This Master Client Agreement (the “Agreement” or “MCA”) is made between D1 Networks, Inc., a California corporation, dba D1 Defend, located at 14071 Peyton Dr,. #453, Chino Hills, CA 91709 (“Managed I.T. Department” or “MID”) and the contracting party identified on the Statement of Work (“Client”).  MID and Client are each referred to herein as a “Party” and together as, the “Parties.” This Agreement shall become effective on the date (the “Effective Date”) a SOW referencing and incorporating this Agreement by reference is executed by authorized representatives of both MID and Client. Unless otherwise specified in the SOW, the Effective Date shall be the date of the last required signature on such SOW.

1. MASTER CLIENT AGREEMENT
1.1 Scope of MCA. This MCA, all statements of work, and orders either attached hereto as an exhibit or incorporated herein by reference, including any statement of work setting forth the work to be performed, goods, services and intellectual property to be sold or licensed, any related pricing and any other order for goods, licensing, services and any related agreement for services (for example, agreements for back-up disaster and recovery or cloud IT services), whether or not attached hereto or otherwise explicitly incorporated herein by reference (each of which may hereinafter be referred to as a “Statement of Work”, “SOW”,  “Infrastructure as a Service”, “IaaS”, or an “Order”, as applicable and collectively hereinafter referred to as “SOW”), shall contractually obligate Client, and any Client affiliate of  MID or any affiliates of MID, or any successors and assigns thereto, for all goods (“Goods”) and services (“Services”), including for any licensing of intellectual property, each of which become binding on the Parties and are incorporated into this Agreement upon execution of the SOW.   Goods and Services may include, but are not limited to, software, licenses, subscriptions, back-up, disaster, and recovery services, cloud services, hardware, trouble support, and ticketing services, call center and maintenance services, combined software and services, identification verification processes, policies, and systems, cybersecurity systems, applications, software, policies, and enhancements, voice over internet protocol (“VoiP”), telephone and internet services.  Goods and Services shall be collectively referred to hereinafter as “Products” or, individually as a “Product”, regardless of whether such Product or Products are provided to Client by MID directly or through any third party vendor, wholesaler, reseller, supplier, channel partners, trade partner, consultant, or trade group member, including but not limited to independent contractors, agents or distributors of MID, as the case may be, under the circumstances then appertaining.  

1.2  Affiliate.  For purposes of this Agreement, “Affiliate” means any entity that directly or indirectly, through one or more entities, controls and/or owns or is controlled and/or owned by Client or MID, or is under common control and/or ownership with Client or MID. 

1.3 Statements of Work. Any SOW provided pursuant to this MCA may require the acknowledgment by Client either in writing, electronic or other means acceptable to MID. Whenever reasonably practicable, an initial Statement of Work may be, but is not required to be, attached hereto as an exhibit upon execution of the MCA by the Parties.  The failure to attach any SOW to the MCA shall not void Client’s obligations (financial or otherwise) to MID. The Parties agree and acknowledge that the Parties may, in the course of their dealings, execute multiple SOWs pursuant to this MCA.  Such SOWs need not be appended to this MCA, but shall be deemed to be incorporated herein by reference even if such SOWs are not attached to this MCA.   In the event of a conflict between the terms of this MCA and any SOW, the terms of this MCA shall prevail, except with respect to the SOW’s provisions regarding the description, scope, nature of services, fees, expenses and payment terms.

1.4 Backups and Disaster Recovery.  The option to accept MID’s backups and disaster recovery service (the “BDR Service”) is set forth in the SOW.  If Client declines or fails to accept the BDR Service, Client acknowledges that MID has no obligation to backup Client data and MID has no obligation to recover Client data under any circumstances.  Further, if Client declines the BDR Service, Client is deemed to have released, and Client shall thereby waive any claims resulting from a backup and/or recovery issue with Client data and Client thereby releases, MID and any Affiliate or Affiliates as defined in Section 1.2, herein, MID’s employees, owners, members, shareholders, agents, assigns, independent contractors, trade partners, channel partners, managers, officers and directors, vendors, resellers, wholesalers, trade group or co-op members, successors in interest, third party service providers, any other party acting on MID’s behalf or under MID’s control for the direct or indirect benefit of Client (collectively with MID, hereinafter referred to as the “MID Release Parties”) from any and all suits and claims (including, but not limited to third party suits and claims) arising from Client’s declination or rejection of the BDR Service. Further, Client agrees to hold harmless, covenants not to sue, and indemnifies MID and the MID Release Parties from all third party suits and claims allegedly arising from Client’s declination or rejection of the BDR and the fact that MID did not provide and is not providing BDR Service to Client, as well as all third party suits and claims allegedly arising from Client’s own acts or omissions in failing to adequately protect Client’s data.

1.5 Cybersecurity Enhancements. The option to accept MID’s security enhancements (“Cybersecurity Enhancements”) is set forth in the SOW.  If Client declines or fails to accept the Cybersecurity Enhancements, Client acknowledges that MID will not be providing enhanced cybersecurity protections, which may increase the risk of successful attacks against Client’s network security and any damages which may result therefrom. Further, if Client declines Cybersecurity Enhancements, Client is deemed to have waived any resulting claims and Client is deemed to have released, and shall thereby waive and release, MID and the MID Release Parties from any and all suits and claims (including, but not limited to third party suits and claims) allegedly arising from Client’s declination or rejection of the Cybersecurity Enhancements. Further, Client agrees to hold harmless, covenants not to sue, and indemnifies MID and the MID Release Parties from all third party suits and claims arising from or allegedly arising from Client not accepting, and MID not providing, the Cybersecurity Enhancements, and all damages resulting therefrom.

2. TERM AND TERMINATION

2.1 Term. This MCA will begin on the Effective Date and will continue for three (3) years (the “MCA Term”) or until each SOW initiated within the MCA Term is fulfilled, expires or renews, except as otherwise set forth herein or as otherwise agreed by the Parties in writing. Client acknowledges that the cost of labor and expense incurred by MID during the onboarding process is amortized over the length of the MCA Term and shall be waived if Client (a) does not commit an uncured material breach during the MCA Term, and (b) completes the full term of the Agreement.   

