Ocello Systems MSA

This Agreement for Consulting, Information Technology Goods and Support Services (this “Agreement”) is made effective the date of signing by and between Ocello Consulting, LLC, D.B.A Ocello Systems a New York LLC, and the entity (the “Client”) defined on the last page of this agreement.

1. Master Agreement Ocello Systems provides, consulting, computer support services, programming, live event production services, data backup services, cloud hosting services, installation, computer, broadcast, camera equipment, and computer software (collectively “goods and services”) to individuals, businesses and organizations. This Master Agreement covers the terms and conditions for engaging Ocello Systems for one or more of its goods and services. The terms and conditions of this Master Agreement shall govern all transactions. In the event of a conflict, the terms and conditions of this master agreement shall supersede any other agreements, exhibits, proposals, quotes, emails or correspondences, whether written or verbal. Ocello Systems may provide verbal or written quotes, custom service plans, exhibits, proposals, or statements of work (collectively “quotations”) to more fully define a product, service, fee, and/or deliverable being offered. A contract is formed when: (a) Client accepts the quotation from Ocello Systems , (b) Client makes any other oral or written acceptance of the quotation, or (c) any other conduct by Client that recognizes the existence of a contract pertaining to the goods and services, including but not limited to acceptance of the goods and services. Each order shall be deemed accepted upon the terms and conditions contained in this Master Agreement.

2. Goods and Services Goods and services are provided on a time plus materials basis unless included as part of a specific quotation or service plan. Goods and services may be requested and provided without amending this agreement. Unless otherwise agreed, consulting and support services are provided at the current standard hourly rates.

3. Time Not of the Essence Ocello Systems will endeavor to deliver the goods and services by any agreed date or within any agreed period. These dates and periods, however, are only estimates given in good faith and, consequently, Ocello Systems will not be liable for any failure to deliver the goods and services by such a date or within such a period. Time for delivery will not be of the essence.

4. Order Cancellations, Event Cancellations and Returns Once an order is received by Ocello Systems, if it is subsequently canceled, the client will be responsible for any cancellation fees, shipping fees, return shipping fees and any other fees, including service fees incurred up to the point of cancellation. Please note that some equipment orders cannot be canceled or returned and the client is completely liable for the entire order amount. Client may return goods to Ocello Systems that were inoperable upon arrival for repair, replacement or refund (as determined by the manufacturer’s return policies) within 30 days of purchase. Non-defective returns are also subject to the distributor or manufacturer’s return policy. There is no guarantee that non-defective returns, particularly opened boxes of equipment or software will be permitted. Client may be able to return products directly to the manufacturer. Approved non-defective returns by Client to Ocello Systems are subject to a minimum 20% restocking fee plus shipping cost. If the client cancels the event 30 days or more before the first day of the event, no cancellation charges will apply, except for any expenses incurred or services rendered by Ocello Systems, which will be payable by the client. Cancellations received 29 to 15 days before the first day of the event wil be subject to a cancellation charge equal to 50% of the charges on the event quote. Cancellations received 14 to 3 days before the first day of the event will be subject to a cancellation charge of 75% of the charges on the event quote. Cancellations received less than 3 days (72 hours) before the first day of the event will be subject to 100% of total charges on the event quote. Client agrees and acknowledges that the cancellation charges described in this paragraph are reasonable and appropriate under the circumstances if the client cancels the event, or cancels the provisions of the equipment, labor, or services by Ocello Systems, and that such charges are not a penalty. Cancellation fees, including fees to cover any incurred Ocello Systems costs, will be due immediately upon any such cancellation by customer. ALL CANCELLATION NOTICES MUST BE IN WRITING AND RECEIVED BY OCELLO SYSTEMS BEFORE BECOMING EFFECTIVE.

5. Security Interest
To secure payment of the sales price of the goods and services and all other obligations of Client under this Agreement, Client hereby grants to Ocello Systems a security interest in the goods and services and all products and proceeds thereof. Ocello Systems is authorized by Client to take such action as may be appropriate to perfect the security interest granted herein. Client agrees to execute any additional documents necessary to perfect such security interest.

