Digital MSA

version 1.23

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

  • 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.
  • 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.
  • 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.