2.2 MCA Termination Events.  MCA termination events include, but shall not be limited to (i) Client’s material breach of any provision of the MCA or SOW, or (ii) Client’s failure to make any payment when due under this MCA and/ or any SOW (each, a “MCA Termination Event” and collectively, “MCA Termination Events”) and provided Client has not cured the default within ten (10) calendar days of written notice thereof from MID to Client (the “Cure Period”), unless otherwise mutually agreed to in writing by the Parties.   In the event of non-payment by Client, either Party may, in its sole discretion, provide written notice to the other, requiring that any related payment dispute be submitted to mandatory mediation in Delaware (“Mediation”). Mediation shall be conducted within thirty (30) days of the expiration of the Cure Period, and the Parties agree to split the costs of Mediation, which shall observe the American Rule with respect to fees and costs unless a Party reasonably determines that filing of a suit or claim is necessary to preserve a claim and/or avoid the expiration of any applicable statute of limitations. While mediation is pending, services shall continue to be provided and all fees and expenses under the MCA shall continue to accrue and be due to MID in the ordinary course of business. The Parties agree to act in good faith and to use commercially reasonable efforts to resolve any dispute. For the avoidance of doubt, any good faith action taken by MID, including but not limited to, remedial actions, mitigation efforts, or accommodations for Client, shall not be construed as an admission of liability, settling of a claim, or as a voluntary payment under any applicable insurance policy.

2.3 Client Termination. Client may terminate this Agreement if MID materially defaults with respect to any of MID’s provisions of the MCA or SOW and provided that MID has not cured such default within ten (10) calendar days of written notice thereof (the “Cure Period”), unless otherwise mutually agreed to in writing by the Parties.  In the event that Client provides notice of termination to MID, either Party may, in its sole discretion, provide written notice to the other, requiring that any request for termination be submitted to Mediation. Mediation shall be conducted within thirty (30) days of the expiration of the Cure Period, and the Parties agree to split the costs of Mediation, which shall observe the American Rule with respect to fees and costs unless a Party reasonably determines, in their sole discretion, that filing a suit or claim is necessary to preserve the claim and/or avoid expiration of any applicable statute of limitations. While mediation is pending, services shall continue to be provided and all fees and expenses under the MCA shall continue to accrue and be due to MID in the ordinary course of business. The Parties agree to act in good faith and to use commercially reasonable efforts to resolve any dispute.

2.4 Effect of Termination.
(a) Upon any termination of the MCA and/or any SOW in whole or in part, Client shall immediately uninstall or cease using any software designated by MID, return any of MID’s hardware, and otherwise cease to use and return any Product to MID, together with all related documentation, hardware, intellectual property, and software, and any hard, cyber or digital copies thereof (collectively, the “Ancillaries”) in a manner (and at a time and place) reasonably acceptable to MID in MID’s sole discretion and at Client’s sole expense. 
(b) Upon written request of MID, Client will within three (3) business days certify in writing to MID that all Products and Ancillaries have been returned, or if so directed by MID in writing to Client, have been destroyed in accordance with applicable law.  Client agrees to assume liability to MID and the MID Release Parties for any unauthorized use of Products and Ancillaries and any destruction and disposal of same in accordance with applicable law.
(c) Client shall hold harmless, indemnify and defend MID and the MID Release Parties for any and all claims by Client and by any third party or government entity arising from any failure of Client to use or dispose of any Product and/or Ancillaries in accordance with applicable law, regardless of whether MID has provided Client with advance written consent to maintain, use or destroy any Product and/or Ancillaries.
(d)   If the MCA or any SOW is terminated in whole or in part prior to the expiration of the MCA Term, unless otherwise mutually agreed upon by the Parties in writing (the “Early Termination Date”), Client shall be liable to MID for the balance of payments due under the MCA and applicable Statements of Work through the expiration of their respective terms as liquidated damages.  In addition, Client shall be liable to MID and reimburse MID for the time and expense of offboarding arising from a material breach, including migration of data and recovery of hardware at MID’s standard hourly rates, as liquidated damages. The Parties acknowledge and agree that actual damages in the event of early termination or material breach are uncertain and difficult to ascertain at the time of contracting due to (i) non-recoupable onboarding and implementation expenses, (ii) disruption of MSP’s resource planning and capacity allocation, and (iii) costs of re-assigning personnel. The Parties further stipulate that the agreed upon calculation of liquidated damages is not a penalty, but rather a reasonable measure and calculation of damages resulting from Client’s breach, based upon costs relating to non-recoupable onboarding expenses, disruption of resource planning, and re-assignment of personnel, which such costs were amortized over the MCA Term interest free. 

2.5 Client Onboarding Compliance.  Client acknowledges that upon the commencement of Services, a mandatory onboarding period is required in order for MID to fully deliver the Services. The onboarding process includes, but is not limited to, Client proving necessary information, access to Client systems, and cooperation as requested by MID. The failure by Client to comply with the onboarding requirements shall constitute an MCA Termination Event upon which MID may provide thirty (30) days written notice of such breach to Client; provided such breach remains uncured at the expiration of the notice period, MID may proceed with enforcement of its rights and remedies as set forth in this Agreement. Client acknowledges that the amounts due under the MCA and any applicable SOW are amortized over the MCA Term.  If the MCA or any SOW is terminated in whole or in part prior to the expiration of the MCA Term, as a result of Client’s failure to comply with the onboarding requirements, unless otherwise mutually agreed to in writing by the Parties, Client shall be liable to MID for the balance of payments under the MCA and applicable Statements of Work through the expiration of their respective terms.

2.6 Liability Relating to Client Data Post-Termination. Client acknowledges that neither MID nor the MID Release Parties have any liability to Client for breach, harm, ransom, storage, hacking, modification, duplication, destruction or loss of any data (including, but not limited to, Client data, data of any employees of Client, data of Client’s customers, data of any employees of Client’s customer’s, or data of any other third parties) after the termination of this MCA and/or any SOW, regardless of where or how the data is maintained, including off-site maintenance by third party storage vendors, and regardless of whether MID or Client was or was not in direct privity or contract with such third party vendor.  Client hereby releases and waives any and all claims against MID or any of the MID Release Parties, covenants not to sue MID, holds MID harmless, and agrees to indemnify and defend MID from and in relation to any and all claims, damages, suits, demands, trials, tribunals, dispute resolution proceedings and causes of action arising from any consequences resulting from data breaches of Client, Client’s employees, Client’s customers, employees of Client’s customers, or any third parties post-termination.

