APPLICATION SERVICE PROVIDER

MASTER AGREEMENT

THIS APPLICATION SERVICE PROVIDER AGREEMENT (“Agreement”) is made and entered into as of first day of use of the system (“Effective Date”) by and between MSS Software, Inc. a Georgia corporation, having its principal place of business at 6740 Shannon Parkway, Suite 10, Union City, GA  30291 (“Company”) and, the company who has accessed this site referred to as (“Customer”).  Company and Customer are sometimes referred to collectively as “Parties”.

In consideration of the promises and mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, Company and Customer agree as follows:

1.         Definitions.  In addition to any terms defined elsewhere in this Agreement, the following terms have the following meanings:

(a)          "Documentation" means the user manuals as current from time to time for the Company Services and the Company’s software that Company generally makes available to its customers.

(b)        "Company Content" means the graphics, diagrams, literature, materials or any other content available utilizing the Company Services from time to time that Company makes generally available to its customers.

(c)        “Company Services” means the services provided by Company as set forth herein and in Exhibits A and B as may be amended by agreement of the parties from time to time.

(d)        "Go Live Date" means with respect to any particular Company service the date that Company first makes the particular Company Service available to Customer.

(e)          “Intellectual Property Rights” means copyrights (including the right to use, reproduce, modify, distribute, publicly display, and publicly perform the copyrighted work), trademarks (including trademark, trade names, service marks, and trade dress), patents (including the exclusive right to make, use and sell), trade secrets, rights of publicity, rights of privacy, goodwill and all other intellectual property rights as may exist now or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.

2.         Scope of Work.

(a)  Company shall provide the Company Services under the terms and conditions set forth herein and on any attached exhibits.  Company shall provide all labor, software, materials, services, equipment, computer resources and Company Materials necessary to perform its obligations hereunder and in any attached exhibits.

Customer shall be responsible for providing and maintaining its own internet access, all necessary telecommunications equipment, software, hardware and other materials at Customer's location necessary for accessing the Company Services through the Internet and/or for installation of Company’s software at Customer’s site.

3.         Term and Termination.

(a)        Term.  This Agreement shall commence as of the Effective Date and shall continue in full force and effect for a period of three (3) years unless earlier terminated as set forth herein.  The parties agree to use their reasonable best efforts to determine the renewal terms not less than 60 days prior to the expiration date of contract.  Any and all licenses granted under this contract for Company’s Internet Based Services shall terminate upon termination of this Agreement for any reason whatsoever.  Any and all software licenses granted under a separate software license agreement, to be installed at Customer locations will survive the expiration of this agreement and be subject to the terms of the software license agreement.

(b)          Termination for Cause.  Either Party may terminate this Agreement if the other Party has materially breached its obligations and fails to correct the breach within thirty (30) days after the defaulting Party’s receipt of written notice of such breach.  The non-defaulting Party may also exercise any other rights available to it at law or in equity, except as limited by this Agreement.

(c)     Insolvency; Reorganization.  If Company shall: (i) dissolve, transfer, sell, assign, mortgage, encumber, pledge, or otherwise dispose of substantially all of its assets used to perform its obligations hereunder; or (ii) be adjudged bankrupt, make a general assignment for the benefit of its creditors or become insolvent and a receiver shall therefore be appointed;  then Customer may terminate the Agreement immediately upon notice thereof to Company.  If Customer shall:  (i) dissolve, transfer, sell, assign, mortgage, encumber, pledge or otherwise dispose of substantially all of its assets used to perform its obligations hereunder; or (ii) be adjudged bankrupt, make a general assignment for the benefit of its creditors or become insolvent and a receiver shall therefore be appointed; then Company may terminate the Agreement immediately upon notice thereof to Customer.

(e)     Merger/Acquisition.  If Customer is merged into another organization or is acquired by another entity, this contract shall survive such event for the remaining term of the agreement.

