Master IT Services Agreement

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions represent the Master IT Services Agreement (“Agreement”) entered into between Anchor Network Solutions, Inc. (“Anchor”) and the Client (as defined in the applicable Order).

1. SERVICES

a. Purpose and Orders. Under this Agreement, the Client may engage Anchor to perform information technology (“IT”) related services (the “Services”). Upon Client’s request that Anchor provide any Services, Anchor will issue an order, proposal, quote, statement of work, or other form of communication to the Client that (i) indicates that Anchor is willing to provide certain Services, (ii) includes the associated fees and costs and (iii) sets forth additional terms and conditions applicable to such Services (each, an “Order”). Orders will attach to and be incorporated into this Agreement. Anchor is not required to provide any Services to the Client until the Client and Anchor execute an Order. All Orders are governed by this Agreement. No modifications to the Agreement shall be effected by any rate schedules, purchase order forms, acknowledgment forms or other documents containing terms and conditions conflicting with this Agreement or the Additional Terms and Conditions set forth in an Order unless such additional terms and conditions have been expressly agreed to by the parties as evidenced by each party’s initials to such additional terms and conditions.

b. Additional Services. Anchor is obligated to provide only the Services specifically listed in an Order. If the Client requests additional Services or the scope of Services requires adjustments beyond what is listed in an Order, then a separate or amended Order will be issued for execution by the parties. Depending on the adjustments that need to be made, additional charges may apply. If the Client does not accept the updated Order, then Anchor shall not be obligated to continue any further performance of the Services. In such a case, Anchor is entitled to payment for the Services provided up to the date that the Client elects not to accept the updated Order. If Anchor provides Services under this Agreement as requested by Client but which are not covered under an Order the performance of those Services shall be governed by the terms and conditions set forth in this Agreement.

c. Additional Terms and Conditions. If Anchor provides the following Services or Products to Client: Managed Services, Backup and Disaster Recovery Services, Security Services or Microsoft Solutions or other third party enterprise solutions and services, then, as applicable, the Additional Terms and Conditions as included in the applicable Order (“Additional Terms and Conditions”) will apply to and be incorporated herein. If this Agreement is used for any of the foregoing Services or other direct third party services and the Client does not agree to the Additional Terms and Conditions, then Anchor may immediately terminate this Agreement and any Orders generated under it. If any of the Services are governed by the terms of a third party end user license agreement, Client agrees to be bound by the terms of such agreement as if the terms were set forth herein. Specific end user license agreements to which Client agrees to be by executing this Agreement include, but are not limited to: Third Party Provider – Anchor Network Solutions, Inc.

d. Advice; Instructions. From time to time, Anchor may provide you with specific advice and directions related to its provision of the Services or the maintenance or administration of the Client’s computer network, computer system, peripheral or device (“System”). For example, Anchor’s advice or directions may include increasing the System’s server or hard drive capacity or replacing obsolete equipment. Client agrees to promptly follow and implement any directions Anchor provides related to the Services which, depending on the situation, may require Client to make additional purchases or investments in the System or the environment in which the System is maintained, at Client’s sole cost. Anchor will not be responsible for any System downtime caused by Client’s failure to promptly follow Anchor’s advice or directions. If Client’s failure to follow or implement Anchor’s advice renders part or all of the Services economically or technically unreasonable to provide in Anchor’s discretion, then Anchor may terminate the applicable Order for cause by providing notice of termination to Client. Unless specifically and expressly stated in an Order, any Services required to remediate issues caused by Client’s failure to follow Anchor’s advice or directions, or Client’s unauthorized modification of the System, as well as any Services required to bring the System up to or maintain the Minimum Requirements, are not covered under any Order and will be out-of-scope.

e. Response Times. Anchor will make reasonable efforts to meet agreed upon response times during its performance of Services under this Agreement. Response times vary based upon the Service(s) requested by the Client.

f. Business Hours. Unless otherwise agreed to in an Order, Anchor only will be expected to provide Services between the hours of 8:00 AM and 5:00 PM (U.S. Mountain Time) Monday through Friday, excluding U.S. public holidays (“Normal Working Hours”). If requested by Client, Anchor may provide Services outside Normal Working Hours. Any Services performed outside Anchor’s Normal Working Hours may be subject to additional fees.

