Master Service Agreement

This Master Services Agreement (this “MSA”) is between Netgain Technology, LLC, a Delaware limited liability company with an office at 12301 Whitewater Drive, Suite 50, Minnetonka, Minnesota 55343 (“Netgain”) and the entity (“Client”) that signs an Order that incorporates this MSA by reference. This MSA is effective as of the Effective Date listed on the first such Order. Capitalized terms shall have the meanings set forth in Section 21.

1. Services.

1. 1 Provision of Services. Netgain shall provide the Services, as described in each Order, in accordance with the terms and conditions of this Agreement.

1. 2 Change Orders. Except as set forth in the Agreement, changes to an Order shall be made via Change Orders executed by Client and Netgain from time to time. Unless otherwise agreed in the applicable Change Order, all Services provided pursuant to the Change Order will be billed at Netgain’s then-current rates.

2. Support Services.

2. 1 Support Availability. During the term, Netgain will provide 24/7 on-call Support for Critical Priority Requests, as well as Covered Support and other Support described herein or in an Order during Netgain’s standard business hours. Netgain’s Support may be accessed via requests submitted by any means identified by Netgain from time to time (each a “Support Request”), provided that after-hours Support Requests must be directed to the appropriate Critical Priority Request hotline in order for Client to receive a response prior to the next Business Day. 

2. 2 Covered Support. Client’s included Covered Support is described in each Order. Unless otherwise agreed in the applicable Order or elsewhere in the Agreement, where a Support Request results in the need for Professional Services beyond standard technical Support, or exceeds Client’s Support allowance, such Services will be provided on a time and materials basis at Netgain’s then-current hourly rates and is not included in Covered Support.  Upon request, Netgain will provide additional guidance to Client regarding the scope of the Covered Support under the Client’s Order.

2. 3 Restoration Requests.  On Client’s request during the term, Netgain shall restore data from data backups to the extent possible, provided that Client first uses reasonable efforts to restore data using any self-service restoration features offered by Netgain.  Netgain shall use commercially reasonable efforts to restore data within the time frame requested by Client, subject to resource availability. Such restoration requests are considered requests for Supplemental Services hereunder.

2. 4 Optional Support. Netgain may, but is not obligated to, provide Support during the term  where the Support Request is the result of any of the following: (a) Client’s or any of its Representative’s refusal to implement security patches or error corrections released by a Third Party Provider; (b) Client’s or any of its Representatives failure to use the Services in accordance with the Agreement, Third Party Terms, or any other reasonable instructions provided by Netgain; (c) any failure or fault of any third party product, service, or vendor that is not provided by Netgain, even if Netgain provides a supported integration for the same; or (d) alterations of the Application Environment by anyone other than Netgain (unless the specific alteration was authorized by Netgain in writing). In addition, Support Requests that require detailed or specialized attention different in kind or amount from support provided to Netgain’s other clients receiving similar underlying services may or may not be accepted by Netgain, in its discretion. Any Support Netgain elects to provide under this Section 2.4 shall be a Supplemental Service.

2. 5 After Hours Support. Support Requests directed to the Critical Priority Requests hotline which are not deemed to be Critical Priority Requests included in Covered Support will be treated as Supplemental Services. Notwithstanding the foregoing, Netgain will provide verbal, email, or other notice of such designation prior to commencing the relevant after-hours Support Services.

2. 6 Hourly Rates. Except for Critical Priority Requests included in Client’s Covered Support, Netgain’s hourly rate for days other than Business Days is two (2) times the hourly rate charged for such Services when provided during Netgain’s business hours, and the hourly rate for Services performed on Business Days outside of Netgain’s normal business hours is one and one half (1 ½) times the hourly rate during business hours. For the avoidance of doubt, the after-hours rates are a component of Netgain’s “then-current” hourly rates as used in this Agreement.

2. 7 Change Orders for Supplemental Services. Except as otherwise specified in the Agreement, Netgain may, but need not, require a Change Order in connection with the provision of Supplemental Services. Unless otherwise agreed in writing, all Supplemental Services will be provided at Netgain’s then-current hourly rates, plus expenses.

3. Security and Data Privacy.

3. 1 Security. Without limiting any other provision of this Agreement, including Client’s obligations under Section 4.3, Netgain will configure the Environment in accordance with the specifications in the Order, and to the extent not specifically described in the Order, in accordance with Netgain’s then-current security standards, to include reasonable and appropriate measures designed to help secure Client Data against accidental or unlawful loss, access or disclosure. Notwithstanding the foregoing, Client acknowledges that no internet-based services can be made completely secure, and Netgain makes no representations or guarantees with respect to security except as expressly set forth in this Agreement.

3. 2 Security Enhancements. Due to ongoing technological developments, from time to time Netgain may determine that it is necessary or prudent to implement one or more security enhancements to the Environment (“Security Enhancements”), which may include the implementation of additional Third Party Offerings. Client shall be responsible for the cost of any such Security Enhancements, including any Supplemental Services provided in connection with the implementation of the Security Enhancements. For the avoidance of doubt, other than Security Enhancements, new Third Party Offerings which result in additional costs to Client shall require Client’s prior written approval.  

4. Client Responsibilities.

4. 1 Users. Client may authorize such of its personnel and the personnel of any vendor retained by Client  to perform services in support of Client’s internal business operations as authorized Users of the Services, subject to the other terms of this Agreement, including but not limited to the Third Party Terms and license requirements as described in Section 11.2 below. Without limiting the foregoing, Client is solely responsible for ensuring that its Users comply with any such terms, including but not limited to the Policies, and is responsible for all access, actions, and inactions occurring through or as a result of the use of its Users’ credentials by any Person other than Netgain or where due to Netgain’s breach of this Agreement. Client is solely responsible for monitoring User permissions and authentication credentials for Client’s Users and any changes required in connection with the same, such as on the termination of employment of a User. Either directly or via a ticket request to Netgain (as applicable), Client shall deactivate and update User permissions and authentication credentials immediately following any event necessitating such a change and shall take any other necessary actions to ensure unauthorized Persons do not access or use the Services. Client authorizes Netgain to act on the instructions of any person or service that authenticates its identity via User account credentials without any liability to Client for such actions, provided the instructions are within the defined role-based permissions for that User.

4. 2 User-Based Fees. If an Order includes Fees calculated on a “per User” or similar basis, Client may not permit the number of unique individuals using the Services and Third Party Offering(s), as applicable, to exceed the number of authorized Users included in the Order, provided that such number may be modified from time-to-time on Client’s written request, subject to (a) Section 5, (b) written confirmation by Netgain, and (c) any necessary approvals from the applicable Third Party Provider(s). Netgain reserves the right to adjust pricing for per-unit or per-User Services based on a reduction request by Client. Notwithstanding the foregoing, Netgain reserves the right to automatically increase authorized User numbers and invoice Client for such amounts should Client exceed the number of authorized Users for any User-based Services or Third Party Offering, whether or not related to any written or oral Client request.

4. 3 Client Security. Client shall use reasonable security precautions in connection with the Services, such as requiring Users to establish reasonably secure passwords and using commercially reasonable efforts to protect Client systems and data from malware. Client agrees to follow, and to cause each of its Users to follow, all instructions from Netgain with respect to security measures, but acknowledges that such instructions do not guarantee the security of the Environment or Client Data, and Netgain shall not incur any liability as a result of such instructions. Client shall notify Netgain immediately upon discovery of a security vulnerability or security event affecting the Services or the Client Data and shall cooperate fully with Netgain’s investigation of such vulnerability or event. Without limiting any other provision hereof, Client is responsible for any unauthorized use of the Services resulting from Client’s failure to use reasonable security precautions or to follow any such instructions. 

