“Agreement” means this Master Services Agreement (“Agreement”). This Agreement governs all business, transactions, and other managed service agreements or professional services engagements executed between Client and Summit Technology.
“Managed Service” means the provision by us to Client of information technology services, products, platforms, remote technical support, system maintenance and administration, system monitoring, security monitoring, network infrastructure management and maintenance services, internet service, VoIP telephone service, or other computer hardware or devices in exchange for a recurring fee.
“Managed Service Agreement” means any agreement entered into between Client and Us that incorporates this “Master Services Agreement.”
“Proposal” means any proposal for products or services sent to Client by Summit Technology that is signed and accepted by Client.
Statement of Work” or “SOW” means a Statement of Work document that may be executed from time to time between Client and Summit Technology for supplemental services.
“Supplemental Services” or “Professional Services” means any service that is not specifically provided under a Managed Services agreement.
“Term” means the Initial Term and any Renewal Term or Extended Term, collectively.
Summit Technology offers several Managed Services that are governed by specific agreements and are based on recurring products and/or services for a monthly or annual fee. Each of these services will be governed by its own respective service agreement. Each Managed Service agreement incorporates this Master Services Agreement.
Summit Technology offers several different Managed Service Agreements including but not limited to:
In addition to the Managed Service, we may from time to time perform certain additional services on an hourly or fixed fee basis, which may include the customization of the Managed Services at Client’s request and other professional computer and software and services related to the Managed Services. Supplemental Services will be performed only with Client’s written agreement on a valid Statement of Work signed by Client and an officer of Summit Technology. Supplemental services will be invoiced at price rates approved in advance in writing by Client and Us.
This Agreement shall remain in effect for so long as any managed service agreement or fully executed statement of work is in effect and active between Client and Summit Technology or any other service delivered to Client by Summit Technology that incorporates this Agreement is in effect.
All recurring monthly charges for Manages Service Agreements are billed on or about the first day of the month with Net 15-day terms.
All federal, state, or local taxes applicable to any product or service delivered to Client by Summit Technology shall be added to each of our invoices to Client. Client shall pay all such taxes to us unless a valid exemption certificate is furnished to us for each of the taxes required by law.
All shipping charges will be invoiced to Client as they are incurred. In cases where products or equipment are drop shipped the shipping charges will be passed through at no markup. In cases where the product or equipment must be shipped to Summit for configuration before shipping to Client location, a handling fee will be added to the actual cost of shipping.
We may suspend any or all Services not fewer than 10 days after giving written notice to Client if payment for any Service is overdue by more than 30 days. Client shall pay our then current reinstatement fee following such a suspension. We may charge interest on amounts that are overdue by 15 days or more at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law. In addition, upon demand Client shall pay our costs of collection for all overdue amounts for the Services, including collection agency fees, attorney’s fees, and court costs.
We may, in our reasonable commercial judgment, amend any Acceptable Use Policy from time to time to describe reasonable restrictions and conditions on Client’s access to and use of the Services. The vendors, service providers, and manufacturers we partner with to deliver services to Client may do the same. Any such amendments to the AUP are effective on the earlier of 15 days following our notice to Client that an amendment has been made, or the commencement date of any Renewal Term or Extended Term. However, if: (i) the amendment would materially and adversely affect Client, and (ii) Client provides us with a written notice describing its objection to the amendment in reasonable detail within 10 days of the effective date of the amendment, and (iii) we do not agree to waive the amendment as to Client within 5 days after such Client notice, then Client may terminate this Agreement and any Managed Service Agreement that incorporates this agreement.
We may suspend Services to Client without liability if: (i) we reasonably believe that the Services are being used in violation of this Agreement or any Managed Service Agreement that incorporates this Agreement or applicable law; (ii) Client fails to cooperate with any reasonable investigation by us of any suspected violation of the AUP incorporated in any Managed Service Agreement that incorporates this Agreement; or (iii) requested by a law enforcement or government agency. We shall give Client written notice at least 24 hours in advance of a suspension under this Section, unless a law enforcement or government agency directs otherwise, or suspension on shorter or contemporaneous notice is necessary to protect us, Client, or our other Clients from an imminent and significant risk. We shall not suspend the Services if the grounds for the suspension are cured during the notice period. We shall promptly reinstate suspended Services when the reasons for the suspension of Services are cured.
We represent and warrant to Client, and Client represents and warrants to us, that: (i) it has the power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) it has taken all necessary action on its part to authorize the execution and delivery of this Agreement and (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents or any agreement to which it is a party.
Client represents and warrants to us that: (i) the information Client has provided to us for the purpose of establishing an account with us is accurate; (ii) Client will not use the Services in violation of any federal, state or other law, rule or regulation (iii) Client shall not resell or make available any of the Services to any person or entity and (iv) Client shall perform its financial and other obligations set forth in this Master Services Agreement, including but not limited to any fully executed Managed Service Agreement, Purchase or Sales Order, Statement of Work, any licensing terms or agreements for software supplied under a Managed Services Agreement, or any other contract or agreement executed in writing between Client and Summit Technology.