6. Fees(a) Client agrees to pay Ocello Systems fees for goods and as agreed to by the parties. This authorization may take the form of a signed quotation, email correspondence or verbal authorization. (b) Ocello Systems reserves the right to periodically increase its fees and hourly rates and will provide Client with no less than 30 days written notice thereof. (c) A service plan or proposal may define a custom or fixed pricing structure. Any charges not specifically included in the service plan or proposal are subject to the terms enumerated in sections c, d, and e of this paragraph. Service charges are based on actual time, rounded up to the nearest quarter hour (0, .25, .50, .75), spent working on, researching, investigating, testing, or discussing an issue, including travel time (if any), regardless of the complexity of the problem or results of the time spent. Client agrees that they are paying for a consultant, paid for by the hour, and not an outcome or specific result. Ocello Systems makes no guarantees that issues will be or can be resolved nor can it guarantee that an issue will not reoccur. Service fees are subject to minimums and multipliers for work after normal business hours. (d) There is a one-hour minimum charge for onsite services and a .25 hour minimum charge for remote support during normal business hours that does not require us to remotely log into the Client’s systems. There is a .5 hour minimum charge if Ocello Systems remotely logs into your systems to inspect, troubleshoot, or complete a task. (e) Support services are available for 1.5 times the standard hourly support rate for Saturdays, Sundays, federal holidays, and outside normal business hours. There is a two-hour two hour minimum charge for services provided on Saturdays, Sundays, and federal holidays. Client understands that support services provided outside of normal business hours may be charged at this higher rate without additional approvals by Client. (f) Unless agreed otherwise in writing, invoices for goods and services are issued when the client accepts or authorizes the order. This applies even if the service is not 100% functional, requires additional installation, or is being configured at Ocello Systems prior to delivery to client. This is because Ocello Systems incurs costs as soon as orders are processed by its vendors irrespective of its implementation status. Client understands that in some cases delivery and implementation can take days or weeks.

7. Terms This Agreement shall commence upon execution by Client for a term of ( ) year(s), and shall be automatically renewed for additional annual terms, unless either party shall give notice of cancellation 30 days prior to the expiration of the term or unless terminated pursuant to section 8.

8. Termination(a) Client may terminate this Agreement at any time, without cause, by providing 30 days written notice to Ocello Systems. (b) In the event of non-conformance with response times or failure to provide the contracted services as defined in quotations, Client will notify Ocello Systems in writing within 3 days of the event. Within 10 business days after notification of such event, Ocello Systems shall establish and implement corrective action to address the service issue and ensure future conformance with service requirements. Upon Ocello Systems’s failure to take effective corrective action, Client may, at its option, terminate this Agreement upon notice to Ocello Systems, which termination shall be effective 5 business days after notice is given. (c) Ocello Systems may immediately terminate this Agreement in the event Client fails to perform its obligation for payment of invoices within the time frames set forth in this Agreement. In addition, Ocello Systems may immediately cancel services, including hosted services, and remove any loaned equipment and/or hosted software from the Client. Client understands that canceling services and the removal of hardware and software will likely have a serious negative impact on computing abilities. Client understands that Ocello Systems will not be held liable or responsible for the consequences and impact of termination. Ocello Systems will provide additional services as needed but only after any past due invoices, late fees or other charges are paid in full. (d) Ocello Systems shall not be liable to Client or any third party for any compensation, reimbursement, losses, expenses, costs or damages arising from or related to, directly or indirectly, the termination of this Agreement for any reason. This waiver of liability shall include, but shall not be limited to, the loss of actual or anticipated profits, anticipated or actual sales, and of expenditures, investments, or commitments in connection with Client’s or any third party’s goodwill or business. (e) In the event that this Master Agreement is terminated, Client shall be liable for payment of all goods and services provided by Ocello Systems prior to the date of termination. In addition, Client shall be liable for late fees and all costs of collection including reasonable attorney’s fees incurred by Ocello Systems to enforce its rights under this Agreement. (f) If in the event that this Agreement is terminated, Ocello Systems shall agree to provide services in order to affect an orderly transition to another vendor selected by Client for up to 30 days after the agreed to termination date. Client agrees to pay Ocello Systems the actual costs of rendering such assistance using the current labor rate, even if Client has a separate services plan with a different fee structure. This service to transition Client to a new support arrangement is not a cancellation fee. (g) Within 30 days of termination of this Agreement, each party shall return or destroy, at the direction of the other party, all the other party’s confidential information in its possession. The Client agrees to return to Ocello Systems any equipment or software provided by Ocello Systems as part of its services (backup devices, servers, firewalls and software as applicable) within 30 days of termination and in the same condition as provided to the Client, normal wear and tear excepted. The Client shall be liable for any damage to such equipment. The client must remit payment for the remaining balance due for any equipment paid for as part of this agreement. (h) Cancellation fees are not charged for canceling support services unless defined in a separate authorized quotation between Client and Ocello Systems. (i) A cancellation fee may be assessed for hosted services where Ocello Systems’ vendors have established cancellation fees or minimum contract lengths. These cancellation fees shall not exceed one month’s cost unless defined in a separate agreement between Client and Ocello Systems.

