1.      SERVICES.   Upon the Effective Date, and as of the Commencement Date and continuing for the remainder of the Term, Logicworks shall provide the mAWS Services to Client in accordance with the terms and conditions of this Agreement.

(a)    Logicworks shall provide to Client a managed service (“mAWS Services”) for AWS Resources as set forth in any Service Order agreed by the parties”. “AWS Resources” are cloud-computing resources that are provided by Amazon Web Services, LLC (“AWS”) and resold to Client by Logicworks as part of the Amazon Partner Network (“APN”).  “Logicworks Surcharges” are fees based on, and in addition to, AWS Resources charges for services and are Logicworks’ costs associated with, and including but not limited to services for billing, licensing, and management of the monthly AWS Resources consumed.  Separately, “Managed Services” means the consulting, design, implementation, deployment, monitoring, alerting, remediation, engineering, management, support and other Services that Logicworks performs and are identified in a Service Order. By signing the mAWS Cover Page, Client acknowledges that its use of AWS Resources is subject to Amazon’s AWS Terms as described in (c) below.

(b)    Any future services in addition to the AWS Resources, Logicworks Surcharges and Managed Services the Parties may agree to (“Additional Services”) shall be set forth in an additional Service Order, and shall at such time be incorporated into, and become part of this Agreement. The AWS Resources, Managed Services and Additional Services shall collectively be referred to as the “Services”.

(c)    Client’s use of AWS Resources is governed by this Agreement and the AWS Customer License Terms currently available online at the following site: https://s3.amazonaws.com/Reseller-Program-Legal-Documents/AWS+Reseller+Customer+License+Terms.pdf (the “AWS Terms”). In accordance with such AWS Terms, Amazon may capture, retain and use network or usage information whenever Client uses the AWS Resources.  Amazon’s current privacy notice can be found online at www.aws.amazon.com/privacy/.  The AWS Terms, including but not limited to the Privacy terms may be updated by AWS from time to time and made available on a successor or related site designated by Amazon.  By signing the Agreement, Client explicitly acknowledges that its use of AWS Resources is subject to the AWS Terms.

(d)    This Agreement shall include the responsibilities of each party (“mAWS Responsibilities Matrix”) and the requirements under mAWS Technical Policies as both are defined in Section 27, Definitions.

2.      FEES AND BILLING.

(a)    Fees. Client shall pay all fees for all Services agreed to, and associated with Client’s sub account, and which will be due to Logicworks under this Agreement, including any initial setup fees, managed services fees, hourly fees, deposits, usage-based fees, professional services fees, surcharges, and one-time fees as may be agreed by the Parties as well as any Early Termination Fee, all to be paid in US dollars only.

(b)    Credit. Client is subject to continuing credit reviews.  If Logicworks determines in its commercially reasonable judgment that there is a material adverse change in Client’s creditworthiness, Logicworks may require Client to pay a deposit equal to one month of Managed Services Fees.  The deposit will be due within thirty days of the date on which it is invoiced and deposits are in addition to all other fees, which remain due on a current monthly basis.

(c)    Billing Terms. Billing shall be performed as follows:

(i)               Set-up fees are due when Client signs the Agreement and payable within Fifteen days of the date of invoice. Set-up fees are those fees for the initial setup of the Configuration, and shall be described in a Statement of Work agreed by the parties.

(ii)                   Managed Services fees described in in the Service Order for each component of the Services rendered by Logicworks start to accrue on the specific Service’s Commencement Date, except if Logicworks requests information necessary to deploy the Services, and Client fails to provide it within ten (10) Business Days, in which case the Managed Services Fees will begin to accrue at the end of the Tenth (10th) Business Day.  Managed Service Fees will be billed monthly, in advance, and payable upon invoice from Logicworks.

(iii)                  AWS Usage fees are those fees for Amazon Resources accessed or made use of via Client’s subaccount(s) (the “AWS Usage Fee”).  These fees accrue upon AWS account transfer or creation and may accrue prior to the Commencement Date, and are based at all times on actual usage by Client.  Logicworks Surcharges are those fees associated with the billing of AWS Resources, both are payable in arrears for the previous calendar month.  Payment of the AWS Usage Fee, and Logicworks Surcharges shall be made by Client immediately upon receipt by Logicworks of an invoice from Amazon, and initiated by Logicworks via the Automated Clearing House (“ACH”) set up upon execution of the Agreement.  Other payment methods may be accepted, but may require additional fees.  In the event payment is not received, then Client has Forty-Eight (48) hours upon written notice to remedy; otherwise, Logicworks reserves the right to suspend AWS Resources and, in the event of nonpayment, terminate the agreement.

(iv)                  Client shall pay each invoice for Managed Services fees within Thirty (30) days from the invoice date without setoff, deduction or delay.

(v)                   All fees not objected to in writing within thirty (30) days after their invoice date will be deemed to be accurate.

(vi)                  AWS Usage Fees and Logicworks Surcharges for each AWS Resource will continue to accrue until the AWS Resources are deactivated.  Client is solely responsible for deactivating all AWS Resources or for instructing Logicworks in writing to deactivate all AWS Resources, as applicable.  Client is responsible for all activities that occur in connection with its AWS Resources, regardless of whether the activities are undertaken by Client, its employees or a third party (including Client’s contractors and agents).  Logicworks is not responsible for unauthorized access to or use of an AWS Resource, unless fault of Logicworks.

(vii)                 Billing Defaults.  While any fees are past due, the guarantees in the Service Level Agreement will not apply, Client will not be eligible to receive Service Credits, and Logicworks may suspend the Services as provided.  Logicworks may apply all payments to the most recent invoice and charge interest on overdue fees at the lesser of 1.5% per month or the maximum rate permitted by law.  Client is liable for Logicworks’ costs of collection, including reasonable attorney’s fees and expenses.  It is the sole responsibility of Client to provide accurate billing contact information and to provide Logicworks with advance written notice of any changes to its billing contact information below.

(viii)               In the event Client fails to pay the Managed Services Fee as indicated herein or should there exist any delinquency therefore, Logicworks reserves the right to automatically charge the Managed Service Fees on the ACH or credit card initially designated by the Client for Logicworks’ use provided by Client.  Logicworks reserves the right to terminate the Agreement and/or to discontinue or suspend Service to Client upon ten (10) days’ notice, without liability for actual compensatory or consequential damages to Client for any interruption in Service. Logicworks may discontinue or suspend Service to Client until payment is made. Any Service decommissioning pursuant to this Section 2 may result in a rebuild fee, to be determined by Logicworks in its reasonable discretion.

(ix)                  Disputes.  The Client may, acting in good faith, dispute any portion of an invoice provided the Client (i) pays the full undisputed portion of invoice by its due date, (ii) provides Logicworks with a written statement and supporting documentation regarding the dispute within thirty (30) days from the date of the relevant invoice, and (iii) negotiates in good faith with Logicworks to resolve the dispute. If the dispute is not resolved within forty-five (45) days from Logicworks’ receipt of the Client’s written statement, either Party may pursue its rights or remedies available either at law or pursuant to this Agreement. No interest shall accrue on any payment that is disputed in good faith by the Client while such dispute is pending. Notwithstanding the foregoing, if such dispute is later resolved in favor of Logicworks, such amount shall be subject to the monthly finance charge of one and one half percent (1.50%) from the date originally due until payment in full has been received by Logicworks.

