience, and/or skills possessed by Consultant employees, Consultant employee compensation information, Consultant’s service and/or sales concepts, Consultant’s service and/or sales methodology, Consultant’s service and/or sales techniques, Consultant’s Client satisfaction data or sales information, or any information which Consultant marks or identifies as “confidential” at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. Client will not disclose Consultant’s Confidential Information to any third party at any time without the prior written consent of Consultant and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, Consultant’s Confidential Information shall include the terms set forth in these MTCs, all of which shall remain the property of Consultant and shall in no event be transferred, conveyed, or assigned to Client as a result of the services provided pursuant to these MTCs. The foregoing duty shall survive any termination or expiration of these MTCs.

b)Consultant also understands and acknowledges that Client may, from time to time, disclose to Consultant proprietary ideas, concepts, expertise, and technologies developed by Client relating to computer application programming, installation, and operation (collectively “Client’s Confidential Information”). Client may further provide to Consultant documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Client’s business operations (collectively “Confidential Trade Information”). Consultant agrees:

i) not to use any Client Confidential Information or Confidential Trade Information for its own use or for any purpose other than the specific purpose of completing the Services;

ii) not to voluntarily disclose any Client Confidential Information or Confidential Trade Information to any other person or entity; and

iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Client Confidential Information and/or Confidential Trade Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Client Confidential Information and/or Confidential Trade Information. The foregoing duty shall survive any termination or expiration of these MTCs.

c) In no event shall Client use Consultant’s Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.

d) The following shall not be considered Confidential Information for purposes of these MTCs:

i) Information which is or becomes in the public domain through no fault or act of the receiving party;

ii) Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information;

iii) Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or

iv) Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.

e) The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the non-disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

8. Nonsolicitation of Employees: Client will not, either directly or indirectly (except through Consultant) solicit, hire, or contract with any Consultant employee during the term of these MTCs and for a one (1) year period following termination thereof (hereafter the “Nonsolicitation Term”). In the event that Client desires to directly hire any Consultant employee during the Nonsolicitation Term, Client must first seek Consultant’s consent to directly hire the employee and to speak with the Consultant employee about the employment opportunity. In the event that Consultant grants Client the option to directly hire a Consultant employee, and the Consultant employee accepts an offer of employment from Client, the parties shall discuss issues related to the employee’s transition to Client. The employee’s start date will be mutually agreed upon by Client and Consultant in writing. Provided the parties agree to the Consultant employee’s transition terms, Client shall pay Consultant a placement fee of no less than 30% of offered compensation prior to the Consultant employee commencing work as an employee of Client. Unless the parties agree otherwise, Client shall not directly hire more than two Consultant employees during the Nonsolicitation Term. If Client hires a Consultant employee without first obtaining the consent of Consultant, Client shall pay Consultant a liquidated damage equal to 100% of the employee’s fair market annual salary, as determined by Consultant in its sole discretion. This provision is considered a material term that allows for accelerated termination rights under paragraph 14 of these MTCs.

9. Client Responsibilities:

a) In addition to any obligations and responsibilities described in the Instrument or elsewhere in these MTCs, Client shall have shared responsibility with Consultant regarding the following:

i) To ensure that the necessary business and application knowledge is available and conveyed from the Client’s existing teams to Consultant’s team.

ii) Provide ready access to all appropriate computing platforms, documentation (e.g., program source, copybooks, tables, subroutines) and personnel (i.e., end users and technical representatives) necessary to fully understand the current business systems and environments throughout the life of the engagement.

iii) Client agrees to provide Consultant with physical access to systems at the hours requested by Client.

iv) Client agrees that it will inform Consultant of any modification, installation, or service performed on the network by individuals not employed by Consultant in order to assist Consultant in providing an efficient and effective network support response.

v) Provide at its facility, adequate office space and equipment for Consultant’s on-site employees. Access will also be provided to the Client’s source libraries, test systems, and test data.

vi) Provide external communications capability and/or access to its work facility to enable Consultant’s onsite project team to access the Client’s information technology system for after hours or weekend services as required.

b) Client shall designate a managerial level representative to authorize all network Support Services. Should the designated representative be replaced, the new or temporary representative shall engage the Consultant account manager within 30 days for a review of MTCs and active Instruments.

c) Client shall assign an employee or representative to be present at the work facility for any after-hours or weekend services provided by Consultant. In the event that Client declines or fails to assign an employee or representative to be present during such hours, Client waives any and all claims for any property damage or loss that occurs during such time that Consultant’s employee(s) is on the Client’s work facility.

d) Client shall provide passwords and job numbers to Consultant employees as needed.

e) Client shall provide legally licensed software associated with Client Services.

f) Client is responsible for regulatory compliance requirements and shall identify, review, and approve tasks impacted by regulatory compliance.

g) Client agrees that some services may be provided by subcontracted entities or individuals.

h) Client agrees that work will be performed on behalf of Client on a remote basis, and that Consultant will expense any travel expenses to Client for on-site work unless otherwise stated in an Instrument.

10. Warranty of Services: Any warranty offered by Consultant for Services provided herein shall be set forth in the Instrument. UNDER NO CIRCUMSTANCE IS ANY WARRANTY GIVEN ON Client DATA. In the absence of any warranty language in the Instrument, Consultant warrants that all Services performed pursuant to these MTCs will be performed in accordance with the general standards and practices of the technology industry in existence at the time the Services are being performed. IN THE EVENT THAT THERE IS NO WARRANTY SET FORTH IN THE Instrument, THE FOREGOING EXPRESS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, ORAL OR WRITTEN, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TO THE EXTENT APPLICABLE.

