MASTER SERVICE AGREEMENT

This Master Service Agreement (“Agreement”) is a binding agreement between XPLIFI, Inc., (“XPLIFI”), a Pennsylvania limited liability company, and the person or entity identified on the Order Form as the client (“Client”).

XPLIFI PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. BY ENTERING INTO AN ORDER FORM, YOU (CLIENT) (A) ACCEPT THIS AGREEMENT AND AGREE THAT CLIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR CLIENT’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE WILL BE PROVIDED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT CLIENT DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF XPLIFI’S SOFTWARE.

For valuable consideration, together with the mutual promises contained herein, the parties agree as follows:

Definitions. Capitalized terms used in this Agreement, not already specifically defined in the body of this Agreement, are defined as:
“Agent” means a customer service representative engaged by XPLIFI to deliver the Services to Client and may also be referred to in any amendment or other schedule, exhibit, or addendum to any of such documents, which is incorporated herein by reference, as Agents, customer service representatives, teleservices representative, or other term understood by the parties to have the same meaning.
“Applicable Laws” means all applicable laws, statutes, codes, ordinances, decrees, rules, regulations, municipal by-laws, judgments, orders, decisions, rulings or awards, including those of that pertain to the jurisdiction in which the Services are to be performed or otherwise to the jurisdictions in which Client’s business is performed, and/or any government agency or department in such jurisdiction(s).
“Business Day” means any day other than the weekend or any public holiday in the applicable geographic region.
“Client Systems” means the legacy or other hardware and/or software systems that Client uses either internally or in conjunction with other service providers and to which XPLIFI requires access to enable XPLIFI to perform the Services as described more fully in this Agreement.
“Client’s Offering(s)” means any of the products or services that Client may offer to its customers that are the subject matter pursuant to which XPLIFI’ Agents will engage with Client’s customers under this Agreement.
“Event of Default” means, except for a Payment Default, any other event wherein a party breaches any of its material obligations under this Agreement, and after the non-breaching party has given the breaching party written notice of such breach and demand for cure, such material breach is not cured in all material respects within thirty (30) days following the breaching party's receipt of written notice from the non-breaching party.
“Fees” mean the fees charged by XPLIFI for the Services provided.
“XPLIFI Materials” means all underlying non-Client specific training programs, software, scripts, systems, management systems, development tools, know-how, market research, methodologies, processes, technologies or algorithms and other Intellectual Property used by XPLIFI to perform and deliver the Services and/or produce the Work Product, which are based on the trade secrets or proprietary information of XPLIFI.
“Intellectual Property” means any domestic or letter patent, patent, patent application, patent license, software or know-how license, trade name, common law or other trademark, service mark, license of trademark, trade name and/or service mark, trademark registration and application, service mark registration and application, copyright registration and application, or trade secret.
“Performance Standards” means, for any Program, the operational metrics, performance standards, key performance metrics, KPIs, or other service level metrics, which will become binding commencing after the Start-up Period.
“Program” means the specific inbound, outbound, search engine optimization, or other support XPLIFI provides to Client.
“Public Third-Party Systems” means one or more systems provided by third parties on the internet that are generally made available to the public, including, but not necessarily limited to, public networks, third party hosted data content/messaging services, web conference services, and email services.
Term. Subject to the parties’ right to terminate this Agreement, the term will begin on the Effective Date and continue for one (1) year. This Agreement shall automatically renew unless terminated in writing by Client within 60 days prior to the end of the then current term.
The Services. XPLIFI will provide the services (“Services”) selected by Client, as applicable to any Program. The Services to be provided by XPLIFI to Client will be performed subject to the terms of this Agreement.
Amendment. The terms of this Agreement may be modified from time to time by XPLIFI (“Amendment”).
Order of Precedence. If a conflict arises between any term of this Agreement and any other written agreement between the parties, then this Agreement will govern. The terms and conditions of any other written agreement shall supersede only those provisions of the Agreement that are expressly specified as to be modified, replaced and/or superseded.
