MASTER SERVICES AGREEMENT

This MASTER SERVICES AGREEMENT (the “Agreement”) by and between C3 Integrated Solutions, Inc, a Virginia Corporation, having offices at 1001 19th Street North, Arlington VA 22209  (“C3”) and Customer (“Customer”).

WHEREAS, Customer wishes to engage C3 as an independent contractor to provide it with certain identified services (the “Services”) as described in the applicable Statement of Work(s) attached A hereto;

WHEREAS, C3 is willing to provide such Services on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, C3 and the Customer hereby agree as follows:

  1. Definitions. In this Agreement, the following terms have the meanings specified or referred to in this Section 1 and shall be equally applicable to both the singular and plural forms.  Any agreement referred to below shall mean such agreement as amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement.

Confidential Information” shall have the meaning set forth in Section 5(a) below.

Custom Deliverables” shall mean any and all materials, including without limitation, any information, designs, specifications, instructions, vendor information, draft and final RFPs, and any documentation relating to any of the foregoing, specifically designed, created or specified by C3 for the Customer’s business, all as more fully identified in the attached Statement of Work.

Pre-Existing Work” means any and all of C3’s proprietary technology, processes and methodologies, software, tools, hardware designs, frameworks, algorithms, software code (in source and object forms), user interface designs, models, architecture, class libraries, objects and documentation (both printed and electronic), and any related intellectual property rights (including derivatives thereof), or other materials incorporated or “embedded” into the Custom Deliverables, all of which are owned or licensed (from third parties) by C3 prior to the date of the applicable Statement of Work.

Services” shall mean the Services (as defined in Section 2(a) below) performed by C3 for Customer under the terms of this Agreement, pursuant to and as described in the Statement of Work.

Statement of Work” shall mean C3’s standard form for ordering Services, which sets forth and describes the obligations of Customer and C3, including any Services to be performed by C3 and all applicable fees.  Unless otherwise specified on a Statement of Work, each Statement of Work shall be governed by the terms of this Agreement and shall be incorporated herein.  C3 shall, in its sole discretion, use Statement of Works on a per project basis where the Services that C3 is to perform and the Custom Deliverables are specifically identifiable.  Statement of Works shall be in substantially the form attached hereto as Exhibit A.

  1. Services.

(a)        Technical Services.  C3 will provide services as specified in the respective Statement of Work (“Services”).  Unless otherwise agreed, Services may be performed at the Customer’s Facilities or offsite.

(b)       Customer Obligations.  Customer will provide C3 with adequate Facilities, access to systems, and accurate information regarding its business and needs in connection with the Services in a timely fashion.

(c)        Changes to Services.  All changes to Statement of Works must be agreed upon by the parties in a mutually signed written amendment.  Such amendment will be accompanied by an estimate of the additional costs and delays resulting from the requested changes, and upon acceptance of such estimates, the terms of such amendment shall replace the relevant sections of the applicable Statement of Work.

(d)       Delays.  In the event of (i) a delay by Customer in performing any obligation hereunder, (ii) a delay due to Customer’s request for changes to the applicable Statement of Work, (iii) a dispute in good faith between the parties as to whether a particular Custom Deliverable meets the relevant specifications, (iv) a delay due to any third party’s act, failure to act or delay in performing any obligation whatsoever, or (v) any other delay incurred as a result of Customer’s actions, the delivery of relevant Custom Deliverables shall be deemed postponed for an equivalent period and any time schedule set forth in the applicable Statement of Work shall be deemed amended accordingly.  Except for delays incurred under clause (iii) above, no such delay shall relieve or suspend Customer’s obligation to pay C3 under Section 3 below and, in addition to such payment obligations, Customer shall pay for any and all expenses incurred by C3 in connection with any such delay.

(e)        Nonexclusive Services.  C3’s services under this Agreement shall be nonexclusive.

(f)        Subcontracting.  C3 reserves the right to subcontract any and all of its Services hereunder to qualified third parties that have skills similar to those described in any C3 proposal..

  1. Fees.

(a)        Technical Services.  In consideration for C3’s performance of the Services, Customer shall pay to C3 the fee(s) set forth in the applicable Statement of Work.

(b)       Expenses.  Unless otherwise specified in the applicable Statement of Work, Customer shall reimburse C3 for all reasonable travel, communications and out-of-pocket expenses (including, without limitation, transportation, communication, lodging and overnight courier expenses) and a per diem rate in accordance with the United States Federal Per Diem Rates incurred in connection with C3’s performance of the Services.  Any travel outside of the immediate Washington DC Metropolitan area must be approved in advance by Customer for reimbursement.

(c)        Invoicing and Payment.  C3 will invoice Customer for Services rendered and expenses according to the payment terms outlined in the Statement of Work.  Payment of all invoices are due and payable within upon receipt.  Customer will make all payments without right of set-off or charge back.  All payments made pursuant to this Agreement shall be made in U.S. dollars.

