MASTER SERVICES AGREEMENT
THIS MASTER SERVICE AGREEMENT (“Agreement”) governs the terms & conditions for use of the products and/or services provided by MaximumBit, Inc. (“Consultant”), to you, the customer or subscriber (“Client”). When Client submits an order form or scope of work (defined below) for the Service, Client agrees to the terms and conditions of this entire Agreement.
A. MaximumBit, Inc. has developed a technology platform that provides cloud delivered desktops powered by Virtual Desktop Infrastructure (VDI) or Desktop as a Service (DaaS) capabilities, which allows users to access virtual desktops (together with any additional and/or related services ordered by the Customer, the “Service”); the technology offers a broad range of products and services including but not limited to antivirus, backup service, help desk and more and B. By signing an Order Form or scope of work exhibit A for the Service, Client desires to enter into this Agreement with Consultant to utilize the Service in accordance with the terms of this Agreement.
1. Description of Work
Client hereby engages Consultant, and Consultant hereby accepts such engagement, to provide the services described in Exhibit A or “order form” (referred to in the aggregate as “Work”), a true and correct copy of which is attached hereto as Exhibit “A, “ and incorporated herein by reference. Consultant will use its best efforts, skill and ability to perform the Work. Consultant is performing its services hereunder as a provider of interactive computer services as defined by the Communications Decency Act (47 U.S.C. §§ 230 et. seq.)
2.1 The monthly fee is set forth in Section 1 of Exhibit “A” signed by Client
2.2 Payments made after the 5th day of the month will be charged a service charge of one and one-half percent (1 ½%) per month or the maximum amount allowed by law, whichever is less, until paid in full.
2.3 All payments shall be made via ACH by default.
2.4 Payments via check will incur processing fee of $50 and must clear before any products or services are provided.
This agreement shall be for the term set forth in Exhibit “A.” Client must notify Consultant sixty (60) days in advance of Client’s intent to cancel. If notice of cancellation is not timely made, this Agreement shall be auto renewed for an additional term the same length as the existing term at the end of each consecutive term. If Client does not retrieve data within 30 days after termination, all data stored on the hosting system will be deleted.
4. Limited Liability
4.1 Client expressly agrees that use of the Hardware and Software (collectively “Equipment offered by Consultant is at Client’s sole risk. Neither Consultant, its employees, affiliates, agents, merchants, licensers or the like, warrant that the Hosting service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Equipment or as to the accuracy, reliability or content of any information, service or merchandise contained in or provided through the Consultant’s Hosting service.
4.2 Under no circumstances, including negligence, shall Consultant its offices, agents or anyone else involved in creating, producing or distributing Consultants’ Hosting service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Consultant’s Hosting service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to Consultants records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on Consultants’ Hosting service.
4.3 Consultant shall use its best efforts to make available at an additional charge nightly backup for Client’s data, if requested in writing by Client. However, Consultant shall have no liability for failure to perform such backup or for the loss of data for any reason.
4.4 Notwithstanding the above, Client’s exclusive remedies for all damages, losses and causes of actions whether in contract, tort including negligence, or otherwise, shall not exceed a maximum aggregate dollar amount equal to one month of service, that Client paid during the term of this agreement.
5. Lawful Purpose
Client may only use Consultant’s Hosting service for lawful purposes. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, material covered by HIPAA, or material protected by trade secrets. Consultant may, but is not required to, in its sole discretion, terminate Hosting services if Consultant, in good faith, believes Client is using service for unlawful purposes
6.1 Client agrees that it shall defend, indemnify, save and hold Consultant harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys’ fees asserted against Consultant, its agents, its customers, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Consultant against Liabilities arising out of any of the following:
i. any injury to person or property caused by any services rendered, products sold or otherwise distributed in connection with Consultant’ Hosting service;
ii. any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party;
iii. copyright infringement;
iv. violation of Federal, State or local laws;
v. Client’s use or misuse of the internet in violation of Federal, State or local laws;
vi. Client’s use of any improperly licensed or unlicensed hardware or software; and
vii. any defective product or negligent service which Client provided on the Server hosted by Consultant.
