Master Services Agreement
Master Services Agreement
This Master Services Agreement (the “Agreement”) between ExpressoDesign, LLC (the “Company”) and the company whose authorized signature appears hereto (the “Client”) is made effective as of the date indicated below the Client signature on any Proposal of Services Form, Statement of Work Form or Change Request Form (individually or together, the “Project Forms”) submitted by Client and accepted by Company. This Agreement is made available for review at all times as https://www.expressodesign.com/master-services-agreement/ (the “Agreement URL”).
This Agreement states the terms and conditions by which Company will deliver and Client will receive any or all of the development and/or hosting services provided by Company, including bandwidth, managed services, professional/support services and content delivery. Each Project Form (with exhibits attached) submitted, accepted and executed by both parties is hereby incorporated by reference herein. This Agreement is intended to cover any and all Services ordered by Client and provided by Company. Capitalized terms shall have the meanings assigned to them herein or as defined in Section 10.
- Delivery of Services; Terms.
2.1 Delivery of Services.
By submitting a Project Forms(s), Client agrees to take and pay for (i) the Service(s) during the Initial Term and for any Renewal Term, (ii) the Development Costs and Services outlined in the Project Form, (iii) any Development Costs and Services outlined in a Change Request, and (iv) certain limited services needed by Client on a “one-off” basis (“Supplemental Services”) where such services are not included within the scope of the Services as described in the Project Forms(s). Client agrees to pay Company the fees as outlined on any Project Form for Supplemental Services, and hereby authorizes Company to perform such services on its behalf. ALL SUPPLEMENTAL SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND EXCLUDE WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED in accordance with Company’s current policies and prices.
(a) Term Commencement. The term for each Service will commence on the Service Commencement Date. (b) Renewal Term(s). Upon expiration of the Initial Term, the term shall be extended automatically on a month-to-month period (“Renewal Term”), unless and until either party gives the other no less than thirty (30) days’ written notice of a termination. The termination of any Service will not affect Client’s obligations to pay for other Service(s).ices.
- Fees and Payment Terms.
3.1 Fees and Expenses.
Client will pay all fees due according to the prices and terms listed in the Project Form(s) and all other fees incurred by Client related to Hosting Services, Development Services, reinstatement of service fees and fees for upgrading account(s), all in accordance with then current Company prices and policies.
3.2 Additional Payment Terms.
Except as expressly set forth in this Agreement or on an applicable Project Form, all fees due and payments received hereunder are non-refundable and shall not be contingent on any additional services or products to be provided by Company. Except as may be expressly set forth in Section 5 herein or an applicable Project Form, Client may not withhold payment due as a result of Client’s perceived, actual or mistaken expectations of the scope, timeliness, or business success of the Services delivered.
3.3 Late payments.
Any payment not received within thirty (30) days of the invoice date of the Initial Bill and thirty (30) days of the invoice date of a Recurring Bill (respectively, a “Payment Default”) will be subject to interest on the outstanding amount at a rate of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is lower. Client also shall pay to Company all expenses incurred by Company in exercising any of its rights under this Agreement or applicable law with respect to a Payment Default or other breach by Client, including, but not limited to, reasonable attorneys’ fees and the fees of any collection agency retained by Company.
Client will be responsible for and will pay in full, except for taxes on Company net income, all taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services.
- Intellectual Property Ownership.
This Agreement does not transfer from Company to Client any Company Technology, and all right, title and interest in and to Company Technology will remain solely with Company, unless otherwise agreed to in a separate licensing rights document. This Agreement does not transfer from Client to Company any Client Technology, and all right, title and interest in and to Client Technology will remain solely with Client. Company and Client each agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors.
- Limited Warranties.
Each of the guarantees in the Project Form(s) is null and void if Client fails to follow Company’s Rules and Regulations and other policies or otherwise breaches the Agreement in any respect.
5.2 No Other Warranty.
COMPANY DOES NOT MONITOR OR EXERCISE CONTROL OVER THE CONTENT OF THE INFORMATION TRANSMITTED THROUGH ITS FACILITIES. USE OF THE SERVICES OR ANY INFORMATION THAT MAY BE OBTAINED THEREFROM IS AT CLIENT’S OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THE SERVICES IS AT ITS OWN RISK. EXCEPT AS PROVIDED IN ANY PROJECT FORM, COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
5.3 Disclaimer of Actions Caused by and/or Under the Control of Third Parties.
COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM COMPANY’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CLIENT’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). COMPANY CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
- Client Obligations.