(f)   Payment upon Termination.  In the event of termination of this Agreement, by Customer for Cause, Company shall only be entitled to payment for Company Services performed in accordance with this Agreement prior to the notice of termination.  In the event Company terminates this Agreement for Cause, Customer shall pay Company all remaining Charges due under this Agreement.

4.         Ownership and License.

(a)        Company shall retain all right, title and interest in and to the Company Content and Company Service, including without limitation any modifications, improvements, or derivative works thereof, and any custom software or integration or interface software developed hereunder (“Company Intellectual Property”).  Customer shall not modify, change, alter or amend the Company Intellectual Property in any manner other than as permitted by this Agreement without the express written consent of Company

(b)        Company grants to Customer a worldwide, non-sublicensable, revocable, non‑exclusive license for various identified employees of Customer to use the Company Services as set forth in this Agreement and attached exhibits for Customer’s business purposes.

(c)          During the term of this Agreement ("User"). All invoices and fees shall be paid in full by Customer.  For Cash-It USA services, Customer must create and assign user names and passwords.  Customer represents and warrants that each User shall access the Company Services with an individual user name and that Users shall not share user names and/or passwords with other employees of Customer or third parties.

(d) Other than specified in section 4(b), Customer may not lease, loan, rent, resell, sublicense or transfer in any manner the Company Services, Company Content or Company Intellectual Property or any part thereof to any third party, or use the Company Services for the benefit of any third party.  Customer shall ensure that no more than the maximum number of licensed Users access or use the Company Services.  Upon Company's written request, no more frequently than two times annually, Customer shall furnish Company with a signed officers certification verifying that the Company Services and Company Content are being used pursuant to the terms of this Agreement.

5.         Data Security

Company shall use commercially reasonable efforts to safeguard against the destruction, loss or alteration of any Customer Content.  In the event Company or subcontractors or agents of Company discover or are notified of a breach or potential breach of security with respect to the foregoing, Company shall immediately notify Customer of such breach or potential breach by contacting Customer as set forth in the Notices Article.  However, COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICES WILL BE ERROR FREE OR COMPLETELY SECURE OR THAT DATA WILL NOT BE LOST OR CORRUPTED.

6.         Subcontracting. Company may, without Customer’s consent, subcontract or delegate performance of any of its obligations hereunder.  Company shall remain responsible for any work performed by its subcontractors.

7.         Compensation and Payment. Charges for the Services to be provided by Company hereunder (“Charges”) are set forth in Exhibit B.  Except as otherwise provided in Exhibit B, Charges will be billed on a monthly basis for the prior calendar month of Services delivered. Charges shall be made by ACH draft from an account designated by the Customer on or about the 15th of the month. In the event of a rejected draft a service fee of $30.00 or such lesser amounts as may be permitted under applicable law will be charged. Service charges not exceeding one and one-half percent (1-1/2%) per month, or such lesser amounts as may be permitted under applicable law, may be imposed on past due accounts.  All payments hereunder shall be in United States dollars.

8.         Representations and Warranties.  Company represents and warrants:

(a)          That the Company Services shall substantially perform in accordance with the Documentation. Customer's sole and exclusive remedy and Company’s sole and exclusive liability under this limited warranty shall be for Company to use commercially reasonable efforts to promptly remedy any failure of the Company Service to materially conform to the Documentation.  This remedy is available only if Company is promptly notified in writing that the Company Service fails to conform to this limited warranty.

(b)          It owns or has the necessary rights to the Company Service and Company Content to convey the license set forth in Section 4 to Customer and perform its obligations under this Agreement.

(c)        THE LIMITED WARRANTY FOR THE COMPANY SERVICE SET FORTH IN SECTION 8 IS IN LIEU OF ALL OTHER WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, WHICH WARRANTIES ARE EXPRESSLY DISCLAIMED BY COMPANY TO THE FULLEST EXTENT PERMISSIBLE BY LAW.  COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.

