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HomeMy WebLinkAbout2011-072 IT - ePlus Technology for professional services with IT supportePlus Technology 13595 Dulles Technology Drive, Herndon, VA 20171 CUSTOMER MASTER AGREEMENT This CUSTOMER MASTER AGREEMENT ("Agreement") is made this day of 20_ ("Effective Date"), by and Orange County, North Carolina, a body politic and corporate of the State of North Carolina (hereinafter referred to as "Customer") and ePlus Technology, Inc., a Virginia corporation, with its principal place of business at 13595 Dulles Technology Drive, Herndon, Virginia 20171 (hereinafter referred to as "ePlus"). ePlus and Customer may also be referred individually as "Party" or collectively as "Parties." WHEREAS, ePlus is a provider of a full range of professional, managed and IT sourcing solutions in such areas as IT outsourcing, network operating systems engineering services, infrastructure services, managed and security services; and WHEREAS, Customer desires to purchase certain products and/or services of ePlus; NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Parties hereto agree as follows: 1. DEFINITIONS. a) "Documentation" means all operator's and user's manual, training materials, guides, commentary, technical, design or functional specifications, requirements documents, proposals, schedules, listings and other materials related to the Products pursuant to this Agreement or any consulting or professional services agreement. b) "Product", "Products", or "Product(s)" means third-party IT related hardware equipment and/or software as resold by ePlus to Customer. c) "Purchase Order" or "PO" means each purchase order issued pursuant to which Customer purchases Products or Services, as accepted by ePlus. d) "Services" means professional services provided by ePlus, as defined in the applicable statement of work. 2. PURCHASE OF PRODUCTS. A. ePlus agrees to sell to Customer the Product(s) defined in a PO or other ordering document referencing this Agreement and incorporated herein, .subject to the terms and conditions herein. (i) Product(s). In the event that Customer desires to procure Products from ePlus, Customer will execute a mutually acceptable PO that will include, at a minimum, the following information: (a) the location where the Product(s) are to be delivered and any special delivery instructions, if applicable; (b) a description of the Product(s), including quantity and Product numbers; (c) any features or Services desired (i.e., ePlus specifications); (d) the name and address of the Customer contact person for billing and.: the name of the entity to be billed; (e) the desired delivery date for the Product(s); (f) identification of whether ePlus or Customer is responsible for installation and, if it is ePlus, the installation charges (if any); and (g) .any other special terms and conditions; provided, however, that such special terms and conditions do not conflict with the terms and conditions herein. ©2010 ePlus Technology, inc. 09/01 / 10 (ii) In accordance with applicable manufacturer authorizations, ePlus grants to Customer a non- exclusive, non-transferable, perpetual license to use any Product(s) provided hereunder. Customer agrees to abide by all product licensing provisions or end user agreements imposed by the manufacturer or publisher. Customer shall not reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the computer software or remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the software. Customer represents and warrants that any Product(s) purchased according to the terms of this Agreement are for Customer's internal use only and are not for resale or further distribution. Customer agees to indemnify, defend and hold harmless ePlus from and against any and all third party claims, liabilities, costs and expenses relating to or arising from a breach of this Section 2(A)(ii). ~; B. Cancellations or partial cancellations for a Product(s) or Services will only be accepted by ePlus after prior written agreement by ePlus. All cancellations are subject to manufacturer policies and guidelines and ePlus' ability, pursuant to those policies and guidelines to cancel orders to its manufacturers. Customer agrees to indemnify the ePlus in full against all expense and to§s related to cancellations. 3. PURCHASE OF SERVICES. A. Customer may, from time to time, purchase ePlus' Services by executing a written Statement of Work (hereinafter referred to as a "Statement of Work" or "SOW"). The sole authority to commence effort by ePlus or to obligate payment by Customer shall be a written SOW executed by both Parties hereto and/or ePlus' acceptance of Customer's Purchase Order. The Services shall be provided in accordance with the provisions of this Agreement and the applicable SOW, which shall contain, where applicable, the following information: (i) Scope of Work. A statement clearly defining the effort to be performed by ePlus, referencing any required specifications, proposals, drawings or other documents, along with, if applicable, any named personnel to be used, including tests to be performed and/or documents to be delivered and corresponding due dates. (ii) Price. The total cost of a fixed-price effort or the hourly labor rates of the effort plus a description of any other costs to be paid by Customer for ePlus' Services, as defined in the SOW. If ePlus is to receive reimbursement for travel, expenses, per diem and other related charges, appropriate terms and conditions for such reimbursement of those charges shall be defined in the SOW. (iii) Payment Terms. A statement of the date and/or event upon which occurrence payment shall become due and payable to ePlus. As full and complete consideration of the Services to be performed by ePlus and, for the rights granted/assigned herein, Customer agrees to pay ePlus such fees as mutually agreed to and set forth in the SOW(s) and corresponding invoice(s), as provided by ePlus. Customer shall have no right to withhold payment to ePlus for any; reason, nor does it have the right to offset any amounts paid hereunder with any other obligations'to ePlus or its affiliates, except as provided herein. (iv) Performance Period. The dates upon which the performance of ePlus shall commence and be completed. (v) Customer or ePlus Supplied Personnel, Eguipment/Facilities. All personnel, equipment, tools, space or other items to be supplied by either ePlus or Customer pursuant to agreement of the Parties shall be listed with the date such personnel, equipment, tools, space and other items to be made available. B. Maintenance Services. In the event that Customer desires to procure maintenance Services, Customer and ePlus will execute a mutually acceptable SOW and include such election in an applicable PO that will include, at a minimum, the following information: (a) the Location where the Products are to be maintained; (b) the total cost plus a description of any other costs to be paid by Customer for such ePlus maintenance Services as defined in the SOW; (c) a description of the maintenance Services to be provided, including identification of equipment type, model number, serial number, quantity, and whether under ©2010 ePlus Technology, inc. 09/01/10 warranty; (d) the name and address of the Customer contact person for billing and the name of the entity to be billed; (e) the date that maintenance Services will commence and, if applicable, the timing, frequency and end date of such maintenance Services; and (f) any other special terms and conditions; provided, however, that such special terms and conditions do not conflict with the terms and conditions herein. 