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Master Services Agreement

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This agreement was last updated on December 18. 2023

This Master Services Agreement (this “Agreement”) governs all professional services deliveries (as defined in Section 1 below) purchased from PKI Solutions, LLC, a Delaware corporation, and/or its Affiliate(s) (collectively, ”PKI Solutions“). By accepting this agreement or by using the services, Customer acknowledges it has read, understands, and has the authority to enter into this agreement.

1. Definitions. As used in this Agreement, the following terms have the meaning set forth below.

  • “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement.
  • “Customer” means the party entering into this Agreement, Scope of Work, Software License Agreement, and or an Order Form with PKI Solutions.
  • “Fees” means the amounts payable by Customer to PKI Solutions for Services.
  • “Order Form” means the ordering document mutually executed by PKI Solutions and Customer specifying: (i) the Service(s) purchased, (ii) Fees payable by Customer to PKI Solutions, (iii) billing and payment information, and (iv) any other applicable quantity specifications regarding Customer’s purchase of the Services.

2. Confidentiality
“Confidential Information” shall mean information disclosed by one party (the “Disclosing Party” to the other party, (the “Receiving Party.”) that is conspicuously identified as constituting Confidential Information at the time of disclosure using an obvious confidential stamp or legend or using a clear oral representation before an oral or visual disclosure. Information that is disclosed orally or visually or in writing without a confidential stamp or legend, shall constitute Confidential Information only if (i) it would be reasonably apparent to a reasonable person, that such information is of a confidential or proprietary nature; or (ii) the disclosing party, within ten (10) days after such disclosure, delivers a written document or documents describing such information and referencing the place and date of such oral, visual or written disclosure.

Notwithstanding the foregoing, the term “Confidential Information” does not include any information which (i) is or becomes generally available to the public other than as a result of the commission of a breach of this provision, (ii) is known before disclosure or is hereafter furnished by a third party, as a matter of right and without restriction on disclosure; or (iii) is developed independently without use of, or reference to, any Confidential Information so long as the party claiming independent development can provide documentary evidence of such independent development, or (iv) is required to be disclosed pursuant to a judicial, administrative or governmental proceeding provided that the disclosing party has been provided with a reasonable opportunity to seek an appropriate protective order or to waive the provisions of this provision.

Customer and PKI Solutions agree that they shall protect each other’s Confidential Information from unauthorized disclosure and shall use the same degree of care that they use to protect their own like information. Neither Customer nor PKI Solutions shall disclose Confidential Information to third parties without the prior written consent of the other. Neither Customer nor PKI Solutions shall use the other’s Confidential Information for purposes other than that which is necessary for the work engagement specified in an individual Scope of Work.

3. Intellectual Property
All tangible, identifiable work product created by the services (“Deliverables”) is licensed to Customer and not sold. PKI Solutions grants to Customer a non-exclusive license to use the Deliverables specified in an applicable Scope of Work solely for Customer’s own internal use.

4. Limitation of Warranty and Liability
PKI Solutions’ Services and Deliverables are provided as is without any warranty of any kind, express or implied, including without limitation any implied warranties of merchantability, non-infringement, or fitness for a particular purpose. PKI Solutions will not be liable for any lost data or content, lost profits, business interruption, damage, or liability stemming from the delay of services or delivery or for any indirect, special, incidental, or consequential damages (including loss of profits) of any kind even if advised of the possibility of such damages. Regardless of the form of any claim by Customer or any third party, whether based on tort, contract, or otherwise, the maximum remedy available to Customer and the maximum liability of PKI Solutions for all damages, costs, and expenses is limited to the amount of the fees specified in this Scope of Work. The parties acknowledge and agree that this section is an essential element of the agreement and that in its absence, the economic terms of this agreement would be substantially different.

5. Governing Law
The parties hereto agree that the law of the State of Oregon, United States of America shall govern the interpretation and enforcement of this Agreement. Any dispute or claim arising out of or in connection with this Agreement that cannot be resolved per the Dispute Resolution process of this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, shall be settled by arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce (“ICC”) by one arbitrator appointed in accordance with said Rules.

