Master Service
Agreement

This Master Services Agreement (the “Master Agreement” and/or “Agreement”) is between Tayana Holdings LLC, 400 West Peachtree Street NW, Suite #4-1142, Atlanta, GA 30308, USA (hereinafter referred to as “Tayana” and/or “THL” and/or “Company”), and the business entity wishes to purchase services provided by Tayana, as described herein (hereinafter “Client”).  

If the Client choses to work with Tayana Solutions Ltd, United Kingdom or Tayana Technologies Pvt Ltd, India, the “Company” above referenced to respective company. 

WHEREAS, Tayana is in the business of providing information technology services; and 

WHEREAS, Client wishes to purchase services provided by Tayana;  

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 

This Master Services Agreement (hereinafter referred to as “MSA”) will be subject to the following terms and conditions  

Article 1: Services To Be Performed By Tayana 

1.1 Services: On the terms and conditions set forth herein, Client hereby engages Tayana to perform those services mutually agreed upon from time to time by Tayana and Client (collectively “Services”) in written and fully executed statements of work which incorporate the terms of this Agreement by reference (each, a “Statement of Work”), and Tayana hereby accepts such engagement. Tayana shall render Services and deliver the required deliverables (the “Deliverables”) in accordance with the timetable and milestones set forth in the respective Statement of Work.  

Neither Tayana nor Client shall be obligated to enter into any Statement of Work.  

Client shall perform the Client Responsibilities and Tayana shall perform the Tayana Responsibilities set forth in the applicable SOW. In case of usage of Case Management System, the Deliverables are mentioned in the Case and the Terms shall be governed by the MSA. 

Each Project shall be completed or delivered in accordance with the SOW or Case definition. 

Exhibit B lists out the nature of Services and its commercial terms. 

1.2 Statement of Work Authorization and Modification: Each Statement of Work is to be signed on behalf of the Client exclusively by designated authorized representatives of Client. Any deviation from or modification to a Statement of Work must be agreed to by the parties in writing. In the event of any express conflict or inconsistency between the provisions of a Statement of Work and the provisions of this Agreement, the provisions of the Statement of Work will govern and control with respect to the interpretation of that Statement of Work; provided, however, that the provisions of the Statement of Work will be so construed as to give effect to the applicable provisions of this Agreement to the fullest extent possible, including, without limitation, Sections 9.3 and 13 of this Agreement.  

1.3 In case, the Client wishes to use Tayana’s online Case Management System available under Customer Portal, the SOWs shall be replaced by Cases or Tickets registered on the Customer Portal which does not require to be individually executed by the Parties.  

1.4 In case, the Client does not wish to use Tayana’s online Case Management System and does not execute formal SOW, but to communicate via simple email system, the same shall replace SOW. 

Article 2:  Applicability Of This Master Agreement And Order Of Precedence 

2.1 If any existing agreements between Tayana are to stay in effect and not be superseded by this Master Agreement, those existing agreements shall be listed by the Parties and treat the list as Exhibit A for this Agreement.  Except for such specifically identified existing agreements and except where any future agreement identifies this Master Agreement by name and states that it is inapplicable, this Master Agreement shall govern the provision of all services by Tayana to Client after the date hereof.  In the event of any inconsistency or conflict between the terms and conditions of this Master Agreement and the terms and conditions of any SOWs issued under this Master Agreement, the terms and conditions of the SOW shall control. 

2.2 In case, the Client wishes to use THL’s online Case Management System available under Customer Portal, the SOWs shall be replaced by Cases or Tickets registered on the Customer Portal (hereinafter referred to as “Cases”). The terms may or may not be defined explicitly under each of the Cases in which case, the terms and conditions of the MSA shall control.    

2.3 No other terms contained in any other agreement, document or forms unilaterally issued by Client or Tayana shall apply, whether additional or conflicting. 

 
Article 3:  Fees, Expenses, Taxes And Payment 

3.1 The fees due to Tayana for services, exclusive of taxes, are set forth in the SOW or as defined under Exhibit B in case the deliverables are on the basis of Cases.   

3.2 Tayana’s reasonable expenses incurred at the Client’s request or as it relates to the provisions of the services as well as any reasonable travel related expenses, as contemplated in the SOW (or otherwise communicated in writing to the Client), will be reimbursed by the Client.  Out of pocket expenses, travel time, and other incidentals, including airfare, hotels and meals, per diem, will be included in our service billings and in addition to the service estimate.  Sales tax and shipping will be charged when applicable and added to invoices.  Consultants travel time will be capped at 4 hours per consultant per travel day. If the Consultant requires VISA and international travel, the Client shall reimburse for all such expenses. 

