Master Services Agreement
This Agreement is between Protected Trust, LLC, a Florida limited liability company (sometimes referred to as “we,” “us,” “our,” OR “Provider”), and Protected Trust Client (sometimes referred to as “you,” “your,” OR “Client”), as of the date signed below by both parties (the “MSA Effective Date”).
The parties agree as follows:
STATEMENT OF SERVICES
The services to be delivered by Provider (the “Services”) and the fees for those Services, and the specific terms applicable to those Services are described in one or more Service Attachments referencing this Agreement.
Except for Project Services (described below), and unless otherwise agreed in writing, the services we will deliver to you are limited to those Services specifically identified in the Service Order and described in the Service Attachments. In the event of any conflict between the terms of a Service Attachment and this Agreement, the terms in the Service Attachment control.
You will incur additional Service Fees for services other than the Project Services. We will notify you of any such additional Service Fees and will obtain your approval prior to providing them.
In some cases, you may ask us to deliver services outside the scope of any Service Attachment and inappropriate for treatment as Supplemental Services. Examples of such services include major system upgrades or datacenter moves or setups. In those cases, we will prepare a separate Service Attachment for Project Services describing the proposed scope of those services and our fee to deliver them.
FEES FOR SERVICES | PAYMENT TERMS
Fees for Services are set forth in a Pricing Addendum or Statement of Work.
Adjustments to Service Fees
Except as may be specified in a Service Attachment, we may adjust the Service Fees charged under this agreement as follows:
- End-User or Network Growth. During the term of a Service Attachment, if the number of users in your environment or the Service or Equipment types or quantities to be covered within the scope of the Service Attachment exceeds the numbers, types or quantities previously ordered, we may apply a pro rata adjustment to the total Service Fees based on our then-current fee rates. You shall pay all Service Fees owed as they become due following any such adjustment.
Similarly, during the term of a Service Attachment, if the number of users in your environment or the Service or Equipment types or quantities to be covered within the scope of the Service Attachment is less than the numbers, types or quantities previously ordered, upon request, we will apply a pro rata adjustment to the total Service Fees based on our then-current fee rates. You shall pay all Service Fees owed as they become due following any such adjustment. However, under no circumstances may any such adjustments result in a number of users in your environment or in any Service or Equipment types or quantities to be covered within the scope of the Service Attachment that is less than the numbers, types or quantities ordered at the time you signed that Service Attachment.
- Surcharges. At any time after the parties sign a Service Attachment, we may adjust our rates and charges or impose additional rates and charges to recover amounts required or permitted by governmental or quasi-governmental authorities to collect from others or pay to others in support of statutory or regulatory funds or programs. You shall pay all Service Fees owed as they become due following any such adjustment.
- Service Fee Rate Increases. At any time after the parties sign a Service Attachment, we may elect to raise the fees that we charge under that Service Attachment. We shall give you no less than thirty (30) days’ notice of any such increase in fees to be charged. Following your receipt of such notice, you may terminate this Service Attachment without incurring any additional charges or penalties, if any, that you ordinarily would incur for such termination.
Client shall pay Provider’s reasonable out-of-pocket expenses, including travel expenses, lodging, meals, or other similar expenses, which may be incurred by Provider in performing Services. Any such “Pass-Through Expenses” will be billed at cost and invoiced monthly.
You shall pay the full amount reflected on any invoice as owed to us within ten (10) days following your receipt of that invoice. You shall pay a late charge of one and one half percent (1.5%) per month or the maximum lawful rate, whichever is less, for all invoiced amounts not paid within ten (10) days following your receipt of that invoice (the “Payment Deadline”). All international transactions must be paid by credit card, wire transfer, or ACH payment. Checks will not be accepted for international transactions.
If you dispute in good faith all or any portion of the amount owed to us, or if you otherwise require any adjustment to an invoiced amount, you must notify us in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If we are unable to resolve the dispute prior to the Payment Deadline, you nevertheless shall pay the entire invoiced amount by the Payment Deadline. If we ultimately determine that such amount should not have been paid, we shall apply a credit equal to such amount on against any Service Fees owed for the following month. If no Service Fees are owed the following month, the credit amount will be refunded to Client.