The indemnification obligations set forth in this Section shall be the parties’ exclusive rights and remedies with respect to this Agreement and all Managed Services Agreements that incorporate this Master Services Agreement.
Client shall indemnify and hold harmless us, our affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to any of the following: (i) the actual or alleged use of the Services in violation of: (a) any AUP attached to a Managed Services Agreement, (b) any other part of this Agreement or (c) applicable law or (ii) any breach by Client of any of its obligations under this Agreement.
Each party shall indemnify and hold harmless the other party, the other party’s affiliates, and each of their respective officers, directors, members, agents and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties and fines of any kind and nature whatsoever (including reasonable attorneys’ fees) brought by a third party under any theory of legal liability arising out of or related to the indemnifying party’s actual or alleged: (i) gross negligence, (ii) willful misconduct or (iii) infringement or misappropriation of a third party’s copyright, trade secret, patent, trademark or other intellectual property right.
A party seeking indemnification under this Section shall provide prompt notice of its claim for indemnification to the indemnifying party; provided, however, that failure to give prompt notice shall not affect the indemnifying party’s obligations under this Section unless and to the extent that the failure materially prejudices the defense of the claim. The indemnifying party may select counsel to defend the indemnified party in respect of any indemnified claim under this Section; provided, however, that the counsel selected must be qualified to defend the indemnified claim in the judgment of the indemnified party, which judgment shall not be unreasonably withheld or delayed. The indemnified party shall keep the indemnifying party fully informed of the status of the claim, including all communications from the claimant, and shall cooperate with the indemnifying party with respect to any judicial proceeding or dispute resolution procedure. The indemnifying party shall not settle any claim covered by this Section without the written consent in advance of the indemnified party, which consent shall not be unreasonably withheld or delayed. If, however, such settlement shall be only for a monetary amount covered by the indemnifying party’s indemnification obligation under this Section and shall not impose any other liability on the indemnified party, then, no consent shall be required from the indemnified party. Notwithstanding anything in this Section to the contrary, if we are indemnifying multiple Clients related to the subject matter of the indemnification claim, we shall have the right to seek consolidation of all such actions and to select counsel to defend the actions.
Notwithstanding any other provision in this Section, if we determine in our sole discretion that any Service may involve any product that may become subject to a claim of infringement or misappropriation, we may elect to (a) obtain the right of continued use of such product, or (b) replace or modify such product to avoid such claim.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, Client AGREES AND ACKNOWLEDGES THAT WE MAKE NO REPRESENTATION OR WARRANTY TO Client, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION, QUALITY, FITNESS FOR USE OR FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE DO NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. Client ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT’S PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE DAMAGES.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR MAXIMUM AGGREGATE MONETARY LIABILITY UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL NOT EXCEED 2 (2) TIMES THE MONTHLY RECURRING FEE PAYABLE UNDER THE MANAGED SERVICES AGREEMENT IN EFFECT AT THE TIME OF THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
“Confidential Information” means all information disclosed by one party to the other, whether before or after the execution of this Agreement, including: (i) with respect to us, our unpublished prices and other terms of the Services, audit and security reports, system configuration designs, network designs, and all other trade, business, financial and technology information about us and our operations that we consider to be our confidential and proprietary property, (ii) with respect to Client, content transmitted to or from, or stored by Client on, our servers and (iii) with respect to both parties, all other information that is 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 by the disclosing party to the receiving party within 15 days following such disclosure. Confidential Information shall not include any information that (a) was in the public domain or enters the public domain through no act or omission on the part of the receiving party; (b) is rightfully disclosed to the receiving party by a source not bound by a confidentiality agreement with the other party hereto; (c) was in the possession of the receiving party prior to receipt from the disclosing party as evidenced by the books and records of the receiving party or (d) is developed by the receiving party after receipt of Confidential Information from the disclosing party independent of the Confidential Information of the disclosing party and such independent development is evidenced by the contemporaneous books and records of the receiving party.
Each party agrees not to use the other party’s Confidential Information except relating to the performance or use of the Services or the exercise of its rights under this Agreement. Each party agrees not to disclose the other party’s Confidential Information to any person or entity except as provided in this Section and to its employees and consultants who have a need to know the Confidential Information; provided, that such employees and consultants are advised that the Confidential Information so disclosed is the Confidential Information of the other party and such employees and consultants are bound by confidentiality restrictions in a writing at least as protective as those set forth in this Agreement.
