This MASTER AGREEMENT (“Agreement”) is made as of the DAY (the “Effective Date”) by and between Customer, (“Customer”), and Micro Strategies Inc., a NJ corporation (“MSI”), with an address at 1140 Parsippany Blvd. Parsippany, NJ 07054 (each a “Party” and collectively, the “Parties”) to this Agreement.

1.  Agreement Structure

(A) This Agreement governs the delivery of certain products (which may be hardware (“Hardware”) and/or software (“Software”), which are collectively referred to as “Products”) and the provision of certain services to the Customer by MSI (collectively referred to as “Services”)

(B) MSI provides additional terms for Products and Services in documents called Attachments and Quotes/Statements of Work (hereinafter referred to as SOW in this Agreement) which, if applicable, shall be incorporated and made a part of this Agreement. All transactions have one or more associated SOW’s.

(C) If there is a conflict among the terms in the various documents, those of an Attachment prevail over those of this Agreement. Subject to the foregoing, the terms of an SOW will prevail over this Agreement and its Amendments. The order of precedence of an Attachment, when there are more than a single Attachment to the Agreement, will, when a conflict exists between Attachments, be specified in the specific SOW.

(D) Amendments and SOW’s become a part of this Agreement upon signature by both Parties to this Agreement.

(E) Each SOW shall, to the extent applicable, contain: (i) a description of the Products and any Services to be performed by MSI; (ii) the tasks to be completed by Customer and any third parties; (iii) a description of the Products and Services to be delivered by MSI (“Deliverables”); (iv) the schedule for delivery of each Product and Service and Deliverables; (v) the Charges to be paid to MSI for such Products and Services, and (vi) such additional information as the parties may wish to include.

(F) SOWs shall be deemed accepted when executed by the Parties.

2.  Expenses, Invoicing And Payment

(A) As full compensation for the Services, Customer shall pay MSI in accordance with the terms of this Agreement and the respective SOWs. The fees (“Fees”) for the Services shall be specified in the respective SOWs. Fees may be calculated (a) on a fixed price basis, or (b) on a time and materials basis (“T&M”).

(B) All Fees charges, sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs or other taxes, duties or other fees now or hereafter claimed or imposed by any governmental authority upon the sale of the Products unless otherwise agreed in an SOW. If Customer is required to pay (i) sales, use, property, value-added, withholding or other taxes, (ii) any customs or other duties, or (iii) any import, warehouse or other fees, associated with the importation or delivery based on Services provided in this Agreement or on Customer’s use of Services, then such taxes, duties or fees shall be billed to and paid by Customer. If Customer is permitted to declare any such taxes, Customer shall declare and pay such taxes and fees, notify MSI which taxes and fees it is paying, and MSI shall not be required to invoice Customer for those taxes and fees. This Section shall not apply to taxes based on MSI’s net income or payroll taxes, which MSI is responsible for paying.

(C) Unless otherwise noted, prices shown do not include shipping and insurance charges, delivery, site preparation, installation, electrical or environmental requirements, testing, maintenance or other Services.

(D) When specified in an SOW or other approved contract document, Customer will reimburse MSI for its actual out-of-pocket travel-and living related expenses reasonably incurred in connection with its performance of the Services; provided, however, that (i) MSI obtains the written approval of Customer prior to incurring any such expenses, (ii) all such expenses are consistent with Customer’s then-current travel and expense policies, as applicable, and (iii) all such expenses are supported by adequate documentation submitted by MSI together with the relevant invoice.

(E) Services and expenses will be invoiced at the agreed-upon rate set forth in an approved SOW.

(F) Any taxes, duties or such other charges will be invoiced to the Customer. MSI may be required to collect and remit taxes from Customer unless Customer provides MSI with a valid tax exemption certificate. If it is required to pay any such amount, Customer will promptly reimburse MSI for any such amount. In no event will either Party be responsible for any taxes levied against the other Party’s net income.

(G) Each invoice submitted to Customer must reference a valid SOW and provide supporting detail for the Services and expenses invoiced.

(H) MSI will submit to Customer monthly invoices for Products and/or Services delivered or provided to Customer by MSI. All payments are due NET 30 days from the date of invoice unless other terms are set forth in the SOW. In the event payments are not made in accordance with the terms hereof, MSI reserves the right to charge interest on any unpaid balance at the rate of one and one-half percent (1.5%) per month, or the highest rate allowed by law, whichever is lower.

(I) RETURNS WILL NOT BE ACCEPTED WITHOUT A RETURN AUTHORIZATION FROM MSI.

3.  Title & Risk of Loss

(A) MSI hereby retains title to and a security interest in the Hardware, and/or a security interest in the Software, delivered to Customer, until Customer makes payment in full of the purchase price hereunder. Until payment in full has been made, Customer shall not move Products from the address set forth in the SOW without the written consent of MSI.

(B) Title and ownership rights to all Software, machine code and any copies thereof shall be controlled by the license(s) provided by the manufacturer, licensor, or distributor thereof.

(C) All risk of loss, destruction, or damage to all Equipment and/or Software, by reason of theft, fire, water, or any other cause, shall pass to Customer upon delivery of the Equipment and/or Software to a common carrier (or directly to Customer, if MSI is delivering), and the occurrence of any such casualty shall not relieve Customer of its obligation to pay the balance of the purchase price, if any.

4. Intellectual Property Ownership

(A) “MSI’s Intellectual Property” – means any MSI’s or third party’s Intellectual Property, including without limitation, copyrights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, trade secret or confidentiality rights, know-how, inventions, patents of any type, patent applications, unregistered patents, design rights, utility models or other similar invention rights, moral rights and all other proprietary rights, whether registered, any other intellectual and intangible property rights, including all registrations and applications for such rights, and all continuations, existing prior to the Agreement Effective Date, that is developed at any time outside the scope of this Agreement or any Statement of Work, and any improvement, development, extension or modification to MSI’s Intellectual Property that is conceived or reduced to practice by MSI or its Personnel, third party partners and/or agents in connection with this Agreement or any Statement of Work. MSI and its third party partners shall remain the exclusive owner of its Intellectual Property. If any MSI Owned Products and Services are embedded in or provided as a Deliverable, MSI, unless otherwise specified in a software license provided to and agreed upon by Customer, hereby grants, Customer a perpetual, fully paid up, royalty-free, irrevocable, worldwide, assignable, non-exclusive right and license to use, copy and execute the MSI Owned Product or Service for the internal business purpose for which it is provided in accordance with the SOW and/or as necessary to use any Deliverable which such MSI Owned Products and Services are embedded or incorporated within.

(B) Customer shall have all right, title and interest (including, without limitation, all copyrights, patents, service marks, trademarks, trade secret and other intellectual property rights), and will have the right to use for any purpose, in and to all data, information, materials, methods, ideas, concepts, know-how, techniques, program organization or database, and structuring techniques provided by the Customer for incorporation into a Deliverable, and are incorporated into any final Deliverable under this Agreement. All Deliverable or portions thereof will be clearly and explicitly identified, defined and agreed upon by both Parties in the applicable SOW prior to the start of work.

(C) MSI is not restricted from using Residuals arising out of this Agreement in its business activities where “Residuals” means methods, ideas, concepts, know-how, techniques, program organization or database structuring techniques in intangible form, retained in the unaided memory by persons performing the Services and which does not contain Customer Confidential or Proprietary Information

(D) Notwithstanding the following, MSI and its third party partners shall own all right, title and interest in and to any and all suggestions, comments, improvements, or other feedback about the MSI Owned Products and Services (“Feedback”) that Customer or its affiliates offer directly or indirectly to MSI or its third party partners, even if Customer or its affiliate has designated the Feedback as Confidential Information. Upon providing the Feedback, Customer hereby irrevocably assigns to MSI and its third party partners all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide MSI and its third party partners with any assistance they may require to document, perfect, and maintain MSI’s and its third party partner’s rights in the Feedback

5. Licensed Product Delivery

(A) “Licensed Products” means all Licensed Products and Derivative Products, (“Products”); including software (“Software”), hardware (“Hardware”), data (“Data”), documentation and related materials.

(B) MSI and third party software is licensed and not sold.

(C) The Customer individual installing software must have proper Customer authorization and must have such software properly licensed, installed and registered to the Company. Downloaded software must be used only under the terms of its license.

(D) MSI Licensed Products and derivatives thereto are delivered to Customer:

1. As intellectual property in accordance with Paragraph 4 above,

2. In accordance with the applicable MSI license agreement specified in the SOW, which will be provided to Customer for its review and acceptance as part of the SOW review and acceptance process,

3. As, in the case of software, either compiled software or source code format. Source code shall be controlled as Confidential Information in accordance with this Agreement.

