Our goal is to provide customers with the best technology solution suited for their specific needs. This combined with our experienced project manage- ment team will assure a seamless transition and a pleasant experience.

230 Goddard, Irvine, CA 92618
(949) 861-4500
info@telxpress.com

MSA

Tele-Express Business Systems Inc

Master Service Agreement

IMPORTANT-READ CAREFULLY: THIS MASTER SERVICES AGREEMENT (“MSA”) IS BINDING AND ENFORCEABLE BETWEEN CUSTOMER AND TELE-EXPRESS BUSINESS SYSTEMS,INC  FOR ITSELF AND ITS AFFILIATES (“TE”). “YOU” REFERS TO THE ENTITY OR ORGANIZATION USING THE PRODUCTS, AND/OR SERVICES DESCRIBED IN THE AGREEMENT. BY SIGNING THE ORDER TO USE THE PRODUCTS AND/OR TO RECEIVE SERVICES, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THIS MSA AND THE AGREEMENT. YOU SHALL INFORM ALL USERS OF THE PRODUCTS OR SERVICES OF THE TERMS AND CONDITIONS OF THIS MSA AND THE AGREEMENT.

The parties’ complete agreement with respect to the subject matter is set forth in the MSA, Orders, and any addendums executed by the parties during the Term and shall be hereinafter referenced as the “Agreement”. You expressly agree that the terms and conditions of this Agreement shall govern all Products and Services provided to You during the Term and are a material part of TE’s agreement to provide such Products and Services, whether or not the same is stated on an Order or at the time of provision. In the event of any inconsistency between the MSA, Orders, and any addendums, the order of precedence shall be: (1) the Order(s) including the Notes section, (2) the applicable addendum, (3) the General Terms and Conditions of the Order(s), and (4) this MSA.

TE agrees to provide the Products and Services in accordance with each Order and you agree to pay for such Products and Services, in accordance with the terms and conditions of the Agreement.

GENERAL TERMS AND CONDITIONS

1. Definitions. Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth below. Any of such terms, unless the context otherwise requires, may be used in the singular or plural, depending upon the reference.

“Affiliate” shall mean, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.

“Agreement” shall mean this MSA as well as all applicable Orders, addendums, and any other documents that are expressly incorporated herein (collectively “Service Attachments”).

“Applicable Law” shall mean any international, federal, state, or local statute, regulation, or ordinance, expressly including without limitation those relating to individual privacy or the distribution of email and digital messages.

“AUP” means TE’s Acceptable Use Policy in Addendum A to this MSA.

“Customer” means the company or other legal entity which has been listed on the Orders.

“Confidential Information” means any non-public information of the parties hereto relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to, and received by, the other party pursuant to the Agreement. Confidential Information includes, but is not limited to, the terms and pricing of the Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information.

“End Users” means Customer’s member, end-users, customer or any other third parties who utilize or access the Services or TE systems via the Services provided hereunder.

“Force Majeure Event” means an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts of God; earthquake; flood or extreme weather conditions; embargo; riot; sabotage; or terrorist acts.

“Products” and “Product” means any hardware, software, documentation, accessories, cabling, material, supplies, parts, and other goods provided by TE or any third party acting on behalf of or at the request of TE.

“Security Product” means a Product for the purpose of monitoring computer communication and providing malware detection.

“Services” means the services that are ordered by Customer under an Order or provided to Customer free of charge (as applicable) or under a free trial requested by Customer and provided by TE.

“Subscription Services” means those Services on the Orders whose per unit monthly charges are listed in the column titled “Price MRC”.

“1st Party Subscription Services” means all Subscription Services other than 3rd Party Subscription Services. 

“3rd Party Subscription Services” means those Subscription Services that are provided by third parties such as (but not limited to) Microsoft and VMware. 

“Data Center Services” means those Subscription Services that are provided in the data centers used by TE that are solely dedicated to providing services to Customer such as VPN, Cross-Connects, and Collocated Equipment.

“Work Order” or “Order” means a statement of work, request for services, or other agreement that defines the scope of Services and Products to be provided to Customer by TE that is in writing and approved by a duly authorized representative of Customer.

“SLA” means Service Level Agreement (as set forth in the Addendum B to this MSA) applicable to each individual Service, if any, and which provides Customer’s sole and exclusive remedies for any Service deficiencies or failure of any kind. TE may modify the SLA prior to a renewal of the Current term with sixty (60) days prior written notice.

“Taxes” means any applicable foreign, federal, state, or local taxes and charges assessed or incurred in connection with the Service, including without limitation, all governmental excise, use, sales, value-added, environmental assessments or charges, and occupational taxes and other fees, or similar surcharges and levies, but excluding any taxes based on TE’s net income.

2. Services.  TE will provide the Services in accordance with the Agreement. Services shall be provided consistent with commercially reasonable standards in the industry. Without limiting the generality of the foregoing, TE personnel providing Services to Customer (or having access to Customer’s data) shall submit to and pass a background check in accordance with TE’s policies. TE may reject any Order and will not be bound by any Order until accepted by us in writing. Customer issued purchase orders will not modify the terms of the Agreement. Any requests for ancillary services not described in the applicable Service Attachments may be provided on an individual case basis as agreed to in writing by all parties (“Ancillary Services”). These Ancillary Services are billable at the agreed upon rates stated in the Ancillary Services agreement.

TE’s delivery of 1st Party Services relies upon its ability to utilize certain 3rd Party Subscription Services. TE reserves the right to substitute 3rd Party Subscription Services as needed to facilitate the ongoing delivery of 1st Party Subscription Services and notwithstanding any other provision in this Agreement, adjust charges at any time for 1st Party Subscription Services in the event a change in 3rd Party Subscription Services is needed or the cost to TE for 3rd Party Subscription Services should change.