9.         Indemnification.

(a)        Company will indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) which result from any claim, suit, action, or proceeding (each, an “Action”) brought against Customer alleging that the Company Service infringes any third party U.S. copyright or trade secret; provided that Customer (a) notifies Company promptly in writing of any such action, (b) gives Company sole control of the defense and/or settlement of such action and (c) gives Company all reasonable information and assistance.  Should use of the Company Service become, or in the opinion of Company be likely to become, the subject of such an infringement claim, Company may, at its option, (x) procure for Customer the right to use the Company Service free of any liability, or (y) modify, in whole or in part, the Company Service to make it non-infringing, or (z) if (x) and (y) are not commercially practical terminate this Agreement.  Notwithstanding the foregoing, Company shall have no obligation to indemnify Customer in connection with any Action for which Customer is obligated to indemnify Company under Section 9b.

(b)        Customer will indemnify, defend and hold Company, its affiliates and customers harmless from and against any and all Losses resulting from or arising out of any Action brought against Company, its affiliates or customers alleging: (i) that any Customer Content (as defined above) libels, defames, slanders or invades the rights of publicity or privacy of any third party or infringes any copyright, trademark, trade secret or other intellectual property right of any third party, (ii) any claim based upon alleged errors or omissions or negligent misstatements in any Customer Content, (iii) any virus, worm, Trojan horse, or other contaminating or destructive feature contained in any of the  Customer Content or (iv) any breach by Customer of any warranty or obligation set forth this Agreement; provided that Company (a) notifies Customer promptly in writing of any such action, (b) gives Customer sole control of the defense and/or settlement of such action and (c) gives Customer all reasonable information and assistance.

10.       Limitation of Liability.

COMPANY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF CUSTOMER OR THE CUSTOMER’S REPRESENTATIVE HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

11.       Confidential Information.

(a)          No action arising out of the performance under this agreement may be brought by either party more than one (1) year after such claim arose. Neither party shall disclose to or permit to be used by (except in the furtherance of its responsibilities and obligations hereunder) any third party or entity any technical, commercial, organizational, scientific or business

(b)          Information, or intellectual property, of either party or its Affiliates (collectively “Confidential Information”) disclosed to, learned by or developed by it, its employees or agents under this Agreement.  In addition neither party shall (i) use the Confidential Information of the other party other than to fulfill its obligations under this Agreement; (ii) not allow access to the Confidential Information to personnel who do not need access to such information in order to fulfill such party's obligations hereunder and; (iii) protect the Confidential Information with at least the same level of care as it uses for its own confidential information of a similar nature but not less than a reasonable level of care.  These restrictions on use and disclosure shall not apply to:

(i)   Confidential Information already known to a party when it was disclosed by the other party as demonstrated by prior existing written records;

(ii)  Confidential Information that is or becomes known to the public through no fault of such party, its employees, or agents;

(iii) Confidential Information that is lawfully received by a party from a third party where the third party has not required such party to maintain the information in confidence; and

(iv) Confidential Information developed by a party independently of disclosure.

(b)        The foregoing obligations of confidentiality also extend to and bind the employees, subcontractors and agents of both parties who have been provided access to Confidential Information.

(c)        Upon request of the disclosing party, the receiving party shall return all Confidential Information and all written descriptive matter, including drawings, program listings, blueprints, descriptions, or other papers or documents, which contain or summarize any Confidential Information.

(d)        If the parties have previously entered into a Confidential Information Agreement (“Other Agreement”), the terms of that Other Agreement shall take precedence over the terms of this Confidential Information section with respect to information that is covered by both this Confidential Information section and by the Other Agreement, but only to the extent that the Other Agreement offers greater protection for such items than the protection provided for in this Confidential Information section.

(e)  This Agreement and its terms and conditions are considered Confidential Information.

12.  Dispute Resolution and Arbitration.

The parties shall attempt to resolve all disputes under the Agreement.  If the parties cannot, in good faith, resolve the dispute, the parties shall enter into arbitration to resolve such dispute.  Any such arbitration shall take place in the State of Georgia. The arbitration shall be in accordance with the Commercial Arbitration Rules of the American Arbitration Association

(“AAA”) then in effect, and judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction.