(E) Third party Licensed Products are provided by MSI in accordance with the applicable third party product license agreement, which is to be reviewed and accepted by Customer as part of the SOW review and acceptance process.

(F) MSI will inform the Customer of, and obtain advance approval of the Customer, for MSI and Third Party Owned Products and Services that are to be utilized and/or incorporated into the Deliverables. As part of the notification process, MSI will inform the Customer about any licensing requirements prior to the utilization and/or incorporation.

6. Services

(A) Customer understands and agrees that Customer’s reasonable cooperation is required in order for MSI to properly, efficiently and effectively perform the Services for Customer hereunder. Customer agrees to comply with all of MSI’s reasonable requests made in connection with the provision of Services to Customer hereunder.

(B) If an SOW requires MSI to provide delivery, modification, maintenance and/or installation services for Hardware and/or Software, Customer agrees to provide a suitable installation environment as reasonably specified by MSI.

(C) MSI shall have no liability whatsoever for any delays, deficiencies or failures that occur in the performance of Services as a result of Customer’s unanticipated requests, Customer’s adequate and timely support, complications with Customer’s systems, programs, accounts and data, and other unforeseen circumstances beyond the reasonable control of MSI.

7. Deliverable Acceptance Procedure

The criteria for the acceptance of Deliverables shall be established in the applicable SOW.

8. Confidentiality

(A) Confidential Information. Confidential Information means any and all nonpublic information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) before, on, or after the date of the Agreement in connection with the Agreement, Products or Services that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, all tangible, intangible, visual, electronic, present, or future information concerning the Discloser’s business such as, without limitation: (a) trade secrets; (b) technical information, including without limitation, research, developments, procedures, inventions, ideas, processes, software programs and subroutines, computer source and object code, algorithms, data, designs, techniques, know-how, formulae, programs, other works of authorship; (c) financial information, including, without limitation, pricing; (d) business information, including, without limitation, operations, planning, marketing interests, promotional and marketing activities and products; (e) information with respect to MSI, vendors, and customers individuals including, but not limited to, personally identifiable information, email addresses and any other contact information; and (f) the terms of any agreement between Customer and MSI and the discussions, negotiations and proposals related to that agreement.

(B) Confidential Information Exceptions. The Recipient does not have an obligation to protect Confidential Information that is: (a) in the public domain through no fault of the Recipient; (b) within the legitimate possession of the Recipient, with no confidentiality obligations to a third party; (c) lawfully received from a third party having rights in the information without restriction, and without notice of any restriction against its further disclosure; (d) independently developed by the Recipient without reference to any Confidential Information or breaching this Agreement or by Parties who have not had, either directly or indirectly, access to or knowledge of the Confidential Information; or (e) disclosed with the prior written consent of the Discloser.

(C) Disclosure Of Confidential Information. Confidential Information may be disclosed in writing, or other fixed media or disclosed in any other manner, including, without limitation, oral, visual, or electronic means. Each Party agrees to limit disclosure of any Confidential and Proprietary Information, received from the other Party, to its employees, agents, contractors, Affiliates, and advisors on a need to know basis. The Receiving Party and its personnel may use Confidential Information of the Disclosing Party only for the direct benefit of the Disclosing Party and only while performing services under this Agreement. Except as stated in the previous sentence, Receiving Party and its personnel agree not to disclose to any third–party, nor use for their own benefit or for the benefit of any other person or entity, such Confidential Information. The Parties agree to ensure that such employees, agents, contractors, Affiliates, and advisors acknowledge in advance that they are bound by the obligations as set forth in this Agreement with respect to any Confidential Information they may receive, and to use their best efforts to ensure that such persons comply with those obligations. Recipient is fully liable for any acts of its Representatives in violation of this Agreement.

(D) Use of and Duty of Care to Protect Confidential Information. The Recipient will use Confidential Information only to further the relationship between the Parties and will not reproduce Confidential Information except to accomplish this purpose. Confidential Information may not be disclosed to any third party without the prior written consent of the Discloser (other than to such parties Representatives and as may be required by applicable law and regulation). The Recipient will take all reasonable measures to avoid unauthorized disclosure, dissemination or use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.

(E) Ownership. Confidential Information remains the property of the Discloser. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual property rights are implied or granted to the Confidential Information, except to use the Confidential Information as provided in the Agreement. On termination of the Agreement or at the Discloser’s written request at any time, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be destroyed by the Recipient. At the request of the Discloser, the Recipient will promptly confirm in writing that any Confidential Information has been destroyed. Notwithstanding the foregoing, copies of Confidential Information that are required to be retained by law or regulation or audit requirements or that are created pursuant to any automated archiving or back-up procedures which cannot reasonably be deleted may be retained, however, such Confidential Information shall continue to be subject to the terms of this Agreement.

(F) No Reverse Engineering. Either Party will not, and will not permit any other Party to, reverse engineer, decompile or disassemble any hardware or software received from the other Party for any purpose inconsistent with this Agreement.

(G) No Warranty. Except as otherwise agreed in writing with respect of a specific Transaction, no warranties of any kind are given by either Party with respect to the accuracy, appropriateness or completeness of information provided to the other.

(H) Indemnity. Each Party represents and warrants that it has the right to disclose all Confidential Information that it discloses to the other Party. Each Party will indemnify and defend the other from all third-Party claims resulting from the negligent or wrongful disclosure by the indemnifying Party of a third-Party’s confidential information.

(I) Right to Enjoin Disclosure. The Parties acknowledge that a Recipient’s unauthorized disclosure or use of Confidential Information may result in irreparable harm. If there is a breach or threatened breach of this Agreement the Discloser may seek a temporary restraining order and injunction to protect its Confidential Information. This provision does not alter any other remedies available to either Party. The Party who has breached or threatened to breach this Agreement will not raise the defense of an adequate remedy at law.

9. Indemnification

(A) Each Party will indemnify, defend, and hold the other Party and its officers, directors, employees, contractors, Affiliates, and agents (collectively, “Indemnified Parties”) harmless from any and all claims, suits, demands, costs, liabilities, expenses, and damages (including reasonable attorneys’ cost and fees) (collectively, “Claims”) alleging:

1) Breach of this Agreement;

2) Breach of any third party intellectual property or other proprietary right;

3) Negligence, gross negligence, willful misconduct, wrongful disclosure of a third-party’s confidential information, fraud, or strict liability in relation to or in connection with its performance under this Agreement; (ii) any failure by Customer to observe or perform any term or provision of this Agreement,

4) Gross negligence or willful acts or omissions that result in any bodily injury or death to any person or loss, disappearance, or damage to tangible or intangible property; or

5) Violation of any third party right of privacy.

(B) MSI will indemnify, defend, and hold the Customer and its Indemnified Parties harmless against a Claim that information, design, specification, instruction, software, data or material (“Material”) furnished by MSI or any of its Indemnified Parties hereunder, or any Product, Software, Services or Deliverable infringes a third party’s copyright, trade secret, patent, trademark, publication or other proprietary right, and will indemnify and hold harmless the Customer and its Indemnified Parties from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with such a claim; except to the extent (a) the claim is based on specifications provided by Customer and such reliance is the cause of the infringement, (b) such claim is based upon Customer’s use of a superseded or altered version of some or all of the Material, if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered release of the Material which was provided to the Customer, (c) such Claim is based upon Customer’s alteration and/or use of some or all of the Material in a manner that violates a Material contract or license which was provided to Customer, and/or (d) the combination of a Deliverable or Material with any products or services which are not provided or otherwise authorized by MSI, if such claim would not have arisen but for such combination

(C) When seeking indemnification, the indemnified Party will use reasonable efforts to promptly:

1. Notify the indemnifying Party in writing of any such Claim; and

2. Give the indemnifying Party full control and sole authority over the defense and settlement of such Claim, provided settlement fully releases the indemnified Party, and is solely for monetary damages and does not admit any liability on behalf of the indemnified Party. Notwithstanding the foregoing, (i) the indemnified Party may join in defense and settlement discussions directly or through counsel of indemnifying Party’s choice at indemnified Party’s own cost and expense and (ii) indemnifying party may not settle a claim without the indemnified party’s prior written consent if such settlement places liability, obligations or otherwise adversely affects the indemnified party.