3. Fees.  

A. Credit Authorization. Customer hereby authorizes TE and consents to TE obtaining credit information from banks, other financial institutions and other third-party references regarding Customer for the purposes of assessing Customer’s credit worthiness. Customers will promptly execute and deliver to TE such documents and releases and take such further actions as TE may from time-to-time reasonably request in order to carry out the intent and purpose of this Section.

B. Deposit. All orders for new Services will be charged a deposit in the first month and an equal amount as a security deposit, based upon one (1) month’s estimated usage. The deposit shall be retained by TE and applied to any amounts due from Customer at end of Term or any renewals.

C. Non-Recurring Charges. In addition to a deposit, migration fees, computer equipment, and all other non-recurring charges (“NRC”) set forth in the Order will be invoiced upon execution of this MSA and are due and payable upon receipt. TE will only begin ordering NRC equipment and performing the NRC Services upon receipt of payment for NRC charges.

D. Monthly Minimum Recurring Charges. TE will invoice for the Services (other than 3rd Party Subscription Services and Data Center Services) after providing Customer written notice the Services are available for use (“Billing Commencement Date”) and will continue invoicing Customer on a monthly basis in accordance with the Agreement terms. 3rd Party Subscription Services are invoiced once licenses are assigned by TE to Customer’s users which may occur before the Billing Commencement Date. Data Center Services are invoiced once they are provisioned by TE which may occur before the Billing Commencement Date.

Monthly recurring charges (“MRCs”) will be billed monthly in advance, varying or usage-based charges will be billed monthly in arrears. Charges for any Services initiated during the month will be billed for the entire month and will not be prorated. The total monthly charges for Subscription Services from all Orders during the term of the Agreement becomes the Monthly Subscribed Services Total. All monthly invoices are subject to a minimum subscription charge of (a) 100% of all 3rd Party Subscription Services and (b) 90% of the current month 1st Party Subscription Services.  However, at no time can the monthly invoice go below 90% of the Monthly Subscribed Services Total. Nothing shall limit TE’s ability to increase charges in a new price list or during any Current Term.

If Subscription Services are canceled, Customer will be billed for (a) either 100% of the 3rd Party Subscription Services used and 90% of the 1st Party Subscription Services used or (b) 100% of the 3rd Party Subscription Services used and 90% of the highest monthly billed 1st Party Subscription Services total billed over the prior 12 calendar months, whichever is greater. Charges for 3rd Party Subscription Services and 3rd Party licenses are subject to change at any time to reflect changes in the cost of these Services to TE.

E. Migrations. Following acceptance of an Order by TE and prior to the commencement of any migration services, a migration plan (“Plan”) will be presented to Customer for review and acceptance. The Plan will include a projected date of completion. Unless otherwise provided for in the Plan or unless the Plan is modified by TE in writing, billing for the Services will begin 75 days from the date of execution of this Agreement. In addition, if the Services include services provided by third parties such as (but not limited to) Office 365, the charges for these Services will be billed to Customer as soon as TE is charged for these third-party services even if these third-party charges occur before the 75 days from the execution of this agreement.

F. Requested Change. All requests for changes to the Services must be in writing by email sent to support@telxpress.com. For billing purposes, changes are effective as of the request date unless the change is specified to take effect at a future date. All changes are subject to the monthly minimums defined in the Order.

G. Payment. Invoices are due in full upon receipt, and are considered past due after the due date printed on the invoice (“Due Date”). In addition to the charges for the Services, Customer shall pay all applicable Taxes and any third-party charges pre-approved by you (e.g., installation, local access, utilities). An additional charge of $50 will be applied for each returned check. Credit card and debit card payments are subject to an additional 3% processing fee.

H. Overdue Payments. 

(i) Material Breach.  Customer’s failure to timely pay any fees and/or expenses shall constitute a material breach of the Agreement.  

(ii) Late Notice.  If any amounts for which Customer is responsible are overdue, then TE shall provide Customer with written notice of the same (a “Late Notice”). If Customer fails to pay all overdue amounts within 10 business days after Customer’s receipt of the Late Notice or within 30 days of invoice due date, whichever is earlier, then TE, in addition to any of its other rights or remedies: (a) may terminate the Agreement, including all outstanding Orders; and (b) shall be entitled to recover from Customer all of the following: (i) interest on all overdue amounts at the lower of a rate of 1.5% per month or the maximum rate permitted by law (“Interest”); (ii) all remaining amounts due for the remainder of the Term; and (iii) all fees and costs (including reasonable attorneys’ fees, court costs and collection agency fees) incurred in seeking collection of such overdue amounts (“Collection Costs”); and (c) may suspend access to the Services and/or Products.  

(iii)      Suspension of Access. In the event that Customer has previously been sent more than two Late Notices within one calendar year from the due date of the missed payment, TE may suspend access to the Services and/or Products five days following written notice to Customer of the failure to pay and intent to suspend access.  If TE suspends access to the Services and/or Products, Customer will be charged a reinstatement fee of 5% of Customer’s monthly invoice or $500.00, whichever is greater (the “Reinstatement Fee”).  Customer must remit payment of all amounts due and owing to TE, inclusive of the Reinstatement Fee, in order to reinstate said access to Services and/or Products.  The Customer expressly understands and agrees that these amounts must be paid prior to reinstatement of said access to Services and/or Products, and will allow TE a reasonable period of time to reinstate said access of Services and/or Products.

I. Taxes. Unless otherwise stated, TE’s fees do not include any Taxes and the Customer is responsible for paying all Taxes. If TE has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer.

