For Managed TRUX Cloud Hosting Services
This Master Services Agreement (“Agreement”) is made and entered into by the parties by and between Evenhouse Consulting, Inc. (“ECI”) and the Client (“Client”). Hereinafter both ECI and Client may be referred to collectively as the Parties.
Whereas, ECI is in the business of hosting and providing related support services for customers using the TRUX software application;
Whereas, Client desires to retain the services of ECI to host one or more instances of the TRUX software application as set forth in more detail below;
NOW THEREFORE, in consideration of the covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree to the following:
1.1. Host – Evenhouse Consulting, Inc.
1.2. Account Owner, User, You, Your – Client.
1.3. Fees – The Initial Setup Fees, Recurring Fees and Non-Recurring Fees
1.4. Initial Term – the period of time commencing upon the Service Commencement Date and ending one year later.
1.5 Non-Recurring Fees – any fees set forth on the Price Quotation that are due when and if a particular Service is provided or utilized, such as additional compute resources used by you during the term of this Agreement.
1.6 Recurrence Period – the period upon which you have agreed to pay for the Services as set forth in the Price Quotation, typically 1 year. For Example: May 1st, 2019 to May 1st, 2020.
1.7 Recurring Fees – the fees detailed on the Price Quotation that are due to ECI on a recurring basis throughout the term of this Agreement upon each Recurrence Period.
1.8 Renewal Term – the subsequent renewal of the Initial Term or Renewal Term, commencing upon expiration of such Initial Term or Renewal Term and ending upon expiration of the Service period set forth on the Price Quotation.
1.9 Service Commencement Date – that date upon which you (or the TRUX support team) are given access by ECI to begin using the Services.
1.10 Services – the professional services requested by you and provided by ECI as set forth on a Price Quotation.
1.11 Initial Setup Fees – the fees set forth on the Price Quotation that are due upon your approval of the Price Quotation and represent the initial fees necessary to initially setup and configure the Services.
1.12 Support- the technical support provided by ECI in connection with the Services.
1.13 Price Quotation – the agreement of Parties to provide a service or services to Client for a fee. This may take the form of a predefined ‘service package’ offered by ECI, or any fee based service defined and agreed to by both parties.
2. OVERVIEW OF SERVICES
2.1 ECI provides Managed TRUX Cloud Hosting services to clients. ECI at its sole discretion will make the determination as to whether software other than TRUX application software may be installed and operated by Client on the cloud resources managed by ECI.
2.1 ECI shall provide to Client Managed TRUX Cloud Hosting services as set forth in the accompanying Statement of Work and/or Price Quotation (The Addendums). Client hereby warrants and represents that it has reviewed the accompanying addendums, and has agreed to the Description of Services, Assumptions and Understandings, and Fees and Charges.
2.3 ECI and Client understand that additional Statements of Work may be prepared and entered into between the Parties. If subsequent Statements of Work are finalized between ECI and Client, the Parties agree this Master Services Agreement and its material terms will remain in force and effect.
3. OBLIGATIONS OF ECI
3.1 ECI provisions and manages cloud resources and services that are made available for Client’s use. In the event that such resources and services become inaccessible or unavailable, for reasons other than Scheduled Maintenance or Suspension of Service, ECI will work to restore access and availability of the resources and services as quickly and expeditiously as possible. Client recognizes that the Internet is comprised of a multitude of autonomous systems that are beyond the control of ECI. Routing anomalies, asymmetries, inconsistencies and failures of the Internet outside of the control of ECI can and will occur and such instances shall not be considered any failure of nor the responsibility of ECI to resolve.
3.2 ECI shall perform on a daily basis a backup of Client’s database(s) and server instance(s). ECI agrees to retain the Client’s daily back-up for at least 7 days from the date the backup was performed.
Although we may perform regular backups of your server and databases, we do not guarantee there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, among other things, content that is corrupted prior to being backed up or that changes during the time a backup is performed. We will provide support to you and attempt to troubleshoot any known or discovered issues that may affect your backups, but you acknowledge that we have no liability related to the integrity of your backups or the failure to successfully restore your content to a usable state.