(D) In the case of a third party Claim against MSI of intellectual property infringement or upon any facts which in the indemnifying Party’s sole opinion are likely to give rise to such Claim, MSI shall in its sole discretion and at its sole option elect to:

1. Procure for the Customer the right to continue to use the software, hardware and/or service, at no additional cost to the indemnified Party,

2. Replace the software, hardware and/or service so that it becomes non-infringing but functionally equivalent,

3. Modify the software, hardware and/or services to avoid the alleged infringement but in a manner so that it remains functionally equivalent, or

4. Terminate this Agreement or the affected SOW and provide a refund to the Customer of all amounts paid by the Customer to the MSI for the affected software, hardware and/or services.

(E) If a third party Claim against the Customer, or its officers, directors, employees, Affiliates, Partners and agents materially affects MSI’s ability to meet its obligations under the relevant SOW, then MSI may, at its sole discretion and upon thirty (30) days prior written notice to Customer, terminate such SOW, in which case Customer shall pay MSI for Services rendered in accordance with this Agreement through the date of termination.

(F) Customer shall indemnify, defend, and hold MSI and its affiliates and their respective shareholders, directors, officers, employees, and agents (each an “Indemnified Party”) harmless from and against any Claim of: (i) Customer’s negligence, gross negligence, willful misconduct, fraud, or strict liability in relation to or in connection with its performance under this Agreement; (ii) any failure by Customer to observe or perform any term or provision of this Agreement, a Project Contract, or an applicable MSI or third party license; (III) an infringement or misappropriation to the extent that (a) the claim is based on specifications provided by Customer and such reliance is the cause of the infringement, (b) such claim is based upon Customer’s use of a superseded or altered version of some or all of the Material, if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered release of the Material which was provided to the Customer, (c) such Claim is based upon Customer’s alteration and/or use of some or all of the Material in a manner that violates a Material contract or license which was provided to Customer, and/or (d) the combination of a Deliverable or Material with any products or services which are not provided or otherwise authorized by MSI, if such claim would not have arisen but for such combination

10. Representations And Warranties

(A) Each Party represents and warrants that:

1. It has the right, power and authority to enter into this Agreement and perform according to its terms;

2. The performance of its obligations will not breach any agreements with a third party;

3. The Materials do not contain any libelous, materially false, or misleading statements; and

4. The Party’s activities comply with all applicable laws, rules and regulations.

(B) MSI represents and warrants that it will perform its obligations in a timely manner and with professional diligence and skill in a manner consistent with the good workmanlike standards. Customer shall report any deficiencies in the Products and/or Services to MSI in writing within thirty (30) days of performance of such Products and/or Services in order to receive warranty remedies. If within thirty (30) days of notice, to perform such Services to Customer’s reasonable satisfaction, or if MSI is unable to do so, MSI shall within thirty (30) days of notice, repair or replace the Product so that it conforms with the specifications therefor or, if MSI is unable to do so, to refund to Customer the fees paid for such nonconforming Product.

(C) While efforts are made to verify the completeness and accuracy of the information provided by MSI, MSI shall not be responsible for any damages arising out of the use of any information related to any Products or Services or any documentation provided by MSI. No information or anything contained in documentation provided by MSI is intended to, nor shall have the effect of, creating any warranties or representations by MSI (or its suppliers or licensors), or altering the terms and conditions of any applicable agreements.

(D) MSI does not provide legal advice. Customer is responsible for ensuring its own compliance with legal, regulatory and court requirements. It is the Customer’s sole responsibility to obtain advice of competent legal counsel as to the identification, interpretation and implementation of any relevant laws, regulatory requirements, court rules and court rulings that may affect the Customer’s business and any actions the Customer may need to take to comply with such requirements.

(E) EXCEPT AS PROVIDED IN THIS PARAGRAPH 10 (REPRESENTATIONS AND WARRANTIES) HEREIN, ALL INFORMATION, DOCUMENTATION, EQUIPMENT, SOFTWARE AND/OR SERVICES ARE SOLD, LICENSED OR DELIVERED “AS IS”. MSI DISCLAIMS ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES. THIS INCLUDES THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THIS ALSO INCLUDES ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

11. Business Contact Information

(A) Both Parties and its affected personnel hereby grant the other Party permission to collect, utilize and store information for business purposes that is necessary for the furtherance of one Party’s business relationship with the other Party and the provision of third party Supplier Products and Services (Business Contact Information).

(B) Both Parties agree that Business Contact Information may include, but is not limited to, individuals’ name, individuals’ titles, company name, business phone numbers, email addresses utilized for business communications, and mailing addresses utilized in business.

(C) Both Parties agree that such information is not non-public personal data as construed by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, or either Non-public Personal Information (NPPI) or Personal Health Information (PHI) as established by the laws of the United States such as GLBA, HIPAA and Massachusetts 201 CMR 17 standards.

(D) Both Parties agree that if Business Contact Information one Party provides to the other Party includes Personal Information, NPPI, or PHI, the Disclosing Party will:

1. Warrant that it has obtained all necessary consents to provide Personal Information to Receiving Party for the purpose of performing this Agreement, and

1. Notify the Receiving Party regarding what information is Personal Information, NPPI or PHI so that the Receiving Party can either refuse to accept the information, or accept and use it for the intended purpose in accordance with applicable regulations.

12. DISCLAIMER AND LIMITATIONS OF LIABILITY

(A) MSI SHALL BE ENTITLED TO RELY ON ANY AND ALL INFORMATION AND MATERIALS PROVIDED TO IT BY CUSTOMER, AND MSI SHALL NOT BE LIABLE FOR ANY INACCURACY OR INCOMPLETENESS OF SUCH INFORMATION OR MATERIALS.

(B) CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA AND THAT CUSTOMER WILL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. MSI AND ITS THIRD PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED

(C) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, MULTIPLIED OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS AND LOSS OF OR DAMAGE TO DATA, HARDWARE OR SOFTWARE, EVEN IF THE PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(D) EACH PARTY’S LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND RESULTING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT OR IN CONTRACT, SHALL BE LIMITED TO THE AMOUNT PAID TO MSI DURING THE PRECEDING 12 MONTHS FOR THE LATEST AFFECTED SOW HEREUNDER, WITHOUT INTEREST.

(E) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ARISES.

(F) THE FOREGOING DISCLAIMERS OF LIABILITY AND LIMITATIONS OF DAMAGES SHALL NOT APPLY TO CLAIMS BASED ON GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

13. Assignment.

(A) Except as provided in Section 13(B), neither Party may assign the Agreement or its rights and/or delegate its obligations under the Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Any assignment or transfer of the Agreement by a Party in violation of this section will be void.

(B) Either Party may assign the Agreement to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of such Party to such entity and such entity agrees in writing to be bound by the terms of the Agreement.

(C) This Agreement will be binding on and inure to the benefit of Customer’s and MSI’s respective permitted successors and permitted assigns.

14. Inability to Perform

Neither Party shall be required to perform its obligations under this Agreement, or be liable for its failure to perform, during any period in which such non-performance is caused by an event beyond the Party’s reasonable control; such as an act of God, a significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, civil disturbance, riot, strike, work stoppage, transportation delay, unavailability of Equipment or Software, product shipping delay or cancellation by manufacturers, power failures, any act or order of any governmental agency or official thereof. In such event, the party that is unable to perform shall give prompt notice to the other party, which shall have the right to terminate this Agreement.

15. Export

The Parties acknowledge that Equipment, Software and/or Services provided hereunder, including documentation, other technical data, and/or training and/or education materials, may be subject to export controls imposed by law, rule or regulation. Neither Party will export or re-export (directly or indirectly) any such Equipment, Software and/or the results of Services, or any such documentation, other technical data, and/or training and/or education materials, without complying with all applicable laws, rules and regulations. Each Party shall comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Materials, Software or results of Services (Product) (or any product incorporating such Product) in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to destinations prohibited either in Country Groups Q, S, W, Y or Z country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.); Each Party shall bear its own expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of all Products to any location desired by such Party.

16. Non-Solicitation

(A) Similar Services

1) This Agreement is nonexclusive. It does not restrict either Party from offering to, or procuring from, any third party the same or similar Products or Services.

2) A Party may use the same personnel to provide those services to others in the same industry as the other Party, and to develop new Products and Services. These personnel, however, must abide by the terms of this Agreement including the protection of the other Party’s Confidential Information.