9. Payment and Collection Costs(a) Payment is due when an invoice is issued. (b) Some clients with established credit worthiness may receive terms, typically net 15 or net 30 days. (c) Client may pay via ACH, or check at no additional charge. Credit card payments will include a 3.2% additional processing fee. (d) Late payments shall be subject to a late charge of 1.5% per month or the maximum rate allowed by law from the date of the invoice until paid. Services will be suspended if payment is not received within 5 days following the due date.

10. Taxes It is understood that any federal, state or local taxes applicable shall be added to each invoice for services or materials rendered under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to Ocello Systems for the state of use.

11. Alterations to Goods and Services If Client alters any software, equipment or support tools used or supported by Ocello Systems without the express written consent of Ocello Systems, Client does so at its own risk and expense. Ocello Systems shall not be liable or responsible for problems created as a result of Client’s alteration of software, equipment and/or Client’s network or system. Fees to correct alterations are considered additional to any existing quote or estimate. Client is responsible for paying these additional fees.

12. Data Backup Ocello Systems may provide services, hardware, and software to perform or otherwise monitor routine data backups. Ocello Systems makes no warranties or guarantees about the reliability or recoverability of backup data, but will take reasonable and customary commercial efforts to insure the integrity of the restores for backup.

13. Reimbursement for Supplies, Shipping, Handling Fees, and Travel Costs On occasion, Ocello Systems may need to purchase spare parts, other equipment, supplies, accessories or software. In that case, Client shall be responsible to and agrees to reimburse Ocello Systems for all such costs or expenses incurred for the same. No purchases over $250 will be made without prior Client approval. Shipping and handling fees for equipment are additional and will be added to invoices when incurred. Travel to remote office locations, and live production events, are subject to reimbursement. This includes, but is not limited to airfare, hotel, and meals.

14. Warranty re-Software Licensing(a) Client warrants that all software it provides to Ocello Systems for installation, configuration or use in any way, has been legally obtained and is properly licensed. Client further warrants that it has legally purchased a sufficient number of copies of such software and that it has not violated any licensing laws. (b) Ocello Systems has no knowledge regarding licensing of software provided to it by Client and Client shall defend and indemnify Ocello Systems for any installation, configuration or use of such software. Client understands and acknowledges that it shall be solely responsible and liable for all licensing and purchasing of software. (c) Ocello Systems warrants that all software it provides to Client for system maintenance or otherwise has been legally obtained and is properly licensed, and that it has not and will not violate any licensing, copyright or other intellectual property rights or laws in providing or operating such software. Ocello Systems will defend and indemnify Client for any installation, configuration or use of such software.

15. Limitation of Liability IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, DATA, USE OF EQUIPMENT, OR COSTS OF SUBSTITUTE EQUIPMENT, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY THAT IS LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OCELLO SYSTEMS’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE PAID AMOUNT FOR THE EQUIPMENT AND/OR SERVICE PROVIDED. This limitation of liability and the representations and warranties referenced in this Agreement allocate risks between Ocello Systems and Client. Ocello Systems’s pricing for the equipment and services under this Agreement reflects this allocation of risk and the limitation of liability contained in this Agreement. The provisions of this section shall survive the termination of this Agreement.


17. Indemnification Each party agrees to indemnify, defend and hold the other (and each of its parents, subsidiaries or entities under common ownership or control), harmless from and against any and all losses, liabilities, claims, costs, damages and expenses resulting from any third party claim or complaint arising directly or indirectly out of the indemnifying party’s breach of its representations, warranties or other obligations under this Agreement. Each indemnity for a claim by a third party is conditioned upon the other party providing prompt notice of any such claim, cooperating in connection with defending any such claim and agreeing that the party providing any indemnity will have the right to select the attorney or attorneys providing a defense. The party being indemnified will have the right to hire its own attorney at its own expense to participate in any such representation.

