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HomeMy WebLinkAboutContractPage 1 of 1 MOXFIVE LLC MASTER SERVICES AGREEMENT THIS MASTER SERVICES AGREEMENT (the “Agreement”) is entered into as of August 20, 2020 (the “Effective Date”), by and between MOXFIVE LLC., a Delaware Limited Liability Company (“MOXFIVE”), and City of Renton (“CLIENT”). 1. Agreement and Statement(s) of Work. 1.1. MOXFIVE will provide services (the “Services”) described in one or more statement(s) of work attached hereto (each, a “Statement of Work”). The Services may include the delivery of products, including, without limitation, data, reports, test plans, documentation and software (collectively, “Deliverables”), as specified in each applicable Statement of Work. The Deliverables may include eLearning modules (including any scripts, quizzes, exercises, etc), material provided as part of instructor-led training (including any student workbooks, slides, training labs and exercises, etc), and course material (including training content, train-the-trainer content, etc.) (the “Training Materials”). MOXFIVE shall provide Services only in connection with a Statement of Work agreed to by both parties. Upon execution by both parties, each Statement of Work shall be successively numbered, attached hereto and incorporated herein. 1.2. If there is any conflict between the provisions of any Statement of Work attached hereto and the provisions of this Agreement, the provisions of the Statement of Work shall control, with the exception of Section 17.9 of this Agreement, which shall control over any and all Statements of Work. No terms, conditions or other provisions associated with any purchase order or similar document issued by CLIENT (other than a Statement of Work executed by both parties under Section 1.1 of this Agreement) in connection with a request or authorization for Services or Deliverables shall be given any effect unless MOXFIVE expressly agrees to such terms, conditions or other provisions in writing. 2.UChanges in Services to be ProvidedU. Any modifications to the specifications or other requirements contained in any Statement of Work shall require the execution of a substitute or amending Statement of Work specifically referencing the prior Statement of Work to be substituted for or amended, as applicable. 3.UMethod of Performing ServicesU. MOXFIVE shall determine the method, details and means of performing the Services, subject to the standards set forth in the applicable Statements of Work. MOXFIVE, in its sole discretion, may engage contractors to provide Services or Deliverables, or any portion thereof, provided that MOXFIVE shall remain primarily liable for all Services and Deliverables to be provided hereunder. During the term of this Agreement and thereafter, MOXFIVE shall retain the right to perform any and all services for other clients, and CLIENT shall retain the right to cause work of the same or a different kind to be performed by its own personnel or other contractors, subject to any applicable restrictions contained herein on the use of Deliverables and the disclosure of confidential information. 4.UTerm and TerminationU. 4.1.UTermU. This Agreement shall be effective on the Effective Date and thereafter shall remain in effect until terminated as provided hereunder. Each Statement of Work shall be effective upon execution by both parties and shall continue until (i) all Services and Deliverables to be provided thereunder have been provided and accepted by CLIENT, or (ii) such Statement of Work is terminated as provided hereunder, whichever is first to occur. 4.2.UTermination for DefaultU. 4.2.1.UTermination of Agreement for DefaultU. In the event that either party materially defaults in the performance of any of its duties or obligations hereunder and does not substantially cure such default within thirty (30) days after receipt of written notice from the non-defaulting party specifying the default, the non-defaulting party may, by written notice to the defaulting party, terminate this Agreement as of the date specified in such notice. 4.2.2.UTermination of Statement of Work for DefaultU. In the event that either party materially defaults in the performance of any of its duties or obligations under a Statement of Work and does not substantially cure such default within thirty (30) days after receipt of written notice from the non-defaulting party specifying the default, the non-defaulting party may, by written notice to the defaulting party, terminate such Statement of Work as of the date specified in such notice. Termination of a Statement of Work for cause shall have no effect upon other Statements of Work that may be in effect under this Agreement. CLIENT shall not offset disputed amounts payable under one Statement of Work against payments due under any other Statement of Work. 4.3.UTermination upon Completion of all Statements of WorkU. If there are no outstanding Statements of Work, either party may terminate this Agreement upon at least thirty (30) days’ written notice to the other party, such termination to take effect as of the date specified in such notice. 