Our Master Services Agreement (MSA) is designed to make working together as smooth and transparent as possible. It outlines the key terms, responsibilities, and expectations that guide our partnership, ensuring there are no surprises – just a clear understanding of how we’ll work together. With the MSA in place, we can focus on delivering the right solutions for your needs, knowing the foundation for our partnership is already set. This foundation supports future scopes of work, which detail how we’ll handle projects, recurring services, and product sales.
MASTER SERVICE AGREEMENT v2.1
THIS MASTER SERVICE AGREEMENT (“Agreement”) is made this (“Effective Date”) by and between AIIConnected, Inc. (“Master Service Provider,” “MSP,” or “AIIConnected”), 4514 lsh Drive, Simi Valley, CA 93063 and (“Client”) located at (“Address”).
1.1 General. This Agreement serves as a master agreement and applies to Client’s purchases from AIIConnected, of product including hardware, support and maintenance services, licenses for software and hardware, and/or subscription services, (each a “Product”) and of information technology services (“Services”) as more particularly set forth in a Statement of Work (“Statement of Work” or “SOW”). Services may include but not limited to smartConnect, supportConnect, safeConnect, recoverConnect, Disaster Recovery, Cloud Backup, IT Infrastructure Services, webConnect, and/or Hosted Services. No Product or Services will be provided under this Agreement alone, but require the execution of a written or electronic purchase order form, or other mutually acceptable order documentation, which contains terms relating to this Agreement, each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all purposes. Each subsequent Statement of Work incorporates all the provisions within this Agreement. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Statement of Work and those of this Agreement, the terms of this agreement will prevail over the Statement of Work.
1.2 Definitions. Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Work, unless the language or context requires otherwise. SOW-specific definitions, if any, shall be included in the applicable SOW, and shall apply only with respect to such SOW. As used in this Agreement:
2.1 Term. This Agreement will begin on the Effective Date and will continue until terminated.
2.2 Effects of Termination. If an Order for Services is terminated, Client will promptly pay AIIConnected for Services rendered, and expenses incurred through the termination date.
2.3 Termination for Convenience. Either Party may terminate this Agreement for convenience at any time upon written notice to the other Party. If there are any active Statements of Work, termination shall be effective upon the expiration or termination of the last Statement of Work. If there are no active Statements of Work, termination shall be effective upon receipt of the written notice.
2.4 Termination for Breach. Either Party may terminate this Agreement or any individual SOW in accordance with Cure subsection below (in certain circumstances where an opportunity to cure must be provided) or No Opportunity to Cure subsection below (in certain circumstances where an opportunity to cure is not available):
3.1 Fees. Client will pay AIIConnected all fees due upon receipt of an invoice specifying the amounts due (“Fees”). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month from the date due until paid in full. Client’s obligation to pay undisputed amounts due for Services and AIIConnected’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Fees will be detailed in an Order. All such Fees, including any potential overage fee, will be agreed upon by both parties prior to the service being provided by AIIConnected. Without limiting the foregoing, if Client’s account remains unpaid for thirty (30) days or more past the due date, AllConnected reserves the right to suspend all Services until all such overdue amounts (and any applicable interest charges, as specified above) are paid. In addition, Client agrees to reimburse AllConnected for all expenses incurred in connection with the collection of amounts payable hereunder, including court costs and reasonable attorneys’ fees.
3.2 Taxes. All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of AIIConnected). This provision shall not apply to any taxes for which Client is exempt and for which Client has furnished AllConnected with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.3 Reimbursable Expenses. Unless otherwise stated in a Purchase Order, Client agrees to pay or reimburse AIIConnected for all actual, necessary, and reasonable expenses incurred by AIIConnected in performance of such Purchase Order, which are capable of verification by receipt. AIIConnected will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Purchase Order or Statement of Work.
4.1 Restrictions on Use; Non-Disclosure. Recipient agrees that it will use the same care and discretion to avoid Disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish, or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not: (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers, agents and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement.
4.2 Exceptions. The obligations set forth in Section 4.1 shall not apply to Confidential Information that: (a) before the time of its Disclosure was already in the lawful possession of the Recipient; or (b) at the time of its Disclosure to Recipient is available to the general public or after Disclosure to Recipient by Discloser becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully and independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement.
4.3 Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
4.4 Disposal of Confidential Information. Upon termination of this Agreement or upon Discloser’s request at any time, Recipient agrees to promptly return to Discloser all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed. AllConnected will return to the Client, all Client Data in its possession at the date of termination in its then-existing format and on its Client-supplied media, however, AllConnected may keep a copy in accordance with its record retention policy. Any conversion of format or media performed by AllConnected in order to discharge its obligations under this Section shall be at Client’s expense.
4.5 Remedies. The Parties acknowledge and agree that a breach of this Agreement by either Party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Discloser shall therefore be entitled, in the event of any actual or threatened violation of this Agreement by Recipient, and in addition to any other remedies available to it, to seek to obtain a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief.
4.6 Duration. The obligations set forth in this Section 4 shall apply during the term of this Agreement and for a period of one (1) year thereafter.
In the event either directly or indirectly employs or solicits for employment any employee of the other party, the hiring party agrees to pay the other as a recruitment and training fee and not a penalty an amount equal to 50% of the total annual salary of the subject employee or $50,000, whichever is greater.
Client agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of AIIConnected performing the services. Client will also provide AIIConnected with access to all information, passwords and facilities requested by AIIConnected that is necessary for AIIConnected to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that the AIIConnected may be unable to perform their duties adequately and if such a situation should exist, the AIIConnected will be held harmless.
Client acknowledges that from time to time (a) AIIConnected may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for AIIConnected to meet Client’s requirements. In connection therewith, Client agrees to work in good faith with AIIConnected to effectuate such purchases or changes. In the event that AIIConnected is required to purchase any assets deployed at client site, including computer hardware and/or software, in connection with AIIConnected providing the services, all such assets will remain the sole property of AIIConnected unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to AIIConnected do not infringe or violate the rights of any third party. Unless Client has engaged AIIConnected for Co-Managed Cloud Backup or Disaster Recovery, Client will maintain adequate backup for all data and other items furnished to AIIConnected.
It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to AIIConnected’s products deployed at client site and AIIConnected disclaims all responsibility for any loss including data.
Client acknowledges that from time to time (a) AIIConnected may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for AIIConnected to meet Client’s requirements. In connection therewith, Client agrees to work in good faith with AIIConnected to effectuate such purchases or changes. In the event that AIIConnected is required to purchase any assets deployed at client site, including computer hardware and/or software, in connection with AIIConnected providing the services, all such assets will remain the sole property of AIIConnected unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to AIIConnected do not infringe or violate the rights of any third party. Unless Client has engaged AIIConnected for Co-Managed Cloud Backup or Disaster Recovery, Client will maintain adequate backup for all data and other items furnished to AIIConnected.
It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to AIIConnected’s products deployed at client site and AIIConnected disclaims all responsibility for any loss including data.
Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any data, information or
material submitted by Client to AIIConnected.
9.1. Software Installation or Replication. If AIIConnected is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. Client’s act of
providing any software to AIIConnected will be deemed Client’s affirmative acknowledgement to AIIConnected that Client has a valid license that permits AIIConnected to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client’s equipment for the installation of unlicensed software unless AIIConnected in a written statement of work (“SOW”) expressly agrees to conduct such monitoring. Client will indemnify and hold harmless AIIConnected against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Client providing infringing materials to AIIConnected or any Client breach of this Section.
9.2. Data Encryption. Unless otherwise set forth in the SOW and/or SLA personal data and non-public data shall be encrypted at rest (public or multi-tenant), and in transit (traversing public networks). The SOW and/or SLA will specify which party is responsible for encryption. If the SOW and/or SLA are silent then the Client is responsible for encryption.
AIIConnected retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Client acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
10.1. License Agreements.
(a) License. Subject to the terms of this Agreement, AIIConnected grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.
(b) Pre-Existing License Agreements. Any software product provided to Client by AIIConnected as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party,
will continue to be governed by the third party license agreement.
(c) EULA. Client hereby consents permission to AIIConnected to sign all EULA’s necessary for any software product installed on Client’s computer system.