4. CUSTOMER RESPONSIBILITIES. A. Customer shall designate a primary contact to be responsible for all matters concerning this Agreement and any related SOW. B. Customer acknowledges that in order for ePlus to perform Service(s), Customer must make certain personnel or other resources available to ePlus in a timely manner. Customer agrees that it will cooperate in providing information or personnel: upon ePlus' request, and Customer acknowledges that its failure to do so may prevent ePlus from meeting milestones as may be designated in a SOW. C. Customer assumes responsibility for ~aiT content; material, message or data made available or transmitted in accordance with the provision of Service(s) and for its compliance with all applicable federal, state and local laws, regulations, ordinances and codes and acceptable use policies of any third-party vendors or Web sites. D. ePlus, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Customer and ePlus shall be entitled to rely on all such decisions of Customer. Customer shall be solely responsible for complying with import and export control laws and regulatory requirements with respect to import and export of (i) its technology or technology licensed to Customer by third parties, and (ii) any services or deliverables rendered by ePlus in a different jurisdiction for the benefit of the Customer. E. ePlus is providing Services to assist Customer in support of the initiatives and activities described in the SOW and shall not assume any cost or schedule liability, except as otherwise stated herein. Customer is the governing authority of all activities and project directives and retains full responsibility for the leadership, review, 'and approval of actions taken and Deliverables completed by ePlus in support of Customer. F. ePlus will not be held liable for software license compliance. Software license compliance is between the Customer and the software company. ePlus shall not be liable for support or replacement of Product that is altered, modified, mishandled, destroyed or damaged by natural causes or damaged due to a negligent or willful act or omission by Customer or a third party or use by Customer or a third party other than as specified in the applicable ePlus-supplied documentation. G. ePlus will not be liable for any failure to perform the Services, to the extent that the failure is caused by Customer's lack of cooperation. 5. TERM OF AGREEMENT. This Agreement shall commence on its Effective Date and shall, unless terminated in accordance with the provisions hereunder, continue for a period of twelve (12) months. This Agreement shall automatically renew, unless a Party provides written notice to the other of its intention to terminate in accordance with the provisions below. 6. TERMINATION. A. Termination For Convenience. At any time that there is no uncompleted SOW outstanding, either Party may terminate this Agreement for any or no reason upon fifteen (15) days advance written notice to the other Party. B. Termination For Default. Either Party may terminate this Agreement and/or any SOW issued hereunder at any time in the event of a material breach of the terms hereof by giving the other Party thirty (30) days written notice stating the nature of the breach. This Agreement and/or any SOW shall then terminate if the breaching Party shall fail to cure such material breach within thirty (30) days of receipt of written notice ©2010 ePlus Technology, inc. 09/01/10 ~~ , thereof. If the breach is of such a nature that it cannot reasonably be cured within such thirty (30) day period, the breaching Party shall commence to cure said `breach within such period, then diligently prosecute such cure to completion. C. Effect Of Termination. Termination in the event of Section 6 (A) or (B) does not relieve Customer's obligations to pay all fees that accrued before termination, subject to the provisions of Section 8. Late Payment Charge and Default. The termination of any SOW in accordance with the terms therein shall not modify the Term of this Agreement or the term of any other SOW. Customer agrees that upon termination of any SOW it will pay ePlus for all fees and costs incurred in the performance of its Services up to and including the date of termination of the SOW. 7. PRICING AND PAYMENT. A. Pricin¢ and Payment Terms. The pricing for each order received pursuant to this Agreement shall be administered as set forth in the applicable PO Number. Customer grants ePlus a purchase money security interest in all Products ePlus provides to Customer hereunder; as permitted by law. Upon payment in full for any item of equipment and any interest applicable to it, el'lus' security interest in that Product shall be released automatically. Customer agrees that, upon execution hereof, ePlus may file financing statements in such places as are necessary to perfect its security interest. Where Customer indicates how to apply payment, each payment for each item of equipment shall be applied to that item of equipment only. If Customer does not indicate how to apply payment, ePlus reserves the right to apply payments to customer's balance at its discretion. Unless otherwise agreed in writing, all payments will be due net thirty (30) days from the date of ePlus' invoice, shall be .made in U.S. Dollars, free of any currency control or other restrictions, and Customer shall pay ePlus by (I) che~le~br.money order drawn on a U.S. bank; (2) wire transfer to an account specified by ePlus, or (3) terms thati:may be extended upon receipt and approval of verifiable commercial trade reference. Customer shall bear all related bank fees and charges. Customer acknowledges that ePlus may participate in and retain the benefit of vendor incentive plans, rebate programs, or other programs with, among others, its travel providers wherein ePlus may receive benefits, such as frequent flier miles or other consideration. B. Exaense Reimbursement. Whenever any Services are provided by ePlus at any location requested by Customer other than at an ePlus location, ePlus will be reimbursed for all actual and reasonable travel and living expenses ("Expenses") provided such Expenses are in accordance with a standard reimbursement policy, the terms of which are set forth as follows: (i) Fees for out-of-pocket expenses will be invoiced to Customer on a monthly basis. (ii) Itemization is required for all expenses. (iii) Local travel time under two (2) hours will not be billable. (iv) The following guidelines shall apply for out-of-pocket expenses: • Lodeins. For less than one month, a single hotel/motel room at prevailing commercial rates within a reasonable distance from job location. • Meals. At actual cost (not to exceed fifty-five dollars ($55) per day). • Airline Fares. At actual cost for commercial coach or economy class within the continental United States. • Ground Transportation. Commercial shuttle services or hotel transportation to and from the airport should be used whenever practicable.,, ; Taxi service will only be used if such transportation is not available, or in emergency situations. • Auto Rental. Auto rental will be at actual cost for commercial standard size automobile, including operating expenses, if any. ©2010 ePlus Technology, inc. 09/01/10 C Taxes. ePlus will furnish Customer with accurate invoices showing separately itemized amounts due in respect of any and all sales, use, excise, value added, or Product(s) and Services taxes, due under federal, state, local or foreign law that are associated with the Product(s) and/or Services purchased by Customer under this Agreement (however, specifically excluding taxes in the nature of ordinary personal property taxes assessed against or payable by ePlus, taxes based upon ePlus' net income, ePlus' corporate franchise taxes and the like) ("Taxes") "), if any, or, in lieu thereof, Customer shall provide ePlus with a certificate acceptable to the taxing authorities exempting Customer from payment of any such taxes or hereafter be imposed upon the Service(s) rendered hereunder or any part thereof, but excluding taxes based solely on ePlus' net income. Customer will pay or reimburse ePlus for all Taxes due under this Agreement and ePlus will remit those amounts to the appropriate taxing authority. Tax exemption certificates must be furnished to ePlus prior to Product shipment or commencement of Services if they are to be honored. All persons furnished by ePlus shall be considered solely employees of ePlus who shall be responsible for compliance with all applicable laws, rules, and regulations involving, but not limited to, employment of labor, hours of labor, working conditions, payment of wages, and payment of taxes such as employment, Social Security and other payroll taxes, including