Payment Terms.
Client agrees to pay XPLIFI the Fees prior to the performance of any Services.
Client agrees to pay by electronic payment (ACH or credit card).
Client must set forth, in writing, any amount(s) disputed in good faith and the basis or reason for the dispute in reasonable detail. Upon receipt of a notice of dispute, the parties will make reasonable, diligent, good faith efforts to resolve the dispute as soon as possible.
The failure of Client to pay any amounts not disputed as provided herein, within ten (10) Business Days of receipt of written notice by XPLIFI of a breach by Client for failure to pay such amounts shall constitute a “Payment Default.” Upon the occurrence of a Payment Default, XPLIFI shall have the right, in its sole discretion to (i) immediately suspend all performance of the Services until Client pays all past due amounts in full, or (ii) terminate this Agreement in accordance with Section 5 [Termination]. XPLIFI shall have no liability of any kind whatsoever to Client for any suspension of performance or termination pursuant to this subsection.
Without prejudice to any other rights or remedies available to XPLIFI hereunder, XPLIFI will have the right to charge interest on any past due amounts at the lower of one and a half percent (1.5%) per month, which interest shall be compounded monthly and start to accrue on the date of the Payment Default. Client agrees to pay all costs and expenses incurred by XPLIFI in the collection of any undisputed and unpaid sums hereunder, including XPLIFI’ reasonable attorneys’ fees and costs.
All amounts payable to XPLIFI hereunder are net of all taxes (other than taxes based solely on XPLIFI’ net income) however designated and levied by any state, local or government agency, and Client agrees that it shall be responsible for all such taxes.
Termination.
In the Event of Default, excluding Payment Default, that is not cured by the breaching party within five (30) days following written notice thereof, the non-breaching party may provide written notice to the breaching party and the Agreement will terminate as of the termination date provided in the notice of termination.
In no event shall XPLIFI be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond XPLIFI’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency.
With respect to any termination of the Services (regardless of the reason), Client will pay to XPLIFI all undisputed amounts due for Services performed through the termination date.
Treatment of Confidential Information.
In connection with the performance of the Services, each of the parties has or may have disclosed to the other party certain confidential and/or proprietary information and materials, including, but not limited to, trade secrets, products or services, customers, business and marketing strategies, software programs, methods, inventions, processes and techniques and/or other information identified by the disclosing party as confidential and proprietary or which a receiving party otherwise knows or reasonably should know is confidential (“Confidential Information”). “Disclosing Party” means the party that discloses its Confidential Information to the Receiving Party; and “Receiving Party” means the party that receives the Confidential Information of Disclosing Party.
Confidential Information does not include, and the parties’ obligations of non-disclosure do not cover, information that:
is in the public domain or generally known at the time of disclosure to, or at the time obtained by, the Receiving Party, or which, other than by reason of a material breach by Receiving Party, comes into the public domain or becomes generally known after the time of disclosure to Receiving Party;
Receiving Party can demonstrate was known to it prior to commencing discussions with Disclosing Party concerning the Services;
Receiving Party can demonstrate was independently developed by it prior to commencing discussions with Disclosing Party concerning the Services; or
is disclosed to Receiving Party by a third party who or which is under no legal or contractual obligation or restriction not to disclose same to Receiving Party.
Except as set forth herein, Receiving Party shall not disclose to any person or entity any Confidential Information of Disclosing Party that is disclosed to, or is otherwise obtained by or becomes known to, Receiving Party. Receiving Party shall not use any Confidential Information of Disclosing Party for any purpose other than to perform its obligations or enforce its rights under this Agreement.
Receiving Party may disclose the Confidential Information of Disclosing Party only to those employees, agents, attorneys, and advisors of Receiving Party who need to know such Confidential Information in order for Receiving Party to make use effectively of same pursuant to this Agreement and who have entered into confidentiality agreements or are bound by professional responsibility obligations that protect the Confidential Information of the Disclosing Party sufficient to enable the Receiving Party to comply with its obligations of confidentiality. Receiving Party shall be responsible for any unauthorized disclosure or use of Disclosing Party's Confidential Information by such employees, agents, attorneys or advisors.