3.3 To the extent that services to be provided hereunder are subject to any sales, use, excise, rental, personal property and any other taxes, payment of said taxes is the direct and sole responsibility of Client.  Income tax due on income received by Tayana from Client pursuant to this Master Agreement shall be the responsibility of Tayana. 

3.4 A. Payment for all work performed by Tayana shall be made by Client to Tayana in accordance with the payment schedule in the SOW or as defined under Exhibit B.  All fees are payable ‘Due Upon Receipt’ after the receipt of invoice.   

1. If Client fails to pay any amounts owed hereunder when due and payable, Client shall pay and reimburse Tayana for all costs and expenses incurred by Tayana, including, without limitation, reasonable attorneys’ fees, in enforcing this Master Agreement, the SOW or collecting any overdue amounts. Interest on such overdue amounts shall accrue at a rate equal to the lower of one percent (1.5%) per month or the highest rate permitted by applicable law.  
2. Any charges not disputed by Client in good faith within ten (10) days of the receipt of an invoice therefore will be deemed approved and accepted by Client. 
3. Upon completion of the services or project or in the event of termination of this Master Agreement, all applicable fees and un-reimbursed expenses will be billed to Client and shall be paid by the Client ‘Due Upon Receipt’ after the receipt of invoice. 

Article 4:  Change Control 

4.1 Tayana will notify Client in writing whenever Tayana identifies the need to provide a service, or deliverable additional to or different from those described in the SOW (a “Change of Scope”) or Case.  Client may notify Tayana in writing whenever Client believes there is a need for a Change of Scope. 

Parties are allowed to communicate the change in scope verbally about the desired change request.  

4.2 If Client wishes Tayana to perform or deliver the items identified in the Change of Scope, Client will notify Tayana in writing or via the Case Management System of Tayana.  Tayana shall, upon Client’s written request, provide an estimate of the cost and schedule impact of performing or delivering the Change of Scope, which estimate will be provided within a mutually agreed time frame.  Tayana will take no further action with respect to the Change of Scope until Tayana receives written authorization from Client and the parties execute an appropriate amendment to the Statement of Work, if SOW is involved. In case of Case Management System, the Client’s approval for change request need to be received in writing to Tayana.   

4.3  If Client fails to meet the Client’s Responsibilities or any other obligations or responsibilities of Client as set forth in this Master Agreement or in the SOW, and such failure affects Tayana’s costs or schedule or precludes further work by Tayana until the Client Responsibilities are met, then Tayana will notify Client in writing and Tayana shall be excused from performance of its obligations under this Agreement or any applicable SOW and Tayana shall no longer be responsible or liable for the failure to perform any services under this Master Agreement or any SOW until the Client cures such failure on its part. Tayana and Client will promptly cooperate to make an appropriate written amendment to the SOW, to the extent necessary. 

4.4 This Master Agreement may also not be modified or changed except by an instrument in writing duly executed by the parties hereto. 

Article 5:  Acceptance Of Deliverables 

5.1 The provisions relating to acceptance, if any, of the Deliverables delivered by Tayana shall be as set forth in the SOW or in the Case.  

5.2 Acceptance: Unless specified in the SOW or in the Case, following shall be the criteria for acceptance. Within five (5) days after the receipt by Client of any Deliverables, Client agrees to review and/or test the Deliverables. Unless within this five (5) day period Client creates a case on Tayana’s Case Management System, referencing the appropriate Statement of Work with a subject or description which includes “Delivery Acceptance Deficiency”, the Deliverables will be deemed to be accepted. In the event any part of the Deliverables is not acceptable, the case shall set forth with specificity any deficiency. Tayana shall then have 30 days to correct the deficiency, unless additional time is expressly approved by Client. Upon the correction of the deficiency, the Deliverables will be deemed to be accepted. It is agreed that a deficiency is defined as a failure of the Deliverable to conform to written design specifications.  

Article 6:  Term And Termination 

6.1 This Agreement is applicable from the start date of the SOW or Case. In the absence of a formal SOW or Case, applicability of the Agreement shall start on the day the Client reaches out to Tayana for Service. 

6.2 Unless otherwise terminated as provided for herein, this Master Agreement shall commence on the date hereof and continue until all SOWs are completed or Cases are closed. 