(x)                   Taxes. Client shall pay all taxes, duties and levies of any governmental authority, including, but not limited to any excise or VAT tax, exclusive of taxes on Logicworks’ net income, in connection with the Service Fees. If Client claims exemption from any taxes arising from this Agreement, Client shall provide Logicworks with documentation required by the taxing authority to support such exemption.

(xi)                  Pricing Changes. Logicworks shall have the right, from time to time, to revise on a service-by-service basis, any of the fees set forth in a Service Order, up to Ten Percent (10%) per year per Service. Revised fees shall take effect on the Monthly Remittance Date of the month that follows the date on which the Parties agree to the revised fee schedule. Logicworks shall provide Client with a minimum thirty (30) days’ written notice prior to any pricing increase.

3.      EARLY TERMINATION FEE. In the event Client terminates the mAWS Services prior to the end of the Initial Term, (or any Renewal Term) (such term to be known as the “Committed Term”) an early termination fee will be due to Logicworks, and is equal to the average of the then-current Logicworks Surcharges and the Managed Services Fees for each month that Client purchased mAWS Services in the Twelve Month period immediately preceding the date of Early Termination, multiplied by the number of months that would otherwise be remaining in the Committed Term after the Early Termination date.

4.      CLIENT OBLIGATIONS

(a)    Client shall: (i) comply with all regulations, statutes, laws or guidance applicable to Client’s industry, and business; (ii) comply with all license terms or terms of use for any software, data, service or Website used or accessed with the Services; (iii) give Logicworks true, accurate, current and complete information when establishing the Services and related accounts, and promptly inform Logicworks of any changes to that information that could affect the Services; (iv) be responsible and liable for, the use of the Services by Client, its customers and end users, and any person who gains unauthorized access to the Services as a result of Client’s failure with respect to security precautions;  (v) comply with all of the terms and conditions applicable to Client in this Agreement and (vi) put in place such security measures commensurate with the requirements and industry standards of its business.

(b)    Data Retention. Client acknowledges that unless specifically contracted as an element of Services between Client and Logicworks, Logicworks does not create or maintain an archive or backup of any data, site content or other information maintained or otherwise stored on the Solution (“Client Content”), and Logicworks shall have no liability to Client or any other person for loss, damage or destruction of any Client Content except to the extent caused by the gross negligence of Logicworks.

(c)    AWS Policy. The Client may only use the Services for lawful purposes. In the event Logicworks reasonably concludes that the Services are being used by Client in contravention of (a) any of the terms and provisions contained in this Agreement, (b) the Amazon Web Services™ (“AWS”) legal terms and conditions found at http://aws.amazon.com/legal, or such other URL as AWS may designate in the future, (c) the AWS Acceptable Use Policy which is included in the definition of the AWS Service Level Agreement which is included as the AWS SLA, or (d) the AWS Policies, which include the AWS Customer Agreement, AWS Service Terms, Privacy Agreement and the AWS Terms of Use (all of the foregoing collectively, the “Policies”), In support of AWS Resources. Logicworks has the right to suspend the Services without liability within two (2) business days after giving written notice and a request to cure to Client.

(d)    Client Information.  Client represents and warrants that it has fully and accurately disclosed to Logicworks in writing all of Client’s capacity, performance, security, regulatory, backup, high availability, disaster recovery (e.g., RPO and RTO), and scalability needs for the Configuration.   Client is responsible for the results of implementing any recommendations made by Logicworks regarding its individual use of the Configuration, including the implementation of any changes or commands via a Configuration management system (e.g., AWS deployment and management tools, Puppet and Chef).  Client is responsible for requesting all required upgrades and modifications to the Configuration, including those required to address one or any combination of the following: (A) a spike or change in system resource utilization; (B) processing requirements; (C) storage requirements; (D) software deprecation; and (E) a change in any laws or regulations.

(e)    Content.  Client is solely responsible for the selection, compatibility, licensing, accuracy, performance, maintenance and support of all information, software, and data, including any hypertext markup language files, scripts, programs, applications, recordings, sound, music, graphics, images, applets or servlets that Client or its agents, representatives, subcontractors, customers or end users create, install, upload or transfer on, from or through the Configuration (“Content”).  It is Client’s responsibility to verify that the security and privacy protections offered by Logicworks as Services are adequate and in compliance with all applicable laws governing the type of data included in the Content.  Client acknowledges that it is solely responsible for the security, protection and backup of all Content.  Services required to copy and return Content are not included within the scope of Logicworks’ normal support Services, but may be arranged as a Professional Service for an hourly fee.

(f)     Security.  Client shall implement security measures that are commercially reasonable for its use of the Services, including secure access controls, logging, log review, intrusion detection, intrusion management and written policies and procedures that are routinely assessed and updated.  Client shall immediately notify Logicworks of any known or suspected breach of security involving the Services. Logicworks shall provide all security as Services under a Service Order and/or Statement of Work.

5.      SUSPENSION. Logicworks may suspend the Services in whole or in part, including Client’s administrative access to the Services, without liability if: (a) Client does not cooperate in good faith with a reasonable investigation by Logicworks of a suspected violation under the Agreement; (b) Logicworks is required to suspend Client’s Services by a law enforcement agency, other government agency or court order; (c) there is an attack on the Configuration, a third party gains unauthorized access to the Configuration or a security incident occurs on the Configuration; (d) another event occurs that Logicworks reasonably believes poses a threat to the integrity or security of Logicworks’ network; or (e) any fees owed to Logicworks are past due and have not been remedied. During any suspension, Services will not be available in whole or in part and Client may not have access to Content.  In addition, Managed Services Fees will continue to accrue during a suspension and Logicworks may require Client to pay a reinstatement fee of up to ten percent (10%) of the Managed Services Fees before Services are restored. Logicworks shall have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Client may incur as a result of any such suspension.

6.      PROFESSIONAL SERVICES.  Logicworks may provide engineering services to Client (“Professional Services”) as Additional Services.  All Professional Services will be provided without ongoing support for the Professional Services, for an hourly fee to be agreed by the Parties. Any estimates provided by Logicworks regarding Professional Services are non-binding estimates until agreed by the parties in writing as a Service Order. Professional Services that are not performed between the hours of 9:00 a.m. and 5:00 p.m. on Business Day may be subject to an increased hourly fee.