3. PAYMENT AND DELIVERY
Client shall be billed by MID on a monthly basis and Client shall pay to MID all fees and expenses incurred under this MCA and/or any SOW (including any Post-Termination Transition Fee) in accordance with and upon receipt of an Invoice (as that term is hereinafter defined) generated by MID to Client specifying the amounts due for fees and reimbursable expenses (collectively, the “Fees”).  The payment of any Fees shall occur by automatic ACH transfer, credit card, or other automatic electronic means designated by MID unless otherwise agreed to or required by MID in writing. All Fees payable under this MCA are exclusive of sales, use, VAT, customs duties, excise, and any other applicable transaction taxes, which Client is responsible for paying, reporting or remitting, unless otherwise required by applicable law.  If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable from the date due until paid in full at the rate of the lesser of (i) one and one-half percent (1.5%) of the then outstanding balance per month, or (ii) the maximum rate permitted by applicable law, whichever is lower). Client shall pay all expenses, including, but not limited to, any accounting and expert fees incurred by MID, or its representatives in enforcing its rights under this MCA.  Client’s obligation to pay any Fees and MID’s right to all such amounts are absolute and unconditional and not subject to setoff by Client. All Goods are FOB at the shipping point. Client agrees to pay or reimburse MID for all actual, necessary, and reasonable expenses incurred by MID for all Products. MID will submit invoices for Fees (each an “Invoice”) to Client for remittance, and each Invoice will designate the terms of payment, including (but not limited to) payment in advance, payment immediately upon receipt of Invoice, payment upon completion, and payment at designated intervals.   Resource quantities may be added or subtracted and per unit or per user charges will be added or subtracted accordingly.  When changes occur, the Invoice will be adjusted in the month that any unit or user cost is added, or in the month after any unit or user cost is removed.  Notwithstanding the options to add or subtract resource quantities, the Minimum Monthly Fee (as such term is defined in the applicable SOW) will be set forth in the applicable Statement of Work. “Expense Escalation” means price increases from time to time for products and services due to cost adjustments and market conditions as provided by MID and third party vendors. with or without up-charges, carrying, transportation or handling charges, including but not limited to Microsoft 365 and Office 365 services, regardless of whether the Products are offered separately or in a bundle. The Expense Escalations relating to Products are not subject to proration. In the event that emergent Products or licenses are provided or commenced at Client’s request prior to the issuance of a SOW or invoice, payment for all such items shall be due immediately upon the completion of the service or the delivery of the Product or license, or upon the presentation of the SOW or Invoice, whichever occurs first. Absent statement of terms in any SOW or Invoice, the default shall be immediate payment upon presentation of SOW or Invoice, unless otherwise agreed to in writing.

4. PROPRIETARY RIGHTS AND CONFIDENTIALITY
4.1 Proprietary Rights. MID, any Affiliates of MID and/or their licensors shall retain all rights, title and interest in any and all intellectual property, informational property, industrial property and any copies thereof. MID neither grants nor otherwise transfers any rights of ownership in the Product, licenses, or intellectual property to Client, including MID’s proprietary software for network management (e.g., monitoring platforms, ticketing systems, cybersecurity applications); configurations for client networks; methods for managing the network; client credentials, including passwords, and any manuals, runbooks, guides, or reports associated therewith. By signing this Agreement, Client acknowledges that the Products are protected by applicable copyright, confidentiality, non-disclosure, and trade secret laws and regulations, as well as other forms of intellectual property, informational property and industrial property protections throughout the world.

4.2 Product. Client may only use and disclose Product in accordance with the terms of this MCA and any applicable SOWs. MID reserves all rights in and to the Product not expressly granted in this MCA. Client may not disassemble or reverse-engineer any software Product or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law, or provide a third party with the results of any functional evaluation of, benchmarking of, or performance tests on, the Products without MID’s prior written approval. Except as expressly authorized pursuant to this Agreement or an applicable SOW, Client shall not (i) license, sublicense, sell, rent, lease, sublease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Product, programming, documentation, reports, or any other Product Services available to any third party, or (ii) operate the Product in an outsourcing or service provider business to process the data of third parties.  Additional usage restrictions may apply to certain third party files or programs embedded in the Product – applicable installation instructions or release notes will contain such relevant details.

4.3 Product Licensed Under This Agreement.
(a)   License. Subject to the terms of this MCA and any applicable SOWs thereunder, MID grants Client a non-exclusive, non-transferable license to use all programming, documentation, reports, and any other Product provided by MID pursuant to this MCA solely for Client’s own internal use.   
(b)   Pre-Existing License Agreements.  Any software Product provided to Client by MID as a wholesaler, channel partner or reseller for a third party, which is licensed to Client under a separate software license agreement with such third party (such agreement, an “SLA”), will continue to be governed by the SLA.  The fulfillment of the obligations under the MCA will not relieve or alter the obligations or responsibilities of either party (or of any third party) in regards to the software product licensed under the SLA.

4.4 Data Ownership and Responsibility.

(a)Data Ownership. The Client retains all rights, title, and interest in and to all data provided to the Service Provider or generated in connection with the services performed under this Agreement (“Client Data”).

(b)Client Responsibility. Client is solely responsible for the content, accuracy, and legality of the Client Data to which MID is given access. Client warrants that it has all necessary rights, licenses, and consents to use and provide access to the Client Data. MID is not liable for claims or losses arising from the Client’s non-compliance.

4.5 Confidentiality. This Section 4.5 sets out the terms for identification of information which is considered confidential and proprietary by MID, and restrictions against use and disclosure of such Confidential Information (as defined herein) by Client.

(a) Definition. The term “Confidential Information” means all proprietary, confidential or otherwise non-public information that is disclosed by one Party (the “Disclosing Party”) to the other Party, its affiliates, suppliers, and licensors (the “Receiving Party”), and includes, among other things (i) any and all non-public information relating to Products provided by MID, any Client-related information and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials; and (ii) the terms of this MCA.  
(b) Use and Disclosure Restrictions. The Receiving Party may not use the Confidential Information of the Disclosing Party except in the ordinary course of performance as necessary to provide the services set forth in the MCA and SOWs in connection herewith.
(c) Proprietary Legends. The Receiving Party may not remove, obscure, or alter any proprietary legend relating to the Disclosing Party’s rights on or from any form of Confidential Information of MID without the prior written consent of the Disclosing Party, except as expressly authorized in a SOW.
(d) Return of Confidential Information. Upon written request of the Disclosing Party, and upon any expiration or earlier termination of this MCA, the Receiving Party will promptly return to the Disclosing Party any and all of the Disclosing Party’s Confidential Information in its care, custody or control, including all copies and records thereof. The Receiving Party will not withhold the return of Confidential Information for any reason, including as a result of a dispute between the Parties, regardless of the subject of the dispute.
(f) Injunctive Relief. The Receiving Party acknowledges that a violation of the Disclosing Party’s confidential information as described in Section 4 of this MCA will cause the Disclosing Party immediate and irreparable harm.  In the event of a breach of Section 4 by the Receiving Party or any third party, Disclosing Party may seek, in addition to any and all other remedies under this Agreement or available at law, an injunction, specific performance, or other appropriate relief, including liquidated damages, loss or profits, enterprise value, business disruption, or harm to reputation.  

