Master Services Agreement

1.1 SOW. PROTEK shall provide the Services set forth in each SOW in accordance with the descriptions, quantities, delivery dates, and specifications set forth in such SOW. Neither party will have any obligation with respect to any SOW until it is executed by both parties.

1.2 Third Party Products. Except as expressly set forth in any SOW, PROTEK is not responsible for the selection or procurement of any hardware, devices, equipment, parts and/or products required to perform the Services (“Third Party Products”). Third Party Products may include a warranty provided by the manufacturer of such Third Party Products and may be subject to additional terms. Client acknowledges and agrees that PROTEK is not liable for the performance of any Third Party Products, such Third Party Products may impact the performance of the Services provided hereunder, and PROTEK shall have no liability related thereto.

1.3 Warranties. PROTEK represents and warrants that all Services will be performed in a professional, workmanlike manner, in accordance with the specifications set forth in the SOW. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING ANY SOWS HERETO), PRO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE SERVICES AND ANY MATERIALS ARE PROVIDED ON AN “AS-IS” BASIS. Except as expressly set forth in this Agreement (including any SOWs hereto), Client’s sole and exclusive remedy and PROTEK’s sole and exclusive liability for any breach of the warranty set forth in this Section shall be for PROTEK to re-perform the Services at no cost to Client.

1.4 Data Security. Client acknowledges and agrees that PROTEK may utilize third-party providers to provide various services, including but not limited to cloud-based functions such as the hosting and storage of Client data. The protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality and integrity of Client’s data. Client is responsible for taking appropriate steps to maintain security, protection and backup of any Client data.

2.1 General. Client shall: (a) provide a suitable operating environment (including without limitation adequate electrical power supply), a safe workplace, and reasonable access to any devices to be serviced, for PROTEK’s Representatives (as defined in Section 5.2) providing on-site Services; (b) ensure, unless specifically requested by PROTEK, that no person other than PROTEK and its authorized Representatives interferes with any part of the Services; (c) provide stable Internet access for any remote Services; (d) ensure that all third-party software related to the Services has been properly licensed; (e) provide appropriate back-up for all Client data; (f) provide to PROTEK such information as PROTEK reasonably requires in order to perform the Services; and (g) perform such other duties and tasks as may be reasonably required by PROTEK from time to time to permit PROTEK to perform its duties, tasks and obligations under this Agreement.

2.2 Use of the Services. Client and its users will abide by the terms and conditions set forth herein. Client shall be solely responsible for Client’s and its users’ compliance with all applicable laws and governmental regulations affecting the operation of the business of Client and use of the Services.

2.3 Cooperation. At all times during the term of this Agreement, Client and its personnel will behave in a professional and workmanlike manner, shall promptly and fully cooperate with PROTEK, and shall promptly make competent, qualified personnel available to assist and answer questions of PROTEK, as necessary and appropriate and as reasonably requested by PROTEK. Client shall make available to PROTEK, free of charge, all information, facilities and services reasonably required by PROTEK to enable it to perform the Services. PROTEK shall bear no liability or otherwise be responsible for delays in the provision of the Services or any portion thereof caused by Client’s failure to timely provide information requested by PROTEK.

3.1 Fees. In consideration of the provision of the Services described herein and/or in any SOW, Client agrees to pay PROTEK the fees set forth in the duly executed SOW. All fees due and payable by Client to PROTEK must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law and shall be non-refundable unless otherwise determined by PROTEK in its sole and absolute discretion. The fees reflected in such SOW(s) shall be in U.S. dollars. Notwithstanding anything herein to the contrary, (i) PROTEK may change its rates from time to time upon thirty (30) days’ notice to Client, and/or (ii) in the event third party providers increase their charges for Third Party Products, PROTEK shall pass on such increase in charges to Client, and Client shall pay such charges in accordance with the terms and conditions of this Agreement. Any services provided outside of the scope of Services set forth herein and/or in the applicable SOW shall be provided at PROTEK’s then-current rate for such out-of-scope services unless otherwise agreed in a change order or amendment to the applicable SOW, and shall be due and payable in accordance with the terms and conditions set forth herein

3.2 Taxes; Expenses. All fees due and payable under this Agreement are exclusive of taxes, which will be added at the prevailing rate from time to time. Third-Party Product fees, reasonable travel and out-of-pocket expenses (such as parking fees) are not included in the fees set forth in the relevant SOW and will be invoiced separately.