7.      MAINTENANCE.  “Maintenance” means modifications, upgrades, patching or repairs made by Logicworks to the Configuration or mAWS VPC network.  Logicworks may perform Maintenance on at least 5 business days’ notice between the hours of 12:00 a.m. and 6:00 a.m. at the location where the Maintenance is being performed (a “Maintenance Window”), or at any time scheduled by the parties.  Notwithstanding the foregoing, Logicworks may perform “Emergency Maintenance”, which is Maintenance that Logicworks determines, in its commercially reasonable discretion, is required to maintain the security or performance of the mAWS Configuration may be performed at any time, as needed, and without prior notice.  All or part of the Services may be unavailable while Maintenance or Emergency Maintenance is performed.  Logicworks will use best efforts, with equitable consideration to its other clients, to ensure that Maintenance and Emergency Maintenance is completed in as little time as possible.  In addition, Amazon may perform maintenance on the AWS Resources or its network (“Amazon Maintenance”) at any time.  Logicworks will attempt to notify client as soon as reasonably possible upon notice from AWS.

8.      SERVICE LEVEL AGREEMENT.  This Section 8 sets forth the Service Level Agreement (the “Service Level Agreement” or “SLA”), which includes Client’s sole remedy for Logicworks’ failure to provide the Services.  Client is solely responsible for providing accurate and current contact information for the purposes of this SLA.  Client will not be eligible for Service Credits for Downtime or any other failure, including any delay in restoring the Services, resulting from Client’s failure to provide current and accurate contact information.

(a)    APPLICATION DOWNTIME.  Logicworks guarantees that each High Availability mAWS Application that has been successfully configured and tested for failover will be available to perform its required function one hundred percent (100%) of the time (the “mAWS Application Guarantee”).  If Logicworks fails to meet the mAWS Application Guarantee, then subject to the exceptions, conditions and notification requirements described below, for the time during which that failure adversely affects the Services (“mAWS Application Downtime”), Client will be entitled to a mAWS Application Credit.  The mAWS Application Guarantee does not include the time required to complete manual failover (up to one hour), if manual failover is required, or Client-defined response procedures.  Notwithstanding the foregoing, Logicworks is not liable for mAWS Application Downtime: (i) that is caused by the full or partial failure of a non-redundant component or aspect of the Configuration; (ii) if the Configuration does not include a Remote Failover Solution and the mAWS Application Downtime is caused by an outage or other event that adversely affects the availability or performance of an Availability Zone (“AZ”); or (iii) where the Configuration includes a Remote Failover Solution and the mAWS Application Downtime is caused by an outage or other event that adversely affects the availability or performance of AWS Resources in both the primary and secondary AZs.  In a Remote Failover Solution, Logicworks recommends the use of primary and secondary AZs that are each located in a different Amazon Region.

(b)    AWS RESOURCES.  Client’s sole financial remedy for a failure of or a deficiency in any AWS Resource will be the Amazon Credits, if any, that are awarded by Amazon for the failure and passed through to Client by Logicworks in accordance with the Section below.

(i)                AMAZON CREDITS.  Although Logicworks makes no warranties regarding Amazon products and services, including the AWS Resources, Amazon may make service level assurances regarding a particular AWS Resource.  If Amazon issues a credit to Logicworks with respect to an applicable AWS Resource, then, subject to the exceptions, conditions and notification requirements described in this Section Logicworks will apply the credit to Client’s Usage Fees (as defined below) for the month following the month in which it receives the credit from Amazon (“Amazon Credits”).

(ii)                   AMAZON CREDIT PROCEDURES.  Service credits, if any, for AWS Resources will be issued in accordance with and subject to the requirements of this Section 8(b) (ii)  Client acknowledges and agrees that: (A) within ten days after the commencement of a suspected breach by Amazon of a service level assurance made by Amazon that applies to an AWS Resource, Client must provide Logicworks with a written credit request that includes all information reasonably necessary for Amazon to investigate the alleged breach; (B) Logicworks’ sole obligation with respect to service credits for an AWS Resource is to submit a credit request received from Client to Amazon; (C) Amazon, in its sole discretion, will determine eligibility for all credits requested and the amount of any credit awarded; (D) Amazon will issue any Amazon Credits directly to Logicworks; and (E) Logicworks will apply any Amazon Credits to Client’s Usage Fees for the month following the month in which they are received by Logicworks, and the excess, if any, is deemed to be waived.  In no event will Logicworks be obligated to issue any credit to Client for Usage Fees unless Amazon determines that Client is eligible for that credit, and in no event will Logicworks be obligated to issue any credit to Client that it exceeds the Amazon Credit Logicworks actually receives from Amazon for Client’s AWS Resources.

(iii)                  Service credits issued pursuant to this Section 8 (b) ((iii) are Client’s sole financial remedy for the failure of or a deficiency in an AWS Resource.

(c)    SERVICE CREDIT EXCEPTIONS.  Logicworks is not responsible for, and Client is not entitled to Service Credits for, any monitoring or alerting failure or any delay in detecting a failure or providing an alert to the extent that the delay or failure is caused by: (i) Client’s failure to provide Logicworks with accurate and current contact information, (ii) Client-defined response procedures, (iii) third parties over whom Logicworks has no direct contractual relationship or control; or (iv) a force majeure event.  In addition, Logicworks is not responsible for, and Client is not entitled to Service Credits for, the failure or delay of any monitor or alert that has not been jointly configured and successfully tested for reliability by both parties prior to its use.

(d)    SERVICE CREDIT LIMITATIONS.

(i)                 ELECTION OF CREDITS.  In no event will the same incident result in more than one type of Service Credit.  Client may elect which resulting Service Credit will apply when the same incident results in eligibility for more than one type of Service Credit.

(ii)                   CUMULATIVE AMOUNT.  The maximum combined amount of all Service Credits earned in a given calendar month may not exceed the fee for Management and Support Services in the calendar month in which the Service Credits are awarded.  Client is not entitled to excess Service Credits that would be available if not for this limitation.

(iii)                  EXCLUSIONS.  Client is not entitled to Service Credits for any Downtime caused by: (1) Maintenance, Emergency Maintenance, Amazon Maintenance or a suspension of the Services; (2) software errors, including flaws, glitches, vulnerabilities and bugs in applications, operating systems, firmware and embedded software; (3) flaws in in Client’s Content or the incompatibility of any operating system, application, other software or vendor-supplied security patches with Client’s Content or AWS Resources; (4) acts or omissions of Amazon, Client or their respective agents, including Client’s failure to approve necessary Maintenance; (5) the failure of servers or services outside of an Availability Zone on which the mAWS Services are dependent, including, but not limited to, inaccessibility on the Internet that is not caused by Logicworks’ network; (6) blocking of Content deemed to be in violation of an AUP; (7) a denial of service attack, unauthorized access (e.g., hacking) or Malware; (9) Client’s failure to meet the terms and conditions of this Agreement or the AWS Terms; (10) the failure of an AWS Resource that is required for a Configuration monitoring or alerting tool to function properly; (11) a force majeure; (12) Downtime not reported by Client within five Business Days of the day on which the Downtime first began; (13) time required to restore from backup; (14) Client’s use of an AWS Resource with the Configuration that is not included on a Service Order or purchased through the Linked Account; (15) the disabling (either intentionally or unintentionally) by Client of Logicworks’ administrative access to the Configuration (e.g., by changing a password); (16) the modification or deletion by Client of Logicworks’ administrative directories or any software installed by Logicworks for security, monitoring or Maintenance purposes; (17) any modifications made by Client that prevent a device from rebooting properly or any modifications to an AWS Resource that prevent a device from rebooting properly; (18) Client’s use of software that is no longer under vendor support (e.g., end of life); (19) the unavailability of any AWS Resource in whole or in part; or (20) Client becomes ineligible for Service Credits pursuant to any other provision of this Agreement.  If client engages in one or any combination of the activities specified in Clauses (15), (16) or (17) of this Section 8(d) (iii) Logicworks may perform Professional Services at Client’s expense without Client’s prior approval to restore the Configuration to its prior state.