applicable contributions from such employees when required by law. 8. LATE PAYMENT CHARGE AND DEFAULT. A. Customer agrees to pay a late payment charge computed at the rate of one and one-half percent (1.5°/a) per month, or the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount due under this Agreement and/or SOWS. A late payment charge will apply to any amount not received by the due date and continue until all overdue payments, including late charges, are paid in full. In the event ePlus must resort to collection, Customer shall be responsible for all collection costs, including legal fees. ePlus reserves its right to review and revise either the credit or the payment terms based on Customer's financial condition or payment history at the time of such review, and Customer agrees to provide all relevant information to effect such review. ePlus further reserves its right to suspend Services or stop filling Product orders for nonpayment. Provided however, the late payment fee shall not apply to invoices disputed by the Customer in good faith. In the event an invoice is disputed, the Customer may withhold all or part of the payment. on the invoice, without liability for breach until the parties resolve the dispute. B. If the "Bill To" Party is different from he "Ship To" Party, the "Ship To" Party shall be responsible for all payments and late fees if the "Bill To" Party fails to make payment. Any communications concerning disputed debts, including any instrument tendered as full satisfaction of the disputed debt, should be sent to the Office of General Counsel, ePlus Technology, inc., 13595 Dulles Technology Drive, Herndon, VA 20171. SHIPPING AND DELIVERY. A. ePlus agrees to use reasonable commercial efforts to notify Customer if shipping delays occur; however, ePlus cannot be held responsible for any delays in Product(s) delivery caused by third parties. Delivery term shall be FOB shipping point. Customer will be responsible for, and will pay, all shipping, freight, and insurance charges, unless otherwise agreed by the Parties, as well as any taxes, levies, duties or similar charges. : B. Except in the case of damaged packaging upon visual inspection, Customer shall not refuse delivery of Product shipments and, in the case where a Product shipment has been refused, ePlus reserves the right to charge handling and restocking fees. C. If damaged Products are accepted from the carrier, such damage should be noted on the carrier delivery record. Customer should save the Product and the original box/packaging and notify ePlus to arrange for a carrier inspection and a pickup of damaged products. Customer shall notify its account executive of any damaged shipping containers within the first two (2) days of receipt. Two (2) days is considered a reasonable period of time to conduct the visual inspection of the shipping container, and failure to provide such notice wi~l'constitute acceptance in full. Customer also shall notify ePlus of any order shortages or any concealed damages within seven (7) business days. These notification ©2010 ePlus Technology, inc. 09/01/10 timeframes are necessary so that ePlus may assist customer on a timely basis in obtaining the benefit of any manufacturer warranties as well as filing any shipping claims, as applicable. D. Loss or damage that occurs during shipment by a carrier selected by ePlus shall be ePlus' sole responsibility; loss or damage that occurs during shipment,: by a carrier selected by Customer shall be Customer's sole responsibility. Title to Product(s) shall pass to Customer upon receipt of good and sufficient funds from Customer for said Product(s): 10. SITE PREPARATION. Customer shall be responsible, at its own expense, for preparing prior to delivery a suitable installation site in accordance with ePlus' reasonable installation procedures. Unless otherwise specified, Customer shall be responsible for installing and connecting the Product(s) within Customer's environment compatible to manufacturer's specifications provided by ePlus to Customer. 11. PRODUCT RETURNS. Approvals for unused, unopened returns are subject to manufacturer return policies and guidelines and ePlus' ability to return Product to its vendors. Such Products must be complete and in manufacturer's original packaging, with no visible damage. ePlus will not be required to accept any return of sold Products without an approved return merchandise authorization ("RMA") number, which may be obtained by contacting the Customer's account executive. An RMA number is valid for (10) days from the ePlus issuance date, unless other arrangements are made between the Parties at the time of ePlus' RMA approval. The ePlus RMA number is to be clearly noted on a shipping label affixed to the outer shipping box and any items received into an ePlus return facility without an RMA number or after the elapsed time, period will be sent back to the Customer at the Customer's expense, unless otherwise agreed to under separate contract. Any writing, markings or stickers, except shipping labels, on the manufacturer box will void any authorized return. Except in the event of an ePlus or vendor error, Customer will be responsible for shipping charges associated with any Products being shipped for return, exchange or replacement. Products exchanged or replaced will be shipped back to Customer, at Customer's expense. Returns must be made via an authorized shipping carrier that allows the package to be tracked and Customer must insure all returned Products. Products not eligible for return include, but are not limited to, items that were at end-of--life cycle at the time of order, used or opened software, used consumables, custom configured and built to order Products, and Products not purchased through. ePlus'.~EAf ePlus' discretion, restocking fees may be charged for items which do not qualify for return under this policy. S'oi4e manufacturers require that defective or Dead on Arrival (DOA) Products be returned directly to them, or they may limit the timeframe in which products can be returned; therefore, Products that are inoperable at initial use may be eligible for DOA return to or replacement by the manufacturer, subject to the manufacturer's product defective/DOA return policies. If the Product is not returnable under manufacturer guidelines, ePlus will make commercially reasonable attempts to repair or replace the Product through the manufacturer's warranty. Customer should contact its ePlus account executive for further details on the manufacturer warranties. ePlus' technicians test Products returned as DOA or defective. Products found not to be defective may be subject to return at the Customer's expense. In any event, ePlus will work with its vendors to facilitate returns for the Customer. 12. CONFIDENTIALITY OBLIGATIONS. A. As used herein, "Confidential Information" means the terms and provisions of this Agreement and any related documents delivered hereunder, together with all data, reports, analyses, compilations, records, pricing and evaluation of all or any portion of the transactions contemplated by this Agreement. The Parties agree to protect each other's Confidential Information from unauthorized disclosure to any third party and to disclose the Confidential Information only as required in the performance of this Agreement and/or Purchase Orders, or as may be required by law or otherwise. ePlus may have agreements with some software, hardware, and other vendors. ePlus, its parent, or any affiliates may receive discounts, commissions, rebates, or other consideration from vendors (the "Benefits") and ePlus may disclose to vendors such information about Customer's needs as appropriate to secure the Benefits. Confidential Information must be in writing or other tangible form, marked with an appropriate legend. If not in written or tangible form, it must be identified as confidential ` at .the' time of disclosure and summarized and delivered to the other Party within three (3) days following disclosure. B. Confidential Information does not include information that: (i) is or becomes publicly available other than through a breach of this Agreement; or (ii) was in the possession of the receiving Party