11. Limitation of Liability: Client agrees that Consultant shall not be liable to Client, or any third party, for:

a) any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein for any incidental or consequential damages, however caused, and

b) Client agrees to indemnify and hold Consultant harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against Consultant by or in right of third parties or for any punitive damages.

c) Consultant shall not be responsible to Client for loss of use of the network or for any other liabilities arising from alterations, additions, adjustments, or repairs which have been made to the network other than by authorized representatives of Consultant.

For purposes of these MTCs, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or good will; loss of Clients; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the law of the State of Wisconsin. Consultant’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Client to Consultant as of the date the alleged damages were incurred.

12. Indemnification: Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder. To the extent that such claim arises from the concurrent conduct of Client, Consultant, and/or any third party, it is expressly agreed that Consultant’s liability shall be limited by the terms and provisions of paragraph eleven (11) herein and that, with respect to any remaining obligations to pay any third party claims, demands, losses, damages or expenses that are not limited by the terms and provisions of paragraph eleven (11) herein, each party’s obligations of indemnity under this paragraph shall be effective only to the extent of each party’s pro rata share of liability. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party’s written consent.

13. Equal Opportunity Employer: Consultant is an Equal Opportunity Employer and does not discriminate in recruitment, hiring, transfer, promotion, compensation, development, and termination of its employees on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran’s status, or other protected category as required by applicable Federal, State, and local laws. Client likewise represents that it will not discriminate in the referral or acceptance of Consultants hereunder on the basis of race, color, sex, age, marital status, national origin, handicap, religious beliefs, veteran’s status, or other protected category as required by applicable federal, state, and local laws.

14. Termination:

a) Termination for Cause: If either party believes that the other party has failed in any material respect to perform its obligations under these MTCs (including any Instruments, Exhibits, or Amendments hereto), then that party may provide written notice to the other party’s management representative describing the alleged failure in reasonable detail. If the alleged failure relates to a failure to pay any sum due and owing under these MTCs or if Client makes an unauthorized solicitation of a Consultant employee under the provisions of paragraph eight (8) herein, the breaching party shall have ten (10) business days after notice of such failure to cure the breach. If the breaching party fails to cure within ten (10) business days, then the non-breaching party may immediately terminate these MTCs, in whole or in part, for cause by providing written notice to the management representative of the breaching party. With respect to all other defaults, if the breaching party does not, within thirty (30) calendar days after receiving such written notice, either (a) cure the material failure or (b) if the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching party may terminate these MTCs, in whole or in part, for cause by providing written notice to the management representative of the breaching party.

b) Termination for Bankruptcy: Either party shall have the immediate right to terminate these MTCs, by providing written notice to the other party, in the event that (i) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.

c) Payments Due: The termination of these MTCs shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.

15. Permitted Delays: Each party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions, including failures or fluctuations in electric power, heat, light, air conditioning or telecommunication equipment, and such nonperformance shall not be a default hereunder or a ground for termination hereof. Consultant’s time of performance shall be enlarged, if and to the extent reasonably necessary, in the event: (i) that Client fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed upon schedules; (ii) of a special request by Client or any governmental agency authorized to regulate, supervise, or impact Consultant’s normal processing schedule; (iii) that Client fails to provide any equipment, software, premises or performance called for by these MTCs, and the same is necessary for Consultant’s performance hereunder. Consultant will notify Client of the estimated impact on its processing schedule, if any.

16. Continuation of Services: Consultant will continue to perform Services during the notice period unless otherwise mutually agreed upon by the parties in writing. In the event that Client provides the notice of termination and directs Consultant not to perform the services through the notice period, Client agrees to pay Consultant an amount equal to the amount normally due to Consultant for the notice period. Upon termination by either party, Client will pay Consultant for all services performed and charges and expenses reasonably incurred by Consultant in connection with the services provided under these MTCs through the date of termination.

17. Miscellaneous Clauses:

a) Non-Restrictive Relationship. Consultant may provide the same or similar services to other Clients and Client may utilize other information technology service providers that are competitive with Consultant.

b) The rights and remedies provided to each of the parties herein shall be cumulative and in addition to any other rights and remedies provided by law or otherwise. Any failure in the exercise by either party of its right to terminate these MTCs or to enforce any provision of these MTCs for default or violation by the other party shall not prejudice such party’s rights of termination or enforcement for any further or other’s default or violation or be deemed a waiver or forfeiture of those rights.

c) Force Majeure. Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including and without limitation: strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; or inability to obtain transportation or necessary materials in the open market.

d) All notices required under or regarding these MTCs will be in writing and will be considered if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to the parties at the address of the last executed Instrument.

e) If any term or provision of these MTCs is held to be illegal or unenforceable, the validity or enforceability of the remainder of these MTCs will not be affected.

f) The section headings in these MTCs are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of these MTCs.

g) Entire MTCs. These MTCs and the Instrument(s) and/or CAO(s) incorporated herein constitute the entire agreement between the parties and supersede any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written, regarding the subject matter of these MTCs.

h) These MTCs may only be amended by the Consultant. Any written work order submitted by Client shall not amend the terms of these MTCs and will only be considered (1) a statement of the work to be performed; (2) set forth any deadlines or schedules; and (3) the additional fees to be charged, if any, for any out of scope work or services stated on the work order.

i) Applicable Law. These MTCs are made under and will be construed in accordance with the law of Wisconsin without giving effect to that state’s choice of law rules. The forum for any dispute or litigation arising out of these MTCs shall be in the Courts of Consultant’s Home County Court or in the Federal District Court for Consultant’s Federal District Jurisdiction.

j) Successors and Third-Party Beneficiaries. These MTCs shall inure to the benefit of Consultant and Client and any successors or assigns of Consultant and Client. No third party shall have any rights hereunder.