(iv)                  SERVICE CREDIT PROCEDURES.  For the purpose of determining service credit availability, Downtime will be measured from the first to occur of the following: (i) Client’s submission of a service request claiming Downtime to NOC through Logicworks’ online support portal; or (ii) the detection of Downtime by Logicworks’ monitoring tools, provided that they have been successfully tested for proper event detection and alerting.  Logicworks will determine, in its reasonable discretion, Client’s eligibility for Service Credits and the amount of Service Credits awarded pursuant to this Agreement.  To be eligible for Service Credits, Client must send a reasonably detailed, written request for Service Credits to Logicworks within five Business Days after the first day on which the events giving rise to the request first occurred.  Logicworks will use reasonable efforts to respond to all Service Credit requests within thirty days of receipt.  The calculation of all Service Credits will be based on Logicworks’ records and data.  Logicworks will apply Service Credits to the invoice for the month immediately following the month in which a determination of Service Credit amount and eligibility is made.

9.      SUPPORT.  Logicworks shall provide support to Client for AWS Resources that are included in the mAWS Services in accordance with the Management and Support options selected by Client on a Service Order.  Logicworks will not provide support to Client for any AWS Resource that is not included within the scope of the mAWS Services pursuant to a Service Order.  Client may not contact Amazon directly for any support relating to mAWS Services or any AWS Resource.

10.   PRIVACY.  Client shall encrypt all Personally Identifiable Information while it is “at rest” (e.g., resides in databases, files, or in storage) on the Configuration and while it is “in motion” (e.g., is in the process of being transmitted manually or by automatic protocol) to, from or through the Configuration using an encryption process that meets the standards recommended by the National Institute of Standards and Technology.  Client shall identify and interpret all Privacy Laws and industry standard controls (e.g., PCI DSS) (“Industry Controls”) that apply to the transfer, use, storage, backup, availability, integrity, security and destruction of any Content on the Services.

(a)    Logicworks’ sole responsibility for Client’s compliance with any Privacy Law or Industry Control is to perform the Services that are expressly described in a Service Order and nothing in this Agreement shall be construed as legal advice.  Client shall take all actions and implement all measures that are required for it to comply with any Privacy Law or Industry Control to the extent they are not expressly described in a Service Order.  Notwithstanding any other provision in this Agreement, Client shall make the final decision regarding whether the Services meet or exceed its legal obligations with respect to the transfer, use, storage, backup, availability, integrity, security and destruction of all Content.  To the extent Client makes a determination regarding the interpretation of a Privacy Law or Industry Control, or a change in either, and Logicworks complies with that decision, Logicworks shall be relieved of responsibility for any resulting non-compliance with the misinterpreted Privacy Law or Industry Control.

(b)    Client hereby consents to Logicworks’ collection, use and disclosure of information and to the transfer of that information by Logicworks to third parties as required for Logicworks to provide the Services to Client.

(c)    In the event of a return of Content to Client, Client shall ensure all information that is being returned to Client remains encrypted at all times, including when it is being copied by Logicworks.  Client is solely responsible for ensuring that all PII is encrypted prior to and during its shipment.  Logicworks will not examine Content prior to shipment to ensure that it has been encrypted.  Any shipment of Content by Logicworks is at the sole expense and risk of Client and Logicworks shall have no liability to Client for any data breach, lost data or other harm arising from or relating to the shipment.

11.   THIRD-PARTY PRODUCTS.  Logicworks may offer and resell third-party products and services (each, a “Third-Party Product”) to Client for use with the Services, and if provided, Logicworks will invoice Client, and provide support, for those products in accordance with an associated Service Order. Client’s use of any Third-Party Product may be governed by the terms of a separate license or end user agreement to which Logicworks is not a party. In such case the Third Party Product license(s) may be made available to Client.

12.   SOFTWARE.

(a)    Logicworks Software.  Client shall have a nonexclusive, nontransferable, royalty-free worldwide license, without the right to grant sublicenses, to use object code versions of the Software, if any, made available by Logicworks in connection with the Managed Services (the “Solution Software”).

(b)    Client Software. Client grants to Logicworks a nonexclusive, nontransferable, royalty-free worldwide license, without the right to grant sublicenses, to use object code versions of any software provided to Logicworks by Client in connection with the Services (the “Client Software”), solely to provide the Services to Client hereunder. If Client uses any software in the Configuration that is not provided by Logicworks, Client represents and warrants that it has obtained all consents and licenses required to use that software with the Services without infringing any ownership or intellectual property rights.

(c)    Restrictions. Client’s use of the Solution Software is subject to the following: Client will not, and will not permit others to, (a) modify, copy, or otherwise reproduce the Solution Software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or structure of the Solution Software; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Solution Software or Client’s right to use the Solution Software; or (d) remove any proprietary notices or labels on the Solution Software (e) attempt to discover and/or reuse any Logicworks’ license key or licensing data. All rights not expressly granted to Client are reserved by Logicworks or Logicworks’ licensors.

(d)    Logicworks’ use of the Client Software is subject to the following: Logicworks will not, and will not permit others to, (a) modify, copy, or otherwise reproduce the Client Software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or structure of the Client Software; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Client Software or Logicworks’ right to use the Client Software; or (d) remove any proprietary notices or labels on the Client Software. All rights not expressly granted to Logicworks are reserved by Client or Client’s licensors.

13.   UPGRADES AND ADDITIONAL SERVICES.  Subject to any terms and conditions that may apply, Client may upgrade or add new components to the Services by signing a subsequent Service Order.

14.   AMENDMENTS, GENERAL.  Except as provided in this Section 14, no amendment to this Agreement will be effective unless it is in writing and signed by the parties. On at least Sixty (60) days’ advance notice to Client, Logicworks may amend: (1) the mAWS Responsibility Matrix to modify existing responsibilities or to add new responsibilities and other new Services or (2) the mAWS Technical Policies to address reliability, availability or security issues relating to Server, networking, hardware, software, security, backup and other specifications; and (3) amendment as may be required by Third Party Licensors (collectively, “Amendments”). Amendments to the AWS Resources by Amazon, shall be delivered with reasonable, prompt notice given to Client, once Logicworks is informed of the amendment.