at the time of disclosure or later becomes available from a third party without obligation of confidentiality; or ©2010 ePlus Technology, inc. 09/01/10 (iii) is lawfully received by the receiving Party from a third party without breach of this Agreement, provided that the receiving Party', is not obligated under separate agreement to hold such information in confidence; or (iv) is independently developed by ,or for the receiving Party without access to confidential information, as evidenced by its records; or (v) the receiving Party has received written permission from the other Party to disclose; or (vi) the receiving Party is required to disclose pursuant to a valid order of court or other governmental body thereof; provided, however, that the recipient of the information shall first give notice to the disclosing Party and make a reasonable effort to obtain a protective order requiring that the information and/or documents;so disclosed will be used for the purposes for which the order was issued. C. Each Party hereby agrees that all Confidential Information or proprietary rights referred to above shall remain the exclusive property of the disclosing Party and shall be returned to the disclosing Party promptly upon request. D. The provisions of this Section 12 shall remain in effect for a period of three (3) years after the expiration or termination of this Agreement for any reason. E. ePlus acknowledges that this Agreement and any documents, memorandum, data, reports, analyses, compilations, records, pricing and evaluation of all or any portion of the transactions contemplated by this Agreement may be deemed public records and subject to disclosure, in whole or in part, pursuant to the North Carolina Public Records Law..; Customer will provide ePlus with prompt notice of any intended disclosures or requests for disclosure pursuant to the North Carolina Public Records Law and an appropriate opportunity to seek protection ofthe ePlus' confidential and proprietary information consistent with all applicable laws and regulations. 13. OWNERSHIP OF WORK PRODUCT AS A RESULT OF SERVICES. A. Subject to full and final payment, and except for any confidential or proprietary materials in which ePlus or its suppliers have apre-existing intellectual property interest ("Existing Materials"), any and all analyses, evaluations, reports, memoranda, letters, processes, methods, programs, and manuals and any improvements, enhancements, or modifications to any of the foregoing, which are developed, prepared, conceived, made or suggested by ePlus specifically for Customer as part of, in connection with, or in relationship to the performance of Services (the."Work Product"), shall be deemed to be a "work for hire" if consistent with the requirements of Section 101 of the Copyright Act and shall be and remain the exclusive property of Customer whether or not deemed to be a "work for hire" within the meaning of the Copyright Act. To that end, any rights, title and ownership interests, including copyright, which ePlus may have in the Work Product or any tangible media embodying such Work Product are hereby assigned to Customer. B. To the extent that Existing Materials are incorporated in Work Products, ePlus grants to Customer a royalty-free, irrevocable, worldwide, nontransferable, non-exclusive, internal use, perpetual license to use, modify and prepare derivative works of such Existing Materials and to use and display such Existing Materials, but only to the extent required to utilize the Work Product in accordance with the any limitations in this Agreement and as may be sent forth in the relevant SOW. Nothing in this Section 13 B. shall be deemed to permit Customer to disclose, provide access to, sublicense, disassemble, decompile, reverse engineer, modify, create derivative works off', or transfer any of ePlus or its licensor's Existing Materials to a subsidiary, affiliate, or third party without the prior, written consent of ePlus. C. However, nothing herein shall be construed as limiting ePlus' ownership of any patent, copyright or other intellectual property or trade secret rights in any information developed independently of this Agreement even though such information may have been used in connection with the ePlus' performance of its obligations under this Agreement. Nothing herein shall prohibit the ePlus or its employees or subcontractors from providing similar services to others and/or from using or disclosing to others the general knowledge, skill and experience that ePlus and they have developed over the years, including the general knowledge, skill and experience that ePlus and they develop under this Agreement. ©2010 ePlus Technology, inc. 09/01 / 10 14. REPRESENTATIONS AND WARRANTIES. A. ePlus provides the Products and Services "AS IS". ePlus makes no representation as to the accuracy or completeness of Services provided hereunder. Notwithstanding anything to the contrary in this Agreement, Customer understands that ePlus shall bear no responsibility for the performance, repair or warranty of any of Customer's software or hardware products or any software, hardware product or service provided to Customer by a third party and/or vendor, and Customer shall look solely to the third party provider for all remedies and support with regard to such products or service. Furthermore, no guarantee is made as to the efficacy or value of any Services performed. B. With respect to any Products supplied by ePlus to Customer .hereunder, and to the extent that ePlus is not the manufacturer of any hardware or software products that Customer uses or may need to purchase as a result of or relating to ePlus Services ePlus does not provide-any'warranties on products which it does not manufacture, whether with respect to their design, performance, specifications, functionality or compatibility with Customer's system or otherwise. Any such Product warranty must come directly from the manufacturer. C. EPLUS DOES NOT WARRANT THAT ANY OF THE DELIVERABLE(S), WORK PRODUCT, CONTENT OR INFORMATION PROVIDED BY ePLUS WILL MEET CUSTOMER'S PARTICULAR PURPOSE OR REQUIREMENTS, NOR THAT THE OPERATION OF ANY SUCH MATERIALS WILL BE UNINTERRUPTED AND/OR ERROR-FREE. ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF, CUSTOMER AND DO NOT EXTEND TO ANY THIRD PARTY. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE. 15. LIMITATION OF LIABILITY. A. IN NO EVENT SHALL EPLUS BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR FOR LOST PROFITS OF ANY KIND, REGARDLESS OF THE FORSEEABILITY THEREOF AND REGARDLESS OF THE CAUSE OF ACTION UNDER ANY LEGAL OR EQUITABLE THEORY ARISING OUT OF OR IN ANY WAY CONNECTED WITH- THIS AGREEMENT. EPLUS' LIABILITY HEREUNDER, IF ANY, SHALL BE STRICTLY LIMITED TO DIRECT DAMAGES, WHICH WILL NOT EXCEED THE. AMOUNT PAID BY CUSTOMER FOR THE PRODUCT ORDER OR SERVICES UNDER THE STATEMENT OF WORK DIRECTLY CAUSING THE DAMAGES GIVING RISE TO A PROVEN CLAIM, AS ESTABLISHED BY A FINAL JUDGMENT. IN NO EVENT SHALL EPLUS BE LIABLE FOR ANY CLAIMS BY A THIRD PARTY. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. B. NO ACTION WHATSOEVER ARISING OUT OF TRANSACTIONS UNDER THIS AGREEMENT MAY BE INITIATED BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED, EXCEPT FOR PAYMENTS OWED HEREUNDER. C. Except to the extent that any injury is due to ePlus' negligent acts or omissions, Customer hereby agrees to indemnify, hold harmless and defend ePlus from and against all Liabilities incurred by or asserted against ePlus in connection with any third party claim to the extent such Liabilities result from the use of: (i) the deliverables other than in accordance with applicable documentation or instructions or for other than Customer's internal purposes; (ii) any altered, modified or revised version of the deliverables that was not expressly authorized in writing by ePlus or vendor; (iii) Customer's failure to use or implement corrections or enhancements to the deliverables made available; ©2010 ePlus Technology, inc. 09/01 / 10 (iv) Customer's distribution, marketing, or use of the deliverables for the benefit of any third party; or (v) the combination of the deliverables with materials not provided by Customer. ePlus agrees to: (vii) promptly notify Customer of any third party claim subject to indemnification hereunder, (viii) give Customer the right to control and direct, at Customer's expense, the preparation of a defense, the defense, and any settlement of any such claim on terms reasonably acceptable to ePlus; and (ix) give full cooperation to Customer, at Customer's expense, for the defense of same. D. In the event that Customer provides ePlus with access to computer programs, specifications, content or other Customer-provided materials ("Customer Materials"), Customer hereby agrees to indemnify, hold harmless and defend ePlus from and against any and all Liabilities incurred by or asserted against ePlus in connection with any third party claim to the extent such Liabilities result from the infringement of any third party's trade secret, trademark, copyright or patent rights,. E. Customer will honor all indemnity provisions under the Agreement only to the maximum extent permitted by applicable law. No section of the Agreement is intended to create a waiver of Customer's rights or privileges as a sovereign entity. F. ePlus shall indemnify and hold harmless the Customer, its agents, employees and officers against all losses, damages, reasonable and necessary expenses, including reasonable attorney fees ("Liabilities") which may result in any way from any negligent or wrongful act or omission of ePlus, its agents, employees and subcontractors. ePlus shall indemnify and hold harmless the Customer its agents, employees and officers, against Liabilities asserted against Customer by a third party to the extent the Liabilities result from the infringement of the Work Product upon any third party's patent of the United States issued as of the Effective Date of this Agreement, or any trademark, service mark, copyright or other proprietary right (collectively "Intellectual Property Right"); provided that Customer: (i) promptly notifies ePlus of any third party claim subject to indemnification hereunder; (ii) gives ePlus the right to control and direct the preparation of a defense, the defense and any settlement of any such claim; (iii) gives full cooperation to ePlus for the defense of the same; and (iv) complies with ePlus' direction to cease any use of the Work Product which , in ePlus' sole judgment , is likely to be ruled an infringement of a third party's intellectual property right. The foregoing provisions shall not apply to any infringement arising out of: (v) use of the Work Product other than in accordance with applicable documentation or modification or revision of the Work Product not expressly authorized in writing by ePlus; (vi) Customer's failure to use or implement corrections or enhancements to the Work Product made available by ePlus; (vii) Customer's distribution, marketing , or use of the Work Product for benefit of third parties; (viii) the combination of the Work Product with materials not supplied by ePlus; or (ix) information materials or specifications provided by or on behalf of Customer or by a third party. With respect to any Products or materials supplied by ePlus to Customer hereunder, and to the extent that ePlus is not the manufacturer of any hardware or so8ware products that the Customer uses or may need to purchase as a result of or relating to ePlus Services, ePlus does not provide any indemnification on products which it does not manufacture. Any such indemnification must come directly from the manufacturer. G. In case any of the indemnified Work Product or any portion thereof is held, or in ePlus' reasonable opinion is likely to be held, in any such suit to constitute infringement, ePlus may within a reasonable time, at its option, either: (i) secure for Customer the right to continue the use of such infringing item; or (ii) replace, at ePlus' sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event ePlus is, in its reasonable discretion, unable to either procure the right to continued use of the allegedly infringing item or replace the allegedly infringing item, as provided in clauses (i) and (ii) of the immediately preceding sentence, the allegedly infringing item shall be returned to ePlus, and ePlus' maximum liability for such infringement shall be to ©2010 ePlus Technology, inc. 09/01/10 refund to Customer the amount paid to ePlus for such item less any depreciation as calculated on a five- year straight-line basis commencing with Customer's acceptance of the applicable deliverable. H. The provisions of this Section IS state ePlus' entire liability and Customer's sole and exclusive remedies with respect to any infringement or claim of infringement relating to a third party's Intellectual Property Right. 16. NON-HIRING OF EMPLOYEES. Both Customer and ePlus acknowledge that each has invested significant resources in the training of its employees and that these employees are a valuable resource. Therefore, during the Term of this Agreement and for a period of eighteen (18) months following the completion of the work to be performed under the last SOW issued pursuant to this Agreement, neither ePlus nor Customer shall solicit for hire or hire employees of the other Party. Should such a hiring of an ePlus employee take place, ePlus will be entitled to liquidated damages and/or compensation directly from the Customer in the amount of 20% of the employee's total annual compensation. A Party shall not be precluded from hiring any such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by the hiring Party; (ii) responds to any public advertisements; or (iii) has been terminated by the non-hiring Party prior to commencement of employment discussions between the hiring Party and such employee. 17. RELATIONSHIP OF THE PARTIES. A. The relationship created hereunder between the Parties shall be solely that of independent contractors entering into an agreement. No representations or assertions shall be made or actions taken that could imply or establish any agency, fiduciary, joint venture, partnership, employment or other relationship between the parties with respect to the subject matter of this Agreement. B. ePlus reserves the right to subcontract with other individuals and businesses for the performance of Services pursuant to this Agreement. 18. NOTICES. Any notices required to be given under the terms of this Agreement shall be in writing and sent by a nationally recognized overnight carrier that obtains a receipt, or certified mail, postage prepaid, return receipt requested, to the address stated below or such other address as a Party from time to time may have designated by written notice. Notices will be deemed given the date constructive receipt is received or the date of first refusal. Notices regarding defaults hereunder may first be given orally so long as written notice according to the provisions of this Section 18 is provided thereafter. All notices should be sent to the following addresses and indicated contacts: If to ePlus: ePlus Technology, inc. 13595 Dulles Technology Drive Herndon, VA 20171 ATTN: General Counsel If to Customer: Orange County IT Department 131 W. Margaret Lane P.O. Box; 8 i81 Hillsboroygh, NC 27278 ATTN: Todd E. Jones With copies to: ePlus Technology, inc. 13595 Dulles Technology Drive Herndon, VA 20171 ATTN: Vice President, Contracts ATTN: 19. ORDER OF PRECEDENCE. The terms and conditions set forth in this Agreement shall govern any Purchase Order, SOW, task order, attachment or other related documents issued for Products supplied or Services undertaken by ePlus hereunder. Terms contained in Customer's Purchase Orders, offers to buy, terms and conditions and the like shall have no effect. In the event of any conflict between this Agreement and a SOW, the SOW shall control, but only with respect to the Services set forth therein. ©2010 ePlus Technology, inc. 09/01/10 ]0 20. PRESS RELEASES. Any press release(s), announcements, publications or any other media releases regarding this Agreement shall be mutually agreed upon in writing by the Parties prior to release. Neither Party will make any representations or warranties about the other Party that the other Party has not first approved in writing. 