6.2 This Master Agreement may be terminated in the following instances: 

1. Tayana shall have the right to terminate this Master Agreement if Client fails to pay any sum owed under this Master Agreement. 
2. Either party shall have the right to terminate this Master Agreement if (i) the other party materially breaches a material provision of this Master Agreement (other than Client’s payment obligation to Tayana, which shall be subject to the provisions of Section 7.2(a) above). In the event of such breach the non-breaching party shall provide the breaching party with written notice of such material breach (the “default notice”) stating such non-breaching party’s intention to terminate this Master Agreement if the breaching party fails to correct or cure such breach within thirty (30) days following its receipt of the default notice. In the event the breaching party fails to cure such breach within the thirty (30) days notice period, the non-breaching party shall have the right to terminate this Master Agreement without any further notice to the breaching party. 
3. Either party may immediately terminate this Master Agreement upon the occurrence of any of the following events: (i) an assignment by the other party for the benefit of creditors; (ii) the filing of a petition in bankruptcy by the other party; (iii) the filing of a petition in bankruptcy against the other party by its creditors, which petition is not dismissed within sixty (60) days; (iv) the appointment of a receiver, trustee, liquidator, receiver-manager or similar custodian for the other party, which  appointment is not dismissed within sixty (60) days; (v) the other party has voluntarily or involuntarily commenced proceedings for dissolution, liquidation or winding up, or has ceased to carry on its business in the ordinary course; or (vi) the institution of any other proceeding involving the insolvency of the other party or the protection of, or from, its creditors, which proceeding remains undismissed for a period of sixty (60) consecutive days. 

6.4 The right to terminate shall be in addition to and not in lieu of all other rights that the parties may have under this Master Agreement, in law and equity. 

6.5 Upon termination of this Agreement: (a) Client shall promptly pay all amounts payable to Tayana for Services rendered and out-of- pocket expenses incurred up to the date of termination; and (b) each party shall return or destroy, at the direction of the other party, all the other party’s Confidential Information in its possession.  

Article  7:  Ownership of Deliverables and Rights To Intellectual Property  

7.1 Unless otherwise expressly provided in a Statement of Work, Client shall have a perpetual, paid-up license to use Deliverables. But Tayana shall own all interest, right and title in and to such Deliverables and any other work product developed in the course of providing Services.  

7.2 This Master Agreement does not restrict or deprive Tayana of any of its rights or proprietary interests in any materials that existed prior to and developed independent of the performance of the services under this Master Agreement (“Pre-Existing Materials”).  Pre-Existing Materials shall also include, without limitation, all products, devices, software, computer programs, techniques, know-how, algorithms, specifications, data procedures and modifications thereto, whether or not patentable or copyrightable, tangible or intangible, and all rights, title and interest in and to the intellectual property derived from such works, that have been or will be created, developed or otherwise acquired by Tayana prior to or after the execution of this Master Agreement and that does not use or incorporate any Confidential Information of the Client. If  Pre-Existing Materials are delivered in connection with or as part of the Deliverables, unless otherwise set forth in a SOW, Tayana grants Client a non-exclusive, royalty free license to use and display such Pre-Existing Materials to enable the full use and/or benefit of the Deliverables.   

Article 8:  Confidentiality; Proprietary Rights 

8.1 Each of Tayana and Client understands and agrees that all materials and information provided by each to the other or developed therefrom including, without limitation, the reports which Tayana prepares for Client, Tayana’s pricing methodologies and Tayana’s pricing and rates, are valuable assets of Tayana or the disclosing party and are to be considered the disclosing party’s Confidential Information and property.  Each party will not disclose or use the Confidential Information provided or disclosed by the other or developed therefrom for any purpose other than as set forth in this Master Agreement and will treat such Confidential Information with the same degree of care as each such party applies to its own Confidential Information, but in all cases with at least a reasonable degree of care. 

8.2 Except as set forth in this Master Agreement, neither party will use, disclose, make or have made any copies of any materials or information provided by the other or developed therefrom in whole or in part, without the disclosing party’s prior written approval.  Neither party will use, sell, sub-lease, assign, give or otherwise transfer to any third party, any information or material provided to it by the other, except that each may provide said information to any of its officers, employees and permitted subcontractors who have a need to know such information for purposes contemplated by this Master Agreement. 