4. Term and Termination.

A. Term of Service. This Agreement is effective when an Order has been signed by Customer and accepted by TE and shall continue for the period set forth in the first Order (“Term”). The Services will begin as soon as the provisioning, installation, connection and testing necessary to provide the Services has been validated by TE (“Effective Date”). The end date of the initial Term under the Order will be determined by adding the Term to the Effective Date.  Upon the first Automatic Renewal pursuant to Paragraph 4(A)(i) herein, each subsequent Term shall be determined by adding the period of the Term to the date of the automatic renewal (“Renewal Date”).  The operative Term shall be referred to as the “Current Term.”

 (i) Automatic Renewal. Except as otherwise provided in an Order, the Current Term shall automatically renew upon the expiration of that Term as follows: (a) Orders with a Current Term of one year or longer shall automatically renew for one year and each renewal will be subject to increase of up to 10% in the MRCs for the Services; and (b) Orders with a Current Term of less than one year shall automatically renew for the same period of time as the Current Term and the MRCs for all Services will reflect undiscounted charges for such Services in effect at that time. 

(ii) Cancellation of Automatic Renewal. Except as otherwise provided in an Order, either party may cancel any automatic renewal of a Term by providing at least sixty (60) days written notice prior to the expiration of the then current Term. Customer’s notice of cancellation will not terminate Services as Customer will continue to be responsible for all fees up to the effective termination date. For a non-renewal to be effective, Customer must submit a non-renewal request in writing in accordance with Section 11.B.

     (iii)  Changes to the MSA.  From time-to-time TE may elect to revise or supplement the MSA (the “Updated MSA”).  Unless otherwise agreed to in writing by the Customer, the Parties expressly understand and agree that the Updated MSA in place 60 days prior to the expiration of the Customer’s Current Term shall be binding and enforceable against the Parties upon the first day of the next Term.  Customer understands and agrees that it shall bear sole and complete responsibility for reviewing the Updated MSA in detail prior to any automatic renewal, and that failure to cancel the automatic renewal shall constitute a meeting of the minds between the Parties, and Customer’s express agreement to be bound by the terms.    Customer may, at any time, request a copy of the operative Updated MSA, and may further locate the same on the TE website (subject to any interruptions, connectivity errors, or any other issues that may arise. Said issues will not relieve the Customer of its obligation to affirmatively request and review the Updated MSA).  

B. Termination.

 (i) Material Breach. Except as provided elsewhere in this Agreement, either party may terminate this Agreement or any Order if the other party materially breaches this Agreement or such Order, as applicable, the non-breaching party provides written notice to the breaching party identifying said material breach, and the breaching party fails to cure the breach within 30 days following receipt of written notice from the non- breaching party (excluding any breaches relating to the payment of Fees set forth in Section 3, which shall not require further notice) (the “Cure Period”). Either party may terminate this Agreement for cause immediately if the other party files for bankruptcy, becomes insolvent or makes an assignment for the benefit of creditors, or if a trustee is set up to administer a substantial portion of the other party’s assets or business.  In the event of a material breach by the Customer, TE is not responsible for any delays, interruptions in service, or any alleged failures to perform under the Agreement during the Cure Period, and may suspend some or all Services during the Cure Period at its discretion until such time as the breach is cured or the Cure Period expires.

 (ii) Chronic Trouble. Customer may terminate an applicable Order for cause (but not this Agreement) if Customer experiences “chronic trouble” under an applicable SLA, provides written notice to TE describing in detail the chronic trouble (inclusive of dates, times, and descriptions of every specific event or issue contributing to said chronic trouble), and TE fails to cure the breach within 30 days following receipt of written notice from the non- breaching party (excluding any breaches relating to the payment of Fees set forth in Section 3, which shall not require further notice) (the “Cure Period”) . An individual “Event” means any failure by TE to satisfy the corresponding Service Level in an SLA. Customer expressly understands and agrees that it may not terminate for cause, nor classify as an Event, any failure to satisfy a Service Level in the SLA where that alleged failure was caused, in part or in its entirety, by factors outside of TE’s exclusive control, including but not limited to actions or delays of a third party and hardware or software incompatibility or error. “Chronic trouble” means Customer has experienced more than three (3) Events with the same Service, as determined by TE acting pursuant to commercially reasonable standards consistent with industry practice in Las Vegas, Nevada, within a 60-day period (measured from the date of the first Event).

   (iii) Termination upon Expiration. Except as provided in an Order or herein, Customer may disconnect Services and terminate an Order upon the expiration of the Term by providing at least 60 days’ notice (or 30 days in the case of an Order with a Current Term of 30 days) prior to the expiration of the Term. To be effective, Customer must submit written notice in accordance with Section 9(B).

(iv.) Termination for Convenience. Either party may terminate this Agreement or any Order by written notice to the other party at least 60 days before the requested termination date. If Customer wishes to terminate as provided in the preceding sentence, it must pay Tele-Express Bus Sys Inc as liquidated damages, a Termination Fee, and any other amounts due from Customer as set forth in such Order. The “Termination Fee” shall be equal to 100% of the Fees Customer would have had to pay for the remaining Order Term for all terminated Orders. Customer acknowledges and agrees that: (i) TE is only agreeing to provide Customer a right to terminate for convenience conditioned upon Customer’s payment of the Termination Fee, and that absent payment of the Termination Fee, Customer shall have no right to terminate this Agreement or any Order under this Section 4; (ii) Tele-Express Bus Sys Inc will incur considerable consequences and losses in the event Customer terminates this Agreement for convenience prior to the expiration of the Order Term; (iii) such consequences and losses would be difficult, if not impossible to estimate; and (iv) the Termination Fee is a reasonable pre-estimate of the consequences and losses that TE would actually incur in the event of material breach by Customer and early termination of this Agreement. Notwithstanding the above, the Termination Fee shall not be less than an amount equal to three months MRC plus additional Fees related to TE’s activation of Services in the event the Order is canceled prior to the Service Commencement Date.