(B) Non-Hire Covenant

1. Both parties agree that during the period that this agreement is in force, including extensions or modifications thereto, and for an additional 12 months following this period, neither Party will actively recruit, or solicit permanent employees of the other Party, or the employees of any of the other Party’s subcontractors; who are on active payroll status and are actively engaged under this Agreement, without the prior written approval of the Party whose employee is being considered for employment. This does not prohibit any employee from responding to or pursuing employment opportunities through normal media channels, i.e. newspapers, professional journals, etc. or general solicitations so long as it is not an attempt to avoid the intent of the above restriction.

2. Breach of this provision may result in the non-breaching Party pursuing all of its remedies under this Agreement, including injunctive relief. In such event, the non-breaching Party may terminate this Agreement without further liability.

17. Relationship Of The Parties And Their Employees

(A) Independent Contractors Nothing contained herein shall be construed as creating a partnership, joint venture or agency or employment relationship between MSI (and its employees and Subcontractors) and Customer. In performing all Services required hereunder, each Party shall act as an independent Contractors to the other.

(B) Nonexclusive Agreement. This Agreement is nonexclusive. Except as otherwise provided in this Agreement each Party may independently engage in any business endeavor, whether or not it is competitive with the object of this Agreement, without consulting the other Party and without in any way being accountable to the other Party.

(C) No Agency. Except as expressly provided herein, neither Party shall have any authority or power to contract or in any manner incur liability, retrospectively or prospectively, of any kind or nature for or in the name of the other Party or for which the other Party could or might be held liable to others.

(D) Employees. MSI’s employees who perform MSI’s obligations under this Agreement shall at all times be and remain employees of MSI, not employees of Customer. MSI shall pay MSI’s employees and shall ensure that each of its Subcontractors pays its employees, all wages, salaries, overtime, and other amounts due to such employees. MSI shall be responsible for, and shall ensure that each of its Subcontractors shall be responsible for, all reports, payments, and other obligations respecting their respective employees, including without limitation, those related to social security, income tax withholding, unemployment compensation, workers’ compensation, and employee benefit plans.

18. Term and Termination

(A) This Agreement shall continue in effect until terminated in accordance with this Agreement or replaced by a new or updated Agreement.

(B) This Agreement may be terminated on sixty (60) days written notice by either Party. In the event of termination hereunder, MSI shall receive payment for the following:

1. all Services performed and all Supplies delivered consistent with the terms of the Contract prior to the effective date of termination, and

2. all actual and reasonable costs incurred by MSI as a result of the termination of the Contract.

(C) If an SOW is outstanding and performance thereof has begun, the Parties agree that such SOW(s) shall be honored and completed and that the terms and conditions of this Agreement shall continue in full force and effect with regard to such SOW (except that, if an SOW is for Services only, the Parties may agree to cancel such Services at any time). Performance shall be deemed to have begun if MSI has ordered, or irrevocably committed to order, any Equipment or Software from manufacturers, distributors, etc. If performance under an SOW has not begun, then either Party may cancel such SOW by giving the other Party notice thereof.

(D) Notwithstanding paragraph (C) above, in the event of a breach of this Agreement, this Agreement may be terminated by the non-breaching Party fifteen (15) days after a written notice of the breach has been delivered to the breaching Party, and the breaching Party has failed to remedy the breach within fifteen (15) days.

(E) Upon expiration or termination of this Agreement, neither Party shall be relieved from any obligation accrued up to and including the date of such expiration or termination nor deprived of any right or remedy otherwise available to it pursuant to this Agreement. Any terms of this Agreement, which by their nature extend beyond Agreement termination, remain in effect until fulfilled and apply to respective successors and assignees.

19. Notices

(A) Any and all written notices or other written communication provided for herein shall be deemed to be validly given:

3. As of the date of delivery if delivered personally

4. Three days after a mailing if sent by registered or certified mail, return receipt requested

5. When a facsimile or other electronic version of a notice is duly executed and transmitted

NOTE: A duly executed and transmitted electronic transmission shall be considered for all purposes to be an original document, deemed for all purposes to be signed and constitute a legally binding agreement.

(B) All notices shall be addressed to the Parties at the following addresses:

If to VENDOR:
Micro Strategies Inc.
1140 Parsippany Blvd.
Parsippany, NJ 07054
Telephone: 973-625-7721
Facsimile: 973-625-5130
Attn:
Email:

If to CUSTOMER:
Customer Name
Customer Address
City, State ZIP Code
Customer Telephone:
Customer Fax:
Attn: Customer Contact Name
Email: Customer Email Address

20. Waiver Of A Right

No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof.

21. Survival

Any provision of or obligation under this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any such termination or expiration, and shall continue in full force and effect. In addition, all provisions of this Agreement shall survive the termination or expiration of this Agreement to the fullest extent necessary to give the parties the full benefit of the agreement expressed herein and of the intent contemplated hereunder.

22. Section Headings

The headings of the sections in this Agreement are for the purposes of convenient reference only and are not intended to be part of this Agreement, or to limit or affect the meaning or interpretation of any of the terms hereof.

23. Agreement Execution

This Agreement may be executed in any number of counterparts with the same effect as if the signatures were upon a single engrossment of this Agreement, but shall not be effective until each Party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same instrument.
24. Dispute Resolution & Choice of Law

(A) The Parties shall attempt in good faith to resolve all claims, disputes and controversies arising out of or relating to this Agreement or the relationship of the Parties (collectively “Dispute”) in the ordinary course of business.

(B) If a Dispute has not been resolved within thirty (30) days of the first formal written notification of a dispute from an authorized executive of one of the Parties, the Parties shall attempt to settle the Dispute by mediation under the then current model mediation procedures for business disputes of CPR International Institute for Conflict Prevention & Resolution (“CPR”). Within ten (10) days after a Party’s written notice to the other Party of its desire to mediate, the Parties will appoint a mutually acceptable mediator from the CPR Panel of Distinguished Neutrals.

(C) All negotiations and mediations under this Paragraph 24 shall be considered confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. The Parties shall continue to perform this Agreement pending final resolution of any Dispute.

(D) The terms of this Paragraph24 shall not prevent either Party from taking appropriate measures, including, without limitation, seeking immediate injunctive relief, protecting its confidential information or intellectual property interests, and/or preventing either Party from pursuing any remedy at law or in equity as may be necessary to protect intellectual property interests.

(E) In the event it becomes necessary for either Party to enforce the terms and conditions of this Agreement through litigation,

1. each party irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to these terms and conditions or any purchase order incorporating these terms and conditions.

2. the prevailing Party pursuant to a final, non-appealable order shall be entitled to recover all reasonable out-of-pocket costs incurred, including reasonable attorneys’ fees. In the event such claims, loses, damages, or expenses are caused by the joint or concurrent negligence of Customer and MSI, or their respective agents, officers, employees or Subcontractors of any tier, they shall be borne by each Party in proportion to the negligence.

25. Governing Law, Jurisdiction and Venue.

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) . The Parties agree to the exclusive venue and jurisdiction of the federal and state courts in and for Morris County, New Jersey. This Agreement shall not be governed by the UN Convention on the International Sale of Goods, or any enactment of the Uniform Computer Information Transactions Act. To the extent that UCITA is applicable, then we each agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained in UCITA. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States in the State of New Jersey or the courts of the State of New Jersey, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens

26. Entire Agreement

(A) This Agreement, including any Attachments and Statements of Work constitutes the entire agreement between the parties regarding the subject matter hereof and is the exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision or pre-printed terms on any hard copy or electronic purchase orders, proposals, or quotations or in any other hard copy or electronic business document or form employed by either Party will supersede, augment or modify the terms and conditions of this Agreement, and no promise, representation, warranty, or covenant not included in this Agreement has been or is relied upon by either Party. Each Party hereby rejects all such different or additional terms offered by the other Party

(B) If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such term or provision shall be deemed modified to the extent necessary, in the court’s opinion, to render such term or provision enforceable. Upon such modification, the rights and obligations of the parties shall be construed and enforced in accordance with such modification, preserving to the fullest permissible extent the intent and agreements of the parties set forth in this Agreement.

(C) No modification or amendment to this Agreement shall be of any force or effect unless in writing and executed by Customer and MSI.

(D) Each Party has relied upon its own examination of this Agreement and the provisions hereof and upon the counsel of its own advisors.

I have read, understand and agree to these Terms and Conditions and agree to be bound by them.