 
5. ALLOCATION OF RISK
5.1 EXCLUSION OF CERTAIN DAMAGES. MID IS NOT LIABLE TO CLIENT, ITS AFFILIATES, THIRD PARTY VENDORS, OR ITS LICENSORS, FOR CONSEQUENTIAL DAMAGES, INCLUDING SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, ARISING OUT OF (OR RELATING TO) ANY PRODUCT OR RIGHTS OF MID, AS WELL AS THOSE ARISING UNDER OR RELATED TO THIS MCA OR STATEMENTS OF WORK, INCLUDING MID’S PERFORMANCE OR PROVISION OF PRODUCT UNDER ANY LEGAL THEORY OR FACTUAL BASIS, WHETHER ALLEGED TO BE BASED UPON STRICT LIABILITY, NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, EVEN IF MID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS USED IN THIS MCA. “CONSEQUENTIAL DAMAGES” INCLUDES, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE, INTERRUPTION OF BUSINESS OR LOSS OF USE OF CLIENT DATA.

5.2 THIRD PARTY SERVICES. IN ADDITION TO AND WITHOUT LIMITING SECTION 5.1, MID, ITS MEMBERS, EMPLOYEES, AGENTS, DIRECTORS, AND/OR REPRESENTATIVES, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS AND SERVICES PROVIDED BY THIRD PARTY VENDORS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.   FURTHER, MID, ITS MEMBERS, EMPLOYEES, AGENTS, DIRECTORS, AND/OR REPRESENTATIVES ARE NOT LIABLE FOR ANY LOSSES, INJURIES, OR DAMAGE OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR OTHERWISE RELATED TO, IN CONNECTION WITH OR ARISING FROM THIRD PARTY SERVER DATA STORAGE, DUPLICATION, ARCHIVING, FILTERING, FIREWALL, THIRD PARTY CO-LOCATION, EQUIPMENT, SOFTWARE, OR HARDWARE, OR OTHER SERVICE, SEEN OR UNFORESEEN, (COLLECTIVELY, “CLOUD SERVICES”) AND WHETHER OR NOT CAUSED BY INTENTIONAL OR UNLAWFUL ACTIVITY INCLUDING HACKING, RANSOM, VIRUS OR SECURITY BREACHES, OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY VENDOR, CONTRACTOR, CHANNEL PARTNER, LICENSOR, LICENSEE, OR ANY OTHER PARTY. CLIENT FULLY AND FOREVER RELEASES AND DISCHARGES MID AND THE MID RELEASE PARTIES (AS DEFINED IN SECTION 1.4), AND HEREBY COVENANTS NOT TO SUE MID OR THE MID RELEASE PARTIES, FROM OR FOR ANY AND ALL INJURIES, LOSSES, DAMAGES, CLAIMS (INCLUDING NEGLIGENCE CLAIMS), DEMANDS, LAWSUITS, EXPENSES, AND ANY OTHER LIABILITY OF ANY KIND, OF OR TO CLIENT, ITS PROPERTY, CLIENT’S CUSTOMERS, EMPLOYEES, SUPPLIERS OR ANY OTHER PERSON, DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH SERVICES PROVIDED BY THIRD PARTY VENDORS.

5.3 LIMITATION OF LIABILITY. MID’S ENTIRE LIABILITY FOR ANY CLAIM, SERIES OF CLAIMS, OR FOR ANY DAMAGES RELATED IN ANY WAY TO ANY PRODUCT OR RIGHTS OF MID, AS WELL AS THOSE ARISING UNDER OR RELATED TO THIS MCA OR STATEMENTS OF WORK, INCLUDING MID’S PERFORMANCE OR PROVISION OF PRODUCT UNDER ANY LEGAL THEORY OR FACTUAL BASIS, WHETHER ALLEGED TO BE BASED UPON STRICT LIABILITY, NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, IS LIMITED TO CLIENT’S DIRECT CLAIMS AGAINST MID AND ANY THIRD PARTIES’ CLAIMS FOR DIRECT DAMAGES ASSERTED AGAINST CLIENT FOR WHICH CLIENT ATTEMPTS TO COLLECT FROM MID, SEEKS ANY CONTRIBUTION FROM MID, OR ASSERTS THAT MID IS LIABLE IN WHOLE OR IN PART TO CLIENT, OR THAT MID IS LIABLE TO CLIENT OR FOR ANY THIRD PARTY CLAIMS. THE TOTAL LIABILITY FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT exceed THE AMOUNT CLIENT PAID TO MID UNDER THIS AGREEMENT IN THE ONE MONTH  period IMMEDIATELY PRECEDING THE FACTS OR CIRCUMSTANCES GIVINIG RISE TO THE LAST CLAIM OF DAMAGE. THIS PROVISION IS INDEPENDENT OF ANY OTHER LIMITATION OF LIABILITY AND REFLECTS A SEPARATE ALLOCATION OF RISK FROM PROVISIONS SPECIFYING OR LIMITING A PARTY’S REMEDIES.

5.4 Indemnification and Duties.
(a) If Client, its Affiliates, or any of its respective employees, agents, vendors, or suppliers, is faced with a legal claim by a third party arising out of MID’s actual or alleged gross negligence, negligence, willful misconduct, violation of law, or failure to meet the security obligations required by the MCA, or a legal claim alleging patent, trade secret, or copyright infringement, then Client must forward notice of the legal claim to MID within three (3) business days of receipt of the claim.
(b) If MID, its Affiliates, or any of its respective employees, agents, vendors, channel partners, contractors, licensees, licensors, or suppliers is faced with a legal claim by a third party arising out of Client’s actual or alleged gross negligence, negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, and/or violation of Client’s agreement with its clients, customers or end users, then Client shall at all times indemnify and hold harmless MID, its successors and assigns and any of its officers, directors, employees representatives, and/or agents, and their heirs, executors, administrators, successors and assigns or each of them against and from the first dollar against any and all third party claims, including any claims in respect of any liability resulting from services provided by third parties, any and all claims, damages, liabilities, costs and expenses, including the cost of defending the claim (including reasonable attorney’s fees), and any damages award, fine or other amount that is imposed on MID in a final non-appealable judgment as a result of the claim. Client’s obligations under this subsection include claims arising out of the acts or omissions of Client’s employees, any other person to whom Client has given access to the Product, and any person who gains access to the Product as a result of Client’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Client, including unlawful acts of data intruders. 