10.2. Third-Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by AIIConnected. AIIConnected’s sole obligation is to act on behalf of Client to assist in the satisfaction of any such warranty
11.1 By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is in compliance, and will continue to comply during the term of this Agreement,
with all laws and regulations governing its possession and use of Client Data and its provision or use of the Services; and (c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
11.2 By Client. Client represents and warrants to AllConnected that: (a) it owns, or is a licensee of, having the right to sublicense, the Content and that Client has the right to grant AllConnected the rights that Client purports to grant in this Agreement; (b) AllConnected’s possession or use of the Content or Client Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or
other proprietary right of any third party; and (c) it will not use, nor will it allow any third parties under its control to use, the Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
11.3 By AllConnected. The Services shall be performed in a good, workmanlike, professional and conscientious manner by experienced and qualified employees of AllConnected according to the generally accepted standards of the industry to which the Services pertain. For any breach of the foregoing warranty, AIIConnected will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to AIIConnected specifying in reasonable detail such non-conformance. If AIIConnected concludes that conformance is impracticable, then AIIConnected will refund all fees paid by Client to AIIConnected hereunder, if any, allocable to such nonconforming Services.
11.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF ERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF ALLCONNECTED IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF ALLCONNECTED. CLIENT IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES. IN ADDITION, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH ALLCONNECTED CANNOT BE HELD LIABLE.
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, procedures set forth in Addendum A (“Network Security & Data Protection Policy”) attached hereto and incorporated herein by reference.
In no event, shall AIIConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut- down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
In no event, shall AIIConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Client’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wiretapping, bugging, video cameras or identification tags.
In no event, shall AIIConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut- down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under AIIConnected’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event.
16.1Limit on Types of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL (AND ALLCONNECTED’S SUPPLIERS AND LICENSORS WILL NOT) BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY CLAIMING THROUGH A PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT, ANY SOW, OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, STRICT LIABILITY AND NEGLIGENCE), EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (C) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOW FAILS OF ITS ESSENTIAL PURPOSE.
16.2 Limit on the Amount of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALLCONNECTED’S TOTAL CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY, AND NEGLIGENCE), SHALL BE LIMITED IN ALL CASES TO AN AMOUNT WHICH SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID BY CLIENT TO ALLCONNECTED DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE SOW.
16.3 Non-Managed Systems. AllConnected shall not be liable for any damages caused by services, systems, software, or other components that neither it nor its employees, agents or subcontractors furnish or manage pursuant to this Agreement.
16.4 Applicability. The terms in this Section 16 shall apply to the maximum extent permitted by applicable law. If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions
or capping its liability for certain acts or omissions, then the terms in this Section 16 shall apply to not limit liability for such acts and omissions, but will apply for all other acts and omissions.
16.5 Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 16 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CLIENT FOR THE SERVICES WOULD HAVE BEEN HIGHER.
Each Party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability, cyber liability, and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement. For the avoidance of doubt, each Party is solely responsible for insuring its personal property wherever located and each Party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite Party.
18.1 Indemnification by AllConnected. Subject to the terms and conditions in this Agreement, AllConnected will, atits cost, (i) defend Client and its officers, directors, shareholders, employees, agents, successors and assigns(collectively the “Client Indemnified Parties”) from and against any claim, suit, action, or proceeding (threatenedor otherwise) (each a “Claim”) made or brought by a third party against Client Indemnified Parties to the extentbased upon (a) any breach by AllConnected of any of it representations and warranties under Section 11.1; (b)real property damage or personal injury, including death, solely and directly caused by AllConnected’s employeesor contractors in the course of performance under this Agreement; (c) any breach by AllConnected of Section 4but only with respect to the Disclosure of Confidential Information and to the extent the Disclosure is the result ofactions predominantly attributable to AllConnected; and (d) and any allegation that Client’s receipt of the Servicesunder this Agreement infringes any of such third party’s copyrights, or any such third party’s patents issued in theUnited States as of the Effective Date, or misappropriates any of such third party’s trade secrets (each an “IPClaim”); and (ii) AllConnected shall pay any final award of damages (or settlement amount approved byAllConnected in writing and) paid to the third party that brought any such Claim.
18.2 Indemnification by Client. Client will indemnify, defend and hold harmless AllConnected and its officers,directors, shareholders, employees, agents, successors and assigns from any and all liabilities, damages, costsand expenses, including reasonable attorney’s fees and expenses, arising out of any claim, suit or proceeding(threatened or otherwise) made or brought by a third party against AllConnected or its officers, directors,shareholders, employees, agents, successors and assigns based upon (a) any breach by Client of any of itrepresentations and warranties under Section 11; (b) real property damage or personal injury, including death,directly caused by Client; (c) any breach by Client of Section 4 but only with respect to the Disclosure ofConfidential Information and to the extent the Disclosure is the result of actions predominantly attributable toClient; (d) any breach by Client of its obligations under Section 9.2 or Addendum A; (e) any breach by Client ofSection 28; and (f) any claim that AllConnected’s possession, storage, or transmission of the Content orpossession or use of the Client Components, infringes on, violates, or misappropriates any patent, copyright,trademark, service mark, trade secret or other intellectual property or proprietary rights of such third party.
18.3 Procedure. A Party (or other person) having a right to defense and indemnification under this Agreement(“Indemnified Party”) that desires such indemnification shall tender to the Party having an obligation to defendand indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claimfor which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly inwriting of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance todefend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its owncounsel and to participate in any manner in the defense against any claim for which indemnification is soughtunder this Section 18. The Indemnified Party shall cooperate in all reasonable respects with the IndemnifyingParty and its attorneys in the investigation, trial, and defense of any Claim. In no event shall either Party makeany settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admissionof liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the otherParty’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.
18.4 Mitigation for IP Claims. At any time after notice of an IP Claim, or if AllConnected believes there is a basis foran IP Claim, AllConnected has the right, at AllConnected’s sole option and expense, to either (a) procure the rightfor Client to continue receiving the Services as provided in this Agreement, or (b) replace or modify the applicableService with a service that has substantially similar functionality and that AllConnected believes would not besubject to the IP Claim. If AllConnected deems (a) or (b) not feasible or not commercially reasonable,AllConnected has the right to terminate the applicable SOW. In the event of any such termination, AllConnectedwill refund to Client the unused portion of any amounts paid by Client for the affected Service. In addition, uponany such termination, Client shall cease the use of the applicable Service.
18.5 Limitations as to IP Claims. Notwithstanding anything to the contrary, AllConnected shall have no obligationsor liability under Section 18.1 (Indemnification by AllConnected) if the IP Claim is based upon, arises out of, or isrelated to, in whole or in part, or if any of the following apply: (a) the combination of the applicable Service withany product, software, solution, or service not entirely developed and provided by AllConnected, (b) use of theapplicable Service outside the scope of the licenses or rights set forth in this Agreement or in violation of any lawor any restriction or limitation set forth in this Agreement, (c) Client’s failure to comply with AllConnected’s directionto cease any activity that in AllConnected’s reasonable judgment may result in an IP Claim, (d) any allegation bya third party that does not specifically reference a AllConnected Service, or that does not reference a feature offunction of a AllConnected Service, or (e) any IP Claim for which Client does not promptly tender control of thedefense thereof to AllConnected.
18.6 Sole Remedy. THE TERMS IN THIS SECTION 18 (INDEMNIFICATION) SHALL BE CLIENT’S SOLE ANDEXCLUSIVE REMEDY AND ALLCONNECTED’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITHRESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTYINTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 18(INDEMNIFICATION), ALLCONNECTED SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFYCLIENT FOR THIRD PARTY CLAIMS.
The express remedies set forth in this Agreement will constitute Client’s exclusive remedies, and AIIConnected’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly
AIIConnected shall not be responsible for impairments to the Services caused by acts within the control of Client or its employees, agents, contractors, suppliers or licensees, the interoperability of Client applications, or other cause
reasonably within Client’s control and not reasonably related to services provided under this Agreement.
No statement by any AIIConnected employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.
If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.
This Agreement may not be amended except by a writing executed by an authorized individual at AIIConnected.
The Parties are independent parties; and this Agreement does not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of California.
Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a
waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
With the exception of Client payment for service rendered, neither party shall be responsible for any failure to perform or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.
