Master Service Agreement

  1. ENGAGEMENT OF SERVICES

1.1 Work Assignment. Subject to the terms of this  Agreement, ASi Networks will render services  and provide products as described in the  Statement of Work, as well as other services  and products in future Statement(s)/Scope(s) of  Work as amended in additional Schedules,  Exhibits or Amendments to this Agreement. 

1.2 Performance of Services. The Services shall be  provided by ASi Networks or its employees or  contractors. ASi Networks shall maintain sole  discretion over the determination of who will be  assigned to perform the services under the  Agreement, provided that any such employee or  contractor executes a copy of this agreement or  is otherwise bound by the obligations of Sections  4 and 5 herein.

1.3 Term. This Agreement shall become effective on  the date executed by both parties. This  Agreement shall automatically renew each year  on the anniversary of the effective date and  thereafter for an additional period of one year,  unless terminated pursuant to Section 6 below.

1.4 Services. ASi Networks will perform services in  accordance with the attached proposal, rate  schedule, quote, or other future proposals or  statements or scopes of work, which will become  amendments, schedules or exhibits to this  agreement. 

  1. COMPENSATION

2.1 Unless specified otherwise in ASi’s quote and/or  statement of work, all fees and reimbursements  due ASi Networks shall be paid by client net 30  days from ASi’s invoice date. Any challenge or  objection to the invoice must be made, in  writing, within 7 business days of the invoice  date. Client will be deemed to have accepted  the invoice upon the 8th business day from the  invoice date, and no further objections to the  invoice will be permitted or accepted. 

2.2 ASi Networks reserves the right to suspend any  and all new or pending work, product shipments  or other services contemplated by this agreement for non-payment of invoices at any  time in its sole discretion.

2.3 ASi’s fees and reimbursements shall include the  following:

2.3.1 Amount of Compensation. Client shall  pay to ASi Networks consulting and services fees as prescribed in the statements/scopes of work for all  Services reference herein.

2.3.2 Billable Time. If applicable, billable time  will be invoiced in thirty-minute increments with a 2-hour onsite minimum. In general, any time spent by ASi Networks on behalf of Client is to be considered billable time.

2.3.3 Reimbursement of Approved Expenses.  If applicable, Client shall reimburse ASi Networks for reasonable and appropriate  out-of-pocket expenses for travel, lodging, meals and the like incurred by ASi Networks while performing Services  for Client. ASi Networks must obtain pre-approval from Client for these expenses. Additionally, Client shall reimburse ASi Networks for non incidental copying, office expenses, and phone calls made on Client’s behalf. 

This includes travel time and expenses incurred for each trip.

2.3.4 Updating of Agreement. This Agreement  can be updated based on increased workload by ASi Networks and new requirements of the Client. It should be mutually agreed to by the Client and ASi  Networks.

  1. RELATIONSHIP OF PARTIES AND ADDITIONAL OBLIGATIONS

3.1 Nature of Relationship. ASi Networks’  relationship with Client will be that of an  independent contractor and nothing in this  Agreement shall be construed to create a  partnership, joint venture, principal-agent or  employer-employee relationship. ASi Networks  is not the agent of Client and is not authorized  to make any representation, contract or  commitment on behalf of Client unless specifically requested or authorized to do so by  Client.

3.2 Indemnification. Client shall indemnify and hold ASi Networks and its employees and agents  harmless from and against any and all claims,  actions, losses, liabilities or damages that ASi Networks or its employees or agents may incur  or suffer arising as a result of Client’s acts or omissions.

  1. CONFIDENTIAL INFORMATION

4.1 Obligation to Hold Information Confidential.  Each party acknowledges that all information  relating to the business and operations of the  other party which it learns or has learned during  or prior to the term of this Agreement is the  valuable, confidential and proprietary information of the disclosing party.

The  receiving party will maintain all confidential  information disclosed hereunder by the disclosing party in confidence and will not  disclose such information to any third party  other than those of its employees or contractors  with a need to know such information; provided  that each such employee or contractor must  have executed a confidentiality agreement or be  otherwise bound by the obligations of the  receiving party hereunder. The receiving party  will safeguard the confidential information with  the same degree of care which it uses to protect  its own confidential information.

4.2 Exceptions. Section 4.1 will not apply to any  information which (i) is already lawfully in the  receiving party’s possession (unless received  pursuant to a nondisclosure agreement); (ii) is  or becomes generally available to the public  through no fault of the receiving party; (iii) is  disclosed to the receiving party by a third party  who may transfer or disclose such information  without restriction; (iv) is required to be  disclosed by the receiving party as a matter of  law; provided that the receiving party will use all  reasonable efforts to provide the disclosing party  with prior notice of such disclosure and to obtain  a protective order therefor; (v) is disclosed by  the receiving party with the disclosing party’s  approval; and (vi) is independently developed  by the receiving party without any use of  confidential information. In all cases, the receiving party will use all reasonable efforts to  give the disclosing party ten (10) days’ prior  written notice of any disclosure of information  hereunder.

4.3 Injunctive Relief. ASi Networks and Client  acknowledge that any breach of Section 4.1 by a  receiving party will irreparably harm the  disclosing party. Accordingly, on any such  breach, the disclosing party shall be entitled to  promptly seek injunctive relief in addition to any  other remedies which it may have at law or in  equity. The parties will maintain the confidentiality of all confidential and proprietary  information learned hereunder for a period of  three years from the date of termination of this  Agreement.

