Master Services Agreement
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General Terms
1. Services.
- 1.1 Technology Services. MIS shall provide the services set forth in Exhibit A (“Services”) to Client on a regular basis beginning on the Effective Date and ending at the end of the term as set forth on the Summary Page above (“Term”). This Agreement will automatically renew for successive terms of equal length to the Term (each a “Renewal Term”) unless terminated as set forth in Section 4 below. Unless otherwise specified, Client shall be solely responsible for procuring and maintaining the necessary hardware and software for accessing and using the Services. Notwithstanding the preceding sentence, MIS agrees to provide the Greenlight services identified on the Summary Page and their components (collectively the “Greenlight System”), tools and appliances, which may include software and hardware, solely for use by Client in connection with the Services under the terms of this Agreement. In addition, MIS will maintain a connection to the Internet through an internet service provider (“ISP”) of MIS’s choosing, as necessary to deliver the Services. Services shall be provided during “Regular Business Hours”: Monday thru Friday from 7:00 a.m. to 6:00 p.m. EST, excluding MIS Observed Holidays: New Year’s Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day, the day after Thanksgiving, Christmas Eve, Christmas Day, and New Year’s Eve.
- 1.2 Equipment Terms. If MIS is providing equipment to Client under this Agreement, the terms set forth in Exhibit B shall also apply. Client agrees to not tamper, change or modify MIS owned systems, licenses, or equipment as provided for rendering services for this agreement.
- 1.3 Projects. If MIS determines, in its sole discretion, that Client has requested Services outside of the scope of the Services set forth in Exhibit A, MIS will provide Client with a request for change (“Change Order”). The Change Order will describe the nature, scope and fees associated with providing the additional services to Client. The Change Order must be approved by Client in writing prior to commencement of the work by MIS. Services outside of the scope of Exhibit A include but are not limited to implementing new technology equipment or initiatives, engaging in document imaging, providing client relationship management, and technology initiative evaluations.
- 1.4 Hosting Terms. If Client is receiving hosting services (“Hosting”) under this Agreement, the terms of Exhibit C shall so apply. In such event, Client agrees that it shall: (1) maintain a firewall to protect its computer network that meets industry standards; (2) have in place and take steps to enforce an internal email and internet usage policy; and (3) maintain a connection to the Internet through an ISP. MIS will not be responsible for the inability of Client to establish or maintain an Internet connection provided by Client’s ISP.
- 1.5 Website Hosting Terms. If Client is receiving website hosting services under this Agreement, the terms of Exhibit E shall also apply. In such event, Client agrees to maintain backups of all original materials necessary for the Client website including but not limited to artwork, formatting, styles, fonts, pictures, copy, trademarks, layout designs and images, and backups of such materials.
- 1.6 Data Backup Terms. If Client is receiving data backup services (the “Greenlight Rapid Recovery”), Client agrees that it shall maintain redundant onsite/offsite backup systems or appliances in addition to Greenlight Rapid Recovery. Client also agrees to fulfill Client responsibilities and other standard operating procedures related to Greenlight Rapid Recovery as covered in Exhibit A.
- 1.7 Special Terms. Client agrees that as a condition precedent to receiving continued Services under this Agreement that it will have (or procure within thirty (30) days of the Effective Date of this Agreement) enterprise-wide anti-virus, anti-spam, data backup and firewall protections for any non-covered assets on the Client’s network.
- 1.8 Support Terms. MIS will provide support for the Services during normal business hours. Support for Critical Issues (as defined in Exhibit D) will be available after hours. The support terms are set forth on Exhibit D.
- 1.9 Client Responsibility. Client is required to conform to the following criteria: (1) allow access to the Client’s systems that are not at the co-location facilities and follow instructions or assist with the setup and access of the Client’s programs and data hosted by MIS; (2) immediately alert MIS concerning any third party activity or access requirements to Client’s programs or data, and the server(s) and systems that MIS uses to provide access to that Service for Client; (3) where any software programs are provided by parties other than through MIS (a “Third Party Service”), to have valid licenses to use such software and to adhere to such Third-Party Service’s license terms and/or end-user license agreements; (4) to not use MIS facilities or services for any illegal, immoral or unethical purpose, as determined by MIS in its sole discretion; and (5) Client shall adhere to and be solely responsible for the terms or end user license agreements of all services for which MIS obtains login credentials or account on behalf of Client (each a “Passthrough Service”). In the event Client requests that MIS utilize Client’s credentials or account for a Third-Party Service or Passthrough Service, Client shall remain ultimately responsible for its account on such Service, including without limitation for payment, loss of data, breach of contract, and any misuse of its credentials or account not attributable to MIS.
2. Payment and Invoicing Terms.
- 2.1 Payment for Services. The fees for the Services are set forth in Exhibit A to the Agreement (“Fees”). MIS shall invoice Client monthly, on or about the 1st day of each month for the Services provided hereunder. Client shall pay all invoices by the 10th of the month. All funds due to MIS for services are payable by ACH transfer or automatic credit card payment. MIS will accept automatic credit card payment with a 3% convenience fee. Payment shall have been deemed made only when MIS has received final, irrevocable cleared funds at its bank.
- 2.2 Disputed Amounts and Late Payments.
- (a) If Client has any valid reason for disputing any portion of an invoice, Client must notify MIS in writing within seven (7) calendar days of receipt of invoice specifying such dispute. All undisputed amounts shall be timely paid. For avoidance of doubt, all undisputed amounts are due by the tenth day of each month.