Suspension of Service
If you fail to pay all amounts owed under this agreement when due, then upon at least three (3) days prior written notice, and in addition to any other remedies available to us, we may suspend Services under this agreement until full payment is made. Following any suspension of service under this provision, and after you make full payment to us, we shall restore the Services after validating that all components to be monitored and/or managed under any applicable Service Attachment comply with our level of security, updates and best practices. You shall pay a “Reactivation Fee” for such restoration equal to $250.00. Our right to suspend Services under this section is in addition to our right to terminate this agreement.
All charges and fees owed under this agreement are exclusive of any applicable sales, use, excise or services taxes that may be assessed on the provision of the Services. In the event that any taxes are assessed on the provision of any of the Services, you shall pay the taxes directly to the taxing authority or shall reimburse us for their payment.
TERM AND TERMINATION
This agreement commences on the MSA Effective Date, and it will remain in effect until either party terminates it as permitted below.
Either party may terminate this Agreement for any reason or no reason upon at least thirty (30) days advance, written notice given to the other party. However, termination of this Agreement will not, by itself, result in the termination of any Service Attachments, and this Agreement will remain in effect notwithstanding any notice of termination unless and until all Service Attachments are terminated or expire according to their terms.
We perform all Services solely as an independent contractor and not as an employee, agent or representative of Client.
INTELLECTUAL PROPERTY RIGHTS
Any writing or work of authorship, regardless of medium, created or developed by Provider prior to, during or in the course of performance under this Agreement, whether or not related to existing works owned by Provider, is a “Provider Work,” is not to be deemed a “work made for hire,” and is and will remain the sole, exclusive property of Provider.
License to Provider Works
Provider hereby grants Client a limited, non-exclusive, revocable, royalty-free license to use any Provider Works described in the Service Attachment for Client’s internal business purposes only during the term of this MSA.
You shall not:
- Modify, copy or create derivative works based on the Services or on the Provider Technology;
- Build a product or service using similar ideas, features, functions or graphics of the Service, or
- Copy any ideas, features, functions or graphics of the Service.
Additional license restrictions may be set forth in the Service Attachments.
Improvements to Services
You hereby assign to us any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your users relating to any proposed improvements of or modifications to the Services.
Neither party grants the other the right to use its or any of its affiliates’ trademarks, trade names, logos or other designations in any promotion, publication, or website, without prior written consent.
“Equipment” means any computer, networking or telephony equipment, racking, or associated hardware or other equipment (if any) that we install on your premises or that we ship to your location to facilitate the delivery of Services. Equipment does not include any hardware or devices that we may sell to you or that we may procure on your behalf.
Provider is and will remain the sole owner of any Equipment, which is provided on a rental basis only. Our agreement transfers to you no Equipment ownership rights of any kind.
We retain sole discretion to determine the appropriate Equipment and associated software and/or technology, if any, to be used at your location, provided that our determination does not materially impair the availability or delivery of services under this agreement. We also retain sole discretion to determine the necessity of maintenance, repairs and/or improvement of the Equipment.
Except as otherwise may be specified in an applicable Service Attachment, Provider makes no independent representations or warranties with respect to the Equipment. Any third-party warranties are your exclusive remedies with respect to such Equipment. In the event of an Equipment malfunction, we will take commercially reasonable steps to ensure that you receive the benefit of any manufacturer warranties applicable to the Equipment in use at your location.
You shall take reasonable care of the Equipment and shall not damage it, tamper with it, move or remove it, attempt to repair it, or attempt to install any software on it. You are financially responsible, up to the full replacement value of all Equipment, for all damage to or loss of the Equipment used at your location, other than loss or damage caused by Provider. In addition, you shall obtain and maintain insurance with a reputable insurer for the full replacement value of the Equipment. Such policy or policies of insurance must cover the Equipment against loss or damage (including, without limitation, accidental loss or damage) and must name Provider as an insured beneficiary with respect to the Equipment. Upon demand, you must produce evidence that such insurance is being maintained and is valid.