2. PRODUCTS

a. Products and Equipment. Under this Agreement, Anchor may provide the Client with various equipment, software, and other IT related products as part of the Services being performed (collectively, the “Products”). Products may be provided to Client on a rental or for purchase basis.

b. Products Provided on Rental Basis. Unless an applicable Order provides that the Client is purchasing Product(s) or Anchor and the Client have otherwise agreed in writing that the Client is purchasing Product(s), any Products provided to the Client under this Agreement are deemed as being provided on a rental basis. The Client acknowledges and agrees that Anchor (or an applicable third-party owner of the Products) retains all ownership rights, interests and title to such rented Products at all times. Client does not acquire any rights of ownership in the rented Products by virtue of this Agreement, and Client does not have and will not have, by operation of law or otherwise, any lien or other similar right over or in relation to Products that are provided to Client on a rental basis under this Agreement. Client agrees that it is responsible for any Products in its possession or control and shall use reasonable measures to protect the Products from loss or damage. Client shall not use the Products for anything other than to receive the related Services provided for under this Agreement and an applicable Order. Unless otherwise explicitly authorized to do so in writing by Anchor, Client shall not make any adjustments, alterations, or other changes to the Products, either cosmetically, functionally, or otherwise (including moving the Products from the location where they were originally installed or removing labels). Client agrees that Anchor may remove or change out Products at any time as Anchor deems necessary in order to perform and continue performance of Services for the Client. Upon termination of this Agreement, an applicable Order, or the related Services for which the Products are being rented to Client, Client shall return the Products to Anchor in good order, wear and tear excepted. In accordance with Anchor’s direction and instruction, the Client shall deliver the Products back to Anchor, or the Client will provide reasonable access to Anchor at an agreed upon date and time for Anchor or a designated Anchor agent to retrieve the Products from Client’s location. Anchor reserves the right to charge the Client for reasonable repair or replacement costs for Products that are damaged, lost, stolen, or otherwise not returned to Anchor.

c. Purchase of Rented Products. The parties agree that Client may purchase certain rented Products either during the term of or at expiration of this Agreement or an applicable Order. Anchor will identify any rented Product(s) that it is willing to sell to Client along with the pricing for such Product(s). Anchor shall continue to retain all right, title and ownership interest in such Product(s) until Client has made full payment to Anchor for the Product(s).

d. Delivery. Unless the parties agree otherwise in writing, Anchor will be responsible for any damage or loss that occurs to the Products up to the time that the Products are delivered to the Client’s location. Once the Products are delivered to the Client’s location, then the Client becomes responsible for any damage or loss that may occur to the Products, unless the damage or loss was present before reaching the Client’s location or was a direct result of Anchor’s gross negligence or willful misconduct.

e. Product Warranties and Defects. Unless otherwise stated, all Products are developed and manufactured by third party vendors who are not related to or controlled by Anchor. The Client shall rely only on those warranties and representations about the Products that come directly from the manufacturers and developers of the Products, including any claims regarding the functionality of or specifications about the Products. In the event that any Product sold to Client has a defect, the Client will look to the Product’s manufacturer and the applicable warranty to get the defective Product repaired, replaced, or returned. In the event that any Product rented to Client has a defect, is damaged, or is otherwise not functioning properly, the Client will immediately notify Anchor and Anchor will repair or replace the Product in its sole discretion.

f. Returns. If the Client purchases Products at the recommendation of or based on the consultation of Anchor and it is later determined that such Products are not appropriate for the Client’s needs, the Client may return such Products by contacting Anchor using the contact information contained on the Cover Page of this Agreement. Additionally, if a manufacturer’s warranty or other written policies relating to a Product allow for the return of such Product, then Anchor will provide reasonable assistance to the Client to get the Product returned in accordance with the warranty and policy requirements. Except as otherwise provided in writing, any returns of Products made by Client more than thirty (30) days after the date of purchase are done at the discretion of Anchor.

g. Right to Repossess. The Client agrees that, in addition to the other remedies available to Anchor for the Client’s failure to pay for the Products within the applicable payment timeframes, Anchor shall have the right and authority to retake possession of the Products from the Client and the Client shall provide the necessary access to Anchor to do so. Anchor may allow the Client to make immediate full payment on the Products and Anchor will return the Products to the Client.