- (b) If payment of all undisputed amounts is not received by the fifth of the month, MIS may immediately suspend all Services until account payments are current. Additionally, Client shall pay interest on all unpaid amounts by the fifth of each month at the rate of 1.5% per month, or the highest lawful rate, if less. Any payments made by Client after the fifth of the month will be first applied to any accrued interest and then to the principal unpaid balance. Any attorney fees, court costs, or other costs incurred in collection of delinquent accounts shall be paid by Client.
- 2.3 Expenses. MIS shall invoice Client for all reasonable expenses, if any, incurred in MIS’s performance under this Agreement at actual cost. Such expenses include but are not limited to travel, lodging and other miscellaneous expenses. MIS will not incur any such expenses without prior approval from Client.
- 2.4 Taxes. The Fees do not include any charge for taxes and Client is solely responsible for paying any and all national, state and local taxes (including any and all export/import taxes and customs duties) attributable to the Services rendered by MIS in connection with this Agreement, excluding only taxes based upon the net income of MIS.
- 2.5 Pricing Adjustments. Pricing Adjustments. MIS may, at its’ sole discretion, adjust prices on a monthly basis. MIS shall have the right at any time without notice to Client to audit Client’s access to the Services to determine the actual number of Client users of the Services. If Client has changes in the number of workstations, servers, licenses, network covered equipment, cell phones, users, etc., MIS may adjust monthly billing based on these changes in quantity.
- 2.6 Pricing Increase During Renewal Term. MIS reserves the right to increase fees automatically by six percent (6%) during each Renewal Term. Every 12 months services shall be indexed for inflation according to CPI from the Bureau of Labor Statistics.
3. Change Orders.
- 3.1 Client may request additions, enhancements or modifications to the general scope of the Services by submitting a written request to MIS (each a “Change Order”). No Change Order will be effective unless agreed to by MIS in writing. MIS shall notify Client within five (5) business days of receipt of the Change Order as to how the fulfillment of the request will impact the Fees and schedule, if any.
- 3.2 If MIS determines, in its sole discretion, that Client has requested Services outside of the scope of the Services set forth in Exhibit A, MIS will provide Client with a Change Order. The Change Order will describe the nature, scope and fees associated with providing the additional services to Client. The Change Order must be approved by Client in writing prior to commencement of the work by MIS. Services outside of the scope of Exhibit A include but are not limited to assistance implementing new technology, equipment or initiatives, engaging in document imaging, providing client relationship management, and technology initiative evaluations.
4. Termination.
- 4.1 For Breach. Except as may be set forth in any Exhibit, either party may terminate this Agreement and the rights granted herein if the other party breaches any of the provisions of this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice thereof. Termination of this Agreement does not constitute either party’s exclusive remedy for breach or non-performance by the other party and, subject to the other provisions of this Agreement, each party is entitled to seek all other available remedies, both legal and equitable, including injunctive relief.
- 4.2 Termination for Convenience. Either party may terminate this Agreement for convenience upon providing ninety (90) calendar day written notice to the other party.
- 4.3 Transition Assistance. Provided that MIS has not terminated this Agreement pursuant to Section 4.1, MIS agrees to provide reasonable termination assistance services to Client pursuant to a separate Statement of Work at MIS’s then current professional services rates.
- 4.4 Notwithstanding the foregoing, either party may also terminate this Agreement without penalty by providing written notice of non-renewal no later than thirty (30) days before the expiration of the then current Term.
5. Effect Of Termination.
- Upon termination of this Agreement: (1) all rights granted to Client hereunder shall immediately cease; (2) MIS shall terminate Client’s access to the Services; (3) Client shall immediately cease use of the Services in any manner whatsoever, and return any documentation and other related materials provided under this Agreement to MIS; (4) MIS shall return (upon Client’s request) or destroy (in the absence of Client request) any documents, data, or files of Client in its possession within thirty (30) days of the date of termination, unless otherwise required by law; (5) Client shall grant MIS access to Client’s facilities within 72 hours of termination for MIS to retrieve all MIS-owned equipment; (6) Client shall return the Greenlight System and all related components to MIS within seven (7) days of termination; and (7) all payments owed to MIS shall be immediately due and payable. Upon receipt of final payment, all final network documentation (e.g., usernames, passwords, and configuration documentation) will be delivered to Client. Client’s failure to timely return the Greenlight System (if provided) and related components will result in the assessment of equipment fees by MIS, which will be due immediately.
6. Warranty.
- 6.1 MIS’s Warranty. MIS warrants that the Services shall be performed by personnel possessing competency consistent with applicable industry standards. Furthermore, no guarantee is made as to the efficacy or value of any services performed or software developed. MIS MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, DELIVERABLES, WORK PRODUCT, OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, INFRINGEMENT, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. MIS DOES NOT WARRANT THAT ALL ERRORS CAN OR WILL BE CORRECTED OR THAT THE SERVICES WILL OPERATE WITHOUT ERROR. MIS SHALL HAVE NO LIABILITY FOR THE INABILITY OF MIS’S ISP TO MAINTAIN AN INTERNET CONNECTION. MIS will not be responsible for Client’s inability to establish or maintain an Internet connection provided by Client’s ISP.
- 6.2 Client’s Representations and Warranties. Client represents and warrants that: (1) any data, information and other tangible or intangible materials it provides or otherwise makes available, directly or indirectly, to MIS in connection with this Agreement will not infringe or violate the intellectual property or other rights of any third party or violate any applicable law, rule or regulation; (2) in performing its obligations under this Agreement, it and its personnel will comply with all applicable laws, rules and regulations.
7. Liability.
- 7.1 Limitation. CLIENT AGREES THAT MIS’S LIABILITY (UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) IF ANY, FOR ANY DAMAGES RELATED TO THIS AGREEMENT SHALL BE FOR ACTUAL AND DIRECT DAMAGES ONLY AND SHALL NOT EXCEED THE FEES PAID BY CLIENT IN THE ONE (1) MONTH PRIOR TO THE CAUSE OF ACTION ARISING. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR OTHER DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES.
