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Syntermed Master Service Agreement

 

PLEASE READ THIS CAREFULLY.  By clicking on ‘I Accept’ below, you are agreeing and accepting all the Terms and Conditions below of this Master Service Agreement (“Agreement”) which shall apply to all Products and Service(s) (herein referred to collectively as “Services”) purchased or licensed from Syntermed, Inc. Capitalized terms used herein shall have the meaning given in the definition section on the last page of this Agreement.

 

1. ORDERS FOR SERVICES. This Agreement is a master agreement under which you may have Ordered Services by written agreement from Syntermed.

 

2. TERM. The Term for Orders for Services described in an Order will commence on the Service Commencement Date for such Services. The Terms of this Agreement will survive until the last Order is terminated or expires. Syntermed may provide Customer a target delivery date (“Target Date”) for an Order, and if so, will use commercially reasonable efforts to deliver the Services on the Target Date. Notwithstanding, should Syntermed fail to deliver the Services by the Target Date, and fail to cure same within thirty (30) days of Customer’s notice of such failure, Customer may terminate the specific Order in its sole discretion. In the event of such termination, neither party shall be liable for damages arising out of the failure to perform, other than any accrued amounts owed. The Term of any Order will automatically renew for successive Renewal Terms, unless either party notifies the other party in writing at least sixty (60) days prior to the end of the then current Term. The termination or expiration of an Order will not affect Customer's other Services provided under a separate Order.

 

3. FEES AND PAYMENT TERMS.

3.1 Payment Terms. Syntermed will invoice Customer for all Services unless agreed to otherwise by both parties, with fixed recurring charges invoiced in advance and all other charges invoiced in arrears. Customer will pay each invoice in full within 30 days of the invoice date. If Customer disputes any portion of an invoice, Customer will notify Syntermed in writing of such dispute within 60 days of the invoice date. A dispute as to any portion of an invoice does not relieve Customer from timely payment of the undisputed portion. Fees for each of the Services in an Order begin to accrue on the Service Commencement Date for the specific Service. Syntermed may change the prices for the Services prior to any Renewal Term by notifying Customer of such price changes at least 90 days prior to the start of any Renewal Term.

3.2 Credit. Upon request, Customer shall provide Syntermed with information reasonably requested by Syntermed to determine credit worthiness and credit qualifications.

3.3 Late Payments. Any payment not received by Syntermed when due will accrue interest at a rate of one and one half percent (1 ½%) per month compounded daily, or the highest rate allowed by applicable law, whichever is lower.

3.4 Taxes. Customer shall be responsible for all taxes related to the provision of Services, except for taxes based on Syntermed's net income.

 

4. MUTUAL REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION. Each party represents, warrants and covenants that: (i) the performance of its obligations hereunder will not violate any applicable Laws; and (ii) neither the execution of this Agreement nor the performance of its obligations hereunder will constitute a breach by it of any agreements to which it is a party or by which it is bound.  Customer will indemnify, defend and hold harmless Syntermed  from any and all Losses arising from or relating to (i) any claim by the Customer or Customer Parties; and (ii) any claim by a customer or end-user of Customer, relating to, or arising out of, Customer’s or any of its customers’ services or the Services provided under this Agreement (including claims arising from or relating to interruptions, suspensions, failures, defects, delays, impairments or inadequacies in any of the aforementioned Services). Both Parties shall defend and indemnify the other for any breach of the mutual insurance provisions in Section 7.

 

5. REMEDIES AND DAMAGES, AND LIMIT ON WARRANTIES

5.1 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, THE SERVICES (INCLUDING ALL MATERIALS SUPPLIED AND USED THEREWITH) ARE PROVIDED "AS IS" “WHERE IS”, AND CUSTOMER'S USE OF THE SERVICES IS AT ITS OWN RISK. Syntermed DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WHETHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, HABITABILITY, MARKETABILITY, PROFITABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, NONINFRINGEMENT, TITLE, OR ARISING FROM A COURSE OF DEALING, OR TRADE PRACTICE.

5.2 Consequential Damages Waiver. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, 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 SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.

5.3 Basis of the Bargain. The parties acknowledge that the prices have been set, and the Agreement entered into in reliance upon the limitations of liability, remedies, damages, and the disclaimers of warranties and damages set forth herein, and that all such limitations and exclusions form an essential basis of the bargain between the parties. The specific remedies provided herein or in any Addendum or Product Description are the exclusive remedies available to Customer.