You are responsible for providing the necessary power, network connection and appropriate environment to support the Equipment.
You shall not remove any sign, label or other marking on the Equipment identifying Provider as the owner of the Equipment. You do not acquire and will not acquire any rights of ownership in the Equipment by virtue of this agreement, and you do not have and will not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Equipment.
On termination of any agreement pursuant to which we deliver Equipment, you shall allow Provider and its employees and contractors reasonable access to your premises to remove the Equipment. Alternatively, upon our request, you shall return the Equipment to us via the carrier of our choice, for which we will pay all applicable shipping charges.
“Software” means all and any software installed on the Equipment or provided by us to for installation on your computer equipment to facilitate the delivery of the Services.
This agreement does not transfer any right, title, or interest in the Software to you. Your use of the Software is subject to all applicable terms of any end-user license agreement pertaining to the Software, a copy of which will be made available to you upon request.
You shall not, and shall not permit any third party, to:
- distribute or allow others to distribute copies of the Software or any part thereof to any third party,
- tamper with, remove, reproduce, modify or copy the Software or any part thereof,
- create any derivative work of the Software or any portion thereof,
- provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or
- reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law.
NON-DISCLOSURE AND CONFIDENTIALITY
During the course of performance under this agreement, either party may be exposed to or may acquire the other’s proprietary or confidential information. Each of us shall hold all such “Confidential Information” in strict confidence and shall not disclose any such information to any third party.
Confidential Information includes but is not limited to: (a) with respect to Provider, Provider’s unpublished prices for Services, audit and security reports, server configuration designs and other proprietary technology, (b) with respect to Client, content transmitted to or from, or stored by Client on, Provider’ servers, and (c) with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure.
When one party (“Discloser”) provides Confidential Information to the other party (“Recipient”), the Recipient will:
- Hold such Confidential Information in strict confidence using the at least the same standard of care as it uses to protect its own confidential information but not less than a reasonable standard of care;
- Not use or disclose such Confidential Information for any purpose except as necessary to fulfill its obligations under this agreement or as required by law, provided that Discloser, if permitted by law, is given a reasonable opportunity to obtain, at its expense, a protective order, with which Recipient will reasonably cooperate; and
- Limit access to such Confidential Information to its employees, agents and contractors who have executed a confidential disclosure agreement that is at least as restrictive as this agreement, and who need the Confidential Information to fulfill obligations under this agreement.
Notwithstanding the preceding provision, Confidential Information does not include:
- Information that at the time of disclosure is, without fault of the recipient, available to the public by publication or otherwise;
- Information that either party can show was in its possession at the time of disclosure and was not acquired, directly or indirectly, from the other;
- Information received from a third party with the right to transmit same without violation of any secrecy agreement with the other party; and
- Information that must be disclosed pursuant to court order or by law.
- Information that was developed independently by either party.
No copy of this MSA, discussions, negotiations, terms or conditions relating to the MSA, or any other information relating to this MSA may be disclosed to any third party, except by reason of legal, accounting or regulatory requirements, without the prior written consent of the parties hereto.
Notwithstanding the preceding provisions, Provider may publicly refer to Client, orally and in writing, as a Client of Provider. Any other reference to Client by Provider may be made only pursuant to a written agreement between the parties.
Upon the termination of this agreement (or earlier if requested by a party) the Recipient will, subject to this agreement and at its sole reasonable cost, destroy all copies of documents, papers, electronic files or other material which may contain or be derived from the Confidential Information, which are in Recipient’s possession or control, except as required for regulatory books and records policies. Recipient will, if requested by Discloser, provide a certificate signed by Recipient in form and substance satisfactory to Discloser, stating that all the Confidential Information has been destroyed.
Business Associate Agreements (“BAA”)
The parties agree that, as to protected health information of Discloser or its patients or clients which is transmitted to or held by Provider, such information shall be held and protected in accordance with the terms of the BAA.