4.4.UTermination for NonpaymentU. Notwithstanding any other provision hereof, if CLIENT fails to pay any amount due to MOXFIVE within the time specified in Article 5, MOXFIVE may immediately suspend work under all Statements of Work until payment is received. If CLIENT does not cure such default within thirty (30) days after the date CLIENT received the corresponding invoice, MOXFIVE may immediately terminate this Agreement and all Statements of Work upon written notice to CLIENT. 4.5.UTermination for InsolvencyU. Notwithstanding any other provision hereof, in the event that either party becomes or is declared insolvent or bankrupt, is the subject of any proceeding relating to its liquidation, insolvency or the appointment of a receiver, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension or readjustment of all or substantially all Page 2 of 7 4851-3696-6569.1 of its obligations, the other party may immediately terminate this Agreement upon written notice to such party. 4.6.UEffect of TerminationU. Upon termination of this Agreement for any reason, CLIENT shall pay MOXFIVE for all Services and Deliverables provided pursuant to all Statements of Work through the effective date of such termination. Upon termination of a particular Statement of Work for any reason, CLIENT shall pay MOXFIVE for all Services and Deliverables provided pursuant to such Statement of Work through the effective date of such termination. Upon termination of this Agreement or any Statement of Work for any reason, (a) CLIENT shall return to MOXFIVE all materials, software, hardware, documents and other tangible items which are not expressly designated in the applicable Statement of Work as items to be retained by CLIENT, (b) CLIENT shall return to MOXFIVE any Deliverables and any other materials, software, hardware, documents and other tangible items for which CLIENT has not paid the applicable fee, and (c) the intellectual property rights of the parties with respect to the Services and Deliverables provided hereunder shall be as specified in Article 13, except as otherwise expressly provided in any Statement of Work. 4.7.USurvivalU. Termination of this Agreement shall terminate each party’s obligations under this Agreement, except that the provisions of Articles 5 (Payments to MOXFIVE), 6 (Confidentiality), 8 (CLIENT Representations and Warranties), 9 (MOXFIVE Representations and Warranties), 10 (Exclusion of Warranties), 11 (Limits of Liability), 12 (Indemnification), 14 (Non-Solicitation) and 17 (General) shall survive such termination. 5.UPayments to MOXFIVEU. 5.1.UFeesU. For the Services performed hereunder, CLIENT or Client’s insurer shall pay to MOXFIVE the fees in the amount and manner set forth in the applicable Statements of Work. All fees and all expenses incurred by MOXFIVE in the performance of the Services will be billed to CLIENT or Client’s insurer on a monthly basis or as set forth in the applicable Statement of Work. 5.2.UExpensesU. CLIENT or Client’s insurer shall pay, or reimburse MOXFIVE for, all reasonable and customary out-of- pocket expenses, including, without limitation, expenses for travel (including local transportation), lodging, meals, telephone calls, shipping and duplicating, incurred by MOXFIVE in connection with the performance of MOXFIVE’s obligations hereunder. MOXFIVE shall bill such expenses to CLIENT or Client’s insurer at actual cost. Travel expenses incurred by MOXFIVE personnel on behalf of CLIENT shall be consistent with MOXFIVE’s standard travel policies. 5.3.UTaxesU. CLIENT or Client’s insurer shall pay all sales, use, transfer, privilege, excise or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated hereby, excluding taxes on the profits or net income of MOXFIVE. 5.4.UTime of PaymentU. Any amounts due to MOXFIVE hereunder shall be due and payable within forty five (45) days after invoice date. In addition, failure of CLIENT or Client’s insurer to pay any amount due within such forty five (45) day period shall be deemed a material breach of this Agreement and shall give MOXFIVE the right to suspend performance of the Services and terminate this Agreement as provided in Article 4. If either party fails to perform its obligations hereunder, including the obligation to pay fees and expenses when due, such non- performing party shall pay, in addition to any amounts otherwise due, all reasonable expenses incurred by the other party to enforce its rights or the non-performing party’s obligations hereunder. No failure by MOXFIVE to request any such payment or to demand any such performance shall be deemed a waiver by MOXFIVE of CLIENT’s or Client’s insurer’s obligations hereunder or a waiver of MOXFIVE’s right to terminate this Agreement as provided hereunder. 