(v.) Consequences of Termination. Upon termination of this Agreement or any Order for any reason other than termination by Customer under subsection (i) above or termination upon expiration of an Order Term, Customer shall immediately pay to TE: (a) third party charges as set forth in an Order, if any, incurred by TE arising from such termination; (b) all unpaid Fees; and (c) the Termination Fee. Customer agrees to pay all amounts owing pursuant to this Section on or before the termination date. If requested by Customer within 30 days of the termination date, TE will make available to Customer a file of the Customer data in its possession, if any. Rights and obligations which by their nature continue after the termination or expiration of this Agreement, including, but not limited to confidentiality, shall survive and continue after the termination or expiration of this Agreement.

5. Customer Obligations.

A. Use of Services:  All users of TE Services by Customer and its End Users will comply with the AUP which is included herein by reference. TE may make reasonable changes to the AUP at any time and such change will be effective upon posting to the TE website or other notice to Customer. TE may suspend the Services or otherwise restrict access to TE systems, without notice, if TE discovers an AUP violation that, in TE’s reasonable discretion, is unlawful or is likely to cause loss or liability for TE. Any such suspension or restriction will be on the most limited basis as TE determines is reasonably necessary under the circumstances in order to address the underlying violation. TE shall provide timely written notice of the reason for suspension or restriction. If the violation is not addressed in a timely manner or reoccurs, it will constitute a material breach under 4.B. Customer will indemnify, defend, and hold TE and its contractors harmless from any and all third-party claims, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees and court costs, or liabilities arising from or related to any violation of this Section 5.

B. Responsibility for Message Content: Customer is solely responsible for all content that it makes available on or through TE Services. Customer guarantees that all such content will not infringe on, or contain any content that infringes on, or otherwise violates any copyright, patent or any other right held by a third- party and that all such content will not violate any applicable federal or state law, rule, regulation or industry standard.

C. Passwords. Customer understand that it is responsible for maintaining secure passwords on all devices, as well as all mobile devices. Customer shall adopt a password policy that requires changing passwords on a regular basis, not sharing passwords, and sanctions if the policy is violated. Should Customer not have such a policy or not require a passcode on all devices, as well as mobile devices, TE shall have no responsibility or liability with respect to Customer’s breach of Confidential Information or a third party’s access to Customer’s Information.

D. Third Party Access. TE understands and acknowledges that Customer may from time-to-time request TE to grant access to third parties to Customer’s data. Customer agrees that it shall be responsible for obtaining any third-party agreements related to confidentiality and use of data. Customer agrees that TE shall have no responsibility or liability with respect to Customer’s granting access to their programs and data to a third party at Customer’s request.

E. Authorized Personnel. Customer is responsible for providing a current list of employees or representatives permitted to make changes to Customer account such as addition, modification, deletion of users and/or services. Changes may have an impact on billing. Failure of Customer to prevent unauthorized persons making changes may cause Customer harm. Customer agrees to provide current information to TE and keep TE updated as to the current “Authorized Personnel” listing.

F. Ports for Peripherals. Customer accepts all responsibility in permitting employees or other users access to the USB ports or other ports used for connectivity to peripheral devices on their TE zero client or any other device customer uses to access hosted information.

G. Supported Use of Software. Customer accepts that TE is not obligated to configure or modify any software or application in a manner that in TE’s sole discretion is not supported by either the feature set or the creator of the software or application.

6. Disclaimer of Warranties. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, TE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES AND PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TE DOES NOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING THE SERVICES OR USING THE PRODUCTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE ANY PRODUCT, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY TE. TE MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING THE COMPATIBILITY OF SOFTWARE OR EQUIPMENT OR ANY RESULTS TO BE ACHIEVED THEREFROM OR THAT ANY SERVICE WILL BE FREE FROM LOSS OR LIABILITY ARISING OUT OF ANY THIRD-PARTY TECHNOLOGY, ANY THIRD-PARTY ACTION SUCH AS HACKING, OR ANY ACT OR OMISSION OF THE CUSTOMER, INCLUDING FAILURE TO ENCRYPT, AND TE SHALL HAVE NO RESPONSIBILITY THEREFORE.

7. Indemnification. Each party shall defend and hold harmless the other, its Affiliates, and each of their respective shareholders, partners, directors, employees and agents from and against any and all damages, claims, liabilities, judgments, actions, lawsuits, executions, costs (including reasonable attorneys’ fees and costs and expenses of legal actions) and expenses to the extent arising out of any breach of the indemnifying party’s obligations hereunder, any misrepresentation made hereunder or in relation thereto by the indemnifying party, and/or any negligent act or willful act or omission of the indemnifying party arising out of this Agreement. The provisions of this Section shall survive the termination of the Agreement.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER ANY THTERY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THTERY FOR LOST PROFITS, BUSINESS, GOODWILL, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER THE RESPECTIVE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER PROVIDED IN NO EVENT SHALL TE’S LIABILITY UNDER THIS AGREEMENT OR TERMINATION OF THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER TO TE HEREUNDER.

Notwithstanding any other provision in this Agreement, the limitations of liability contained in this Agreement shall not apply in respect of any liability of the Customer arising from, or connected to, its gross negligence or willful misconduct, and, in no event, will TE or its Affiliates be required to release or indemnify the Customer for any violation of Section 5 herein, gross negligence or willful misconduct.  Customer expressly understands and agrees that Customer’s duty to defend and duty to indemnify each require Customer’s prompt payment of all fees, costs, amounts and other payment obligations incurred by or on behalf of TE as those fees, costs, amounts and other payment obligations accrue.