Receiving Party shall protect and maintain the confidentiality of the Confidential Information of Disclosing Party using at least the same level of care (but no less than reasonable care) that Receiving Party uses to protect and maintain the confidentiality of its own Confidential Information.
As between Receiving Party and Disclosing Party, solely Disclosing Party owns all copyrights, trademarks, service marks, trade secrets, know-how and other Intellectual Property rights embodied or contained in, or constituting part of, Disclosing Party's Confidential Information.
At the request of Disclosing Party during or upon termination of this Agreement, Receiving Party shall, as promptly as practicable, deliver to Disclosing Party all Confidential Information of Disclosing Party then in Receiving Party’s possession or under Receiving Party’s control or Receiving Party may destroy all of its copies of such Confidential Information and certify that such destruction has been accomplished; provided, however, in all events, Receiving Party may retain one copy of such Confidential Information solely for archival purposes and that may be used only to demonstrate what was received from Disclosing Party (or developed or maintained for Disclosing Party) in connection with any dispute regarding same.
If Confidential Information is required by Applicable Laws or court order to be disclosed, Receiving Party will provide Disclosing Party with timely notice so as to afford Disclosing Party an opportunity to seek an appropriate protective order if one is desired and obtainable.
Intellectual Property Rights.
General Statement. Each party will retain all rights in any software, ideas, concepts, know-how, processes, development tools, techniques or any other proprietary material or information that it owned or developed prior to the date of this Agreement, or that it acquires or develops after the date of this Agreement without use or incorporation of the Intellectual Property of the other party.
Ownership of Data. Except as expressly set forth herein, XPLIFI will have exclusive ownership of all data (including all customer data) collected or generated as a direct result of the performance of Services under this Agreement, together with all XPLIFI IP. Client will keep such data confidential pursuant to the confidentiality provisions of this Agreement and in accordance with all Applicable Laws. Notwithstanding anything contained herein to the contrary, all data, intellectual property, and other information related to prospective customers for the Client shall remain XPLIFI’s data until such prospective customer becomes a customer of the Client (pursuant to an executed agreement between such customer and the Client),
XPLIFI Intellectual Property. For the purposes of this Agreement, “XPLIFI IP” means Intellectual Property owned by XPLIFI prior to any services, together with any Intellectual Property created by XPLIFI during the performance of any services, and XPLIFI Materials . Additionally, XPLIFI IP shall include all end-customer information XPLIFI and Client may, from time to time, discuss ways to improve XPLIFI’s functionality, operations, interface or the delivery of its Services (“Improvements”). Such Improvements (expressly excluding any Confidential Information of Client) are solely and exclusively owned by XPLIFI and part of XPLIFI IP. Client shall have no interest in any such Improvements, regardless of Client’s role in the development or creation of the same. Client agrees that XPLIFI may provide curated information relating to third-party customers to Client, and agrees that XPLIFI retains ownership of the information of, and the relationship with, the third-party customers except solely to the extent such information is generated pursuant to a definitive agreement between Client and such third-party customer after referral by XPLIFI. Client agrees and understands that third-party customers are also clients of XPLIFI, and Client agrees that XPLIFI owns the business relationship with the third-party customers as to the services provided by XPLIFI.
Limited Use of Marks. To the extent that either party provides to the other party the use of any of its trade names, trademarks, service marks, symbols and other proprietary marks (“Marks”), the providing party grants to the receiving party the limited and revocable right to utilize the Marks only for authorized purposes, only to the extent authorized, and only in the authorized manner specified.
Representations and Warranties of the Parties.