Client may not assign its rights or obligations under this Agreement without AIIConnected’s prior written consent which shall not be unreasonably withheld. AllConnected may assign this Agreement without the prior written consent of Client in connection with the acquisition of a AllConnected or the sale of all or substantially all of its assets. The rights and obligations contained herein shall inure to the benefit of each Party’s successors and permitted assigns and shall be binding on and enforceable against the relevant Party’s successors and permitted assigns. Any reference in this Agreement to any Party shall be construed accordingly.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Client’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by the Client’s hand.
Client agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Client shall be solely responsible for such compliance with respect to Client Data and the Content that it provides to AllConnected.
Each Party acknowledges that this Agreement has been the subject of active and complete negotiations, and that this Agreement should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person or party other than the Parties.
This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein and supersedes all prior and contemporaneous undertakings and agreement of the Parties, whether written or oral, with respect to such subject matter.
NETWORK SECURITY & DATA PROTECTION POLICY v2.1
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that, unless otherwise set forth in a separate SOW and/or SLA, it will follow software and hardware updates and maintain specific security standards, policies, procedures meeting or exceeding those set forth below:
If applicable Protected Health Information (PHI) is stored on client computer and information system:
TERMS SPECIFIC TO PRODUCT SALES ONLY
This Addendum B: Terms Specific to Product Sales Only (“Addendum B”) applies to any order for software, hardware, or Resold Services (“Products”) made by Client, for its own internal use and not for resale, pursuant to a quotation issued by AllConnected (“Quotation”). As used in this Addendum B, the term “Resold Services” refers to services, which although ordered from AllConnected, are procured from and supplied by a third party (i.e., AllConnected does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum B.
(a) Client acknowledges that AllConnected is reselling all Products purchased by Client and that Products are manufactured and/or delivered by a third party.
(b) To the extent available, AllConnected shall pass through to Client the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. In no event will AllConnected provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the applicable restocking fee(s).
(c) Client acknowledges that the terms and conditions governing the use of Products shall be solely between Client and the manufacturer of such Products.
ALLCONNECTED MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. ALLCONNECTED DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
This Addendum C: Terms Specific to Hosting Services Only (“Addendum C”) applies to any order services consisting of, but not limited to, network, storage and server devices, software programs, applications network management devices, and other items specified in a Statement of Work (“Hosting Services”). Any such orders shall be subject to the terms and conditions of this Addendum C.
1.1. “Hosted Data” is Client Data including all data and information about Client’s business(es), customers, employees, operations, facilities, products, markets, assets, or finances that AllConnected obtains, creates, generates, collects or processes in connection with its performance of Services and is stored in the Hosting Environment.
1.2. “Hosting Environment” means AllConnected’s application hosting environment for the delivery of Hosting Services.
2.1. Security Measures. AllConnected will maintain commercially reasonable security measures that are designed to (a) ensure the security of the Hosted Data stored by AllConnected in the Hosting Environment; (b) protect against any anticipated threats or hazards to the security or integrity of the Hosted Data stored by AllConnected in the Hosting Environment; and (c) protect against any unauthorized access to or use of the Hosted Data as stored by AllConnected in the Hosting Environment.
2.2. Notification and Prevention Obligations. Upon becoming aware, AllConnected shall promptly notify Client of any actual security breach in its Hosting Environment that may result in the unauthorized access to or disclosure of unencrypted Hosted Data. This notification will state in reasonable detail the Hosted Data at risk. AllConnected agrees to take all actions reasonably necessary under the circumstances to immediately prevent the continued unauthorized access of such information. AllConnected further agrees that in the event of a breach of confidentiality or security, it will work in good faith and cooperate with Client to address the breach. AllConnected shall not be responsible or liable for any security breach caused by Client.
2.3. Audits by AllConnected. AllConnected will conduct an annual Statement on Standards for Attestation Engagements, No. 16 (SSAE No. 16) or equivalent audit of its security measures. Upon Client’s written request, AllConnected shall provide a copy of its most recent audit report. The report is to be treated as Confidential Information under this Agreement whether or not marked or otherwise identified as “Confidential” and remains the property of AllConnected.
2.4. Audits by Client. Client shall have the right to review AllConnected’s security measures prior to the commencement of the Services and thereafter on an annual basis during the term of this Agreement. Such annual review may include an onsite audit, conducted by qualified personnel, of AllConnected’s data centers in order to inspect the Hosting Environment to verify AllConnected’s compliance with this Agreement. The dates of any onsite audit shall be mutually agreed upon by the Parties. Client shall be responsible for the entire cost of any onsite audit or AllConnected preparation of Client’s security questionaire. AllConnected may charge Client on a time-and-materials basis at the then-current standard time and materials rate for Client audits and requests for information based on the length and detail of the audit/information requested. No such audit may include activities that might result in “downtime” or unavailability for the Hosting Environment. Any “downtime” or unavailability as a result of any audit by Client shall not count as downtime for purposes of any SOW and shall not be a breach of this Agreement or any SOW by AllConnected.
3.1. Acceptable Use. Client is responsible for all acts and omissions of its Users in connection with receipt or use of the Services. Client agrees, and will ensure its Users agree, to act responsibly and not use the AllConnected Hosting Services for any illegal or unauthorized purpose including, but not limited to, hacking, phishing, spamming, identity theft, financial fraud, e-mail spoofing, virus distribution, network attacks, pirating software, harassment, using copyrighted text, sharing illegal software, and unauthorized use of images. AllConnected has the right to investigate potential violations of this Section. If AllConnected determines that a breach has occurred, then AllConnected may, in its sole discretion: (a) restrict Client’s and Users’ access to the Hosting Services; (b) remove or require removal of any offending Content; (c) terminate this Agreement for cause; and/or (d) exercise other rights and remedies, at law or in equity. Except in an emergency or as may otherwise be required by law, before undertaking the actions in this Section, AllConnected will attempt to notify Client by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Client will promptly notify AllConnected of any event or circumstance related to this Agreement, Client’s or any User’s use of the Hosting Services, or Content of which Client becomes aware, that could lead to a claim or demand against AllConnected, and Client will provide all relevant information relating to such event or circumstance to AllConnected at AllConnected’s request. AllConnected agrees to allow Client complete and unrestricted access at all times to Client’s software applications, devices, equipment, hardware, and all Services-related license files so that Client can audit its Users’ compliance with the terms of this Agreement. Client agrees to indemnify, to the fullest extent permitted by law, AllConnected from and against any damages, costs, expenses, fines, penalties, and reasonable attorney fees that may arise as a result of Client’s breach of this Section.
3.2. Access. Client agrees not to access the Hosting Environment by any means other than through the interface that is provided by AllConnected for use in accessing the Hosting Environment.
3.3. Capacity Planning. Client is solely responsible for determining whether the services, Hosting Environment, and related Content meet Client’s capacity, performance, or scalability needs. Client is responsible for planning for and requesting changes to the Hosting Environment and services, including any additional capacity required to support anticipated peaks in demand that may significantly increase website hits, transaction volumes, or otherwise increase system resource utilization.
To request a fully executed MSA with AllConnected, please complete the form below. This information will be securely routed to our accounting department and digitally executable Master Services Agreement will be delivered to you through Adobe Sign within 48 hours.
MASTER SERVICE AGREEMENT v1.25
AllConnected – Master Service Agreement v 1.25 is made this _____________ (“Effective Date”) by and between AllConnected, Inc. (“Master Service Provider”, “MSP” or AllConnected), 4514 Ish Drive, Simi Valley, CA 93063 and CUSTOMER NAME AND ADDRESS (“Client”).
This Agreement serves as a master agreement and applies to Client’s purchases from AllConnected, of product including hardware, support and maintenance services, licenses for software & hardware, and/or subscription services, (“Product”) and of services including but not limited to Support Connect, Recovery Solutions, Disaster Recovery, Cloud Backup and IT Infrastructure Services (“Services”). Client hereby engages and retains AllConnected to render Services as more particularly set forth in Addendum B and/or subsequent addendums (the “Statement of Work”) attached hereto and incorporated herein by reference. No Product or Services will be provided under this Agreement alone, but may require the execution of a written or electronic purchase order form, or other mutually acceptable order documentation, which contains terms relating to this Agreement, each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all purposes. Each subsequent Addendum or Statement of Work incorporate all the provisions within this Agreement. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Purchase Order and Statement of Work and those of this Agreement, the terms of the Purchase Order or Statement of Work will prevail over this Agreement.