The arbitration shall be administered by the ICC. Either Party may seek interim or provisional relief in any court of competent jurisdiction if necessary to protect the rights or property of that party pending the appointment of the arbitrator or pending the arbitrator’s determination of the merits of the dispute. The arbitration award will be in writing and will specify the factual and legal basis for the award. The arbitration award will be final and binding upon the parties, and any judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.

6. Fees. Customer will pay the Fees as set forth in one or more Scope of Work or Invoice. Unless stated otherwise, all fees are payable in US dollars and due Net 30 from the Invoice date. In the event that Customer is late in making payments, PKI Solutions reserves the right to charge the greater of 1.5% interest per month or the maximum interest permitted by law, and Customer will be liable for all third-party collection costs.

7. Travel and Expenses. If travel or expenses are incurred in the delivery of the service, Customer shall reimburse PKI Solutions for pre-approved, reasonable out-of-pocket expenses incurred by PKI Solutions while performing these Services

8. Taxes. The Fees are stated exclusive of all federal, state, local, and foreign taxes, levies, and assessments of any nature, including value-added, use, or withholding taxes. Customer agrees to bear and be responsible for the payment of all such taxes, levies, and assessments imposed on Customer arising out of this Agreement, excluding any tax based on PKI Solutions’s income, gross receipts, business and occupation tax, and employment-related taxes. If tax withholding is required, Customer will pay the required amount to the relevant governmental authority and produce a withholding tax certificate to PKI Solutions while remitting the residual to PKI Solutions.

9. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

10. Publicity. Customer grants PKI Solutions the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on PKI Solutions’ website and in other promotional materials.

11. Force Majeure. Neither party will be liable for any delay in the performance of its obligations hereunder during, and to the extent caused by, a condition that is beyond a party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, interruption or failure by a third-party hosting or Internet provider or utility provider, governmental actions, or denial of service attacks.

12. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be deemed null and void, and the remaining provisions of this Agreement shall remain in effect.

13. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This Agreement and any mutually executed Order Forms shall apply in lieu of the terms or conditions in any purchase order or other documentation that Customer provides, and all such terms and conditions are null and void and superseded by this Agreement and any mutually executed Order Forms. Where PKI Solutions has provided you with a translation of the English language version of this Agreement or any document referenced in this Agreement, the translation is provided for your convenience only and the English language versions of any such document will control. This Agreement, or any part thereof, may be modified by PKI Solutions at any time, including the addition or deletion of terms, and such modifications, additions, or deletions will be effective immediately upon posting.

14. Assignment. Neither PKI Solutions nor Customer shall assign, transfer, or pledge this Agreement without the prior written consent of the other provided however that either party may assign this Agreement without any consent to any entity that succeeds to all or substantially all of the business or assets or stock of such party, whether by sale, merger, reorganization, consolidation or otherwise provided that with respect to Customer only, all PKI Solutions invoices have been paid in full. The parties’ consent to any assignment shall apply only to the given instance, and shall not be deemed a consent to any subsequent act. Subject to the foregoing, this Agreement inures to the benefit of and is binding upon the successors and assignees of the parties hereto.

15. Relationship between the Parties. Neither Customer nor PKI Solutions is a legal representative, agent, or partner of the other. PKI Solutions is an independent contractor. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes. Each party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.

16. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

17. Dispute Resolution. Any and all claims, disputes, or controversies arising under, out of, or in connection with this Agreement or the breach thereof, (herein “dispute”) shall be submitted to the chief operating officer of each party (or his or her designee) for a good faith attempt to resolve the dispute. The position of each party shall be submitted in writing five days in advance, and the individuals promptly thereafter shall meet at a neutral site. If the parties are unable to reach an agreement within thirty (30) days following such meeting, then any dispute which has not been resolved within said thirty (30) days by good faith negotiations between the parties shall be resolved at the request of either party by final and binding arbitration.

18. Notices. All notices, requests, consents, and other communications required or permitted under this Agreement shall be in writing and shall be sent by registered or certified mail, postage prepaid or transmitted by a reputable overnight carrier, (e.g. FedEx, UPS, etc.), or by telefax if confirmed by such mailing, to Customer and PKI Solutions at their respective addresses. Either party may change its address by written notice to the other.

19. Conflict. In the event of any conflict or inconsistency between a Sales Quote, Proposal, Scope of Work, Software License Agreement, and the Master Services Agreement, the Master Services Agreement prevails.