4. OBLIGATIONS OF CLIENT
4.1 Client acknowledges that it is solely responsible for all TRUX data, including any data, transactions, transmissions, and communications initiated by the Client or by any other user of the Client’s TRUX application.
4.2 Client agrees that it will comply with all of the obligations and restrictions set forth below in the Acceptable Use Policy as set forth in section 7.
4.4 Client agrees to cooperate with any investigation initiated by ECI into service outages, security issues or any suspected breach of the terms and conditions of this Agreement or the Acceptable Use Policy as set forth in section 7.
4.5 Client agrees to pay all invoices upon receipt.
5. PAYMENT TO ECI
5.1. ECI will invoice Client according to the terms set forth in the Statement of Work or Price Quotation. Unless otherwise stated in the Statement of Work or Invoice, Client shall pay all invoices upon receipt. Unpaid invoices shall be considered in default after thirty (30) days of the due date shown on the invoice. ECI reserves the right to terminate this agreement and cancel all services for non-payment.
6. CONFIDENTIALITY AND PRIVACY POLICIES
6.1 The Parties acknowledge that during the course of the relationship contemplated herein that ECI and Client are likely to gain knowledge and access to information and materials that the Client or ECI deems to be confidential, proprietary or of strategic importance. Both Parties agree that they shall maintain the strictest confidentiality of all such materials that they receive concerning the other party hereto. They shall not disclose such confidential information to any other party, shall not use such confidential information for their own purposes, and they shall protect such confidential information from disclosure using the same or higher standards as they use to protect their own confidential information.
6.2. The Parties agree that confidential information shall be limited to disclosure within the organization of the recipient to those top management personnel and others with a bona fide need to know such information as a necessary part of their contribution to the performance under this Agreement.
6.3. For purposes of this Agreement, confidential information shall include any and all information that is of a proprietary, confidential or trade secret nature, of strategic importance, or is otherwise considered to be confidential or proprietary by either party. Confidential information will include (a) the unpublished prices and other terms of service, audit and security reports, data center designs and other proprietary technology and (b) all information transmitted to or from, stored on or otherwise processed by the servers or other devices used in the provision of the Services. Confidential Information does not include information: (i) in the public domain at the time of delivery, (ii) subsequently published or otherwise made part of the public domain through no fault of the Non-Disclosing Party or its representatives, (iii) in the Non-Disclosing Party’s possession at the time of disclosure and not acquired by the Non-Disclosing party directly or indirectly from Disclosing Party or its representatives on a confidential basis, (iv) which becomes available to the Non-Disclosing Party on a non-confidential basis from a source not under an obligation of confidentiality to the Disclosing Party, or (v) information that is independently developed without reference to the Confidential Information, as evidenced by written records maintained in the ordinary course of business and all other information deemed confidential by the parties. Confidential information shall not include items that are generally available to the public, generally known in the industry, exist in the public domain, is learned from an outside source independent from the relationship established by this Agreement or was known prior to the entering of this Agreement.
7. ACCEPTABLE USE POLICY
7.1. Client acknowledges that it has read and accepted ECI’s Acceptable Use Policy as set forth at https://garb.io/acceptable-use-policy/. The ECI Acceptable Use Policy is designed to protect ECI and Client from irresponsible and/or illegal internet based activities. The ECI Acceptable Use Policy is a non-exclusive list of the actions prohibited by ECI and ECI reserves the right to modify the Policy at any time. Any revisions to the ECI Acceptable Use Policy will be deemed effective immediately upon posting of the modified policy at https://garb.io/acceptable-use-policy/.
7.2 Each person or entity that accesses your account is required to abide by the terms of this Agreement. You acknowledge that you are fully responsible for all liabilities incurred through use of the account and Services including all damages, losses, and liabilities caused by each user. You shall promptly notify us in the event that you become aware of any violation of this Agreement. You are solely responsible for the security and confidentiality of the account information, including usernames and passwords, and you will ensure that no unauthorized party uses the account.