3. CLIENT OBLIGATIONS

a. Access and Onsite Accommodation. The Client shall provide Anchor with the necessary access to the Client’s personnel, documentation and records, equipment, network, software, servers, systems, passwords, and other items as Anchor reasonably requests in order for Anchor to perform its obligations under this Agreement, regardless as to whether Anchor is performing the Services remotely or at a location controlled by the Client. Further, if Anchor is required to perform any Services onsite at a location controlled by the Client, then the Client shall ensure that Anchor is performing those Services in a safe, comfortable, and clean working environment with access to heat, light, ventilation, electric current, outlets, Internet, remote access, and long-distance telephone access. The Client acknowledges that Anchor may not be able to fully perform all of its obligations under this Agreement or an Order if Anchor does not receive the access and accommodations that it requests, and Anchor may suspend all or a portion of the Services until the requested access and accommodations are provided or an alternative resolution is worked out between the parties. The Client shall not hold Anchor responsible for any suspension of the Services, if the required access and accommodations are not provided. Further, if any harm, injury, damage, or loss occurs to the Client’s personnel, documentation and records, equipment, network, software, servers, systems, or location during Anchor’s performance of the Services, Anchor is responsible to the Client for such harm only when it is directly caused by Anchor’s gross negligence or intentional misconduct.

b. Passwords and Protection. For Services that require Anchor to access password protected systems or information, the Client shall supply all applicable passwords to Anchor. All passwords provided by the Client are considered to be its Confidential Information. Anchor may not be able to fully perform all of its obligations under this Agreement if Anchor does not receive the passwords, and Anchor may suspend all or a portion of the Services until the passwords are provided or an alternative resolution is worked out between the parties. The Client is responsible for protecting its passwords, and the Client shall not hold Anchor responsible for any data loss or other harm resulting from lost passwords. Anchor is entitled to rely on Client’s Login as conclusive evidence of identity and authority.

c. Minimum Requirements. Prior to providing any Services to the Client, Anchor may require that the Client’s equipment, network, software, servers, systems, and general infrastructure meet certain minimum requirements specified by Anchor (the “Minimum Requirements”). Specific Minimum Requirements for Services to be provided will be set forth in the applicable Order, applicable Additional Terms and Conditions, or otherwise in writing from Anchor to the Client. The Client must meet these Minimum Requirements prior to Anchor performing any Services. The Client understands that meeting the Minimum Requirements could result in harm, issues, or problems, including non-compatibility issues, with its current systems, software, networks, equipment, and general infrastructure. The Client is responsible for independently verifying whether meeting the Minimum Requirements could cause such harm, issues, or problems, and the Client shall not hold Anchor responsible for any harm, issues, or problems that it experiences when meeting or attempting to meet the Minimum Requirements. If, at any time after Anchor begins its performance of the Services, the Client’s equipment, software, servers, systems, or general infrastructure no longer meet the Minimum Requirements, then Anchor may suspend its performance immediately and is not obligated to continue performance until the Minimum Requirements are met. At the Client’s request, Anchor may assist the Client with its efforts to meet any Minimum Requirements. Anchor shall issue an Order setting forth any Services that Anchor will perform to assist the Client in meeting the Minimum Requirements. Additional charges may apply to such Services.

d. Full Right and Title. The Client represents that it has the necessary rights, titles, and licenses to permit Anchor to use, access, or modify any software that the Client requests that Anchor work with as part of the Services. The Client will maintain those necessary rights, titles, and licenses to the software throughout Anchor’s performance of the Services. The Client shall be liable to Anchor for any costs or damages incurred by Anchor due to the Client’s failure to obtain or maintain such rights, titles, and licenses.

e. Adherence to Applicable Laws and Regulations. The Client is responsible for determining whether the Services and Products provided to the Client along with the Client’s obligations and actions under this Agreement comply with all laws, regulations, rules, or restrictions that might be applicable to the Client and its operations. The Client shall be responsible for fully compensating Anchor for any claims, losses, or damages experienced by Anchor resulting from the Client’s breach of the foregoing obligation.

4. FEES AND PAYMENT

a. Fees. Fees associated with the Services performed and Products sold by Anchor under this Agreement are included in each Order. Notwithstanding, if no fees are included in those documents, then Anchor’s standard fees apply (the “Standard Pricing”). If Anchor provides an estimate of fees for any Services or Products requested, then the Client understands that the final fees associated with the Services or Products could be more than the estimated fees, and the Client is responsible for paying all final fees associated with the Services and Products. Anchor may change its Standard Pricing at any time without notice to the Client. AS PERMITTED BY LAW, ANCHOR OFFERS A DISCOUNT FOR SERVICES IF CLIENT MAKES ITS PAYMENTS BY CASH OR AUTOMATED CLEARING HOUSE.