 

6. MUTUAL CONFIDENTIALITY

6.1 Disclosure and Use. Each party agrees that it will not use in any way, nor disclose to any third party, the other party's Confidential Information, and will take reasonable precautions to protect the confidentiality of such information, at least as stringently as it takes to protect its own Confidential Information, but in no case will the degree of care be less than reasonable care. Nothing herein shall preclude disclosure by a party to that party's attorneys, accountants and employees who have a bona fide need to know the other party’s Confidential Information in connection with the receiving party’s performance under this Agreement. Each party agrees to only make copies of the other’s Confidential Information for purposes consistent with this Agreement, and each party shall maintain on any such copies a proprietary legend or notice as contained on the original or as the disclosing party may request.

6.2 Exclusions from Confidentiality Obligations. Notwithstanding the confidentiality obligations required herein, neither party's confidentiality obligations hereunder shall apply to information which: (a) is already CONFIDENTIAL  or known to the receiving party (other than the terms of this Agreement); (b) becomes publicly available without fault of the receiving party; (c) is rightfully obtained by the receiving party from a third party without restriction as to disclosure, or such Confidential Information is approved for release by written authorization of the party having the rights in such Confidential Information; (d) is developed independently by the receiving party without use of the disclosing party's Confidential Information; or (e) is required to be disclosed by Law, provided that prior to making such required disclosure, the party who is required to disclose the Confidential Information shall notify the owner of such Confidential Information that disclosure is legally required.

 

7. TERMINATION

7.1 Termination by Either Party. This Agreement may be terminated by either party, at any time, without liability to the other party, for any one or more of the following (a) the non-terminating party breaches any material term of this Agreement and fails to cure such breach (if susceptible to cure) within fifteen (15) days after receipt of written notice of the same (provided, however, in the event this Agreement provides that termination of any rights shall be immediate for any specific breach, then such notice period shall not be required); (b) the non-terminating party becomes the subject of a voluntary or involuntary proceeding relating to insolvency, bankruptcy, receivership, liquidation, or reorganization for the benefit of creditors, and such petition or proceeding is not dismissed within sixty (60) days of the filing thereof; or (c) a court or other government authority having jurisdiction over the Services prohibits Syntermed from furnishing the Services to Customer.  

7.2 Termination by Syntermed. Syntermed may terminate Customer’s rights to any or all Services if Customer fails to pay any undisputed sum for Services when such payment is due and such failure remains uncured fifteen (15) days after written notice is given by Syntermed.

7.3 Effect of Termination by Either Party. Upon the effective date of termination of the Agreement: (a) Syntermed will immediately cease providing Services; (b) any payment obligations of Customer under this Agreement for Services provided through the date of termination and any applicable termination charges will immediately become due and payable;  (c) within thirty (30) days of such termination Customer shall (i) remove/retrieve all Customer Data from the Syntermed Service; and (ii) return all Syntermed Provided Software to an authorized representative of Syntermed.  If Customer does not remove or retrieve all Customer data from Syntermed Service within 30 days of termination, Syntermed will have the right to do one or more of the following, without liability therefore, and without prejudice to any other available remedies; (x) delete the Customer data from Syntermed Service;  and (y) move all such Customer data to secure backup storage and charge Customer for the cost of such removal and storage.

 

8. MISCELLANEOUS PROVISIONS

8.1 Force Majeure. Syntermed shall not be liable to Customer for any failure of performance or equipment due to causes beyond Syntermed’s reasonable control, including but not limited to: acts of God, fire, explosion; any Law or direction of any governmental entity; emergencies; civil unrest, wars; unavailability of rights-of-way, third party services or materials; or strikes, lock-outs, work stoppages, labor shortages or other labor difficulties; viruses, denial of service attacks, or failure of the Internet. If Syntermed is unable to deliver the Service for thirty (30) consecutive days, Customer shall have the right to terminate any affected Order pursuant hereto.

8.2 Relocation of Customer Equipment or Customer Space. If it is necessary or desirable, for Syntermed’s efficient use of the Syntermed Service, to relocate the Customer data to a Syntermed contracted Data Center, the Parties will cooperate in good faith with each other to facilitate such relocation. Syntermed shall be solely responsible for the costs incurred by Syntermed in connection with any such relocation. Relocation made by Syntermed at the request of Customer, will be at the sole expense of Customer.  Syntermed will use commercially reasonable efforts to minimize and avoid any interruption in Services during such relocation.

8.3 Regulatory Changes. In the event that a tariff is filed by Syntermed or there is a change in law, rule or regulation that materially increases the costs or other terms of delivery of Service, the parties agree to negotiate the rates to be charged, or other required terms of service to reflect such increased costs or change in term of service. If the parties are unable to agree on new rates within 30 days after Syntermed 's delivery of written notice regarding the rate change, then either party may terminate the Services without liability by giving 30 days written notice.

8.4 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by e-mail or facsimile (provided delivery is confirmed), or U.S. Mail registered or certified return receipt requested and postage prepaid, in each case to the address set forth below or to such other address as may hereafter be furnished in writing by either party to the other party in accordance with this Section. Such notice will be deemed to have been given as of the date it is received.