6.UConfidentialityU. 6.1. During the term of this Agreement, each party may disclose to the other party certain Confidential Information (defined in Section 6.2). The receiving party shall hold the disclosing party’s Confidential Information in confidence and shall use its best efforts to protect it. The receiving party shall not disclose the disclosing party’s Confidential Information to any person other than employees and independent contractors of the receiving party who need to know such Confidential Information in order to perform services for the receiving party and who are bound by a written confidentiality agreement with the receiving party that is no less protective of such Confidential Information as this Agreement. Upon request of the disclosing party, the receiving party will provide the disclosing party with reasonable evidence of such written confidentiality agreement. The receiving party shall use such Confidential Information for the sole purpose of performing its obligations hereunder. Upon termination of this Agreement, the receiving party shall either return to the disclosing party all of the disclosing party’s Confidential Information in its possession (including all copies) or shall, at the disclosing party’s direction, destroy the disclosing party’s Confidential Information (including all copies) and an officer of the receiving party shall certify its destruction to the disclosing party. 6.2. For the purposes of this Agreement, “Confidential Information” means any information or know-how (in oral, written, digital or other form), including, without limitation, information relating to research, product plans, products, services, clients, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration, marketing or finances, provided by one party to the other party, obtained by one party from the other party, or prepared by one party upon review of the other party’s information or know-how. The Training Materials shall be Confidential Information of MOXFIVE. The receiving party shall require any of its employees and independent contractors who receive Confidential Information of the disclosing party to comply with the provisions of this Article 6 and shall be responsible for any use or disclosure of the Confidential Information of the disclosing party by any such persons as though such use or disclosure were made by the receiving party. 6.3. Notwithstanding Section 6.2, the term “Confidential Information” shall not include any information which (a) is publicly known at the time of disclosure or enters the public domain following disclosure through no fault of the receiving party, (b) the receiving party can demonstrate was already in its possession prior to disclosure hereunder or was subsequently disclosed to the receiving party with no obligation of confidentiality by a third party having the right to disclose it, or (c) is independently developed by the receiving party without Page 3 of 7 4851-3696-6569.1 reference to or use of the disclosing party’s Confidential Information. 6.4. The receiving party may disclose the disclosing party’s Confidential Information upon the order of any competent court or government agency or obligations under the Washington Public Records Act (chapter 42.56 RCW), provided that prior to such disclosure the receiving party shall inform the disclosing party of such order and provide the disclosing party with reasonable assistance to prevent or limit such disclosure. 6.5. Each party agrees that its obligations under this Article 6 are necessary and reasonable in order to protect the disclosing party and its business, and each party expressly agrees that monetary damages would be inadequate to compensate the disclosing party for any breach by the receiving party of such obligations. Accordingly, each party agrees and acknowledges that any such breach or threatened breach will cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available at law, in equity or otherwise, the disclosing party shall be entitled to obtain injunctive relief against the continued breach or threatened breach of the receiving party’s obligations under this Article 6, without the necessity of proving actual damages. 