- 7.2 Remedy for Defective Services. CLIENT’S SOLE REMEDY FOR MIS’S LIABILITY REGARDING THE PERFORMANCE OF THE SERVICES SHALL BE LIMITED TO THE RE-PERFORMANCE OF ANY DEFECTIVE SERVICE PROVIDED BY MIS, OR IF RE-PERFORMANCE IS NOT AVAILABLE OR PRACTICAL, IN MIS’S SOLE DISCRETION, THEN A REFUND OF THE PAYMENTS FOR THE DEFECTIVE SERVICE PAID IN THE TWO MONTHS PRECEDING THE DEFECT THAT GAVE RISE TO THE CLAIM, PROVIDED THAT CLIENT PROVIDES WRITTEN NOTICE OF SUCH DEFECTIVE SERVICE WITHIN FORTY-FIVE (45) DAYS OF DELIVERY OR COMPLETION OF PERFORMANCE (THE “WARRANTY PERIOD”). FAILURE TO PROVIDE SUCH WRITTEN NOTICE WITHIN THE WARRANTY PERIOD SHALL WAIVE ANY CLAIM CLIENT HAS OR MAY HAVE WITH RESPECT TO THE APPLICABLE SERVICE. THE WARRANTIES SET OUT IN THIS SECTION 7 AND THE REMEDIES SET FORTH HEREIN ARE THE ONLY WARRANTIES AND REMEDIES WITH RESPECT TO THE SERVICES. CLIENT AGREES THAT IT WILL NOT ALLEGE THAT THIS REMEDY FAILS ITS ESSENTIAL PURPOSE.
- 7.3 Indemnification. Each party, including its parent, subsidiaries, affiliates and each of their respective officers, shareholders, directors and employees (collectively the “Indemnifying Party”) will indemnify, defend, and hold harmless the other party, its affiliates, officers, directors, employees, agents and representatives from and against all damages, costs, expenses, and liabilities, including, without limitation, reasonable attorney’s fees and expenses, arising from claims that the Indemnifying Party has breached a third party’s intellectual property rights. Indemnification is contingent on the Indemnifying Party being notified promptly of such action, claim, suit or proceeding in writing and is given authority, control and full and proper information and assistance in the defense and settlement of such action, claim, suit or proceeding.
8. Insurance.
- Client will maintain its own insurance and cybersecurity insurance coverages consistent with market and industry standards.
9. Dispute Resolution.
- 9.1 Informal Resolution. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement, in prompt, amicable, and businesslike discussions between management level executives who have authority to settle the controversy. Either party may give written notice of any dispute relating to this Agreement not resolved in the ordinary course of business. Within fifteen (15) days of such written notice, the parties will agree upon a site and the representative of each party who will take part in the settlement negotiations.
- 9.2 Arbitration. Except for claims seeking injunctive relief for which court relief may be sought, MIS and Client shall arbitrate any dispute resulting from or arising as a result of this Agreement. Any such binding arbitration shall be in accordance with the commercial rules of the American Arbitration Association (“AAA”). Any such arbitration shall be held either virtually or in Atlanta, Georgia and directed by the AAA. Notwithstanding the foregoing or the then-current specified commercial rules of the AAA, the following shall apply with respect to the arbitration proceeding: (1) the arbitration proceedings shall be conducted by one (1) arbitrator selected by mutual agreement of the parties, provided, if the parties fail to make such designation within five (5) days after receipt by the AAA of the demand for arbitration, the AAA shall make the appointment in its sole discretion (provided such arbitrator shall have the requisite experience and knowledge of the type of transaction that is the subject of this Agreement); and (2) the existence, subject, evidence, proceedings and rulings resulting from the arbitration proceedings shall be deemed Proprietary Information, and shall not be disclose by either party, their representatives, or the arbitrator except: (i) to the professional advisors of each of the parties; (ii) in connection with a public offering of securities of either of the parties; (iii) as ordered by any court of competent jurisdiction; or (iv) as required to comply with any applicable governmental statute or regulation.
10. Employee Non-Solicit.
- Unless otherwise mutually agreed to in writing, the parties agree that during the Term and for a period of one (1) year immediately following the termination or expiration of this Agreement that neither party shall, on its own behalf or on behalf of any person, firm, partnership, association, corporation, entity or enterprise, directly or indirectly solicit, recruit or call upon, any person who: (1) is or was (during the Term) employed by the other party as an employee or contractor; and (2) interfaced with the party in fulfillment of such parties’ obligations under the Agreement during the twelve (12) months prior to the termination of this Agreement. For the purposes of this Section, a party’s advertisement of employment opportunities in any public forum (including through corporate recruiters, magazines, trade journals, publicly accessible internet sites, classified advertisements, or job fairs open to the public) will not be considered solicitation, and any hiring that results from a public employment advertisement or unsolicited application for employment will not constitute a breach of this Section 10.