8.3 “Confidential Information” means all information, whether oral or in writing, of a confidential nature, including without limitation, the reports which Tayana prepares for Client, Tayana’s pricing methodologies and Tayana’s pricing and rates, proprietary technical, marketing, operation or performance information, cost know-how, business pricing policies or date, programs, data systems, inventions, discoveries, trade secrets, or information relating to Tayana or any Client’s past, present, or future, or to any research, developments or business activities and also includes any materials resulting from performance of the services.  “Confidential Information” does not include information which is (1) already known by the recipient party without an obligation of confidentiality, (2) publicly known or becomes publicly known through no unauthorized act of the recipient party, (3) rightfully received from a third party (other than an affiliate of the party owning the Confidential Information) without an obligation of confidentiality, (4) disclosed without similar restrictions by the owner of the Confidential Information to a third party (other than an affiliate of the party owning the Confidential Information), (5) approved by the party owning the Confidential Information, in writing, for disclosure, (6) independently developed by a party without using the Confidential Information of the disclosing party or (6) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide, to the extent not prohibited by law or court order, prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. 

8.4 Each party understands and agrees that any use or dissemination of any information or materials in violation of this Master Agreement will cause the disclosing party irreparable harm, will leave such disclosing party with no adequate remedy at law and will entitle such disclosing party to injunctive relief in addition to all other remedies available under law.   

8.5 The confidentiality obligations of the parties set forth herein shall survive the expiration or termination of the Agreement for a period of three years. 

8.6 Independent Development; Residuals: Nothing in the terms of this Agreement and any Statement of Work shall be construed to limit Tayanaa’s or Client’s right to independently develop or acquire products without the use of Confidential Information. Tayana or Client shall be free to use for any purpose the Residuals resulting from access to or work with Confidential Information, provided such party shall maintain the confidentiality of Confidential Information as provided in this Section and any other written confidentiality agreement between the parties. For purposes of this Agreement, “Residuals” shall mean technical information related to software technology in nontangible form, which may be retained by individuals who have had access, as permitted by this Agreement, to Confidential Information, including ideas, concepts, know-how or techniques contained therein. Neither Tayana nor Client shall have any obligation to limit or restrict the assignment of such individuals or to pay compensation resulting from the use of the Residuals. Notwithstanding the foregoing, this Section shall not be construed to grant either Tayana or Client a license of the other party’s copyrights or other intellectual property.  

Article 9:  Warranties; Warranty Disclaimer 

9.1 Tayana warrants that its personnel shall perform the Services in a manner consistent with generally accepted industry standards and practices. In the event of a breach of the foregoing warranty, Tayana’s sole obligation and Client’s exclusive remedy will be to have Tayana perform again the Services in respect of which the warranty has been breached to bring them into compliance with such warranty. Any claim for breach of the foregoing warranty must be made by notice to Tayana within 30 days of completion of the Services in respect of which the claim is made or said claim shall be deemed waived.  

Client acknowledges that software development, custom applications, reports, interfaces, and other technical services are not maintained or supported under Tayana’s annual software maintenance plans. Tayana does not warrant that a Deliverable will work with future releases, hot fixes or updates to Acumatica’s (and/or any 3rd party products on which Services have been rendered) products.  

As Client’s exclusive remedy, Tayana will at its expense fix bugs or other errors in a Delivery reported within 30 calendar days after such Deliverable’s acceptance. After the 30-day period, Client is solely responsible for the maintenance of the Deliverable unless otherwise expressly provided in a Statement of Work.  

9.2 Client’s Warranties: For each Statement of Work, Client hereby represents and warrants that (i) with respect to tools, hardware, software and other products provided by Client for use by Tayana under this Agreement and the Statement of Work, Client has obtained all licenses and permits which are required to be obtained to enable such use by Tayana; (ii) the information furnished by Client to Tayana on which Tayana based the description of the Services and the charges to be paid by Client therefore, as set forth in each Statement of Work, is accurate and complete in all material respects; and (iii) Client has, or will have, the personnel and other resources available, and will provide such personnel and resources, to fulfill Client’s obligations set forth in each Statement of Work.  

9.3 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, TAYANA DOES NOT MAKE ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES OR THE SERVICES RENDERED BY TAYANA OR ITS PERSONNEL OR THE RESULTS OBTAINED FROM THEIR WORK PURSUANT TO THIS AGREEMENT OR ANY STATEMENT OF WORK. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY TAYANA.  

CLIENT ACKNOWLEDGES THAT IT IS A SOPHISTICATED PARTY TO THIS AGREEMENT AND RECOGNIZES AND AGREES THAT THESE DISCLAIMERS ARE AN INTEGRAL PART OF TAYANA’S PRICING AND AN IMPORTANT FACTOR IN ITS WILLINGNESS TO PERFORM SERVICES HEREUNDER AND PURSUANT TO THE STATEMENTS OF WORK.  

Article 10:  Intellectual Property Representations, Warranties And Covenants. 