6.1 Warranties of Client.
(a) General. Client represents and warrants that
– Client is at least eighteen (18) years of age;
– Client possesses the legal right and ability to enter into this Agreement, and the performance of its obligations and use of the Services (by Client, its customers and users) will not violate any applicable laws, regulations or the Rules and Regulations or cause a breach of any agreements with any third parties or unreasonably interfere with other Company clients’ use of Company services.
– Client assumes all risks related to processing of transactions related to electronic commerce.
(b) Breach of Warranties. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right, in its sole discretion, to suspend or terminate immediately any Services.
6.2 Compliance with Law and Rules and Regulations.
Client agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. Client will comply at all times with all applicable laws and regulations and the Rules and Regulations, as updated by Company from time to time. The Rules and Regulations are incorporated herein and made a part hereof by this reference. Company may change the Rules and Regulations upon fifteen (15) days’ notice to Client, which notice may be provided by posting such new Rules and Regulations at the Agreement URL. Client may request a current copy of the Rules and Regulations by sending a request to Company. Client agrees that it has received, read and understands the current version of the Rules and Regulations.
6.3 Third Party Rights.
Client shall not (i) remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any Third Party Product (as defined in Section 7.4) or that appear during use of any Third Party Product; or (ii) reverse engineer, decompile, or disassemble any Third Party Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- Limitations of Liability.
7.1 Delays and Interruptions.
COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OF DATA RESULTING FROM DELAYS, CORRUPTION OF DATA, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. CLIENT SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES, AND COMPANY SHALL HAVE NO LIABILITY THEREFOR. EXCEPT TO THE EXTENT OF COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER COMPANY NOR ITS NETWORK SERVICES SUPPLIER WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO COMPANY’S OR CLIENT’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CLIENT’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF COMPANY’S OR ITS NETWORK SERVICE SUPPLIER’S NEGLIGENCE.
7.2 Consequential Damages.
EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE.
7.3 Maximum Liability.
Notwithstanding anything else to the contrary contained in this Agreement, Company’s maximum aggregate liability to Client for any claim related to, or in connection with, this Agreement, whether in contract, tort or otherwise, shall be limited to the total amount of fees actually paid by Client to Company for the prior three (3) months.
7.4 Third-Party Platforms.
Company may provide Client access to other third party software and/or services (“Third Party Products”) through reseller relationships Company has established with certain commercial vendors. Unless otherwise notified, Client understands that product support for Third Party Products is provided by the respective manufacturer and not by Company. Neither Company nor any Third Party Vendor makes any representations or warranties, express or implied, regarding any Third Party Products. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THIRD PARTY PRODUCTS IS AT CLIENT’S SOLE RISK AND SUCH THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND FROM COMPANY OR ANY THIRD PARTY VENDOR, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES OR RESULTS, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY NOR ANY THIRD PARTY VENDOR WILL BE LEGALLY RESPONSIBLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE USE OR INABILITY TO USE ANY THIRD PARTY PRODUCT. CLIENT AGREES TO OBSERVE THE TERMS OF ANY LICENSE AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENT FOR THIRD PARTY PRODUCTS AND THAT CLIENT SHALL BE FULLY LIABLE TO THIRD PARTY VENDORS AND COMPANY WITH RESPECT TO ANY IMPROPER USE OF SUCH THIRD PARTY PRODUCTS OR VIOLATION OF LICENSE AGREEMENTS WITH THEM AND/OR APPLICABLE END USER SUBSCRIBER AGREEMENTS.
Each party agrees to indemnify and hold the other harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party against the other or its affiliates related to or arising out of any infringement or misappropriation or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any hardware or software utilized in connection with any of the Services (but excluding any infringement contributory caused by the other party) and any violation of or failure to comply with the Rules and Regulations. Client further agrees to indemnify Company and its affiliates against any losses which arise out of, or relate to any content provided by Client or the customers/clients of Client, and Client will reimburse Company and its affiliates for all legal expenses, including reasonable attorneys’ fees, incurred by Company and its affiliates in connection with any such Losses.