8. Confidentiality. TE agrees to treat all Confidential Information as confidential and not to use or divulge such Confidential Information to others without Customer’s prior written consent which may be withheld in Customer’s sole and absolute discretion. TE acknowledges that it has no ownership interest in the Confidential Information. TE agrees to secure non-disclosure/confidentiality agreements from all its employees and subcontractors who are involved with providing Services under the Agreement. The provisions of this Section shall survive the termination of the Agreement. The parties agree to keep confidential the terms of this Agreement, including all pricing for TE Products and Services, and not to disclose the terms of this Agreement to any third party without prior written consent of the non-disclosing party.

In the event that TE or its representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, or similar process) to disclose all or any portion of the Confidential Information, TE shall: (i) provide the Client with prompt notice of those request(s); (ii) consult with the Client on the advisability of taking legally available steps to resist or narrow that request; and, (iii) assist the Client as reasonably necessary in seeking a protective order or other appropriate remedy. In the event that any protective order or other remedy is not obtained or the Client waives compliance with the provisions of this Agreement: (i) TE or its representatives, as the case may be, may disclose to any tribunal only that portion of the Confidential Information which they are advised by the opinion of counsel is legally required to be disclosed or else stand liable for contempt or suffer other censure or penalty, and shall exercise their best efforts to obtain assurance that confidential treatment will be accorded that Confidential Information; and, (ii) neither TE nor its representatives shall be liable for that disclosure unless disclosure to any tribunal was caused by or resulted from a previous non-permitted disclosure by TE or its representatives.

9. Data Loss Prevention and Recovery. TE utilizes commercially reasonable efforts to protect against the loss of Customer data that is maintained on the TE Infrastructure. Data Loss Prevention and Recovery is provided with (i) restoration and recovery times for protected Customer Data, subject to a variety of circumstances such as Customer data change rates, and the total volume of protected Customer Data requested to be recovered and restored. Should TE perceive any excessive, unusual or abnormal recovery and restoration requests from Customer, TE expressly reserves the right to require Customer to modify, alter or adopt designated procedures to address the identified issues. Historic images of the Customer Data for Customers using TE backup services are retained as agreed to by TE and Customer in an Order or signed Addendum to this Agreement. In the absence of such an Order or signed Addendum, TE will retain the daily backups of Customer’s Protected Data for 3 days. Customer may initiate recovery and restoration requests from these backup data sets. Customer acknowledges and accepts that TE cannot guarantee that data included in backups is free from corruption or the presence of malware.

10. Insurance. Each party shall carry and maintain during the Term, at its own cost and expense, commercial general liability insurance of at least $1 million per occurrence with a $2 million aggregate covering claims for bodily injury, death, personal injury, or property damage. If Customer’s personal property will be located in any data center, Customer shall also carry an “all risk” property insurance policy covering such equipment in an amount not less than its full replacement value. The coverage required herein may be obtained through any combination of primary and excess or umbrella liability insurance. Customer will provide TE with certificate(s) of insurance which evidence such coverage upon request and provide at least 30 days prior written notice of policy cancellation.

11. Miscellaneous.

A. General

(i) Assignment. Customer shall have no right to transfer, assign or otherwise dispose of its rights or obligations hereunder (a “Customer Assignment”), by operation of law or otherwise, without the prior written consent of TE, the approval of which is at TE’s sole and unfettered discretion, provided however Customer may assign this Agreement to an entity that acquires all or substantially all of Customer’s assets.    TE reserves the right to assign its rights and obligations under the Agreement, provided that it provides written notice to the Customer not less than 90 days prior to any such assignment. 

In the event of a Customer Assignment without TE’s express written approval, TE may terminate this Agreement and/or any Order, suspend services to Customer or the Customer’s successor in interest, or otherwise treat the Customer Assignment as an automatic renewal of the Current Term.  TE may exercise one or more of these remedies at its unfettered discretion so long as it has not provided express written approval of the Customer Assignment.  In the event TE elects to terminate this Agreement and/or any Order, that termination will be deemed a Termination for Convenience by the Customer pursuant to Paragraph 4(b)(iv) herein as of the date of said termination.  TE’s delay or failure to exercise its rights hereunder shall not constitute a waiver of those rights, which may be exercised at any time until TE provides express written approval of the Customer Assignment or otherwise terminates this Agreement and all existing Orders.

 (ii)     Integration by Amendments. This Agreement, including the Exhibits referred to herein which are made a part hereof, contains the entire agreement and understanding of the parties hereto with respect to the subject matter contained herein, and all prior agreements or understandings of the parties hereto are hereby revoked. Save and except for revisions or supplements to the MSA described in Section 4(a)(iii) herein, this Agreement may be amended only by a written instrument executed by TE and the Customer. There are no agreements, restrictions, promises, warranties, covenants or other undertakings other than those expressly set forth herein.

 (iii).     Severability. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. The parties further agree to negotiate in good faith a substitute, valid and enforceable provision that most nearly affects the parties’ intent and to be bound by the mutually agreed substitute provision.

 (iv).     Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada and any question arising hereunder shall be construed or determined according to such laws without regard to conflict of laws and controlling U.S. federal law. Any suit hereunder will be brought solely in the federal or state courts in Las Vegas, Nevada and Customer hereby submits to the personal jurisdiction thereof. The prevailing party in any action to enforce this Agreement shall be entitled to recover reasonable costs and expenses, including attorney fees.

  (v).   Headings. The headings in this Agreement are inserted for convenience of reference only and are not to be used in construing or interpreting any of the provisions of this Agreement.