8.5 Assignment. Neither party may assign this Agreement or resell the Services, or sublicense or sublease the Services without the written consent of the other, which shall not be unreasonably withheld. Failure of the non-assigning party to object to an assignment within twenty (20) days after receipt of such notice shall be deemed tacit approval of the assignment. Notwithstanding, either party may freely assign or transfer its rights or obligations under this Agreement if such transfer occurs by operation of law under a bona fide merger, divestiture, consolidation, or reorganization, or to any purchaser of all or substantially all of the assets of the business of the assigning party, provided the assignee is bound by this agreement, is financially able to complete its obligations, and is not a direct competitor of the non-assigning party. This Agreement shall apply to, bind, and inure to the benefit of, any permitted transferees, assignees or successors, all of whom shall execute counterparts of this Agreement, and Customer shall remain liable for the payment of all charges due under each Order or otherwise due or to become due under this Agreement.

.6 Entire Understanding. This Agreement constitutes the entire understanding and agreement of the Parties related to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, agreements and understandings regarding such subject matter. Each Order includes terms which are in addition to, and not in lieu of the Agreement. Unless expressly provided for in the Agreement, Customer agrees not to claim any reliance on any other opinion, advice, recommendation, statement, representation, warranty of Syntermed regarding the suitability, fitness, quality, merchantability, or the compatibility or functionality of any equipment or software. Any additional or different terms in any purchase order or other response made by Customer shall be deemed objected to by Syntermed without need of further notice of objection, and shall be of no effect or in any way binding upon Syntermed.

8.7 General. Neither party shall issue any publication relating to this Agreement, except as may be required by Law. Notwithstanding, either party may publicly refer to other, orally and in writing, as a Customer/ service provider of the other. If either Party retains an attorney to enforce the terms of this Agreement or to collect money due hereunder, the prevailing party shall be entitled to recover reasonable attorneys’ fees, court costs and other related expenses incurred in connection therewith. The terms and provisions contained herein that by their sense and context are intended to survive the performance thereof by the Parties shall so survive termination of this Agreement, including, without limitation, provisions for indemnification and the making of any payments. Syntermed and Customer are independent contractors; this Agreement will not establish any relationship of partnership or agency. Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be changed only by a written document signed by authorized representatives of Syntermed and Customer. If any provision of this Agreement, as applied to either party or to any circumstance, is adjudged by a court or arbitrator to be invalid, illegal or unenforceable, the same will not affect the validity, legality, or enforceability of any other provision of this Agreement. All terms and conditions of this Agreement will be deemed enforceable to the fullest extent permissible under applicable law. The failure by either party to enforce any rights hereunder shall not constitute a waiver of such right(s) or of any other or further rights hereunder. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default. There shall be no third party beneficiaries to this Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, except its conflicts of law principles. Should Customer be acquired by another party that requires, as part of the purchase agreement that this Agreement be terminated, then Customer shall not incur any early termination charges.

 

DEFINITIONS

 

(a) “Addendum” means an addendum to this Agreement stating additional terms and conditions applicable to the specific Service.

(b) “Agreement” means the general terms and conditions herein and includes any Addendum, Product Description, Order, Specification, Statement of Work, Scope of Work, the Rules and Regulations, and all other items expressly incorporated herein.

(c) “Confidential Information” means information which (i) derives actual or potential economic value from not being generally known to, and not available through proper means, by other persons who could obtain economic value from receipt or use of such information, (ii) is the subject of reasonable efforts by its owner to maintain its confidentiality or secrecy, or (iii) is by its nature confidential, trade secrets or otherwise proprietary to its owner. Confidential information includes the terms and conditions of this Agreement, software source and object code, inventions, know-how, data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, configurations, plans, processes, financial and business plans, names of actual or potential customers or suppliers, Data Center configuration, and Technology.

(d) “Customer Data” means all digital software data files owned by Customer or Customer Clients.

(e) “Laws” means rules, regulations, statutes, ordinances, orders and rulings of a government and administrative and regulatory authorities, as well as the Rules and Regulations.

(f) “Losses” means claims, demands, actions, suits, proceedings, and all damages, judgments, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees).

(g) “Order” means Customer’s written order (executed Syntermed Quotation for Services or Customer generated Purchase Order) for Services that has been accepted by Syntermed and executed by both Parties.

(h) “Party” or “Parties” means representatives, agents, employees, officers, directors or contractors, or subcontractors.

(i) “Renewal Term” for an Order means successive periods of one year.

(j) "Service Commencement Date" means the date Syntermed arranges for Services to be available for use

(k) “Term” as to any Order, means the Initial Term and all Renewal Terms for that specific Order.