Master Services Agreement

Effective on 11 December 2024

This Master Services Agreement (“MSA”) the terms and conditions under which EpicCyber services (“EC”), a Service Delivery Brand owned and operated by Epic Machines, Inc., (“EMI”) a California Corporation. EMI, provides its products, services, support, and any related offerings, including but not limited to proof of concept consultations, proof of value consultations, quotes, proposals, and general expertise consultations. By engaging with any of EC’s offerings, accessing our website, engaging in services of any kind, purchasing products, receiving quotes or proposals, and all prospective and existing business relationships the customer or client (“Client”) agrees to comply with and be bound by the terms of this MSA, unless there is an existing business relationship governed by an existing, previously signed Master Services Agreement with EMI.

For the purposes of this MSA:

“EpicCyber” or EC refers to the services delivery brand doing business as EpicCyber, specifically responsible for delivering managed cybersecurity services, including but not limited to implementation, support, and management of cybersecurity solutions.
“Epic Machines, Inc.” or EMI refers to Epic Machines, Inc., a California Corporation, including its subsidiaries, affiliates, employees, agents, and representatives.
“Client” refers to any individual, entity, or organization, including their representatives, that engages with EC or Epic Machines, Inc. through the purchase, inquiry, or use of any products, services, support, quotes, or proposals or accesses any part of EC’s website. This definition includes all prospective and existing business relationships.
“Party” refers individually to either EC (including EpicCyber) or the Client, as defined above.
“Parties” refers collectively to both EC and the Client.

This MSA is effective as of the date of the Client’s engagement with EC or EMI (“Effective Date”), which includes, but is not limited to, the exchange of Confidential Information (as defined in Section5) for the purpose of evaluating or entering into a business transaction, partnership, or other professional relationship unless superseded by a signed Master Services Agreement.

1. Product

For the sale of Product which by definition includes but is not limited to hardware, software, subscriptions or other third-party sourced goods and services resold by EC to Client, EC will issue a quote. To accept the quote and place an order, Client must indicate acceptance in writing. This can be accomplished with a signature on the quote, by sending EC a purchase order, or any other written form of acceptance and agreement to purchase. EC will invoice Client (i) upon Client’s request; (ii)when the Product is shipped to Client.

1.1 Software Licenses and Subscriptions

For the sale of software licenses and subscriptions, EC will issue a quote. To accept the quote and place an order, Client must indicate acceptance in writing. This can be accomplished with a signature on the quote, by sending EC a purchase order, or any other written form of acceptance and agreement to purchase.EC will invoice Client (i) upon Client’s request; (ii) when the software or access credentials are sent from the source; or (iii) when Client receives the software or access to it, whichever occurs earliest. Client will be deemed to have accepted the software when the customer receives the license or access credentials.

1.2 Domestic Shipment

Hardware and/or packaged software will be shipped to the Client directly from the Source Vendor, a distributor of EC, EC’s third-party warehouse, or EC’s integration center. All risk of loss shall pass to Client as soon as the products leave the Source Vendor, manufacturer, distributor, or other source.EC reserves the right, in its sole discretion, to select the means of shipment and routing.

1.3 Returns

Returns are only permitted if: (i) the hardware is damaged; (ii) breach of Source Vendor’s warranty, or (iii) the product is errant, all of which require compliance with and acceptance by Source Vendor. Software may not be returned. Upon Source Vendor’s, distributor’s, or EC approval credits will be applied as long as it is approved by EC. Only then will refunds will be given.

1.4 Order Cancellations

EC has the right to cancel any orders placed for any hardware, software, or services listed at an incorrect price or shown with incorrect information, whether due to typographical error or otherwise, and whether or not Client’s order was accepted.

1.5 Source Vendor Product Support

1.6 EC Product Support Services

EC may offer joint product support services that collaboratively enhance and augment a Source Vendor’s product functionality and product support experience for Client. When Client purchases this type of EC product support service the services may be bundled with the sale of product or software license subscriptions. Such product support services require this MSA and subsequent SOW. In such cases, those services are not cancellable until the product or software license subscriptions terminate. This will be defined in the SOW details. EC shall not be liable for any deficiencies, breaches, or other issues with the product support contract after escalation to the Source Vendor. In such cases, Client’s sole recourse shall be through the Source Vendor or product support provider.

2. Services

2.1 Scope of Work

All services provided by EC will be performed in accordance with this MSA, and any terms, conditions and pricing outlined in the referenced Quote and Scope of Work (“SOW”). The Quote and SOW will detail the pricing, description of services, schedules, deliverables, tasks, and terms ofter mination for the services for each SOW. Each SOW shall incorporate and be governed by this MSA by reference.