Basic Representations and Warranties. Each party represents and warrants to the other that: (a) such party is duly organized, validly existing and in good standing under all Applicable Laws; (b) such party has the organizational power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement; (c) the execution, delivery and performance of this Agreement by such party have been duly authorized by all necessary organizational action, and this Agreement has been duly and validly executed on behalf of such party; and (d) this Agreement constitutes a valid and binding agreement of such party, enforceable against such party in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency and similar laws affecting creditors' rights and remedies generally, and principles of equity generally applied.
Compliance with Law. Each party represents and warrants that it shall comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority (federal, state or otherwise) that has jurisdiction over the parties or which are applicable to such party’s performance under this Agreement, including, without limitation, the CAN-SPAM Act of 2003, as amended, the Telephone Consumer Protection Act (“TCPA”) (47 U.S.C. § 227 et seq.) and the FCC’s implementing rules and regulations, including 47 C.F.R. § 64.200, and all applicable FTC ruling sand guidelines, whether those Laws are now in effect or later come into effect during the term of this Agreement.
XPLIFI’ Warranties Regarding the Delivery of Services. XPLIFI warrants that it will perform the Services with reasonable care, skill and diligence in accordance with industry standards. Subject to the caveats in this Agreement, XPLIFI will use commercially reasonable efforts to perform the Services in all material respects in accordance with the Performance Standards.
Indemnification.
General. Each party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other party, its affiliates and their respective shareholders, partners, members, directors, officers, authorized representatives, employees, agents, successor and permitted assigns (collectively the “Indemnified Parties”) from any and all third party claims, losses and threatened losses (“Losses”) arising from or in connection with, or based on allegations: (i) on behalf of, or by any employee of the Indemnifying Party, provided such claim is related to such employee’s employment with the Indemnifying Party; (ii) resulting from the Indemnifying Party’s willful misconduct or gross negligence; (iii) relating to the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person caused by the willful misconduct or gross negligence of the Indemnifying Party; (iv) the damage, loss or destruction of any real or tangible personal property caused by the negligence of the Indemnifying Party; or (v) asserting that an Indemnifying Party's Intellectual Property, products or services, including hardware, software, or any combination thereof, or such party's use, marketing or advertising thereof, constitutes an infringement of any patent, copyright, trademark, service mark, trade name, trade secret or other Intellectual Property or proprietary rights of any third party.
Indemnification Procedure. The Indemnifying Party’s obligations to the Indemnified Parties under this Section shall apply only to the extent that the Indemnified Parties: (i) promptly after receipt of notice of the commencement or threatened commencement of any civil, criminal, administrative, or investigative action or proceeding involving a claim in respect of which the Indemnified Parties will seek indemnification, notify the Indemnifying Party of such claim in writing; (ii) allow the Indemnifying Party to control, and fully cooperate with the Indemnifying Party in the defense of any such claim; and (iii) do not enter into any settlement or compromise of any such claim without the Indemnifying Party's prior written consent. Failure of the Indemnified Parties to follow any or all of the foregoing shall not relieve the Indemnifying Party of its obligations under this Agreement, except to the extent that the Indemnifying Party can demonstrate that it was prejudiced by such failure.
Limitations of Liability.
In no event will either party be liable to the other party for incidental, special, indirect, or consequential damages arising out of this Agreement, whether arising in contract, negligence, gross negligence, strict liability, or otherwise, and whether or not such party has been advised of the possibility of such damage.
Except for a parties’ material breach of Section 7 [Intellectual Property] or Section 8.2 [Compliance with Applicable Laws] or in connection with a party’s indemnification obligations under Section 9 for a material breach of Applicable Laws, the total aggregate liability of either party under this Agreement shall in no event exceed the fees received by or owed to XPLIFI from Client hereunder over the twelve (12)-month period immediately preceding the date of the event giving rise to the liability.
Neither party limits its liability for fraudulent misrepresentation; and nothing herein shall be construed to prevent XPLIFI from recovering damages under this Agreement if Client fails to comply with its obligations timely remit payment or wrongfully terminates the Agreement.
Dispute Resolution.