4. 4 Client Cooperation. Client shall provide all information reasonably requested by Netgain to complete implementation or other performance of the Services in a timely manner. If Netgain is delayed in performing implementation or other pre-go live Services for a period of greater than fourteen (14) days due to Client’s delay, whether in making payments, providing information, or otherwise, the Monthly Fees shall become payable beginning on the day after the 14^th day of delay, and from that point forward shall remain in effect regardless of the actual go live date. 

4. 5 Client Resources. Except as otherwise expressly set forth in an Order or in Service Specific Terms, Client is responsible for procuring hardware, internet access, and any other necessary resources identified by Netgain or a Third Party Provider of sufficient quality and capacity to access and use the Services (including any related Application(s)). Any additional effort required of Netgain due to Client’s failure to comply with this Section 4.5 shall be treated as a Supplemental Service not requiring a Change Order.

4. 6 High Risk Use. Client may not use or permit any other Person (including any of its end clients) to use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Client may not use, or permit any other Person to use, the Services as a component of or to operate any medical device or in connection with any aircraft or other mode of human transportation, or nuclear or chemical facilities. 

4. 7 Compliance. Client shall, and shall require that each of its Users, use the Services in accordance with applicable law and the Policies.  In particular, but without limiting the foregoing, Client may not use the Services in any manner that causes Netgain to be in violation of the export laws of the United States or other jurisdiction from which the Services are provided.  For example, Client may not authorize any Person to use the Services that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) or who is located in or is a national of any country that is embargoed under United States export laws, or use or permit the use of the Services to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State.

5. Fees and Payment Terms.

5. 1 Fees. The initial Fees for the Services are as stated in each Order and/or elsewhere in the Agreement.  Netgain may not increase its Monthly Fees during the initial term of an Order or thirty-six (36) months, whichever is less, except where: (a) Client’s use of the Services results in an increased demand on Cloud Infrastructure that increases Netgain’s costs to provide the Services, (b) technological advancements and/or other changes in Client’s existing Applications require an expansion of Client’s Environment, as reasonably determined by Netgain, to allow for more secure or efficient operations, or as otherwise required for Netgain to continue to perform the Services, or (c) otherwise expressly set forth in the Order or this Agreement, including without limitation as described in Section 5.6 and the remainder of this Section 5.1. In addition, due to regular increases in Netgain’s costs of doing business, beginning on the first anniversary of the Service Commencement Date and on each anniversary thereafter during the initial term, Client’s Monthly Fees from the immediately preceding period will automatically increase by one and one-half percent (1.5%). After the initial term, the Fees applicable to each renewal term may not exceed the Monthly Fees in effect for the last year of the most recent initial or renewal term (including any Cost Adjustments) plus five percent (5%), with additional five percent (5%) increases on each subsequent anniversary date during such renewal term. Except as expressly stated otherwise in the Agreement, all Fees are non-refundable.

5. 2 Expenses. Unless otherwise agreed in an Order, Client shall pay Netgain’s reasonable travel expenses for Services performed onsite at Client’s location if onsite Services are required or requested by Client.  Travel expenses include air and ground transportation, parking, lodging, and meals. Unless otherwise agreed in writing, Netgain shall charge for the travel time of any Persons providing Services at its then-current hourly rate.

5. 3 Taxes. All Fees are stated exclusive of sales, use, VAT, GST, or similar tax (“Sales Tax”).  Unless Client has provided an exemption certificate or direct pay permit, Client must remit to Netgain any applicable Sales Tax. Sales Tax is due based on the payment terms applicable to the Fees for the related Services, or if separately invoiced, ten (10) days from the invoice date.  Client represents and warrants that Client’s address shown on the Order is the correct address for purposes of determining Sales Tax, and that all other information Client has provided to Netgain for Sales Tax purposes is accurate and complete.  For clarity, Client is not required to pay any tax that is assessed on the basis of Netgain’s net income.

5. 4 Invoices and Payments. Unless otherwise provided in the applicable Order: (a) implementation, installation, set up Fees and other one-time Fees may be invoiced on the Order Effective Date, Monthly Fees may be invoiced monthly in advance on or after the last day of the prior month, and time and materials and usage Fees may be invoiced monthly in arrears; (b) Client must establish payment arrangements reasonably acceptable to Netgain; and (c) Fees are payable in U.S. Dollars and due ten (10) days from invoice date.  If the Order requires advance payment of setup or other implementation-related Fees, Netgain may require those Fees to be paid in full before beginning the implementation of the Services.  Client agrees that except as set forth in Section 5.5, Netgain may charge interest on overdue amounts at the lesser of (i) one and one half percent (1.5%) per month or (ii) the maximum legal rate allowed under applicable law). If any amount is overdue by more than thirty (30) days and Netgain takes any action to collect such Fees (whether or not suit is filed), or engages a collection agency, Client must also pay the reasonable costs of collection, including reasonable attorneys’ fees and expenses. Invoices that are not disputed within thirty (30) days of the invoice date are conclusively deemed accurate. 

5. 5 Fee Disputes. In the event an invoice is subject to a good faith dispute, Client shall provide a written notice to Netgain describing the dispute in reasonable detail, which notice must be received by Netgain prior to the original due date for the disputed invoice. Upon receipt of a timely notice, Netgain shall extend the due date for the disputed amount for thirty (30) days (i.e., the disputed amount shall not be “due” until the date that is thirty (30) days after the original due date, but all undisputed amounts shall remain payable on the original due date). Such extension is subject to Client’s payment of all other amounts due hereunder and compliance with the Dispute resolution procedures described in Section 18 below. Subject to the foregoing, Netgain’s late payment, suspension, termination, or other enforcement rights in connection with such disputed amount shall not be exercised during the additional thirty (30) day period.

5.  6 Changes to Third Party Costs. From time to time, Netgain’s cost of providing the Services may increase due to regular increases by Third Party Providers to the cost of Third Party Offerings. Accordingly, any such increase in the costs related to Third Party Offerings (whether or not bundled) may result in a corresponding percentage increase to Client’s Monthly Fee, beginning as of the effective date of the modification by the Third-Party Provider (each such change being referred to as a “Cost Adjustment”). Cost Adjustments are independent of any other changes to Monthly Fees, including but not limited to modifications due to additional Users, servers, or other changes to Client’s infrastructure or Services, or to Security Enhancements described in Section 3.2, or pursuant to Section 5.1.

5. 7 Minimum Threshold. Notwithstanding Client’s requested changes to the Services, including but not limited to reduced numbers of Users or changes to specific Services, the minimum Monthly Fee for each month of the initial term and each month of any renewal term shall be equal to seventy-five percent (75%) of the Monthly Fee for the first full calendar month of the Environment Services (as set forth in the applicable Order, prior to the application of any discounts or credits) for such initial term or renewal term, as adjusted by the Cost Adjustment(s) and the annual adjustment described in Section 5.1 (the “Minimum Monthly Fee”). The foregoing shall not apply to that portion of the Monthly Fee attributable to Services discontinued by Netgain other than due to Client’s breach of this Agreement or any Third Party Terms. 

