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HomeMy WebLinkAboutExhibit Master AgreementZETEKY MASTER SERVICES AGREEMENT 1. PARTIES AND EFFECTIVE DATE 1.1. Parties (each a "Parte" and collectively, the `Parties"): Zetekv, Inc. Citv of Miami ("Zetekv") ("Client") Attn: John W. Dalton Attn: Address: 4375 Lindber-h Drive Address: Addison, Texas 75001 Telephone: 281-6t0-3966 Telephone: Fax: Fax: 1.2. Effective Date: [ ], 2017 ZETEKY SERVICES AND RESPO`rSIBILITIES. 2.1, Services. Subject to the terms and conditions of this Master Services Aareement (the "Master Agreement"), Zeteky will provide the services described in Schedule A to this Agreement (which together with the provision of the Software, as defined below, as applicable and pursuant to the terms of this Agreement. and the Systems, as defined below, as applicable and pursuant to the ten-rs of this Aggreement, are collectively referred to as the "Services") in accordance with the terms and conditions set forth herein and those set forth on Schedule A. which is attached hereto and incorporated herein by reference and any other schedules, attachments, exhibits, addenda, amendments or riders as may subsequently be agreed to and signed by the Parties and attached to this Agreement from time to time (collectively, this "Agreement"). The Services are in connection with the use by the Client of Zeteky's web based dashboard (the "App"), as described in greater detail on the Statement of Work attached as Schedule A (the "Statement of Work" or "SOW"). Each Party will provide the other with reasonable cooperation, assistance, information and access as may be lawful and necessary to initiate Client's and its registered users' use of the Services (such as, for example, developing any content, user interfaces or appearance specific to the Services contracted for by Client). The users of the App are defined herein as the "Users". 2.2. License. Subject to the terms and conditions of this Agreement and the payment of all fees due as set forth in this Agreement, during the Tenn, Zeteky grants to Client and its Users a limited, revocable (only upon termination of this Agreement as provided herein), non-sublicensable and non -transferable license to use the App, Software (as defined below) and System (as defined below), not for Master Services Agreement Page 1 of 22 resale to or reuse by or on behalf of any third party other than as specifically permitted by this Agreement (the "License"). 2.3, Technical Supports Training. Zeteky will provide the Services, in training and technical support services in accordance with the requirements set forth in this Agreement, including Schedule A. if any. 2 A. Limitations. Zeteky will not be responsible for, nor liable hereunder in connection with, any failure in the Services to the extent such failure results from: (a) the performance and availability of any Client Materials (as defined in Section 3_3) or other content provided by or for Client by parties other than Zetekv; (b) Client's negligence or willful acts or omissions; (c) third party telecommunications or equipment failures outside of Zeteky's facilities, except for those facilities that are owned, operated or maintained by Zeteky or by a third party on behalf of Zeteky and are necessary for Zeteky to deliver the Services; and (d) downtime resulting from scheduled maintenance. Further, except for breaches of Zeteky's representation and warranty set forth in Section 8.1 fg), Zeteky will not be responsible for, or liable hereunder, in connection with, any failure in the Services due to or resulting from unauthorized access, breach of firewalls or other hacking by third parties of the Zeteky system (collectively, the "SN -stern", which term shall include, as applicable. Zeteky's personnel, procedures, facilities and training methods) any and all of which is not caused or enabled by Zeteky's acts or omissions. 2.5. Data. As between Zeteky and Client, both Client and Zeteky will own all User names, login lDs, passwords, data and other User registration or other inttmnation provided by Client or provided by or collected from Users in connection with the Services, including any identification numbers or other information provided or used by Zeteky to identify or distinguish between Users (collect)vely. "account Information"). Unless otherwise agreed to by Client in advance and in writing, Zeteky will not disclose to third parties or use any Account Information except as necessary to perforrn its obligations under this Agreement or to comply with any legal or regulatory requirement. provided that, to the extent not otherwise prohibited by law, Zeteky will provide Client with prompt notice of any such legal or regulatory requirement in order that Client may comply with the provisions of 47 U.S.C.A § 551, as applicable, and seek a protective order with respect to such Account Information, to the extent possible. To avoid uncertainty, each Party hereby acknowledges and agrees that, subject at all times to Section 5.2, Zeteky may disclose aggregate information (not personally identifiable).. including click -stream data of Users and Service usage and performance derived from Account Information to investors, shareholders, potential investors, and Zeteky customers for one or more of the following purposes: (i) the benefit of Client, (ii) the purpose of marketing Zeteky's products and services, and (iii) purpose of discussions about Zeteky with the investor community, but only to the extent ag`re,ated with similar data derived from Zeteky's other customers; provided that in anv case, no such information will identify Client or any User or contain any Client -specific or User -specific information unless otherwise required by Master Services Agreement Page 2of2? applicable lay. Notwithstanding the above, nothing, in this Agreement or elsewhere will prohibit Zeteky's ownership and use of ideas, concepts. know-how, methods. models, data, teehniques, skill, knowledge and experience that were used, developed or -aincd in connection with this Agreement, the App, or the use of the App by the Client or its Users (collectively the "Residuals"}. Zeteky shall maintain and own all rights wxhatsoe%,c;r to the Residuals, which ri,llts shall survive the termination of this A4,reement. Additionally, Client agrees that Zeteky and its affiliates may collect and use information, Data and technical information, including, but not limited to usage statistics, crashreports, help requests, patters, data and su�wgestions based on user actions, gathered as part of the operation of the App, for statistical purposes, to improve its products and, or for general use information. Zeteky will provide Client with all Account Information in a format chosen by Client within forty-eight (48) hours of receipt of written notice from Client requesting the same. This Section 2.5 will survive the expiration or earlier termination of this Agreement. 2.6. Statements of 'Work. 2.6.1. Statements of Work (a) shall contain, at a minimum, a description of the Services to be performed by Zeteky: and (b) must be signed by the Parties. 2.6.2. If Client wishes to chan,,e any elements of the Services under a Statement of Work, Client shall notify Zeteky and request changes in the scope of Services or pricing by submitting a project change request ("Project Change Request"), which shall contain such information as may be requested by Zeteky from time to tirne. Client shall not be obligated to pay for any change to the Services and Zeteky shall not be obligated to perform any char -e to the Services in the absence of a Project Change Request for the applicable Statement of tiG'ork, which must sigmed by the Parties. ?.T. Subcontractors, Zeteky may perform the Services through the use of subcontractors, including providers of hardware and software, without the prior written consent of Client. Zeteky shall Super -vise the activities and performance of each subcontractor and shall be jointly and severally liable with each such subcontractor for any act or failure to act by such approved subcontractor, subject to the terms and conditions of this Agreement, including the disclaimer of warranties and limitations on liability set forth herein. 3, CLIENT RESPONSIBILITIES. 3.1. Client Support; Zeteky Status. Client acknowledges that the continuing performance of certain Services may depend on Client's reasonable cooperation with, and provision of reasonable assistance, intonnation and access to Zeteky. Zeteky will not be liable for any delay in its perfonnance to the extent caused by Client's failure to timely provide any of the foregoing reasonably Master Services Agreement Page 3 of 22 requested by Zeteky. The Parties' representatives (designated in Section 1) are responsible for facilitating communication between Zeteky and Client regardin�� all technical and business matters. 