6.2 There exists commercially available hardware, software and filtering services that may assist Client in preventing some misuse of the system. Consultant can provide information to Client regarding these commercially available items. Client will also offer such items to Client for an additional fee.
7. Termination of Agreement
7.1 This Agreement may be terminated by Client, without cause, by giving Consultant 120 days written notice. Written notice may be by postal, email or fax transmission. Consultant reserves the right to verify all cancellations before terminating service. Notwithstanding the above, Consultant may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with any of the terms of this Agreement or default on payment.
7.2 Written notice of cancellation may be by postal mail, email or fax transmission
7.3 If this Agreement is terminated pursuant to Section 7.1 prior to the end of the term, Client shall pay Consultant a fee equal to two (2) months of the hosting fee set forth in Exhibit “A” for each six (6) month period remaining in the term, in addition to the fees due during the 120 day notice period.
7.4 Regardless of when or how this Agreement is terminated, Client shall pay the migration fee set forth in Section 10.2.
7.5 Client may terminate the Agreement with cause, only if Client has given Consultant written notice of Consultant’s specific failure to perform and Consultant has failed to cure its performance after 30 days has elapsed from the giving of written notice.
8. ACCESS TO CLIENT’S COMPUTER SYSTEM
8.1 In order to perform services hereunder, and to satisfy the contractual requirements herein, Consultant shall have access to Client’s computer files at all times, and reserves the right to inspect and monitor the use of the systems hosted by Consultant.
8.2 Client shall not permit sharing of accounts or passwords. In the event Client’s system is used by any unauthorized person, Client shall be required to pay a fee for such usage equal to two (2) times the monthly fee charged for authorized users as set forth in Exhibit “A.”
The PARTIES hereby undertake and agree with one another that none of them will at any time after the date of this Agreement (except as required by applicable law or regulation or in connection with actual or threatened legal proceedings) divulge or communicate to any person other than to officers, employees or professional advisers and agents of the PARTIES, any information relating to this Agreement, except to the extent that the same is required to enforce bona fide claims of either party or by applicable law or regulation.
10. MIGRATION OF DATA AT COMMENCEMENT AND TERMINATION.
10.1 In order to commence services hereunder, Consultant is required to transfer data from Client’s existing system to Consultant’s system. The fee for such transference shall be set forth in Exhibit “A,” hereto. The fee shall be calculated based upon the amount of data transferred, but shall be a minimum of one thousand dollars ($6,998.00). Client acknowledges that services under the Hosting Agreement cannot commence until this transference fee is paid.
10.2 Upon the termination of this Agreement, Consultant shall transfer the data being hosted to Client’s requested system, conditional upon Client’s payment of all amounts due under this Agreement, and Client’s payment, in advance, of a fee for such transference. The fee shall be calculated based upon the amount of data transferred, but shall be a minimum of the amount paid by Client for the initial transfer of data from Client to Consultant pursuant to Section 10.1.
10.3 CLIENT ACKNOWLEDGES THAT CONSULTANT SHALL NOT TRANSFER DATA TO CLIENT UNLESS AND UNTIL ALL FEES DUE UNDER THIS AGREEMENT ARE PAID, INCLUDING BUT NOT LIMITED TO THE TRANSFER FEE SET FORTH IN SECTION 10.2.
10.4 Consultant shall have no liability to Client or to customers of Client for delays in transfer of data to Client occasioned by Client’s failure to timely pay Consultant hereunder.