6. Suspension; Reinstatement.

6. 1 Suspension. Netgain may suspend the Services (which may suspend Client’s access to the Client Data), in whole or in part, or deny one or more of Client’s Users access to the Services without any resulting obligation or liability, if: (a) Netgain receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires such suspension, (b) as reasonably necessary to address any actual or suspected security vulnerability, or (c) during any period that Client or a User is in breach of this Agreement or any Third Party Terms.  Netgain will give Client at least thirty (30) days’ advance notice (including via email) of any suspension except when due to emergency circumstances (including critical security matters) or a third party’s requirements. This Section 6.1 does not limit any of Netgain’s other rights or remedies, whether at law, in equity, or under this Agreement (including but not limited to Section 7.2), nor does it suspend any of Client’s payment obligations hereunder through the effective date of termination or expiration of the applicable Order.

6. 2 Reinstatement of Services. Provided that the applicable Order(s) have not been terminated, Netgain will discontinue any such suspension as soon as, in the case of Section 6.1(a), the request or requirement has been lifted, in the case of Section 6.1(b), Netgain, in its sole discretion, determines that the risk underlying the suspension has been mitigated, and in the case of Section 6.1(c), such breach has been cured.

6. 3 Reinstatement Fee. If Client’s Services are reinstated after a suspension for non-payment, Netgain may charge Client its then-current hourly rate for Netgain personnel’s time spent to reinstate the Services or its current minimum reinstatement Fee, whichever is greater, with such Services being Supplemental Services not requiring a Change Order.

7. Term and Termination.

7. 1 Order Term. The initial and renewal term of each Order is stated in the Order. If the Order is silent as to the initial term, the initial term is thirty-six (36) months from the applicable Service Commencement Date, or if none, from the Effective Date of the Order.  If the Order is silent as to renewals, the Order renews on expiration of the initial Order term for consecutive renewal terms having the same length as the initial term unless earlier terminated in accordance with the terms of the Agreement, unless either party gives a notice of non-renewal at least ninety (90) days prior to the expiration of the initial or then-current renewal term, as applicable.  Services that are billed on a monthly per-User or per-unit basis that are added to an Order during the initial or a renewal term shall expire or renew at the same time as the remainder of the Services included in such Order.

7. 2Termination for Cause. Either party may terminate the Agreement for Cause upon thirty (30) days’ written notice to the other party, unless the Cause is curable, in which case the terminating party shall first give the other party written notice of the breach and ninety (90) days to cure the breach.

7. 3 Early Termination by Client for a Change in Control Event. If Client experiences a Change in Control Event during the initial term or any renewal term, Client may provide written notice of early termination to Netgain at any time during the sixty (60) day period following the effective date of the Change in Control Event, subject to the terms of this Section 7.3. The effective date of any such termination shall be the date that is six (6) months following the effective date of the Change in Control Event. Unless the applicable Order or a termination agreement expressly provides for a transition period after a Change in Control Event, Services will cease as of the effective date of termination. In addition to payment of the full Monthly Fees through the effective date of termination, Fees for Transition Services, and all other Fees and other amounts payable hereunder, Client shall pay the CIC Termination Fee on or before the effective date of termination. The CIC Termination Fee is payable by Client as liquidated damages for early termination and not as a penalty. For the avoidance of doubt, no Change in Control Event shall impose any additional obligations upon Netgain or require that Netgain modify any Services under an Order, unless otherwise expressly set forth in this Agreement, regardless of whether or not Client elects to terminate based on such Change in Control Event.

7. 4 Obligations on Termination.

7. 4.1 Except as described in an Order or Service Specific Terms, the Services described in an Order will cease on the effective date of the expiration or earlier termination of the applicable Order.

7. 4.2 Unless otherwise agreed by the parties in a termination agreement, any Services provided by Netgain after the expiration or earlier termination of the applicable Order, whether during an agreed transition period (if any) or thereafter, or at any time in connection with a termination based on a Change in Control Event with respect to Client (all of the foregoing being “Transition Services”), shall be provided by Netgain using good faith efforts, but are otherwise provided on an as-is basis at Client’s sole risk, without representations or warranties of any kind. Transition Services shall be provided on a time and materials basis at Netgain’s then-current hourly rates.

7. 5 Survival. The following terms survive expiration or termination of the Agreement: this Section 7 (Term and Termination), Section 9 (Client Provided Licenses, Client Data, Client Proprietary Applications), Section 10 (Proprietary Rights), Section 11 (Third Party Offerings and Application Licensing), Section 12 (Confidential Information), Section 13.7 (Warranty Exclusions and Disclaimer of Implied Warranties); Section 14 (Indemnification), Section 15 (Limits on Liability), Section 16 (Non-Solicitation), Section 18 (Governing Law and Dispute Resolution), Section 19 (Miscellaneous), Section 20 (Interpretation), Section 21 (Defined Terms), all of Client’s payment obligations hereunder, and any other terms that by their nature are intended to survive termination.

8. Backup and Disaster Recovery Services.
Unless otherwise agreed in writing, any Services related to data backups and disaster recovery are provided by Third Party Providers with corresponding Professional Services provided by Netgain on an “as-is” basis. Except as expressly set forth in the Agreement, Netgain makes no other representations or warranties as to such Services, including their success and their compliance with any particular legal requirements applicable to Client, as well as the compatibility of recovered data with alternate environments. Client agrees to cooperate with Netgain’s reasonable requests for testing and iteration of the backup Services, including on initial implementation, in connection with changes to Client’s Environment and as Netgain otherwise deems reasonably necessary. Any additional storage required by Client in connection with these Services will be billed at the rate for additional storage provided in the applicable Order, or if none, at Netgain’s then-standard rates. If an Order includes disaster recovery services, Client acknowledges that such disaster recovery services are a Third Party Offering, and that Netgain’s sole responsibility shall be to configure the same in accordance with the instructions of the applicable Third Party Provider in all material respects.

9. Client Provided Licenses, Client Data, Client Proprietary Applications.
Client authorizes Netgain to use the Applications and Client Data as reasonably necessary to provide the Services in accordance with the Agreement and as otherwise expressly permitted by this Agreement. Unless Netgain has agreed to provide Application licensing in the applicable Order, Client represents and warrants that it owns or has a valid and current license from the Third Party Providers for all Applications, including the rights necessary for Netgain to host, manage, and/or use the Applications as permitted or required by this Agreement.  If Client is in breach of this Section 9 and fails to cure the breach promptly upon notice from Netgain, Netgain may, in addition to any other rights and remedies available for breach of the Agreement, do one or more of the following:  (i) notify the applicable Third Party Provider, (ii) suspend some or all of the Services, and (iii) if available, purchase a license on Client’s behalf at the Third Party Provider’s then-current rate and charge the licensing cost and any applicable penalties to Client.  Client represents and warrants that Netgain’s use of the Client Data and any Applications other than the Enhanced Support Applications will not misappropriate or infringe the intellectual property rights of a third party.

10. Proprietary Rights.

10. 1 Rights in Client Data. As between Netgain and Client, Client owns and retains ownership of and all right, title and interest in the Client Data.  Netgain will use and process the Client Data only as necessary to provide the Services or as otherwise expressly permitted by this Agreement or required by applicable law, and subject to the confidentiality obligations set forth in Section 12.

10. 2 Feedback. If Client or any of its employees or representatives provide any Feedback to Netgain or its Affiliates, Netgain and its Affiliates are authorized to use any such Feedback without restriction, and Client hereby assigns all right title and interest in and to the Feedback to Netgain and to provide any assistance reasonably requested by Netgain to document or otherwise protect its rights in the Feedback.