10.1 (A) Tayana represents and warrants that the Deliverables when used by the Client in the manner contemplated hereunder and in conformance with the licenses granted hereunder will not, to the best of its knowledge, violate or conflict with any intellectual property rights of any third persons including, but not limited to, copyrights, patents, trade secrets and trademarks; provided, however, that Tayana makes no warranty with respect to any Client Deliverables (as defined below).   

(B) Client represents and warrants that the Client proprietary, confidential and any other intellectual property provided or delivered to Tayana hereunder (the “Client Deliverables”) when used by Tayana in the manner contemplated hereunder will not, to the best of its knowledge, violate or conflict with any intellectual property rights of any third persons including, but not limited to, copyrights, patents, trade secrets and trademarks. 

10.2 In the event that it is later discovered that any Deliverable(s) provided hereunder do in fact infringe on the intellectual property rights of a third party, Tayana shall, in its sole discretion, either (i) obtain for Client the right to use the Deliverables, provided the same can be obtained on commercially reasonable terms; (ii) modify the Deliverables so as to render them non-infringing Deliverables that meet the requirements of the applicable SOW; (iii) provide Client with functionally equivalent substitute Deliverables; or (iv) refund to Client all fees paid to Tayana under the applicable SOW (each, a “Remedying Action”).  Other than any indemnification obligations that may arise pursuant to Section 12 hereof, such Remedying Action shall be in full satisfaction of Tayana’s obligations for a breach of the representations and warranties contained in this Section 10.2.  

10.3 In the event that either party discovers or otherwise has reason to believe that a Deliverable or Client Deliverable infringes a patent, trademark, trade secret or copyright or other intellectual property rights of a third party, such party shall promptly notify the other, in writing, of such discovery or belief.  

Article 11: Support  

11.1 No Obligation of Support: Except as expressly provided in Section 9.1 or a Statement of Work, Tayana shall have no obligation to support or maintain any Deliverable provided pursuant to this Agreement or any Statement of Work. 

11.2 New Versions of Acumatica (or any other 3rd Part Products on which Services are rendered) Products and Maintenance Releases: Client acknowledges that installation of new versions of Acumatica software and Maintenance Releases may cause Deliverables to no longer function as intended. Client is responsible for testing any new versions of Acumatica software and Maintenance Releases with Deliverables on a separate test system to ensure that the Deliverables work properly with the new versions of Acumatica software and Maintenance Releases before installing the new versions and Maintenance Releases on the production server. For purposes of this Agreement, “Maintenance Releases” shall mean corrections and enhancements to Acumatica software, including hot fixes, patches, workarounds, updates and upgrades  

Article 12: Indemnification  

12.1 Each party shall indemnify, defend and hold harmless the other, its employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder. To the extent that such claim arises from the concurrent conduct of Client, Tayana and/or any third party, it is expressly agreed that Tayana’s liability shall be limited by the terms and provisions of paragraph twelve (12) herein and that, with respect to any remaining obligations to pay any third party claims, demands, losses, damages or expenses that are not limited by the terms and provisions of paragraph twelve (12) herein, each party’s obligations of indemnity under this paragraph shall be effective only to the extent of each party’s pro rata share of liability. To receive the foregoing indemnities, the party seeking indemnification must promptly notify the other in writing of a claim or suit and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit. The indemnifying party shall have no obligation to indemnify the indemnified party under any settlement made without the indemnifying party’s written consent.  

Article 13:  Limitation Of Liability 

13.1 Notwithstanding anything to the contrary contained herein, neither party shall be liable to the other for special, indirect, consequential, punitive or incidental losses or damages of any kind or nature whatsoever including, but not limited to, lost profits or business, lost records or data, lost savings, loss of use of facility or equipment, loss by reason of facility shut-down or non-operation or increased expense of operations, or other costs, charges, penalties, or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, even if advised of the possibility of such loss or damage or if such loss or damage could have been reasonably foreseen. 

13.2 Except as expressly stated in this agreement and to the maximum extent permitted by applicable law, the deliverables, services and all related and associated information, technology and documentation provided by or on behalf of Tayana pursuant to this master agreement are provided “as is” and Tayana  makes no representations or warranties, oral or written, express or implied, including, without limiting the generality of the foregoing, warranties of merchantability and fitness for a particular purpose. Notwithstanding anything to the contrary contained herein, the liability of either party to the other for any reason and upon any cause of action hereunder shall be limited to the amount actually received by Tayana from client under this agreement during the twelve (12) months prior to the occurrence of such cause of action, liability or damages.  The limitation contained herein applies to all causes of action in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability and any other torts. 