11. TITLE TO EQUIPMENT.
Title to the Equipment shall at all times remain with the Consultant. Client shall acquire no ownership, title, property right, equity or interest, other than as specifically set forth herein and subject to the terms and conditions hereof. If Client claims an ownership interest in the Equipment, or any Court of competent jurisdiction determines that Client has an ownership interest in the Equipment, then Client shall be deemed to have granted Consultant a Security Interest in the Equipment and all accessions, additions, substitutions, replacements, income and insurance proceeds therefrom to secure the prompt payment and performance as and when due of Client’s obligations and indebtedness hereunder, now existing or hereafter created. Client agrees to assign a Security Interest and lien in all of the Equipment and execute all documents necessary to perfect the Security Interest.
12. LOSS AND DAMAGE.
Client shall bear the entire risk of loss, theft, damage or destruction of the Equipment regardless of the cause. Such loss, theft, damage or destruction shall not excuse Client from payment of its obligations hereunder. Client shall immediately repair or replace the Equipment with like Equipment at Client’s sole cost and expense.
Client shall obtain and maintain insurance against loss, theft, damage, or destruction of the Equipment in the minimum amount of $200,000 until the Agreement is terminated. Said replacement cost policy shall name Consultant as the sole loss payee. Client shall provide Consultant with a copy of the Declarations page, showing Consultant as the sole loss payee of a noncancellable replacement cost policy, providing for a minimum of 30 days Notice of Client’s default in payment of premiums. In the event of such default, Consultant may, but is not required to, purchase its own policy at the sole cost and expense of Client as an additional charge hereunder.
14.1 Executed Counterparts. This Agreement may be executed in any number of original, fax or copied counterparts, and all counterparts shall be considered together as one agreement. A faxed or copied counterpart shall have the same force and effect as an original signed counterpart. Each of the parties hereby expressly forever waives any and all rights to raise the use of a fax machine to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine, as a defense to the formation of a contract.
14.2 Successors and Assigns. Except as expressly provided in this Agreement, each and all of the covenants, terms, provisions, conditions and agreements herein contained shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.
14.3 Section Headings. The section headings used in this Agreement are inserted for convenience and identification only and are not to be used in any manner to interpret this Agreement.
14.4 Severability. Each and every provision of this Agreement is severable and independent of any other term or provision of this Agreement. If a court of competent jurisdiction hereof holds any term or provision void or invalid for any reason, such invalidity shall not affect the remainder of this Agreement.
14.5 Governing Law. This Agreement shall be governed by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California. If any court action is necessary to enforce the terms and conditions of this Agreement, the parties hereby agree that the Superior Court of California, County of Orange, shall be the sole jurisdiction and venue for the bringing of such action.
14.6 Entire Agreement. This Agreement, the Settlement Documents and all references herein, contains the entire understanding among the parties hereto and supersedes any and all prior written or oral agreements. understandings, and negotiations between them respecting the subject matter contained herein.
14.7 Additional Documentation. The parties hereto agree to execute, acknowledge and cause to be filed and recorded. if necessary, any and all documents, amendments, notices and certificates which may be necessary or convenient under the laws of the State of California.
14.8 Attorney’s Fees. If any legal action (including arbitration) is necessary to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to costs and reasonable attorney fees.
14.9 Amendment. This Agreement may be amended or modified only by a writing signed
14.10 Remedies Cumulative. The remedies of the parties under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.
14.11 Waiver. No failure by any party to insist on the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy on a breach shall constitute a waiver of any such breach or of any other covenant, duty, agreement, or condition.
14.12 Assignability. This Agreement is not assignable by either party without the expressed written consent of all parties.
14.13 Notices. All notices, requests and demands hereunder shall be in writing and delivered by hand, by facsimile transmission, by mail, by telegram or by recognized commercial over-night delivery service (such as Federal Express, UPS or DHL), and shall be deemed given (a) if by hand delivery, upon such delivery; (b) if by facsimile transmission, upon telephone confirmation of receipt of same; (c) if by mail, forty-eight (48) hours after deposit in the United States mail, first class, registered or certified mail, postage prepaid; (d) if by telegram, upon telephone confirmation of receipt of same; or, (e) if by recognized commercial over-night delivery service, upon such delivery.