11. Confidentiality.
- Each party has made and will continue to make available to the other party information that is not generally known to the public and at the time of disclosure is identified as or would reasonably be understood by the receiving party to be, proprietary or confidential (“Proprietary Information”). Proprietary Information may be disclosed in oral, written, visual, electronic or other form. Client’s Proprietary Information includes Client’s: (1) business plans, strategies, forecasts, projects, and analyses; (2) financial information and fee structures; (3) business processes, methods, and models; (4) director, officer, employee, customer, and client information (whether past, current or prospective); (5) hardware and system designs, architectures, structure, and protocols; (6) product and service specifications; and (7) manufacturing, purchasing, logistics, sales and marketing information, as well as the terms of this Agreement. Each party agrees: (i) to hold the Proprietary Information in the strictest confidence; (ii) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the other’s Proprietary Information to any third party; (iii) not to make use of the Proprietary Information other than for the permitted purposes under of this Agreement; and (iv) to disclose the other’s Proprietary Information only to their respective representatives requiring such material for effective performance of this Agreement and who have undertaken an obligation of confidentiality and limitation of use consistent with this Agreement. This obligation shall continue for two (2) years after termination of the Agreement for Proprietary Information and as long as allowed under applicable law for trade secrets. To the extent Client requests that MIS process Personal Information (as defined in Exhibit E), excluding contact information shared in a business context (e.g., employee contact information), the terms of Exhibit E shall apply and take precedence over the terms of this Section 11.
12. Injunctive Relief.
- The injury that the disclosing party will suffer in the event of the other party’s breach of any covenant or agreement contained in Section 10 cannot be compensated by monetary damages alone, and the receiving party therefore agrees that the disclosing party, in addition to and without limiting any other remedies or rights which it may have either under this Agreement or otherwise, shall have the right to seek an injunction against the receiving party from any court of competent jurisdiction, enjoining such breach.
13. Proprietary Rights.
- 13.1 As between Client and MIS, MIS (and its licensors, where applicable) is the exclusive owner of all right, title and interest, including all related intellectual property rights, in and to the Greenlight System and the Services (collectively, the “MIS Materials”), including without limitation any modifications, updates, revisions or enhancements thereto and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Client that does not contain Client’s Proprietary Information, and regardless of any participation or collaboration by Client in the design, development or implementation of the MIS Materials. MIS hereby grants to Client a limited (by the Term), revocable (in case of breach or non-payment), non-exclusive, worldwide, non-assignable license to the MIS Materials for the sole purpose of enabling Client to use the Services. No title or ownership of intellectual property rights in and to the MIS Materials, or any component thereof, is transferred to Client, its affiliates or any third parties hereunder. To the extent that any such intellectual property rights do not otherwise vest in MIS or its licensors, Client hereby agrees to promptly assign such intellectual property rights to MIS or its licensors, and to do all other acts reasonably necessary to perfect MIS’s or its licensors’ ownership thereof, without additional consideration of any kind.
- 13.2 As between Client and MIS, Client owns all its Proprietary Information and other materials provided to MIS hereunder (the “Client Materials”). Client grants MIS a non-exclusive, fully paid up, non-assignable, irrevocable, worldwide license in and to the Client Materials for the sole purpose of MIS providing the Services to Client as set forth in this Agreement.
14. Residuals.
- Nothing in this Agreement or elsewhere will prohibit or limit MIS’s use of ideas, concepts, know-how, methods, models, data, techniques, skill knowledge and experience that were used, developed or gained in connection with this Agreement. MIS shall be the exclusive owner of any feedback, suggestions, improvements, or other commentary on the Services or MIS Materials provided during the Term by or on behalf of Client to MIS.
15. Reservation Of Rights.
- No exclusive rights are granted by this Agreement. All rights not expressly granted to Client herein are reserved to MIS.
16. Force Majeure.
- Except for its payment obligations hereunder which shall not be affected, neither party shall be liable for its failure to perform or delay in performing all or any part of its obligations under this Agreement to the extent that such failure or delay is due to any cause or circumstance reasonably beyond the control of such party including, without limitation, acts of God, government shutdown, pandemic, epidemic, fire, flood, storms, earthquake, strike or other labor dispute, acts of terrorism, government requirement, or civil or military authority (each “Force Majeure”). The party affected by such an event shall promptly notify the other party in writing. The party so affected shall take reasonable steps to resume performance with the least possible delay.
17. Miscellaneous.
- The laws of the State of Georgia shall govern this Agreement, without reference to its conflicts of laws. The parties irrevocably consent to the personal jurisdiction of the state and federal courts located in Fulton County, Georgia. This Agreement is binding and constitutes the entire Agreement between the parties and supersedes all previous negotiations, agreements and commitments; it shall only be amended in writing signed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original. If any provision of this Agreement is judged to be invalid, illegal or unenforceable, that provision shall be deemed deleted and the remainder shall not be affected. All notices shall be delivered by hand or certified mail to the address stated on the Summary Page or as requested by the parties, they shall be deemed received three (3) days after placement with the mail carrier. This Agreement may not be assigned by Client and shall only be assigned by MIS with the written consent of Client, which shall not be unreasonably withheld. Any provision of this Agreement that by its nature should survive this Agreement’s termination shall so survive. Either party’s failure to enforce any provision of this Agreement shall not be deemed a waiver of the provision or any right under the Agreement. The parties are and shall be independent contractors. Neither party shall be in default in the performance of this Agreement because of reasons outside of the reasonable control of either party.
EXHIBIT A
SERVICES DESCRIPTION AND PRICING
- This Service Description Attachment is included in and made a part of the Master Services Agreement to which it is attached.
Technical Services and Rates
Fee (per hour) | Conditions | |
---|---|---|
Remote Support | $155/hr | 10 minute minimum |
Onsite Support | ||
Regular Business Hours (M-F) | $155/hr | 2 hour minimum |
After Hours | $155/hr | 1/2 hour minimum |
Holidays | $155/hr | 2 hour minimum |
Travel | $155/hr | Travel time is portal to portal. Must be approved by Client in advance. |
Rates are updated annually. Fees and any increases or decreases thereto for all Passthrough Services and Third-Party Services will be passed through automatically to Client.
MIS Solutions provides fixed fee projects where applicable.