(d)       Taxes.  Fees do not include any present or future sales, use, value added, personal property, excise or similar taxes applicable to the Services or associated expenses. C3 will separately itemize any applicable taxes on each invoice, or in lieu thereof, Customer shall furnish C3 a properly executed tax exemption certificate, if applicable.  Customer shall be responsible for paying any applicable taxes later assessed by a government agency.

(e)        Interest & Charges.  If Customer does not pay invoices when due, C3 may elect to charge interest on the unpaid amounts at the lesser rate of (i) one and one half percent (1.5%) per month or (ii) the maximum amount allowed by law.  Customer agrees to pay for all costs of collecting amounts owed to C3 under this Agreement, including, without limitation, reasonable attorneys’ fees and disbursements.

  1. Proprietary Rights.

(a)        Title.  Subject to final payment, Customer shall own all right, title and interest (including all intellectual property rights) in and to the Custom Deliverables.  C3 shall own all right, title and interest (including all intellectual property rights) in and to all Pre-Existing Materials and this Agreement conveys no ownership rights to Customer with respect to the Pre-Existing Materials.  All rights, title and interest in and to any and all improvements or innovations involving the Pre-Existing Materials shall be retained in full and owned by C3.  C3 expressly acknowledges and agrees that, conditioned on final payment, all such Custom Deliverables constitutes “work made for hire” owned exclusively by Customer and, alternatively, shall irrevocably assign all ownership or other rights it might have in the Custom Deliverables to Customer.

(b)       Cooperation.  The parties hereby agree to cooperate with the other party in: (i) vesting in such party the ownership of the proprietary rights of such party created hereunder; and (ii) assisting such party in obtaining patent, copyright, or any other intellectual property rights in the proprietary rights of such party created hereunder and in maintaining and protecting such proprietary rights, including, without limitation, executing any documents which such party reasonably deems necessary for such purpose.

  1. Confidentiality.

(a)        Defined.  “Confidential Information” shall mean all information disclosed by either party to the other party, including but not limited to all technical data, or know-how of either party and any information, or know-how derived from the information, or know-how of either party, all proprietary data, product designs, product plans, capabilities, research, specifications, algorithms, program code, software systems and processes, hardware configuration information, information regarding existing and future technical, business and marketing plans and product strategies, finances, and the identity of actual and potential Customers, suppliers and vendors (hereinafter referred to as “Confidential Information”). Confidential Information also includes information that has been disclosed by a third party that is required to be treated as confidential.  Confidential Information may be written, oral, recorded, or contained on tape or on other electronic or mechanical media.  The confidentiality of any oral statement shall be confirmed in writing by the disclosing party within five (5) business days after such oral statement is made.  All Confidential Information shall be marked as such or designated as such by the disclosing party.  Confidential Information does not include any information which: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party; or (v) is disclosed by operation of law.  All Confidential Information shall remain the exclusive property of the discloser or its licensors.

(b)       Preserving Confidentiality.  Each party hereby agrees that it shall not use any Confidential Information received from the other party other than as expressly permitted under the terms of this Agreement or expressly authorized in writing by the other party.  Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care.  Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees and independent contractors who are directly involved in performing the Services and have a specific need to know such information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with that party consistent with and no less restrictive than this Section 5.

(c)        Mutual Cooperation.  Each party will notify and cooperate with the other party in enforcing the disclosing party’s rights if it becomes aware of a threatened or actual violation of the disclosing party’s confidentiality requirements by a third party.  Upon reasonable request by the disclosing party, the receiving party will provide copies of the confidentiality agreements entered into with its agents or independent contractors.

  1. Indemnity, Warranty and Liability.

(a)        Indemnity.  C3 will, at its expense, defend and indemnify the Customer against a claim that C3, in performing the Services to be rendered under this Agreement or any Statement of Work, knowingly infringed a United States patent, copyrights, trademarks or trade secret, and will pay all losses, liabilities, damages, claims and related expenses (including attorney fees and disbursements) either awarded by court or agreed to in an out of court settlement.  Notwithstanding the above, C3 shall have no liability under this Section 6(a) for any claim of infringement based on (i) modifications, adaptations or changes to any Custom Deliverable or Pre-Existing Materials not made by C3, (ii) the combination or use of any Custom Deliverable or Pre-Existing Material with any materials not furnished by C3, if such infringement would have been avoided by use of the Custom Deliverable or Pre-Existing Material alone, or (iii) the use or incorporation of any materials supplied to C3 by Customer.  In the event any Custom Deliverable or Pre-Existing Material is held to, or C3 believes is likely to be held to, infringe the intellectual property rights of a third party, C3 shall have the right at its sole option and expense to (x) substitute or modify the Custom Deliverable or Pre-Existing Material so that it is non-infringing, or (y) obtain for Customer a license to continue using the Custom Deliverable.  This Section 6(a) sets forth Customer’s sole and exclusive remedy for intellectual property infringement by C3.