13.       Taxes. Customer shall pay any sales, use, excise, value added or similar tax not based on Company’s net income, as well as costs associated with the collection or withholding of taxes (including penalties and interest due to Customer’s intentional or negligent failure to pay promptly), which may be assessed in respect of this Agreement.

14.       Miscellaneous

(a)        Force Majeure. Neither party shall be responsible for delays or failures in performance, other than the obligation to pay money, resulting from acts or circumstances beyond the control of such party.  Such acts or circumstances shall include but not be limited to acts of God, strikes or other labor disputes, riots, acts of war, governmental regulations imposed after the fact, communication line failures, power failures, fires, or other disasters

(b)        Compliance With Laws. Each Party shall comply with all applicable laws, ordinances, rules, and regulations of governmental authorities.

(c)        Publicity. Company shall be allowed to use Customer’s name on its customer lists and disclose the same to its present and potential customers after execution of this Agreement.  Both parties may announce the execution of this Agreement without disclosing the terms thereof.  Any press release issued by either party, which contains more than the mere announcement of the execution of this Agreement shall require approval of the press release copy by the other party, which shall not be unreasonably withheld.

(d)       Applicable Law and Jurisdiction.  This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Georgia without giving effect to the principles of conflicts of law. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.  The Parties consent and submit exclusively to the jurisdiction and service of process of the courts of the State of Georgia or the courts of the United States located in Georgia.

(e)       Assignment. Neither party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party, which consent cannot be unreasonably withheld.  Notwithstanding the foregoing, Company may assign this Agreement or its rights hereunder to any affiliate or subsidiary, or third party that purchases all or substantially all of its assets.  Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void.  Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.

(f)        Legal Fees.  If either party initiates arbitration or any legal action to enforce any provision of this Agreement or otherwise in connection with this Agreement, the prevailing party shall be entitled to recover from the other its reasonable attorney fees and other legal cost in connection with such proceeding.

(f)           Notice.  All notices, consents, approvals, agreements, authorizations, acceptances, rejections, waivers and other communications required or permitted under this Agreement shall be given in a Record; where “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.  A Record shall be deemed given when authenticated by a duly authorized representative and: (i) received at the e-mail address stated below for the receiving Party;

(g)          (ii) received at the telecopy number specified below for the receiving Party; (iii) delivered by hand at the Party’s address specified below; or (iv) mailed to that address by certified mail, return receipt requested, with postage fully prepaid

Company:       Attn: Contract Administrator

MSS Software, Inc.

P. O. Box 367

Tyrone, GA 30290

Fax: 402.861.0013

[email-masked]

Customer:       Customers address as shown on ACH setup form or “void” check supplied with application.

(h)        Amendment.  This Agreement may not be amended except in writing executed by duly authorized representatives of the Parties.

(i)         Severability. This Agreement shall be construed so as to make all of its terms effective to the maximum extent possible.  In the event that any of the terms of this Agreement are held by a court of competent jurisdiction to be unenforceable against the Customer, then such terms shall be construed to be deleted from this Agreement and this Agreement shall be enforced as if such terms had not existed.  In the event that any such terms are essential to the further performance of this Agreement, such court shall substitute in the place thereof such additional terms as shall carry out this Agreement most closely in accordance with the parties’ apparent intent.

(j)         No Waiver.  The failure of either Party to exercise any right, or the waiver by either Party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach.

(k)        Authority.  Each Party possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder.

(l)         Survival.  The provisions of this Agreement entitled Termination for Cause, Ownership and License, Publicity, Subcontracting, Representations and Warranties, Indemnification, Limitation of Liability, Confidential Information, Data Security, Applicable Law and Jurisdiction, Assignment, and Notice shall survive the expiration or termination of this Agreement.

(m)        Precedence.  In the event a conflict exists between this document and any exhibit, this document governs.

(n)        Entire Agreement.  This document and the exhibits constitute the entire agreement between the Parties and supersede all previous communications, proposals and agreements, either oral or written, between the Parties with respect to the subject matter hereof.

15.       Miscellaneous

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