This Agreement will begin on the Effective Date and will continue until each Order and/or SOW expires, is completed, or is terminated. AllConnected may: (a) terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from AllConnected of non-payment; and/or (b) terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from AllConnected. If an Order for Services is terminated, Client will promptly pay AllConnected for Services rendered, and expenses incurred through the termination date.
Client acknowledges that initial onboarding fees only partially cover the total cost of onboarding a new customer for a 36-month term. In the event of early termination, for any reason, an early termination fee up to 50% of the remaining months revenue may be assessed.
Client may (a) terminate this Agreement or an Order if AllConnected commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from Client; and/or (b) terminate for any reason with ninety (90) days written notice to AllConnected. If applicable, early termination fees will be defined in each Order and/or SOW.
2.1 Termination of Cloud Service by AllConnected. (a) FOR CAUSE. AllConnected may immediately (and without prior notice) suspend or terminate all or part of the Cloud Services by sending Client a written notice of termination if one or more of the following occurs: (i) AllConnected discovers that you provided us with false information when you registered for Cloud Services; (ii) AllConnected determines, in our sole discretion, that your use of the Cloud Services poses a threat to the security or performance of our network or to any of our clients or suppliers; (iii) we determine, in our sole discretion, that your use of the Cloud Services is illegal, or that it misappropriates or infringes the property rights of a third party; (iv) you become the subject of an involuntary or voluntary bankruptcy or similar proceeding, or you assign all or substantially all of your assets for the benefit of creditors; (v) you fail to make any payment when due or if your credit card is declined; or (vi) you use cloud resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”).
2.2 Termination of Cloud Service by Client. You may terminate your Cloud Service at any time and for any reason (or no reason at all) with thirty (30) days written notice to AllConnected. However, all Cloud services are contracted in twelve-month increments and Client will be responsible to pay for any remaining months remaining in the twelve-month increment.
If you do not renew your Cloud Service, terminate your Cloud Service or if AllConnected terminates your Cloud Service, unless sent to you in writing stating otherwise, our current policy is to keep your data for up to 30 days after the expiration or termination of your service, allowing you time to change your mind. After 30 days, we remove the backed up data associated with your Cloud Service and it will no longer be available for restore.
Client will pay AllConnected all fees due upon receipt of an invoice specifying the amounts due (“Fees“). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of AllConnected). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month from the date due until paid in full. In the event of litigation, or arbitration, the non-prevailing party shall pay all expenses, including reasonable attorneys’ fees, incurred by prevailing party or its representatives in enforcing its rights under this Agreement. Client’s obligation to pay undisputed amounts due for Services and AllConnected’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Fees will be detailed in an Order. All such Fees, including any potential overage fee, will be agreed upon by both parties prior to the service being provided by AllConnected. Unless otherwise stated in a Purchase Order, Client agrees to pay or reimburse AllConnected for all actual, necessary, and reasonable expenses incurred by AllConnected in performance of such Purchase Order, which are capable of verification by receipt. AllConnected will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Purchase Order or Statement of Work.
Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential. Confidential Information is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential and is clearly identified as confidential. The Parties shall keep all Confidential Information in strict confidence.
The recipient will use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; only use Confidential Information to perform its obligations and exercise its rights under this Agreement; not disclose Confidential Information to any third party; when requested by the disclosing Party, return or destroy the Confidential Information.
In the event Client directly or indirectly employs any AllConnected consultant(s) or engineer(s) who provided service to Client, whether on-site or remotely, Client agrees to pay AllConnected a recruitment and training fee of 50% of the total annual salary or $50,000, whichever is greater.
Client agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of AllConnected performing the services. Client will also provide AllConnected with access to all information, passwords and facilities requested by AllConnected that is necessary for AllConnected to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that the AllConnected may be unable to perform their duties adequately and if such a situation should exist, the AllConnected will be held harmless.
Client shall provide a suitable working environment for any Equipment located at Client’s facility. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Client shall bear the risk of loss of any Equipment located at Client’s facility.
Client acknowledges that from time to time (a) AllConnected may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for AllConnected to meet Client’s requirements. In connection therewith, Client agrees to work in good faith with AllConnected to effectuate such purchases or changes. In the event that AllConnected is required to purchase any assets deployed at client site, including computer hardware and/or software, in connection with AllConnected providing the services, all such assets will remain the sole property of AllConnected unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to AllConnected do not infringe or violate the rights of any third party. Unless Client has engaged AllConnected for Co-Managed Cloud Backup or Disaster Recovery, Client will maintain adequate backup for all data and other items furnished to AllConnected.
It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to AllConnected’s products deployed at client site and AllConnected disclaims all responsibility for any loss including data.
Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any data, information or material submitted by Client to AllConnected.
AllConnected retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Client acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
10.1 Client may only use and disclose Product in accordance with the terms of this Agreement and applicable Order. AllConnected reserves all rights in and to the Product not expressly granted in this Agreement. Client may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without AllConnected’s prior written approval. Except as expressly authorized in this Agreement or an Order, Client may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or AllConnected business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
10.2 License Agreements.
(a) License. Subject to the terms of this Agreement, AllConnected grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.
(b) Pre-Existing License Agreements. Any software product provided to Client by AllConnected as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party, will continue to be governed by the third party license agreement.
(c) EULA. Client hereby consents permission to AllConnected to sign all EULA’s necessary for any software product installed on Client’s computer system.
10.3 Third-Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by AllConnected. AllConnected’s sole obligation is to act on behalf of Client to assist in the satisfaction of any such warranty.
AllConnected warrants that it will perform the Services substantially in accordance with the specifications set forth whether under this Agreement, a purchase order, other work order, SOW or otherwise in connection with any of them. For any breach of the foregoing warranty, AllConnected will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to AllConnected specifying in reasonable detail such non-conformance. If AllConnected concludes that conformance is impracticable, then AllConnected will refund all fees paid by Client to AllConnected hereunder, if any, allocable to such nonconforming Services.
Notwithstanding the above, AllConnected does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. AllConnected does not guarantee or promise any cost savings, profits, or returns on investment.
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, procedures set forth in Addendum A (“Network Security & Data Protection Policy”) attached hereto and incorporated herein by reference.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Client’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wiretapping, bugging, video cameras or identification tags.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under AllConnected’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event.
EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ALLCONNECTED BE LIABLE TO CLIENT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE OR FOR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT WITH RESPECT TO INDEMNITIES ARISING OUT OF IP CLAIMS OR AS SPECIFICALLY STATED IN OUR RECOVERY SERVICES ADDENDUM, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WHEN SUCH DAMAGES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY, ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS. EXCEPT FOR LIABILITY OF THE PARTIES UNDER THE CONFIDENTIALITY AND NON-DISCLOSURE SECTIONS OF THIS AGREEMENT ALLCONNECTED SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID TO PROVIDER BY CLIENT DURING THE THEN PRIOR TWELVE MONTHS FOR THE PRODUCTS AND OR SOFTWARE SUPPLIED AND THE SERVICES PROVIDED HEREUNDER.
AllConnected agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, AllConnected will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
Subject to the limitations set forth elsewhere in this Agreement, each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party and its subsidiaries, affiliates, officers and employees (collectively, the “Indemnified Party”) from and against any and all costs, expenses, liabilities, losses and damages (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, demand or proceeding (each, an “Action”) brought by any third party against the Indemnified Party arising from: (i) a Default by the Indemnifying Party, (ii) the intentional misconduct of the Indemnifying Party or its employees, contractors, consultants or agents, or (iii) any failure by the Indemnifying Party or its employees, contractors, consultants or agents to comply with applicable laws and regulations.
The express remedies set forth in this Agreement will constitute Client’s exclusive remedies, and AllConnected’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
AllConnected shall not be responsible for impairments to the Services caused by acts within the control of Client or its employees, agents, contractors, suppliers or licensees, the interoperability of Client applications, or other cause reasonably within Client’s control and not reasonably related to services provided under this Agreement.
EXCEPT FOR THE WARRANTIES MADE BY ALLCONNECTED IN SECTION 11, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” ALLCONNECTED DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
ALLCONNECTED DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any AllConnected employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.
If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.
This Agreement may not be amended except by a writing executed by an authorized individual at AllConnected.
The Parties are independent parties; and this Agreement does not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of California.
Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
With the exception of Client payment for service rendered, neither party shall be responsible for any failure to perform or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.