15.   TERM.  The initial term for each Service Order (the “Committed Term”) begins on the Commencement Date and continues for the period stated in the Service Order.  At the end of a Committed Term, the Service Order will automatically renew for successive one-year terms (each, a “Renewal Term”).  The parties may agree to a new Committed Term for preexisting Services in a renewal Service Order.  Either party may elect not to renew the Services by providing the other with a written notice of non-renewal at least thirty (30) days prior to the last day of a Committed Term or any Renewal Term.  If client elects not to renew, client may continue with services on a month-to-month basis at an increased fee.   Logicworks may increase the Managed Services Fee during any Initial Term or any Renewal Term on at least thirty days’ notice.  “Term” means the Committed Term(s) and any Renewal Term(s), collectively.

16.   TERMINATION

(a)    BY LOGICWORKS.  Logicworks may terminate this Agreement: (1) without notice if the Services remain suspended (in whole or in part) for non-payment for more than ten days; (2) on forty-eight hours’ notice if Client fails to cooperate in good faith with an investigation by Logicworks of a suspected breach of the Agreement; (3) upon seventy-two hours’ notice if Client’s credit card issuer does not honor any charges processed by Logicworks; (4) upon seventy-two hours’ notice if Client materially breaches any other provision of this Agreement and fails to cure that breach within thirty days of receiving a notice from Logicworks that reasonably identifies the breach; or (5) as required by a law enforcement agency, other government agency or court order.  If Logicworks terminates the Agreement under this Section 16(a) during the Term, then upon termination Client shall be liable to Logicworks for an early termination fee (the “Early Termination Fee”) described in Section 3.

(b)    BY CLIENT.  Upon a termination of this Agreement by Client during the Term, Client shall be liable to Logicworks for an Early Termination Fee unless the agreement is terminated due to Logicworks has material breach the Agreement and failure to cure its breach within thirty days after its receipt from Client of a reasonably detailed notice of the breach.

(c)    EFFECT OF TERMINATION; SURVIVAL.  Termination by either party for any reason will not relieve Client of its obligation to pay all fees incurred before the termination became effective.  Prior to the termination of any mAWS Services, Client shall notify Logicworks in accordance with Section 26 (c) (Notices) of its intent to either: (i) deactivate all AWS Resources immediately upon termination, in which case all copies of the Content will no longer be available and will not be returned to Client; or (ii) have the Linked Account disassociated from Logicworks’ reseller account and transferred to Client, in which case, if Client is not in breach of its payment obligations under the Agreement, Logicworks shall notify AWS of the request and implement the transfer with the exception of Logicworks’ proprietary intellectual property (e.g., custom scripts, Servers used to provide support, and management software).  Client’s failure to notify Logicworks of its intent under this Section 15(c)will be deemed to be an election by Client to deactivate all AWS Resources upon termination.  Under (ii) of this section, Client is responsible for arranging payment method with Amazon prior to account transfer.  If Client has a Business Associate Agreement (HIPAA Addendum) with Logicworks then client is responsible for initiating a BAA directly with Amazon.  Other resold services will be discontinued unless Client makes other arrangements directly with those providers. All terms of this Agreement that should by their nature survive termination will survive, including, Sections 1 (The Agreement; Effective Date), 2 (Fees and Billing), 2(c)(x) (Taxes), 4 (Client Obligations), 4(e) (Content), 4(f) (Security), 16 (Termination), 17 (Warranties; Disclaimers), 18 (Limitation of Liability), 19 (Indemnification), 23 (Governing Law; Legal Disputes), 24 (Intellectual Property), 25 (Confidentiality), 26(d) (Representations; No Changes), 26(e) (Force Majeure), 26(f) (Non-Solicitation), 26(k) (Scope of Agreement; Entire Agreement), 26(l) (Miscellaneous), and 27 (Definitions).

17.   WARRANTIES; DISCLAIMERS.  EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, THE PARTIES AGREE TO THE FOLLOWING:

(a)    LOGICWORKS MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING ANY SOFTWARE OR THIRD PARTY PRODUCT OR SERVICE, INCLUDING THAT THE SOFTWARE PRODUCT IS ERROR-FREE OR THAT ERRORS, INCLUDING BUGS AND VULNERABILITIES, WILL BE CORRECTED. SUCH PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS.”

(b)    LOGICWORKS WILL PROVIDE THE SERVICES IN A WORKMANLIKE AND PROFESSIONAL MANNER.  EXCEPT AS PROVIDED IN THE PREVIOUS SENTENCE AND IN THE APPLICABLE SERVICE LEVEL AGREEMENT, THE SERVICES, INCLUDING ALL HARDWARE AND SOFTWARE, ARE PROVIDED “AS-IS”.  LOGICWORKS AND ITS SERVICE SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.  IN NO EVENT WILL LOGICWORKS OR ITS THIRD PARTY SOFTWARE OR SERVICE SUPPLIERS BE LIABLE FOR SOFTWARE ERRORS, INCLUDING BUGS AND VULNERABILITIES IN APPLICATIONS, OPERATING SYSTEMS, FIRMWARE AND EMBEDDED SOFTWARE.  CLIENT IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN AND FOR DETERMINING WHETHER THEY MEET ITS LEGAL, SECURITY, CAPACITY, PERFORMANCE, BACKUP, DISASTER RECOVERY AND SCALABILITY NEEDS.  ALL SERVICES THAT LOGICWORKS IS NOT OBLIGATED TO PROVIDE UNDER THIS AGREEMENT AND THAT ARE PROVIDED TO CLIENT WITHOUT ANY FEE ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND.

(c)    NEITHER LOGICWORKS NOR ITS SERVICE SUPPLIERS WARRANT THAT THE SERVICES AND ADDITIONAL SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.  CLIENT ACKNOWLEDGES THAT LOGICWORKS DOES NOT CONTROL OR MONITOR THE TRANSFER OF DATA OVER TELECOMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT INTERNET ACCESSIBILITY CARRIES WITH IT THE RISK THAT CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY MAY BE LOST OR COMPROMISED.

(d)    CLIENT ACKNOWLEDGES THAT LOGICWORKS OFFERS NUMEROUS SECURITY OPTIONS AS PART OF THE SERVICES.  CLIENT IS RESPONSIBLE FOR SELECTING ON A SERVICE ORDER THE SECURITY OPTIONS THAT IT DETERMINES WILL MEET ITS NEEDS.

(e)    CLIENT’S USE OF ANY SERVICE PROVIDED BY LOGICWORKS THAT IS INTENDED TO COMPLY WITH CERTAIN LAWS, STANDARDS OR REGULATIONS WILL NOT GUARANTEE THAT CLIENT IS IN COMPLIANCE WITH THOSE LAWS, STANDARDS OR REGULATIONS.  CLIENT IS ULTIMATELY RESPONSIBLE FOR UNDERSTANDING AND ENSURING THAT ITS BUSINESS OPERATIONS AND ITS USE OF LOGICWORKS’ SERVICES COMPLY WITH ALL APPLICABLE LAWS, REGULATORY STANDARDS AND REQUIREMENTS.