3?. Regulations. Client will use the Services only in compliance with all applicable federal, state and local laws, rules and regulations (including laws related to "spamming," privacy, obscenity and defamation) (collectively, the "Re„ ulations"). Client acknowledges and agrees that each User's access to the Services may be subject to such User's acceptance of Client's "end user agreement" or "terms of use", or similar restrictions, regard ng the Service and continuing compliance with the Regulations, and Client will maintain terms of use and conditions that will purport to govern the use of the App by all Users. Zeteky has no obligation to confirm the compliance with this Section 3.2 of the Client Materials or other content provided by or for Client. Zeteky may monitor the Client Materials, however, and may remove any content or disable any use of the Services that Zeteky, in good faith and with a reasonable basis, determines to be in violation of any Regulation, provided that Zeteky provides Client with at least 24 hours prior notice of such violating content so that Client will have the opportunity to review and make any necessary change to any such offending content. 3.3. Materials and Equipment. Client will provide certain materials, tradenames, branding. descriptions and other information (collectively, "Client Materials") to Zeteky as is reasonably necessary for Zeteky to perform the Sen -ices. Client represents and warrants that it has the right to provide all Client Materials, and that use of such Client Materials in accordance with this Agreement will not violate Client's obligations under any other agrreement. the Regulations and any privacy policies covering, any Client Materials. Client will be responsible for the maintenance and integrity and security of its equipment (physical, electronic and otherwise), Account Information, passwords, Client Materials and other data. provided, however, that Zeteky will be responsible for the security thereof in accordance with this Agrc ement when such equipment, materials, information and data are under its control. 4. CLIENT LICENSE; ZETEKY PROPRIETARY RIGHTS. 4.1. License Grant. Client hereby grants to Zeteky during the Tenn, a nonexclusive. worldwide and royalty -free right and license to use, reproduce, modify, distribute, perform and display the Client Materials and Client's Marks (as defined herein) solely in connection with the provision by Zeteky of the Services hereunder and in accordance with any use guidelines therefor as Client may provide from time to time. 4.2. No Implied Licenses. Except for the limited rights and licenses expressed hereunder, each Party will retain all right, title and interest in and to its logos and product and service names, which will at all tines remain trademarks of such Party- (the "Alarks"), technology and other intellectual property (including in the case of Zeteky, the Services, the App and the softivare and applications used by Master Services Agreement Page 4 of 22 Zeteky to provide the Services (including= the use of the App)(collectively, the "Soft1ware"}). Neither Party will take any action inconsistent with such ownership. Each Party acknowledges that, as between the Parties. Client's Marks and Zeteky's `darks are the exclusive property of the respective Party or one or more entities affiliated with such Party, and neither Party has, nor will acquire, any proprietary rights thereto by reason of tills Ay-reement or otherwise. Client will not use Zeteky's Marks, Software or Services in any manner except as specifically provided herein. Zeteky will not use Client's harks in any manner, except as specifically provided herein. No title to or ownership of any Client Marks or Client Materials or any part thereof is hereby transferred to Zeteky or any third party, nor will any rights therein accrue to Zeteky or any third party as a result of the performance under this A- reement by either Party. 4.3. Restrictions. Except as specifically pennitted in this Agreement, Client will not, directly or indirectly: (a) use any of Zeteky's Proprietary Information (as such teen is defined in Section 5.1) to create any softuvare that is similar to the Software or to provide any service that is similar to the Service: (b) decompile, disassemble, reverse engineer or use any similar means to attempt to discover the source code of the Software or the trade; secrets therein, or otherwise circumvent any technolooical measure that controls access to the Software: (c) encumber, transfer, rent. lease, or time-share the Software, or use the Software or Services in any arrangement or otherwise for the benefit of any third party, except for Users: (d) access, copy, distribute, manufacture, adapt, create derivative works of or otherwise modify the Software-, (e) remove any proprietary notices; or (t) knowingly pen -nit any third party to engage in any of the acts proscribed in clauses (a) through (e) of this Section 4.3. 5. CONFIDENTIALITY. 5.1. Proprietary Information. Each Party agrees that neither it nor its representatives will disclose to any third party during the Tenn and for a period of not less than five (5) years after the termination or expiration of this Agreement. the Proprietary Information (as defined herein) of the other and each of the Parties desires to protect the: confidentiality of its own Proprietary Information, provided that the prohibition against disclosure by Zeteky of any personally identifiable information attributable to Client's Users (except as required by or otherwise permitted under applicable law), will remain in effect in perpetuity subject only to applicable law. For purposes of this Agreement, "Proprietary Information" means (i) Zeteky's training methods, training videos, marketing campaigns. all videos, posts, materials, and other information produced in coinfection with the Services, procedures and methods, trade secrets and proprietary business methods, softwvare and source code, and (ii) any information disclosed by either Party in the followving forms: (a) information originally disclosed in written, graphic, machine- readable or anv other tangible medium, to the extent marked with a "confidential," "praprietar>" or similar leoend, or (b) information disclosed orally or visually, to the extent identified as Proprietary Information at the time of such original disclosure. Notwithstanding the foregoing, "Proprietary Information" shall also Master Services Agreement Page 5 of 22 include information disclosed in written form. orally, electronically or in any other tangible or intangible form, whether or not identified or marked as "Confidential" or "Proprietary- or confinmed in a written summary by the disclosing, Party, if receiving Party knows or reasonably should knows that the information relates to and is within the scope of Proprietary Information disclosed in accordance with the foregoing. For purposes hereof and notwithstanding anything in this Agreement to the contrary, and Without limiting Zeteky's right to disclose aggregate data and other limited information under Section ?.S, any and all Account Information or other User information will be deemed Proprietary Information of Client whether or not marked as such, or identified as such. prior to disclosure, provided that both Client and Zeteky shall be deemed to own the Account Information during the Term of this Agreement. 5.2. Exceptions. The receivinI., Party will have no obligation to preserve the confidentiality of Proprietary Information to the limited extent that it: i.11. was previously and independently known to the receiving Party free of any obli4gation to keep it confidential; .?.?. is or becomes publicly available by means other- than unauthorized or illegal disclosure; 5.21.3, is developed by or on behalf of the receiving Party. independently of any Proprietary Information furnished under this Agreement, or 5.2.4. is received from a third party- whose disclosure thereof does not violate any confidentiality obligation. The Partv claiming that any of the foregoing exceptions applies will have the burden of proving such applicability. Any issue that the receiving Party lnay have as to the confidentiality expectations of the disclosing Party regarding particular information will be submitted to the disclosing Party prior to the disclosure under consideration for determination. 53. Non -Disclosure. Each Party will refrain from copying Proprietary Information, in whole or in part, except as required in furtherance of the uses permitted by this Agreement and subject to the accurate reproduction of all proprietary legends and notices located in the ori{ginals, and will limit dissemination of Proprietary Information to employees and aygents of such Party, or of such Party's affiliates. who (i) have a need to know the Proprietary Information in furtherance Of the uses permitted by this Agreement and (ii) are subject to confidentiality obligations with respect thereto that are no less stringent than those required of the Parties hereunder. Except for the specific rights granted by this Agreement, neither Party will use or disclose any Proprietary Information of the other Party without its written consent and will ensure that its systems and network are secure in such a manner as to pre% ent any such disclosure in accordance with this Section. The Master Services Agn-eement Page 6 of ?? receiving Party will treat the Proprietary Infonnation of the other Party with the same degree of confidentiality with which it treats its own Proprietary Infonnation. and, in any event. the receiving Party will use a commercially reasonable de,ree of care to protect the Proprietary Information of the other Party. Each Party will bear the responsibility for any breach of confidentiality by its employees. agents. auditors or contractors. The terns and conditions of this Agreement will be kept confidential, except for (a) disclosure as may be required by lawn, regulation, court or government a�aency of competent Jurisdiction (redacted to the greatest extent possible), or (b) disclosure to each Party's respective officers, directors, employees and attorneys, in their capacity as such, provided that, such persons will be subject to this Section 5.2. 