14.14 Time. All parties agree that time is of the essence as to this Agreement.
14.15 Disputes. The parties agree to cooperate and meet in order to resolve any disputes or controversies arising under this Agreement. Should they be unable to do so, then either may elect arbitration at JAMS or other mutually agreeable ADR provider and both parties are obligated to proceed thereunder. Arbitration shall proceed in Orange County, and the parties agree to be bound by the arbitrator’s award, which may be filed in the Superior Court of California, County of Orange. The parties consent to the jurisdiction of California Courts for enforcement of this determination by arbitration. The prevailing party shall be entitled to reimbursement for his attorney’s fees and all costs associated with arbitration. In any arbitration proceeding conducted pursuant to the provisions of this Section, both parties shall have the right to conduct discovery, to call witnesses and to cross-examine the opposing party’s witnesses, either through legal counsel, expert witnesses or both, and the provisions of the California Code of Civi1 Procedure (Right to Discovery; Procedure and Enforcement) are hereby incorporated into this Agreement by this reference and made a part hereof.
14.16 Provision Not Construed Against Party Drafting Agreement. This Agreement shall be deemed to have been drafted by all parties and, in the event of a dispute, no party hereto shall be entitled to claim that any provision shou1d be construed against any other party by reason of the fact that it was drafted by one particular party.
14.17 Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof as if set out in full herein.
14.18 Recitals. The facts recited in Article II, above, are hereby conclusively presumed to be true as between and affecting the parties.
14.19 Consents, Approvals and Discretion. Except as herein expressly provided to the contrary, whenever this Agreement requires consent or approval to be given by a party, or a party must or may exercise discretion, the parties agree that such consent or approval shall not be unreasonably withheld, conditioned, or delayed. and such discretion shall be reasonably exercised. Except as otherwise provided herein, if no response to a consent or request for approval is provided within ten (10) days from the receipt of the request, then the consent or approval shall be presumed to have been given.
14.20 No Third Party Beneficiaries. This Agreement has been entered into solely by and between the Parties, solely for their benefit. There is no intent by either party to create or establish a third party beneficiary to this Agreement, and no such third party shall have any right to enforce any right, claim, or cause of action created or established under this Agreement.
14.21 Definitional Provisions. For purposes of this Agreement, (i) those words, names, or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (ii) wherever from the context it appears appropriate, each term stated either in the singular or plural shall include the singular and plural; (iii) wherever from the context it appears appropriate, the masculine, feminine, or neuter gender, shall each include the others; (iv) the words “hereof”, ”herein”, “hereunder”. and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement; (v) all references to “Dollars” or “$” shall be construed as being United States dollars; and, (vi) all references to all statutes, statutory provisions, regulations, or similar administrative provisions shall be construed as a reference to such statute. statutory provision, regulation, or similar administrative provision as in force at the date of this Agreement and as may be subsequently amended.
15. Ownership Of Hardware And Software. Consultant shall be the sole owner of all Microsoft Server Licenses, Citrix or any other Consultant provided licenses used under this Hosting Agreement. All other third party licenses, including Microsoft client operating system licenses (windows7/10 etc) must be provided by Client. No unlicensed material shall be installed by Consultant. Any license violations for 3rd party licenses are the sole responsibility of Client. Client shall further agree to indemnify Consultant and hold harmless against any claims for license violations and/or illegal usage of the services provided by Consultant, including but not limited to claims arising from 3rd party license violations, illegal usage by employees, contractors or affiliates of the Client that may use such service.
15.1 Licenses are charged on a per/named user basis as outlined in exhibit A. This entitles client to unlimited use of the environment for a given 30 day period “billing cycle” and for the specific named user.
15.2 Client shall be charged for each account active in a given billing cycle, regardless of volume of use or mid-month cancellation.
15.3 License billing policies are dictated by software OEM’s such as Microsoft and others that the Consultant is engaged with. Consultant does not have control over such policy. As such, any changes in policy by software OEM’s, shall be passed through to Client and services may be amended time to time to ensure compliance with all policies and requirements of OEM’s.