5.5 Client Reimbursement of Legal Fees for Third Party Discovery. In the event MID, its Affiliates, or the MID Release Parties (as defined in Section 1.4) are required to respond to discovery requests, including but not limited to subpoenas, document production, interrogatories, depositions, or other legal processes, arising from any dispute, claim, or proceeding between Client and a third party to which MID is not a party (a “Third Party Dispute”), Client shall promptly reimburse MID for all reasonable costs and expenses incurred, including but not limited to attorneys’ fees, expert fees, and administrative costs. Client’s reimbursement obligation applies regardless of whether the Third Party Dispute involves Services, Goods, or data provided under this MCA or any Statement of Work. MID’s assistance in responding to such discovery requests shall be subject to a mutually agreeable Discovery Services Agreement, as provided in Section 9.10, and Client shall advance all associated costs unless otherwise agreed to in writing by the Parties.

5.6 Additional Protections.
(a) MID shall not be liable for any unlawful or unauthorized access, damage, loss ENCRYPTION OF CLIENT DATA, or intrusion to Client Data, ENCRYPTION OF CUSTOMER DATA OR INTRUSION TO CUSTOMER DATA, OR LOSS, THEFT, MISAPPROPRIATION, OR UNAUTHORIZED TRANSFER OF FUNDS, MONIES, FINANCIAL ASSETS, OR INSTRUMENTS (INCLUDING DIGITAL CURRENCIES AND ELECTRONIC PAYMENTS), nor shall MID be liable for any unlawful or unauthorized access, damage, loss, ENCRYPTION OF DATA, or intrusion to any data of Client’s CUSTOMERS OR ClientS, any data of any entity or person serviced by Client, and/or any entity or person to whom Client otherwise owes a duty of care, whether such duty of care arises pursuant to ANY contract or as a matter of applicable law.  CLIENT SHALL BE SOLELY RESPONSIBLE FOR DETERMINING WHAT APPLICABLE COMPLIANCE STANDARDS, IF ANY, IT MUST OR SHOULD ADHERE TO OR MAINTAIN FOR ITSELF, ITS CUSTOMERS OR CLIENTS, OR OTHER THIRD PARTIES, INCLUDING BUT NOT LIMITED TO DATA SECURITY, COMPLIANCE, STORAGE, BACKUP, RETENTION AND RESTORATION FOR ANYONE TO WHOM CLIENT IS RESPONSIBLE AND/OR OTHERWISE OWES A DUTY OF CARE, INCLUDING BUT NOT LIMITED TO DATA SECURITY, COMPLIANCE, STORAGE, BACKUP, RETENTION AND RESTORATION.
(b) Client will hold harmless and not initiate any claim, lawsuit, court action, or other legal proceeding or demand against MID or any of the MID Release Parties, nor join or assist in the prosecution of any claim for money or other damages which anyone may have, on account of injuries, losses, or damages sustained by Client, its customers, employees or suppliers, other parties, or any such person’s property in connection with any services provided by third party vendors.
(c) MID shall not be liable for any inability of MID, Client or Client’s customers or clients to access, maintain, recover or restore any of Client Data, including (but not limited to) any inability as a result of force majeure, acts of God and nature, war, terrorism, bankruptcy, insolvency or shutdown of any business of Client, Client’s customer or client, Client’s vendors, or MID’s vendor or vendors, channel partners, licensees or licensors, VOIP service providers, or agents, except as otherwise required by law.  For purposes of this section, “vendor” or “vendors” includes, but is not limited to, vendors storing Client Data or the data of Client’s customers or clients in the “cloud”, such as offsite storage facilities.
(d) In the event of the insolvency, liquidation, or restructuring of Client, Client agrees for any continuation of Product that MID may provide, in its sole discretion, that MID shall be considered, for purposes of applicable state and federal law, including federal bankruptcy law, as a “critical vendor,” and MID shall be paid immediately for any outstanding pre-filing Invoices that are outstanding.  Additionally, in the event of the insolvency, liquidation, or restructuring of the Client, Client shall waive any and all rights to bring any avoidance action, actions for clawback of amounts paid/transfers made, actions for preferential transfer/treatment, and actions for fraudulent transfer, whether such actions arise under state or federal law, including (but not limited to) federal bankruptcy law.
(e)  Each and every payment under this MCA shall be considered (and is hereby acknowledged by the parties as) a contemporaneous exchange for new value.
(f) MID makes no representations or warranties, express or implied, in regard to compliance with any applicable United States federal or state privacy laws or regulations, or any international or foreign privacy laws or regulations, including without limitation the GDPR (General Data Protection Regulation) as enacted by the European Parliament and the Council of the European Union, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, or the United Kingdom’s General Data Protection Regulation.
(g)   MID shall not be responsible for the unauthorized or authorized use of any devices, artificial intelligence software, applications, or hardware, including the use thereof by third parties, including minors, by Client and third parties, including Client’s customer, which results in the willful or inadvertent violation of any foreign, international, U.S. state or U.S. federal data and privacy laws, or social media laws that results in damages or fines, or associated fees incurred by Client and third parties, including Client’s customer.

6. INSURANCE
6.1 MID Insurance. MID will provide and maintain during its rendition of the Services and sale of Product: (a) worker’s compensation and related insurance as prescribed by the law of the state applicable to the employees performing such Services; (b) employer’s liability insurance with limits statutorily required and at least one million dollars ($1,000,000) for each occurrence; (c) commercial general liability insurance (including products liability) with one million dollars ($1,000,000) per occurrence combined single limit and one million dollars ($1,000,000) in the aggregate, including coverage for the use of subcontractors, products liability and completed operations, and not containing an exclusion for explosion, collapse and underground coverage; and (d) Technology Errors & Omissions insurance covering the effects of errors and omissions in the performance of professional services, as well as cyber insurance type coverages with limits in the amount of one million dollars ($1,000,000) for each occurrence and in the aggregate.