Client may not assign its rights or obligations under this Agreement without AllConnected’s prior written consent which shall not be unreasonably withheld.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Client’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by the Client’s hand.
This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous undertakings and agreement of the Parties, whether written or oral, with respect to such subject matter.
NETWORK SECURITY & DATA PROTECTION POLICY v1.24
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that, unless otherwise set forth in a separate SOW and/or SLA, it will follow software and hardware updates and maintain specific security standards, policies, procedures meeting or exceeding those set forth below:
If applicable Protected Health Information (PHI) is stored on client computer and information system:
* “Industry-Accepted” Means Accepted by the Cryptographic Community.
MASTER SERVICE AGREEMENT v1.24
AllConnected – Master Service Agreement v1.24 is made this _____________ (“Effective Date”) by and between AllConnected, Inc. (“Master Service Provider”, “MSP” or AllConnected), 4514 Ish Drive, Simi Valley, CA 93063 and CUSTOMER NAME AND ADDRESS (“Client”).
This Agreement serves as a master agreement and applies to Client’s purchases from AllConnected, of product including hardware, support and maintenance services, licenses for software & hardware, and/or subscription services, (“Product”) and of services including but not limited to Support Connect, Recovery Solutions, Disaster Recovery, Cloud Backup and IT Infrastructure Services (“Services”). Client hereby engages and retains AllConnected to render Services as more particularly set forth in Addendum B and/or subsequent addendums (the “Statement of Work”) attached hereto and incorporated herein by reference. No Product or Services will be provided under this Agreement alone, but may require the execution of a written or electronic purchase order form, or other mutually acceptable order documentation, which contains terms relating to this Agreement, each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all purposes. Each subsequent Addendum or Statement of Work incorporate all the provisions within this Agreement. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Purchase Order and Statement of Work and those of this Agreement, the terms of the Purchase Order or Statement of Work will prevail over this Agreement.
This Agreement will begin on the Effective Date and will continue until each Order and/or SOW expires, is completed, or is terminated. AllConnected may: (a) terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from AllConnected of non-payment; and/or (b) terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from AllConnected. If an Order for Services is terminated, Client will promptly pay AllConnected for Services rendered, and expenses incurred through the termination date.
Client may (a) terminate this Agreement or an Order if AllConnected commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from Client; and/or (b) terminate for any reason with ninety (90) days written notice to AllConnected. If applicable, early termination fees will be defined in each Order and/or SOW.
2.1 Termination of Cloud Service by AllConnected. (a) FOR CAUSE. AllConnected may immediately (and without prior notice) suspend or terminate all or part of the Cloud Services by sending Client a written notice of termination if one or more of the following occurs: (i) AllConnected discovers that you provided us with false information when you registered for Cloud Services; (ii) AllConnected determines, in our sole discretion, that your use of the Cloud Services poses a threat to the security or performance of our network or to any of our clients or suppliers; (iii) we determine, in our sole discretion, that your use of the Cloud Services is illegal, or that it misappropriates or infringes the property rights of a third party; (iv) you become the subject of an involuntary or voluntary bankruptcy or similar proceeding, or you assign all or substantially all of your assets for the benefit of creditors; (v) you fail to make any payment when due or if your credit card is declined; or (vi) you use cloud resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”).
2.2 Termination of Cloud Service by Client. You may terminate your Cloud Service at any time and for any reason (or no reason at all) with thirty (30) days written notice to AllConnected. However, all Cloud services are contracted in twelve-month increments and Client will be responsible to pay for any remaining months remaining in the twelve-month increment.
If you do not renew your Cloud Service, terminate your Cloud Service or if AllConnected terminates your Cloud Service, unless sent to you in writing stating otherwise, our current policy is to keep your data for up to 30 days after the expiration or termination of your service, allowing you time to change your mind. After 30 days, we remove the backed up data associated with your Cloud Service and it will no longer be available for restore.
Client will pay AllConnected all fees due upon receipt of an invoice specifying the amounts due (“Fees“). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of AllConnected). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month from the date due until paid in full. In the event of litigation, or arbitration, the non-prevailing party shall pay all expenses, including reasonable attorneys’ fees, incurred by prevailing party or its representatives in enforcing its rights under this Agreement. Client’s obligation to pay undisputed amounts due for Services and AllConnected’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Fees will be detailed in an Order. All such Fees, including any potential overage fee, will be agreed upon by both parties prior to the service being provided by AllConnected. Unless otherwise stated in a Purchase Order, Client agrees to pay or reimburse AllConnected for all actual, necessary, and reasonable expenses incurred by AllConnected in performance of such Purchase Order, which are capable of verification by receipt. AllConnected will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Purchase Order or Statement of Work.
Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential. Confidential Information is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential and is clearly identified as confidential. The Parties shall keep all Confidential Information in strict confidence.
The recipient will use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; only use Confidential Information to perform its obligations and exercise its rights under this Agreement; not disclose Confidential Information to any third party; when requested by the disclosing Party, return or destroy the Confidential Information.
In the event Client directly or indirectly employs any AllConnected consultant(s) or engineer(s) who provided service to Client, whether on-site or remotely, Client agrees to pay AllConnected a recruitment and training fee of 50% of the total annual salary or $50,000, whichever is greater.
Client agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of AllConnected performing the services. Client will also provide AllConnected with access to all information, passwords and facilities requested by AllConnected that is necessary for AllConnected to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that the AllConnected may be unable to perform their duties adequately and if such a situation should exist, the AllConnected will be held harmless.
Client shall provide a suitable working environment for any Equipment located at Client’s facility. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Client shall bear the risk of loss of any Equipment located at Client’s facility.
Client acknowledges that from time to time (a) AllConnected may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for AllConnected to meet Client’s requirements. In connection therewith, Client agrees to work in good faith with AllConnected to effectuate such purchases or changes. In the event that AllConnected is required to purchase any assets deployed at client site, including computer hardware and/or software, in connection with AllConnected providing the services, all such assets will remain the sole property of AllConnected unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to AllConnected do not infringe or violate the rights of any third party. Unless Client has engaged AllConnected for Co-Managed Cloud Backup or Disaster Recovery, Client will maintain adequate backup for all data and other items furnished to AllConnected.
It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to AllConnected’s products deployed at client site and AllConnected disclaims all responsibility for any loss including data.
Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any data, information or material submitted by Client to AllConnected.
AllConnected retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Client acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
10.1 Client may only use and disclose Product in accordance with the terms of this Agreement and applicable Order. AllConnected reserves all rights in and to the Product not expressly granted in this Agreement. Client may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without AllConnected’s prior written approval. Except as expressly authorized in this Agreement or an Order, Client may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or AllConnected business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
10.2 License Agreements.
(a) License. Subject to the terms of this Agreement, AllConnected grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.
(b) Pre-Existing License Agreements. Any software product provided to Client by AllConnected as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party, will continue to be governed by the third party license agreement.
(c) EULA. Client hereby consents permission to AllConnected to sign all EULA’s necessary for any software product installed on Client’s computer system.
10.3 Third-Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by AllConnected. AllConnected’s sole obligation is to act on behalf of Client to assist in the satisfaction of any such warranty.
AllConnected warrants that it will perform the Services substantially in accordance with the specifications set forth whether under this Agreement, a purchase order, other work order, SOW or otherwise in connection with any of them. For any breach of the foregoing warranty, AllConnected will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to AllConnected specifying in reasonable detail such non-conformance. If AllConnected concludes that conformance is impracticable, then AllConnected will refund all fees paid by Client to AllConnected hereunder, if any, allocable to such nonconforming Services.
Notwithstanding the above, AllConnected does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. AllConnected does not guarantee or promise any cost savings, profits, or returns on investment.
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, procedures set forth in Addendum A (“Network Security & Data Protection Policy”) attached hereto and incorporated herein by reference.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Client’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wiretapping, bugging, video cameras or identification tags.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under AllConnected’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event.
EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ALLCONNECTED BE LIABLE TO CLIENT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE OR FOR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT WITH RESPECT TO INDEMNITIES ARISING OUT OF IP CLAIMS OR AS SPECIFICALLY STATED IN OUR RECOVERY SERVICES ADDENDUM, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WHEN SUCH DAMAGES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY, ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS. EXCEPT FOR LIABILITY OF THE PARTIES UNDER THE CONFIDENTIALITY AND NON-DISCLOSURE SECTIONS OF THIS AGREEMENT ALLCONNECTED SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID TO PROVIDER BY CLIENT DURING THE THEN PRIOR TWELVE MONTHS FOR THE PRODUCTS AND OR SOFTWARE SUPPLIED AND THE SERVICES PROVIDED HEREUNDER.
AllConnected agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, AllConnected will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
Subject to the limitations set forth elsewhere in this Agreement, each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party and its subsidiaries, affiliates, officers and employees (collectively, the “Indemnified Party”) from and against any and all costs, expenses, liabilities, losses and damages (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, demand or proceeding (each, an “Action”) brought by any third party against the Indemnified Party arising from: (i) a Default by the Indemnifying Party, (ii) the intentional misconduct of the Indemnifying Party or its employees, contractors, consultants or agents, or (iii) any failure by the Indemnifying Party or its employees, contractors, consultants or agents to comply with applicable laws and regulations.
The express remedies set forth in this Agreement will constitute Client’s exclusive remedies, and AllConnected’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
AllConnected shall not be responsible for impairments to the Services caused by acts within the control of Client or its employees, agents, contractors, suppliers or licensees, the interoperability of Client applications, or other cause reasonably within Client’s control and not reasonably related to services provided under this Agreement.
EXCEPT FOR THE WARRANTIES MADE BY ALLCONNECTED IN SECTION 11, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” ALLCONNECTED DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
ALLCONNECTED DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any AllConnected employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.
If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.
This Agreement may not be amended except by a writing executed by an authorized individual at AllConnected.
The Parties are independent parties; and this Agreement does not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of California.
Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
With the exception of Client payment for service rendered, neither party shall be responsible for any failure to perform or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.
Client may not assign its rights or obligations under this Agreement without AllConnected’s prior written consent which shall not be unreasonably withheld.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Client’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by the Client’s hand.
This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous undertakings and agreement of the Parties, whether written or oral, with respect to such subject matter.
NETWORK SECURITY & DATA PROTECTION POLICY v1.24
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that, unless otherwise set forth in a separate SOW and/or SLA, it will follow software and hardware updates and maintain specific security standards, policies, procedures meeting or exceeding those set forth below:
If applicable Protected Health Information (PHI) is stored on client computer and information system:
* “Industry-Accepted” Means Accepted by the Cryptographic Community.
MASTER SERVICE AGREEMENT v1.23
THIS MASTER SERVICE AGREEMENT v1.23 (“Agreement”) is made by and between AllConnected, Inc. (“Managed Services Provider”, “MSP” or AllConnected), 4514 Ish Drive, Simi Valley, CA 93063 and CLIENT (“Client”).
This Agreement serves as a master agreement and applies to Client’s purchases from AllConnected, of product including hardware, support and maintenance services, licenses for software & hardware, and/or subscription services, (“Product”) and of services including but not limited to Support Connect, Recovery Solutions, Disaster Recovery, Cloud Backup and IT Infrastructure Services (“Services”). Client hereby engages and retains AllConnected to render Services as more particularly set forth in Addendum B and/or subsequent addendums (the “Statement of Work”) attached hereto and incorporated herein by reference. No Product or Services will be provided under this Agreement alone, but may require the execution of a written or electronic purchase order form, or other mutually acceptable order documentation, which contains terms relating to this Agreement, each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all purposes. Each subsequent Addendum or Statement of Work incorporate all the provisions within this Agreement. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Purchase Order and Statement of Work and those of this Agreement, the terms of the Purchase Order or Statement of Work will prevail over this Agreement.
This Agreement will begin on the Effective Date and will continue until each Order and/or SOW expires, is completed, or is terminated. AllConnected may: (a) terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from AllConnected of non-payment; and/or (b) terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from AllConnected. If an Order for Services is terminated, Client will promptly pay AllConnected for Services rendered, and expenses incurred through the termination date.
Client may (a) terminate this Agreement or an Order if AllConnected commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from Client; and/or (b) terminate for any reason with ninety (90) days written notice to AllConnected. If applicable, early termination fees will be defined in each Order and/or SOW.
2.1 Termination of Cloud Service by AllConnected
(a) FOR CAUSE. AllConnected may immediately (and without prior notice) suspend or terminate all or part of the Cloud Services by sending Client a written notice of termination if one or more of the following occurs: (i) AllConnected discovers that you provided us with false information when you registered for Cloud Services; (ii) AllConnected determines, in our sole discretion, that your use of the Cloud Services poses a threat to the security or performance of our network or to any of our clients or suppliers; (iii) we determine, in our sole discretion, that your use of the Cloud Services is illegal, or that it misappropriates or infringes the property rights of a third party; (iv) you become the subject of an involuntary or voluntary bankruptcy or similar proceeding, or you assign all or substantially all of your assets for the benefit of creditors; (v) you fail to make any payment when due or if your credit card is declined; or (vi) you use cloud resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”).
2.2 Termination of Cloud Service by Client
You may terminate your Cloud Service at any time and for any reason (or no reason at all) with thirty (30) days written notice to AllConnected. However, all Cloud services are contracted in twelve-month increments and Client will be responsible to pay for any remaining months remaining in the twelve-month increment.
If you do not renew your Cloud Service, terminate your Cloud Service or if AllConnected terminates your Cloud Service, unless sent to you in writing stating otherwise, our current policy is to keep your data for up to 30 days after the expiration or termination of your service, allowing you time to change your mind. After 30 days, we remove the backed up data associated with your Cloud Service and it will no longer be available for restore.
Client will pay AllConnected all fees due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of AllConnected). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month from the date due until paid in full. In the event of litigation, or arbitration, the non-prevailing party shall pay all expenses, including reasonable attorneys’ fees, incurred by prevailing party or its representatives in enforcing its rights under this Agreement. Client’s obligation to pay undisputed amounts due for Services and AllConnected’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Fees will be detailed in an Order. All such Fees, including any potential overage fee, will be agreed upon by both parties prior to the service being provided by AllConnected. Unless otherwise stated in a Purchase Order, Client agrees to pay or reimburse AllConnected for all actual, necessary, and reasonable expenses incurred by AllConnected in performance of such Purchase Order, which are capable of verification by receipt. AllConnected will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Purchase Order or Statement of Work.
Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential. Confidential Information is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential and is clearly identified as confidential. The Parties shall keep all Confidential Information in strict confidence.
The recipient will use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; only use Confidential Information to perform its obligations and exercise its rights under this Agreement; not disclose Confidential Information to any third party; when requested by the disclosing Party, return or destroy the Confidential Information.
In the event Client directly or indirectly employs any AllConnected consultant(s) or engineer(s) who provided service to Client, whether on-site or remotely, Client agrees to pay AllConnected a recruitment and training fee of 50% of the total annual salary or $50,000, whichever is greater.
Client agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of AllConnected performing the services. Client will also provide AllConnected with access to all information, passwords and facilities requested by AllConnected that is necessary for AllConnected to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that the AllConnected may be unable to perform their duties adequately and if such a situation should exist, the AllConnected will be held harmless.
Client shall provide a suitable working environment for any Equipment located at Client’s facility. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Client shall bear the risk of loss of any Equipment located at Client’s facility.
Client acknowledges that from time to time (a) AllConnected may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for AllConnected to meet Client’s requirements. In connection therewith, Client agrees to work in good faith with AllConnected to effectuate such purchases or changes. In the event that AllConnected is required to purchase any assets deployed at client site, including computer hardware and/or software, in connection with AllConnected providing the services, all such assets will remain the sole property of AllConnected unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to AllConnected do not infringe or violate the rights of any third party. Unless Client has engaged AllConnected for Co-Managed Cloud Backup or Disaster Recovery, Client will maintain adequate backup for all data and other items furnished to AllConnected.
It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to AllConnected’s products deployed at client site and AllConnected disclaims all responsibility for any loss including data.
Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any data, information or material submitted by Client to AllConnected.
9.1 Software Installation or Replication
If AllConnected is required to install or replicate Client software as part of the Services, Client will independently verify that all such software is properly licensed. Client’s act of providing any software to AllConnected will be deemed Client’s affirmative acknowledgement to AllConnected that Client has a valid license that permits AllConnected to perform the Services related thereto. In addition, Client will retain the duty and obligation to monitor Client’s equipment for the installation of unlicensed software unless AllConnected in a written statement of work (“SOW”) expressly agrees to conduct such monitoring. Client will indemnify and hold harmless AllConnected against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Client providing infringing materials to AllConnected or any Client breach of this Section.