21. EXPORT COMPLIANCE. Customer agrees to comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority, and not to export or re-export the product(s) in violation of any such restrictions, laws or regulations, or without all necessary approvals. In addition to the other legal and regulatory compliance requirements, and not in limitation thereof, customer and ePlus represent and warrant that they are knowledgeable about and agree to comply with the economic and trade sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, including all implementing Executive Orders and regulations, and will maintain compliance with such laws, Executive Orders and regulations. a} j 22. GENERAL PROVISIONS. A. Entire Agreement. This Agreement, together with properly executed SOW(s) and/or other attachments hereto, shall constitute the entire agreement and understanding between the Parties and supersede all representations, oral or written, which have been made by either Party or its agents or representatives prior to, or contemporaneous with, the execution of this Agreement. Neither the terms of any Purchase Order, invoice, or other instrument documenting a payment or transaction that is issued by either Party in connection this Agreement, nor any other act, document, usage, custom, or course of dealing shall modify the terms of this Agreement. B. Binding Effect. A duly authorized representative or officer of each Party must sign any changes, modifications or amendments to this Agreement deemed to be binding. This Agreement does not supersede or terminate any non-disclosure or confidentiality agreement already in existence between the Parties. C. Assignment. Customer shall not sell, assign, or transfer its rights under this Agreement, either in whole or in part, or any of its obligations hereunder, without the prior written consent of ePlus. Any such attempted assignment shall be void. D. Severability. If any term or provision of this Agreement and/or SOW(s) is held to be prohibited by or illegal, unenforceable or invalid_yi}ller applicable law or court of competent jurisdiction, such term or provision will be ineffective only; to ,the extent of such prohibition, illegality, unenforceability or invalidity, and the remaining provisions of the Agreement and/or SOW(s) shall not be affected thereby. E. Choice of Law. The laws of the State of North Carolina shall govern, construe and enforce all of the rights, remedies and duties of the Parties arising from or in any way related to the subject matter of this Agreement and/or SOW(s). The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and/or SOW(S). The Parties agree that jurisdiction and venue for any matter arising out of or pertaining to this Agreement shall be proper only in the state and federal courts located in Orange County and the Middle District of the State of North Carolina, United States of America, and the Parties hereby consent to such jurisdiction and venue F. Waiver of Jurv Trial. The Parties hereto waive, to the extent permitted by law, all rights to a jury trial in any action or proceeding to enforce or defend any rights hereunder. G. Force Maieure. In the event that either Party is unable to perform any of its obligations under this Agreement, or to enjoy any of its benefits because of any event (hereinafter referred to as a "Force Majeure event") which is a result of a judicial or government decree, regulation or other direction not the fault of the Party who has been affected, communication line failure, power failure and any natural disaster or act of God, war, terrorism, invasion, insurrection, riot, the order of any civil or military authority, fire, flood, earthquake, weather, lockouts, strikes, the unavailability of personnel due to injury, sickness, death or termination of employment, either voluntary or involuntary, or, without limitation, any other cause beyond such Party's reasonable control, the Party who has been so affected shall promptly give notice to the other Party and.. shall da everything possible to resume performance. Upon receipt of ©2010 ePlus Technology, inc. 11 09/01/10 such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds fifteen (15) days from !the ieceipi"of notice of the Force Majeure event, the Party whose ability to perform has not been so affected may, by giving written notice, terminate this Agreement or any SOW. Delays in delivery due to Force Majeure events shall automatically extend the delivery date for a period equal to the duration of such events and any warranty period affected by a Force Majeure event shall likewise be extended for a period equal to the duration of such event. A Force Majeure event, however, shall not apply to or extend Customer's obligation to pay for Products or Services. H. Survival of Terms. The provisions of Sections 6.C., 7, 8, 12, 13, 14, 15, 16, 17, and 22 shall survive the expiration or termination of this Agreement and/or SOW(s) for any reason. I. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same Agreement. IN WITNESS WHEREOF, the Parties agree to be bound by the terms hereof and have caused this Agreement to be executed on the day, month and year first written above by their duly authorized representatives. ePlus Technology, inc. By: Print: ORANGE COUNTY Print: Frank W lift , Jr. Title: This instrument has been approved as to technical content. Todd E. Jones, Department Director Title: CQ,unty Manager This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Clarence R. Grier, Finance Director This instru ent has been approved as to form and legal sufficiency. Office of the Con Attorney ©2010 ePlus Technology, inc. 12 09/01/10 ePlus Technology 13595 Dulles Technology Drive, Herndon, VA 20171 Statement of Work 3573 SOW Orange -Network Support for Orange County PO Number: r CUSTOMER CONTACT: Jim Northrup PHONE: 919-245-2276 Version: 3.0 ©20]0 ePlus Technology, inc. 11/O1/10 1 1.1 This Statement of Work ("SOW") is made this 29`s day of March, 2011, ("Effective Date") pursuant to the Customer Master Agreement dated , _ (hereinafter referred to as "Agreement") by and between ("Customer") and ePlus Technology, inc. ("ePlus") (or also referred to individually as "party" or collectively as "parties"), the parties hereto hereby agree to the performance of the Service(s) described below. 1.2 This SOW shall define the scope of the project's Services and the Deliverables that ePlus shall provide to Customer. The terms of this SOW are limited to the scope of this SOW and shall not be applicable to any other SOWS which may be executed between the parties. The terms and conditions of this SOW prevail regardless of any conflicting terms on a purchase order, other correspondence and any and all verbal communications. This SOW may be modified only by means of a duly executed written amendment. Neither the terms of any purchase order, invoice, or other instrument documenting a payment or transaction that is issued by either party in connection with this SOW, nor any other act, document, usage, custom, or course of dealing shall modify the terms of this SOW. 1.3 This document contains Customer-specific requirements related to the Customer's procurement of certain ..services ("Products"/"Services" or "Work") from ePlus. All information included in this SOW is considered confidential, and should be used in accordance with the confidentiality provisions of the Agreement. The sole authority to commence any Services hereunder by ePlus or to obligate payment by Customer shall be this written SOW executed by both parties hereto. ePlus reserves the right to accept or reject any purchase order, as necessary. 2.1 PROJECT DEFINITIONS: 2.1.1 "Customer Site(s)" or "Site(s)" -the physical site(s) designated by the Customer (other than ePlus sites) where the Services may be performed.. ,~., 2.1.2 "Deliverable" -all deliverables, documentation, whether in hard copy or electronic form, such as analyses, reports, manuals, test results, or any other item other than Product provided by ePlus to the Customer pursuant to the terms of this SOW. 2.1.3 "Implementation" -the activities specified in this SOW such as project management, design review, configuring, staging, installation, and testing performed by ePlus. 