13.3 Limitation on Cumulative Liability: Under no circumstances shall Tayana’s aggregate cumulative liability hereunder, whether in contract, tort (including, without limitation, negligence), or otherwise, exceed the total amount of fees actually paid to Tayana under the statement of work from which the claim arises.  

13.4 Allocation of Risk: Client acknowledges that the fees paid by it reflect the allocation of risk set forth in this agreement and that Tayana would not enter into this agreement without these limitations on liability.  

Article 14:  Exceptions To Liability 

14.1 Tayana shall not be liable for any default, failure or non-performance of its obligations under this agreement or for any claims of infringement or violation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party in the following cases: (a) any use of Deliverable in a manner other than as specified by Tayana or any use not in accordance with Tayana’s instructions; (b) any of the Deliverable on a hardware or operating system other than the designated hardware and/or operating system in which it has been embedded into by Tayana; (c) any of the Deliverable in combination with products, applications, equipment, devices, software, systems or data other than the products, applications, equipment, devices, software, systems or data specified by Tayana; (d) any use for any purpose not authorized in the documentation provided by Tayana; (e) any alteration, amendment, modification, or customization of the Deliverable by any person other than Tayana; or (f) any failure, error, defect, delay, impropriety, irregularity, break-down, in-access, etc. in the functioning or operation of the RDBMS/database server or other servers, networking products, and other hardware, software, firmware, systems design, applications, or other instruments, infrastructure, equipment, etc.; or (g) any failure, error, defect, delay, impropriety, irregularity, malfunction, etc. caused due to any infection by viruses or such other contaminating or destructive components which takes place through no fault of Tayana; (i) Non-compliance or refusal of Client to comply with any instructions, note, steps for preventing the breach of any warranty or for the avoidance of any infringement.  

Article 15:  Governing Law 

15.1 This Master Agreement is made in the State of Georgia, United States of America and for all purposes shall be governed and construed in accordance with the laws of the State of Georgia, USA excluding any conflict of laws doctrine. 

Article 16:  Dispute Resolution 

16.1 General: The Parties desire to avoid and to settle without litigation any controversy, claim or dispute arising out of or relating in any way to this Agreement, including the Cases and SOWs attached hereto from time to time, (each, a “Dispute”). Accordingly, the parties agree to engage in good faith negotiations to resolve any such Dispute and, upon failure to agree, to utilize the mediation procedures described in Section 15.3 below as the exclusive method in which to resolve any such Dispute. 

16.2 Informal Resolution: A party to this Agreement that has a Dispute will notify the other party of the nature of and basis for the Dispute. Within thirty (30) days after such notice is given, the parties, each represented by a senior executive, will meet and confer in good faith to attempt to resolve the Dispute described in the notice.       

16.3 Mediation: In the event said senior executives are unable to resolve the Dispute or agree upon a mechanism to resolve such Dispute during the 30-day period provided for in Section 15.2, then the parties will use good faith efforts to resolve such Dispute through a non-binding mediation process agreed to by the parties. The mediation of the Dispute will be administered by one (1) mediator selected and agreed to by the parties. The mediation will be held in Atlanta, Georgia. The mediator’s fees and all other administrative costs and expenses related to the mediation will be shared equally by the parties, but each party will be responsible for its own legal fees and other costs and expenses related thereto 

Article 17:  Other Clients 

17.1 Nothing in this Master Agreement shall be deemed to limit Tayana’s ability to develop and market functionally comparable deliverables based on the same general concepts, techniques and routines as are used in preparing Client’s Deliverables.  This Master Agreement shall not preclude Tayana from developing products or services which are competitive to products or services which might be delivered to Client pursuant to this Master Agreement, irrespective of their similarity.  

Article 18:  Non-Solicitation 

18.1 During the term of this Master Agreement and for a period of twelve (12) months thereafter, neither party shall, without the prior written consent of the other party, solicit, recruit or hire any person who is presently, or during that non-solicitation period becomes, an employee of the other party, unless such person is involuntarily discharged by the other party or twelve (12) months have elapsed since the voluntary resignation of such person. For purposes of this Paragraph, each party agrees that the term “employee” shall mean only those employees of the Parties or Contractors of the Parties who are substantially involved in the development, marketing, servicing, distribution or use of the Deliverables pursuant to this Agreement.   