BUSINESS ASSOCIATE AGREEMENT
For health care industry clients, in the event of a conflict between the terms of the section entitled “Non-Disclosure and Confidentiality” of this agreement and the Business Associate Agreement (“BAA”) attached hereto, then as to such protected health information, the more protective terms shall apply.
CLIENT COVENANTS AND OBLIGATIONS
Unless specifically otherwise agreed to in an applicable Service Attachment, Client represent and warrant that Client has title to or license or rights to use or modify and have license or rights to permit Provider to use, access or modify any software that you have requested Provider use, access or modify as part of the Services.
Client shall properly install, configure, update, upgrade, monitor, and control all software on each virtual and physical device to the fullest extent of its authorized control.
Client shall supply Provider necessary access to its personnel, appropriate documentation and records and facilities in order for Provider to timely perform the Services.
Client is responsible for any third-party vendor or service provider charges and to arrange for disconnection or termination and payment of charges related to the disconnection or termination of any related services with your current carrier(s) or service provider(s).
Unless specifically otherwise agreed to in an applicable Service Attachment, it is Client’s sole responsibility to determine whatever actions deemed necessary to make Client’s data and voice networks and circuits secure from unauthorized access. Provider is not responsible for the security of your network and circuits from third parties, or for any damages that may result from any unauthorized access to your network. Notwithstanding the forgoing, Client shall use reasonable and appropriate security practices to safeguard all systems and to ensure the confidentiality, integrity, and availability of data. Client shall immediately notify Provider, in writing, of each security breach.
Theft of Service
Client shall notify us immediately, in writing, by electronic mail or by calling the Provider customer support line, if Client becomes aware at any time that the Services are being stolen or used fraudulently. Failure to do so in a timely manner may result in the immediate termination of the Services and additional charges to billed to you. Client will be liable for all use of the Service using Equipment stolen from you and any and all stolen Service or fraudulent use of the Services. Credits will not be issued for charges resulting from fraud that arises out of third parties hacking into any Equipment. This includes, but is not limited to, modem hijacking, wireless hijacking or other fraud arising out of a failure of your internal/corporate procedures. Provider will not issue credit for invoiced charges for fraudulent use resulting from your negligent or willful acts or those of an authorized user of your service.
Client equipment must be maintained under manufactures warranty or maintenance contract. All fees, warranties, and liabilities against Provider assumes equipment is under manufactures warranty or maintenance contracts.
Unless specifically otherwise agreed in to an applicable Service Attachment, Client must maintain local backup of all files that are sent to either the cloud or for data backup services. Client will be solely responsible for lost data for not keeping and providing a local backup of all files to Provider.
Client shall comply with all applicable laws, provider policies and procedures, and governing software licenses.
Client shall not maliciously or intentionally interfere with Services operations, including but not limited to circumventing any administrative, physical, or controls of any facility or system, or impairing the availability, reliability, or quality of service.
Client shall maintain the confidentiality and security of login credentials.
Client shall authorize and de-authorize users of its account and maintain records of the same for a minimum of one (1) year after the termination of this agreement.
Client shall cooperate with all investigations of issues related to the Services and this agreement.
Changes to Account Information
Client shall promptly notify Provider of any changes to account information, including but not limited to billing contact information.
Used or Leased Space
Client shall adhere to the following provisions for any space used or leased by Client in Provider’s facility:
- Except for the performance of those Services and responsibilities assumed by Provider hereunder, maintain each such space in good condition and repair, and will keep the same clear of all refuse, cardboard or any potentially hazardous or combustible materials; and
- Not make or allow to be made any structural or non-structural alterations, additions or improvements to any such space without first obtaining the written consent of Provider, which consent may be granted or withheld by Provider in its sole and absolute discretion. For purposes of illustration, non-structural alterations, additions or improvements would include cutting of the floor, bolting of apparatus into the floor, but would not include adding hardware to a rack, or adding cable management systems, as long as the cable management is not permanently attached to or permanently alters a Provider-provided rack. In no event will Client install any racks or access or perform any work under any raised floor. In connection with Client’s making of any alterations, additions, or improvements approved by Provider, Client will employ only such contractors as are qualified to and do perform the same in a good workmanlike and professional manner, in compliance with all applicable laws, ordinances, rules and regulations of any and all agencies and authorities having jurisdiction. In no event will Client have the right to create or permit there to be established any lien or encumbrance of any nature against any such space or facility for said installation, alteration, addition or improvement. Client will promptly pay for any labor or materials furnished to or on behalf of Client in connection with the assembly and installation within any such space, or any other alterations, additions or improvements approved by Provider.