10. 3 Reservation of Rights. Except for the rights expressly granted in the Agreement, each party retains all right, title and interest in and to its intellectual property, and the parties agree that no rights in intellectual property may arise by implication or estoppel.  Without limiting the terms of the Acceptable Use Policy, to the fullest extent allowed by law, neither party may reverse engineer, disassemble, or decompile the other party’s intellectual property. Neither party is authorized to modify or create derivative works of the other party’s intellectual property.  Neither party may remove any proprietary rights notices included by the other party on the other party’s licensed intellectual property.  No information, materials, software, or other technology created or delivered under this Agreement is a work made for hire unless expressly defined as a “work made for hire” in an Order for Professional Services signed by the parties.  Specifically, but without limitation, Client acknowledges that Netgain’s configurations and methodology for providing the Environment Services are Netgain’s intellectual property (and except for publicly available information, Netgain’s Confidential Information).

11. Third Party Offerings and Application Licensing.

11. 1 Third Party Offerings. For Third Party Offerings accessed or used by Client or otherwise provided by Netgain in connection with this Agreement, Client acknowledges and agrees that: (i) each Third Party Offering is separately licensed from the applicable Third Party Provider, whether or not the license is obtained through Netgain, and (ii) Client’s rights and responsibilities with respect to each Third Party Offering shall be governed by the applicable Third Party Terms, as described below, and Client represents and warrants that it shall comply, and shall cause its Users to comply, with all such Third Party Terms. For the avoidance of doubt, the Third Party Provider of Third Party Offerings shall be solely responsible for support, warranties, indemnities and other terms and conditions applicable to such products and services, and Netgain makes no representations or warranties relating in any way to any Third Party Provider or Third Party Offering.

11. 2 Third Party Terms. In addition to any Third Party Terms for Third Party Offerings obtained by Client or to which Client is otherwise subject, the Third Party Terms for Third Party Offerings (including Applications) licensed or otherwise utilized in connection with the Services are passed through to Client via this MSA and the applicable Order to the extent permitted by the corresponding Third Party Provider, with no specific reference required. Certain Third Party Providers require Netgain to incorporate their Third Party Terms into the Agreement by specific reference, and such Third Party Terms may be included in an appendix to any applicable Order, which is subject to amendment by Netgain in its reasonable discretion, and further provided that the absence of specific Third Party Terms in such an appendix in no way limits Client’s obligations as to the same. Other Third Party Providers may require that Client separately execute Third Party Terms or acknowledge “click-accept” agreements as part of the ordering, installation, or download process, which shall also be binding on Client. Such Third Party Terms may be subject to unilateral amendment by the Third Party Provider from time to time, and Client  agrees to take all such actions and execute all such documents and amendments to the applicable Order Appendix as may be reasonably requested by Netgain or any Third Party Provider in order to ensure or document Netgain’s and Client’s adoption of and compliance with any applicable Third Party Terms.

11. 3 Direct Conflicts. In the event of a conflict between the terms of this Agreement and any Third Party Terms, the Third Party Terms shall prevail, but only as to the applicable Third Party Offering, and further provided that in no event shall Netgain incur any liability in excess of the liability described in Section 15.

11. 4 Compliance with Third Party Terms. Client shall promptly notify Netgain (and the Third Party Provider, if required under the applicable Terms) of any breach or suspected breach of any Third Party Terms and shall comply with any commercially reasonable requests of Netgain or the Third Party Provider with respect to the investigation or mitigation of such noncompliance.

11. 5 License Records. Without limiting any other provision of this Agreement, Client shall keep full, true, and accurate records and accounts of all Application licenses purchased and/or deployed, whether or not obtained via Netgain, and will provide such information in a manner and at such times as Netgain or any Third Party Provider may require. From time-to-time during the term of this Agreement or after termination or expiration of this Agreement if related to the Services, Netgain, one or more Third Party Providers, and/or their designee(s) may (but are not required to) perform an inventory review or audit of Client’s Third Party Offering usage, and Client shall make any additional records available to Netgain promptly upon request and shall provide Netgain with any assistance necessary to verify or further document such license usage or to respond to questions from Third Party Providers. Such information may also be disclosed to any applicable government agency. In the event any formal or informal review discloses non-compliance with this Agreement or any Third Party Terms, Client shall promptly pay to Netgain or the Third Party Provider, as directed by Netgain, the appropriate license Fees and the reasonable Fees (as a Supplemental Service, whether or not performed during or after the term of this Agreement) and costs of Netgain and the Third Party Provider in conducting the review. Client further agrees to pay any other costs or expenses incurred by Netgain in connection with such failure, such as penalties or liquidated damages payable to the applicable Third Party Provider. For the avoidance of doubt, Netgain may, but need not, require that Client execute a Change Order in connection with such additional licenses, and in either case will invoice Client for all such costs. For the avoidance of doubt, Client’s payment obligations under this Section 11.5 survive any termination or expiration of this Agreement.

11. 6 Third Party Resource Management. Notwithstanding anything to the contrary contained herein, Client acknowledges and agrees that from time to time, in its sole discretion, Netgain may utilize features available from Third Party Providers in connection with its performance of the Services, including but not limited to any autoscaling or other systematic scaling as may be applicable to Client’s Environment.

11. 7 Availability of Third Party Offerings. Client acknowledges that from time to time certain Third Party Offerings may cease to be available from Netgain and/or the applicable Third Party Provider. In the event an Enhanced Support Application or a Standard Application is no longer supported by the applicable Third Party Provider, cannot be hosted in the Application Environment (where applicable), or is otherwise no longer available, Netgain may terminate the offering of such Application upon ninety (90) days’ advance written notice to Client (or such shorter period as maybe required by the Third Party Provider or applicable law), and will work with Client to implement an appropriate replacement. If reasonably acceptable replacement Application(s) are not available, Netgain will provide Client with a corresponding reduction in Fees. For the avoidance of doubt, no Fee adjustment shall be available in connection with Non-Supported Applications or where the unavailability is due to Client’s breach of the Third Party Terms or any other provision of this Agreement. In addition, in the event the applicable Cloud Infrastructure Provider terminates its services or relationship with Netgain and/or Client, Netgain will make all reasonable efforts to work with Client to find a substitute Cloud Infrastructure Provider of equal or greater capacity and will assist with Client’s migration to such substitute Cloud Infrastructure Provider as a Supplemental Service. If after all reasonable efforts Netgain determines that no substitute Cloud Infrastructure Provider is available for Client’s use through Netgain, Netgain may terminate the Agreement upon no less than ninety (90) days’ advance written notice to Client.

12. Confidential Information.
Neither party may use the other party’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of the party’s legal rights under this Agreement, or as may be otherwise permitted under this Agreement or required by law. Each party agrees not to disclose the other party’s Confidential Information to any third party except as follows: (i) to the party’s respective employees, service providers, agents, and representatives (excluding the other foregoing with respect to the other party, “Representatives”), provided that such Representatives are bound by written confidentiality measures that are at least as stringent as these terms (except that Third Party Providers need only be subject to the applicable Third Party Terms); (ii) in response to a subpoena or other compulsory legal process, provided that the party gives the other party advance written notice at least seven (7) days prior to disclosing Confidential Information under this Section 12 (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law or a reasonable interpretation of it forbids such notice; or (iii) as otherwise required by law, such as a requirement under a data privacy regulation that a notice of data breach be given to a supervisory authority or regulatory agency.  On expiration or earlier termination of the Agreement, each party will return or destroy the other party’s Confidential Information.  Each party will use commercially reasonable efforts to prevent the unauthorized use, disclosure, corruption and deletion of the other party’s Confidential Information.  Each party is responsible for any breach of this Section 12 by its Representatives.