2.1.4 "Installation" -the physical activity required to place a Product into a Customer Site. 2.1.5 "Milestone" - a specific goal, objective or event pertaining to Services described under the terms of this SOW. 2.1.6 "Normal Business Hours" -the hours of Monday through Friday 8:OOam to S:OOpm local time, excluding any ePlus observed holidays. A list of ePlus observed holidays will be provided upon request. 2.1.7 "Product(s)" means third-party hardware and/or software in connection with which Services are being provided herein. 2.1.8 "Project Plan" - a plan documenting all aspects of the Services. 2.1.9 "Professional Services" or "Services" -the services provided by ePlus and/or its subcontractor to Customer under this SOW. 2.1.10 "Staging" -the assembly and software loading of Product prior to Installation at Customer Site. 2.2 PROJECT SCOPE: 2.2.1 The purpose and major scope of this project is to provide HP Network troubleshooting and remediation recommendations on a T&M basis. ePlus and/or its subcontractor shall provide these Services at the following Customer Sites: • Orange County Government Offices located in Hillsborough, NC 2.2.2 Services will include: ©2010 ePlus Technology, inc. 11/Ol/10 • Providing a Network Engineer to perform a discovery on Customers existing network infra5tiucture to determine layout and number of devices • Verify interswi~ch links are properly configured and remediate if necessary • Harden spanr-rig tree configuration to minimize impacts endpoints can have on topology • Determine additional remediation steps and make recommendations 2.2.3 Deliverables: 2.2.3.1 ePlus and/ or its subcontractor shall provide the following Deliverables: a) Diagram of current HP Network Topology b) Document any configuration changes 3.1 Resource Responsibilities: During the course of this project, the ePlus resource(s) will require the support of Customer staff and computing resources in order to complete the effort. If the required Customer resources cannot be made available, the scope of the work, the work schedule, or both may be affected. In connection with the Services performed by ePlus for this SOW, Customer agrees to the following requirements: 3.1.1 A work area suitable for the tasks to be performed and any required software and/or documentation necessary to complete this project. 3.1.2 For any hardware or software procured directly by Customer not specifically identified in this Section 3.0, Customer agrees to provide such hardware, software, support documentation, and instructions when required. 3.1.3 Arrange for acceptance,. oft all equipment, included in this Section 3.0, to the Customer's premises. Customer agrees ~to,provide a secure storage location for all equipment delivered to the premises until scheduled for Installation by ePlus. 3.1.4 Provide contact personnel to' escort the engineer through the facility. 3.1.5 Provide access during the work hours required for this project (during Normal Business Hours). 3.1.6 Customer will provide ePlus with the current network topology. 3.1.7 Customer will provide electrical power outlet(s) to support the requirements of the installed network equipment. 3.2 System Responsibilities: • Customer is responsible for providing all software and associated licenses. • If the project is extended beyond timeline described in Section 5 "Period of Performance" below, and/or continuous on-site support. is requested by the Customer after project is completed, then the cost for this service will be negotiated and paid for by the Customer. • Unless otherwise agreed to by the parties, Customer shall respond within two (2) business days of ePlus' request for documentation or information needed for the project. • Customer shall ensure that contracts with its own vendors and third parties are fully executed and reflect the correct terms to enable Customer's business requirements to be met in full. In addition, Customer shall be responsible for all payments to, and the work performance of, all non-ePlus entities assigned to, or working on this project. • ePlus will not be held responsible for data loss. Backups should be performed prior to work starting. All data is the responsibility of the Customer. • ePlus will not be held .responsible for delays or failures to perform related to the customized, configured or specialized software needing modification by the manufacturer. • ePlus shall not be responsible for support and maintenance of Products. • Unless otherwise specified in this; SOW, ePlus shall not be responsible for any customization of, or labor to install software (except pre-installed IOS). • Services do not include resolution of software or hardware problems resulting from third party equipment or services or problems beyond ePlus' control. • Services do not cover non-ePlus software installed on any Product. • Services exclude any hardware upgrade required to run new or updated software. m2010 ePlus Technology, inc. 11/O1/10 4.1 The following assumptions together with those detailed elsewhere were made to create this SOW. Should any of these assumptions prove to be incorrect or incomplete then ePlus may modify the price, scope of work or Milestones. Any such modifications shall be managed by the Change Management Procedure set forth in Section 8.0, 4.1.1 Where applicable, Customer's Site shall be ready prior to the date scheduled for ePlus to perform the Services. Costs associated with Customer's failure to (I) make the Customer Site ready (as determined by ePlus); or (2) meet any of the other responsibilities specified in this SOW shall be billed at ePlus' then-current time and materials rates plus travel and other related expenses. Any additional costs incurred by Customer as a result of delays. shall be the sole responsibility of the Customer. 4.1.2 Unless specified otherwise in this SOW, Services shall be performed during Normal Business Hours. Customer may be responsible for any additional labor costs associated with Services performed outside Normal Business Hours which are above and beyond the scope of this SOW. 4.1.3 This SOW defines exclusively the scope of the Services that ePlus shall provide to the Customer. This SOW shall not apply to any purchase, support or maintenance of the Product, the terms of which will be governed by the Agreement. 4.1.4 In the event ePlus is required to provide third party materials under this SOW (i.e. cables, racks, etc.), Customer shall be responsible for any costs, maintenance and/or warranty obligations therein. 4.1.5 Any acceptance tests conducted in respect of the Services detailed in this SOW shall apply only to the Services detailed herein and shall not constitute acceptance or rejection of any Product purchased or licensed separately by Customer. 4.1.6 ePlus shall have alead-time of up to 30 days from acceptance of Customer's purchase order to begin Services. ~''" 4.1.7 ePlus will require a schedule extension of up fo 30 days for any personnel change requests made by Customer. 5.1 The project timeline estimate for the planning and execution of Services is beginning estimated to start within thirty (30) days from the Effective Date for a duration of not more than three (3) days after start. If Services have not been scheduled at the execution of this SOW, a timeline should be developed mutually by both parties and agreed to prior to the commencement of each Services phase. The actual start date will depend on the following considerations: a) Scheduled availability of a qualified systems engineer.' b) Receipt of Product and any necessary equipment. c) Receipt of signed SOW from Customer prior to proposed start date. d) Receipt of purchase order from customer. 