18.   LIMITATION OF LIABILITY.  EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER, THE PARTIES AGREE TO THE FOLLOWING LIMITATIONS ON LIABILITY:

(a)    IN NO EVENT WILL LOGICWORKS BE LIABLE FOR FAILING TO PROVIDE THE SERVICES UNLESS THE FAILURE DIRECTLY RESULTS FROM LOGICWORKS’ BREACH OF THE SERVICE LEVEL AGREEMENT OR FROM LOGICWORKS’ GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR INTENTIONAL BREACH OF THIS AGREEMENT.

(b)    NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF LOGICWORKS AND ITS SERVICE SUPPLIERS, AND ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS AND REPRESENTATIVES, TO CLIENT UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO THE AGREEMENT, THE SERVICES, OR ANY ACT OR OMISSION RELATING TO THE AGREEMENT OR THE SERVICES, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT TO LOGICWORKS FOR THE mAWS SERVICES (EXCLUDES AWS RESOURCES) DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO CLIENT’S CLAIM(S) OCCURRED.

(c)    NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL LOGICWORKS OR ITS SERVICE SUPPLIERS, OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST DATA, LOST BUSINESS, LOST REVENUES, DAMAGE TO GOODWILL, LOST OPPORTUNITIES OR LOSS OF ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SAME, AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.

(d)    NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IN NO EVENT WILL LOGICWORKS OR ITS SERVICE SUPPLIERS, OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE FOR UNAUTHORIZED ACCESS (E.G., HACKING OR MALWARE) INTO LOGICWORKS’ OR CLIENT’S TRANSMISSION FACILITIES, PREMISES OR EQUIPMENT, OR FOR UNAUTHORIZED ACCESS TO CLIENT’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION, UNLESS THE UNAUTHORIZED ACCESS IS CAUSED BY LOGICWORKS OR ITS NETWORK SERVICE SUPPLIERS’, OR THEIR RESPECTIVE EMPLOYEES, AGENTS OR REPRESENTATIVES’ GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

(e)    IN ALL INSTANCES WHERE THIS AGREEMENT PROVIDES FOR THE AVAILABILITY OF SERVICE CREDITS, THEY ARE THE SOLE FINANCIAL REMEDY FOR A BREACH OF THIS AGREEMENT BY LOGICWORKS.

19.   INDEMNIFICATION.

(a)    Client shall indemnify, defend and hold harmless Logicworks, its affiliates, licensors, subcontractors and suppliers, and each of their employees, agents, representatives, shareholders, officers, directors, successors and assigns (collectively, the “Logicworks Indemnitees”), from and against any claims, damages, liabilities, losses, costs, settlements, penalties, fines and expenses (including reasonable attorney’s fees and expert fees) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim, investigation or demand brought or asserted by a third party, customer or end user of Client,  against any Logicworks Indemnitee(s) arising from or concerning: (1) the use of the Services by Client, its customers or end users, or any person who gains access to the Services as a result of Client’s failure to use reasonable security precautions; (2) Client’s breach of this Agreement, including a breach of the representations and warranties in Section 17; (3) Content, or the combination of Content with software, data or processes, including any claim involving alleged infringement or misappropriation of third-party intellectual property rights by Content or by the use, development, design, production, advertising or marketing of Content; (4) the Intentional misconduct, gross negligence or violation of any law or regulation by Client, its employees, agents, personnel, customers or end users.

(b)    The following terms apply to Client’s indemnification obligations hereunder: (1) defense counsel shall be selected by the Logicworks Indemnitee(s); (2) Client shall have the right to approve any settlement, which approval will not be unreasonably withheld; (3) Client in its reasonable discretion shall comply with the reasonable request of any Logicworks Indemnitee(s) and cooperate in the defense of the claims; and (4) Client shall pay all fees and expenses (including reasonable attorney’s fees) as they are incurred.  Logicworks shall promptly notify Client of the existence of any basis for indemnification; provided, however, that Logicworks’ failure to provide prompt notice will not affect Client’s obligation to indemnify any Logicworks Indemnitee(s) unless the failure materially prejudices Client’s ability to defend the claim.

20.   COLOCATION.  If Client colocates any device or equipment in Logicworks’ Datacenters, Client shall be required to agree Logicworks’ separate Colocation Terms and Conditions.

21.   HIPAA.   If this Agreement does not include Logicworks’ HIPAA Addendum, Client hereby represents and warrants that no ePHI (as defined in 45 C.F.R. § 160.103) will be transmitted to or from the Services and that no ePHI will be stored, maintained or processed on the Services.

22.   HIGH RISK USE.  Client shall not use the Services for any application where a failure of those Services could result in death, serious injury, environmental damage or property damage.  Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments.  Client acknowledges that Logicworks makes no assurances that the Services are suitable for any high-risk use.

23.   GOVERNING LAW; LEGAL DISPUTES.  The laws of the State of New York, without reference to its choice of law principles, and the applicable laws of the United States govern this Agreement and any claims arising out of or relating to this Agreement, its negotiation, execution, performance, or breach.  The United Nations Convention for the International Sale of Goods does not apply to this Agreement.  All disputes and controversies arising out of or relating to this Agreement, its negotiation, execution, performance, or breach must be resolved in the state and federal courts in the city, county and state of New York, Except as prohibited by law, each party irrevocably waives its right to a jury in connection with any action arising out of or relating to this Agreement.

24.   INTELLECTUAL PROPERTY.

(a)    OWNERSHIP.  Except as provided in this Section and in Section 26(a) (Publicity) below, this Agreement does not convey to either party any ownership right or license to use, sell, exploit, copy or further develop the other party’s Confidential Information (as defined in Section 25) or intellectual property, including patents, copyrights, trademarks, trade names and trade secrets.  Logicworks has the exclusive right and title to any intellectual property developed by Logicworks during and in connection with providing the Services to Client.

(b)    INFRINGEMENT.  If any component of the Services infringes, misappropriates or otherwise violates a third-party’s intellectual property rights, Logicworks shall use reasonable efforts to: (1) procure the right to continue using the component; (2) replace the component with a substitute item that does not infringe, misappropriate or otherwise violate any third-party intellectual property right; or (3) modify the component so that it no longer infringes, misappropriates or otherwise violates any third-party intellectual property right.  If Logicworks is unable to cure the infringement, misappropriation or violation as provided in this Section 24(b)within a reasonable period of time, then Logicworks may terminate the Services without liability to Client on ninety days’ prior written notice and Client’s sole remedy will be a refund of any fees paid in advance by Client for Services to be provided after the termination.

25.   CONFIDENTIALITY.

(a)    CONFIDENTIAL INFORMATION.  “Confidential Information” means: (1) with respect to Logicworks, server configurations, software configurations, proprietary information, proprietary technology, proprietary software, unpublished prices and terms for the Services, audit reports, information regarding product development, information regarding Logicworks’ Datacenters, and information contained in manuals, proposals or memoranda; (2) with respect to Client, non-public Content transmitted to or from, or stored on, Logicworks’ servers; and (3) with respect to both parties, trade secrets, the terms of this Agreement, information that is conspicuously marked as “confidential” or “proprietary”, information disclosed verbally that is designated as “confidential” or “proprietary” at the time of disclosure, and information that, by its nature, would reasonably be considered as confidential to any other person, firm or corporation.