2.2 Manner and Means

EC will control how the services are completed, following industry standards. EC will provide its own tools, materials, and resources at its own expense. Client shall cooperate with EC to provide necessary technical, administrative, and commercial support. Client may need to provide hardware, user accounts, documentation, and credentials as required for the services. Client may also be responsible for satisfying certain prerequisites before work by EC can begin as set forth in the applicable SOW. In no event shall EC be held liable and/or responsible for delays caused by Client

2.3 Personne

EC shall assign skilled personnel to perform services. EC may change personnel as needed andensurea full knowledge transfer occurs.

2.4 Subcontractors

EC may subcontract certain services, but no direct relationship is created between Client and any subcontractor.

3. Invoicing and Payment Procedures

3.1 Rates, Fees, and Expenses

Services will be billed at either fixed hourly rates or a fixed fee as per the SOW. Authorized out-of-pocket and travel expenses shall be reimbursed at EC’s actual cost, pursuant to the applicable SOWand in accordance with any terms set forth therein.

3.2 Invoices and Payment

EC shall be paid upon the submission of invoices to Client and on the terms defined in theinvoice.For Services provided on an hourly basis, EC will submit invoices according to the agreedterms set forth in the applicable SOW. For Services provided on a fixed fee basis, EC will submitinvoices pursuant to the schedule set forth in the applicable SOW.All invoices will cite Client’sapplicable purchase order number and will contain the information and supporting documentationspecified.Client shall pay all properly submitted invoices according to the agreed terms.

3.3 Late Fees and Interest

If Client fails to pay any undisputed amount due under this MSA within thirty (30) days after its duedate, Client shall pay to EC on demand a late payment fee equal to five percent (5%) of the amountof the late payment. This late payment fee will be in addition to any other amounts payable by Clientunder this MSA, including, without limitation, interest payable at the post-default rate.EC reservesthe right to suspend any services for payments later than 30 days from the due date.

4. Representations And Warranties

4.1 Right to Perform

EC and Client each represents and warrant that it has the full right, power, and authority to enter into this MSA and perform according to its terms, and that its execution of this MSA and its performance under it shall not result in a breach of or default under any other agreement to which it is a party orby which it is bound.

4.2 Conflicts of Interest

EC and Client each represents and warrants that it shall not, during the term of this MSA, accept any work or enter into any agreement or obligation inconsistent or incompatible with its obligations under this MSA.

4.3 Proprietary Rights

EC represents and warrants that Client Work Product shall be an original work of EC and in performing the Services and furnishing Work Product, it shall not violate the proprietary rights of any third party; and it will not transfer or assign to any third party any proprietary rights in the Work Product

4.4 Services Warranty

EC warrants that all Services provided under this MSA shall be performed in a timely manner and in accordance with the highest applicable industry, government, and professional standards.

4.5 Work Product Warranty

EC warrants that all Work Products delivered shall be free from defects in workmanship. As a remedy for breach of the foregoing warranty, Client may elect, at its option, the replacement of non-conforming Products or work, which shall be accomplished by EC at no charge to Client; repair, modification, or adaptation of the non-conforming Work Products at EC’s expense; or return of the non-conforming Work Products to EC in exchange for a full refund to Client of the aggregate purchase price paid.

4.6 Limitation of Liability

Neither Party will be liable for any indirect or consequential damages. EC’s liability shall not exceed the amount invoiced under the applicable SOW or product sale.

5. Confidentiality

5.1 Mutual Confidentiality Obligation

Each of the Parties acknowledges the confidential and proprietary nature of the Confidential Information (as defined below) and agrees to hold and keep the same confidential as provided for in this MSA, and to take all reasonable measures at its own expense to restrain its owners, members, officers, directors, employees, representatives, agents, and any others to whom the Confidential Information may be disclosed during the ordinary course of business (collectively “Representatives”),from prohibited or unauthorized disclosure or use of the Confidential Information, for a term of two(2) years following the last date of disclosure. “Confidential Information” shall include, but shall not be limited to, all information, data, software, computational hardware, reports, analyses, compilations, studies, projections, forecasts, records, and other materials (in whatever form maintained, whether documentary, computerized, electronic, oral, or otherwise), that contain or otherwise reflect information concerning the Parties or their affiliates or subsidiaries.

5.2 Shared Information

No Party, nor any Party’s employees, shall, without the prior written consent of the other Party, disclose to any third party or make, directly or indirectly, any public comments, statements, or communications with respect to the following:

that the Confidential Information has been made available to it, or is being furnished by it;

(i) any Party may make such disclosure if it has received the written opinion of its counsel that such disclosure should be made by it so that such Party not commit a violation of law or to comply with any disclosure obligations imposed by any agreement with any exchange on which a Party’s stock, (including any options or futures relating to such stock)or indebtedness is listed or traded; and
(ii) prior to such disclosure, such Party promptly advises and consults with the other Parties and their respective legal counsel concerning the information proposed to be disclosed.