Company Name
Signature:
Name:
Title:
Date:


Micro Strategies Inc.
Signature:
Name: David Gaines
Title: VP Security & Compliance
Date:

1.  Agreement Structure

(A) This Agreement governs the delivery of certain products (which may be hardware (“Hardware”) and/or software (“Software”), which are collectively referred to as “Products”) and the provision of certain services to the Customer by MSI (collectively referred to as “Services”)

(B) MSI provides additional terms for Products and Services in documents called Attachments and Quotes/Statements of Work (hereinafter referred to as SOW in this Agreement) which, if applicable, shall be incorporated and made a part of this Agreement. All transactions have one or more associated SOW’s.

(C) If there is a conflict among the terms in the various documents, those of an Attachment prevail over those of this Agreement. Subject to the foregoing, the terms of an SOW will prevail over this Agreement and its Amendments. The order of precedence of an Attachment, when there are more than a single Attachment to the Agreement, will, when a conflict exists between Attachments, be specified in the specific SOW.

(D) Amendments and SOW’s become a part of this Agreement upon signature by both Parties to this Agreement.

(E) Each SOW shall, to the extent applicable, contain: (i) a description of the Products and any Services to be performed by MSI; (ii) the tasks to be completed by Customer and any third parties; (iii) a description of the Products and Services to be delivered by MSI (“Deliverables”); (iv) the schedule for delivery of each Product and Service and Deliverables; (v) the Charges to be paid to MSI for such Products and Services, and (vi) such additional information as the parties may wish to include.

(F) SOWs shall be deemed accepted when executed by the Parties.

2.  Expenses, Invoicing And Payment

(A) As full compensation for the Services, Customer shall pay MSI in accordance with the terms of this Agreement and the respective SOWs. The fees (“Fees”) for the Services shall be specified in the respective SOWs. Fees may be calculated (a) on a fixed price basis, or (b) on a time and materials basis (“T&M”).

(B) All Fees charges, sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs or other taxes, duties or other fees now or hereafter claimed or imposed by any governmental authority upon the sale of the Products unless otherwise agreed in an SOW. If Customer is required to pay (i) sales, use, property, value-added, withholding or other taxes, (ii) any customs or other duties, or (iii) any import, warehouse or other fees, associated with the importation or delivery based on Services provided in this Agreement or on Customer’s use of Services, then such taxes, duties or fees shall be billed to and paid by Customer. If Customer is permitted to declare any such taxes, Customer shall declare and pay such taxes and fees, notify MSI which taxes and fees it is paying, and MSI shall not be required to invoice Customer for those taxes and fees. This Section shall not apply to taxes based on MSI’s net income or payroll taxes, which MSI is responsible for paying.

(C) Unless otherwise noted, prices shown do not include shipping and insurance charges, delivery, site preparation, installation, electrical or environmental requirements, testing, maintenance or other Services.

(D) When specified in an SOW or other approved contract document, Customer will reimburse MSI for its actual out-of-pocket travel-and living related expenses reasonably incurred in connection with its performance of the Services; provided, however, that (i) MSI obtains the written approval of Customer prior to incurring any such expenses, (ii) all such expenses are consistent with Customer’s then-current travel and expense policies, as applicable, and (iii) all such expenses are supported by adequate documentation submitted by MSI together with the relevant invoice.

(E) Services and expenses will be invoiced at the agreed-upon rate set forth in an approved SOW.

(F) Any taxes, duties or such other charges will be invoiced to the Customer. MSI may be required to collect and remit taxes from Customer unless Customer provides MSI with a valid tax exemption certificate. If it is required to pay any such amount, Customer will promptly reimburse MSI for any such amount. In no event will either Party be responsible for any taxes levied against the other Party’s net income.

(G) Each invoice submitted to Customer must reference a valid SOW and provide supporting detail for the Services and expenses invoiced.

(H) MSI will submit to Customer monthly invoices for Products and/or Services delivered or provided to Customer by MSI. All payments are due NET 30 days from the date of invoice unless other terms are set forth in the SOW. In the event payments are not made in accordance with the terms hereof, MSI reserves the right to charge interest on any unpaid balance at the rate of one and one-half percent (1.5%) per month, or the highest rate allowed by law, whichever is lower.

(I) RETURNS WILL NOT BE ACCEPTED WITHOUT A RETURN AUTHORIZATION FROM MSI.

3.  Title & Risk of Loss

(A) MSI hereby retains title to and a security interest in the Hardware, and/or a security interest in the Software, delivered to Customer, until Customer makes payment in full of the purchase price hereunder. Until payment in full has been made, Customer shall not move Products from the address set forth in the SOW without the written consent of MSI.

(B) Title and ownership rights to all Software, machine code and any copies thereof shall be controlled by the license(s) provided by the manufacturer, licensor, or distributor thereof.

(C) All risk of loss, destruction, or damage to all Equipment and/or Software, by reason of theft, fire, water, or any other cause, shall pass to Customer upon delivery of the Equipment and/or Software to a common carrier (or directly to Customer, if MSI is delivering), and the occurrence of any such casualty shall not relieve Customer of its obligation to pay the balance of the purchase price, if any.

4. Intellectual Property Ownership

(A) “MSI’s Intellectual Property” – means any MSI’s or third party’s Intellectual Property, including without limitation, copyrights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, trade secret or confidentiality rights, know-how, inventions, patents of any type, patent applications, unregistered patents, design rights, utility models or other similar invention rights, moral rights and all other proprietary rights, whether registered, any other intellectual and intangible property rights, including all registrations and applications for such rights, and all continuations, existing prior to the Agreement Effective Date, that is developed at any time outside the scope of this Agreement or any Statement of Work, and any improvement, development, extension or modification to MSI’s Intellectual Property that is conceived or reduced to practice by MSI or its Personnel, third party partners and/or agents in connection with this Agreement or any Statement of Work. MSI and its third party partners shall remain the exclusive owner of its Intellectual Property. If any MSI Owned Products and Services are embedded in or provided as a Deliverable, MSI, unless otherwise specified in a software license provided to and agreed upon by Customer, hereby grants, Customer a perpetual, fully paid up, royalty-free, irrevocable, worldwide, assignable, non-exclusive right and license to use, copy and execute the MSI Owned Product or Service for the internal business purpose for which it is provided in accordance with the SOW and/or as necessary to use any Deliverable which such MSI Owned Products and Services are embedded or incorporated within.

(B) Customer shall have all right, title and interest (including, without limitation, all copyrights, patents, service marks, trademarks, trade secret and other intellectual property rights), and will have the right to use for any purpose, in and to all data, information, materials, methods, ideas, concepts, know-how, techniques, program organization or database, and structuring techniques provided by the Customer for incorporation into a Deliverable, and are incorporated into any final Deliverable under this Agreement. All Deliverable or portions thereof will be clearly and explicitly identified, defined and agreed upon by both Parties in the applicable SOW prior to the start of work.

(C) MSI is not restricted from using Residuals arising out of this Agreement in its business activities where “Residuals” means methods, ideas, concepts, know-how, techniques, program organization or database structuring techniques in intangible form, retained in the unaided memory by persons performing the Services and which does not contain Customer Confidential or Proprietary Information

(D) Notwithstanding the following, MSI and its third party partners shall own all right, title and interest in and to any and all suggestions, comments, improvements, or other feedback about the MSI Owned Products and Services (“Feedback”) that Customer or its affiliates offer directly or indirectly to MSI or its third party partners, even if Customer or its affiliate has designated the Feedback as Confidential Information. Upon providing the Feedback, Customer hereby irrevocably assigns to MSI and its third party partners all right, title, and interest in and to the intellectual property rights in the Feedback and agrees to provide MSI and its third party partners with any assistance they may require to document, perfect, and maintain MSI’s and its third party partner’s rights in the Feedback

5. Licensed Product Delivery

(A) “Licensed Products” means all Licensed Products and Derivative Products, (“Products”); including software (“Software”), hardware (“Hardware”), data (“Data”), documentation and related materials.

(B) MSI and third party software is licensed and not sold.

(C) The Customer individual installing software must have proper Customer authorization and must have such software properly licensed, installed and registered to the Company. Downloaded software must be used only under the terms of its license.

(D) MSI Licensed Products and derivatives thereto are delivered to Customer:

1. As intellectual property in accordance with Paragraph 4 above,

2. In accordance with the applicable MSI license agreement specified in the SOW, which will be provided to Customer for its review and acceptance as part of the SOW review and acceptance process,

3. As, in the case of software, either compiled software or source code format. Source code shall be controlled as Confidential Information in accordance with this Agreement.

(E) Third party Licensed Products are provided by MSI in accordance with the applicable third party product license agreement, which is to be reviewed and accepted by Customer as part of the SOW review and acceptance process.