(b)    EXCLUSIONS.  Confidential Information does not include: (1) information that is independently developed by a recipient without the use of the disclosing party’s Confidential Information as shown by the recipient’s written business records; (2) information that is known by a recipient prior to disclosure by the disclosing party as shown by the recipient’s written business records; or (3) information that is or becomes generally available to the recipient or the public other than through a violation of this Agreement or any legal obligation.

(c)    RESTRICTIONS ON USE AND DISCLOSURE.  A party shall not disclose the other party’s Confidential Information except: (1) on a need-to-know basis, to its agents, subcontractors and representatives who are bound by applicable confidentiality restrictions at least as stringent as those stated in this Agreement; (2) as required by law, governmental regulation or requirement, court order, or subpoena, in which case and subject to applicable law, the non-disclosing party shall use best efforts to provide prompt notice to the disclosing party so that the disclosing party may seek a protective order or other appropriate remedy; or (3) the terms of this Agreement as may be necessary to establish or assert its rights hereunder.  A party shall not use Confidential Information except as required to perform its obligations under this Agreement.

(d)    TREATMENT OF CONFIDENTIAL INFORMATION.  Each party shall use the same degree of care to protect Confidential Information that it uses to protect its own highly confidential information from unauthorized disclosure, but in no event shall either party use less than a commercially reasonable degree of care.  A recipient shall notify the disclosing party promptly upon its discovery of any unauthorized use or disclosure of Confidential Information by the recipient’s employees or agents, and will use commercially reasonable efforts to cooperate with the disclosing party to regain possession of all Confidential Information and to prevent any further unauthorized use or disclosure.

(e)    RETURN OF CONFIDENTIAL INFORMATION.  On the disclosing party’s written request or upon expiration or termination of this Agreement for any reason, the receiving party shall promptly: (1) return or destroy, at the disclosing party’s option, all originals and copies of all documents and materials it has received containing the disclosing party’s Confidential Information; and (2) deliver or destroy, at the disclosing party’s option, all originals and copies of all summaries, records, descriptions, modifications, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by the receiving party, prepared under its direction, or at its request from the documents and materials referred to in the preceding clause (1) of this Section 25(e).  On the disclosing party’s written request, the recipient shall provide a notarized written statement to the disclosing party certifying that all documents and materials referred to in subparagraphs (1) and (2) of this Section 25(e) have been delivered to the disclosing party or destroyed as requested.

(f)     NON-EXCLUSIVE EQUITABLE RELIEF.  Each party acknowledges and agrees that due to the unique nature of Confidential Information there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party may be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity.

26.   GENERAL

(a)    PUBLICITY.  Logicworks may use Client’s name and trademarks in listings of Logicworks’ clients for promotional, marketing and advertising purposes in a manner that accurately reflects the relationship of the parties.  Subject to Client’s prior written approval, which Client may not unreasonably withhold, Logicworks may include Client in a case study at Logicworks’ expense.

(b)    RELATIONSHIP OF THE PARTIES.  Logicworks and Client are independent parties.  This Agreement and any transaction under this Agreement shall not create an agency, joint venture or partnership between Client and Logicworks.  There is no landlord-tenant relationship between the parties.  Client has no right to access Logicworks’ premises or Datacenters and no right to possess or own any portion of the Services, including the Configuration.

(c)    NOTICES.  For any notice under this Agreement to be valid, it must be sent by personal delivery, registered or certified mail, in each case return receipt requested and postage prepaid, nationally recognized overnight courier, with all fees prepaid, or email.  For a notice under this Agreement to be valid, it must be addressed as follows: (A) if to Logicworks, Attn: Legal, Logicworks Systems Corporation, 155 Avenue of the Americas, Fifth Floor, New York, NY 10013 or to billing@logicworks.net, as applicable; (B) if to Client, to one or more of the mailing or email addresses listed on the Cover Page, as applicable; or (C) to any other address designated by the receiving party in a notice in accordance with this Section 326(c).  Subject to this Section 26, a notice under this Agreement is effective when received.

(d)    REPRESENTATIONS; NO CHANGES.  Each party represents that it has the requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder, that the execution and delivery of this Agreement will not conflict with or violate any provision of its charter, by-laws or other governing documents, and that each party has taken all necessary steps to execute this Agreement.  Client represents and warrants that all information provided to Logicworks for the purpose of establishing and maintaining the Services is accurate and complete, that its use of the Services will comply with all Client Laws, and that it made no changes to this Agreement prior to its Effective Date that were not brought to Logicworks’ attention and acknowledged and accepted in writing by Logicworks

(e)    FORCE MAJEURE.  If a party’s performance of any part of this Agreement, other than the payment of money, is prevented or delayed by reason of an act of God, act of war, act of terrorism, fire, governmental action, labor dispute or other cause beyond the performing party’s control, then that party will be excused from performance for the length of that prevention or delay.

(f)     NON-SOLICITATION.  During the Committed Term and any Renewal Term, and for a period of six months after this Agreement is terminated, Client shall not, directly or indirectly, solicit or hire or assist any other person or entity in soliciting or hiring any employee or independent contractor of Logicworks to perform services for any person or entity, including Client, or attempt to induce any employee or independent contractor to leave the employment of Logicworks.

(g)    ASSIGNMENT; RESALE; BINDING EFFECT.  Client may not assign this Agreement or resell the right to use the Services without Logicworks’ prior written consent.  Logicworks may assign this Agreement at any time.  This Agreement will be binding upon and inure to the benefit of all successors and assigns of Logicworks and Client, who will be bound by all of the obligations of their predecessors or assignors.

(h)    SUBCONTRACT.  Logicworks may subcontract any portion of the Services to a third-party contractor, provided that Logicworks remains fully responsible to Client for the Services pursuant to this Agreement.  Any subcontractor will be deemed to be an independent contractor and not a partner, agent or employee of Logicworks.

(i)      EXPORT CONTROL.  Client shall comply with all applicable import, export and re-export control laws and regulations, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and the sanctions maintained by the Treasury Department’s Office of Foreign Assets Control.  Client represents and warrants that the Services will not be accessed, downloaded, used, exported or re-exported, directly or indirectly, to any location, entity, government or person prohibited by the applicable laws or regulations of any jurisdiction, including the U.S., without prior authorization from all relevant government authorities.

(j)      GOVERNMENT RIGHTS.  Client shall not permit the Services to be used by or on behalf of the U.S. Federal Government without Logicworks’ prior written consent.  To the extent the Services are used by or on behalf of the U.S. Federal Government, they are provided solely as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” as defined in the FAR and DFARS.  The Government will receive no greater than restricted rights as provided in FAR 52.227-14, FAR 52.227-19(c)(1)-(2) (Jun. 1987), DFAR 252.227-7013(c)(1)(ii) (Oct. 1988), DFAR 252.221-7015(c) (May 1991), DFAR 252.227-7014, or DFAR 252.227-7018, as applicable or amended.  In addition, the Government will receive no greater than limited rights as provided in FAR 52.227-14, DFAR 252.227-7015, DFAR 252.227-7018, or DFAR 252.227-7013, as applicable or amended.  The use of all computer software, documentation and technical data is further restricted in accordance with the terms of this Agreement.  All computer software and technical data were developed exclusively at private expense by Logicworks or its licensors or suppliers.