- Not permit any liens to be placed against any Provider space or facility. Client will immediately “bond-over” or pay any lien claim related to work or services performed on Client’s behalf together with all proper costs and charges pertaining to the same and will have any such lien released at Client’s sole cost and expense. Client will not sign or otherwise provide any notice of commencement which has not been approved in advance by Provider.
- Client shall maintain insurance coverage in full force and effect, at all times during the term of this agreement outlined in the section labeled INSURANCE.
- Client will ensure and be solely responsible for ensuring that its contractors that access the facility maintain adequate insurance coverage. Prior to installation of any Client Equipment in the Client Space, Client will:
- Deliver to Provider certificates of insurance which evidence the minimum levels of insurance set forth above; and
- Cause its insurance provider(s) to name Provider as an additional insured on the liability policies and notify Provider in writing of the effective date thereof and of any non-renewal, cancellation or other material change in Client’s coverage at least thirty (30) days prior to such change in coverage.
Client shall may each payment to Provider for the Services in the full amount due and by the date it is due.
Internal Network Security Compromise Policy
Provider monitors the availability and performance of its internal firewall and web caching system. This process involves monitoring for intrusion attempts and potential security breaches. In order to minimize a possible compromise of security, all services and applications exposed to the Internet on Provider’s servers are updated with all commonly available security hotfixes and best practices. As appropriate, Provider proactively evaluates, investigates and reports security-related incidents to the appropriate authorities. Provider also monitors and proactively manages the anti-virus protection of its servers and applications using industry-recognized anti-virus software systems.
Performance of Service
The Services will be performed in a professional manner in accordance with reasonable industry standards and as described in an applicable Service Attachment. All Services will be deemed to be accepted unless Client notifies Provider in writing within ten (10) working days after performance. Provider promptly will correct any non-conformities and will notify Client in writing that the non-conformities have been corrected.
DISCLAIMER OF WARRANTY
PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, WITHOUT LIMITATION, PROVIDER MAKES NO WARRANTY ARRISING OUT OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE AND PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT THE SERVICES WILL MEET CUSTOMERS REQUIREMENTS, OR THAT THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD-PARTIES. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE TEMPORARY LOSS OF SERVICE AVAILABILITY. PROVIDER SHALL HAVE NO OBLIGATION WITH RESPECT TO A WARRANTY CLAIM (i) IF NOTIFIED OF SUCH A CLAIM AFTER THE WARRANTY PERIOD OR (ii) IF THE CLAIM IS THE RESULT OF THIRD-PARTY HARDWARE OR SOFTWARE FAILURES, OR THE ACTIONS OF CLIENT OR A THIRD PARTY. PROVIDER DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OR REPRESENATION OF ANY KIND ON ITS BEHALF AND CUSTOMER SHOULD NOT RELY UPON ANYONE MAKING SUCH WARRANTIES OR REPRESENATIONS.
IN ADDITION, CUSTOMER ACKNOWLEDGES THAT THIS AGREEMENT CONVEYS NO WARRANTIES, EXPRESS OR IMPLIED, BY ANY THIRD-PARTY VENDORS OF SOFTWARE PRODUCTS MADE AVAILABLE TO CUSTOMER BY PROVIDER AND THAT THOSE VENDORS DISCLAIM ANY AND ALL LIABILITY, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM THE SERVICES.