  (vi).   Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original, and will become effective when one or more counterparts have been signed by each party and delivered to the other parties. Copies of executed counterparts transmitted by telecopy, telefax or other electronic transmission service shall be considered original executed counterparts for purposes of this Section provided that receipt of copies of such counterparts is confirmed.

  (vii). No Third-Party Beneficiary. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 (viii).     Publicity. Neither party shall use, publicize, or issue any press release which includes the name, trademarks, or other proprietary identifying symbol of the other party or its affiliates, without the prior written consent of such other party.

  (ix).   Force Majeure. Nonperformance of either party, except the failure to pay amounts due, shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non performing party.

   (x).   Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement shall not be deemed to be a waiver of the right of either party thereafter to enforce any such provisions.

  (xi).   Maintenance. Customer acknowledges that the Services may be subject to maintenance or repair and agrees to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair.  

  (xii).     Non-Solicitation. Customer shall not enter into a contract for or of service with an employee of TE who has been involved with, directly or indirectly, within twelve (12) months of such employee’s last involvement with Customer.

B. Notices. All notices required to be given hereunder shall be in writing and deemed given if sent to the addressee specific below either (a) by registered or certified U.S. Mail, return receipt requested, postage prepaid, three days after such mailing; or (b) by national overnight courier service, the next business day. All other notices (e.g., notice reminder of non-payment) may be sent via facsimile or email and will be deemed given on the day such notice is delivered. Customer’s Service change or disconnect notice must be submitted in writing sent via email to support@telxpress.com or mail to:

Tele-Express Business Systems Inc 

230 Goddard,

Irvine,CA 92618

Attn: John Gharineh

Addendum A

Acceptable Use Policy

This Acceptable Use Policy (the “AUP”) governs your use of all products and services (collectively, the “Services”) offered by Tele-Express Business Sys Inc, (“TE”) as may be further described in any written proposal submitted by TE to Customer or any service order forms submitted by Customer and accepted by TE (collectively, the “Service Order Form”). This AUP applies to Customer and its employees, agents, contractors, or other users who obtain Services from TE (each such person or entity being a “User”). BY REGISTERING FOR AND USING THE SERVICES, Customer ACKNOWLEDGES THAT IT HAS READ THIS AUP AND AGREE THAT CUSTOMER AND ITS USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AUP.

  1. Prohibited Use

TE’s Services may only be used for lawful purposes. Users may not use TE’s Services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:

(a) Utilizing the Services to send mass unsolicited e-mail to third parties; provided, however, that Users may use software programs or services provided by TE to send unsolicited commercial e-mail so long as the User ensures that such transmissions comply with all applicable state, federal and international regulations, rules and laws, including, without limitation, the U.S. CAN-SPAM Act of 2003.

(b) Utilizing the Services to be involved in the distribution of tools designed for the aiding of unsolicited bulk email.

(c) Utilizing the Services in such a way that User becomes documented on a recognized SPAM abuse list or if the User has previously been denied access from another provider due to similar acceptable use policy violations.

(d) Using Internet Relay Chat (“IRC”) on the Customer network. This includes, but is not limited to, the use of IRC clients, server software, bots or anything related to IRC.

(e) Utilizing the Services in connection with any illegal activity. Without limiting the general application of this provision, Users may not: utilize the Services to:

  1. Copy material from third parties (including text, graphics, music, videos or other copyrightable material) without proper authorization;
  2. Misappropriate or infringe the patents, copyrights, trademarks, or other intellectual property rights of any third party;
  3. Traffic in illegal drugs, illegal gambling, obscene materials or other any products or services that are prohibited under applicable law;
  4. Export encryption software to points outside the United States in violation of applicable export control laws; or
  5. Violate any applicable state, federal and international law.

(f) Utilizing the Services in connection with any tortious or actionable activity.   Without limiting the general application of this provision, Users may not utilize the Services to:

  1. Publish or disseminate information that (A) constitutes slander, libel or defamation, (B) publicizes the personal information or likeness of a person without that person’s consent or (C) otherwise violates the privacy rights of any person; or
  2. Threaten persons with bodily harm, to make harassing or abusive statements or messages, or to solicit the performance of acts or services that are illegal under applicable law.

(g) Utilizing the Services in connection with any other disruptive or abusive activity. Without limiting the general application of this provision, Users may not utilize the Services to:

  1. Cause denial of service attacks against TE or other network hosts or Internet users or to otherwise degrade or impair the operation of TE’s servers and facilities or the servers and facilities of other network hosts or Internet users;
  2.   Offer mail services, mail forwarding capabilities, POP accounts or auto   responders other than for the User’s own account;
  3. Resell access to COT scripts installed on TE’s servers;
  4. Subvert, or assist others in subverting, the security or integrity of any TE systems, facilities or equipment;
  5.               Gain unauthorized access to the computer networks of TE or any other person;
  6. Provide passwords or access codes to persons not authorized to receive such materials by the operator of the system requiring the password or access code;
  7. (A) forge the signature or other identifying mark or code of any other person, (B) impersonate or assume the identity or any other person, or (C) engage in any other activity (including “spoofing”) to attempt to deceive or mislead other persons regarding the true identity of the User (excluding the use of anonymous remailers or Internet nicknames);
  8. Distribute or post any virus, worm, Trojan horse, or computer code intended to disrupt services, destroy data, destroy or damage equipment, or disrupt the operation of the Services;

(ix) Conduct port scans or other invasive procedures against any server (except any       server for which the User is an authorized system administrator);