(k)    SCOPE OF AGREEMENT; ENTIRE AGREEMENT.  As stated on the Cover Page, this Agreement including all documents included on the Cover Page, constitutes the entire agreement between the parties regarding its subject matter, and it supersedes all other oral or written agreements or policies relating thereto. Any changes, modifications or amendments must be made in writing, and signed by both parties. If there is a conflict between or among any of the documents in this Agreement, they will govern in the following order: the mAWS Agreement, including the Cover Page, the most recent Service Order, mAWS Responsibility Matrix, mAWS Technical Policies and any associated AWS AUP.

(l)      MISCELLANEOUS. The headings in this Agreement are solely for convenience of reference and will not affect its interpretation.  This Agreement does not create any third-party beneficiary rights.  A fully signed copy of this Agreement made by reliable means (i.e., a photocopy, facsimile, or electronic image) will be considered an original.  If any provision in this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions in the Agreement shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of its invalidity, illegality or unenforceability.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the waiving party, and no delay or failure to exercise or enforce any right or remedy hereunder will constitute a waiver of that right or remedy.  Express waiver of any right or remedy in a particular instance will not constitute a waiver of that right or remedy in any other instance, or a waiver of any other right or remedy. Unless otherwise indicated, all references to a day are references to a calendar day and all references to a time of day are references to the time in New York, N.Y.  If any date specified in this Agreement as the only day, or the last day, for taking action falls on a day that is not a Business Day, that action may be taken on the next Business Day.  If an anniversary date is a date in a calendar month that does not exist in each calendar month, the anniversary will be deemed to occur on the last day of the month in which it would otherwise have occurred (e.g., the one-month anniversary of January 30 will be February 28 or 29, depending on the year).

27.   DEFINITIONS.

(a)    “Amazon Region” means a completely independent geographic area in which several Availability Zones that are connected to each other through low-latency links are located.

(b)    “Availability Zone” and “AZ” mean an isolated location within an Amazon Region from which AWS Resources are provided.

(c)    “AWS Resources” are those services, which are provided by Amazon, and managed via Logicworks.  “AWS Usage Fees” are those monthly fees payable in accordance with Section 2 above, and paid in conjunction with the Logicworks Usage Fees.

(d)    “Business day” means Monday through Friday, 9:00 am to 5:00 pm. (Eastern Time)

(e)    “Configuration” means the combination of computing resources (e.g., Servers, networking components, storage components, bandwidth connections, software and Third-Party Products) that are identified in Client’s Service Order.  A Configuration may consist entirely of virtual computing resources that run on a shared physical platform that is maintained by Logicworks or a designated third party purchased from Logicworks, or a combination thereof.  In addition, a Configuration may be located in one or more regions.

(f)     “Commencement Date” means the earlier of 1) the date on which Logicworks informs Client by email or through its support and ticketing system that all tiers for the initial Foundation Phase are complete as described in the Statement of Work and at least one representative instance for each tier is deployed such that the client is able to log in and deploy their code or 2) when transferring an existing AWS environment, the date on which Logicworks informs Client by email or through its support and ticketing system that monitoring has been added to the Configuration.

(g)    “Downtime” means one or any combination of the types of downtime referred to in this Agreement.

(h)    “Foundation Phase” is the period in which Logicworks sets up Client’s account and builds the initial Configuration, implements monitoring, builds VPC, and other services stipulated in the Statement of work under a Service Order, and from which the Client can then load its application.

(i)      “High Availability mAWS Application” means an Application that is deployed on redundant AWS Resources that are designed for failover and has been successfully tested for reliability and failover by Logicworks.

(j)      “Logicworks Surcharges” are those fees associated with the services performed as part of the AWS Resources, and payable in accordance with Section 2 above.

(k)    “Managed Services” means those services which are to be performed by Logicworks or its designee, and stipulated by the parties in the Service Order. Managed Services fees (“Managed Services Fees”) are those fees to be paid on an ongoing basis in accordance with Section 2 above.

(l)      “Malware” means a program that is inserted into a system with the intent of compromising the confidentiality, integrity, or availability of the data, applications, or operating system of a computer system, or of otherwise annoying or disrupting the operation of a computer system, including viruses, worms, Trojan horses, malicious mobile code and attacker tools.

(m)  “mAWS Application Credit” means, for the aggregate sum of all mAWS Application Downtime that occurs in a calendar month, a Service Credit equal to ten times the result of multiplying: (i) the Managed Services Fee for Management and Support provided during the calendar month; by (ii) a fraction, the numerator of which is the total number of minutes of mAWS Application Downtime and the denominator of which is the total number of minutes in the applicable month.

(n)    “mAWS Responsibility Matrix” means the specific responsibility matrix posted at http://www.logicworks.net/mawsresponsibilities  as of the Effective Date, as it may be amended from time to time in accordance with this Agreement or placed on a successor site by Logicworks.

(o)    “mAWS Services” are the management of AWS Resources and other associated services provided by Logicworks.

(p)    “mAWS Technical Policies” are those technical practices and procedures developed and used by Logicworks, to be followed by Client in conjunction with the use of the Services and found at  http://www.logicworks.net/mawspolicies  as of the Effective Date, as may be amended from time to time in accordance with this Agreement, or placed on a successor site by Logicworks.

(q)    “Personally Identifiable Information” or “PII” means: (1) information that would be considered “nonpublic personal information” under the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) and its implementing regulations; (2) information concerning an individual that is protected from disclosure by other applicable federal or state laws and regulations, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations; and (3) any nonpublic information that can be used, directly or indirectly, to identify an individual, such as a social security number, driver’s license number, date of birth, email address, and physical, mental, economic or cultural data.

(r)     “Privacy Laws” means data privacy, trans-border data flow and data protection laws and regulations, including the Gramm-Leach-Bliley Act and its implementing regulations, the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, the Health Information Technology for Economic and Clinical Health Act of 2009 and its implementing regulations, and U.S. State information security, data destruction and data breach notification laws and their implementing regulations.

(s)     “Remote Failover Solution” means a Configuration that is configured to failover from a primary AZ to a secondary AZ that has sufficient resources to independently run all Applications under full load and that has been tested by Logicworks for reliability.

(t)     “Server” means a physical or Virtual Server that is identified on a Service Order and deployed and administered by Logicworks.

(u)    “Services” means the mAWS Services, consisting of the AWS Resources, the Logicworks Surcharges, and the Managed Services of Logicworks.

(v)    “Service Level Agreement” and “SLA” mean the service level agreements that are set forth in the Service Terms which are incorporated into the Agreement.

(w)    “Service Credit” means one or any combination of the service credits made available to Client under this Agreement.