8. PUBLICITY RIGHT
8.1 Client grants ECI permission and a royalty-free license to list or display applicable trademarked name(s) and logos on ECI’s website and/or public client roster. ECI will be authorized to identify Client’s logo and a summary of services provided by ECI to Client.
9. TERM, TERMINATION AND SUSPENSION OF SERVICES
9.1. This Agreement shall commence on the Effective Date and shall remain in effect until the termination of services as set forth below.
9.2. This Agreement may be terminated by the Client, without cause, by providing thirty (30) days written notice of termination to ECI.
9.3. This Agreement may be terminated by ECI without cause, by giving thirty (30) days written notice of such termination to the Client.
9.4 In the event of a termination of services by Client as set forth in section 9.2 above, Client will be responsible to pay all outstanding fees and expenses incurred until the date of termination.
9.5 In the unlikely event that ECI may need to suspend services to Client, Client agrees that ECI may suspend providing the Services to Client, in whole or in part, for the following reasons: Client has: (i) failed to pay the undisputed Fees due to ECI for a period of thirty (30) days after the date of the invoice, (ii) Client is in violation of the Acceptable Use Policy and has failed to remedy violation within a commercially reasonable time, (iii) Client failed to reasonably cooperate with ECI’s investigation of any suspected breaches of this Agreement or Acceptable Use Policy; (iv) ECI reasonably believes that the servers hosting the Services have been accessed or manipulated by a third party without Client’s or ECI’s consent; (v) ECI reasonably believes that suspension of the Services is necessary to protect ECI and its other clients from a suspected breach of Client’s hosted resources; or (vi) ECI is obligated to suspend Services via subpoena, court order or otherwise as required by Federal or State law.
9.6 In the unlikely event that ECI has suspended services to Client, ECI will give Client immediate notice and work with Client to resolve any issues.
9.7 In the event that ECI has suspended services to Client due to provisions 9.5 (ii), (iii) or (vi) Client is required to pay any Recurring Fees for any period of time during which your Services were suspended. Client is not responsible to pay Recurring Fees for any period of time during which your Services were suspended due to provisions 9.5 (i), (iv) or (v). ECI will restore the Services promptly after Client or ECI has remedied the reason for any suspension of services.
10. WARRANTIES AND REPRESENTATION/LIMITATION OF LIABILITY
10.1 ECI warrants and represents that it shall provide the hosting services to Client as set forth in this agreement. Except for this warranty, ECI disclaims any and all other warranties, express or implied including without limitation the following: ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED RELATING TO THE ECI HOSTING SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
ECI MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF ANY DATA TRANSMITTED OVER THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH THE INTERNET OR THE SERVERS UPON WHICH THE SERVICES ARE PROVIDED.
10.2 In no event shall ECI’s total cumulative liability arising out of or related to this agreement or the services provided in any Statement of Work from all causes of action of any kind, including but not limited to Contract, Tort (including Negligence), Strict Liability, Breach of Warranty, Misrepresentation or otherwise exceed the amount paid to ECI by Client for services in the six (6) months preceding the date on which the event giving rise to the claim occurred.
10.3 ECI will not be liable to Client for the costs of procurement of hosting services, lost profits, lost sales, business expenditures, investments, business commitments, loss of any goodwill or any indirect, special, incidental, punitive or consequential damages arising out of or related to this agreement however caused on any theory of liability, whether or not ECI has been advised of the possibility of such damage.
10.4 In no event shall ECI’s total cumulative liability arising out of or related to this agreement or the use and generation of the Work Product set forth in any Statement of Work from all causes of action of any kind, including but not limited to Contract, Tort (including Negligence), Strict Liability, Breach of Warranty, Misrepresentation or otherwise exceed the amount paid to ECI by Client for the Work Product.