EXHIBIT B
EQUIPMENT ATTACHMENT
This Equipment Attachment is included in and made a part of the Master Services Agreement. This Equipment Attachment applies only to physical products purchased by Client from or through MIS.
_____ MIS Initial, if Exhibit is applicable
_____ Client Initial, if Exhibit is applicable
- 1. Delivery. MIS will make reasonable efforts to effect shipment of any equipment requested by Client to deliver the Services (“Equipment”) FOB (as defined in Incoterms 2020) Client’s carrier on or before the estimated delivery date as set forth on MIS’s quotation and confirmed in MIS’s acknowledgement of Client’s order. The Client has the right to inspect all Equipment intended for delivery before delivery is considered complete under this Agreement provided such inspection may take place only at the place of delivery. Unless rejected in writing within 10 business days of delivery pursuant to Section 5 of this Attachment, Client will be assumed to have accepted the Equipment and there will be no rejection as to any non-conforming Equipment under the requirements of this Agreement. Any risk of loss associated with the Equipment sold rests with MIS up until the time of receipt of the Equipment by the Client at the place of delivery; thereafter, the risk of loss is with the Client, including any risk associated with any Equipment thereafter returned to MIS.
- 2. Shipment. Any ad-hoc payment by MIS of freight charges shall be reimbursed by Client and shall not extend the obligations of MIS with respect to delivery, nor shall MIS be under any obligation to replace Equipment lost or damaged in transit. Client must select method of shipment and carrier. MIS reserves the right to make alternate arrangements if necessary to avoid substantial delay in shipment of the Equipment. In the absence of specific written instructions, MIS shall ship by the method it deems most appropriate and charge to Client’s account.
- 3. Payment. Unless otherwise arranged in writing, Client will prepay for all Equipment. MIS reserves the right to require prepayment or installment payments for any software Fees associated with Equipment. A Finance Charge will apply each month on accounts past due more than 30 days, computed at the rate of 1.5% per month. A $30.00 or 5%, whichever is greater, per check handling fee will be charged on any checks returned to MIS by the Client’s bank. The Client’s failure to pay in full any outstanding invoice shall obligate the Client for all collections costs, including reasonable attorney’s fees.
- 4. Ownership Of Equipment. The Client acknowledges that title to the Equipment remains with MIS until MIS has received payment in full for the Equipment. This retention of title is acknowledged and accepted by the Client and supersedes any implied transfers of title made by delivery of the Equipment.
- 5. Returns. Client has 10 calendar days from delivery to inspect the Equipment for any defects or damage which materially impair Equipment’s function. If MIS agrees that the Equipment is defective, defective Equipment may be returned for credit (minus shipping costs) within thirty calendar days of delivery. Defective Equipment which is subject to a manufacturer’s warranty may be returned for repair or replacement throughout the term of the warranty pursuant to the terms thereof. MIS will only accept returns with freight prepaid. All Equipment that is subject to the applicable manufacturer’s warranty and will be repaired or replaced and returned to Client via UPS or similar carrier at MIS’s option. Client may receive a credit against future purchases in lieu of repair or replacement, at MIS’s option.
- 6. Credits. MIS generally will not issue a credit on Equipment past the 10-day return period. In rare cases, MIS may choose to issue a credit for Equipment, providing the Client follows the return procedures set forth in Section 5 above subject to MIS’s prior written approval and in MIS’s sole discretion. When requesting credit, the Client must provide proof of purchase by furnishing a copy of the MIS invoice and all applicable serial numbers. Any invoice with changed or altered serial numbers or any invoice without sufficient serial numbers will not be accepted as a satisfactory invoice for credit procedures.
- 7. Refunds. For clarity, defective Equipment can be returned for REPAIR, REPLACEMENT or CREDIT ONLY at MIS’s option, subject to the terms and duration of the applicable manufacturer’s warranty and terms of this Agreement. MIS does not offer a warranty greater than the manufacturer’s warranty All Equipment sales are final after the 10-day return period. All sales are FINAL on custom-ordered Equipment and software.changed or altered serial numbers or any invoice without sufficient serial numbers will not be accepted as a satisfactory invoice for credit procedures.
- 8. Restoration And Restocking Fees. MIS will charge a restoration fee based on current market value, for all Equipment returned for credit that are not properly shipped, subject MIS’s discretion. MIS will charge a 17% restocking fee for all Equipment rejected without a 48-hour advance notice. MIS retains the right to charge a 5-25% restocking or handling fee for all non-defective Equipment or for returns that do not comply with MIS’s return policy if MIS accepts the return.
- 9. Manufacturer’s Warranty. All Equipment subject to manufacturer’s warranty will be repaired or replaced with available, comparable parts and returned to Client via UPS or similar carrier at MIS’s option. In order for MIS to honor any applicable manufacturer’s warranties, the original invoice/receipt must identify the Equipment purchased. Warranties do NOT cover damage caused by flood, fire, lightning, or other acts of God. Physical damages due to abuse, neglect, or mishandling of Equipment are not covered by warranties. Warranties are only valid for Equipment purchased from or through MIS. Any alteration of manufacturer’s and/or MIS’s serial or identification numbers voids any and all warranties.
- 10. Warranty Repair Work. On-site warranty repair work associated on-site labor charges and travel time are not covered under standard equipment purchases. It is the Client’s responsibility to return (with freight-prepaid) any defective Equipment to MIS for warranty repair work within the specified warranty period; otherwise, on-site labor and travel expenses shall apply. If Equipment is returned for warranty repair and the Equipment is not defective but suffers from user software misconfigurations or hardware tampering, Client is responsible for standard in-house labor rates to inspect and diagnose Equipment status.
EXHIBIT C
HOSTING ATTACHMENT
This Hosting Attachment is included into and made a part to the Master Services Agreement.