3.3 Payment Account; Invoices. If Client designates a payment account, all fees, taxes and expenses shall be deducted from such payment account. Client authorizes PROTEK to automatically charge the payment account for the fees (plus applicable taxes and expenses) agreed to in an SOW without any further authorization from Client. In the event Client elects to pay with a credit card, Client’s credit card will be debited in the manner authorized for the amount of the payment to PROTEK, plus a 3% credit card fee. If no payment account or credit card has been designated, PROTEK will provide Client with an invoice. Unless otherwise set forth in the applicable SOW, such invoice shall be due and payable by Client within fourteen (14) days from the invoice date. Invoices are deemed accepted and approved unless disputed by Client in good faith in within fourteen (14) days from the invoice date.

3.4 Late Payments. In the event payment is not made by the date such payment is due: (a) PROTEK may, upon 30 days’ written notice to Client, suspend Services until payment is made in full, without incurring any liability; and (b) PROTEK may apply a late payment fee of five percent (5%) per month to such late payment, or the highest rate permitted by law, whichever is less.

4.1 Term. This Agreement is effective as of the Effective Date and will continue until terminated in accordance with this Article 4. The Services under each SOW will commence and terminate on the dates set forth in the applicable SOW.

4.2 Termination for Default. If a party materially breaches this Agreement and/or any SOW (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the relevant SOW upon written notice to the Defaulting Party. Termination of an SOW and/or this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.

4.3 Termination for Convenience. PROTEK may terminate this Agreement and/or any SOW at any time upon thirty (30) days’ advance written notice to Client.

4.4 Effect of Termination.

4.4.1 In the event PROTEK terminates this Agreement or any SOW pursuant to Section 4.3 (Termination for Convenience), or if Client terminates this Agreement or any SOW pursuant to Section 4.2 (Termination for Breach), then upon termination, Client will pay all outstanding fees, charges and expenses incurred through the effective date of termination.

4.4.2 In the event PROTEK terminates this Agreement or any SOW pursuant to Section 4.2 (Termination for Breach), or if Client terminates this Agreement or any SOW for any reason other than a material breach by PROTEK, then Client will be responsible for all fees, charges and expenses payable to PROTEK under this Agreement and/or the applicable SOW as if the Agreement and/or SOW had not been terminated.

4.4.3 In the event of any termination under this Agreement and/or any SOW, upon termination (i) PROTEK will cease providing Services, and (ii) Client will cease using any Third Party Products not owned by Client and promptly surrender the Third Party Products to PROTEK in good order and condition as originally delivered, normal wear and tear excepted. In addition, upon termination, PROTEK may remove the Third Party Products (other than Third Party Products to which title has passed to Client) and Client grants PROTEK a license to enter all locations on a reasonable notice for that purpose. Notwithstanding anything to the contrary contained herein, PROTEK shall not be liable for any loss, cost, damage or expense whatsoever resulting from the cessation of PROTEK’s Services.

5.1 Confidential Information. “Confidential Information” includes all information related to the business of one party (“Disclosing Party”) and any of its affiliates, clients and other third parties, to which the other party (“Receiving Party”) has access, whether in oral, written, graphic or machine-readable form, in the course of or in connection with the Services, including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, personally identifiable customer or employee information, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement. The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”

5.2 Representatives. The Receiving Party will keep the Confidential Information confidential, and may disclose the Confidential Information to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written permission and without such third party having a contractual obligation (consistent with this Article 5) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.

5.3 Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party prior to its receipt from the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.

5.4 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.