6.6. To the extent that a non-disclosure or confidentiality agreement has been executed by the parties prior to the Effective Date, such non-disclosure or confidentiality agreement shall survive the execution of this Agreement, provided, however, that the provisions of this Article 6 shall take precedence over any provisions of such earlier non-disclosure or confidentiality agreement to the extent there is a conflict between such provisions. 6.7. In an attempt to minimize the likelihood of dissemination of confidential or sensitive information about CLIENT’s business, MOXFIVE will, following six months of the completion of Services to CLIENT, use good faith efforts to delete completely from wherever they are stored all documents in MOXFIVE’s possession or under its control arising from or related to those Services which MOXFIVE determines in its reasonable, good faith discretion are not necessary to keep for purposes related to the Services. The deletions will be in accordance with a document retention protocol set up internally by MOXFIVE, and applied in a good faith effort, to carry out the intent of this paragraph. Among documents that MOXFIVE is encouraged by CLIENT to delete after six months are, without limitation, non-essential emails, voicemails, text messages, and recordings of conference calls (e.g., Slack, Zoom, RingCentral, WhatsApp). MOXFIVE will use reasonable, good faith efforts not to delete for at least three years after completion of Services to CLIENT (a) documents constituting an agreement with CLIENT, (b) documents from CLIENT containing instructions to MOXFIVE, (c) MOXFIVE’s responses to such documents, (d) documents from MOXFIVE to CLIENT or a third-party constituting advice or provision of Services for CLIENT, (e) documents generated by MOXFIVE or its Third-Party Providers necessary to performance of Services for CLIENT, (f) any images and/or breach artifacts prepared in connection with the Services; and (g) documents that MOXFIVE is required by law to retain for longer than six months. Notwithstanding the aforesaid, in the event of litigation requiring preservation or production by CLIENT of any information in possession of MOXFIVE, MOXFIVE agrees to comply fully with any third-party litigation hold request issued by CLIENT, including by initiating a timely, comprehensive, and effective litigation hold immediately upon receipt of the request from CLIENT. Implementation of such a hold shall include, but not be limited to, suspending any auto-delete functionality or routine deletion of data based on internal retention policies. MOXFIVE also agrees to cooperate fully with CLIENT in complying with any obligation by CLIENT to produce certain information. Such cooperation shall include, but not be limited to, providing access to knowledgeable personnel to coordinate with CLIENT or its legal representatives, or other consultants, to ensure the appropriate preservation and collection of all relevant information. 7.UData Protection. U To the extent applicable, the Parties shall comply with relevant and applicable national, international, state and/or regional data protection legislation or regulations, including with respect to information disclosed in connection with Services that is personal data (as defined under the relevant legislation or regulation). MOXFIVE shall take appropriate technical measures designed to protect against unauthorized or unlawful processing of Confidential Information held by MOXFIVE and against loss of, destruction of, damage to, corruption of, unauthorized alteration to or unauthorized access to such Confidential Information in MOXFIVE’s possession or control. 8.UAdvertising; Proprietary MarkingsU. 8.1. Notwithstanding any other provision of this Agreement, neither Party may issue press releases or endorsements which reference the other Party or include statements attributable to the other Party without the prior written consent of the other Party. 8.2. In no event shall either party alter, remove, obscure, erase, deface or hide from view any copyright, trademark or other proprietary rights notice of the other party contained in or incorporated into any Deliverable or other product or document provided to such party hereunder. 8.3. Neither party will take any action intended to appropriate or perfect rights in the intellectual property of the other, including, without limitation, the filing of patent, trademark or service mark applications or copyright registrations. 9.UCLIENT Representations and WarrantiesU. CLIENT represents and warrants that (a) CLIENT has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and (b) this Agreement has been duly and validly executed and delivered by CLIENT and constitutes the valid and binding agreement of CLIENT, enforceable against CLIENT in accordance with its terms. 