(b)       Indemnification Procedures.  If Customer becomes aware of a claim which may require indemnification, the Customer will promptly notify C3 in writing of the claim and will allow C3 to assume full control of the defense and settlement of the claim.  The Customer will provide C3 with all assistance and information necessary to defend and settle the claim.

(c)        Warranty.  Each party represents and warrants to the other party that it has the full power, right and authority to enter into and perform this Agreement with the other party.  C3 further represents and warrants that the Services will be performed in a professional manner, consistent with generally accepted industry standards.  For any breach of such warranty, Customer’s exclusive remedy and C3’s entire liability shall be the reperformance of the Services.  Customer must request such remedy from C3 in writing not more than thirty (30) days following the completion of the Services.  Customer warrants that it owns or has the right to provide to C3 Customer’s Confidential Information.  EXCEPT AS SET FORTH IN THIS SUBSECTION 6(C), C3 MAKES NO WARRANTY, EXPRESS OR IMPLIED IN CONNECTION WITH THE SERVICES, THE CUSTOM DELIVERABLES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.  C3 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

(d)       Limitation of Liability.  NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY OF C3 TO CUSTOMER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CUSTOMER’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY CUSTOMER TO C3 PURSUANT TO THE APPLICABLE STATEMENT OF WORK FOR THE TWELVE MONTH PRECEDING SUCH CLAIM.  IN NO EVENT SHALL C3 BE LIABLE FOR (X) ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE CUSTOM DELIVERABLES OR THE SERVICES PROVIDED HEREUNDER, EVEN IF C3 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OTHERWISE FOR ANY SUCH CLAIM, OR (Y) FOR ANY DAMAGES OR COSTS ARISING FROM ANY THIRD PARTY’S ACTIONS, FAILURE TO ACT, OR DELAY IN PERFORMING ANY OBLIGATION WHATSOEVER.

  1. Term and Termination.

(a)        Term.  The Term of this Agreement shall commence on the Effective Date and shall end on the one year anniversary hereof, or such additional period as is needed to complete any outstanding Statement of Works (the “Initial Term”).  This Agreement shall automatically renew for one (1) year periods unless either party gives the other party at least sixty (60) days’ written notice prior to the expiration of the then current Term of its election not to renew the Agreement.

(b)       Termination for Breach.  Either party may terminate this Agreement or any outstanding Statement of Work if the other party is in material breach of the terms of this Agreement or such Statement of Work and has not remedied the breach within thirty (30) days of written notice specifying the breach, provided, however, that C3 may terminate immediately this Agreement or any particular Statement of Work in the event Customers fails to promptly pay C3 pursuant to Section 3(a).

 (c)       Effect of Termination.  Upon termination of this Agreement or any applicable Statement of Work, the following shall apply: (i) Services for such Statement of Work shall cease at that time; (ii) Customer shall pay all amounts due and payable under this Agreement for all Services rendered by C3 through the date of termination; (iii) all rights and obligations provided under Sections 3 (to the extent any fees or taxes remain unpaid or expenses have not been reimbursed), 4, 5, 6, 7 and 8 shall survive such termination for any reason; provided, however, that Section 5(b) shall survive for a period of three (3) years following such termination for any reason; (iv) termination will not affect any claim, demand, liability or right of Customer or C3 made prior to such termination.

(d)      Transition Services If either party terminates this Agreement, Service Provider will assist Customer in the orderly termination of services, including timely transfer of the services to another designated provider. Customer agrees to pay Service Provider the actual costs of rendering such assistance.

 

  1. Miscellaneous.

(a)        Injunctive Relief.  Customer acknowledges that any breach or threatened breach of the provisions of Sections 4 and 5 may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain.  Accordingly, Customer agrees that C3 will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief (without posting of a bond) to enjoin any breach or violation, or any threatened breach or violation of Sections 4 or 5.

(b)       Assignment.  Neither party may assign, transfer or pledge this Agreement without the prior written consent of the other party, provided, however, that an assignment on account of a merger or corporate restructuring of one party shall not require the consent of the other party.  Subject to the foregoing, this Agreement inures to the benefit of and is binding upon the successors and assignees of the parties hereto.

(c)        Relationship between the Parties.  Neither Customer nor C3 is a legal representative, agent, or a partner of the other.  Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.  Each party will maintain appropriate worker’s compensation for its employees as well as general liability insurance.   The transactions contemplated hereby are not intended to, and shall not be interpreted to constitute, a joint venture, partnership or similar relationship between the parties hereto, and neither party hereto shall be deemed to be liable or responsible for the liabilities or obligations for the other party hereto except as specifically provided in the indemnification provisions set forth in Section 6.