5.5 Disclosure. In the event that the Receiving Party learns or has reason to believe that Confidential Information has been disclosed or accessed by an unauthorized party, the Receiving Party will immediately give notice of such event to the Disclosing Party.

5.6 Disposition of Confidential Information on Termination. Upon termination of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation, and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed.

5.7 Equitable Relief. Each party acknowledges that a breach of this Article 5 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.

6.1 Intellectual Property. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights.

6.2 PROTEK Trademarks; Ownership.

6.2.1 PROTEK retains all right, title and interest in and to all trademarks, service marks, and trade names owned or licensed by PROTEK, and no right, title or interest in or to PROTEK’s trademarks, service marks, or trade names is granted to Client hereunder. All uses of PROTEK’s trademarks, service marks, or trade names shall inure solely to the benefit of PROTEK or its licensors.

6.2.2 Unless otherwise set forth in an SOW, PROTEK retains all right, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials provided or made available to Client by PROTEK hereunder. Except for the rights expressly granted to Client in this Agreement, all such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all IP rights pertaining thereto, are and shall remain the property of PROTEK and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Client, Client hereby assigns such ownership rights to PROTEK).

6.3 Client Content. “Client Content” means any elements of text, graphics, images, photos, designs, artwork, logos, trademarks, service marks, data, software, and other information, materials and/or content which Client provides in connection with the Services. Client Content excludes any content available in the public domain, and any content owned or licensed by PROTEK, whether in connection with providing Services or otherwise. Client hereby grants PROTEK a worldwide, non-exclusive right and license to reproduce, distribute and display the Client Content as necessary to provide the Services. In addition, PROTEK may, upon notice to Client, use Client’s names, trademarks, service marks, logos or symbols on any website, in any press release, in any marketing or promotional materials. Client represents to PROTEK and guarantees that all Client Content is owned by Client, or that Client has permission from the rightful owner to use each of the elements of Client Content; and that Client has all rights necessary for PROTEK to use the Client Content in connection with the Services. Client and its licensors retain title, all ownership rights, and all IP rights, in and to the Client Content, and reserve all rights not expressly granted to PROTEK hereunder. PROTEK has no knowledge of the value of Client’s Content or of the financial or other consequences of the Client’s Content being lost or not properly processed and/or transmitted, and it is Client’s responsibility to store and back-up at all relevant times and whenever possible and keep a permanent record of such Client Content processed and/or transmitted via any network.

PROTEK’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SOW SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CLIENT TO PROTEK UNDER THE APPLICABLE SOW THAT GAVE RISE TO SUCH CLAIM. IN NO EVENT WILL PROTEK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST DATA), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.1 Client Indemnification. Client shall indemnify, defend and hold harmless PROTEK and its Representatives from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorneys’ fees, arising out of or relating to (a) Client’s or its Representatives’ acts and/or omissions; (b) Client’s or its Representatives’ breach of any of the terms of this Agreement or any SOW; (c) any allegation that PROTEK’s use of the Client Content constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party; and/or (d) Client’s failure to comply with applicable laws.

8.2 PROTEK Indemnification. PROTEK will indemnify, defend and hold harmless Client and its Representatives from and against any claim that Client’s use of PROTEK’s Services (excluding any Third Party Products) constitutes an infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party.

9.1 Disputes. If the parties are unable to resolve any claims related to this Agreement through good faith discussions, Client and/or PROTEK agree to resolve any claims related to this Agreement through final and binding arbitration, except as set forth under ‘Exceptions to Agreement to Arbitrate’ section below and/or Client’s ability to opt out as described below.

9.2 Opt-Out. Client can opt-out and decline this agreement to arbitrate by contacting PROTEK within thirty (30) days from the date that Client first became subject to this arbitration provision (i.e., the date Client initially accepted this Agreement). Client must write to PROTEK at PROTEK, Attn: Opt-Out Arbitration, 5019 W. Lawrence Ave., Chicago, IL, 60630. If Client opts out, neither Client nor PROTEK can require the other to participate in an arbitration proceeding.