10.UMOXFIVE Representations and WarrantiesU. MOXFIVE represents and warrants that (a) MOXFIVE has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, (b) this Agreement has been duly and validly executed and delivered by MOXFIVE and constitutes the valid and binding Agreement of MOXFIVE, enforceable against MOXFIVE in accordance with its terms, (c) all Services to be provided hereunder shall be provided in a professional and workmanlike manner commensurate with standards in the industry for the type of services to be provided hereunder, and (d) to the knowledge of Page 4 of 7 4851-3696-6569.1 MOXFIVE, no Services shall infringe on the intellectual property rights of third parties. 10.UExclusion of WarrantiesU.MOXFIVE WARRANTS THAT THE SERVICES WILL BE PROVIDED IN A PROFESSIONAL MANNER PURSUANT TO INDUSTRY STANDARDS FOR THE SAME OR SIMILAR SERVICES APART FROM ANY EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICES AND DELIVERABLES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. NEITHER MOXFIVE NOR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS OR LICENSORS WARRANTS THAT PARTICULAR RESULTS MAY BE OBTAINED BY CLIENT IN CONNECTION WITH MOXFIVE’S PROVISION OF SERVICES OR DELIVERABLES HEREUNDER. MOXFIVE AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND LICENSORS MAKE NO WARRANTY, GUARANTEE OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OF ANY SERVICES OR DELIVERABLES PROVIDED HEREUNDER. MOXFIVE MAKES NO WARRANTY OR GUARANTEE WITH RESPECT TO ANY THIRD-PARTY SERVICES OR PRODUCTS DELIVERED WITH OR EMBODIED IN THE SERVICES OR DELIVERABLES PROVIDED HEREUNDER. 11.ULimits of LiabilityU. 11.1.THE CUMULATIVE LIABILITY OF EACH PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE GREATER OF FIVE HUNDRED THOUSAND DOLLARS ($500,000) OR THE TOTAL AMOUNT PAID TO MOXFIVE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR OTHER SIMILAR TYPE OF DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON LOSS OF PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE HEREOF, THE USE OF THE SERVICES OR DELIVERABLES PROVIDED HEREUNDER, AND SUCH PARTY’S ALLEGED BREACH OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY IS INFORMED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING IN THIS AGREEMENT PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL NOT APPLY TO ANY VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS, PAYMENT OBLIGATIONS, AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12 (INDEMNIFICATION) OR LIMIT RECOVERY FOR DAMAGES ARISING FROM OR RELATED TO A PARTY’S GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT IN THE PERFORMANCE OF THE SERVICES PROVIDED UNDER THIS AGREEMENT. NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY, A PARTY’S CUMULATIVE AND MAXIMUM LIABILITY FOR ALL CLAIMS, LOSSES, AND DAMAGES ARISING FROM A BREACH OF CONFIDENTIALITY AND/OR PRIVACY OBLIGATIONS SHALL NOT EXCEED TWO MILLION DOLLARS ($2,000,000). 11.2.EXCEPT FOR CLAIMS OF BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE HEREOF, THE SERVICES AND DELIVERABLES PROVIDED HEREUNDER, AND SUCH PARTY’S ALLEGED BREACH OF THIS AGREEMENT IN ANY AMOUNT OF MONEY WHICH SHALL EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID OR PAYABLE BY CLIENT TO MOXFIVE WITH RESPECT TO THE STATEMENT OF WORK UNDER WHICH THE CLAIM IS MADE OR FROM WHICH THE CLAIM AROSE. 11.3.NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN. 12.UIndemnificationU. Subject to the provisions and limitations of Article 11, if a third party brings an action against either party alleging infringement of a United States patent or copyright based on the Services or Deliverables provided by MOXFIVE hereunder, the party shall, at its own expense and in its sole discretion, settle the claim or defend the other party in such proceeding, and the party will pay all settlements, costs, damages and legal fees and expenses finally awarded, provided that the party shall promptly notify the other party in writing of the proceeding, provide the other party with a copy of all information received by the party with respect to the proceeding, cooperate with the other party in defending or settling the proceeding, and allow the other party sole control of the defense and settlement of the proceeding, including the selection of attorneys. The party may observe the proceeding at its own expense. Notwithstanding the foregoing, MOXFIVE shall have no indemnification obligation under this Article 12 for infringements resulting from the modification of any Deliverable by CLIENT or a third party or from the use of any Deliverable in a manner other than that for which it was intended. Page 5 of 7 4851-3696-6569.1 13.UIntellectual Property RightsU. 