_____ MIS Initial, if Exhibit is applicable
_____ Client Initial, if Exhibit is applicable
1. The Hosting Services.
- 1.1 Client’s use of MIS’s hosting, email hosting, Greenlight Rapid Backup & Recovery Offsite and web hosting services (“Hosting Services”) is subject to the terms of the Agreement to which it is attached.
- 1.2 MIS is constantly innovating in order to provide the best possible experience for its users and clients. Client acknowledges and agrees that the form and nature of the Hosting Services which MIS provides may change from time to time upon prior notice to Client.
- 1.3 As part of this continuing innovation, Client acknowledges and agrees that MIS may stop (permanently or temporarily) providing the Hosting Services (or any features within the Hosting Services) to Client or to users generally at MIS’s sole discretion and will provide Client with a thirty (30) day written notice.
- 1.4 Client acknowledges and agrees that if MIS disables access to Client’s account for any reason whatsoever, including failure to pay fees when due, Client may be prevented from accessing the Hosting Services, Client’s account details or any files or other content which is contained in Client’s account.
- 1.5 Client acknowledges and agrees that while MIS may not currently have set a fixed upper limit on the number of transmissions Client may send or receive through the Hosting Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by MIS at any time, at MIS’s discretion, with prior written notice to Client (email sufficient).
2. Use of the Hosting Services by Client.
- 2.1 Client agrees not to access (or attempt to access) the Hosting Services by any means other than through the interface that is provided by MIS. Client specifically agrees not to access (or attempt to access) any of the Hosting Services through any automated means (including use of scripts or web crawlers).
- 2.2 Client agrees to not engage in any activity that interferes with or disrupts the Hosting Services (or the servers and networks which are connected to the Hosting Services).
- 2.3 MIS shall update the Hosting Services with Client Materials provided from time to time by the Client. The Client shall ensure that the Client Materials do not infringe any applicable laws, regulations or third-party rights such as material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third-party intellectual property rights.
3. Client’s Passwords and Account Security.
- 3.1 Client agrees and understands that Client is responsible for maintaining the confidentiality of passwords associated with any accounts the Client uses to access the Hosting Services.
- 3.2 Accordingly, Client agrees that Client will be solely responsible to MIS for all activities that occur under Client’s accounts. MIS disclaims any liability for, and Client will indemnify MIS against any third-party claims involving, Client’s misuse or failure to keep its credentials confidential (e.g., social engineering data breach).
- 3.3 If Client becomes aware of any unauthorized use of Client’s passwords or accounts, Client agrees to notify MIS immediately by calling 770-945-5487 and submitting a notice to support@mis-solutions.com.
4. Client Materials in the Hosting Services.
- 4.1 Client understands that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) (included in “Client Materials”) which Client may have access to as part of, or through Client’s use of, the Hosting Services are the sole responsibility of the person from which such Client Materials originated.
- 4.2 Client agrees to be solely responsible for (and that MIS has no responsibility to Client or to any third party for) any Client Materials that Client creates, transmits or displays while using the Hosting Services and for the consequences of Client’s actions (including any loss or damage which MIS may suffer) by doing so. Client agrees to defend, indemnify, and hold MIS harmless from and against any third-party claim related to or based in the Client Materials.
5. Proprietary Rights.
- 5.1 Other than the limited license set forth below, MIS acknowledges and agrees that it obtains no right, title or interest from Client (or Client’s licensors) in or to any Client Material that Client submits, transmit or display on, or through, the Hosting Services, including any intellectual property rights which subsist in that Client Material (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless Client has agreed otherwise in writing with MIS, Client agrees that Client is responsible for protecting and enforcing those rights and that MIS has no obligation to do so on Client’s behalf.
- 5.2 5.2 Client agrees that Client shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Hosting Services.
6. License from MIS.
- 6.1 MIS gives Client a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software, hardware, or both provided to Client by MIS as part of the Hosting Services as provided to Client by MIS (referred to as the “HW/SW” below). This license is for the sole purpose of enabling Client to use and enjoy the benefit of the Hosting Services as provided by MIS, in the manner consistent with this Agreement.
- 6.2 Client may not (and Client may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the software in the HW/SW or any part thereof, unless this is expressly permitted or required by law.
- 6.3 Client may not assign (or grant a sub-license of) Client’s rights to use the HW/SW, grant a security interest in or over Client’s rights to use the HW/SW, or otherwise transfer any part of Client’s rights to use the HW/SW.
7. Client Material License from Client.
- 7.1 Client retains copyright and any other rights Client already holds in Client Material which Client submits, posts or displays on or through, the Hosting Services. By submitting, posting or displaying the Client Material, Client gives MIS a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Client Material which Client submits, posts or displays on or through, the Hosting Services. This license is for the sole purpose of enabling MIS to deliver the Hosting Services.
- 7.2 Client understands that MIS, in performing the required technical steps to provide the Hosting Services to our users, may (a) transmit or distribute Client Material over various public networks and in various media; and (b) make such changes to Client Material as are necessary to conform and adapt that Client Material to the technical requirements of connecting networks, devices, services or media. Client agrees that this license shall permit MIS to take these actions.
- 7.3 Client confirms and warrants to MIS that Client has all the rights, power and authority necessary to grant the above license.
8. Software Updates.
- The software which Client uses as part of the HW/SW may automatically download and install updates from time to time from MIS. These updates are designed to improve, enhance and further develop the Hosting Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. Client agrees to receive such updates (and permit MIS to deliver these to Client) as part of Client’s use of the Hosting Services.
9. EXCLUSION OF WARRANTIES.
- 9.1 CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT CLIENT’S USE OF THE HOSTING SERVICES IS AT CLIENT’S SOLE RISK AND THAT THE HOSTING SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.”