13. Additional Representations, Warranties, and Disclaimers. 

13. 1 General Warranty. Each party represents and warrants to the other that: (i) it has the right, power, and authority to enter into and fully perform its obligations under this Agreement; and (ii) the making of the Agreement does not violate any agreement existing between it and any third party.

13. 2 Client Account Information and Data. Client represents to Netgain that the information Client has provided to Netgain to establish Client’s account or as otherwise required hereunder is accurate and complete.

13. 3 Malware. Netgain represents and warrants that it will use commercially reasonable efforts to avoid the introduction of any software to the Environment that is specifically designed to disrupt, damage, or gain unauthorized access to a computer system.

13. 4 Intellectual Property. Netgain warrants that Client’s use of the Environment Services, Support, and Professional Services as permitted by the Agreement will not infringe the United States intellectual property rights of any unaffiliated third party (the “IP Warranty”), provided that the IP Warranty shall not apply to (a) Client’s own intellectual property, materials provided to Netgain, and other Client Data (collectively, “Client Inputs”), to the extent such infringement would not have occurred absent such Client Inputs, or (b) the Cloud Infrastructure, any Application, or any other Third Party Offering, or Client’s use of the foregoing.  Netgain’s sole obligations with respect to a breach of the IP Warranty, and Client’s sole and exclusive remedies, are stated in Section 14.1.

13. 5 Standard Applications. Notwithstanding anything to the contrary in this MSA or an Order, any Environment Services in connection with, and Support for, Standard Applications (or Non-Supported Applications, to the extent Netgain agrees to provide the same) are provided on a “best efforts” basis, meaning that Netgain will use commercially reasonable efforts to maintain the availability of the Applications and shall provide Support using personnel who may not have experience with such Applications, but have general knowledge and experience in information technology.  Client acknowledges that despite Netgain’s use of its best efforts, Standard Applications and Non-Supported Applications may not operate as expected or desired and may fail completely.  Client acknowledges that Standard Applications may not meet current industry standards for security or privacy.

13. 6 Other Services. Unless otherwise set forth herein or expressly agreed in writing by Netgain, all Supplemental Services (including all Professional Services) are provided on a “best efforts” basis, meaning that Netgain will use commercially reasonable efforts to achieve Client’s desired outcome using (a) personnel who have general knowledge and experience in information technology and/or (b) Third Party Providers.

13. 7 WARRANTY EXCLUSIONS AND DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, NETGAIN, ITS SUPPLIERS, LICENSORS, CONTRACTORS, SUB-CONTRACTORS, DISTRIBUTORS, RESELLERS, AND OTHER THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER TO CLIENT, AND EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY THAT MAY ARISE THROUGH A COURSE OF DEALING.  NETGAIN DOES NOT WARRANT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPLETELY SECURE, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NETGAIN DOES NOT WARRANT THAT THE ENVIRONMENT OR ANY PARTICULAR APPLICATION IS FULLY COMPLIANT WITH THE AMERICANS WITH DISABILITIES ACT OR ANY SIMILAR STATE OR FEDERAL LAW. CLIENT ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION, AND PROPERTY. NETGAIN IS NOT RESPONSIBLE FOR ANY FAILURES OR DELAYS OF THIRD PARTY PROVIDERS, INCLUDING BUT NOT LIMITED TO FAILURES OF CLIENT’S INTERNET SERVICE OR WHERE SUCH FAILURE IS DUE TO ANOTHER FORCE MAJEURE EVENT. NETGAIN DOES NOT MAKE ANY WARRANTY OR REPRESENTATION REGARDING ANY THIRD PARTY PROVIDER, THE APPLICATIONS THEMSELVES, THE CLOUD INFRASTRUCTURE, ANY HARDWARE, OR ANY OTHER THIRD PARTY OFFERING, EVEN IF NETGAIN HAS PROCURED THE SAME ON CLIENT’S BEHALF. NETGAIN HAS NO OBLIGATION TO PROVIDE SECURITY OTHER THAN AS STATED IN THE AGREEMENT.

14. Indemnification.

14. 1 Netgain Indemnification of Client. Netgain will defend, at its expense, Client, its employees, officers, directors, governors, managers, and agents against any claim brought by an unaffiliated third party to the extent that the claim arises from Netgain’s breach of the IP Warranty, and will further pay any resulting non-appealable damages, costs, and expenses awarded by an arbitrator, court, or other tribunal having jurisdiction. In the alternative, Netgain may settle the claim provided that the settlement fully resolves the claim and does not require Client or any other indemnified Person to make any statement of culpability.  Netgain’s obligations under this Section do not extend to any claim to the extent the claim arises from (i) Client’s unauthorized combination of the Services with information, materials, software or other technology not provided by Netgain, (ii) Client’s unauthorized changes to the Services, (iii) Netgain’s provision of Supplemental Services, or (iv) Netgain’s authorized use of an Application.

14. 2 Client’s Indemnification of Netgain. Without limiting any of Client’s other obligations hereunder, Client will defend, at its expense, any claim brought by an unaffiliated third party against Netgain, Netgain’s Affiliates, and their respective officers, directors, governors, managers, agents, contractors, vendors, and licensors to the extent the claim arises from Client’s breach of Section 4, 9, 10, 11, 12, or 16, and pay any resulting damages, costs, and expenses finally awarded by a court or other tribunal having jurisdiction.  In the alternative, Client may settle the claim provided that the settlement fully resolves the claim and does not require Netgain or any other indemnified Person to make any statement of culpability or otherwise take or refrain from taking any action.

14. 3 Procedures. The indemnified party must give notice of the indemnified claim to the indemnifying party within ten (10) days of the date the claim is made, provided that failure to give notice within the ten (10) day period does not relieve the indemnifying party of its obligations under this Section except to the extent the delay prejudices the defense of the matter.  The indemnifying party has the right to select counsel to defend and to control the defense of any indemnified claim under this Section, except that (i) to the extent the claim involves a Third Party Provider and Client is the indemnifying party, such counsel must be reasonably acceptable to Netgain and (ii) the indemnified party may participate in the defense of the claim at the indemnified party’s option and expense, with counsel of its choice.  The indemnified party shall comply with all of the indemnifying party’s reasonable requests for information or cooperation in connection with the defense of the claim. 

14. 4 Expenses Arising from Legal Disputes, Subpoenas Regarding Client’s Account. In addition to Client’s indemnification obligations hereunder, Client must also pay or reimburse Netgain’s reasonable actual attorneys’ fees and expenses incurred in connection with any dispute between Persons having a conflicting claim as to the control of Client’s account, or in connection with Netgain’s compliance with any third party subpoena, warrant, or other mandated disclosure that is unrelated to any direct claim between Client and Netgain.

15. Limits on Liability.

15. 1 No Consequential or Indirect Damages. EXCEPT FOR EXCLUDED CLAIMS, AS DEFINED IN SECTION 21.28, NEITHER PARTY NOR ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS OR RESELLERS IS LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND ARISING IN CONNECTION WITH THIS AGREEMENT (WHICH TERM INCLUDES ANY COMPONENT THEREOF, INCLUDING ALL ORDERS, SERVICE SPECIFIC TERMS, AND ANY BAA, IN EACH CASE WHETHER EXECUTED ON OR AFTER THE EFFECTIVE DATE, AND ALL OTHER PARTS OF THE AGREEMENT, WHETHER SPECIFICALLY REFERENCED HEREIN OR IN AN ORDER) OR THE SERVICES TO BE PROVIDED HEREUNDER, OR ANY LOSS OR DAMAGE THAT COULD HAVE BEEN AVOIDED BY THE  CLAIMING PARTY’S REASONABLE MITIGATION, EVEN IF THE PARTY HAS BEEN ADVISED OF OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. 