9.2 Data Encryption
Unless otherwise set forth in the SOW and/or SLA personal data and non-public data shall be encrypted at rest (public or multi-tenant), and in transit (traversing public networks). The SOW and/or SLA will specify which party is responsible for encryption. If the SOW and/or SLA are silent then the Client is responsible for encryption.
AllConnected retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Client acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
10.1
Client may only use and disclose Product in accordance with the terms of this Agreement and applicable Order. AllConnected reserves all rights in and to the Product not expressly granted in this Agreement. Client may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without AllConnected’s prior written approval. Except as expressly authorized in this Agreement or an Order, Client may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or AllConnected business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
10.2 License Agreements
10.3. Third-Party Products
Product warranties for third party products, if any, are provided by the manufacturers thereof and not by AllConnected. AllConnected’s sole obligation is to act on behalf of Client to assist in the satisfaction of any such warranty.
AllConnected warrants that it will perform the Services substantially in accordance with the specifications set forth whether under this Agreement, a purchase order, other work order, SOW or otherwise in connection with any of them. For any breach of the foregoing warranty, AllConnected will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to AllConnected specifying in reasonable detail such non-conformance. If AllConnected concludes that conformance is impracticable, then AllConnected will refund all fees paid by Client to AllConnected hereunder, if any, allocable to such nonconforming Services.
Notwithstanding the above, AllConnected does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. AllConnected does not guarantee or promise any cost savings, profits, or returns on investment.
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, procedures set forth in Addendum A (“Network Security & Data Protection Policy”) attached hereto and incorporated herein by reference.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Client’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wiretapping, bugging, video cameras or identification tags.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under AllConnected’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event.
AllConnected agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, AllConnected will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
Subject to the limitations set forth elsewhere in this Agreement, each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party and its subsidiaries, affiliates, officers and employees (collectively, the “Indemnified Party”) from and against any and all costs, expenses, liabilities, losses and damages (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, demand or proceeding (each, an “Action”) brought by any third party against the Indemnified Party arising from: (i) a Default by the Indemnifying Party, (ii) the intentional misconduct of the Indemnifying Party or its employees, contractors, consultants or agents, or (iii) any failure by the Indemnifying Party or its employees, contractors, consultants or agents to comply with applicable laws and regulations.
The express remedies set forth in this agreement will constitute client’s exclusive remedies, and AllConnected’s sole obligation and liability, for any claim (A) That a service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (B) That the services were performed improperly.
AllConnected shall not be responsible for impairments to the services caused by acts within the control of client or its employees, agents, contractors, suppliers or licensees, the interoperability of client applications, or other cause reasonably within client’s control and not reasonably related to services provided under this agreement.
Except for the warranties made by AllConnected in section 11, which are limited warranties and the only warranties provided to client, the services and deliverables are provided strictly “as-is.” AllConnected does not make any additional warranties, expressed, implied, arising from course of dealing or usage of trade, or statutory, as to the deliverables or services provided hereunder, or any matter whatsoever. The parties disclaim all warranties of merchantability, fitness for a particular purpose, satisfactory quality, title and non-infringement.
AllConnected does not warrant that the services or any deliverables will meet any client requirements not set forth herein, that any deliverables will operate in the combinations that client may select for use, that the operation of any deliverables will be uninterrupted or error-free, or that all errors will be corrected. If pre-production (e.g., “alpha” or “beta”) Releases of software are provided to client, such copies are provided “as-is” without warranty of any kind.
No statement by any AllConnected employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this agreement in any way whatsoever.
If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.
This Agreement may not be amended except by a writing executed by an authorized individual at AllConnected.
The Parties are independent parties; and this Agreement does not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of California.
Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
With the exception of Client payment for service rendered, neither party shall be responsible for any failure to perform or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.
Client may not assign its rights or obligations under this Agreement without AllConnected’s prior written consent which shall not be unreasonably withheld.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Client’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by the Client’s hand.
This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous undertakings and agreement of the Parties, whether written or oral, with respect to such subject matter.
AllConnected – Master Service Agreement v 1.25 is made this _____________ (“Effective Date”) by and between AllConnected, Inc. (“Master Service Provider”, “MSP” or AllConnected), 4514 Ish Drive, Simi Valley, CA 93063 and CUSTOMER NAME AND ADDRESS (“Client”).
This Agreement serves as a master agreement and applies to Client’s purchases from AllConnected, of product including hardware, support and maintenance services, licenses for software & hardware, and/or subscription services, (“Product”) and of services including but not limited to Support Connect, Recovery Solutions, Disaster Recovery, Cloud Backup and IT Infrastructure Services (“Services”). Client hereby engages and retains AllConnected to render Services as more particularly set forth in Addendum B and/or subsequent addendums (the “Statement of Work”) attached hereto and incorporated herein by reference. No Product or Services will be provided under this Agreement alone, but may require the execution of a written or electronic purchase order form, or other mutually acceptable order documentation, which contains terms relating to this Agreement, each of which must be executed by both parties and, upon such execution, is deemed incorporated in this Agreement for all purposes. Each subsequent Addendum or Statement of Work incorporate all the provisions within this Agreement. The parties hereby further agree that the parties may execute multiple Orders and Statements of Work under this Agreement. In the event of any conflict between the terms of the Purchase Order and Statement of Work and those of this Agreement, the terms of the Purchase Order or Statement of Work will prevail over this Agreement.
This Agreement will begin on the Effective Date and will continue until each Order and/or SOW expires, is completed, or is terminated. AllConnected may: (a) terminate a specific Order if Client fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from AllConnected of non-payment; and/or (b) terminate this Agreement or an Order if Client commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from AllConnected. If an Order for Services is terminated, Client will promptly pay AllConnected for Services rendered, and expenses incurred through the termination date.
Client acknowledges that initial onboarding fees only partially cover the total cost of onboarding a new customer for a 36-month term. In the event of early termination, for any reason, an early termination fee up to 50% of the remaining months revenue may be assessed.
Client may (a) terminate this Agreement or an Order if AllConnected commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from Client; and/or (b) terminate for any reason with ninety (90) days written notice to AllConnected. If applicable, early termination fees will be defined in each Order and/or SOW.
2.1 Termination of Cloud Service by AllConnected. (a) FOR CAUSE. AllConnected may immediately (and without prior notice) suspend or terminate all or part of the Cloud Services by sending Client a written notice of termination if one or more of the following occurs: (i) AllConnected discovers that you provided us with false information when you registered for Cloud Services; (ii) AllConnected determines, in our sole discretion, that your use of the Cloud Services poses a threat to the security or performance of our network or to any of our clients or suppliers; (iii) we determine, in our sole discretion, that your use of the Cloud Services is illegal, or that it misappropriates or infringes the property rights of a third party; (iv) you become the subject of an involuntary or voluntary bankruptcy or similar proceeding, or you assign all or substantially all of your assets for the benefit of creditors; (v) you fail to make any payment when due or if your credit card is declined; or (vi) you use cloud resources in an attempt to gain unauthorized access to computer systems (i.e., “hacking”).
2.2 Termination of Cloud Service by Client. You may terminate your Cloud Service at any time and for any reason (or no reason at all) with thirty (30) days written notice to AllConnected. However, all Cloud services are contracted in twelve-month increments and Client will be responsible to pay for any remaining months remaining in the twelve-month increment.
If you do not renew your Cloud Service, terminate your Cloud Service or if AllConnected terminates your Cloud Service, unless sent to you in writing stating otherwise, our current policy is to keep your data for up to 30 days after the expiration or termination of your service, allowing you time to change your mind. After 30 days, we remove the backed up data associated with your Cloud Service and it will no longer be available for restore.