15.4 Client shall not under any circumstances share passwords or accounts between multiple users and understands that this is a violation of license usage policies by software OEM’s as well as Consultant.
16. Microsoft Software. This Section 16 relates to Client’s use of Microsoft Software that is provided to Client by Consultant in connection with the Service and may include associated media, printed materials, and “online” or electronic documentation (individually and collectively, “Microsoft Software Products”). Consultant does not own the Microsoft Software Products and the use thereof is subject to certain rights and limitations of which Consultant needs to inform Client. Client’s and each End user’s right to use the Microsoft Software Products is subject to all terms and conditions for the Service as set forth in this Agreement (which Service shall include Microsoft Software Products as described herein) and to Client’s and each End User’s understanding of, compliance with, and consent to this Section 16, which Consultant does not have the authority to vary, alter, or amend.
16.1. Definitions. For purposes of this Section 16, the following terms shall have the following definitions: (A) “Microsoft Software” means all software provided by Microsoft, including software that allows a Device to access or utilize the Microsoft services or functionality and software that provides Microsoft services or functionality on a computer acting as a server; (B) “Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone”, or other electronic device; and (C) “Microsoft” means Microsoft Corporation and its affiliates.
16.2. Use of Microsoft Software. Neither Client nor any End User may (A) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Microsoft Software Products or (B) reverse engineer, decompile, or disassemble the Microsoft Software Products, except to the extent such activity is expressly permitted by applicable law.
16.3. Ownership of Microsoft Software Products. The Microsoft Software Products are licensed to Consultant from Microsoft. All title and intellectual property rights in and to the Microsoft Software Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Microsoft Software Products) are owned by Microsoft or its suppliers. The Microsoft Software Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Client’s and each End User’s possession, access, or use of the Microsoft Software Products does not transfer any ownership of the Microsoft Software Products or any intellectual property rights to Client or any End User.
16.4. Use of Microsoft Software Products. Client and each End User may use the Microsoft Software Products provided in connection with the Service only in accordance with written instructions, including this Section 16, and only in connection with the Service provided to Client and each End User by Consultant. Client and each End User agree to permit the disclosure of its information as required by the agreement(s) between Consultant and Microsoft.
16.5. Warranties, Liabilities, or Remedies by Microsoft. IN NO EVENT SHALL MICROSOFT, CONSULTANT, OR THEIR RESPECTIVE AFFILIATES, SUPPLIERS, OR SUBSIDIARIES PROVIDE CLIENT OR ANY END USER WITH ANY WARRANTIES, ANY LIABILITY FOR DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, AND/OR ANY REMEDIES, ARISING FROM THE MICROSOFT SOFTWARE PRODUCTS.
16.6. Product Support. In no event shall Microsoft or its affiliates or subsidiaries provide any product or technical support to Client or any End User for the Microsoft Software Products. Any and all product and technical support shall be provided by Consultant to the extent set forth in this Agreement.
16.7. Not Fault Tolerant. THE MICROSOFT SOFTWARE PRODUCTS ARE NOT FAULT TOLERANT AND ARE NOT GUARANTEED TO BE ERROR FREE OR TO OPERATE UNINTERRUPTED. CLIENT AND EACH END USER AGREES THAT IT SHALL NOT USE THE MICROSOFT SOFTWARE PRODUCTS IN ANY MANNER IN WHICH THE FAILURE OF THE MICROSOFT SOFTWARE PRODUCTS COULD LEAD TO DEATH OR SERIOUS BODILY INJURY OF ANY PERSON OR TO SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“High Risk Use”). Examples of High Risk Use include, but are not limited to: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Microsoft Software Products for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with applications that perform the control, but must not be directly or indirectly responsible for the control function. Client agrees to indemnify and hold harmless Consultant and Microsoft from any claim arising out of Client’s or any End User’s use of the Microsoft Software Products in connection with any High Risk Use.