18. Force Majeure & Malicious Acts Ocello Systems shall not be responsible for failure to perform under this Agreement when its failure results from any of the following causes: Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake or serious accident, strike, labor trouble or work interruption, loss of an IP address or other disruption to internet connection, or any cause beyond its reasonable control. In the event of the occurrence of a Force Majeure Event, the parties agree that, if possible, the event(s) that is(are) subject of this agreement will be rescheduled. If the parties are unable to reschedule, this agreement may be terminated upon reasonable written notice without a cancellation charge as set forth herein, provided that in the event of a cancellation or postponement of the event or termination of this agreement due to a Force Majeure event, Ocello Systems will return to the Client any and all prepayments and deposits made by a client, less reimbursement for any work performed and expenses incurred by Ocello Systems up through the date of cancellation, postponement or termination (or client shall, within fourteen days of invoice, pay Ocello Systems for all such expenses incurred and work performed if no deposit or prepayment has been made).

19. Severability Any provision of this Agreement, which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting in any way the remaining provisions hereof or, to the extent permitted by law, rendering that or any other provision invalid, illegal or unenforceable.

20. Entire Agreement This Agreement contains the entire agreement between the parties regarding the subject matter herein, and supersedes any prior agreements or representations, whether oral or written. No agreement, representation or understanding not specifically contained herein shall be binding, unless reduced to writing and signed by Ocello Systems and Client.

21. Loaned Equipment and Software The Client agrees that any software or hardware utilized by Ocello Systems and delivered to the Client, in the performance of this Agreement shall remain the property of Ocello Systems, and must be returned when requested. Client further agrees to cease the use of any technology that remains the property of Ocello Systems upon termination of this Agreement. If such loaned software or hardware is not returned in the same condition as provided to the Client and within 30 days, Client shall be liable for any and all repair of the same or replacement.

22. Client Correspondences, Marketing, and Surveys(a) Client authorizes Ocello Systems to do the following, as long as confidential information, as defined in paragraph 24.b, is not disclosed:Use verbal quotes, emails or other written correspondences from Clients (testimonials) in Ocello Systems’s marketing materials. • Publish client’s name as being a client of Ocello Systems.• Contact anyone who directly requests support services from Ocello Systems to conduct client satisfaction surveys.• Take pictures of client’s computers and computer equipment for documentation purposes.• Provide contact information to prospective clients for the purposes of performing a reference check on Ocello Systems. • Record phone calls to/from Ocello Systems

23. Confidentiality and Privacy of Information(a) Neither party shall disclose any proprietary or confidential information obtained from the other to any third party unless so directed by a court of law of competent jurisdiction or government authority with jurisdiction over the subject matter of this Agreement, or with the advance written consent of the other party. The Client agrees not to disclose rate(s), term(s), or any information regarding this Agreement to any third party without the prior written consent of Ocello Systems. The Client will not disclose any terms of this Agreement, or any other confidential or proprietary information obtained from Ocello Systems to any person, business, employee or independent contractor of the Client unless necessary for the operation of Client’s business. (b) The term “Confidential Information” shall mean: Any information disclosed or provided during or after the term of this Agreement, including without limitation, any trade secrets or proprietary information, sales, personnel or accounting procedures, accounts, operations, devices, techniques, methods, business plans, software, source codes, data processing programs, databases, models, product proposals, internally devised technology, system or network architecture or topology, secret processes, products, capacities, systems, security practices, research, development, machines, inventions, research projects and work product, and other means used in the provision of services to customers and in the conduct of business, product proposals, financial information, data, source or object code, documentation, manuals, studies, customer and product development plans and any other materials or information based thereon and information regarding businesses plans, clients, policies, procedures, and products whether developed, acquired or compiled. (c) Treatment of Confidential Information. Ocello Systems and Client shall treat such confidential information as strictly confidential and protect such confidential information using at least the same degree of confidentiality and security as each uses for its own confidential information, but in no event less than a reasonable standard of care. Neither party shall use, disclose, commercially exploit, duplicate, copy, transmit or otherwise disseminate or permit to be used, disclosed, commercially exploited, duplicated, copied, transmitted or otherwise disseminated such confidential information at any time prior to or after the termination of this Agreement except as expressly permitted under this Agreement. Except as expressly permitted under this Agreement, in no event shall either party use confidential information for its own benefit or that of any third party, nor shall either party use confidential information to the other’s detriment. (d) Return of Confidential Information. Upon the termination or expiration of this Agreement, or upon earlier request, each party shall promptly return all confidential information, any copies or partial copies thereof and material containing confidential information and shall purge any confidential information from all computer and other data storage systems.