Article 19:  Independent Contractors 

19.1 In the performance of this Master Agreement, the parties shall at all times act as and be deemed to be independent contractors.  Neither Tayana nor any of its employees, agents or officers shall be considered an employee, joint venturer, agent, or partner of Client.  Neither Tayana nor Client is authorized to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of the other.  It is understood that the employees, methods, facilities and equipment of each party shall at all times be under the exclusive direction and control of that party. 

Article 20:  Assignment 

20.1 Neither party may assign any rights or delegate any obligations created by this Master Agreement without the prior written consent of the other party.  Any assignment in violation of this Master Agreement is void.  This Master Agreement shall be binding upon the heirs, successors, legal representatives and permitted assigns of the parties. 

Article 21:  Force Majeure 

21.1 Neither party hereto shall be considered in default in the performance of any obligation hereunder, except the obligation to make payment, to the extent that the performance of such obligation is prevented or delayed by fire, flood, explosion, strike, war, insurrection, embargo, government requirement, civil or military authority, acts of terrorism, act of God, or any other event, occurrence or condition which is not caused, in whole or in part, by that party, and which is beyond the reasonable control of that party.  The parties shall take reasonable action to minimize the effects of any such event, occurrence or condition. 

Article 22:  Severability 

22.1 If any provision of this Master Agreement is found invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, the remainder of this Master Agreement shall continue in full force and effect. 

Article 23:  Reservation Of Rights 

23.1 Neither party’s delay or failure in enforcing any right or remedy afforded hereunder or by law shall prejudice or operate to waive that right or remedy or any other right or remedy which it shall have available; nor shall any such failure or delay operate to waive either party’s rights to any remedies due to a future breach of this Master Agreement, whether of a like or different character. 

Article 24:  Entire Agreement; Modification Or Waiver 

24.1 This Master Agreement constitutes the entire agreement between the parties hereto and supersedes any previous agreements or understandings whether oral or written. 

24.2 No modification or waiver of the provisions of this Master Agreement shall be valid or binding on either party unless in writing and signed by both parties. 

24.3 Tayana reserves the right from time to time to modify the terms under which the Services are provided to Client, and as a result, to modify the terms and conditions of this Agreement. If Tayana makes a material change to any of the terms of this Agreement, then Tayana will make reasonable efforts to notify you by either sending an email to the notification email address or by mail to the mailing address which has been provided to Tayana. The current version of the Master Services Agreement can also be found on www.tayanasolutions.com/agreements. It is understood and agreed that the Client shall constantly review the above-mentioned link for any changes assuming that Tayana may have missed to send notifications about the change in terms.  

If the change has a material adverse impact on you and you do not agree to the change, you must so notify Tayana in writing within thirty (30) days after receiving notice of the change. If you notify Tayana as set forth in this Section, then provision of and Client’s use of the Services will remain governed by the Agreement as in effect immediately prior to the change until the end of the then current term for the Services. 

Article 25:  Review By Legal Counsel 

25.1 Each party agrees that it has had the opportunity to review this Master Agreement with the assistance of legal counsel.  Accordingly, the rule of construction that any ambiguity in this Article is to be construed against the drafting party shall not apply. 

Article 26:  Headings 

26.1 The headings in this Master Agreement are intended for convenience only.  They shall neither be considered part of the written understanding between the parties nor affect the construction of the Master Agreement. 

Article 27: Notices 

27.1 Any notice required or permitted by this Master Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or three (3) business days after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or facsimile number as set forth herein, or as subsequently modified by written notice.  Either party may change its address by giving written notice to the other party in accordance with this Article. 

Article 28: Rights and Remedies Cumulative 

28.1 Unless otherwise specifically provided, the rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute or otherwise. 

Article 29:  Miscellaneous 

29.1 This Master Agreement may be executed in two or more counterparts, each of which shall be considered an original hereof but which together shall constitute one agreement. 

Article 30:  Survival Of Certain Provisions 

30.1 The provisions contained in Sections 9, 10, 12, 14, 16, and 26 herein shall survive termination of this Master Services Agreement and any SOW or Cases. 

Exhibit B – Nature of Services & Terms 

 List of possible Services, its Nature and its Terms between the Client and Tayana under this Exhibit. 

1. Pre-Sales Support Services: 

• Description: In case Client requires assistance during the pre-sales stages viz., demo of features/functionalities, Tayana can help in building mock screens, report formats, etc. that is required for the purposes of the demonstration of the packaged product such as Acumatica. These mock screens or report formats are developed purely for the purposes of demonstrating the capabilities of the packaged product and it is guaranteed to function exactly how the end-customer intends it to work. Such custom screens or reports shall have dummy data or sample data without any working/functional business logic defined underneath.  
• For: This Service is offered to Acumatica resellers only. 