6.2 Client Insurance. Due to the complexity and severity of the exposures created by the use of computers, Client shall consult with a qualified risk manager to evaluate its exposures, unless otherwise agreed by the Parties in writing. Client shall carry, at a minimum, the following insurance policies:
(a)  Commercial general liability insurance. Client shall maintain coverage with limits no less than one million dollars ($1,000,000) per occurrence combined single limit and one million dollars ($1,000,000) in the aggregate, including coverage for contractually assumed liability as contained herein.
(b) Property insurance. Client shall maintain property insurance with a coverage extension for electronic data. The computer equipment policy will pay for loss or damage caused by or resulting from an accident to computer equipment. Computer equipment means covered property that is electronic computer or other data processing equipment, including media and peripherals used in conjunction with such equipment, including loss of income. Alternatively, the requirements set forth in subsections (a) & (b) can be combined into a Business Owners Policy (BOP).
(c)  Cyber and privacy insurance. Client shall procure and maintain, at its own expense, cyber insurance with minimum limits of one million dollars ($1,000,000) per occurrence and in the aggregate, including the following coverages:
 1. Ransomware Coverage. Costs related to ransomware attacks, including ransom payments, negotiator, data restoration, and system recovery.
 2. Legal Fees and Forensic Investigation Coverage. Expenses for legal services, including attorneys’ fees, and forensic analysis to investigate and remediate cyber incidents.
 3. Cyber Crime, Social Engineering, and Reverse Social Engineering Coverage. Losses from fraudulent activities, including funds transfer fraud, phishing, social engineering, and reverse social engineering       schemes.
 4. Business Interruption Coverages. Losses from business interruption, contingent business interruption, system failure business interruption, and voluntary shutdowns necessitated by a cyber incident.
 5. Extra Expense Coverage. Additional costs incurred to minimize or mitigate business interruption.
 6. Breach Notification, Credit Monitoring, and Crisis Management Expenses. Costs for notifying affected parties, providing credit monitoring, and managing public relations or crisis response.
 7. Information Privacy and Network Security Liability. Liability for breaches of personal or sensitive information and network security failures.
 8. Media Liability Coverage. Liability for claims arising from digital content, such as defamation or privacy violations.
 9. Reputational Harm Coverage. Losses due to reputational damage caused by a cyber incident.
 10. Regulatory Fines and Penalties Coverage. Costs for fines, penalties, and legal expenses related to regulatory investigations or actions following a cyber incident.
 11. Data Restoration and System Recovery Costs. Expenses to restore or recreate data and systems damaged or lost due to a cyber incident, beyond ransomware or forensic costs.
 12. Extortion Costs. Expenses related to cyber extortion threats, including but not limited to ransomware.
 13. Cyberterrorism Coverage. Losses from cyber incidents classified as acts of cyberterrorism.
 14. Any other cyber and privacy coverage deemed prudent by a qualified risk manager to address Client’s specific cyber risks.
 
6.3 Client’s Insurance.  The policies shall be endorsed, where allowed by the Client’s insurance carrier naming MID as additional insured and shall contain a provision that such policies are primary and non-contributory to any insurance carried by MID. Client’s insurance policies shall contain an endorsement providing that they may not be cancelled without first providing MID with thirty (30) days written advance notice of cancellation or non-renewal.  Client shall deliver to MID such thirty (30) days written advance notice of cancellation or non-renewal of the Client’s insurance policies.  Upon request, Client shall provide MID with a certificate of insurance and all applicable endorsements for any insurance policies referenced in section 6.2.

7. SERVICE-SPECIFIC TERMS
7.1 All Necessary Rights. If, as part of its Services, MID is required to use, copy or modify any third party hardware, software or other technology provided or licensed to Client, then prior to MID’s performance of such Services, Client will acquire all rights necessary for MID to perform such Services and shall indemnify MID for any claims arising therefrom.

7.2 Independent Contractor.  Nothing in this MCA will be construed to make either Party an employer, employee, agent or partner of the other, and this MCA will not be construed to create rights, express or implied, on behalf of or for the use of any Party other than MID and Client.  All of the Services performed by MID will be performed as an independent contractor. MID will perform such Services under the general direction of Client, but MID will have sole discretion to determine the manner, method and means of performing such Services subject to the provisions of this MCA and any applicable SOW.  Neither Party will have any authority to make any contract in the name of, or otherwise to bind the other Party.  MID will be responsible for, and will pay, all unemployment, social security and other payroll taxes, and all worker’s compensation claims, worker’s compensation insurance premiums and other insurance premiums, with respect to MID and MID’s employees.

7.3 No-Hire. Neither Party will either directly or indirectly solicit, hire, or contract with the other Party’s employee during the term of this Agreement and for a one (1) year period following termination thereof (hereafter the “Non-solicitation Period”). In the event that a Party desires to directly hire any of the other Party’s employees during the Non-solicitation Period, such Party must first seek the other Party’s prior written consent to directly hire its employee and to speak with its employee about the employment opportunity. In the event of a breach of this section, the breaching Party shall pay to the non-breaching Party liquidated damages in an amount equal to 20% of the employee’s annual compensation paid by the former employer during the last 12-month period the former employee was employed by the former employer, which the Parties acknowledge is a reasonable estimate of the damages that would be incurred and not a penalty. Additionally, the non-breaching Party shall be entitled to seek injunctive relief to enforce this provision, in addition to any other remedies available at law or in equity, including recovery of actual damages if liquidated damages are deemed unenforceable.

7.4 User Identification Tools.  MID shall offer a user identification program to Client that will allow MID to verify Client’s identity in telephone conversations. The purpose of the user identification program is to decrease the risk of identity theft, impersonation, theft of information, breach of confidentiality, property loss or damage. If Client declines to participate in the program, it will not be possible for MID to verify Client’s identity in such telephonic conversations.  One such provider of identification services is ID 20/20.  If Client declines to accept the identification program offered by ID 20/20, Client agrees to execute the Release and Waiver Of Liability for Id 20/20 User Identity Verification Tool.  

(a)(Client Initials) Decline any User Identification Tools.

7.5 Offered Assistance.  Client shall not unreasonably reject solutions offered by MID when offered assistance relating to services contained in the Statement of Work.

7.6 Network Passwords. For security purposes, Client agrees that access to the network’s administrative passwords (the “Passwords”) is limited to MID. Should Client request access to the Passwords, Client agrees to sign an agreement which provides for, among other things, the release from any liability for loss or damage to Client’s network, including but not limited to Client’s data or data of Client’s customer or client, arising out of transfer of the Passwords to Client. 

7.7 Disclaimer of Implied Warranties.
(a)  MID MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ITS SERVICES OR GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; AND (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(b)  FOR THE AVOIDANCE OF DOUBT, MID MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) THE FOREGOING LIMITATION OF WARRANTIES SHALL IN NO WAY LIMIT OR IMPAIR ANY WARRANTIES RELATED TO HARDWARE OR SOFTWARE FROM THE SUPPLIER/DEVELOPER/MANUFACTURER OF SUCH HARDWARE OR SOFTWARE, TO THE EXTENT SUCH WARRANTIES ARE TRANSFERRED TO CLIENT.