Client will pay AllConnected all fees due upon receipt of an invoice specifying the amounts due (“Fees“). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Client will pay (excluding taxes based upon the net income of AllConnected). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) (or any other interest rate in accordance with the state’s law) per month from the date due until paid in full. In the event of litigation, or arbitration, the non-prevailing party shall pay all expenses, including reasonable attorneys’ fees, incurred by prevailing party or its representatives in enforcing its rights under this Agreement. Client’s obligation to pay undisputed amounts due for Services and AllConnected’s right to all such amounts are absolute and unconditional. Client is not entitled to setoff of such amounts. All Fees will be detailed in an Order. All such Fees, including any potential overage fee, will be agreed upon by both parties prior to the service being provided by AllConnected. Unless otherwise stated in a Purchase Order, Client agrees to pay or reimburse AllConnected for all actual, necessary, and reasonable expenses incurred by AllConnected in performance of such Purchase Order, which are capable of verification by receipt. AllConnected will submit invoices to Client for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Purchase Order or Statement of Work.
Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential. Confidential Information is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential and is clearly identified as confidential. The Parties shall keep all Confidential Information in strict confidence.
The recipient will use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; only use Confidential Information to perform its obligations and exercise its rights under this Agreement; not disclose Confidential Information to any third party; when requested by the disclosing Party, return or destroy the Confidential Information.
In the event Client directly or indirectly employs any AllConnected consultant(s) or engineer(s) who provided service to Client, whether on-site or remotely, Client agrees to pay AllConnected a recruitment and training fee of 50% of the total annual salary or $50,000, whichever is greater.
Client agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of AllConnected performing the services. Client will also provide AllConnected with access to all information, passwords and facilities requested by AllConnected that is necessary for AllConnected to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that the AllConnected may be unable to perform their duties adequately and if such a situation should exist, the AllConnected will be held harmless.
Client shall provide a suitable working environment for any Equipment located at Client’s facility. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Client shall bear the risk of loss of any Equipment located at Client’s facility.
Client acknowledges that from time to time (a) AllConnected may identify additional items that need to be purchased by Client, and (b) changes in Client’s systems may be required in order for AllConnected to meet Client’s requirements. In connection therewith, Client agrees to work in good faith with AllConnected to effectuate such purchases or changes. In the event that AllConnected is required to purchase any assets deployed at client site, including computer hardware and/or software, in connection with AllConnected providing the services, all such assets will remain the sole property of AllConnected unless specifically stated otherwise in writing. Client will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to AllConnected do not infringe or violate the rights of any third party. Unless Client has engaged AllConnected for Co-Managed Cloud Backup or Disaster Recovery, Client will maintain adequate backup for all data and other items furnished to AllConnected.
It is the Client’s responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to AllConnected’s products deployed at client site and AllConnected disclaims all responsibility for any loss including data.
Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use any data, information or material submitted by Client to AllConnected.
AllConnected retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Client acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
10.1 Client may only use and disclose Product in accordance with the terms of this Agreement and applicable Order. AllConnected reserves all rights in and to the Product not expressly granted in this Agreement. Client may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without AllConnected’s prior written approval. Except as expressly authorized in this Agreement or an Order, Client may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or AllConnected business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
10.2 License Agreements.
(a) License. Subject to the terms of this Agreement, AllConnected grants Client a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.
(b) Pre-Existing License Agreements. Any software product provided to Client by AllConnected as a reseller for a third party, which is licensed to Client under a separate software license agreement with such third party, will continue to be governed by the third party license agreement.
(c) EULA. Client hereby consents permission to AllConnected to sign all EULA’s necessary for any software product installed on Client’s computer system.
10.3 Third-Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by AllConnected. AllConnected’s sole obligation is to act on behalf of Client to assist in the satisfaction of any such warranty.
AllConnected warrants that it will perform the Services substantially in accordance with the specifications set forth whether under this Agreement, a purchase order, other work order, SOW or otherwise in connection with any of them. For any breach of the foregoing warranty, AllConnected will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Client’s written notice to AllConnected specifying in reasonable detail such non-conformance. If AllConnected concludes that conformance is impracticable, then AllConnected will refund all fees paid by Client to AllConnected hereunder, if any, allocable to such nonconforming Services.
Notwithstanding the above, AllConnected does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. AllConnected does not guarantee or promise any cost savings, profits, or returns on investment.
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that it will follow software and hardware updates and maintain specific security standards, policies, procedures set forth in Addendum A (“Network Security & Data Protection Policy”) attached hereto and incorporated herein by reference.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if the Client’s data is breached because of the distribution of unsolicited email, direct mail, facsimiles, telemarketing or because of the collection of information by means of electronic “spiders”, “spybots”, “spyware”, wiretapping, bugging, video cameras or identification tags.
In no event, shall AllConnected, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under AllConnected’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event.
EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ALLCONNECTED BE LIABLE TO CLIENT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE OR FOR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT WITH RESPECT TO INDEMNITIES ARISING OUT OF IP CLAIMS OR AS SPECIFICALLY STATED IN OUR RECOVERY SERVICES ADDENDUM, EVEN IF THE PARTY WHO IS LIABLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT WHEN SUCH DAMAGES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE PARTY, ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS. EXCEPT FOR LIABILITY OF THE PARTIES UNDER THE CONFIDENTIALITY AND NON-DISCLOSURE SECTIONS OF THIS AGREEMENT ALLCONNECTED SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID TO PROVIDER BY CLIENT DURING THE THEN PRIOR TWELVE MONTHS FOR THE PRODUCTS AND OR SOFTWARE SUPPLIED AND THE SERVICES PROVIDED HEREUNDER.
AllConnected agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, to the extend this Agreement creates exposure generally covered by the following insurance policies, AllConnected will maintain at its own sole cost and expense at least the following insurance covering its obligations under this Agreement: (a) Commercial General Liability including (i) bodily injury, (ii) property damage, (iii) contractual liability coverage, and (iv) personal injury, in an amount not less than One Million Dollars ($1,000,000) per occurrence; (b) Business Automobile Liability for owned, hired and non-owned vehicles in an amount of not less than One Million Dollars ($1,000,000) for each accident; (c) Workers Compensation at statutory limits; and (d) Professional Liability Insurance covering errors and omissions and wrongful acts in the performance of the Services. Such insurance will bear a combined single limit per occurrence of not less than One Million Dollars ($1,000,000).
Subject to the limitations set forth elsewhere in this Agreement, each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party and its subsidiaries, affiliates, officers and employees (collectively, the “Indemnified Party”) from and against any and all costs, expenses, liabilities, losses and damages (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, demand or proceeding (each, an “Action”) brought by any third party against the Indemnified Party arising from: (i) a Default by the Indemnifying Party, (ii) the intentional misconduct of the Indemnifying Party or its employees, contractors, consultants or agents, or (iii) any failure by the Indemnifying Party or its employees, contractors, consultants or agents to comply with applicable laws and regulations.
The express remedies set forth in this Agreement will constitute Client’s exclusive remedies, and AllConnected’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
AllConnected shall not be responsible for impairments to the Services caused by acts within the control of Client or its employees, agents, contractors, suppliers or licensees, the interoperability of Client applications, or other cause reasonably within Client’s control and not reasonably related to services provided under this Agreement.
EXCEPT FOR THE WARRANTIES MADE BY ALLCONNECTED IN SECTION 11, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” ALLCONNECTED DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
ALLCONNECTED DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
No statement by any AllConnected employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify this Agreement in any way whatsoever.
If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of this Agreement shall not render invalid the remainder of this Agreement.
This Agreement may not be amended except by a writing executed by an authorized individual at AllConnected.
The Parties are independent parties; and this Agreement does not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of California.
Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.
With the exception of Client payment for service rendered, neither party shall be responsible for any failure to perform or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.
Client may not assign its rights or obligations under this Agreement without AllConnected’s prior written consent which shall not be unreasonably withheld.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The Client’s electronic signature of this Agreement shall have the same validity and effect as a signature affixed by the Client’s hand.
This Agreement constitutes the entire agreement by and between the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous undertakings and agreement of the Parties, whether written or oral, with respect to such subject matter.
NETWORK SECURITY & DATA PROTECTION POLICY v1.24
Client understands and agrees that data loss, security breaches, or network failures may occur, whether or not foreseeable, if the Client fails to maintain proper security for its computer and information system including software and hardware updates. Client therefore warrants that, unless otherwise set forth in a separate SOW and/or SLA, it will follow software and hardware updates and maintain specific security standards, policies, procedures meeting or exceeding those set forth below:
If applicable Protected Health Information (PHI) is stored on client computer and information system:
* “Industry-Accepted” Means Accepted by the Cryptographic Community.