15. 2 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND EXCEPT FOR EXCLUDED CLAIMS AND THE LIQUIDATED DAMAGES DESCRIBED IN SECTION 16, THE MAXIMUM AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, DISTRIBUTORS, AND RESELLERS UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY TYPE OF DAMAGES SHALL NOT EXCEED THE GREATER OF TWENTY FIVE THOUSAND DOLLARS ($25,000.00) OR THE AMOUNT OF FEES PAID OR PAYABLE BY CLIENT UNDER THE ORDER(S) GIVING RISE TO THE CLAIM FOR THE TWO (2) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  FOR CLARITY, THE MAXIMUM AGGREGATE MONETARY LIMIT STATED IN THIS SUBSECTION IS NOT “PER INCIDENT” BUT IS AN AGGREGATE LIMITATION APPLICABLE TO ALL CLAIMS ARISING UNDER OR REGARDING THIS AGREEMENT (WHICH TERM INCLUDES ANY COMPONENT THEREOF AS DESCRIBED IN SECTION 15.1).

15. 3 Acknowledgment. The parties acknowledge that Netgain has set its prices and entered into this Agreement in reliance on the limitations of remedies and liability stated in the Agreement, and that these limitations reflect an agreed allocation of risk between the parties.  The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. Nothing in this Section precludes a party from seeking specific enforcement, injunctive relief or other non-monetary equitable remedy that is available by law. If these limitations as written are not permitted by applicable law, they shall apply to the fullest extent permitted by applicable law.

16. Non-Solicitation.
Neither party shall directly or indirectly solicit any employee, individual contractor, or employee of any contractor of the other party with whom one or more of such party’s personnel have interacted in connection with the Agreement, to terminate their employment, contractor, or other business relationship with the other party, provided however, that this Section does not restrict a party from employing an individual who responds to the party’s general employment advertisement or notice. The parties agree that the reasonable liquidated damages for a breach of this Section is the solicited individual’s base pay (or in the case of a non-employee, the amount paid by the non-breaching party for the non-employee’s services) during the twelve (12) months preceding the solicitation in breach of this Section. This restriction shall survive expiration or termination of the Agreement for a period of twelve (12) months.  Notwithstanding the foregoing, where Client’s breach of this Section 16 results in Netgain being liable to a third party, the liquidated damages described in this Section 16 shall in no way limit Client’s indemnification obligation to Netgain.

17. Assignment.
Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without the other party’s consent: (i) upon the occurrence of a Change in Control Event with respect to the assigning party, (ii) to an Affiliate, or (iii) as part of a corporate reorganization, in each case upon ten (10) days’ prior written notice to the party, which notice must include evidence of such permitted assignee’s assumption of all of the assigning party’s obligations hereunder. Any purported assignment in violation of this Section 17 is null and void. 

18. Governing Law and Dispute Resolution.

18. 1 Governing Law.  This Agreement and any matters related hereto shall be governed by Minnesota law (and all applicable United States federal laws), without giving effect to any conflicts of law rules. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The parties agree that all Netgain offerings are “services” and none are considered “goods” covered by any state version of the Uniform Commercial Code. 

18. 2 Good Faith Negotiation and Mediation. Except for a request for temporary injunctive or other equitable relief, if a dispute arises out of or relates to this Agreement or the breach thereof (a “Dispute”), a party shall give written notice of the Dispute to the other party, and the parties shall attempt to resolve the Dispute through good faith negotiations between a member of the executive leadership (at the level of Vice President or higher) of each party.  If the parties cannot reach a resolution within thirty (30) days following such initial notice, the parties agree to submit the Dispute for non-binding mediation administered by the American Arbitration Association under its Commercial Mediation Procedures prior to resorting to binding arbitration pursuant to Section 18.3. The mediator will be chosen by mutual agreement of the parties within twenty-one (21) days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants, and experts in connection with the Dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party.

18. 3 Binding Arbitration. If the Dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, then such Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

18. 4 WAIVER OF JUDGE OR JURY TRIAL. EXCEPT FOR A REQUEST FOR TEMPORARY INJUNCTIVE OR OTHER EQUITABLE RELIEF, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO HAVE ANY DISPUTE TRIED AND ADJUDICATED BY A JUDGE OR JURY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 18, NETGAIN MAY, BUT IS NOT REQUIRED TO PURSUE COLLECTION OF OVERDUE FEES VIA THE METHOD SET FORTH IN THIS SECTION 18, AND MAY TAKE ANY ACTION (WHETHER FORMAL OR INFORMAL) IN CONNECTION WITH THE COLLECTION OF OVERDUE FEES WHICH IS OTHERWISE PERMITTED BY APPLICABLE LAW.

18. 5 Time Bar. A party may not bring an action in relation to this Agreement more than two (2) years after the date that the cause of action accrued.

18. 6 Prevailing Party Entitled to Fees and Costs. Without limiting any other provision of this Agreement, in the event of any arbitration or proceeding in connection with a Dispute, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses incurred in connection with such arbitration or proceeding, including court costs and reasonable attorneys’ fees, whether or not such arbitration or proceeding is prosecuted to judgment.

19. Miscellaneous.

19. 1 References. Each party may use the other party’s name and logo in presentations to individuals or small groups, in website and social media publications and postings, and in its collateral materials (i.e. brochures and other promotional material) and may provide the name of the other party’s primary contact as a reference as part of private business discussions, provided that it uses the other party’s trademarks in accordance with any trademark usage guidelines provided by the other party from time to time.  A party may not use the other party’s name, logo, or primary contact information in any other manner without the other party’s prior written consent.

19. 2 Force Majeure. Except for Client’s payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, including but not limited to earthquakes, storms, and other natural disasters, war, riot, insurrection, electrical or power outages, telecommunications or internet service failures, denial of service attacks, epidemic, pandemic, governmental acts, orders, or restrictions, strikes or other organized labor action, or terrorism. 

19. 3 Relationship Between the Parties. The parties are independent contractors, and except as expressly contemplated in an Order with respect to Netgain’s provision of Services to Client, neither party is the agent of the other nor has the right to bind the other on any contract with a third party.  Nothing in this Agreement creates an obligation of exclusivity or non-competition.  Each party is free to purchase and sell services of the type described in the Agreement from or to any Person, including competitors of the other party.

19. 4 Notices.  Except where notice via email is expressly permitted, all notices, requests, consents, claims, demands, and other communications hereunder shall be in writing, in English, and will be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (iii) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the most recent Order, Attn: Legal Notices (or to such other address that may be designated by a party from time to time in accordance with this Section), and with respect to notices to Netgain, a copy of all notices must also be sent to legalnotice@netgaincloud.com.

19. 5 Third Party Beneficiaries. Unless and to the extent specifically stated otherwise in some other Section of this Agreement, there are no third party beneficiaries to this Agreement. Except as required or permitted by Third Party Terms, neither party’s clients, end users (including Users), suppliers, or any other Person shall have the right to enforce this Agreement.

19. 6 Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.

19. 7 No Waiver. No right or remedy arising regarding this Agreement shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy.  A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived.  Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy.