ACCESS RESTRICTION OR REMOVAL
In order to protect its business or its clients, Provider may restrict or remove access to the Services without prior notice or liability for any consequences resulting from such actions. Provider will notify affected clients as soon as reasonably practical following any such access restriction or removal.
You shall not solicit any Provider employee with whom you have had direct contact in connection with the Services for employment with you or with any other person during the Term of this agreement and for twelve (12) months following termination of this agreement. Notwithstanding the foregoing, you shall not be precluded from (a) hiring an employee of Provider who independently approaches you, or (b) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on Web sites for general circulation.
You acknowledge that injury resulting from any breach of this provision would be significant and irreparable and that it would be extremely difficult to ascertain the actual amount of damages resulting from such breach. Therefore, in the event of a violation of this provision, in addition to any other right Provider may have at law or in equity, you shall make a one-time payment to Provider in the amount of one hundred and fifty percent (150%) of the affected employee’s base salary for one year. We agree that such amount is not intended as a penalty and is reasonably calculated based upon the projected costs the injured party would incur to identify, recruit, hire and train suitable replacements for such personnel.
Waiver of Jury Trial
The parties waive any right to a jury trial in any proceeding arising out of or related to this agreement.
Each of us shall attempt to settle amicably by mutual discussions any disputes, differences, or claims related to this agreement within sixty (60) days of the date any such dispute arises. Failing such amicable settlement, any such dispute, including claim related to the existence, validity, interpretation, performance, termination or breach of this agreement, is to be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English. The Arbitration Tribunal will not have the authority to award punitive damages to either party. Each of us will bear our own expenses, but we shall share equally the expenses of the Arbitration Tribunal and the AAA. Any arbitration award will be final, and judgment thereon may be entered in any court of competent jurisdiction. The arbitration will be held in Polk, County, FL, or at another location upon which we may agree. Notwithstanding the foregoing, claims for preliminary injunctive relief, other pre-judgment remedies, and claims for your failure to pay for Services may be brought in a state or federal court in the United States with jurisdiction over the subject matter and parties.
If Provider initiates a dispute against Client for payment of fees or collection costs, Provider will be entitled to attorney’s fees.
Period for Bringing Claim
No claims to be resolved may be made more than six (6) months after the date by which the fault or failure should reasonably have been discovered; failure to make such a claim within the six (6) month period shall forever bar the claim.
Unless Provider is bringing an action for your failure to make payments for Services not otherwise in dispute, we will continue to provide Services under this agreement, and you shall continue to make payments to us, in accordance with this agreement, during the period in which the parties seek resolution of the dispute.
Client shall defend, indemnify and hold Provider harmless against all costs and expenses, including reasonable attorney’s fees, associated with the defense or settlement of any claim that:
- Provider’s use, access or modifications of any software that you have requested that we use, access or modify as part of the Services infringes any patent, copyright, trademark, trade secret or other intellectual property right, or
- Client’s use of any Services in violation of any any law.
You further shall pay any judgments or settlements based on any such claims.
Subject to the limitation of liability set forth in the section titled LIMITATION OF LIABILITY, Provider agrees to indemnify and hold Customer harmless from and against all loss, liability, and expense including reasonable attorney’s fees caused by Provider’s:
- Services infringement or any United States patent, copyright, trademark or trade secret of a third party; or
- intentional misuse of the Confidential Information of Client.
Provider will have no liability under this section that arises out of the use of the Services by the Client in violation of this agreement.
The indemnified party will promptly notify the indemnifying party of any claim or action (although failure to do so will only relieve the indemnifying party of its obligations hereunder to the extent the indemnifying party was prejudiced thereby). The indemnified party will reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense of any such claim or action. The indemnifying party will have full control over the defense and settlement of any such claim or action as described in this agreement. The indemnified party will have the right, at its own expense, to participate in the defense of any such claim or action. The indemnifying party will have total control over all negotiations for the settlement or compromise of a claim or action, which such party is required to defend and/or handle; provided that such settlement or compromise is solely monetary in nature. Without limiting the generality of the foregoing, the indemnifying party may not, without the other party’s prior written consent, settle, compromise or consent to the entry of any judgment in any such commenced or threatened claim or action, unless such settlement, compromise or consent: (a) includes an unconditional release of the relevant indemnified party from all liability arising out of such commenced or threatened claim or action; and (b) does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, the relevant indemnified party or otherwise adversely affect the relevant indemnified party.