11.1 Any controversy, dispute or claim between the parties shall be resolved by arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) at the request of either party. The arbitrator panel shall apply state substantive Law of the Commonwealth of Pennsylvania. Each party shall be liable for its own and costs expenses, including the cost of its arbiter. The parties shall even share in the cost of the arbitration umpire.

11.2 Each party shall appoint an arbitrator within thirty (30) days of the date on which a party makes a written demand for arbitration, and the two named shall select an umpire. If either party refuses or neglects to appoint an arbitrator within the time specified, the other party may appoint the second arbitrator. If the two arbitrators fail to agree on an umpire within thirty (30) days of their appointment each of them shall name three (3) individuals, of whom the other shall decline two (2), and the choice shall then be made by drawing lots.

11.3 Each party shall submit its case to the arbitrators within sixty (60) days of the appointment of the umpire or within such period as may be agreed by the arbitrators. The hearing shall take place in Pittsburgh, Pennsylvania unless otherwise agreed by the parties. The written decision of a majority of the panel shall be made as soon as practicable but within thirty (30) days following termination of the hearing unless the parties mutually consent to an extension. Such majority decision of the panel shall be final and binding on the parties both as to law and fact and may not be appealed to any court of any jurisdiction.

Insurance. Each party covenants, represents, and warrants that it now has in force and effect a valid and binding contract of professional liability insurance covering it for damages occasioned by errors or omissions (“E&O”), and covenants to keep such policy, or one similar thereto, in full force and effect during the continuance of this Agreement, at the party’s own expense. Each party shall maintain E&O insurance covering its operations, including the obligations of this Agreement, in an amount not less than $1,000,000 per claim and annual aggregate in an amount not less than $1,000,000.
No-Hire of Employees. During the term and for a period of twelve (12) months after the date of termination of any Program, neither party actively solicit any of the other party’s employees who, in any manner, have worked on the Program. The restrictions contained in this provision in no way bar an employee from applying for or accepting a position with a company of his/her choosing.
Relationship Between the Parties. XPLIFI warrants that it is engaged in an independent business and will perform its obligations under this Agreement as an independent contractor. Persons employed by one party will be under the sole and exclusive direction and control of such party and will not be considered employees of the other party for any purpose. Nothing herein shall be deemed to create or establish between Client and XPLIFI a partnership, joint venture, or a relationship or employer/employee, franchiser/franchisee or principal/agent.
Results of an Event of Force Majeure. Subject to XPLIFI’ obligation under any business continuity plan that is mutually agreed to in writing by the parties, XPLIFI’ obligation to provide Services shall be suspended (or reduced, as applicable) without XPLIFI being in breach of this Agreement during the period and to the extent that the performance of the Services are hindered or prevented by any Event of Force Majeure. Client shall be obligated to pay only for the Services performed during such period of suspended or reduced service; provided, however, if failure(s) of any of the Clients Systems result in XPLIFI being unable to perform or fully perform the Services, Client shall be responsible to pay Fees for all workstations and Agents which remain available to perform such Services during the period(s) of such failure(s).
Notices. All notices and demands shall be deemed sufficiently given if delivered personally, sent by overnight express delivery service, or sent by registered or certified mail, postage prepaid with return receipt requested, to the addresses and for the attention of the individuals set forth below.

For XPLIFI, Inc.:

John McCallum

CEO

jmccallum@xplifi.com

Courtesy Copy to:

Joshua Ciccone

Clark Hill

jciccone@clarkhill.com

For Client:

Miscellaneous Provisions.
Governing Law. This Agreement, and any claims directly or indirectly arising out of, under, or in connection with this Agreement or any related instrument, shall be governed by the laws of Commonwealth of Pennsylvania, including its statutes of limitations, without regard to its conflict of laws principles.
Waiver of Jury Trial. Each party irrevocably waives all right to trial by jury in any action, proceeding or counterclaim arising out of or in connection with this Agreement or any matter arising hereunder.
Waivers. Failure to enforce compliance with any term or condition of this Agreement will not constitute a waiver of such term or condition of this Agreement or the right to subsequently enforce such term or condition in the future.
Assignment. Except for assignment to a mutually agreeable entity which a party controls or which controls a party or is under common control with a party or assignment to a party acquiring substantially all of the assets or business of the assigning party, neither party may assign any of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other party.
Survival. Any and all obligations under this Agreement which, by their very nature should reasonably survive the termination or expiration of this Agreement, will so survive, including, but not limited to, those arising from the confidentiality and non-solicitation provisions of this Agreement.
Severability. In the event that any provision of this Agreement is held or construed to be invalid by any arbitrator or other authority of competent jurisdiction, such provision will be deemed to be excluded from this Agreement. In any event, all other provisions of this Agreement will remain in full force and effect.
Entire Agreement and Integration. This Agreement and any exhibits and attachments thereto constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior agreements, discussions, proposals, representations or warranties, whether written or oral on this subject matter.

Xplifi provides introductions of businesses to high-quality IT service providers in their region. The goal is to match a business with an IT service provider that has the industry experience and expertise to support their business challenges.

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