- 9.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM MIS OR THROUGH OR FROM THE HOSTING SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
10. LIMITATION OF LIABILITY.
- 10.1 PURSUANT TO SECTION 9.1 ABOVE AND IN ADDITION TO SECTION 7.1 OF THE AGREEMENT, CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT MIS SHALL NOT BE LIABLE TO CLIENT FOR ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY CLIENT, INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE AS A RESULT OF:
- (I) ANY CHANGES WHICH MIS MAY MAKE TO THE HOSTING SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE HOSTING SERVICES (OR ANY FEATURES WITHIN THE HOSTING SERVICES);
- (III) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CLIENT MATERIAL AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH CLIENT’S USE OF THE HOSTING SERVICES;
- (III) CLIENT’S FAILURE TO PROVIDE MIS WITH ACCURATE ACCOUNT INFORMATION; OR
- (IV) CLIENT’S FAILURE TO KEEP CLIENT’S PASSWORDS OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
- 10.2 THE LIMITATIONS ON MIS’S LIABILITY TO CLIENT IN SECTION 10.1 ABOVE SHALL APPLY WHETHER OR NOT MIS HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
EXHIBIT D
SUPPORT TERMS AND CONDITIONS
Support |
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E-Mail Support: Available 24×7 for submission of issues; response time during Regular Business Hours |
Telephone and Onsite Support: 5 days per week, Monday through Friday MIS holidays excepted, Regular Business Hours. MIS records and monitors all telephone calls and other communications for quality assurance purposes. |
After Hours Support for Critical Issues: Available 24×7, MIS holidays excepted; Pager support and Contact Center Service available by calling MIS’s main support phone number. |
Critical Issue Response Time: Acknowledgement by MIS representative within two (2) hours of issue receipt. To report a Critical Issue, Client must call into MIS office to report Critical Issue and details. “Critical Issues” include: issues that are Client-wide and result in loss of productivity from majority of the Client; issues that adversely affect the Client’s ability to conduct business; issues that affect a Client-wide business function for which there is no work-around. |
MIS will conduct routine maintenance of its systems from time to time and notify Client prior to scheduled maintenance windows. MIS reserves the right to perform critical system maintenance on an as needed basis and without prior notice to Client.
SERVICE REQUESTS WITH MIS– How to Obtain Service
- 1. Service requests are created by calling MIS’s main support telephone number or by sending an email to help@mis-solutions.com. At that time, a case or issue number is assigned for the request. Please DO NOT E-MAIL your service request directly to MIS Team Members as they are frequently in the field.
- 2. Service Request Approval Process: Client must designate staff members who are authorized to call MIS and initiate and approve service requests. MIS will only accept service requests from approved staff members. If a Client representative other than listed contacts MIS, MIS will first validate the request with one of the approved contacts prior to rendering service.
EXHIBIT E
Use of Personal Information.
This Data Protection Attachment (“Attachment”) incorporates, is subject to, and will be read together with the terms and conditions of the Master Services Agreement.
If any provisions of this Attachment conflict with the terms of the Agreement and/or any other written agreements between the parties, the provisions of this Attachment shall govern as to data use, privacy and security. Except as otherwise provided herein, the Agreement and any other fully executed written agreements between the parties shall remain in full force and effect.
1. Use of Personal Information.
- For purposes of applicable privacy laws, including, when applicable, the California Consumer Privacy Act of 2018 and the regulations promulgated thereunder (“CCPA”), each as amended from time to time (“Data Protection Law”), MIS is a service provider of Personal Information (as defined herein). MIS will only access, use, maintain, collect, modify, merge, combine, share, disclose, or otherwise process Personal Information solely as necessary for MIS to perform its obligations under the Agreement as directed by Client. MIS will not use, retain, or disclose Personal Information for any other purpose. MIS may not sell, resell, lease, assign, rent, sublicense, distribute, transfer, disclose, time-share, or otherwise exchange Personal Information (or any portion thereof) for monetary or other valuable consideration (collectively, “sell”). Except as expressly provided to MIS, no right, title, or interest in Personal Information is transferred to MIS. As between MIS and Client, all Personal Information is and will be deemed to be and will remain the exclusive property of Client. As used herein, “Personal Information” shall mean any information provided by Client to MIS or made available by Client to MIS (including all information collected from visitors and users of Hosting Services) that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, consumer or household including, without limitation, any inferences drawn therefrom or derivatives thereof; provided, however, that statistics or anonymous data derived from Personal Information (“Aggregate Information”) is not Personal Information so long as such Aggregate Information may not be used on its own to re-identify an individual or household. Personally identifying information shared with MIS in the business context, e.g., employee information, is not Personal Information.
2. Transfer of Personal Information.
- The parties agree that any transfer or disclosure of Personal Information between MIS and Client under the Agreement is not for monetary or other valuable consideration and therefore does not constitute a sale of personal information under the CCPA.
3. Access Limitations.
- Client agrees that it will make best efforts to secure and encrypt in transit and at rest all Personal Information in transit into and out of MIS’s control. MIS shall not disclose or transfer Personal Information to any third party, including any agent, contractor or sub-contractor except to the extent that a disclosure or transfer is required by law or is authorized under the Agreement. MIS will restrict access to Personal Information only to those personnel who have a need to know or otherwise access the Personal Information to enable MIS to perform its obligations under this Attachment, provided that those individuals have committed in writing to obligations no less restrictive than those contained in this Attachment.