24. Equipment & Facilities The Client agrees that Ocello Systems may utilize certain items of the Client’s equipment and may gain access to certain Client facilities. The Client must grant authority for Ocello Systems to access the Client’s facility. Facility access may be denied for any reason at any time, however if access to facilities is denied, The Client understands that Ocello Systems will be unable to perform its duties adequately and if such a situation should exist, Ocello Systems will be held harmless and the Client shall remain fully liable for any service fees.

25. Passwords The Client acknowledges that Ocello Systems must have access to all systems and resources supported by Ocello Systems.

26. Warranty
In the case that hardware no longer works as designed by the manufacturer, contact Ocello Systems to assist. In many cases, hardware has a limited warranty. We will take steps to warranty equipment through the manufacturer. (a) Ocello Systems warrants that its work will be performed to the best of its ability and in accordance with reasonable and customary practices prevailing at the time for its business. (b) Goods (hardware, software, certain 3rd-party hosted services, manufacturer services, and manufacturer’s warranties) purchased through Ocello Systems are not manufactured by Ocello Systems, and Ocello Systems has made no representations, warranties, affirmation of fact or promise relating to the goods. All warranty claims shall be asserted exclusively against the manufacturer of the goods. EXCEPT AS TO TITLE, THERE ARE NO WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, RELATING TO THE GOODS AND SERVICES. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE APPLIES TO THE GOODS AND SERVICES. (c) Hosted services may, at times, not be available. Client understands that 100% availability is not guaranteed. (d) No specific service level guarantees are made by this agreement. Service level guarantees will affect pricing and must be defined in a separate agreement between Client and Ocello Systems. (e) No other warranties exist, expressed or implied.

27. No Third Party Beneficiary Except as specifically agreed herein, all of the provisions of this Agreement are solely for the benefit of the parties hereto, none of the other provisions of this Agreement shall inure to the benefit of any person or entity not a party to the Agreement, and third parties shall have no rights or benefits hereunder.

28. Jurisdiction This Agreement shall be governed by and construed in accordance with the laws of the state of New York without respect to principles of conflicts of law. In the event of any dispute, claim, or controversy relating to or arising from this Agreement, or any breach, threatened breach, or alleged breach thereof, the Parties hereby expressly waive and relinquish any and all right to a trial by jury on any issue, matter, claim, cause, or controversy pertaining thereto. The parties hereby consent to the exclusive jurisdiction of the State of New York, and further stipulate that the proper and sole venue for all actions and proceedings arising out of this Agreement, or associated with this Agreement, is the County of Monroe, State of New York.

29. Notice Any notice or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed to have been given when delivered personally or 48 hours after being deposited in the United States mail, certified, return receipt requested, postage prepaid and addressed to the addresses set forth above. Either party may change its address for notice by delivering a notice of such change to the other party in accordance with this Section.

30. Assignment The Client may not assign or transfer this Agreement, or its rights hereunder without the prior written consent of Ocello Systems, which consent may be withheld for any reason whatsoever. This Agreement is binding upon the parties, their successors, permitted assigns, and agents.

31. Attorney’s fees If a party commences any action against the other arising under or in connection with this Agreement or is otherwise made a party to any action or proceeding arising from this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs associated with the same.

32. Waiver No waiver of any term, provision or condition of this Agreement, whether by conduct, including acceptance of the fee, or otherwise, in any one or more instances by Ocello Systems, shall be deemed to be, or construed as a further or continuing waiver of any such term, provision or condition or of any other term, provision or condition of this Agreement.

33. Signatures By signing this Agreement, the parties hereto agree to all terms, conditions and covenants contained herein and represent and warrant to the other that the person signing on behalf of the respective party has the full capacity, power and authority to execute this Agreement. The parties expressly agree that they are entering into this Agreement voluntarily and under their own free will and are not doing so under coercion or duress. The parties hereto affirmatively acknowledge that nothing in this Agreement is to be construed in favor of, or against, the drafting party. Both parties sought and received, or had the opportunity to seek and receive, the advice of legal counsel of their choice prior to signing this Agreement.

Survival: Sections 8, 15, 16, 17, 20, 21, 22, 24, 28, 29, 30, 32, 33, and 34 of this Agreement shall survive the termination of this Agreement.