19. 8 Amendments.

19. 8.1 Changes to Online Terms. Netgain may modify this MSA, any Service Specific Terms, and any other online document that is part of the Agreement at any time, in its discretion, provided that except for modifications to the Policies, which are effective when posted, such modifications shall not apply to any existing Orders until the first renewal term for such Order which commences at least thirty (30) days following such change.  In addition, if an initial Order contained specific modifications to the MSA or any other component of this Agreement, such modifications will remain in full force during all renewal terms unless otherwise agreed in writing by the parties, notwithstanding any published modifications. Modifications are immediately effective as to any Order that is signed after the date the modified document is published online. 

19. 8.2 Other Changes. Except as expressly provided in Section 19.8.1 or elsewhere in this Agreement, no amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by duly authorized signatories of both parties, which must specifically reference the component(s) of the Agreement to be modified.

19. 9 Entire Agreement. The Agreement (including any subsequent Orders and later-executed documents hereunder) is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes and replaces in full any prior or contemporaneous agreements or understandings, written or oral, including but not limited to any prior nondisclosure, confidentiality, or similar agreement.

19. 10 Counterparts. Each Order and any other component of this Agreement to be executed by the parties from time to time (excluding notices, which shall be provided pursuant to Section 19.4) may be executed in any number of counterparts, each of which may be deemed an original, but all of which together constitute one and the same agreement. An electronically signed copy of any such document delivered by e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy.

20. Interpretation.

20. 1 Order of Precedence. If there is a conflict between the documents that comprise the “Agreement”, the documents control in the following order: the BAA (if any), the Service Specific Terms, this MSA, the Order and any other documents referenced therein or attached thereto, and the Policies, except to the extent the Order expressly states that a particular attachment or provision thereof shall supersede a specific provision of this MSA or the Service Specific Terms.

20. 2 Section Headings. The section headings are for convenience of reference only and shall not be used in interpreting this Agreement.

20. 3 Additional Rules of Interpretation. The term “law” refers to statutes, regulations, executive Orders, and other legally binding rules issued by a government agency having jurisdiction.  The word “including” means “including, without limitation.” All technology provided under this Agreement is licensed and not sold; any use of the term “sale” or like word means a sale of a license.  Nouns stated in the singular may imply the plural as indicated by the context. 

21. Defined Terms.  

Capitalized terms not otherwise defined herein have the meanings given in this Section 21.

21. 1 “Acceptable Use Policy” means the Acceptable Use Policy posted by Netgain, as amended by Netgain from time to time in its discretion, or if no such Policy is posted, all acceptable use or similar policies published by Amazon Web Services, Inc. and Microsoft Corporation in connection with their provision of their services and/or use of their software and other products.   

21. 2 “Affiliate” means an entity or other Person that controls, is controlled by, or is under common control with the Person referred to, where “control” means the legal, beneficial, or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity interests in the entity.

21. 3 “Agreement” means, collectively, each Order, whether now or hereafter existing, this MSA, the BAA (if applicable), the Service Specific Terms (if any), the Policies, and any other documents attached to or incorporated by reference into any of the foregoing, in each case as amended from time to time in accordance with its terms, and any other agreements executed by the parties which reference this MSA, regardless of the title of such agreement(s).  

21. 4 “Application(s)” means any application, software as a service, or similar offering that is hosted or supported by Netgain (but excluding Environments), whether or not proprietary to Client and whether or not listed as Enhanced Support Applications.

21. 5 “Application Environment” means the Netgain-managed cloud environment consisting of Cloud Infrastructure and Netgain’s proprietary technology for the management of application hosting environments.

21. 6 “Application Environment Services” means Netgain’s provision of the Application Environment, including all server infrastructure to support all Users and Enhanced Support Applications, virus protection and monitoring for all server infrastructure, and data backups for Client Data, as may be further detailed or limited in the Order or elsewhere in the Agreement. Unless otherwise agreed in the Order, Application Environment Services do not include licensing, local network support, or mobile device management.

21. 7 “Azure Managed Services” means Netgain’s provision of monitoring, management, and support services to Client utilizing Netgain’s combination of proprietary and third-party tools and technology, delivered in Client’s Microsoft Azure Subscription, as may be further detailed or limited in the Order or elsewhere in this Agreement. Unless otherwise agreed in the Order, Azure Managed Services do not include licensing, local network support, or mobile device management.

21. 8 “BAA” means the Business Associate Addendum or Business Associate Agreement, if any, between Netgain and Client, as the same may be amended or replaced from time to time.

21. 9 “Business Day” means each of Monday – Friday, excluding federal public holidays in the United States. Unless identified as a Business Day, all references to “days” shall mean calendar days.

21. 10 “Cause” means:

21. 10.1 With respect to either party as the terminating party, (a) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the debt of the other party; (b) upon the other party making an assignment for the benefit of creditors; (c) upon the dissolution of or ceasing to do business by the other party; or (d) where Netgain is legally unable to provide the Services and no alternative services are available.

21. 10.2 With respect to Netgain as the terminating party, Client’s failure to pay any amounts due under this Agreement within sixty (60) days of the date listed on the invoice.

21. 11 “Change Order” means a document executed by both of the parties hereto describing an agreed change with respect to the Order to which it applies (and not to any other Orders between Client and Netgain unless expressly agreed therein), together with any expected adjustments to the Fees.

21. 12 “Change in Control Event” shall mean: (a) the consolidation or merger of a party with or into any Person in which such party is not the surviving Person of such consolidation or merger; (b) the sale, transfer or other disposition of all or substantially all of the assets of a party; or (c) any change in the beneficial ownership of greater than fifty percent (50%) or more of the stock, membership interests, or other voting securities or ownership interests of the party.

21. 13 “CIC Termination Fee” means the greater of (a) three (3) times the average Monthly Fee for the six (6) full calendar months prior to the effective date of the Change in Control Event and (b) three (3) times the Minimum Monthly Fees for the last full calendar month prior to termination.

21. 14 “Client” has the meaning set forth in the first paragraph.

21. 15 “Client Data” means the information and data that Client processes by means of the Applications.

21. 16 “Client Inputs” has the meaning set forth in Section 13.4.

21. 17 “Cloud Infrastructure” means the computing, storage, networking, database, and related information systems infrastructure that Netgain uses to host, manage, and/or support Applications.

21. 18 “Cloud Infrastructure Provider” means the provider of the Cloud Infrastructure, which may be Netgain or a Third Party Provider.

21. 19 “Confidential Information” means non-public information disclosed by one party to the other party, on any media, whether before or after the effective date of the Agreement that: (i) the recipient should reasonably understand to be confidential, such as (a) for Client, the Client Data, and (b) for Netgain, unpublished prices and other terms of service, product development plans, any nonpublic vendor or contractor information, including but not limited to anything identified as confidential in Third Party Terms, audit and security reports, and other proprietary information or technology; or (ii) is marked or otherwise conspicuously designated as confidential by the disclosing party.  Information that is independently developed by a party without reference to the other party’s Confidential Information, or that becomes available to a party, other than through violation of this Agreement or applicable law, is not “Confidential Information” of the other party. 

21. 20 “Cost Adjustment” has the meaning set forth in Section 5.6.

21. 21 “Covered Support” means Support included in the Monthly Fee for Environment Services, including any Support allowance, as set forth in the applicable Order.

21. 22 “Critical Priority Request” means a Support Request related to an interruption making a critical functionality (including access to Client Data) inaccessible to all Users, causing a severe impact on Client’s day-to-day operations, where no workaround is available.