b. Pass-Through Expenses. Unless the parties agree otherwise in an applicable Order, the Client shall pay Anchor’s reasonable out-of-pocket expenses (the “Pass-Through Expenses”). Out-of-pocket Pass-Through Expenses include, but are not limited to third-party vendor support fees, shipping and handling. Anchor will make reasonable efforts to notify the Client about any Pass-Through Expenses prior to incurring them. Anchor may require payment of Pass-Through Expenses prior to Anchor incurring such expenses on the Client’s behalf. If the Client refuses to pre-pay any Pass-Through Expenses requested by Anchor, then the Client acknowledges that such refusal may affect Anchor’s ability to perform its obligations under this Agreement and the Client shall not hold Anchor responsible for its limited performance or non-performance under such circumstances.

c. Travel and Expenses. If Anchor is required to travel beyond the fifty (50) mile radius that immediately surrounds its headquarters location to perform Services under this Agreement, then Client agrees to pay any associated travel charges and expenses incurred by Anchor. Any travel charges and related expenses are Pass-Through expenses and will be billed to Client.

d. Payment for Products.

• i. Rental Products. Anchor may incorporate any fees associated with the rental of Product(s) into the overall fees for the related Services, or Anchor may include such rental or license fees as a separate line item in the applicable Order. Unless otherwise provided in the applicable Order, Client shall pay all rental fees prior to the Products being delivered to Client’s location.
• ii. Purchased Products. Client will be invoiced for the purchase of Products and will be expected to pay for the Products in accordance with Anchor’s standard payment timeframes. Provided, however, for certain Products, Anchor may require that the Client pre-pay for Products prior to delivery. The parties agree that Anchor retains all right, title, and interest in the Products until the Client has made full payment for the Products. Further, unless the Order states otherwise, the Client is responsible for paying all shipping costs associated with getting the Products delivered to the Client.

e. Invoicing and Payment. Payment on all fees and Pass-Through Expenses will be due either in advance of Anchor providing any Services and/or Products to Client or at the time the Services and/or Products are provided. Specific payment due dates may be provided in each applicable Order. For any and all fees and Pass-Through Expenses that are not paid by Client within thirty (30) days from the date on which payment is due, Anchor reserves the right to charge interest on such fees and Pass-Through Expenses at a rate that is the lesser of either (i) 2.0% or (ii) the maximum rate allowed under applicable law. If the Client disputes any fees or Pass-Through Expenses, then the Client immediately shall notify Anchor about such dispute in writing, but in no case later than thirty (30) days from the due date of such fees or expenses. The parties will make a good faith effort to resolve the dispute within a reasonable time from the date that the Client notified Anchor about the dispute. Client waives any right to dispute any fees or Pass-Through Expenses if such dispute is not delivered in writing to Anchor within thirty (30) days from the due date of such fees or expenses. Anchor is entitled to recover all costs associated with enforcing the payment obligations of this Agreement. The Client agrees to reimburse Anchor for any costs associated with Anchor’s efforts to collect payment under this Agreement.

f. Taxes. The fees provided in an Order do not include any applicable sales, use, excise, or services taxes (“Taxes”). If Taxes are assessed on any Services or Products, then the Client shall pay those taxes directly to the taxing authority or shall reimburse Anchor for Anchor’s payment of those Taxes to the taxing authority.

5. TERM AND TERMINATION

a. Term. This Agreement shall commence as of the Effective Date of first Order entered into pursuant to this Agreement and shall remain in effect until terminated in accordance with the terms herein.

b. Termination of the Agreement for Convenience. The parties may terminate this Agreement at any time upon mutual written Agreement between the parties. Additionally, if there is no active Order between the parties, then either party may terminate this Agreement immediately upon written notice to the other party.

c. Termination of an Order. An Order may be terminated pursuant to the applicable Additional Terms and Conditions set forth in such Order.

d. Termination for Cause. If either party is in breach of one of its material obligations (other than payment of fees and expenses) under this Agreement, an Order, or any applicable Additional Terms and Conditions, then the non-breaching party may terminate this Agreement or the applicable Order by providing written notice of termination to the breaching party so long as: (1) the non-breaching party provided prior written notice to the breaching party of its breach; and (2) the breaching party has failed to cure such breach within ten (10) business days after receiving such notice. Additionally, if the Client is the party in breach, then Anchor immediately may suspend its performance of Services upon sending notice to the Client that the Client is in breach of an obligation.