10.5 The Parties agree that ECI has set its price and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose or cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
11.1 ECI shall defend, indemnify and hold Client harmless from and against any and all costs, liabilities, judgments, actions, losses and expenses (including, but not limited to, reasonable attorneys’ fees and fees of experts) (collectively, “Losses”) arising out of any threatened or actual claim, suit, action, arbitration or proceeding (collectively, “Claims”) by any third party arising out of or relating to (i) Host’s breach of confidentiality, gross negligence or willful misconduct; (ii) a claim that the services provided by ECI, under this Agreement, infringe upon a United States or United Kingdom patent or copyright or other intellectual property right of a third party. Client must provide ECI (a) prompt written notice of the claim; (b) you permit ECI sole control over the defense and settlement of the claim and (c) reasonably cooperate with ECI in the defense and or settlement of the claim.
11.2 Client shall defend, indemnify and hold ECI or any of its respective employees, agents or suppliers, harmless from and against any and all Losses arising out of or relating to (i) your gross negligence or willful misconduct or (ii) your use of the Services in violation of the Acceptable Use Policy or the Federal or State law; provided that (a) ECI gives Client prompt written notice of the claim, (b) ECI permits Client to have sole control over the defense and settlement of the claim and (c) ECI reasonably cooperates with Client in the defense and or settlement of the claim. Client’s indemnification obligations include claims arising out of acts or omissions by your employees or agents, users and any other person who gains access to Client’s data, websites, and hosted resources as a result of Client’s failure to utilize reasonable security measures.
12.1. Any notification or written communication required by or contemplated under this Agreement shall be in writing and shall be deemed to be delivered if transmitted via email at the email addresses listed below, except for any notice of termination of this Agreement which shall be in writing and sent by United States Mail, Certified Mail, Return Receipt Requested and shall be deemed to have been delivered five (5) days after the date of mailing. Addresses and email addresses for such notices shall be:
If To ECI refer here: https://evenhouseconsulting.com/talk-to-us.
If To Client refer to Account record.
12.2. The Parties agree that ECI shall be an independent contractor and not an agent, employee or representative of Client. Client shall have no right to direct or control the details of ECI’s work. ECI shall not receive any fringe benefits or other perquisites that the Client may provide to its employees and ECI agrees to be responsible for its own business overhead and costs of doing business and to furnish (or reimburse Client for) all tools and materials necessary to accomplish the services required of the ECI pursuant to this Agreement, and shall incur all expenses associated with performance, except as expressly provided in Exhibits or amendments to this Agreement. ECI shall be responsible for paying all taxes on payments received pursuant to this Agreement and that Client shall have no obligation to withhold taxes from service fees payable to the ECI hereunder. ECI hereby indemnifies and holds the Client harmless any obligation that may be imposed on Client (i) to pay in withholding taxes or similar items or (ii) resulting from ECI’s being determined not to be an independent contractor.
12.3 Except as specifically provided in this Agreement, the parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this Agreement shall be submitted to binding arbitration to be held in Dupage County, Illinois in accordance with the rules of the American Arbitration Association (the “Rules”). The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. Each party shall bear the costs of its counsel. In addition to any award, the arbitrator shall have the right to assign the costs of the arbitration as the arbitrator deems just and equitable.
12.4. In interpreting the terms of this Agreement, the parties agree that the laws of the State of Illinois shall be applicable.
12.5. Parties shall retain all right, title and interest in and to each party’s respective intellectual property rights, including without limitation, all patents, inventions, trademarks, copyrights and trade secrets. Any intellectual property used, developed or otherwise reduced to practice in providing the Services to Client shall be the sole and exclusive property of ECI and/or its licensors. Client acknowledges and agrees that it does not acquire any ownership interest in any of the servers or other hardware used to provide the Services hereunder. Similarly, ECI does not acquire any ownership interest in the content or data that Client stores on the servers or transmit via the Services. Client acknowledges and agrees that third party software and hardware are used in the provision of Services. Accordingly, Client agrees to abide by the terms and conditions of any end user licenses or other agreements relating to the use of such hardware or software.
12.6. This Agreement, and any Statement of Work attached hereto, contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject matter of this Agreement. This Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representatives of the parties. If any provisions hereof are deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability of effectiveness of the remainder of the Agreement shall not be affected and this Agreement shall be enforceable without reference to the unenforceable provision. No party’s waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach.
12.7. This Agreement shall become effective upon the Client’s first use of our services.