(F) MSI will inform the Customer of, and obtain advance approval of the Customer, for MSI and Third Party Owned Products and Services that are to be utilized and/or incorporated into the Deliverables. As part of the notification process, MSI will inform the Customer about any licensing requirements prior to the utilization and/or incorporation.

6. Services

(A) Customer understands and agrees that Customer’s reasonable cooperation is required in order for MSI to properly, efficiently and effectively perform the Services for Customer hereunder. Customer agrees to comply with all of MSI’s reasonable requests made in connection with the provision of Services to Customer hereunder.

(B) If an SOW requires MSI to provide delivery, modification, maintenance and/or installation services for Hardware and/or Software, Customer agrees to provide a suitable installation environment as reasonably specified by MSI.

(C) MSI shall have no liability whatsoever for any delays, deficiencies or failures that occur in the performance of Services as a result of Customer’s unanticipated requests, Customer’s adequate and timely support, complications with Customer’s systems, programs, accounts and data, and other unforeseen circumstances beyond the reasonable control of MSI.

7. Deliverable Acceptance Procedure

The criteria for the acceptance of Deliverables shall be established in the applicable SOW.

8. Confidentiality

(A) Confidential Information. Confidential Information means any and all nonpublic information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) before, on, or after the date of the Agreement in connection with the Agreement, Products or Services that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, all tangible, intangible, visual, electronic, present, or future information concerning the Discloser’s business such as, without limitation: (a) trade secrets; (b) technical information, including without limitation, research, developments, procedures, inventions, ideas, processes, software programs and subroutines, computer source and object code, algorithms, data, designs, techniques, know-how, formulae, programs, other works of authorship; (c) financial information, including, without limitation, pricing; (d) business information, including, without limitation, operations, planning, marketing interests, promotional and marketing activities and products; (e) information with respect to MSI, vendors, and customers individuals including, but not limited to, personally identifiable information, email addresses and any other contact information; and (f) the terms of any agreement between Customer and MSI and the discussions, negotiations and proposals related to that agreement.

(B) Confidential Information Exceptions. The Recipient does not have an obligation to protect Confidential Information that is: (a) in the public domain through no fault of the Recipient; (b) within the legitimate possession of the Recipient, with no confidentiality obligations to a third party; (c) lawfully received from a third party having rights in the information without restriction, and without notice of any restriction against its further disclosure; (d) independently developed by the Recipient without reference to any Confidential Information or breaching this Agreement or by Parties who have not had, either directly or indirectly, access to or knowledge of the Confidential Information; or (e) disclosed with the prior written consent of the Discloser.

(C) Disclosure Of Confidential Information. Confidential Information may be disclosed in writing, or other fixed media or disclosed in any other manner, including, without limitation, oral, visual, or electronic means. Each Party agrees to limit disclosure of any Confidential and Proprietary Information, received from the other Party, to its employees, agents, contractors, Affiliates, and advisors on a need to know basis. The Receiving Party and its personnel may use Confidential Information of the Disclosing Party only for the direct benefit of the Disclosing Party and only while performing services under this Agreement. Except as stated in the previous sentence, Receiving Party and its personnel agree not to disclose to any third–party, nor use for their own benefit or for the benefit of any other person or entity, such Confidential Information. The Parties agree to ensure that such employees, agents, contractors, Affiliates, and advisors acknowledge in advance that they are bound by the obligations as set forth in this Agreement with respect to any Confidential Information they may receive, and to use their best efforts to ensure that such persons comply with those obligations. Recipient is fully liable for any acts of its Representatives in violation of this Agreement.

(D) Use of and Duty of Care to Protect Confidential Information. The Recipient will use Confidential Information only to further the relationship between the Parties and will not reproduce Confidential Information except to accomplish this purpose. Confidential Information may not be disclosed to any third party without the prior written consent of the Discloser (other than to such parties Representatives and as may be required by applicable law and regulation). The Recipient will take all reasonable measures to avoid unauthorized disclosure, dissemination or use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.

(E) Ownership. Confidential Information remains the property of the Discloser. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual property rights are implied or granted to the Confidential Information, except to use the Confidential Information as provided in the Agreement. On termination of the Agreement or at the Discloser’s written request at any time, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be destroyed by the Recipient. At the request of the Discloser, the Recipient will promptly confirm in writing that any Confidential Information has been destroyed. Notwithstanding the foregoing, copies of Confidential Information that are required to be retained by law or regulation or audit requirements or that are created pursuant to any automated archiving or back-up procedures which cannot reasonably be deleted may be retained, however, such Confidential Information shall continue to be subject to the terms of this Agreement.

(F) No Reverse Engineering. Either Party will not, and will not permit any other Party to, reverse engineer, decompile or disassemble any hardware or software received from the other Party for any purpose inconsistent with this Agreement.

(G) No Warranty. Except as otherwise agreed in writing with respect of a specific Transaction, no warranties of any kind are given by either Party with respect to the accuracy, appropriateness or completeness of information provided to the other.

(H) Indemnity. Each Party represents and warrants that it has the right to disclose all Confidential Information that it discloses to the other Party. Each Party will indemnify and defend the other from all third-Party claims resulting from the negligent or wrongful disclosure by the indemnifying Party of a third-Party’s confidential information.

(I) Right to Enjoin Disclosure. The Parties acknowledge that a Recipient’s unauthorized disclosure or use of Confidential Information may result in irreparable harm. If there is a breach or threatened breach of this Agreement the Discloser may seek a temporary restraining order and injunction to protect its Confidential Information. This provision does not alter any other remedies available to either Party. The Party who has breached or threatened to breach this Agreement will not raise the defense of an adequate remedy at law.

9. Indemnification

(A) Each Party will indemnify, defend, and hold the other Party and its officers, directors, employees, contractors, Affiliates, and agents (collectively, “Indemnified Parties”) harmless from any and all claims, suits, demands, costs, liabilities, expenses, and damages (including reasonable attorneys’ cost and fees) (collectively, “Claims”) alleging:

1) Breach of this Agreement;

2) Breach of any third party intellectual property or other proprietary right;

3) Negligence, gross negligence, willful misconduct, wrongful disclosure of a third-party’s confidential information, fraud, or strict liability in relation to or in connection with its performance under this Agreement; (ii) any failure by Customer to observe or perform any term or provision of this Agreement,

4) Gross negligence or willful acts or omissions that result in any bodily injury or death to any person or loss, disappearance, or damage to tangible or intangible property; or

5) Violation of any third party right of privacy.

(B) MSI will indemnify, defend, and hold the Customer and its Indemnified Parties harmless against a Claim that information, design, specification, instruction, software, data or material (“Material”) furnished by MSI or any of its Indemnified Parties hereunder, or any Product, Software, Services or Deliverable infringes a third party’s copyright, trade secret, patent, trademark, publication or other proprietary right, and will indemnify and hold harmless the Customer and its Indemnified Parties from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with such a claim; except to the extent (a) the claim is based on specifications provided by Customer and such reliance is the cause of the infringement, (b) such claim is based upon Customer’s use of a superseded or altered version of some or all of the Material, if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered release of the Material which was provided to the Customer, (c) such Claim is based upon Customer’s alteration and/or use of some or all of the Material in a manner that violates a Material contract or license which was provided to Customer, and/or (d) the combination of a Deliverable or Material with any products or services which are not provided or otherwise authorized by MSI, if such claim would not have arisen but for such combination

(C) When seeking indemnification, the indemnified Party will use reasonable efforts to promptly:

1. Notify the indemnifying Party in writing of any such Claim; and

2. Give the indemnifying Party full control and sole authority over the defense and settlement of such Claim, provided settlement fully releases the indemnified Party, and is solely for monetary damages and does not admit any liability on behalf of the indemnified Party. Notwithstanding the foregoing, (i) the indemnified Party may join in defense and settlement discussions directly or through counsel of indemnifying Party’s choice at indemnified Party’s own cost and expense and (ii) indemnifying party may not settle a claim without the indemnified party’s prior written consent if such settlement places liability, obligations or otherwise adversely affects the indemnified party.

(D) In the case of a third party Claim against MSI of intellectual property infringement or upon any facts which in the indemnifying Party’s sole opinion are likely to give rise to such Claim, MSI shall in its sole discretion and at its sole option elect to:

1. Procure for the Customer the right to continue to use the software, hardware and/or service, at no additional cost to the indemnified Party,

2. Replace the software, hardware and/or service so that it becomes non-infringing but functionally equivalent,

3. Modify the software, hardware and/or services to avoid the alleged infringement but in a manner so that it remains functionally equivalent, or

4. Terminate this Agreement or the affected SOW and provide a refund to the Customer of all amounts paid by the Customer to the MSI for the affected software, hardware and/or services.