5.2 Either party may terminate the SOW for any reason on thirty. (30) days prior written notice to the other party. Upon any such termination, ePlus will be paid all fees and expenses which have been incurred or earned in connection with the performance of the Services through the effective date of such termination. Additionally, in the event Customer cancels any Services with less than two (2) weeks prior notice, Customer shall reimburse ePlus for any non-refundable expenses incurred in preparation for such cancelled Services. ©2010 ePlus Technology, inc. 11/O1/10 Upon ePlus' completion of a Milestone or Service ePlus shall notify Customer of completion of a specific Milestone or Service performed by providing one of the following forms of acceptance: • signed work order or time sheet; • Milestone/Service Completion Certificate ("MCC"), a sample of which is provided in Appendix A); or • Project completion document. Customer has five (5) working days from the receipt of the MCC to schedule appropriate personnel to review the particular Milestone or Services performed and sign the MCC. Signing of the MCC, or Customer's failure to respond to the MCC within the designated five (5) working day period, signifies Customer's acceptance of the Milestone and that Services have been performed as described in the MCC and in accordance with the SOW. In order to refuse acceptance of the Services performed, Customer must provide ePlus with full details that show that Services do not conform to the SOW. ePlus shall address such non-conformance in a timely manner. ePlus shall compile an action plan to correct any deficiencies and the process for acceptance detailed herein shall be repeated until such time as all deficiencies have been resolved and the Services meet the requirements of the SOW. Acceptance may not be withheld due to defects in Services that do not represent a material non-conformance with the requirements of the SOW. 7.1 For the Services performed under this SOW, the Customer agrees to pay ePlus a fee of One Hundred Ninety Us Dollars, $190.00/hr. (the "Fee") for each hour of engineering time performed. Such fees include reasonable travel to and from the required location up to a maximum of fifty (50) miles and incidental expenses. Fees for three days of services shall not exceed: $4,560.00 There is a four-hour minimum daily billing for all on-site work. Customer shall issue a purchase order adequate to cover the Fee prior to commencement of Services. Fees for such additional services related to but not defined in this SOW will be performed on a time and materials basis at a rate set forth in a written amendment, as mutually executed by the Customer and ePlus. 7.2 Customer acknowledges that ePlus may participate in and retain the benefit of incentive plans or other programs with, among others, its travel providers wherein ePlus may receive benefits, such as frequent flier miles or other consideration for corporate travel volume. All fees, expenses and other charges for the Services do not include any sales, use, excise, value added, or other applicable taxes, tariffs or duties, payment that may be due on such amounts, and shall be the sole responsibility of Customer (excluding any applicable taxes based on ePlus' net income or taxes arising from the employment or independent contractor relationship between ePlus and its personnel). 8.1. In recognition of the likelihood that the fundamental nature of the work to be accomplished under this Agreement may involve changes from time to time, the Parties hereby agree that a mutually agreeable written direction ("Change Request"), may become peitinent,' and the Parties may make changes in any one or more of the following items: ,; 8.1.1 The scope, descriptions or specifications for the Services, or other documents to be furnished; 8.1.2 The times or places of performance or delivery of the Services, or other documents to be provided; 8.1.1 Customer's changes to the Project Plan; 8.1.3 Unavailability of resources which are beyond ePlus' control; and/or, 8.1.4 Environmental or architectural conditions not previously identified. 8.2 In the event either party desires to change this SOW, the following procedures shall apply: 8.2.1 The party requesting the change will deliver a "Change Request" (attached as Appendix B) to the other party. The Change Request will describe the nature of the change, the reason for the change, and the effect the change will have on the scope of work, which may include changes to the Deliverables and/or the schedule. ©2010 ePlus Technology, inc. 11/O1/10 ~ _ .. `, 8.2.2 The Project Manager of the requesting party will review the proposed change with his/her counterpart. The parties will evaluate the Change Request and negotiate in good faith the changes to the Services and the additional charges, if any, required to implement the Change Request. If both parties agree to implement the Change Request, the appropriate authorized representatives of the parties will sign the Change Request, indicating the acceptance of the changes by the parties. 8.2.3 Upon execution of the Change Request, said Change Request will be incorporated into, and made a part of, this SOW. 8.2.4 Neither ePlus nor its subcontractor(s) is under any obligation to proceed with the Change Request until such time as the Change Request has been agreed upon by both parties. 8.3 If any permitted change causes an increase or decrease in the price of the applicable SOW, or the time required for the performance of any part of the work to be accomplished there under, whether or not such work is specifically identified in a Change Request, then the price, delivery schedules and other affected provision, if any, as applicable, shall be equitably adjusted and the Parties shall executed a Change Request to the SOW as follows: (i) the Party requesting the change will deliver a Change Request (attached as Appendix B hereto) to the other Party. The Change Request will describe the nature of the change, the reason for the change, and the effect the change will have on the scope of work, which may include changes to the Delv+rrables and/or the schedule; (ii) a Change Request may be initiated by either Party. The project manager for th~''iequesting Party will review the proposed change with his/her counterpart. The Parties will evaluate the Change 'Request and negotiated in good faith the changes to the Services and the additional charges, if any, required to implement the Change Request. If both Parties agree to implement the Change Request, the appropriate authorized representatives of the Parties will sign the Change Request, indicating the acceptance of the changes by both Parties; (iii) upon execution of the Change Request, said Change Request will be incorporated into, and made a part of, the SOW; (iv) neither ePlus nor its subcontractor(s) is under any obligation to proceed with the Change Request until such time as the Change Request has been signed by both Parties. ePlus and Customer personnel assigned to the project shall use reasonable efforts to negotiate any proposed changes under this clause in a fair and reasonable manner. In the event that they are unable to reach mutual agreement after good faith negotiations on the additional charges for one or more such changes, then the matter shall be referred to the appropriate senior executive of each Party for appropriate resolution. 8.4 Whenever there is a conflict between the provisions set forth in a fully executed Change Request and those set forth in the original SOW, or previous fully executed Change Request, the provisions of the most recent fully executed Change Request shall prevail. This 3573 SOW ORANGE -NETWORK SUPPORT consists of this document and the following Appendices which are incorporated into this SOW by this reference: Appendix A -Milestone/Service Completion Certificate Appendix B -Change Request This 3573 SOW ORANGE -NETWORK SUPPORT is acceptable. Each- party hereby acknowledges and confirms that it has read this SOW and accepts and approves the scope of work and terms and conditions. Each party understands that should additional work be required that by its nature could not have been known or determined at the time this SOW was. executed, a mutually agreeable written change order describing the additional work and any related expenses will be required. This SOW must be signed and returned before work can begin. Please sign and FAX to at () - IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have caused this SOW to be duly executed. ePlus Technology, inc. fC»ctnmerl By: Name: Title: Date: ©2010 ePlus Technology, inc. 6 lvovlo This instrument has been pre- audited in the manner required _ ~~ ~~ by the Local Government Budget: C ~~~~~ G. C~~Q~ and Fiscal Control Act