4.4 Return of Client Property. ASi Networks  acknowledges that Client owns all documents  delivered to ASi Networks by Client, including,  without limitation, manuals, notes, reports,  memoranda, files, computer programs, data,  spreadsheets and shareholder, customer,  employee and contractor lists. On Client’s  request at any time or on termination of this  Agreement for any reason, ASi Networks agrees  to promptly deliver all Client property and all  copies thereof in ASi’s possession to Client  except as Client may, by prior written permission, allow ASi Networks to retain.

  1. TERMINATION – NONINTERFERENCE WITH BUSINESS

5.1 Termination. The Client may terminate this  Agreement upon 30 days’ notice if ASI materially breaches the terms and conditions of  this Agreement and fails to cure the default  within the 30-day period. If the Client terminates this Agreement after ASI’s material  breach, then the Client will be responsible only  for charges for the period before the date of  termination.

The Client may terminate this  Agreement for any reason other than ASI’s  material breach, within the initial 90 days of this  agreement start date. The Client shall provide  ASI with written notice, and the effective date of the termination will be the end of the initial 90- day period. Should the Client elect to terminate  this agreement following the initial 90 days of  this agreement start date, the Client shall pay  an amount equal to 50% of the remaining  monthly service payments due under the terms  of this agreement.

The Client shall provide ASI  with written notice, and the effective date of the  termination will be 30 days from the date  written notice is provided to ASI. ASI may  terminate this Agreement upon 30-days’ notice  for Client’s failure to pay ASI’s invoices for the  Services by the Pay By Date.

In addition to any  other recoveries ASI is entitled to, ASI shall be  entitled to recover from the Client all of the  costs ASI incurs (including court costs and  reasonable attorney’s fees) to collect any  delinquent charges owed by the Client along  with all other damages we incur as a result of  the Client’s breach of this Agreement, including  without limitation past due recurring charges,  any damage to our equipment and any amounts  we have to pay to third parties because of  violations by the Client.

5.2 Limitation of Remedies. IN NO EVENT,  REGARDLESS OF THEORY, SHALL ASI BE LIABLE  FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT  OR PUNITIVE DAMAGES OF ANY KIND, OR LOSS  OF REVENUE, LOSS OF BUSINESS, LOSS OF  DATA OR ANY OTHER FINANCIAL LOSS ARISING  OUT OF OR IN CONNECTION WITH SERVICES  PROVIDED UNDER THIS AGREEMENT. THIS  DISCLAIMER OF LIABILITY WILL NOT BE  AFFECTED IF ANY REMEDY PROVIDED HEREIN  FAILS OF ITS ESSENTIAL PURPOSE. ALL  SERVICES WILL BE PROVIDED ON A BEST  EFFORT BASIS.

5.3 Non-Solicitation. Client acknowledges that it  has engaged ASi Networks to render services  hereunder for, among other reasons, ASi’s  reputation in the business community and its  consistent provision of high-quality service,  whether directly, by subcontract or otherwise.  Accordingly, in consideration of ASi’s provision  of services hereunder, Client shall not hire or  directly use the independent contractor services  of any person subcontracted by ASi Networks to  perform services under this Agreement (an “ASi  Networks Contractor”) for a period of twenty four calendar months after the termination of  this Agreement without ASi’s prior written  consent. 

  1. GENERAL PROVISIONS

6.1 Governing Law. This Agreement will be  governed and construed in accordance with the  laws of the State of California.

6.2 Entire Agreement. This Agreement, together  with all exhibits referred to herein, sets forth the  entire understanding and agreement of the  parties as to the subject matter of this 

Agreement. It may not be changed orally but  only by a written amendment signed by both parties. The terms of this Agreement will  govern all projects and services undertaken by  ASi Networks for Client.

6.3 Severability and Waiver. If any provision of this  Agreement is held to be invalid or unenforceable  for any reason, the remaining provisions will  continue in full force without being impaired or invalidated in any way. Client and ASi Networks  agree to replace any invalid provision with a  valid provision which most closely approximates  the intent and economic effect of the invalid  provision. The waiver by Client of a breach of  any provision of this Agreement by ASi Networks  will not operate or be interpreted as a waiver of  any other or subsequent breach by ASi Networks.

6.4 Successors and Assigns. Neither this Agreement  nor any of the rights or obligations of either  party hereunder may be assigned or transferred  without the other party’s prior written consent.  This Agreement will be binding upon and inure  to the benefit of Client’s and ASi’s successors  and assigns. 

6.5 Notices. Except as otherwise provided in this  Agreement, notices required to be given  pursuant to this Agreement shall be effective  when received and shall be sufficient if given in  writing, hand-delivered, sent by email with  confirmation of receipt, or sent by courier  service and addressed to the address first set  forth above. The parties hereto may change the  name and address of the person to whom all  notices or other documents required under this  Agreement must be sent at any time by giving  written notice to the other party.

6.6 Arbitration. Any dispute between the parties as  to any matter arising out of this Agreement shall  be submitted to final and binding judgment of an  arbitrator. The arbitration shall be scheduled  within sixty (60) days following the demand for  arbitration, and the arbitration shall occur no  more than ninety (90) days thereafter.

The  arbitrator shall be selected in accordance with  the rules of the American Arbitration Association. If such service is not available, the  dispute shall be submitted to arbitration in  accordance with the laws of California. The  arbitration award shall be final, and judgment  may be entered in any court having jurisdiction  thereof.