LIMITATION OF LIABILITY
EXCEPT AS MAY BE DESCRIBED IN AN APPLICABLE SERVICE DESCRIPTION OR IN A SERVICE AGREEMENT FOR PROJECT SERVICES, PROVIDER’ LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CUSTOMER AND PAID BY THE PROCEEDS FROM ANY APPLICABLE PROFESSIONAL LIABILITY INSURANCE POLICY HELD BY PROVIDER, TOGETHER WITH ANY SELF-INSURED RETENTION AMOUNTS IN CONNECTION WITH THOSE POLICIES. IN THE EVENT OF AN INSURANCE COVERAGE DISPUTE, PROVIDER IS NOT REQUIRED TO DISPUTE THE COVERAGE DETERMINATION AND IS NOT REQUIRED TO FILE A DECLARATORY JUDGMENT ACTION.
IN NO EVENT IS PROVIDER LIABLE TO CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, INDIRECT OR PUNITIVE DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST OR IMPUTED PROFITS OR REVENUES, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, DAMAGES TO SOFTWARE OR FIRMWARE, OR COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, OR LOSS FROM INTERRUPTION OF BUSINESS, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF WHETHER THE FORM OF ACTION IS IN CONTRACT, TORT OR OTHERWISE.
PROVIDER IS NOT LIABLE FOR DAMAGES TO, OR LOSS OR THEFT OF, CLIENT’S PERSONAL PROPERTY, DATA, CONTENT, SOFTWARE OR OTHER EQUIPMENT OR MATERIALS LOCATED AT, USED BY, OR TRANSMITTED TO OR FROM PROVIDER. UNDER NO CIRCUMSTANCES WILL PROVIDER BE CONSIDERED THE OFFICIAL CUSTODIAN OR RECORD KEEPER OF CLIENT’S DATA FOR REGULATORY OR OTHER PURPOSES.
Client Obligations: Client shall maintain reasonable insurance coverage through its respective carriers. Such insurance must include, at a minimum: (a) Commercial general liability insurance (including products and completed operations) in an amount not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury and property damage; (b) Workers’ compensation insurance in an amount not less than that required by applicable law; and (c) “All-risk” personal property insurance sufficient to cover the Client materials at their replacement cost; and (d) All insurance required will be written by insurance companies having a minimum AM Best rating of “A minus.”
Provider Obligations: We agree to maintain during the Term, Commercial General Liability Insurance in the aggregate of not less than $2 million, and Technology Professional Liability insurance in the aggregate of not less than $2 million, which includes: (1) coverage for Professional and Technology Services Liability, Technology Products Liability, Network Security and Privacy Liability, and Breach Event Services and Expenses; and (2) the following sublimits of liability (as each is defined in the policy): (a) $2 million for each Claim (b) $500,000 for each Regulatory Claim; (c) $2 million for Breach Consultation Services; (d) $125,000 for Breach Notification and Credit Monitoring Services; and (e) $125,000 for Breach Management Expenses. This does not include insurance for Media and Advertising liability.
Except as otherwise provided under this agreement, all notices, demands or requests to be given by any party to the other party shall be in writing and shall be deemed to have been duly given on the date delivered in person, or sent via fax, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested, and addressed as set forth on the Service Order.
If to Provider, to:
Protected Trust, LLC
PO Box 111
Winter Haven, FL 33882
If to Client, to:
[STREET ADDRESS LINE 1]
[STREET ADDRESS LINE 2]
[CITY, STATE, ZIP]
Attn: [CONTACT NAME]
Fax: [FAX NUMBER]
E-mail: [EMAIL ADDRESS]
The address to which such notices, demands, requests, elections or other communications are to be given by either party may be changed by written notice given by such party to the other party pursuant to this Section.