21. 23 “Dispute” has the meaning set forth in Section 18.2.

21. 24 “End of Life” or “EOL” means the period after which an Application or other Third Party Offering (a) is three (3) or more years old, as measured by the first release date of the initial Major Version Release for such Application or (b) no longer has updates and/or support provided by the Third Party Provider.  

21. 25 “Enhanced Support Applications” means those Applications listed as Enhanced Support Applications in the applicable Order or an Appendix thereto, if any, subject to reaching End of Life.

21. 26 “Environment” means the Application Environment or Client’s Azure environment, as applicable.

21. 27 “Environment Services” means Application Environment Services and Azure Managed Services.

21. 28 “Excluded Claims” means, collectively, (i) claims arising from a party’s intentional tort, (ii) claims arising from a party’s intentional breach of its confidentiality obligations under Section 12, (iii) claims based on the party’s infringement or misappropriation of the other party’s intellectual property rights, (iv) claims (including Client’s indemnification obligations with respect thereto) arising from Client’s alleged noncompliance with any Third Party Terms, and (v) Client’s payment obligations to Netgain under the Agreement.

21. 29 “Feedback” means any feedback, modifications, enhancements (including enhancement requests), recommendations, suggestions, or other derivative works (regardless of the source of inspiration) provided to Netgain, its personnel, or any of its Representatives by Client, its personnel, or any of its Representatives.

21. 30 “Fees” means any amounts payable to Netgain by Client under this Agreement, including but not limited to the Monthly Fees, applicable time and materials fees, and any other applicable fees under this Agreement (including any Order). All Fees and other amounts due hereunder are payable in United States Dollars.

21. 31 “IP Warranty” has the meaning set forth in Section 13.4.

21. 32 “Maintenance Window” includes (a) the weekly overnight period from Saturday night to Sunday morning, during which time Netgain may perform server reboots, Windows updates, patches, security updates, other system patches, and/or system maintenance, (b) for Application updates requested by Client or required by a third party which require downtime, such other windows that may be agreed (including via email) by Client and Netgain from time to time, and (c) in the event of critical security patches (as well as any Security Enhancements), any time period as Netgain deems necessary for such critical security-related maintenance. 

21. 33 “Major Upgrade” means (i) an upgrade in connection with a Major Version Release, (ii) an upgrade or enhancement requested by Client that Netgain reasonably deems to require material effort or a material change to the Environment, or (iii) a Security Enhancement. All Major Upgrades are Supplemental Services subject to Netgain’s then-current hourly rates.

21. 34 “Major Version Release” means a new major release denoted by the Third Party Provider in the first portion of the version identification, whether by means of a modified number, letter, or otherwise.  If a Third Party Provider uses a different identification method, Netgain shall determine whether a version release constitutes a Major Version Release.

21. 35 “Monthly Fees” means the fees payable on a recurring monthly basis for Services to be provided hereunder, including licensing and similar fees payable to Netgain in connection with the license of Third Party Offerings.

21. 36 “Minimum Monthly Fee” has the meaning set forth in Section 5.7.

21. 37 “MSA” has the meaning set forth in the first paragraph.

21. 38 “Netgain” has the meaning set forth in the first paragraph.

21. 39 “Non-Supported Applications” means any Application which is not an Enhanced Support Application or a Standard Application. Unless otherwise agreed in writing, all Enhanced Support Applications and Standard Applications automatically become Non-Supported Applications upon the earlier of (x) reaching End of Life or (y) the date on which Netgain is no longer able to host or access (as applicable) such Application under applicable Third Party Terms.

21. 40 “Order” means the order document signed by Client and Netgain that describes the Services to be provided by Netgain thereunder, the related Fees, and such other terms as the parties may agree, whether styled as a “Service Order,” “Cloud Platform Order,” “Application Environment Services Order”, “Azure Managed Services Order”, “Order Form,” Statement of Work,” “Scope of Work,” “SOW,”  or other title, as amended from time to time pursuant to a Change Order or as otherwise contemplated in this Agreement. For the avoidance of doubt, an Order includes Environment Services only to the extent expressly specified therein.

21. 41 “Person” means any individual, partnership, company, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or agency, or political subdivision thereof, or other entity.

21. 42 “Policies” means Netgain’s Privacy Policy, Acceptable Use Policy, and any other policies generally applicable to its clients or to visitors to its website(s) or platform(s).

21. 43 “Privacy Policy” means the privacy policy available on Netgain’s website, as amended by Netgain from time to time in its discretion.

21. 44 “Professional Services” means Services identified in an Order or this Agreement as “professional services”, such as implementation and training, custom configurations of Applications, Major Upgrades, related data migration, and modifications to systems architecture, or as otherwise identified by Netgain from time to time in the Policies. Unless otherwise agreed in writing, Professional Services are charged at Netgain’s then-current hourly rates, together with any applicable expenses.

21. 45 “Representatives” has the meaning set forth in Section 12.

21. 46 “Sales Tax” has the meaning set forth in Section 5.3.

21. 47 “Security Enhancements” has the meaning set forth in Section 3.2.

21. 48 “Service Commencement Date” means for Application Environment Services, the earlier of (a) the first day of the first calendar month following the Go Live Date, as defined in the applicable Order, and (b) the day after the fourteenth (14^th) day of delay described in Section 4.4. For other services, including Azure Managed Services, the Service Commencement Date means the first date on which Services have commenced under such Order.

21. 49 “Services” means the services to be provided to Client pursuant to this Agreement, including the Environment Services, the Professional Services, the Support, and all other Supplemental Services, as applicable.

21. 50 “Service Specific Terms” means terms applicable to a particular Netgain Service, which apply solely if referenced in or attached to the relevant Order.

21. 51 “Standard Applications” means all Applications designated as “Standard Applications” in the applicable Order, if any, until such time as they reach End of Life as described above.

21. 52 “Supplemental Services” means any services, including but not limited to Professional Services, provided to Client by Netgain under this Agreement which are not Environment Services or Covered Support. Unless otherwise agreed in writing, Supplemental Services are provided on a time and materials basis at Netgain’s then-current hourly rates.

21. 53 “Support” means technical assistance for the use of the Environment Services or other Services provided by Netgain and may include technical assistance for the configuration and management of certain Applications to the extent set forth in the Order, as well as such other technical support as Netgain may provide from time to time.  Except to the extent included as Covered Support in an Order, Support is provided as a Supplemental Service on a time and materials basis and is subject to Netgain resource availability.

21. 54 “Support Request” has the meaning set forth in Section 2.1.

21. 55 “Third Party Offering” means any Application, hardware, product, service, or other material developed or provided by a Person other than Netgain or Client, including, for the avoidance of doubt, third party Applications for which Client purchases licenses through Netgain and Cloud Infrastructure which is not proprietary to Netgain.

21. 56 “Third Party Provider” means a provider of a Third Party Offering.

21. 57 “Third Party Terms” means any Third Party Provider’s terms and conditions, license, SAAS agreement, services agreement, acceptable use policy, privacy policy, or other terms to which Client and/or Netgain are subject in connection with a Third Party Offering.

21. 58 “Transition Services” has the meaning set forth in Section 7.4.2.

21. 59 “User” means a unique individual authorized by Client as a user of the Services and/or one or more Applications in accordance with Section 4.1. For clarity, the number of authorized Users does not refer to contemporaneous users, but to unique individuals, and User seats may not be re-assigned from one individual to another.