8. ALTERNATIVE DISPUTE RESOLUTION
8.1 MEDIATION. THE PARTIES SHALL RESOLVE ANY DISPUTE, CONTROVERSY, SUIT, OR CLAIM ARISING OUT OF A MATERIAL BREACH OR RELATING TO THE PRODUCT AND/OR THIS MCA, OR THE BREACH, TERMINATION OR INVALIDITY HEREOF (EACH, A “DISPUTE”), UNDER THE PROVISIONS OF THIS SECTION. THE PROCEDURES SET FORTH IN SECTIONS 8 SHALL BE THE EXCLUSIVE MECHANISM FOR RESOLVING ANY DISPUTE THAT MAY ARISE FROM TIME TO TIME.  THE PARTIES SHALL COOPERATE WITH ONE ANOTHER IN SCHEDULING THE CERTIFIED MEDIATION BY A MEDIATOR ON A COURT APPROVED PANEL OR AS OTHERWISE MUTUALLY SELECTED BY THE PARTIES.  ALL MEDIATION SHALL BE BY VIDEO CONFERENCES, UNLESS OTHERWISE AGREED UPON BY THE PARTIES IN WRITING.  THE MEDIATION SHALL BE CONDUCTED IN THE STATE OF DELAWARE.  IF THE PARTIES CANNOT RESOLVE ANY DISPUTE FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, THE FAILURE OF EITHER PARTY TO AGREE TO ENTER INTO A SETTLEMENT CONFERENCE OR AGREE TO ANY SETTLEMENT PROPOSED BY THE MEDIATOR, EITHER PARTY MAY CHOOSE LITIGATION.

8.2 GOVERNING FORUM AND LAW. THIS MCA IS GOVERNED BYTHE LAWS AND THE COURT OF THE STATE OF DELAWARE, EXCEPT AS TO CONFLICTS OF LAW, WHICH IN ALL CASES SHALL CAUSE TO BE SELECTED THE LAWS OF THE STATE OF DELAWARE. ALL DISPUTES UNDER THIS MCA SHALL BE RESOLVED IN ACCORDANCE WITH SECTION 8.1. IN THE EVENT THAT LITIGATION SHALL OCCUR, THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE, INCLUDING THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND THE PARTIES AGREE TO ACCEPT ALL SERVICE OF PROCESS RELATED TO SUITS AND CLAIMS COMMENCED IN THE STATE AND FEDERAL COURTS OF DELAWARE AND HEREBY WAIVE ANY SERVICE OF PROCESS OR VENUE DEFENSES OTHERWISE AVAILABLE TO IT. THE PARTIES RECOGNIZE THAT THE DELAWARE COURT SYSTEM IS A PREFERRED JURISDICTION FOR BUSINESS LITIGATION DUE TO ITS VAST BUSINESS ACUMEN, SPEED OF ACCESS TO THE ADJUDICATION PROCESS, AND POWER TO ISSUE EQUITABLE RELIEF AND ENSURE CONSISTENCY OF LAW PERTAINING TO EITHER PARTY WHEN DEALING WITH VENDORS, THIRD PARTIES, LICENSEES, LICENSORS, SAAS PROVIDERS AND OFFSITE CLOUD STORAGE FACILITIES WITH THE INHERENT INTERSTATE TRANSFER OF DATA, SERVICES AND GOODS ACROSS STATE LINES.

8.3 COLLECTIONS. PROVIDED HOWEVER, THAT NOTWITHSTAINDG ANYTHING TO THE CONTRARY IN SECTIONS 8.1 AND 8.2, MID, IN ITS SOLE DISCRETION, MAY BEGIN COLLECTIONS ADMINISTRATIVELY OR IN A COURT OF COMPETENT JURISDICTION WITHOUT FIRST PROEEDING TO MEDIATION FOR FAILURE OF CLIENT TO PAY FOR ANY FEES RELATED TO MID’S PROVISIONS OF ANY GOODS AND SERVICES OR LIQUIDATED DAMAGES THAT MAY BE TRIGGERED AND DUE, OR FEES ESCALATED UPON EARLY TERMINATION OR MATERIAL BREACH OF THE MCA BY CLIENT.

9. MISCELLANEOUS/OTHER PROVISIONS
9.1 Severability, No Recovery of Fees.  Should any provision of this MCA be invalid, or unenforceable, the remainder of the provisions will remain in full force and effect.

9.2 Notices. Unless otherwise provided, notices to the Parties will be in writing to the address indicated above and deemed effective when received by U.S. mail by first class, express mail, or by electronic means.

9.3 Verification.  Upon MID’s written request, Client will provide MID with a certification signed by an officer of Client verifying that Product is being used pursuant to the terms of this MCA, including (without limitation) the licensed capacity of the Product.  MID may, at its expense, audit Client’s use of Product to confirm Client’s compliance with this MCA.  Any such audit will be conducted during regular business hours at Client’s facilities and will not unreasonably interfere with Client’s business activities.  If an audit reveals that Client has underpaid Fees to MID, Client will pay such underpaid Fees. If the underpaid Fees exceed five percent (5%) of Fees paid, then Client will also pay MID’s reasonable costs of conducting the audit.

9.4 Assignment.  Client may not assign this MCA or any rights granted in this MCA to any third party, including by Change of Control as defined in section 9.12 herein, except with the prior written consent of MID.  MID may assign, in its sole discretion, all or any portion of this MCA to provide more reasonable and competent equipment, software, or services to Client.
9.5 No Waivers. Failure of a Party to require performance by the other Party under this MCA will not affect the right of such Party to require performance in the future.  A waiver by a Party of any breach of any term of this MCA will not be construed as a waiver of any continuing or succeeding breach.

9.6 Force Majeure. Any delay or failure of either Party to perform any obligation under this MCA caused by federal, state or municipal government orders restricting mobility, setting curfews or requiring shelter in place, labor disputes, acts of terrorism, cyber-espionage or hacking, storms or natural disasters, emergency, diseases, epidemics, pandemics, quarantines, riots, protests, electro-magnetic pulses, biohazards, or other causes beyond the reasonable control of such Party (a “Force Majeure Event”) will not be deemed a breach of this MCA.  In the event of power failure or internet, satellite  or loss of customer or utilities due to a Force Majeure Event or any other event beyond the control of either Party or a third party vendor or of agent of either MID or Client, such Party shall not be liable for the loss of network connectivity, internet connectivity or primary internet service that results in the Client’s inability to access data, third party services, VOIP, or satellite services. Further, neither Party is required to seek a writ of habeas corpus in the event of a government order restricting the other Party’s ability to perform.