e. Termination based on Third Party Action. If a relationship between Anchor and any of its third party vendors, partners, or other providers is terminated or suspended and such termination or suspension affects Anchor’s ability to provide any Services or Products to the Client, then Anchor may terminate its performance or provision of the affected Services or Products or terminate the applicable Order immediately upon notice to the Client. Client shall not hold Anchor liable for any termination of Services or Products due to actions of third-party vendors, partners or providers.

f. Suspension of Services and Termination

• i. Non-Payment. Anchor immediately may suspend its performance of Services, if the Client fails to pay all invoiced amounts when due. This is in addition to the other remedies that are available to Anchor under this Agreement, at law, and in equity. If the Client fails to pay all outstanding amounts owed within five (5) business days from the date that Anchor suspended its performance of the Services, then Anchor immediately may terminate this Agreement and any active Orders upon written notice to the Client.
• ii. Dispute other than Payment. If a good faith dispute arises between the Client and Anchor for any reason other than payment, including but not limited to, the scope of an Order, the nature of the Services to be provided, or access and accommodation concerns at a Client’s location(s), then Anchor may immediately suspend any further performance of its Services upon notice to the Client until the dispute is resolved between the parties. If the parties are not able to resolve the dispute within ten (10) business days after the date that the dispute first arose, then, in addition to the other rights and remedies available to the parties under this Agreement, at law, and in equity, either party may immediately terminate this Agreement by providing written notice of termination to the other party.
• iii. Reconnect Fee. If the Services are suspended for any reason, Anchor may charge Client a reconnection or reinstatement fee if Client requests the restarting of Services after suspension.

g. Effect of Termination.

• i. Payment. The Client shall be responsible for paying Anchor for all Services and Products provided up through the date of termination, in addition to any other payments that might be owed to Anchor under the terms of an applicable Order or under any applicable Additional Terms and Conditions. If the Client is receiving Services that are charged on a recurring monthly basis for a set term, then, unless otherwise provided for in the Order and except where the Agreement is terminated due to Anchor’s breach or at Anchor’s convenience, the Client shall be responsible for payment of all monthly recurring Services fees along with any Pass-Through Expenses that would have been owed by the Client had the Services gone for the full agreed upon term length. For example, if the term of an Order is 12 months, and the Order is terminated six months into the term, the Client would be required to pay for six months of the monthly recurring Services fees then in effect.
• ii. Return of Materials. The Client immediately shall return any Products or other materials that were provided to the Client by Anchor as part of its performance of the Services. Alternatively, Anchor may instruct the Client to remove and destroy such items. Once destroyed, the Client shall provide Anchor with written certification of the removal and destruction.
• iii. Use of Products and Licenses. Client agrees to cease the use of any technology that remains the property of the Anchor upon termination of this agreement, including, but not limited to, the NAS device (if applicable for BDR Services). Upon termination, Client shall immediately cease accessing and using any Services or Products which are licensed to Client pursuant to this Agreement.

6. INTELLECTUAL PROPERTY RIGHTS

a. Anchor’s Works. The parties do not intend for Anchor to develop any intellectual property or “works-for-hire” (as that term is defined under the copyright laws of the United States) for the Client under this Agreement or any Order. With the exceptions of the items listed below, any deliverable provided to the Client by Anchor constitutes an Anchor work and is not deemed a “work for hire” and Anchor shall remain the sole and exclusive owner of all right, title and interest in the deliverable. Except as provided for in this section, nothing in this Agreement or any Order shall be deemed to convey or grant any ownership rights, licenses or goodwill in the deliverables, Services or Products. The following items shall not be considered as an Anchor work: (i) software, including but not limited to any proprietary code, source code and object code, that is subject to third-party license Agreements; (ii) those portions of any deliverable including information in the public domain; (iii) those portions of any deliverable constituting generic ideas, concepts, business know-how and work processes, and techniques within the computer design, support and consulting business generally; and (iv) those portions of any deliverable containing general computer consulting knowledge and information that the Client had or acquired during the relationship with Anchor that does not include the proprietary business information of Anchor. To the extent any Anchor work is deemed to be a “work for hire”, the Client hereby irrevocably assigns, transfers and conveys to Anchor all of its right, title and interest in Anchor work, including but not limited to, all rights of patent, copyright, trade secret, know-how and other proprietary and associated rights in Anchor work. The Client shall execute documents or shall take other actions reasonably requested by Anchor to perfect Anchor’s ownership of any Anchor work. Anchor hereby grants the Client a non-exclusive, limited license to make copies of any Anchor works during the term of the Agreement only and only as related to the Services. In its provision of services to other clients, Anchor may incorporate any deliverable or skills used or developed during its performance under this Agreement.

b. Client Materials. The Client shall retain all ownership and licensing rights in any documents, equipment, software, data, information or other materials that the Client provides to Anchor in the provision of the Services (collectively, the “Client Materials”). However, the Client hereby grants Anchor a fully paid, non-exclusive, unrestricted, irrevocable, sub-licensable, worldwide right and license to use, modify, and redistribute the Client Materials to the extent necessary for Anchor to fulfill its obligations under this Agreement and any Order. If the Client refuses to provide or is unable to provide the foregoing license rights to the Client Materials, the Client acknowledges that Anchor may be unable to perform a portion of or all of the Services, and the Client will not hold Anchor responsible for its non-performance under such circumstances. In an applicable Order, the parties may explicitly identify additional items, documents and materials as Client Materials.

c. General Skills and Knowledge. The Client understands that Anchor may utilize any skills, knowledge or ideas of a general nature acquired during the course of providing the Services, and may independently develop the same or similar deliverables for other clients based on skills, knowledge or ideas of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in a similar work performed for other Anchor clients and customers.

7. CONFIDENTIAL INFORMATION.

a. Definition. “Confidential Information” means: (a) any technical information, customer and member information and data, design, process, passwords, procedure, formula, or improvement, as well as any formulae, specifications, designs, business or work processes and procedures, instructions, and other data relating to the development, production of any work done specifically for the Client; and (b) the business plans and financial information of a party, regardless of whether such information would be protected at common law. Confidential Information does not include: (a) information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise; (b) information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other; (c) information received from a third party with the right to transmit same without violation of any secrecy Agreement with the other party; and (d) information that must be disclosed pursuant to court order or by law.

b. Protection. Each party acknowledges that it and its employees or agents may be exposed to or acquire the Confidential Information of the other party. The receiving party shall hold such Confidential Information in confidence using the same standard of care that the receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care, and shall not disclose any Confidential Information to any third party without the express written consent of the disclosing party, except as permitted herein. Anchor shall not be responsible for any damages, losses, expenses, or claims resulting from loss or disclosure of Client Confidential Information unless Anchor (1) breached an expressed obligation under this Agreement, an Order, or applicable Additional Terms and Conditions and (2) that breach directly caused the loss or disclosure to occur.

c. Third Party Providers and Vendors. If Anchor is required to disclose the Confidential Information to any third party as required to perform its Services hereunder, then Anchor will ensure that such third party is required, by written agreement, to keep the information confidential under terms that are at least as restrictive as those stated herein.

d. Return of Confidential Information. Upon termination or expiration of this Agreement, each of the parties shall immediately cease using the other party’s Confidential Information and shall immediately return any of the other party’s Confidential Information to the other party or destroy it. Without limiting the foregoing, the obligation to return Confidential Information shall include, but not be limited to, the obligation to erase any Confidential Information, and all images, compilations, copies, summaries or abstracts of such information, from computer storage, systems and related storage devices, tools and servers; provided that a party shall not be required to purge any historical backup media and may retain one copy for legal archive purposes each of which shall remain subject to the terms of this Agreement indefinitely. Notwithstanding, to the extent that Anchor determines that it is not feasible or commercially reasonable to return or destroy certain Client data, Anchor may retain such data after termination or expiration which shall remain subject to the terms of this Agreement indefinitely.

e. As the violation of the provisions of this section of the Agreement would cause irreparable injury to the non-breaching party, and there is no adequate remedy at law for such violation, the non-breaching party shall have the right to seek specific performance or injunctive relief against the breaching party without the posting of a bond or other security. The remedies available with respect to the rights and obligations under this Agreement are cumulative, and this section shall not be construed to limit in any manner whatsoever any other rights or remedies that may be available for any breach of this Agreement.

8. WARRANTIES, LIABILITIES, AND LIMITATIONS

a. Limited Warranty. Anchor shall perform all Services in a professional and workmanlike manner and in accordance with generally accepted industry standards. If Anchor fails to meet this level of performance, then Anchor may either (1) re-perform the affected Services at no cost to the Client or (2) not charge the Client for the affected Services. This is the sole and exclusive remedy for the Client for a breach of Anchor’s limited warranty set forth above in this sub-section.

b. Expectations from Services. The Client acknowledges that even if Anchor performs the Services in accordance with Anchor’s obligations and representations under this Agreement, the Client’s systems, networks, software, equipment, and infrastructure may still experience or be susceptible to harm, malfunctions, security breaches, and other issues, including but not limited to, cybersecurity breaches, data loss, viruses, hacking, cyber-attacks, intellectual property theft, and exposure of confidential information. Further, Anchor does not represent that its performance of the Services will ensure that the Client’s systems, networks, software, equipment, and infrastructure will not experience such problems. Anchor shall not be responsible for any damages, losses, expenses, or claims resulting from issues unless Anchor (1) breached an expressed obligation under this Agreement, an Order, or applicable Additional Terms and Conditions, and (2) that breach directly caused such problem to occur.

c. DISCLAIMER OF WARRANTIES. ANCHOR MAKES NO WARRANTIES OF ANY KIND TO THE EFFECT THAT CLIENT NEVER WILL HAVE A PROBLEM WITH ITS EQUIPMENT OR THAT THE SECURITY OF CLIENT’S NETWORK NEVER WILL BE COMPROMISED AND THERE WILL BE NO INTERRUPTION OF SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, ALL SERVICES AND PRODUCTS ARE PROVIDED “AS IS”. ANCHOR MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

d. THIRD PARTY PRODUCTS AND SERVICES. WHERE POSSIBLE, ANCHOR WILL PASS THROUGH ANY MANUFACTURER OR VENDOR WARRANTIES ON PRODUCTS, EQUIPMENT, SOFTWARE AND SERVICES, INCLUDING ANY CLOUD BASED SERVICES, BUT ANCHOR MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE FUNCTIONALITY OR QUALITY OF THE PRODUCTS, EQUIPMENT, SOFTWARE, OR SERVICES, INCLUDING CLOUD BASED SERVICES, AND THE CLIENT SHALL LOOK SOLELY TO THE WARRANTIES PROVIDED BY THE APPLICABLE MANUFACTURER OR VENDOR.

e. LIMITATION OF LIABILITY. EACH PARTY’S LIABILITY UNDER THE AGREEMENT IS LIMITED TO THE ACTUAL, DIRECT DAMAGES INCURRED BY A PARTY AND, SHALL IN NO EVENT EXCEED THE AMOUNT PAID TO ANCHOR SPECIFICALLY FOR THE PORTION OF SERVICES AND/OR PRODUCTS WHICH GAVE RISE TO THE LIABILITY HEREUNDER WITHIN THE PREVIOUS TWELVE (12) MONTHS FROM THE DATE ON WHICH THE LIABILITY AROSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANCHOR SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO THE CLIENT’S EQUIPMENT, SOFTWARE, DATA FILES OR OTHER INFORMATION RESULTING FROM ANY SERVICES PERFORMED BY ANCHOR OR FROM THE FAILURE OF ANY EQUIPMENT OR THIRD PARTY SERVICE. THE CLIENT IS SOLELY RESPONSIBLE FOR BACK-UPS AND ARCHIVAL COPIES OF ALL SOFTWARE, DATA AND OTHER INFORMATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR THIRD-PARTY DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, AND LOSS FROM INTERRUPTION OF BUSINESS OR DATA, EVEN IF PREVIOUSLY ADVISED OF THEIR PROBABILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE.

f. Indemnification. The Client shall indemnify and defend Anchor for any claims, losses, fees (including reasonable attorney’s fees) or damages experienced by Anchor that are a result of the Client’s: (1) gross negligence or willful misconduct; (2) failure to meet applicable regulatory requirements; (3) infringement of a third party’s intellectual property, including any infringement done through the Client’s Systems; (4) loss of any password(s); or (5) failure to properly maintain its systems and equipment. Anchor shall indemnify and defend Client for any loss or damages that are a direct result of Anchor’s: (i) gross negligence or willful misconduct; or (ii) infringement of a third party’s intellectual property.

g. Insurance. Each party shall maintain reasonable insurance coverage through their respective carriers. Such insurance must include, at a minimum, commercial general liability coverage. Client shall be responsible for obtaining and maintaining insurance that covers the full replacement value of any Products provided to Client on a rental basis. Client confirms that it has in place Data Security & Privacy “Cyber” insurance coverage (including coverage for unauthorized access and use, failure of security, breach of confidential information, of privacy perils, as well as breach mitigation costs and regulatory coverage). Such Cyber insurance shall be maintained in force at all times during the term of the Agreement. Client will deliver Anchor a certificate of insurance representing the foregoing insurance coverage upon request. Client shall name Anchor as an insured beneficiary on Client’s insurance policies required hereunder.