5.4. Required Disclosure. Nothing herein will prevent a receiving Party from disclosing all or part of the other's Proprietary Infonnation as necessary pursuant to the lawful requirement of governmental agency or when disclosure is required by operation of law, provided, that prior to any such disclosure, (a) the receiving Part`- uses reasonable efforts to promptly notify the disclosing Party in writing of such requirement to disclose, to the extent not otherwvise prohibited by law: (b) the rcceiw in,, Party uses reasonable efforts to cooperate fully with the disclosinu Party in protecting against any such disclosure or obtaining a protective order, (c) the receiving Party discloses only that portion of Proprietary Infonnation that it is advised in writing by counsel it is required to disclose: and (d) the receiving Party uses reasonable efforts to obtain safeguards that confidential treatment reasonably acceptable to the diselosin�.T Party will be accorded to such Proprietary Infonnation. Any such required disclosure will not, in and of itself, change the status of the disclosed information as Proprietary Infonnation under the terns of this Section 5. 5.5. Unauthorized Disclosure. The receiving Party will notify the disclosing, Party immediately upon discovery- of any actual or reasonably suspected compromise, unauthorized use or disclosure of Proprietary Infonnation, or any other breach of this Section 5, and will cooperate wvith the disclosin- Party in ew ery reasonable way to help the disclosin4(T Party regain possession of the Proprietary Infornnation and prevent any further compromise, unauthorized use or disclosure. 5.6. Return of Proprietary Information; Ov nership. All Proprietary Information will remain the exclusive property of the disclosing Party and a valuable trade secret of such Party and the original and all copies thereof, on whatever physical, electronic or other media such Proprietary Infonnation may be stored, will be returned, except as otherwise provided in Section 2.5, in connection with the Account Information, upon the earlier to occur of: (a) the expiration or earlier tennination of this Agreement. or (b) within ten (10) business days of the disclosing Party's written request, provided that return in the latter case will not relieve the disclosing Party of its obligations otherwise to perform under this Agreement. Notwithstanding this Section 5.6. a Party shall be pennitted to retain Proprietary Information ( I ) in accordance with its internal record retention policies and procedures for re1gulatory compliance purposes or (2) to the extent saved Master Services Agreement Page 7 of 22 electronically as part of computer archiving or back-up recovery systems, provided that all such retained infonnation shall remain subject to the confidentiality terms of this Agreement. Nothing in this Agreement will be construed as granting any license or other rights under any patents or copyrights of either Party, or any rights in or to Proprietary Infonnation of either Party, except for the limited ri0hts to use and disclose such Proprietary Information expressly granted to the other Party in this Agreement. 5.7. Relief. The Parties each acknowledge that money damages may not be an adequate remedy if this Section 5 is breached and, therefore, the disclosing Party will, in addition to any other legal or equitable remedies, be entitled to seek an injunction or similar equitable relief against such breach or threatened breach, 5.5. additional Requirements with Respect to Client user Information. 5.5.1. Any collection, maintenance, disclosure or use of the personally identifiable information of Client's Users will be undertaken by Zeteky (i) to the extent applicable, in a manner that does not violate or cause Client to be in violation of Client's ww•ritten customer privacy policy (if any) and, in all cases: and (ii) in compliance with any applicable laws (domestic or foreign) gw,-erning the collection, maintenance. transmission, dissemination, use and destruction thereof, including specifically the Electronic Communications Privacy Act, 15 U.S.C. 5 7701 et seq., and any applicable state and, or federal security breach notification laws. In the event that any changes in Client's customer privacy policy are adopted after the date of this A-reement, and such changes are reasonably anticipated to result in materially increased costs to Zeteky, the Parties will work in good faith to determine wvhat modifications to the App. Services and Software are necessary and to negotiate any costs associated with such modifications. 5.5.2. Upon reasonable request from Client, Zeteky will provide access to, and the right to inspect, all of Zeteky's records relating to (i) the collection, processing, or transfers of data relating to the personally identifiable information of Client's Users and (ii) the information security measures used by Zeteky to secure any such information. Zeteky further agrees to cooperate in any regulatory investigation or in any internal investigation by Client (and in responding to any inquiry by any Client customer) relating to the same. In the event of any such investigation or inquiry, upon notice to Zeteky, Client may suspend any further transfers, disclosure of and access to the personally identifiable information of Client's Users for so long as may be necessary to obtain assurances that any additional transfers will not provide the basis for further regulatory action or possible liabilities. Any such suspension will not relieve either Party from any liability arising under this Ag7reement or any other commercial a-reements between Zeteky and Client. Client understands and agrees that such suspension may hinder Zeteky's performance of certain Services under Master Services Agreement Page 8 of ?? this .Agreement that may be continy�ent on use of the personally identifiable information of Client's Users, and Client waives any claims for breach of this Agreement and waives any right to damages to the extent Zeteky's failure to perform Services is caused by such suspension. 6. ZETEKY PEES, PAYMENT TERMS AND TAXES. 6.1. fees. Zeteky's fees for the Services and the payment terms in connection therewith are set forth in the Pricing Schedule attached hereto as Schedule B (the -Fees"). 6.2. United States Dollars. Subject to the teens set forth in this Section 6, all payments will be made in full in United States Dollars, at Zeteky's corporate office business address. 6.3. Right to Terminate for Failure to Timey Par. Zeteky, in its sole discretion. may terminate this Agreement if Client fails to pay the required amounts within ten (10) days after Client receives written notice from Zeteky that it has failed to pay any or all of the amounts required hereunder and such amounts are not in reasonable dispute. 6.4. Taxes. Client v� ill bear, be responsible for, and will pay any and all sales, use, personal property or other taxes imposed on the delivery, licensing or use of the Services, if any. Zeteky will pay all other taxes arising under this Agreement, including tares based upon Zeteky's net income or ad valorem, personal, or real property takes imposed on Zeteky's property. 7. TERM AND TERMINATION. 7.1. Term. This Ag=reement will be effective as of the Effective Date and continue In full force and effect for one year following the Effective Date (the "Initial Term") and will automatically renew" thereafter for additional five year periods (each a "Renewal Term" and collectively the Initial Tenn and any Renewal Term(s) being referred to as the "Term"), until the earlier of (a) the end of the first Renewal Tenn; or (b) as terminated in connection with the delivery of a Nonrenewal Notice as provided below. Either Party may prevent the automatic renewal by providing the other written notice of its intent not to renew at least 60 days prior to the end of the Initial Tenn or the then -current Renewal Tenn (a "Nonrenewal Notice"). The Fees due for any Renewal Terins shall be determined by the mutual agreement of the Parties unless otherwise set forth on Schedule B. 7.2. Termination for Cause. In addition to any of its other remedies, either Party may terminate this Agreement in the event that the other Party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non - breaching Party. Master Services Agreement Page 9 of 22 7.;. Effects of Termination. Upon any expiration or earlier termination of this Agreement. all rights and obligations of the Parties hereunder will cease, except that: (a) all obligations that accrued prior to the effective date of termination (including all payment obligations) will survive tennination, provided that Zeteky will be due all the Service Fees if this Agreement is terminated by the Client during the Term for any reason other than cause as described in Section 7.2. above, and shall receive all the Service Fees accrued or due through the date of tennination if this Agreement is terminated by the Client for cause as described in Section 7.2; (b) each Party will destroy (upon the written request of the other Party) or return to the other Party all of the other's Proprietary Information in its possession or under its control pursuant to and subject to Section 5.6; and (c) Zeteky will, after providing Client with an electronic copy of such information and data in a mutually agreeable format, delete archived Account Information, other User identification infonnation used or maintained by Zeteky, and other transaction data (includinyu all personally identifiable information of such Users). The provisions of Sections 2.4 (Limitations), 2.5 (Data), 4.2 and 4_3 (Propriety Rights), 5 (Confidentiality). 