9.7. Entire Agreement.  This MCA, together with each SOW, constitutes the entire agreement between Client and MID, and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, concerning this subject matter.  This MCA and each SOW, may be modified only by a mutually- signed writing between Client and MID. 

9.8. Export Controls. Client will cooperate with MID as reasonably necessary to permit MID to comply with the laws and regulations of the United States and all other relevant countries relating to the control of exports (“Export Laws”). Client may not import, export or re-export, directly or indirectly, including via remote access, any part of the Product into or to any country for which a validated license is required for such import, export or re-export under applicable Export Laws without first obtaining such validated license.

9.9  Referencing.  Client agrees that MID, and any Affiliates of MID, may refer to Client as a Client of MID, both internally and in externally-published media, to include (but not be limited to) use of Client name, logo, and the fact of the relationship in promotional materials, although Client may cancel the above-described referencing rights upon thirty (30) days’ prior written notice to MID. Client also agrees to instruct appropriate personnel within its organization that Client has agreed to receive and participate in calls, from time to time, with potential clients of MID who wish to evaluate the technical specifications of Product.

9.10 Litigation Holds.  Any and all discovery, (including electronic data) that Client determines to voluntarily produce or is required or compelled to produce pursuant to process or court order in suits, claims, proceedings or disputes with third parties shall be at Client’s sole expense and in a manner in form and substance compliant with applicable law, process or court order.  MID’s assistance with such discovery and the provision of Products and Services in connection therewith, shall be subject to a separate services agreement (a “Discovery Services Agreement”) mutually agreeable to MID and Client.  In no event shall MID be required under any such Discovery Services Agreement to advance costs, fees or expenses; any such costs, fees, and expenses shall be disbursed by Client in advance, unless otherwise agreed to in writing by the Parties.

9.11 Non-disparagement.  Neither Party shall, directly or indirectly, make or authorize the making of any statement that disparages or creates any material negative inference with respect to the other Party’s respective officers, directors, affiliates, personnel, products or related companies, by words, actions or other communications, or by any omission to speak, act or otherwise communicate.

9.12 Change of Control.  In the event of an acquisition or other change in control of Client, this MCA, all statements of work, and orders either attached hereto as an exhibit or incorporated herein by reference, shall remain in full force and effect. “Change in Control” means, for any person, either (a) any sale, exchange, transfer, conveyance or termination of any equity or ownership interests in Client, or any corporate, limited liability company or partnership reorganization, restructure, merger, acquisition, transfer of assets, consolidation or adjustment with respect to Client, in each case if the persons currently in control of Client would no longer have such control after such event, or (b) any other change in the direct or indirect control of, or the ability or right to control, a majority of the voting shares of any class of securities or ownership rights in Client or in the right or the power to control the election of the board of directors or other managing body of Client, in each case, if the persons currently in control of Client would no longer have such control after such event. If Client fails to notify MID in writing at least sixty (60) days prior to any Change in Control, unless otherwise agreed upon by Client and MID mutually in writing, the balance of payments remaining under the MCA and applicable Statements of Work through the expiration of their respective terms shall be immediately due and payable by Client, and, regardless of whether such notice is given, any and all SOWs either attached hereto as an exhibit or incorporated herein by reference remain in full force and effect.  In addition, Client shall be liable to MID and reimburse MID for the costs of transition, including migration of data and recovery of hardware at MID’s standard hourly rates, as full and complete liquidated damages as set forth in Section 2.

9.13  Litigation. In the event of litigation or threatened litigation between Client and a third party, the scope of this MCA referenced in Section 1.1 shall not include assistance by MID to preserve documents, including electronically stored information (“ESI”), as may be requested by counsel or as ordered by a court of competent jurisdiction.

9.14 Limitation of Liability for Device and Desktop Misuse and Unidentified Devices.  MID, its Affiliates, and the MID Release Parties (as defined in Section 1.4) shall not be liable for any claims, demands, damages, liabilities, costs, or expenses (including attorneys’ fees) brought by or on behalf of Client’s employees, independent contractors, or any third parties arising from or related to the use of any devices, desktops, software, or systems (collectively, “Client Systems”) provided or managed by MID under this MCA, where such use is outside the scope of their employment, independent contractor agreement, or the authorized purposes set forth in this MCA or any applicable SOW. This limitation applies to all claims, whether based on contract, tort, negligence, strict liability, or any other legal theory, and includes, but is not limited to, claims for data breaches, loss of data, property damage, or personal injury resulting from unauthorized or improper use of Client Systems. Additionally, MID, its Affiliates, and the MID Release Parties shall not be liable for any claims, demands, damages, liabilities, costs, or expenses (including attorneys’ fees) arising from or related to devices or systems (collectively, “Unidentified Devices”) not disclosed in writing by Client to MID, whether or not such devices access or interact with Client Systems managed by MID, including but not limited to data breaches or losses caused by Unidentified Devices or for any failure of Unidentified Devices to block or prevent any data breaches or losses. Client shall be solely responsible for identifying and disclosing all devices accessing its network to MID in writing, and MID’s obligations under this MCA extend only to Client Systems identified in the applicable SOW.

9.15  EULA. Portions of the Services may require Client, its customer, or their respective users, to accept the terms of one or more third party end user license agreements (“EULAs”). If the acceptance of a EULA is required to provide the Services to Client, then Client hereby grants MID permission and Client’s authorization as Client’s agent to accept the EULA on Client’s behalf. EULAs may contain service levels, warranties, liability limitations, or other terms that are different than those contained in this Agreement. Client agrees to be bound by the terms of such EULAs as contractually required and will look only to the applicable third party provider for the enforcement of the terms of such EULAs. If, while providing the Services, MID is required to comply with a third party EULA and the third party EULA is modified or amended, MID reserves the right to modify or amend any applicable SOW with Client to ensure its continued compliance with the terms of the third party EULA. Client agrees to defend, hold harmless and indemnify MID against Client violation of any of the terms and conditions included in any subject EULA.

9.16  Use of Artificial Intelligence.  MID expressly disclaims all liability in respect of Client or Client’s customer’s or third party actions taken or not taken based on the use of artificial intelligence technology (“A.I. Technology”), unless MID offers A.I. Technology created, maintained and provided solely by MID as a Service in a Statement of Work.

9.17 Attorneys Fees. Each party shall observe the “American Rule” and bear its own respective costs, expenses, experts, and attorneys’ fees.

9.18 Survival.  Sections 1, 2, 4, 5, 6, 7, 8 and 9 will survive the termination or expiration of this MCA.