9.1 Termination Without Cause During Renewal Term.
This Agreement may be terminated by either party at any time during any Renewal Term for any or no reason upon either party giving to the other no less than thirty (30) days’ prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section 9.1, any and all payment obligations of Client under this Agreement for Service(s) provided through the date of termination will immediately become due, and Client shall continue to be obligated to pay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.
9.2 Termination For Cause.
In addition to any other rights it may have under this Agreement or applicable law, Company may immediately terminate this Agreement or suspend service, effective without notice, in the event of a Payment Default, or Client’s breach or failure to comply with any other obligation of Client under this Agreement including, but not limited to, its failure to comply with any of the terms of the Rules and Regulations or other policies of Company. Client may terminate this Agreement if Company breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same. If this Agreement is terminated by Company under this Section 9.2, all remaining monthly recurring and other charges specified on the applicable Project Form(s) for the balance of the then current term shall immediately become due and payable. In addition to the foregoing, Company reserves the right to prohibit any conduct or to remove any materials or content in violation of the Rules and Regulations or which Company believes in its sole discretion to be illegal or potentially harmful to others or may expose Company to harm or liability.
9.3 No Liability for Termination.
Neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
Sections 3, 4, 5, 7, 8, 9, 10 and 11 will survive any expiration or termination of this Agreement.
“Client Technology” means Client’s proprietary technology, including Client’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Client or licensed to Client from a third party) and also including any derivatives, improvements, enhancements or extensions of Client Technology conceived, reduced to practice, or developed during the term of this Agreement by Client.
“Initial Term” means the minimum term for which Company will provide the Service(s) to Client, as indicated on the Project Form(s).
“Professional Services” means any non-standard professional, consulting or support service provided by Company to Client.
“Company Technology” means Company’s proprietary technology, including Company Services, software tools, hardware designs, Web Site Presentation Designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party) and also including any derivatives, improvements, enhancements or extensions of Company Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Client or that have general applicability in the art.
“Renewal Term” means any service term following the Initial Term, as specified in Section 2.2.
“Rules and Regulations” means the Company general rules and regulations governing Client’s use of Services, including, but not limited to, online conduct and Company Acceptable Use Policy, which can be found at the Agreement URL.
“Service(s)” means the specific service(s) provided by Company pursuant to this Agreement.
“Service Commencement Date” means the date Company will begin providing the Service(s) to Client as indicated on any Project Form(s).
- Use of Client’s Name for Marketing and Promotion.
Client agrees that during the term of this Agreement Company may, at its sole discretion, publicly refer to Client, orally and in writing, as a Client of Company in resumes, client lists and in other promotional materials and communications, including, but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages.
- . Miscellaneous Provisions.
Company shall not be deemed to be in default of any provision of this Agreement or be liable for any delay, failure of performance or interruption of the provision of Services to Client resulting, directly or indirectly, from any unforeseen or force major event. Company and Client agree that, except as otherwise expressly provided in this Agreement, the Project Form(s) or the terms and conditions of use of any third party software products, there shall be no third party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Client. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN PENNSYLVANIA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTIONS AND WAIVES ALL OBJECTIONS THERETO. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Client may not sell, assign or transfer its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Company, and any attempted assignment or delegation without such consent will be void. Company may assign this Agreement in whole or part. Company also may delegate the performance of certain Services to third parties, including Company’s wholly owned subsidiaries. All notices, demands, requests or other communications required or permitted under this Agreement shall be deemed given when delivered personally, sent by facsimile upon confirmation, sent and received by return receipt email, or upon receipt of delivery of overnight mail. Company and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Company and Client. Neither Company nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once agreed to in any Project Form(s), any reproduction of such Project Forms made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in this Agreement, such Project Forms may be changed only by a written document signed by authorized representatives of Company and Client in accordance with this Section 12.
Authorized representatives of Client and Company have read the foregoing and all documents incorporated therein and, by executing the Project Form(s), agree and accept such terms effective as of the date indicated below the Client signature on any Project Form(s).