(d)       Non-Solicitation of EmployeesCustomer agrees that neither party will solicit or offer employment to the respective employee(s) or sub-contractor(s), whether directly or indirectly, during their employment or within 1 year of termination of their employment, except with the Service Provider’s prior written approval in each case.

(e)        Force Majeure.  Except for obligations to pay money, neither party shall be liable for any failure or delay in performance of its obligations hereunder on account of strikes, riots, fires, explosions, acts of God, war, governmental action, or any other cause which is beyond that party’s reasonable control.

(f)        Entirety.  This Agreement and all applicable Statement of Works incorporated herein constitute the complete agreement between the parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement.  This Agreement may not be modified or amended except in writing signed by the Chief Executive Officer or Chief Financial Officer of C3 and a duly authorized representative of Customer.  Subject to this Section 8(e) and Section 2(c) above, no other act, document, usage, or custom shall be deemed to amend or modify this Agreement or any Statement of Work, as applicable.  It is expressly agreed that any terms and conditions of any prior communications between C3 and Customer, shall be superseded by the terms and conditions of this Agreement and the applicable Statement of Work.

(g)       Severability.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

(h)       Governing Law.  This Agreement shall be construed in accordance with the laws of the Commonwealth of Virginia, excluding conflict of laws provisions, applicable to agreements made and fully performed therein.

(i)         Arbitration.  Except for instance where equitable relief is permitted under this Agreement, any and all claims, disputes, or controversies arising under, out of, or in connection with this Agreement or the breach thereof, (herein “dispute”) shall be submitted to the chief operating officer of each party (or their designee) for a good faith attempt to resolve the dispute.  The position of each party shall be submitted, and the individuals promptly thereafter shall meet to discuss resolution.  If the parties are unable to reach agreement within thirty (30) days following such meeting, then any dispute which has not been resolved within said thirty (30) days by good faith negotiations between the parties shall be resolved at the request of either party by final and binding arbitration, and neither party may terminate the Agreement based upon any such good faith dispute except in accordance with the decision of the panel of arbitrators.  Arbitration shall be conducted in Fairfax County, Virginia, by three (3) arbitrators.  The arbitrators shall be knowledgeable in the commercial aspects of telecom and network solutions, Internet applications, and technical consulting services and otherwise in accordance with the Commercial Arbitration Rules of the American Arbitration Association.  The parties shall select the arbitrators within fifteen (15) days after the receipt by the noticed party of the demand for arbitration delivered in the manner set forth herein for providing notice to the parties.  If the arbitrators are not selected by the parties within said fifteen (15) days, then the American Arbitration Association shall select the arbitrators.  The arbitrators shall make detailed written findings to support their award.  The arbitrators shall render their decision no more than forty-five (45) days after the parties finally submit the claim, dispute or controversy to the panel.  Judgment upon the arbitration award may be entered in any court having jurisdiction, and in any case where court action may otherwise be required the parties hereto expressly waive the opportunity for trial by jury.

(j)         Waiver.  The failure by either party to enforce at any time any of the provisions of this Agreement, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or the right of either party thereafter to enforce each and every such provision.

(k)        Publicity.  Customer will cooperate in C3’s reasonable requests for marketing communications about projects undertaken for Customer.  Such communications may involve: (i) participation in appropriate media relations activities, including suitable press releases concerning C3’s participation in the project and its subsequent deployment; (ii) providing Customer references for C3; (iii) being discussed in a case study.  C3 shall be allowed to use Customer’s name and logo on its Customer lists and disclose the same to its present and potential Customers, employees or investors.  Any press release issued by either party shall require approval in writing of the press release copy by the other party, which shall not be unreasonably withheld.

(l)         Notice.  All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be sent by registered or certified mail, postage prepaid, to Customer and C3 at their respective addresses set forth on page 1 of this Agreement.  Either party may change its address by written notice to the other.

(m)      Compliance with Export Regulations.  Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold C3 harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein.  Customer shall take no action, nor omit to take any required action, which would cause either party to violate the Foreign Corrupt Practices Act of 1977 or the U.S. Export Administration Regulations.

(n)       Cooperation.  Customer agrees that C3’s provision of the Services depends upon the Customer’s cooperation and assistance as C3 may require. The Customer shall provide such reasonable access to its information, systems, personnel and property as may be reasonably required in order to permit C3 to perform its obligations hereunder.  C3 shall cooperate with the Customer’s personnel, shall not interfere with the conduct of the Customer’s business and shall observe all rules, regulations and security requirements of the Customer concerning the safety of persons and property.  Customer agrees to provide C3 with any information, materials, and technology owned, licensed to, or controlled by Customer that C3 reasonably requires to perform the Services (the “Licensed Technology”).