9.3 Arbitration Procedures. Except as regarding any action seeking equitable relief, including without limitation for the purpose of protecting any PROTEK Confidential Information and/or IP rights, or except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if Client opts out of arbitration as described above, any and all controversies and/or claims arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be held in Cook County, Illinois or any other location the parties agree to. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes hereunder shall be treated by the parties, their representatives, and the arbitrator as proprietary business information. Such information shall not be disclosed by any party or their respective representatives without the prior written authorization of the party furnishing such information. Such information shall not be disclosed by the arbitrator without the prior written authorization of all parties. The prevailing party of any such arbitration shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees and any arbitration costs and fees. Judgment upon the award returned by the arbitrator may be entered in any court having jurisdiction over the parties or their assets or application of enforcement, as the case may be. Any award by the arbitrator shall be the sole and exclusive remedy of the parties. The parties hereby waive all rights to judicial review of the arbitrator’s decision and any award contained therein.

9.4 Exceptions to Agreement to Arbitrate. Notwithstanding anything herein to the contrary, the parties each agree that the following claims are exceptions to this arbitration clause and will be brought in a judicial proceeding in a court of competent jurisdiction (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack), or (iii) any claim that qualifies in small claims court in Cook County, Illinois.

9.5 Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to a claim, the parties agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Cook County, Illinois. Both parties consent to the foregoing venue and jurisdiction. The prevailing party of any such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.

10.1 Force Majeure. Neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation, fire, flood, earthquake, elements of nature, epidemics, pandemics, acts of God, communications or computer (software and hardware) services, prevention by restrictions of a legal or regulatory nature from supplying the Services, acts of war, terrorism, strikes (or other labor unrest), riots, civil disorders or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. This Section does not apply to any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.

10.2 Independent Contractor. PROTEK is an independent contractor and will determine the method, details and means of performing the Services. No party shall have the authority to bind, represent or commit the other. Nothing in this Agreement shall be deemed or construed to create a joint venture or agency relationship between the parties for any purpose.

10.3 Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Subject to Article 9, any action related to or arising from this Agreement shall take place exclusively in Chicago, Illinois and the parties hereby submit to such venue.

10.4 Non-Solicitation. During the term of this Agreement and for a period of one year following the effective date of termination, Client shall not, without PROTEK’s prior written consent, directly or indirectly (a) solicit or encourage any PROTEK Representative to leave the employment or other service of PROTEK, or (b) hire, on behalf of the Client or any other person or entity, any PROTEK Representative who performed Services for Client or with whom Client became acquainted during the term of the Agreement. Notwithstanding the foregoing, Client may hire PRO’s Representatives who (i) respond to public advertisements, or (ii) have not provided Services to Client under for a period of one year or more. In the event of a breach of this Section, PROTEK’s sole and exclusive liability and Client’s sole and exclusive remedy shall be for Client to pay PRO one hundred percent (100%) of the Representative’s then-current annual salary and/or engagement fee.

10.5 Assignment. Client may not assign this Agreement, by Change of Control or otherwise, without the prior written consent of PROTEK. “Change of Control” means the direct or indirect change in the ownership, operation or control of Client, whether resulting from merger, acquisition (including an acquisition of substantially all of the assets of Client), consolidation or otherwise. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.

10.6 Notices. All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.

10.7 Miscellaneous. No waiver of any of the terms of this Agreement or any SOW will be valid unless in writing and designated as such. Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. Except as otherwise set forth herein, PROTEK may, at any time, for any reason, in its sole and absolute discretion, make changes to this Agreement (including any policy or terms incorporated herein) upon thirty (30) days’ prior written notice to Client. PROTEK will provide notice of such changes by posting the updated Agreement and PROTEK will change the “last updated” date listed above. Client’s continued use of the Services following such notice will mean that Client accepts and agrees to the changes to this Agreement. Any provision of this Agreement which, by its nature, should survive termination of this Agreement, will survive any such termination of this Agreement. This Agreement, including all SOWs and referenced documents constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.