13.1. The parties acknowledge that, except with respect to Training Materials and except as expressly agreed in a Statement of Work, (a) CLIENT owns the intellectual property rights in any software, in object and source code formats, MOXFIVE creates specifically for incorporation into CLIENT’s software or computer systems pursuant to this Agreement, (b) CLIENT owns the copyright in any reports and other documents describing the results of the Services delivered by MOXFIVE to CLIENT pursuant to this Agreement, and (c) MOXFIVE owns the intellectual property rights in its testing code, in object and source code formats, and its testing methodologies, and its software risk management methodologies and practices and any improvements made thereto 13.2. The parties acknowledge that, except as expressly agreed in a Statement of Work, all right, title and interest in and to any Training Materials, whether created independently by MOXFIVE or pursuant to this Agreement shall vest in MOXFIVE. 13.3. CLIENT agrees to use the reports and other documents described in this Section 13.1(b) solely for CLIENT’s internal business purposes (or, where counsel has engaged MOXFIVE on CLIENT’S behalf, for the purpose of counsel providing legal advice to MOXFIVE) and not to disclose such reports and documents to any third party (or counsel, where applicable), and acknowledges and agrees that its rights in any such reports and documents are subject to MOXFIVE’s rights in any MOXFIVE intellectual property described or embodied therein. CLIENT hereby grants a non-sublicenseable, non-transferable, perpetual license to MOXFIVE to use such reports and other documents solely for MOXFIVE’s internal business purposes and not for disclosure to any third party. 13.4. Notwithstanding any other provision of this Agreement, all right, title and interest in and to all testing tools and utilities; testing software and plans; strategies, processes and methodologies; models and historical data; Training Materials; and related materials and documentation owned or possessed by MOXFIVE prior to, or developed during the course of MOXFIVE’s performance of, this Agreement shall vest in MOXFIVE regardless of the use of such material in any engagement or the inclusion of such material in any deliverables of any type. 13.5. Except as specified in this Article 13 or as expressly agreed in a Statement of Work, neither party shall license any rights in its intellectual property to the other party. Except as expressly agreed in a Statement of Work, a party granted a license pursuant to this Agreement shall not sublicense or transfer such license to any third party. 13.6. If this Agreement or any Statement of Work is terminated prior to the completion of any Services and Deliverables, MOXFIVE shall not be obliged to provide incomplete Deliverables to CLIENT. If at the time of such termination CLIENT has not paid all fees due for any Services and Deliverables under the applicable Statements of Work, CLIENT shall receive no right, title, interest or license in or to such Services and Deliverables. 14.UNon-SolicitationU. During the term of this Agreement and for one (1) year thereafter, neither party shall induce or attempt to induce, directly or indirectly, any employee or contractor of the other party to leave the employ thereof other than by general solicitations, such as advertising, not specifically targeted at employees or contractors of the other party. For purposes of this Article 14, a “party” includes a party and any of its affiliates. Each party acknowledges that in the event that it breaches its obligations under this Article 14, the other party shall suffer irreparable harm for which no adequate remedy at law exists and shall be entitled to obtain injunctive relief against the continued breach of such obligations without the necessity of proving actual damages, in addition to any other remedies that may be available at law, in equity or otherwise. 15.UNoticeU. Any notice required or permitted to be given hereunder shall be in writing and deemed received by the party to whom it is addressed (a) immediately, if delivered personally or by facsimile with proof of successful transmission, (b) one (1) business day after dispatch by nationally recognized courier, or (c) five (5) business days after dispatch by certified U.S. mail, postage prepaid and return receipt requested. All notices shall be sent to the other party at its address as set forth below or at such other address as such party shall have specified in a notice given in accordance with the provisions hereof. 16.UForce MajeureU. Neither party shall be liable to the other party for any delay or failure to perform its obligations hereunder due to causes beyond its reasonable control. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay. 17.UGeneralU. 