We will not be liable for any failure of performance of the Services due to causes beyond our reasonable control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorism, riots, strikes, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over Provider or the Services provided hereunder (the “Affected Performance”).
Any party whose performance is so affected shall give written notice to the other party describing the Affected Performance. The parties promptly shall confer, in good faith, to agree upon equitable, reasonable action to minimize the impact on both parties of such condition. If the delay caused by the force majeure event lasts for a period of more than thirty (30) days, the parties shall attempt to negotiate an equitable modification to this MSA or any affected Service Attachment pertaining to the Affected Performance. If the parties are unable to agree upon an equitable modification, then either party may serve thirty (30) days’ written notice of termination on the other party with respect only to the portion of this MSA or any applicable Service Attachment relating to the Affected Performance. Client shall pay Provider for that portion of the Affected Performance that was completed or that was in the process of being completed through the effective termination date of the Affected Performance.
No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof. Any waiver must be in writing and signed by an authorized representative of the waiving party.
Neither party may assign this agreement, in whole or in part, or any of its rights or obligations hereunder without the prior written consent of the other party. However, Provider may assign or otherwise transfer its rights, interests and obligations under this agreement without your consent in the event of a change in control of 50% or more of the equity of Provider, the sale of substantially all the assets of Provider, or the restructuring or reorganization of Provider or its affiliate entities. In addition, unless otherwise agreed, we may contract with third parties to deliver some or all of the Services, and no such third-party contract is to be interpreted as an assignment of this agreement. However, we will use commercially reasonable efforts to ensure that any and all such third parties abide by all of the terms of this agreement, and, except as otherwise agreed, we will remain solely responsible for the fulfillment of all of our obligations under this agreement. This agreement is binding upon the parties, their successors and permitted assigns.
Our respective duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this agreement.
Provider may, from time to time, in its sole discretion, and for any reason, amend the Master Services Agreement and any Service Attachments posted on our web page. However, the Master Services Agreement and Service Attachments in effect as of the date that you sign the Service Order are the agreements that will govern our relationship until this agreement expires or one of us terminates it. Our agreement, as reflected in those documents, may be modified or amended only by a writing signed by both parties.
This agreement is to be governed by and construed in accordance with the laws of the State of Florida.
If any term or provision of this agreement is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfill the parties’ intention underlying the invalid term or provision.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein is to be construed to give any person or entity, other than the parties hereto and their respective successors and permitted assigns, any legal or equitable rights hereunder.
Counterparts; Electronic Transmission
This agreement may be executed in separate counterparts, each of which will be deemed an original but, all of which together, will constitute one and the same instrument. This agreement may be transmitted between the parties by facsimile or email transmission and the parties intend that faxed or electronic signatures will constitute original signatures and that a faxed or emailed agreement containing the signatures (original, faxed, or emailed) of all parties is binding.
Authority of the Parties
Provider and Client each represent to the other that, as of the Effective Date of this agreement, it:
- Is duly organized, validly existing and in good standing under the laws of the state of its incorporation, organization or laws of the United States of America, with full authority and power to execute, deliver and perform the agreement;
- Has the full right and corporate or business power and authority and has taken all necessary corporate or business action that is necessary, required or appropriate to authorize and enable it to enter into and perform all of the obligations under the agreement, and the persons executing this agreement have full and complete authority to bind the applicable party hereto under the terms, provisions and obligations stated in the agreement; and
- Has all rights, authorizations or licenses to provide the Services to Client.
This agreement, the Service Attachments, and any other attachments thereto set forth our entire understanding with respect to the subject matter hereof and is binding upon both parties, their successors, and their permitted assigns, in accordance with the terms of this agreement. There are no understandings, representations or agreements other than those set forth herein. Each party, along with its respective legal counsel, has had the opportunity to review this agreement. Accordingly, in the event of any ambiguity, such ambiguity will not be construed in favor of, or against either party.