9. DISPUTE RESOLUTION

a. Arbitration Procedure. Any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration before one arbitrator to be mutually agreed upon by the parties. The arbitration shall be administered and conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth below, the procedures set forth below will control. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, JAMS shall select the arbitrator. The arbitration shall take place in Lone Tree, Colorado, or other location as agreed to by the parties. The arbitrator shall determine the scope of discovery in the matter, however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

b. Excluded Claims. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Client’s failure to pay for Services in accordance with this Agreement may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.

c. Brining Claims. No claims to be resolved may be made more than six (6) months after the date by which the fault or failure should reasonably have been discovered; failure to make such a claim within the six (6) month period shall forever bar the claim.

10. MISCELLANEOUS

a. Entire Agreement. This Agreement, the Cover Page, Attachments and any Order incorporated herein is the entire understanding between Anchor and the Client regarding its subject matter and supersedes all prior and contemporaneous oral and written understanding and Agreements between the parties related to the subject matter.

b. No Hiring. During the term of this Agreement and for one (1) year after its expiration or termination, Client will not solicit or hire, either directly or indirectly, any employee of Anchor without first obtaining the written permission of Anchor. Client acknowledges that a violation of this section could result in significant and irreparable damages to Anchor which would be difficult to ascertain in a dollar amount. If the Client violates this provision, then Client shall pay to the Anchor an amount of 150% of the affected employee’s total annual compensation as liquidated damages.

c. Force Majeure. Anchor will not be liable for delays or failures to perform Anchor’s obligations under this Agreement or any Order because of circumstances beyond Anchor’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by Client, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.

d. Notices. All notices, demands or requests to be given by any party to the other party shall be in writing and shall be deemed to have been given on the date delivered in person, or sent via fax, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the Cover Page. The address to which such notices, demands, requests, elections or other communications are to be given by either party may be changed by written notice given by such party to the other party pursuant to this section.

e. Waiver. No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof.

f. Assignment. Neither party may assign the Agreement or any of its rights or obligations without the prior written consent of the other party. The Agreement is binding upon the parties, their successors and permitted assigns. Anchor may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of the business of Anchor, or any other transaction in which ownership of more than fifty percent (50%) of Anchor’s voting securities are transferred; provided, however, that such assignee expressly assumes Anchor’s obligations hereunder.

g. Survival. The duties and obligations of the parties with respect to payment of fees, proprietary rights, intellectual property rights, and non-disclosure, confidentiality and this section will survive and remain in effect, notwithstanding the termination or expiration of the Agreement.

h. Modification. Anchor may change and amend this Agreement at any time by posting such changes or amendments on the Anchor Website or by email, and such amended Agreement will supersede and replace the earlier Agreement. Provided, however, Anchor will amend the Agreement no more than once a year. Following adoption of such amended Agreement, Anchor will provide notification of such amended Agreement to Client. Client will have thirty (30) days from notification of the amended Agreement to notify Anchor of its rejection of such amendment and termination of this Agreement which will be effective no earlier than 60 days following notification of the amended Agreement.

i. Relationship. Anchor is acting as an independent contractor to the Client under this Agreement. Neither party has the authority to act on the other party’s behalf.

j. Governing Law. This Agreement is governed by the laws of the State of Colorado.

k. Severability. If any term or provision of the Agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties’ intention underlying the invalid term or provision.

l. Regulated Industries. Unless the parties specifically agree in an Order that Services are covered under certain federal, state, or local statutes, regulations, or rules (collectively “Government Regulations”), such as the Health Insurance Portability and Accountability Act and the Gramm-Leach-Bliley Act, Government Regulations do not apply to the Services. If the parties do agree in an Order that Government Regulations apply to the Services, Anchor may require that the parties execute additional applicable terms and conditions before Anchor agrees to perform the Services. The Client is responsible for determining whether any Services relate to Government Regulations. Additionally, the Client is responsible for determining whether any Services performed by Anchor are and continue to be compliant with applicable Government Regulations. The Client shall fully reimburse Anchor for all costs and expenses associated with any claims, losses, or damages experienced by Anchor that are a result of the Client’s failure to accurately determine whether any Government Regulations apply to the Services, whether any Services meet or continue to meet the requirements of any applicable Government Regulations, or both.

Revised: November 11, 2021