6 (Zeteky Fees, Payment Terms and Taxes), but only to the extent accruing prior to the effective date of tennination. 8 (Representations and Warranties; Indeimnities), 9 (Limitations of Liability and Disclaimers); 10 (Open APIs and RSS Feeds). l? (Public Relations), 13 (Records and Audit). to the extent set forth in such Section, 14 (Notices). 16 (General Provisions) and this Section 7 will survive any tennination or expiration of this Agreement. The expiration or tennination of this Agreement for any reason shall not release either Party from any liability which, at the time thereof. has already accrued to such Party, or which is attributable to a period prior to such expiration or termination; nor shall it preclude any Party from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement. Upon termination of this Agreement, the License shall be deemed to have expired and be terminated and the Client must immediately cease any use of the App, Software and System. 8, REPRESENTATIONS AND WARRANTIES; INDEMNITIES. 8.1. Zeteky Representations and Warranties. Zeteky represents and warrants to Client that (a) Zeteky is duly organized and validly existing under the laws of its state of incorporation and has full power and authority to enter into this Agreement and to carry out the provisions hereof; (b) the execution, delivery and performance of this Agreement by Zeteky does not conflict with any a`�reeinent, instrument or contract, to which Zeteky is bound; (c) Zeteky will perfonn its obligations and provide the Services to Client in a professional and workmanlike manner and in compliance with any and all applicable laws; (d) Zeteky owns all right, title and interest in and to the Software and the System, each element thereof, and all intellectual property rights embodied therein or licensed to Client pursuant to this Agreement; or, in the case of any third party content, software, technology or information included therein, Zeteky possesses, or has otherwise obtained all rights and valid licenses necessary to grant to Client all nghts and licenses set forth in this A`rreement; (e) Zeteky has all necessary rights to provide the Services to Client under this Agreement and all rights of publicity with respect to any artists, Master Services Agreement Page 10 of 22 artwork, text material, imavues, sound or video, if any, provided by Zeteky in connection with the Services: (f) the System and the Services. in whole or in part. do not and wvill not infringe upon or interfere with any right of publicity, patent. trademark, copyright, trade name or other intellectual property rights or misappropriate any trade secret of any third party; and (g) Zeteky will use commercially reasonable efforts to protect its network in accordance with applicable industry standards (without abrogating or otherwise limiting its oblivations under Section 5) to insure that Zeteky's network and the Services are secure from unauthorized access and are free from any viruses. worms, or other code that will damage, interrupt or interfere with any software, content, data or hardware. Zeteky further represents and warrants that. to its knowledlu"e. the Services are not defamatory, obscene, or otherwise unlawful in any jurisdiction. Zeteky further represents and wvarrants to Client that during the Term, the Services will be provided by qualified personnel in accordance with applicable United States federal lawn and the laws of such other jurisdictions as may be applicable thereto. Zeteky will use commercially reasonable efforts, consistent with applicable industry standards and practices, to provide the Services in a manner designed to minimize errors and interruptions. Nonetheless, Services may be temporarily unavailable for scheduled maintenance or repairs by Zeteky or by third party providers, or because of other causes beyond Zeteky's reasonable control, and all such Service unavailability will be go%-erned by the Force Majeure provision set forth in Section 15. 8.?. Tient Representations and Warranties. Client represents and warrants to Zeteky that (a) Client is duly organized and validly existing under the lawns of its state of formation and has full power and authority to enter into this Agreement and to carry out the provisions hereof- (b) the execution. delivery and performance of this Agreement by Client does not conflict with any agn-eement. instrument or contract, to which Client is bound; (c) Client owns all right, title and interest in and to the Client Materials, each element thereof, and all intellectual property rights embodied therein; or, in the case of any third party content, sottwvare, technolouv or information included therein, Client possesses, or has otherwise obtained all ridhts and valid licenses necessary to giant to Zeteky all rights and licenses set forth in this Agreement, and (d) to Client's knowledge, the Client Materials are not defamatory, obscene, or otherwise unlawful and do not infrin-e or interfere with any intellectual property, contract. right of publicity, or any other proprietary right of any individual or entity. Client will be fully responsible for, and will reimburse Zeteky for any and all liabilities arising out of any warranty concerning the Services made by Client to any User, prospect or other third party, except as expressly authorized in advance in writing by Zeteky; provided that neither Client's grant nor any breach by Client of wvarranty iven by Client to its Users will be deemed to abrogate any expressly provided remedies Client would otherwise be entitled to under this Agreement. 8.3. Zetekv Indemnifications. Zeteky wvill inde unify, defend and hold handless Client from and a minst any and all liabilities, claims, judgments, costs, damages, suits, actions, proceedings, and expenses, including reasonable attorneys' Master Services Ag-reement Page 1 I of 22 fees (collectively "Claims") suffered or incurred by Client, arising out of or resultin�tl from: (i) Zeteky's breach of any of its obligations under this agreement, or its representations and warranties set forth herein, (ii) the failure of any of the representations or warranties made by Zeteky herein to be true. (iii) any third party claims relating to the matters covered by the foregoing breaches or failures: (iv) any injuries to persons or damage to property caused by the grossly negh-'ent, willful or intentional acts or omissions of Zetekv, its a+cents or employees: and (v) any third party claims relating to the Services. 8.4. Client Indemnifications. Client will indemnify, defend and hold harn-iless Zetckv from and a�lTainst any and all Claims suffered or incurred by Zeteky. arising out of or resulting in any manner from: (i) Client's breach of any of its obligations under this Aareernent, or its representations and warranties set forth herein: (ii) the failure of any of the representations or warranties made by Client herein to be true; (iii) any third party claims relating to the matters covered by the forcvoin4u breaches or failures; and (iv) any injuries to persons or damage to property caused by the grossly negligent, willful or intentional acts or omissions of Client. its Users, agents or employees. 