Notwithstanding anything to the contrary contained in this Section, each party may disclose any of the Confidential Information of the other party if, and only to the extent, required to do so by law, governmental regulation or court order; provided, that the party making such disclosure shall give prompt notice thereof to the other party in as far in advance as practicable prior to such disclosure and shall cooperate with the other party, at such other party’s expense, to obtain a protective order regarding such disclosure.
Client may terminate this Agreement and any Managed Service Agreements that incorporate this agreement before the expiration of the Initial Term or any Renewal Term set forth in a Managed Service Agreement without liability to us (except for amounts due for Services through the effective date of such termination) as follows: (i) we fail in a material way to provide the Managed Service in accordance with the terms of the Managed Service Agreement and do not cure the failure within 10 days following receipt of Client’s written notice describing the failure in reasonable detail; or (ii) we materially violate any other provision of this Agreement or Managed Service Agreement that incorporates this Agreement and fail to cure the violation within 30 days following receipt of Client’s written notice describing the violation in reasonable detail.
We may terminate this Agreement before the expiration of the Initial Term or any Renewal Term without liability to Client as follows: (i) upon not fewer than 5 days written notice, if Client is overdue by more than 60 days on the payment of any amount due under this Agreement or any Managed Service Agreement that incorporates this Agreement; which overdue payment shall continue to be due and payable by Client following such termination; or (ii) Client materially violates any other provision of this Agreement or any Managed Service Agreement that incorporates this Agreement and fails to cure the violation within 10 days after a written notice from us describing the violation in reasonable detail.
Client shall not remove, modify, or obscure any copyright, trademark or any other proprietary rights notice that appears on any software or devices provided by us to Client. Client shall not reverse engineer, decompile or disassemble any software or devices provided by us to Client.
Client specifically agrees to adhere to any software license, license terms, end user license agreements (EULA) and any other manufacturer or vendor terms attached to any hardware or software provided under any Managed Service Agreement.
Certain Managed Services Agreements that incorporate this Agreement may include hardware that is provided by Summit Technology. This equipment may include network hardware delivered as a service, desktop and laptop computers delivered as a service, or proprietary network monitoring equipment. This equipment will be clearly marked and identified as property of Summit Technology. Upon termination of any Managed Service Agreement that includes hardware, the included hardware and related equipment must be returned to Summit Technology. Equipment that is not returned within 30 days of termination will be invoiced to Client at full replacement cost.
Summit Technology will deliver all documents, sales quotes, proposals, managed service agreements, statements of work, and any other document requiring a signature from client electronically.
Client agrees to sign all documents electronically and to accept all documents signed electronically as if they were signed in ink.
We shall not be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond our control, including significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity or other events of a similar magnitude or type.
Summit Technology shall always act as and be considered an independent contractor hereunder. Nothing herein contained shall create any employment, agency, partnership, distributorship, joint venture or any other business relationship between Client and us, other than that of an independent contractor user of the Services. Client shall have no authority to obligate or bind us with respect to any matter, or make any contract, sale, agreement, warranty, or representation, express or implied, on our behalf.
No legal action, regardless of its form, whether in contract or tort, including negligence, related to, or arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action first accrued.
Client shall not assign this Agreement or any part hereof without our prior written consent, which consent shall not be unreasonably withheld or delayed. Client shall not sublicense any of its rights under this Agreement, nor shall Client delegate or subcontract to any person or entity any of the performance of Client’s duties hereunder.
Client specifically agrees not to circumvent or attempt to circumvent Summit Technology by contacting any vendor, distributor, or manufacturer of products or services that Summit Technology has (i) a contractual partnership with and (ii) that Summit Technology resells the products and services of the vendor, distributor, or manufacturer to Client.
If client circumvents Summit’s relationships with our partners, vendors, distributors, or manufacturers Client shall be liable for all billable time and materials as well as legal costs incurred to remedy such circumvention.
Client shall not solicit or hire any Summit employee to become an employee of, or consultant to, Client for the Term and for a period of 1 year following the expiration or the termination of this Agreement for any reason without written consent signed by an officer of Summit Technology.
All notices and other communications under this Agreement shall be delivered by electronic mail to Summit Technology at firstname.lastname@example.org and to Client at the designated address provided at the execution of this agreement.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
The Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any part thereof. The definitions in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” All references herein to Sections and Exhibits shall be deemed to be references to Sections of, and Exhibits to, this Agreement unless the context shall otherwise require. If any action or notice is to be taken or given on or by a calendar day, and such calendar day is not a Business Day, then such action or notice may be deferred until, or may be taken or given on, the next Business Day. Unless otherwise specifically indicated, the word “or” shall be deemed to be inclusive and not exclusive.
To the extent that any of the terms and conditions of this Agreement shall conflict with the terms and conditions of any Managed Service Agreement or Statement of Work the terms and conditions of this Agreement shall control such conflicting terms and conditions.
This agreement will be governed, construed, and enforced in accordance with the laws of the State of Utah.