• Purpose: Such Service is offered purely to demonstrate the customizing capabilities of packaged product such as Acumatica to end-customer of the Client that may help win business from them 
• Disclaimer: Tayana does not undertake guarantee of any features that is demonstrated to the prospect. Tayana shall be fully indemnified for any losses or damages arising out of incorrect sale or inability to implement the demonstrated features/functions.  

1. Tayana Implementation Services:  

• Description: Tayana can offer implementation or implementation related services to Client. Client can avail Implementation Services in two models viz., (i) Staffing Services or (ii) Full Implementation Services 

• For: This Service is offered to Acumatica resellers only. 
• Commercial & Terms: 

1. Staffing Services: Client can avail relevant resources for their project execution at hourly rates for a specified period of time.
2. Onsite Staffing: Resources can be availed at an hourly rate; Tayana shall not assume the responsibility of deliverables; Client shall manage the resources for allocation of tasks, tracking of deliverables and out comes; In case of non-satisfactory performance, Tayana may offer replacement of resources, if available; Timesheets are submitted to the Client on weekly basis and Timesheets are deemed to be accepted if Client doesn’t dispute the Timesheet within 24 hours of submission and shall be billable. 
3. Offsite Staffing: Resources can be availed at an hourly rate; Tayana shall not assume the responsibility of deliverables; Client shall manage the resources for allocation of tasks, tracking of deliverables and out comes; In case of non-satisfactory performance, Tayana may offer replacement of resources, if available; Timesheets are submitted to the Client on weekly basis and Timesheets are deemed to be accepted if Client doesn’t dispute the Timesheet within 24 hours of submission and shall be billable. 
4. Full Implementation Services: Client can outsource full implementation services of their end-customer’s project. In such instances, Tayana shall drive the Project in conjunction with Client’s project Manager. A separate SOW shall need to be signed for such Services. 

1. Customization Services: 

• Description: Tayana can offer Customization Services for the sake of customizing or modifying certain features or functionalities of the packaged product such as Acumatica. The Services may include modifying the existing functionalities/features/Reports or developing a new feature/ functionalities/Reports. 
• For: This Service is offered to Acumatica resellers as well as end-customers of Acumatica. 

• Terms:  

1. Customization Services are delivered at an hourly rate  
2. Tayana shall charge a minimum of two (2) hours regardless of the time taken to develop and deliver such Services 
3. Customizations can be delivered either on Fixed Fee basis or Time & Material (T&M) basis which is agreed between Parties before the start of the Work. In case of T&M billing, our professional services are billed hourly with increments of 15 minutes. 
4. The rates mentioned assuming all work will be performed during normal business hours and while Acumatica Software is available for support if needed (8 AM Eastern to 5 PM Eastern).  Work performed outside of normal business hours may incur a premium rate.  Should it be anticipated that a premium rate will be charged, this will be discussed with Client before any work at the premium rate is begun 
5. All such Deliverables related to package product such as Acumatica may be delivered in a packaged format to the Client which can be installed on their end-customer’s environment. The Source Code of the customization will be delivered to Client on demand, for further modifications or re-use.  
6. All such Deliverables related to packaged product such as Acumatica shall be owned by Tayana. The Tayana shall own all international copyrights in the Deliverables. Tayana grants Client a non-exclusive, royalty free license to use any such deliverables. Client is free to re-use, sell such deliverables as-is or after modifications. 
7. Client is required to report any/all issues within 30 days of delivery of such services. Tayana, at its sole discretion, will charge Client who do not report any issues within 30 days on T&M basis for any necessary modifications to the services that is already delivered. 
8. The client is responsible for setting up the development environment along with the sample data on which Tayana’s consultants shall perform programming activities. 
9. If it is determined that the problem raised is unrelated to the Services performed, Tayana will not be obligated to take any corrective measures without an additional fee being incurred. If additional fees are to be incurred, approval will be required from Client prior to the commencement of any work.  If a problem with the work performed has been brought to Tayana’s attention after Thirty (30) days of the completion of the work under this proposal, Tayana shall have no obligation to affect any corrective measures with respect thereto. 
10. Any additional work or changes to the SOW or Case shall be treated as Change Request and shall be charged on T&M basis. Tayana will take consent from the Client before accommodating the Change Request. 
11. Tayana will test all custom programming projects in client’s development test environment. Client may have unique environments that differ from test environment. Client is ultimately responsible to ensure that the custom programming project delivered by Tayana function properly in their end-customer’s environment. Client is ultimately responsible for data and usage of the deliverables.