5.3 Public Domain Information

The obligations shall not apply, however, to any information that:

(a) is already in the public domain at the time of disclosure or later becomes available to the public through no breach of this MSA by the Recipient or its employees;
(b) is lawfully in the Recipient’s possession, without an obligation of confidentiality, prior to receipt hereunder;
(c) is received independently by the Recipient from a third party who was free to law fully disclose such information to the Recipient; or
(d) is independently developed by the Recipient without the use of Confidential Information as evidenced by the Recipient’s business records.

Confidential Information shall not be deemed to be in the public domain merely because any part of said information is embodied in general disclosures or because individual features, components, or combinations thereof are now or become known to the public.

5.4 Information Ownership

Confidential Information, including permitted copies, shall remain the property of the Disclosing Party. Within thirty (30) days of a written request by the Disclosing Party, the Recipient shall return all Confidential Information and all copies to the Disclosing Party, provided however, that the Recipient shall have the option to destroy any Confidential Information described in Section 2 hereof. The Recipient shall certify in writing that it has satisfied its obligations under this Section 8 upon a written request by the Disclosing Party. Notwithstanding the return or destruction of such Confidential Information, each party, together with its respective employees, shall continue to be bound by the provisions of this MSA.

5.5 Work Product

All work product developed by EC for the Client will remain confidential and will not be disclosed to third parties without prior written consent.

6. Proprietary Rights

6.1 Ownership of Work Product

All work products produced under this MSA are deemed “works made for hire” and are assigned to the Client. EC transfers all rights to the work products to the Client upon their creation.

7. Term and Termination

7.1 Initial Term

This MSA shall become effective on the Effective Date and shall remain in effect until terminated as set forth below.

7.2 Termination of MSA

This agreement may be terminated at any time by written notice to the other party. The duties and obligations set forth in Section 5shall survive termination and continue to be enforceable.

7.3 Termination of Third-Party Contract or Subscription

All sales are final and Client is obligated to pay the entire invoice unless otherwise agreed in writing. If approved by the Source Vendor, EC will pass through any refund of any unused pre-paid fees for the products less any restocking or return fees. If Client desires to terminate a product support contract, software subscription contract, or license and EC has purchased contracts or licenses for the Client, Client shall indemnify EC and hold EC harmless for any liability EC may have to the Source Vendor or supplier arising from the purchase of those contracts or license.

7.4 Termination of SOW and Opportunity to Cure

Unless otherwise indicated in the SOW, Client may terminate any SOW issued pursuant to this MSA upon written notice to EC. If the SOW requires just cause for termination, Client shall provide EC with reasonable written notice of alleged deficiencies in EC’s performance prior to issuing any written notice of termination for cause. Upon receipt of such written notice, and prior to termination and any claim for damages, EC shall have thirty (30) days to cure the alleged deficiencies.

8. Miscellaneous

Notices regarding disputes of amounts due and payable, alleged deficiencies in performance, and notices of termination for cause must be delivered by electronic mail and/or postage prepaid certified mail (return receipt requested).

8.1 Binding Arbitration

Any dispute, controversy, or claim arising out of or relating in any way to this MSA, including without limitation any dispute concerning the construction, validity, interpretation, enforceability, or breach hereof, shall be exclusively resolved by binding arbitration upon a Party’s submission of the dispute to arbitration. The demand for arbitration shall be made within a reasonable time after the claim, dispute, or other matter in question has arisen, and in no event shall it be made after two (2) years from when the aggrieved Party knew or should have known of the controversy, claim, dispute, or breach. The arbitration shall be conducted in accordance with the then-existing Commercial Rules of the American Arbitration Association. The arbitration shall be conducted in San Francisco, California, and the laws of the State of California shall be applied to any arbitration proceedings without regard to principles of conflict of laws. Each Party shall pay its own proportionate share of arbitrator fees and expenses and the arbitration fees and expenses of the American Arbitration Association. The arbitrator(s) shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

8.2 Attorney Fees

The prevailing Party in any litigation between the Parties relating to this MSA shall be entitled tore cover from the non-prevailing Party its reasonable attorney fees and court costs as may be permitted by applicable law in addition to any other relief it may be awarded.

8.3 Severability; Non-Waiver

If any provision of this MSA is held to be illegal, unenforceable, or invalid by any court of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect. The failure or delay of either Party to enforce at any time any provision of this MSA shall not constitute a waiver of such Party’s right thereafter to enforce each and every provision of this MSA.

8.4 Headings

The section headings appearing in this MSA are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this MSA.

8.5 Entire MSA; Modification

This MSA, together with the Mutual Nondisclosure Agreement (“MNDA”) if executed, and any SOW signed by Client attached hereto, all of which are hereby incorporated by reference, constitute the entire agreement between the Parties and supersedes all prior oral or written negotiations and agreements between the Parties with respect to the subject matter hereof. This MSA may be modified only in writing and only when such writing is signed by both Parties or the Parties’ designated Representatives.

Change of 11 December 2024