17.1.UResidual KnowledgeU. Nothing herein shall be construed to prevent MOXFIVE from using general knowledge, skill and expertise acquired in the performance of this Agreement, not to include any Confidential Information of CLIENT, in any current or subsequent endeavor. CLIENT shall have no interest in any such endeavor. 17.2.UAssignmentU. Neither party shall assign or otherwise transfer its rights, duties or obligations hereunder to any other person, corporation or other entity without the express prior written approval of the other party, except to an entity that (a) enters into a merger or consolidation agreement with, or purchases all or substantially all the assets of, the assigning or transferring party, and (b) is not a direct competitor of the other party. Any purported assignment or transfer that does not conform with the provisions hereof shall be void. 17.3.UGoverning Law; Compliance with LawsU. This Agreement shall be governed by the laws of the Commonwealth of Virginia, without regard to any conflicts-of-law principle that would require or permit the application of the substantive law of any other jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. CLIENT agrees to use the Services and Deliverables provided hereunder solely for the use identified in Agreement and applicable Statements of Work and only for proper business purposes in accordance with all applicable federal, state and local laws and regulations, including, without limitation, all laws and regulations respecting data privacy, international communications, foreign corrupt practices, the transfer of intellectual property and the export and import of data and software. Page 6 of 7 4851-3696-6569.1 17.4.USeverabilityU. If any provision of this Agreement is or becomes illegal, unenforceable or invalid (in whole or in part, for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way. 17.5.UHeadingsU. The article and section titles and headings in this Agreement are intended solely for convenience of reference and are not intended to explain, modify or place any construction or limitation upon any provision of this Agreement. 17.6.UEntire AgreementU. No representations or statements of any kind made by either party that are not expressly stated herein or in any written amendment hereto shall be binding on such party. This Agreement and all Statements of Work appended hereto shall constitute the complete and exclusive statement of the agreement between the parties and shall supersede all prior or contemporaneous proposals, oral or written, and all other communications between the parties relating to the subject matter hereof. 17.7.UNo Third-Party BeneficiariesU. Nothing in this Agreement is intended to, or shall, create any third-party beneficiaries, whether intended or incidental, and neither party shall make any representations to the contrary. 17.8.UNo Implied WaiverU. Neither party shall be deemed to have waived any term, condition or other provision hereof or to have consented to any breach hereof by the other party unless such waiver or consent is in writing and executed by a duly authorized representative of such party. No consent by either party to, or waiver by either party of, a breach by the other party, whether such consent or waiver is express or implied, shall constitute a consent to, waiver of or excuse for any different or subsequent breach. 17.9.UNon-AgencyU. Nothing in this Agreement shall be construed to make the parties partners, joint venturers, representatives or agents of each other, and neither party shall represent to any third party that the parties have any such relationship. The parties hereunder are acting in performance of this Agreement as independent contractors engaged in the operation of their respective businesses. A party’s employees, agents or representatives are not employees or agents of the other party and are not entitled to any benefits offered by the other party, including, without limitation, wages, stock options or profit sharing. Neither party shall be responsible for payment of workers’ compensation, disability benefits or unemployment insurance, or for withholding or paying employment-related taxes, for or with respect to the other party or its employees. 17.10.UCounterpartsU. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute a single agreement. Page 7 of 7 4851-3696-6569.1 IN WITNESS WHEREOF, this Agreement was executed by the parties as of the date first written above. MOXFIVE LLC. CLIENT By: By: Name:Name: Title: Title: Date: Date: Address: 1751 Pinnacle Drive, Suite 600, Tysons, VA 22102 Address: Jeffrey Chan Director August 21, 2020 Page | 1 © 2020 MOXFIVE Proprietary and Confidential Statement of Work #1 This Statement of Work (“SOW”) is made and entered into as of the earlier date on the signature block below (“SOW Effective Date”), by and between MOXFIVE, LLC (“MOXFIVE”) for Baker & Hostetler LLP (“Counsel”) on behalf of City of Renton (“Client”). This SOW shall be governed by the terms and conditions set forth in the Agreement dated August 20, 2020 (“Agreement”). The purpose of the engagement under this Agreement is to enable Counsel to render legal advice to Client and its affiliates (the “Client Entities”). Therefore, all communications to Client Entities related to services shall be directed to the attention of Counsel, and MOXFIVE’ work and services under this agreement are confidential and are subject to the privileges and protections afforded to such materials under state and federal law under the attorney-client privilege, self-evaluative privilege, or other privileges or protection. All communications between MOXFIVE and Counsel, as well as communications between MOXFIVE and Client Entities, shall be regarded as confidential, made solely for the purpose of assisting Counsel in giving legal advice to Client Entities and subject to the terms of this Agreement. Description of Services During the term of this SOW, MOXFIVE agrees to provide the following Services as directed by Counsel: Task 1: Server Support Client requested MOXFIVE’s remote support in decrypting servers impacted during a ransomware incident. To assist with restoring services to the environment, MOXFIVE will assist Client with the following tasks: o Install Remote Management and Monitoring (RMM) utility to obtain access to the environment. MOXFIVE will provide the RMM utility for Client to install on the systems. o Remotely decrypt up to 165 encrypted servers. Client will obtain and provide the decryption utility to MOXFIVE. o Assist the forensic provider with evidence collection as needed. Task 2: MOXFIVE Recovery Management o Technical Advisory Support: Serve as a technical advisor to provide technical expertise and create and support the operational strategy and execution of recovery efforts. o Recovery Coordination and Management: Coordinate and manage recovery efforts through working closely with Client IT teams and external service providers to execute on the recovery strategy. o Engagement Management: Provide project oversight, communicate project activities across all stakeholders, and manage engagement economics. Deliverables The Deliverables to be produced in accordance to Services are as follows: Written status updates: Provide updates for activities that include a summary of activities completed, plans for the next reporting period, issues requiring attention, and budgetary updates. Fees, Expenses, and Invoicing Client agrees to pay the fees outlined in the table below. MOXFIVE will not exceed the scope listed in the table below without prior written approval from Client. MOXFIVE will provide notice to Client and Counsel when it reaches 80% and 100% of the fees estimates. © 2020 MOXFIVE Page | 2 Proprietary and Confidential Service Hourly Rate Estimated Hours Estimated Costs Task 1: Server Support $275 185 - 300 $50,875 - $82,500 Task 2: MOXFIVE Recovery Management $300 25 - 50 $7,500 - $15,000 Totals 210 - 350 $58,375 - $97,500 Client shall reimburse MOXFIVE for the following expense categories that are directly attributable to work performed under this SOW: Travel and living expenses if required Postage and courier services Other expenses incurred as a result of work performed under this SOW Assumptions Client will support Services based on the following assumptions: Client will obtain and provide relevant access to credentials and personnel for project coordination. Client will perform all on-site efforts with MOXFIVE supporting remote where needed. Client will provide a list of priority systems for decryption. Contact Information MOXFIVE POC Client POC Name Jeffrey Chan Address 1751 Pinnacle Dr, Suite 600 Tysons, VA 22102 Title Director Email jeff.chan@moxfive.com Phone (786) 553-0008 Client Technical Point of Contact Client Technical Point of Contact Information Name Title Email Phone Client Accounts Payable Contact Information Client Accounts Payable Contact Information Address Name Page | 3 © 2020 MOXFIVE Proprietary and Confidential Title Email Phone © 2020 MOXFIVE Page | 4 Proprietary and Confidential Acceptance of Quote and Agreement By signing below, the Parties hereby agree to the terms contained herein as of the SOW Effective Date. Agreed and Accepted for MOXFIVE Agreed and Accepted for Client Signature Signature Name Name Title Title Date Date Agreed and Accepted for Counsel Signature Name Title Date Please return signed copy to the MOXFIVE POC Anthony Valach Counel August 21, 2020 Jeffrey Chan Director August 21, 2020