4.5. Claims. In case anv Claim is brought by a third party for which indemnification is or may be made pursuant to this Agreement. the indemnified Party will provide prompt written notice thereof to the other Party: provided, however, that the failure of the indemnified Party to comply with the foregoing notification provision will not relieve the indemnifying Party of its indemnification oblia,ations hereunder, except to the extent the indemnifying Party is actually prejudiced thereby. Where obligated to indemnify such Claim, the indemnifying Party w ill. upon the demand and at the option of the indemnified Party, assume the defense thereof (at the expense of the indemnifying Party) within thirty ('30) days or at least ten (10) days prior to the time a response is due in such case, whichever occurs first. The Parties will cooperate reasonably with each other in the defense of anv Claim, includim, making available (under seal if desired and if allowed) all records reasonably necessary to the defense of such Claim, and the indemnified Partv will have the ri zlit to join and participate actively in the indemnifying Party's defense of the Claim. Each Party will be entitled to prior notice of any settlement of any Claim to be entered into by the other Party, and any such settlement will be subject to the reasonable approval to the extent such Partv's rights would be directly and materially impaired. Without limiting the foregoin­. in the event of anv Claim or threatened Claim of infringement involving a portion of any portion of the Software or Services provided by Zeteky: (i) upon Client's request and at Zeteky's expense, Zeteky will procure the right or license for Client to continue to use and othervise exploit in accordance with the teens hereofsuch portion of the Software or Services at no additional cost or expense to Client other than the fees set forth herein: or (ii) at Zeteky's sole discretion, but upon as much prior written notice to Client as is reasonably practicable, Zeteky may modify or alter (to the extent that Zeteky has rights to so modify or alter), or delete any such portion of the Software or Services, Master Services Agreement Paige 12 of 22 as the case may be, so as to make such portion non-infrin4,inty while maintaining substantially comparable functionalities and capabilities of such parts of the Sof fare or Services that are material to Client's then -current or demonstrably anticipated use hereunder. The Parties agree that Zeteky's commercially reasonable efforts to satisfy (i) or (ii) above will include procurement of such licenses or making, such modifications at costs up to and including the lesser of (a) S 100.000, and (b) the total amount of Fees received by Zeteky hereunder for the prior twelve months of the Tenn. If options (i) and (ii) are not achievable as to any such portion., (1) Client may terminate the rights and licenses granted hereunder, in its sole discretion, as to such infringing portion, or this Agreement without liability if loss of such portion materially and adversely affects the Services or functionality Client expects hereunder; or (2) to the extent Zeteky used commercially reasonable efforts to obtain a license or modifv the Software or Services as set forth in subsections (i) or (ii) and %%-here Zeteky is reasonably exposed to material liability from Client's continued use of such portion of the technology or services. Zeteky may, in its discretion, terminate the rights and licenses granted hereunder with respect to such portion. If, pursuant to the immediately foregoing sentence, Client or Zeteky terminate the rights and licenses gn-anted hereunder as to any portion of any Sofw,-are or Services provided by Zeteky and Client does not elect to terminate this A�,reement, if applicable, the Parties will thereafter negotiate in good faith for a period of not less than 30 days with respect to reduced fees under this Ag-reement. 9. LIMITATIONS OF LIABILITY AND DISCLAIMERS. 9.1. Neither Party will be liable to the other Party. its aygents, affiliates, clients. or any other persons, for any Iost profits or indirect, incidental, special, putlitive, consequential or similar damages, even if advised in advance of the possibility of such damages. In no event will either Party's liability for any and all claims, in the a�,_--ret-Tate, arising_► out of, relating to or in connection with this A�,ureement or the performance of its obligations hereunder exceed the lesser of (a) S 100,000. and (b) the total amount of Fees received by Zeteky hereunder for the prior twelve months of the Tenn. 9.2. Except as expressly provided in this Agreement to the contrary. Services are provided "as is" without �varranty of any kind, either expressed or implied, including the implied warranties of merchantability and fitness for a particular purpose and non -infringement. Zeteky does not warrant that the Services will meet the requirements of Client (except to the extent specifically set forth in this Agreement) or those of any third party and, in particular, Zeteky does not warrant that the System will be error free or will operate without interruption. 9. j. To the maximum extent pennitted by applicable law, Zetekv hereby disclaims all warranties and conditions, whether express, implied or statutory, including,, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability. of accuracy or completeness of responses. of results, of workmanlike effort. error in the App. Software or System, that the App kvill meet Client's needs, or that Master Services Agreement Page i3 of?? operation of the App will be uninterrupted or error -tree. except as expressly set forth herein. 9.4. Zeteky does not war -rant or make any representation re��arding the accuracy, adequacy or completeness of the contents of any content or the results to be obtained frorn their use. Zeteky will not be liable to third parties for any lost profits or indirect.. incidental, special, punitive, consequential or similar damages, even if advised in advance of the possibility of such damages. 9.5. Except as expressly set forth in Section?. Client makes no warranty with respect to any Client Materials and expressly disclaims ariv warranty, express or implied. including the implied warranties of merchantability or fitness for a particular purpose. 10. OPEN APIs AND RSS FEEDS. 10.1. From tirne to tune, Zeteky may offer Client the ability to include certain functionality on the App that Zeteky will integrate via publicly available open APIs. RSS feeds. or sirnilar technology. The providers of open APIs and RSS feeds often (i) do not include product representations. warranties or indernnitications in their terns of use. (ii) make no commitment that the functionality will continue to be available, and (iii) disclaim liability associated with such products. To the extent legally and contractually permitted. Zeteky hereby assi�ums to Client all warranties and rights to indemnification provided to Zeteky, if any.. with respect to such open APIs, RSS Feeds, and similar technology. and any performance or use thereof. Zeteky agrees to reasonably cooperate with Client in connection with the enforcement of such ri4ahts. 10?. Zeteky will kvork cooperatively and in good faith with Client in connection with the evaluation of any open APIs. RSS Fees or other technology -y and, when making a recommendation with respect to the integration of such technolo,v. will exercise ordinary and reasonable dill-ence and care in doing so. Client may elect, in its sole discretion. to have Zeteky include functionality made available through open .APIs. RSS feeds, and the like on the App. In such event, and notwithstanding anything to the contrary in this Agreement. the following will apply thereto: 10.2.1. Such functionality is provided on an "as is" basis. and Zeteky makes no representations or warranties of any kind, whether express, implied, statutory or otherwise with respect thereto and any use or inability to use such functionality. Zeteky disclaims all warranties related thereto, including any implied warranties of merchantability, fitness for a particular purpose, and non -infringement; and 10.2.2. Zeteky disclaims any liability for any damages of any kind arising from use of. or inability to use, such functionality, or from any removal of such functionality from the App, including direct, indirect. Master Services Agreement Page 14 of 22 incidental, prinitive, consequential or exemplary damayaes, including lost data, business or anticipated profits, whether or not Zeteky was aware of or advised of the possibility of such damages, and notwithstanding any indemnifications set forth in this Agreement, Zeteky will not indemnify Client (or any other party) for any claims related to such functionality or any use thereof. If at any point, Client has concerns about the functionality or any use thereof, Client's sole recourse is to remove or require removal of the functionality from the App. 11. MUTUAL REPRESENTATIONS AND WARRANTIES. Each Pant, represents and warrants to the other Party, that: 11.1. all governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to this Agreement (including any internal authorizations, approvals and consents required by such Party under its organizational documents) have been obtained or submitted and are in full force and effect, and all conditions of this A<areement have been obtained or submitted and are in full force and effect. and all conditions Of ally such authorizations. approvals, consents, notices and filings have been complied with, in all material respects; 112 its obligations under this Aareement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors' ri-llts-enerally and subject, as to enforceability, to equitable principles of general application regardless of whether enforcement is sou -ht in a proceeding in equity or at lav); 11.3. there is not pending, nor to its knowledge threatened against it. any action, suit or proceeding at lacy or in equity or before any court, tribunal, governmental authority, official or any arbitrator that is likely to affect the le`aality, validity or enforceability ayaainst it of this Agreernent or its ability to perforin its obligations under this Agreement; 11.4. it has entered into this A�areernent and will enter into any transaction thereunder as principal (and not as advisor, agent, broker or in any other capacity, fiduciary or otherwise) and with a full understanding of the material terns and risks of the same, and has made its own independent decision to enter into this Agr•eernent and any transaction and as to whether this Agreement and any transaction are appropriate or suitable for it based upon its own judgment and upon advice from such advisers as it has deemed necessary and not in reliance upon any view expressed by any other Party; I I.5. it is not bound by any agreement that would preclude or hinder its execution, delivery, or performance of any term or provision of this Agreement: and Master Services Agreement Page 15 of 22 11.6. any indI� ]dual executing this Agreement on behalf of a Party has authority to act on behal f of such Party and has been duly and properly authorized to sion this A�,reement on behalf of such Partv. 13. PUBLIC RELATIONS. Neither Party will issue any press release. nor otherwise disclose anv infonnation conecrning this Aureement without the prior written consent of the ether, except as otherwise required by law or the rulers of any stock exchange. 13. RECORDS AND AUDIT. Throughout the Term and for a period of three (3) years atter the expiration or earlier tennination of this Agreement, each of the Parties xvill maintain books and records re�uardin�u the Services, and other matters relating to this Agrecinent, including server lo -S, and customer usa-e logs. Each Party will have the right to audit such books and records of the other Party solely and directly relating to this Agreement upon reasonable notice and at its expense, or to take extracts from or make copies of such records. Each Party will maintain at its principal place of business during the Term and for a period of three (3) years thereafter all books, records, accounts, and technical materials red-arding its activities in connection herewith sufficient to detennine compliance with all material obligations pursuant to this A�ureement. Upon a Party's ritten request (to be provided at least fifteen (15) days prior to the date of the audit), the other Party will pennit one (1) or more representatives of an auditor or agent of the requesting Party's choice to examine and audit, during, non -nal business hours, such books, records, accounts. documentation and materials. and take extracts therefrom or make copies thereof for the purpose of verifvinu compliance with the material obligations hereunder, provided that, the auditing Party will first obtain a written al"reement from any such auditor or a�,ent that such auditor or agent %vill be bound by the confidentiality obligations set forth in Section 5 herein and the auditin`, Party will in all events be responsible* to the audited Party for any action or inaction of such auditor or agent that Would violate Section 5 of this Agreement. All fees and expenses of the auditing Party's auditor or agent under this Section will be paid by the auditing Party. 14. NOTICES. All notices. approvals, consents, requests, and other communications hereunder shall be in writing and shall be delivered (i) by personal delivery, or (11) by national oventiuht courier service, or (iii) by certified or registered mail, return receipt requested, or (iv) via facsimile transmission, with confirmed receipt, or (v) via email. Notice shall be effective upon receipt except for notice via fax (as discussed above) or email, which shall be effective only when the recipient. by return or reply email or notice delivered by other method provided for in this Section 14, acknowledges having, received that email (with an automatic "read receipt" or similar notice not constituting an acknow led-ement of an email receipt for purposes of this Section 14, but which ackriowledgement of acceptance shall include cases where recipient `replies' to such prior email. including the body of the prior email in such `reply'). Such notices shall be sent to the applicable Party or parties at the address specified on the signature page hereof, subject to notice of changes thereof from any Party with at least fifteen (15) days' notice to the other Parties. Rejection or other refusal to accept or the inability- to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver. Master Services Agreement Page 16 of 22 15. FORCE MAJEL;RE. 1 �.1. "Force Maieure" shall mean any act of God, weather or nature, or any act oC government, or any other act or force where such occurrence could not reasonably have been foreseen at the time of entering into this Agreement (or- any arnendment or modification hereto, as applicable) and could not reasonably have been avoided or overcome by the Party asserting benefit of this Section 15 and shall include without limitation, hostilities, war, revolution, riots, act of terrorism, maritime border or boundary dispute, civil commotion, strike, labor disturbances, lock out or injunction, epidemic, quarantine, accident, tire, lightning, flood, wind storm, earthquake, explosion, blockade or embargo, lack of or failure of transportation facilities or any lav, proclamation, reilulation or ordinance, demand or requirement of any government or any �-overnment agency or ayaencies havinY" or claiming to have jurisdiction over the Services, App or System, or the Parties hereto. Notwithstandin4- the foregoing, neither mechanical nor electronic difficulties, unless such mechanical or electrical difficulties result frorn a Force Majeure event, shall be considered Force Majeure. 15.2. The Party which is prevented from perfontlinYg its obligations by Force Majeure shall advise the other Party promptly in writing of its inability to meet its obligations hereunder, specifying the Force Majeure and the estimated extent to which the Force Majeure event or conditions will impact performance and shall advise the other Party when such difficulty ceases. The Partv claimin;o a Force Majeure event or condition shall act diligently to remove or remedy such condition (but shall not be required to settle any labor dispute on unfavorable terms). 15.3. In the event of Force Majeure, the Parties agree that, although performance of the obligations may be suspended, all Statements of `Fork shall remain in full force pending the cessation of such Force Majeure, or tennination of any applicable Statement of Work in accordance with the terms hereof or thereof. 15.4. Neither Party shall have any right to claim, and the other Party shall have no obli-ation to pay, additional compensation, costs, damages, or expenses incurred directly or indirectly as a result of any Force Majeure. 15.5. As soon as practicable following the cessation of a Force Majeure affecting Zeteky, Zeteky shall provide Client with written details of the cessation of Force Mai eure and Zetekv's best reasonable estimates of its impact on the timing of Zeteky performance of its obligations. 15.6. Notwithstanding the above, no Force Majeure shall effect any obligation of the Client to pay any amounts due to Zeteky pursuant to the terms of this Agreement, or excuse any such failure to pay. Master Services Agreement Page 17 of 22 Iii. GENERAL PROVISIONS. 16.1. This Agreement is not transferable b-,- either Party without the other's prior written consent, except that, either Party may (tirithout consent) assign its rights and obliYorations hereunder to any entity that is controlled by, controls. or is under common control with the assi-ning Party or to any successor entity to all or substantially all of its business (by sale or other transfer of equity or assets. merlyer, consolidation. reorganization or otherwise). 16?. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives and permitted assigms of the Parties. 16.3. This Agreement (including, any schedules, exhibits, riders, addendurns, amendments and attachments) constitutes the entire agreement. and supersedes all prier negotiations, understanding or agreements (oral or written). between the Parties concernin(T the subject matter of this Agreement. No chant", modification or waiver to this Agreement will be effective unless in writing and signed by both Parties. 16.4. In the event of any conflict or inconsistency between the terrns and conditions in the Master Agreement and any schedule or other exhibit attached hereto not expressly and specifically stated otherwise, the teens and conditions of the schedule or exhibit %-ill prevail. 16.5. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such ri-hts. 16.6. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in Cull force and effect and enforceable. 16.7. All rights not expressly granted to Client are reserved. In particular• no title to, or ownership of. the intellectual property associated with the Software or System is transferred to Client. Unless expressly permitted by applicable mandatory law, Client shall not modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, decompile or otherwise reduce to human readable form the App, Software or System without Zeteky's prier written consent, nor shall Client permit any third party to do the same. The App and Software is licensed. not sold. The App and Software is protected by copyright and other intellectual property laws and treaties. The structure, organization. and code of the App, Software and System are the valuable trade secret infonnation of Zeteky. Zeteky owns the title, copyright. and all other intellectual property- rights in the App, Software or System. This Ageement does not grant Client any rights to trademarks or service marks of Zeteky. Client may not sublicense the App, Software or System to anyone without the express written perrmission of Zeteky. Master Services Agreement Page 18 of 22 16.8. The Parties agree that Zeteky and its employees and agents will be servini, Client as independent contractors for all purposes and not as employees or partners of. or distributors Of, or joint venturers with. Client. Nothing in this Agreement will be deemed to constitute a fiduciary relationship between Zeteky and Client. nor will anything- in this A4oreetnent be deemed to create an agency relationship between Zeteky and Client. Neither Zeteky nor Client will be or become liable or bound by any representation, act or omission whatsoever of the other. 16.9. This Ayurecrment and the rights and obligations of the respective Parties hereunder shall be governed by, and interpreted and enforced in accordance with the laws of the state of Texas except for those conflict of law rules thereof that would require or permit the: application of the laws of another jurisdiction. Upon demand of either Party, any dispute, claim or controversy arising out of or connected with or relating to this A-=reement between or among the Parties shall be resolved by binding arbitration in accordance with the then current Commercial Rules of the American Arbitration Association (including the expedited procedures and optional rules for emergency measures of protection thereunder) (the ".arbitration Rules"). All arbitration hearin`,s shall be conducted in Dallas, Texas. The arbitration shall be conducted by a panel of three persons selected as follows: each of Client and Zeteky shall select one person to act as arbitrator and such arbitrators shall select a third arbitrator within thirty (30) days of their appointment; all in accordance with the Arbitration Rules. The arbitration panel shall have the authority to award interest and direct, indirect, incidental, punitive, consequential and exemplary damages, all in accordance with the tenors and conditions set forth herein. All monetary arbitration awards will be set forth and payable in United States dollars. Each such Party shall bear its own costs and expenses and attorney's fees. and an equal share of the arbitrator's fees and any administrative fees of arbitration. 16.10. This Agreement and any signed agreement or instrument entered into in connection with thisAgreement. and any armendments h`reto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the sarne instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .peg or similar attachment to electronic mail (email) or downloaded frorn a website or data room shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. 16. l I . In any action or proceeding to enforce rights under this Acyreement, the prevailing Party (whether plaintiff or defendant) will be entitled to recover its reasonable costs and attorney's fees. 16.12. All remedies.. whether at law, in equity or pursuant to this Agreement will be cumulative. klaster Services Agreement Page 19 of 22 16.13. The provisions of this Agreement are for the exclusive benefit of the Parties and their permitted assigns, and neither Party intends to benefit any other person or entity, including a "third parte beneficiary," as that tenn may be defined by applicable statutory or case law-, and no person or entity who is not a Party (includin- an obli-or, borrower, or guarantor) will have any ri4ght or claim a-ainst a Party by virtue of this Aureement. 16.14. The Parties ackno%vledgc that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement with its legal counsel and that this Agreement shall be construed as if jointly drafted by the Parties hereto. 'When used in this Agreement, unless a contrary intention appears: (i) a teran has the meaning assigned to it; (ii) "or" is not exclusive: (iii) Includinf_"' means including without limitation; (iv) words in the sin�,ular include the plural and words in the plural include the singular and words importing the masculine gender include the feminine and neuter genders, (v) any ay(Treement, instrument or statute defined or referred to herein or in any- instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of alTrecments or instruments) references to all attachments thereto and instruments incorporated therein, (vi) the words "hereof`, "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision hereof, (vii) references contained herein to Article, Section. Schedule, Appendix and Exhibit, as applicable, are references to Articles. Sections, Schedules, Appendices and Exhibits (collectively. "Schedules and Exhibits") in this Agreement unless otherwise specified and any such Schedules and Exhibits referred to herein shall be construed with, and as an integral part of this A,-7eement to the same extent as if they 3,vere set forth verbatim herein and capitalized terms used in, but not otherwise defined in, such Schedules and Exhibits shall have the meanings given to such terms in this Agn-eement, (viii) references to "vvritin," include printing, typing, litho_raplly and other means of repr-oducin- words in a visible form, includin", but not limitcd to email, (ix) references to�" dollars", "Dollars„ or "S" in this Agreement shall mean United States dollars: (x) reference to a particular statute, re4,ulation or law means such statute, regulation or law as amended or otherwise modified from time to time prior to the date hereof-, (xi) any definition of or reference to any agreement, instrument or other document herein shall be construed as referrin,� to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (xii) unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the tivord "from" means "from and ineludin " and the words "to" and "until" each mean "to but excludin- and (xiii) references to -days- shall mean calendar days. Master Services Agreement Page 20 of 22 [Remainder of page left intentionally blank. Signature page follows.] Master Services Agreement Page 21 of 22 IN WITNESS WHEREOF, the Parties agree to the terms and conditions of this Agreement effective as of the Effective Date. Zetekv, Inc. M. Name: John W. Dalton Title: President & CEO Date: Address. far Notice.- Attn: otice; Attn: John W. Dalton 4275 Lindher(7h DFiVe Addison, Texas 75001 Fax: Email: JohnDalton —tZeteky.com Cita of Miami By: Name: Title: Date: address for ,Votice: Attn: Fax: Email: Master Services Agreement Page 22 of 72 Schedule A Statement of Work Project Overview: The misuse and addiction ofopioids is a national crisis affecting public health, safety and economic welfare. The City of Miami has not been immune to this epidemic and has seen a dramatic increase in the use of and addiction to opioids resulting in more deaths and accidents related to overdose of this controlled substance. Miami Police is facin=U the usual "no snitch culture" t}here area residents do not feel comfortable reporting what they know or see on the streets and nei-hborhoods. Unfortunately, crimes, such as this one, are not reported because people are intimidated and afraid to call police for fear of retaliation and. or do not like to be questioned when callint) 911 or Crime Stoppers. Objective: To deploy Zeteky's mobile app called "Torch" to the public so they can submit anonymous tips without the fear of retaliation that exists through existing channels. This app will be free to the public and can be downloaded on a smartphone. Zeteky Deliverables The .app: The implementation and adoption of the "Torch" app will include an aggressive bilingual marketing carnpanni to familiarize the community with its capabilities. The "Torch" app vv ill include tip reporting capabilities for the following: • Drua and Opioid Incidents • Abuse'Assault • Crime Reporting • Human Trafficking • Fraud • Guns' Veapons • Terrorism • School Related Incidents The Dashboard: Zeteky will deploy a web based dashboard that allow the distribution and anah,lics of critical information direct to the Miami Police Department (MPD). Zetekv will handle all training- and certification of law enforcement personnel assigned to access the system. The Zeteky dashboard will include the following capabilities: • Advanced tip routing • Emergency alerts • Tiered hierarchy for internal routing • Translation in 32 languages • Two-way anonymous chat • Advanced crime analytics Zeteky Dashboard Setup and Deployment: For each territory system deployment, there are several weeks of initial setup to ensure that tip data is correctly routed to the appropriate agency or person. It first starts with defining geospatial territories and boundaries on a map. For each law enforcement jurisdiction, there are additional territories created to segment the routing. Once each police department is established in the system, we program the routing based on individual tip type per location. The last segment assigns tips to individual members of the department. Each officer is able to view or access these tips and will have their own user account with a lo -in. Administrator accounts for supervisors will enable the addition of officers in the future after initial deployments. Master Sen -ices Agreement Page 23 of 1 Training: Each member of law enforcement will have access to the Zetcky Dashboard and will require training by Zetekv personnel. For each department. Zeteky will schedule two days of initial onboard traininY- followed by two -lour wvebinar training sessions. Supervisors will receive separate training relating to advanced feature sets. Training video portal: A custom online training video portal will be created for any officers that may need refreshing on the system or to train new officers after the initial deployment. This portal can only be logc,�ed in by law" enforcement personnel and it is not available to the public. Zetekv Command Center Once a tip is received via the Torch App, the information goes directly to the Zeteky Command Center where our highly trained personnel immediately triages all information in the following planner: • If tip in an emergency we will immediately notify 911. • If a tip is incomplete. Zetekv personnel will engage with the tipster via a two-way chat and add additional information to the tip profile. • On occasion Zeteky personnel may do additional research on a tip and add additional intel to the tip profile such as social media links or photos. • Tips will be checked to make sure that the type of tip is correct, if not adjustments are made. Once the Zeteky Command Center personnel have finished triaging a tip, it will then be routed to a local Zetekv Dashboard within a secure law enforcement facility. From there local law enforcement has full control of how the data is handled internally) xithin the organization. The Zeteky Command Center is a secure facility located in Dallas. Teras. The center is open 24 hours a day, seven days a week. All tips are monitored and information is routed in real-time. Master Services Agreement Page 24 of 2 Marketing and A►r areness Marketing is the most critical part of the program to ensure adoption. Zeteky will design and manage all the campaigns listed below' (which will each be owned, together with all copy, media. data and other information associated therewith, by Zeteky): Viral Videos: In today's world. video content shows the highest ROI w hcn it comes to digital marketinl�. There will be several Videos created to hi-hliuht the initiatives of the program, the public safety issues, and to continually drive awareness and maintain relevance in the public eye. These video's will be used throughout social media and on mainstream media channels. Here are a few of the initial videos to be created. Each of these will be created in English and Spanish. Social Media: As we know- social media is the most effective fonn of content marketin`; today. Our main platforms to achieve success will be Facebook, Instagram, Twitter, and Youtube. There will be monthly paid marketing budgets to drive impressions and downloads on a daily basis. Each dollar spent on digital marketing will be targeted based on geolocation, gender, language, age, and interests. Weekly Blogs: Each week there will be 1-2 blog posts that keep the public infonned of various public safety situations that are happening on both a local and national level. These blot'; posts will also be linked through various social media accounts to maximize exposure. Billboards: There will be several locations for si-nage & billboards to reinforce the program after the first few months of digital marketing. Media Marketing: Oncc the brand has been established the focus will shift to various media and news outlets to Delp drit c the messaging and help with awareness throu4ghout the city. These will be very strategic and will only be during "prime time". Public Relations: PR is a major component for the success of the progrrarn. Anytime we receive a successful tip to the Zeteky system that leads to an arrest or a seizure of any kind. there Nvill be "Thank You" marketing; carnpaigns geared directly to the public thanking them for getting inti'ol%,-ed and showing them the results. These will be pushed on every marketinM- channel available including social media, internet news outlets and particularly Public Service Announcements (PSAs) required by public news channels. Sponsorships: Once the digital marketing is established we will look for local events and community activities that we can sponsor on a regular basis to show- support in the community. Street Teams: We will have local boots on the ground for any events that we can attend to help drive awareness of the program. Deliverables Schedule Description/Activity Documentation provided to Estimated verify deliverable/activity completion date Nleet with Police and IT to identify specific needs. Customize ; 1 is application. Release application (app) Dashboard Set-up and Deployment: Set-up initial system. defile oeospatial territories and Zeteky will notify city when the 3/1518boundaries, set-up user accounts; initial dashboards are setup establish inConnation routine, V protocols. Training, Task: Schedule and Each member that is trained will Conduct Trairningg of app receive a Ct'trtitication utilization and information Certi ficate sho4i in�� that they 4 118 evaluation to MPD employees and have completed the program. officers These certificates WIII be available to the state. System will be tested for App and Command center beta routing„ accuracy and a report 4 1118 testinu, will be sent to the city when completed Marketin- and Advertisement Zeteky,vill supply the city with Tasks: Develop all marketing a complete marketing calendar 4 15'20 18 - Ongoing campaigns and launch by 4 1`18 Command center operational. App App is available for download in 4 1 18 goes live to the public Apple and Android app stores Budget The overall budget for the project is $699,990. Below is a detailed breakdown of the expenses. The Equipment Operating Capital Outlay and the Salaries and Berictits sections are allocated for !Miami PD and will be paid to the directly from the City of Miami. Position/Service Provided Computation/Rate of Pay Total Cost Analytics Application Specialist - optimize MPD's website by creating an anow,'mous portal and mechanisms for S50. 13 "hr X 1,496 hrs (39 S 75 000 00 routing; tips that are received. Inte�nate weeks) Office 365, create workflows for app utilization. Total Salaries & Benefits S 75,000.00 1is 1 .711A .+4x I 1737C 171 Nil s OCO Computation 7 Total Cost Dell XPS 27" Desktop I cc 52549 52,549 Dell 27" Monitor I @ 5519 5519 Logitech Wireless Touchpad I C S 159 S159 Er,;otron WorkFit-S Dual 1 cc 5627 5627 Monitor Sit Stand Workstation Dell XPS 13" 2 -in -1 Laptop 1 C S 1299 4 $1.299 Microsoft Surface Pro (Intel Core 15,'256GB SSD SGB I ci S1.299 S1,299 RAM) Ipad Pro 12.9" 1 C S1.229 S1229 Smart Keyboard for iPad Pro h 1 S 169 $1.69 Visual Studio Enterprise I a. 55,999 $5,999 Standard (I year subscription) Office 365 Enterprise E5 12 months [, S35'mo 5420 Adobe Creati,,-e Cloud 12 months t. S69'mo 5828 "Business: All Apps" Nintex Enterprise Edition 12 months cel",$9ag.'mo S 11,2156 Workflows Shutterstock 50 ima�^es 12 months (cc S99 mo $1,185 Total Equipment/Operating Capital Outlay $27,541 Total Salaries & Benefits: S75,000 Total Equipment.'Operatim, Capital Outlay: 527,541 Total amount allocated for Miami PD; $102,541 Budget Continued The rernainin--,= bud -et will be for Contractual Services and Expenses (Supplies & Travel) and will be paid directly to Zeteky according to "Schedule B" below. 143 AM A All cog k=m WI ' ! Description Days Hotels Airfare Per Diene Total Cost Dashboard Trainer 5 S150.00 5600.00 $500.00 S1,850 a Dashboard Programmer 3 S 150.00 3600.00 5300.00 S1,350 Market Mana-er 12 S150.00 S1,600.00 1200 54.600 TOTAL $7,800 143 AM A All cog k=m Description Cost Per Hour Hours of Development Total Cost App setup and deployment S 75.00 94 S 7,050 Dashboard Setup and deployment (12 People) S 65.00 1500 S 97,500 Zetekv Command Center staff for tip triage and routine S 20.00 5760 S 175,200 Dashboard Training S 75.00 200 S 15.000 Bandwith, storage and hosting S6,?33?5 12 S 74,799 Weekly Paid Social Media Ads S 750.00 52 S 39.000.00 Weekly Viral Video Ads S 500.00 52 S 26,000.00 Weekly boost post budget S 175.00 52 S 9,000.00 Industry Website Ads S500.00 52 S 26,000.00 Event Sponsorship S1,500.00 20 S 30,000 Radio Local Market S 750.00 12 S 9,000 TV Local 'Market S 750.00 12 S 9,000 Billboard. Community Si-na-e S1.000.00 12 S 12,000 News, Press Releases S 400.00 12 S 4,800 Trade Publications S 400.00 l3 S 4.300 Copywriter S 875.00 12 S 10.500 Brand Ambassadors S 125.00 40 S 5,000 Team Members (4 People) S 200.00 40 S 8,000 ProductiomAlerch N!A N A S 7,000 Fivers S 500.00 1? S 6,000 Community Shirts S 750.00 12 S 9,000 Community 'Watch Decals S 100.00 12 S 1,200 Banners N'A NA 5 1,800 Event Tent N'A N'A S 2.000 TOTAL CONTRACTUAL SERVICES $ 589,649 Schedule B Pricin,2 Schedule The total cost of the Services to be provided by Zeteky to Client during the Initial Term is 5699,900, of which S 10154 I shall be paid to the Miami Police Department directly from the City of Miami (the "Service Fees"). The 5597,449 of the Service Fees (i.e., the portion not paid to the Miami Police Department) shall be payable as follows, in all cases subject to the termination provisions of Section 7.3 hereof: • $209,110 (-35° ") upon execution of the Agreement. • 5209,110 (-35',)) once training of law enforcement is completed as provided in Schedule A: with an expected completion date of April 1, 2018: and • S 179,229 (^-30" o) when the Tipp is available for download in the IOS and Android marketplaces. With an expected completion date of Apffl 15, 2018.