  1. Distribute, advertise or promote software or services that have the primary purpose of encouraging or facilitating unsolicited commercial e-mail or spam;
  1. Solicit or collect, or distribute, advertise or promote, e-mail address lists for the     purpose of encouraging or facilitating unsolicited commercial e-mail or spam;
  2. Post messages, run scripts or run software programs that consume excessive CPU    time or storage space;
  3.  In any manner that might subject TE to unfavorable regulatory action, subject TE to any liability for any reason, or adversely affect TE’s public image, reputation or goodwill, including, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials; or
  4. In any other manner to interrupt or interfere with the Internet usage of other   persons.
  5. Notice and Procedure for Reporting Violations
  1.       Reporting Non-Copyright Violations. TE encourages Users to report violations of the AUP by e-mail to support@telxpress.com , including in any such report the name of the offending domain (for example, xyz.com), the IP address and the type of abuse (for example, spam, illegal acts, harassment, etc.) in the “subject” field of the e-mail.
  1.       Reporting Copyright Violations. TE respects the intellectual property of others and complies with the Digital Millennium Copyright Act (the “DMCA”). The DMCA, which heightens the penalties for copyright infringement on the Internet, sets forth the following requirements for notifying online service providers of alleged copyright infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, please send notice of your claim to:

DMCA Notices

Tele-Express Business Sys Inc

230 Goddard,

Irvine, Ca 92618

Attention: Designated Copyright Agent

It is TE’s policy to expeditiously remove content that is the subject of a correctly prepared notice under the DMCA. To be effective, your notice of copyright infringement must be written and must include the following (For more details on the information required for valid notification, see 17 U.S.C. § 512(c)(3)):

  1. Your signature (physical or electronic) or the signature of a person authorized to act on your behalf;
  1. Identification of the copyrighted work that you claim has been infringed;
  1. Identification of the material that is claimed to be infringing as well as information reasonably sufficient to permit TE to locate the material;
  1. Information reasonably sufficient to permit TE to contact you, such as an address, telephone number, and, if available, an electronic mail address;
  1. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by you, your agent, or the law; and
  1. A statement that, under penalty of perjury, the information in the notification is accurate. TE encourages you to consult a lawyer before submitting a notice of copyright infringement. Customer should be aware that, under the DMCA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorneys’ fees.

(c) Counter Notification. Users who have been the subject of a DMCA copyright notice may write a counter notification under 17 U.S.C. § 512(g)(3). Before sending a counter notification, TE suggests that its Users contact an attorney. Users should be aware that they will be liable for damages, including without limitation costs and attorneys’ fees, if they materially misrepresent that a product or activity is not infringing the copyright(s) of another. To file a counter notification with TE, Users must provide a written communication to TE’s Designated Copyright Agent (address provided above) that sets forth the following items:

(i) A physical or electronic signature of the User;

(ii) Identification of the material that has been removed or disabled, and its prior location;

(iii) A statement, under penalty of perjury, that the User has a good-faith belief that the material was removed or disabled as a result of a mistake or misidentification;

(iv) The User’s name, address, and telephone number(s);

(v) A statement that the User consents to the jurisdiction of the federal district court for the judicial district in which the User’s address is located, or, if the User’s address is outside of the United States, for any judicial district in which TE may be found; and

(vi) A statement that the User will accept service of process from the complainant or the complainant’s agent.

Upon receipt of a valid counter-notification from the User, TE will provide the complainant with a copy of the counter-notification. If the counter-notification is presented in accordance with the requirements of this AUP, TE will post the disputed content again or re-enable access to it. The complainant then has 10 business days to notify the Designated Copyright Agent that it has filed a request for a court order to restrain the infringing activity. In all events, TE will not be a party to any dispute between third parties over alleged copyright infringement and will not seek to make an independent determination as to the validity of any claim that is the subject of any complaint or counter-notification.

TE is providing you the information in this AUP, including without limitation the complaint and counter-notification procedures set forth in this Section 2, for informational purposes only. This information should not be construed as legal advice. If you believe that your rights have been violated and to help you understand your legal rights, you may wish to seek independent legal counsel.

(d) Repeat Infringers. It is TE’s policy to terminate in appropriate circumstances the    Services of customers who are repeat infringers.

3.   Remedies.

     (a)               Violations. If TE learns of a violation of the AUP, then TE may take any of the following actions, in accordance with the severity and duration of the violation:

  1.  Warning the User;
  2.   Removing the offending content;
  3.   Suspending the offending User from the Services;
  4.   Terminating the offending User from the Services;
  5. Imposing fees or charges on the offending account in accordance with the applicable service     contract; 
  6. Taking other action in accordance with this AUP, the applicable service contract, or applicable law.

  (b) Enforcement Actions. TE will provide you with at least 48 hours’ notice (by email or otherwise) of any proposed suspension, restriction, limitation, modification, or termination of the Services or any functionality related to the Services based on an alleged violation of this AUP, the applicable service contract, or any other reason; provided, however, if (i) your violation of this AUP immediately threatens the security of or damages to TE’s network, information, data, software, hardware, or facilities or (ii) such suspension, restriction, limitation, modification, or termination is at the request of law enforcement or required by the appropriate legal authorities, then TE will give you as much notice as is reasonably practicable under the circumstances. To the extent that any element or functionality of the Services, including, without limitation, a particular account or “server,” is suspended, restricted, limited, modified, or terminated, TE will use commercially reasonable efforts to minimize the effects against any other component or functionality of the Services.

 (c) Cooperation with Law Enforcement. TE reserves the right to involve and cooperate with law enforcement or the appropriate legal authorities in investigations of claims of illegal activity involving TE’s Services or any Users thereof and to respond to any violations of this AUP to the extent permitted under applicable law. You agree that TE is authorized to monitor communications into, and out of, its network facilities to prevent the introduction of viruses or other hostile code, to prevent intrusions, and to otherwise enforce the terms of this AUP. You further agree that TE may disclose any and all of your information including, without limitation, assigned IP numbers, account history, and account use to any law enforcement agent who makes a written request, without further consent or notification to you.