(E) If a third party Claim against the Customer, or its officers, directors, employees, Affiliates, Partners and agents materially affects MSI’s ability to meet its obligations under the relevant SOW, then MSI may, at its sole discretion and upon thirty (30) days prior written notice to Customer, terminate such SOW, in which case Customer shall pay MSI for Services rendered in accordance with this Agreement through the date of termination.

(F) Customer shall indemnify, defend, and hold MSI and its affiliates and their respective shareholders, directors, officers, employees, and agents (each an “Indemnified Party”) harmless from and against any Claim of: (i) Customer’s negligence, gross negligence, willful misconduct, fraud, or strict liability in relation to or in connection with its performance under this Agreement; (ii) any failure by Customer to observe or perform any term or provision of this Agreement, a Project Contract, or an applicable MSI or third party license; (III) an infringement or misappropriation to the extent that (a) the claim is based on specifications provided by Customer and such reliance is the cause of the infringement, (b) such claim is based upon Customer’s use of a superseded or altered version of some or all of the Material, if infringement or misappropriation would have been avoided by the use of a subsequent or unaltered release of the Material which was provided to the Customer, (c) such Claim is based upon Customer’s alteration and/or use of some or all of the Material in a manner that violates a Material contract or license which was provided to Customer, and/or (d) the combination of a Deliverable or Material with any products or services which are not provided or otherwise authorized by MSI, if such claim would not have arisen but for such combination

10. Representations And Warranties

(A) Each Party represents and warrants that:

1. It has the right, power and authority to enter into this Agreement and perform according to its terms;

2. The performance of its obligations will not breach any agreements with a third party;

3. The Materials do not contain any libelous, materially false, or misleading statements; and

4. The Party’s activities comply with all applicable laws, rules and regulations.

(B) MSI represents and warrants that it will perform its obligations in a timely manner and with professional diligence and skill in a manner consistent with the good workmanlike standards. Customer shall report any deficiencies in the Products and/or Services to MSI in writing within thirty (30) days of performance of such Products and/or Services in order to receive warranty remedies. If within thirty (30) days of notice, to perform such Services to Customer’s reasonable satisfaction, or if MSI is unable to do so, MSI shall within thirty (30) days of notice, repair or replace the Product so that it conforms with the specifications therefor or, if MSI is unable to do so, to refund to Customer the fees paid for such nonconforming Product.

(C) While efforts are made to verify the completeness and accuracy of the information provided by MSI, MSI shall not be responsible for any damages arising out of the use of any information related to any Products or Services or any documentation provided by MSI. No information or anything contained in documentation provided by MSI is intended to, nor shall have the effect of, creating any warranties or representations by MSI (or its suppliers or licensors), or altering the terms and conditions of any applicable agreements.

(D) MSI does not provide legal advice. Customer is responsible for ensuring its own compliance with legal, regulatory and court requirements. It is the Customer’s sole responsibility to obtain advice of competent legal counsel as to the identification, interpretation and implementation of any relevant laws, regulatory requirements, court rules and court rulings that may affect the Customer’s business and any actions the Customer may need to take to comply with such requirements.

(E) EXCEPT AS PROVIDED IN THIS PARAGRAPH 10 (REPRESENTATIONS AND WARRANTIES) HEREIN, ALL INFORMATION, DOCUMENTATION, EQUIPMENT, SOFTWARE AND/OR SERVICES ARE SOLD, LICENSED OR DELIVERED “AS IS”. MSI DISCLAIMS ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES. THIS INCLUDES THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THIS ALSO INCLUDES ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.

11. Business Contact Information

(A) Both Parties and its affected personnel hereby grant the other Party permission to collect, utilize and store information for business purposes that is necessary for the furtherance of one Party’s business relationship with the other Party and the provision of third party Supplier Products and Services (Business Contact Information).

(B) Both Parties agree that Business Contact Information may include, but is not limited to, individuals’ name, individuals’ titles, company name, business phone numbers, email addresses utilized for business communications, and mailing addresses utilized in business.

(C) Both Parties agree that such information is not non-public personal data as construed by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, or either Non-public Personal Information (NPPI) or Personal Health Information (PHI) as established by the laws of the United States such as GLBA, HIPAA and Massachusetts 201 CMR 17 standards.

(D) Both Parties agree that if Business Contact Information one Party provides to the other Party includes Personal Information, NPPI, or PHI, the Disclosing Party will:

1. Warrant that it has obtained all necessary consents to provide Personal Information to Receiving Party for the purpose of performing this Agreement, and

1. Notify the Receiving Party regarding what information is Personal Information, NPPI or PHI so that the Receiving Party can either refuse to accept the information, or accept and use it for the intended purpose in accordance with applicable regulations.

12. DISCLAIMER AND LIMITATIONS OF LIABILITY

(A) MSI SHALL BE ENTITLED TO RELY ON ANY AND ALL INFORMATION AND MATERIALS PROVIDED TO IT BY CUSTOMER, AND MSI SHALL NOT BE LIABLE FOR ANY INACCURACY OR INCOMPLETENESS OF SUCH INFORMATION OR MATERIALS.

(B) CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA AND THAT CUSTOMER WILL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. MSI AND ITS THIRD PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED

(C) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, MULTIPLIED OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS AND LOSS OF OR DAMAGE TO DATA, HARDWARE OR SOFTWARE, EVEN IF THE PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(D) EACH PARTY’S LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND RESULTING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT OR IN CONTRACT, SHALL BE LIMITED TO THE AMOUNT PAID TO MSI DURING THE PRECEDING 12 MONTHS FOR THE LATEST AFFECTED SOW HEREUNDER, WITHOUT INTEREST.

(E) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ARISES.

(F) THE FOREGOING DISCLAIMERS OF LIABILITY AND LIMITATIONS OF DAMAGES SHALL NOT APPLY TO CLAIMS BASED ON GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

13. Assignment.

(A) Except as provided in Section 13(B), neither Party may assign the Agreement or its rights and/or delegate its obligations under the Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Any assignment or transfer of the Agreement by a Party in violation of this section will be void.

(B) Either Party may assign the Agreement to (i) its Affiliates and (ii) any entity as a result of a merger or sale of all or substantially all of the assets of such Party to such entity and such entity agrees in writing to be bound by the terms of the Agreement.

(C) This Agreement will be binding on and inure to the benefit of Customer’s and MSI’s respective permitted successors and permitted assigns.

14. Inability to Perform

Neither Party shall be required to perform its obligations under this Agreement, or be liable for its failure to perform, during any period in which such non-performance is caused by an event beyond the Party’s reasonable control; such as an act of God, a significant failure of a part of the power grid, sabotage, denial of service attack, significant failure of the Internet, natural disaster, war, civil disturbance, riot, strike, work stoppage, transportation delay, unavailability of Equipment or Software, product shipping delay or cancellation by manufacturers, power failures, any act or order of any governmental agency or official thereof. In such event, the party that is unable to perform shall give prompt notice to the other party, which shall have the right to terminate this Agreement.

15. Export

The Parties acknowledge that Equipment, Software and/or Services provided hereunder, including documentation, other technical data, and/or training and/or education materials, may be subject to export controls imposed by law, rule or regulation. Neither Party will export or re-export (directly or indirectly) any such Equipment, Software and/or the results of Services, or any such documentation, other technical data, and/or training and/or education materials, without complying with all applicable laws, rules and regulations. Each Party shall comply with the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Materials, Software or results of Services (Product) (or any product incorporating such Product) in violation of any such restrictions, laws or regulations (including, without limitation, export or re-export to destinations prohibited either in Country Groups Q, S, W, Y or Z country specified in the then current Supplement No. 1 to Section 770 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or the OFAC regulations found at 31 C.F.R. 500 et seq.); Each Party shall bear its own expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of all Products to any location desired by such Party.

16. Non-Solicitation

(A) Similar Services

1) This Agreement is nonexclusive. It does not restrict either Party from offering to, or procuring from, any third party the same or similar Products or Services.

2) A Party may use the same personnel to provide those services to others in the same industry as the other Party, and to develop new Products and Services. These personnel, however, must abide by the terms of this Agreement including the protection of the other Party’s Confidential Information.