4. Assistance.
- Client will be required to manage consumer Personal Information requests internally. Should Client receive a request from an individual exercising their rights under applicable privacy or data security laws, including, without limitation, the CCPA, MIS shall without undue delay (and in any event within the time required by law) assist Client in the fulfillment of Client’s obligation to respond to such request. Individual requests may seek, without limitation, cessation of the sale of, easily portable copies of, corrections to, or deletion of all Personal Information relating to the individual. MIS shall implement technical and administrative procedures reasonably necessary to secure, categorize, access, modify, delete, and transmit Personal Information to Client so that MIS may promptly and fully assist Client if requested. If MIS receives a request directly from an individual, MIS will, to the extent not prohibited by applicable law or any regulatory authority: (a) promptly forward the request to Client for handling; (b) if requested, provide Client with copies of documents relating to the request; (c) not correspond with the requester without Client’s prior written consent; and (d) not disclose any confidential information of Client or its affiliates without Client’s prior written consent.
5. Security.
- Without limiting any specific security requirements contained in any other agreement between the parties, MIS warrants that it has adopted and implemented, and will maintain for as long as this Agreement is in effect or as long as MIS stores or processes Personal Information (whichever is later), reasonable technical and organizational measures to protect Personal Information against accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure, and access, and against all other unlawful activities. Except as otherwise required by law, all digital and hard copies of Personal Information shall be securely deleted or destroyed once such information is no longer required for MIS to perform its obligations under the Agreement or applicable Statement of Work. MIS shall within sixty (60) days of expiration or termination of the Agreement, or upon Client’s written request, delete or securely return, at Client’s discretion, all copies of Personal Information in MIS’s primary database.
6. Encryption.
- MIS shall ensure that: (a) any Personal Information that it transmits over a network, whether via email, file transfer protocol, or other means of electronic exchange; and (b) any Personal Information stored on a portable device including, but not limited to, a laptop computer, USB drive, floppy disk, or CD, shall be encrypted using a cryptographic algorithm employing a key length of at least 128 bits.
7. Data Breaches.
- In the event of (i) accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to unencrypted Personal Information under MIS’s control, or (ii) any other event that is deemed a “breach” or “security incident” under any Data Protection Law (each a “Data Breach”), MIS shall inform Client in writing or via email or facsimile of the same without unreasonable delay of MIS’s discovery of the Data Breach. Notification shall take the form of a phone call, followed by written notice to Client or any other contact that Client later designates as its notice address for purposes of this Attachment. Such notice shall include at a minimum: (i) a reasonably detailed description of the breach; (ii) the categories and approximate number of individuals affected and the categories and approximate number of Personal Information records concerned; (iii) the corrective action MIS is taking, including mitigation; (iv) expected resolution time (if known); and (v) the name and phone number of the MIS representative that Client may contact to obtain updates. MIS will make reasonable efforts to identify and remediate the cause of such Data Breach. MIS will provide reasonable assistance to Client in the event that Client is required under applicable Data Protection Law to notify any governmental authority or supervisory authority or any individuals of a Data Breach. All of the foregoing under this Section 7 shall be at the sole cost and expense of MIS to the extent that any part of the Data Breach occurred as a result of or was enabled by MIS’s breach of this Attachment.
8. Written Program.
- MIS represents and warrants that it has a written program providing for the training of its employees and others handling Personal Information on MIS’s behalf on how to perform MIS’s obligations under this Attachment. MIS further represents and warrants that it shall remain in compliance with such written program for so long as MIS has any Personal Information in its possession or control and use all necessary steps to protect Personal Information, including conducting on a regular basis assessments of foreseeable internal and external risks to the security, confidentiality and integrity of electronic, paper and other records containing personal information, and as necessary improving the effectiveness of its safeguards to limiting such risks, including employee training, ensuring ongoing employee compliance with its written program, and the development of measures for detecting and preventing security system failures.
9. Audit.
- MIS will maintain SOC II (Type 2) compliance as attested by an independent audit firm. Proof of compliance is available on request.
10. Warranty and Indemnification.
- Client represents and warrants that it has obtained consent or has another valid legal right to share Personal Information with MIS, as such legal right is defined by any applicable law or regulation pertaining to the Personal Information. MIS may incur losses as a result of any claims, actions, fines or penalties brought against MIS as a result of Client’s breach of the foregoing warranty or failure to adequately secure and/or insure Personal Information in Client’s possession. Client agrees to indemnify, defend and hold harmless, on demand, MIS, including its parent, subsidiaries, affiliates and each of their respective officers, shareholders, directors and employees (“Indemnified Parties”), from and against any third-party claims, losses, liabilities, costs or expenses (including reasonable attorneys’ fees and expenses) arising out of or in relation to Client’s failure to comply with this Attachment. Client agrees that, without limiting any of its other rights or remedies under the Agreement or at law, MIS will have the right to terminate the Agreement upon written notice to the Client in the event of breach by Client (or a third party working on behalf of MIS) of any of its Personal Information obligations under this Attachment. This Section 10 shall survive any termination or expiration of this Attachment.
11. Term of Attachment.
- This Attachment shall terminate or expire at the time that MIS no longer retains any Personal Information in its possession or control.
Summary Page
This Master Services Agreement (“Agreement”) is entered into as of the Effective Date set forth below between MIS Solutions, Inc., a Georgia corporation with its principal office at 4485 Tench Road, Suite 440, Suwanee, GA 30024 (hereinafter “MIS”), and the Client listed in “Client Legal Name” below. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
This Summary Page, along with the General Terms, Exhibits, and any Attachments hereto, make up the entire agreement between the parties. In the event of a conflict within the Agreement, the order of precedence shall be first the Attachments, then the Exhibits, and General Terms.
IN WITNESS WHEREOF, MIS and Client have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives, and each represents and warrants that it is authorized to enter this Agreement.