Addendum B

Service Level Agreement

The Tele-Express Bus Sys Inc Service Level Agreement (SLA) is an agreement relating to the use of the Tele-Express Bus Sys Inc Private Cloud (TEPC) Services, and Managed Service Provider (MSP) Services, and is entered into between Tele-Express Bus Sys Inc  (TE) and Customer. This SLA is designed to give the customer a level of confidence around the reliability of our offerings, and our commitment to delivering a high-quality service. This SLA agreement is to be read in conjunction with the Tele-Express Bus Sys Inc Master Services Agreement.

Service Level Agreement – TEPC Services

TE will take commercially reasonable efforts to make the TEPC Services available to our client with a guaranteed service availability of at least 99.9% as measured over any calendar month. 

For TEPC services, the SLA covers the availability of a virtual machine instance (where the instance is up and available to the internet) as well as the hosting environment (servers, storage, routers, switches, Internet connectivity) that is under our exclusive control. This SLA does not apply to scheduled outages or downtime initiated or caused by Customer or Customer’s vendors. It also does not cover any applications or services running within the virtual machine environment, as they are not wholly under the control of TE. This SLA is only applicable to products that are deemed as “Released Products” and does not apply to products identified as being in “Beta” release phase. 

For TEPC Services, if TE does not comply with this SLA commitment, Customer will be eligible to receive a Service Credit for the Eligible Service Credit Period.

Service Level Agreement – MSP Services

TE will take commercially reasonable efforts to provide Managed Service Provider (“MSP”) services to its clients with response times to 99% of Customer tickets in our ticketing system as specified in the TE Support section of this SLA as measured over any calendar month.

The SLA covers the initial response to MSP related tickets in our ticketing system. It does not apply to resolution times as these are impossible to predict.

For MSP Services, if TE does not comply with the SLA commitment, Customer will be eligible to receive a Service Credit for the Eligible Service Credit Period.

Definitions

Availability – is measured as a percentage of time that the service is operational and contactable from the wider Internet. This is measured over any calendar month. This availability percentage does not include any Scheduled Outage, where the required notice period has been met.

Beta – when a product is released to the market for testing and feedback. A Customer should not run mission critical services on a product marked as Beta, and TE assumes no liability for loss of data held within a Beta product.

Eligible Service Credit Period – a single calendar month in which the ‘Service Outage’ occurred or the SLA commitment regarding MSP Services was not met.

TE Private Cloud Services – shall mean the servers, storage, routers, switches, and Internet connectivity used to provide First Party Services such as Desktop as a Service and Infrastructure as a Service.

Scheduled Outages – when maintenance is required to be performed on the system, TE will schedule an outage window. A period of at least 24 hours notice will be given to clients regarding a scheduled outage window. 

Service Credit – is a dollar credit, as calculated below, that is credited to an TE Account once an SLA claim has been approved.

Service Outage – is defined as the situation when a Customer instance is not available to the wider Internet or where the Customer instance is unable to be restarted by TE within the ‘Time to Repair’ (TTR) window.

Time to Repair (TTR) – is defined as a 1.5-hour window, during which TE will perform all that is commercially reasonable to restore ‘Availability’ to Custoomer’s virtual instance. If the ‘Availability’ of an instance is not restored within this window, then a ‘Service Outage’ event is deemed to have occurred.

Response Time Breach – is defined as the situation when a Customer ticket related to MSP services is not responded to within the timeframes specified in the TE Support section of this SLA.

Service Credits

If the availability of TE Private Cloud Services for a Customer within a calendar month drops below 99.9% or a Response Time Breach for TE MSP Services has occurred for more than 1% of a Customer’s tickets, the Customer is eligible to receive a Service Credit in an amount in line with the severity of the outage or breach but not to exceed 10% of the amount paid by Customer for First Party Services on their bill for the Eligible Service Credit Period. Service Credits will be applied to the Customer’s next generated monthly services invoice. Service Credits may not be transferred or applied to any other account. 

TEPC Support

TE shall provide support staff on a reasonable basis to address Customer’s questions related to the Services, and other reasonable requests made by Customer. 

All requests for support from the help desk will be assigned one of four priority levels: Low, Normal, High, and Critical. Troubleshooting of these support requests will begin within these timeframes:

• Low: 48 Hours

• Normal: 4 Hours

• High: 2 Hours

• Critical: 1 Hour

TE MSP Services

TE shall provide support staff on a reasonable basis to address Customer’s questions or tickets related to the MSP Services.

All requests for support from the help desk will be assigned one of four priority levels: Low, Normal, High, and Critical. Troubleshooting of these support requests will begin within these service response timeframes:

• Low: 48 Hours

• Normal: 4 Hours

• High: 2 Hours

• Critical: 1 Hour

Request & Rebate Procedures

To request a Service Credit, a Customer must submit an email request to accounting@telxpress.com .

You must include the following details in a request:

• Your registered email address, contact name and phone number.

• Dates and times of the incident, as well as the duration of this incident.

• Details of the outage experienced.

All requests must be submitted within 14 days of the SLA breach. TE will then contact the Customer and process the SLA claim (where valid).

SLA Exclusions

This SLA service guarantee does not apply to any issues caused by factors outside our reasonable control, such as force majeure events, or events affecting the wider Internet. It also does not apply to any outages caused by: Actions of the Customer or any third party, any customer software or configuration issues, suspension or termination of your account under the TE Master Services Agreement.