(B) Non-Hire Covenant

1. Both parties agree that during the period that this agreement is in force, including extensions or modifications thereto, and for an additional 12 months following this period, neither Party will actively recruit, or solicit permanent employees of the other Party, or the employees of any of the other Party’s subcontractors; who are on active payroll status and are actively engaged under this Agreement, without the prior written approval of the Party whose employee is being considered for employment. This does not prohibit any employee from responding to or pursuing employment opportunities through normal media channels, i.e. newspapers, professional journals, etc. or general solicitations so long as it is not an attempt to avoid the intent of the above restriction.

2. Breach of this provision may result in the non-breaching Party pursuing all of its remedies under this Agreement, including injunctive relief. In such event, the non-breaching Party may terminate this Agreement without further liability.

17. Relationship Of The Parties And Their Employees

(A) Independent Contractors Nothing contained herein shall be construed as creating a partnership, joint venture or agency or employment relationship between MSI (and its employees and Subcontractors) and Customer. In performing all Services required hereunder, each Party shall act as an independent Contractors to the other.

(B) Nonexclusive Agreement. This Agreement is nonexclusive. Except as otherwise provided in this Agreement each Party may independently engage in any business endeavor, whether or not it is competitive with the object of this Agreement, without consulting the other Party and without in any way being accountable to the other Party.

(C) No Agency. Except as expressly provided herein, neither Party shall have any authority or power to contract or in any manner incur liability, retrospectively or prospectively, of any kind or nature for or in the name of the other Party or for which the other Party could or might be held liable to others.

(D) Employees. MSI’s employees who perform MSI’s obligations under this Agreement shall at all times be and remain employees of MSI, not employees of Customer. MSI shall pay MSI’s employees and shall ensure that each of its Subcontractors pays its employees, all wages, salaries, overtime, and other amounts due to such employees. MSI shall be responsible for, and shall ensure that each of its Subcontractors shall be responsible for, all reports, payments, and other obligations respecting their respective employees, including without limitation, those related to social security, income tax withholding, unemployment compensation, workers’ compensation, and employee benefit plans.

18. Term and Termination

(A) This Agreement shall continue in effect until terminated in accordance with this Agreement or replaced by a new or updated Agreement.

(B) This Agreement may be terminated on sixty (60) days written notice by either Party. In the event of termination hereunder, MSI shall receive payment for the following:

1. all Services performed and all Supplies delivered consistent with the terms of the Contract prior to the effective date of termination, and

2. all actual and reasonable costs incurred by MSI as a result of the termination of the Contract.

(C) If an SOW is outstanding and performance thereof has begun, the Parties agree that such SOW(s) shall be honored and completed and that the terms and conditions of this Agreement shall continue in full force and effect with regard to such SOW (except that, if an SOW is for Services only, the Parties may agree to cancel such Services at any time). Performance shall be deemed to have begun if MSI has ordered, or irrevocably committed to order, any Equipment or Software from manufacturers, distributors, etc. If performance under an SOW has not begun, then either Party may cancel such SOW by giving the other Party notice thereof.

(D) Notwithstanding paragraph (C) above, in the event of a breach of this Agreement, this Agreement may be terminated by the non-breaching Party fifteen (15) days after a written notice of the breach has been delivered to the breaching Party, and the breaching Party has failed to remedy the breach within fifteen (15) days.

(E) Upon expiration or termination of this Agreement, neither Party shall be relieved from any obligation accrued up to and including the date of such expiration or termination nor deprived of any right or remedy otherwise available to it pursuant to this Agreement. Any terms of this Agreement, which by their nature extend beyond Agreement termination, remain in effect until fulfilled and apply to respective successors and assignees.

19. Notices

(A) Any and all written notices or other written communication provided for herein shall be deemed to be validly given:

3. As of the date of delivery if delivered personally

4. Three days after a mailing if sent by registered or certified mail, return receipt requested

5. When a facsimile or other electronic version of a notice is duly executed and transmitted

NOTE: A duly executed and transmitted electronic transmission shall be considered for all purposes to be an original document, deemed for all purposes to be signed and constitute a legally binding agreement.

(B) All notices shall be addressed to the Parties at the following addresses:

If to VENDOR:
Micro Strategies Inc.
1140 Parsippany Blvd.
Parsippany, NJ 07054
Telephone: 973-625-7721
Facsimile: 973-625-5130
Attn:
Email:

If to CUSTOMER:
Customer Name
Customer Address
City, State ZIP Code
Customer Telephone:
Customer Fax:
Attn: Customer Contact Name
Email: Customer Email Address

20. Waiver Of A Right

No failure or delay in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. The waiver by either Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof.

21. Survival

Any provision of or obligation under this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any such termination or expiration, and shall continue in full force and effect. In addition, all provisions of this Agreement shall survive the termination or expiration of this Agreement to the fullest extent necessary to give the parties the full benefit of the agreement expressed herein and of the intent contemplated hereunder.

22. Section Headings

The headings of the sections in this Agreement are for the purposes of convenient reference only and are not intended to be part of this Agreement, or to limit or affect the meaning or interpretation of any of the terms hereof.

23. Agreement Execution

This Agreement may be executed in any number of counterparts with the same effect as if the signatures were upon a single engrossment of this Agreement, but shall not be effective until each Party has executed at least one counterpart. Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same instrument.
24. Dispute Resolution & Choice of Law

(A) The Parties shall attempt in good faith to resolve all claims, disputes and controversies arising out of or relating to this Agreement or the relationship of the Parties (collectively “Dispute”) in the ordinary course of business.

(B) If a Dispute has not been resolved within thirty (30) days of the first formal written notification of a dispute from an authorized executive of one of the Parties, the Parties shall attempt to settle the Dispute by mediation under the then current model mediation procedures for business disputes of CPR International Institute for Conflict Prevention & Resolution (“CPR”). Within ten (10) days after a Party’s written notice to the other Party of its desire to mediate, the Parties will appoint a mutually acceptable mediator from the CPR Panel of Distinguished Neutrals.

(C) All negotiations and mediations under this Paragraph 24 shall be considered confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. The Parties shall continue to perform this Agreement pending final resolution of any Dispute.

(D) The terms of this Paragraph24 shall not prevent either Party from taking appropriate measures, including, without limitation, seeking immediate injunctive relief, protecting its confidential information or intellectual property interests, and/or preventing either Party from pursuing any remedy at law or in equity as may be necessary to protect intellectual property interests.

(E) In the event it becomes necessary for either Party to enforce the terms and conditions of this Agreement through litigation,

1. each party irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to these terms and conditions or any purchase order incorporating these terms and conditions.

2. the prevailing Party pursuant to a final, non-appealable order shall be entitled to recover all reasonable out-of-pocket costs incurred, including reasonable attorneys’ fees. In the event such claims, loses, damages, or expenses are caused by the joint or concurrent negligence of Customer and MSI, or their respective agents, officers, employees or Subcontractors of any tier, they shall be borne by each Party in proportion to the negligence.

25. Governing Law, Jurisdiction and Venue.

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) . The Parties agree to the exclusive venue and jurisdiction of the federal and state courts in and for Morris County, New Jersey. This Agreement shall not be governed by the UN Convention on the International Sale of Goods, or any enactment of the Uniform Computer Information Transactions Act. To the extent that UCITA is applicable, then we each agree to opt out of the applicability of UCITA pursuant to the opt-out provision(s) contained in UCITA. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States in the State of New Jersey or the courts of the State of New Jersey, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens

26. Entire Agreement

(A) This Agreement, including any Attachments and Statements of Work constitutes the entire agreement between the parties regarding the subject matter hereof and is the exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision or pre-printed terms on any hard copy or electronic purchase orders, proposals, or quotations or in any other hard copy or electronic business document or form employed by either Party will supersede, augment or modify the terms and conditions of this Agreement, and no promise, representation, warranty, or covenant not included in this Agreement has been or is relied upon by either Party. Each Party hereby rejects all such different or additional terms offered by the other Party

(B) If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such term or provision shall be deemed modified to the extent necessary, in the court’s opinion, to render such term or provision enforceable. Upon such modification, the rights and obligations of the parties shall be construed and enforced in accordance with such modification, preserving to the fullest permissible extent the intent and agreements of the parties set forth in this Agreement.

(C) No modification or amendment to this Agreement shall be of any force or effect unless in writing and executed by Customer and MSI.

(D) Each Party has relied upon its own examination of this Agreement and the provisions hereof and upon the counsel of its own advisors.

I have read, understand and agree to these Terms and Conditions and agree to be bound by them.

Company Name
Signature:
Name:
Title:
Date:


Micro Strategies Inc.
Signature:
Name: David Gaines
Title: VP Security & Compliance
Date: