Master Service Agreement
THIS AGREEMENT GOVERNS ALL SAAS, SOFTWARE AND SERVICES YOU USE, BUY OR RECEIVE FROM, OR ARE LICENSED BY, LAYERED SYSTEMS. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICK-THROUGH ACCEPTANCE, BY PHYSICAL OR ELECTRONIC SIGNATURE, BY EXECUTING A SCHEDULE THAT REFERENCES THIS AGREEMENT OR UPON YOUR USAGE OF THE LAYERED SYSTEMS OFFERING, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE LAYERED SYSTEMS OFFERINGS.
INTRODUCTION
This Master Agreement (“Master Agreement”) is between Layered Systems, LLC with principal place of business at 3321 Packerland Drive, Suite B, De Pere, WI 54115 or the Layered Systems Affiliate identified on the Schedule (“Layered Systems”) and your organization, (“Client” or “You” or “Your”), is effective on the date set forth on the signature page hereto or the date set forth in the referencing Schedule, as applicable and specifies the terms and conditions agreed between the Parties as a foundation for their relationship as further defined in the applicable Addendums. If Client is bound to more than one agreement with Layered Systems with respect to the Layered Systems Offering, and if those agreements terms vary, then the order of precedence of those agreements is as follows: an agreement executed by Layered Systems and Client that expressly in writing supersedes all other agreements, an electronic version of an agreement accepted pursuant to a Schedule or formal written quote, and any other electronic agreement provided to Client by Layered Systems.
PURCHASES
Layered Systems agrees to provide and Client agrees to purchase, lease or license (as applicable) the Services and Equipment (as applicable), as well as License(s) (as defined in the Product Agreement(s)) for any Software at the price stated in the SOP (“Price”). Client shall pay Layered Systems then prevailing rates for any Incidentals as defined in the Product Agreement. Services will be suspended, and Products recovered if payment is not received within 5 days following date due. If payment is not received on or before any invoice due date, interest shall accrue at the rate of one and one-half percent (1.5%) per month from the date due until paid in full.
It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for Services, Products or materials rendered under this Agreement. Client shall pay any such taxes unless a valid exemption certificate is furnished to Service Provider for the state of use.
Shipping and handling fees may apply.
Layered Systems reserves the right to cancel orders arising from pricing or other errors. In the event of client disputes of invoices, client will pay undisputed amount by due date and shall submit in writing explanation for the disputed amount within 15 days of dispute.
LAYERED SYSTEMS EQUIPMENT
Layered Systems shall use commercially reasonable efforts to service and maintain Layered Systems owned equipment, as provided under the Agreement. Unless otherwise agreed to by the Parties, Customer shall be liable for maintenance, damages, defects, repairs, or other expenses necessary resulting from the Customer’s or End Users’ negligent or reckless use of the Layered Systems Equipment or for the Customer’s or End Users’ use of the Layered Systems Equipment for purposes other than provided by the Agreement and Customer, upon termination of the Agreement, shall return to Layered Systems the Layered Systems Equipment in the same condition as received with reasonable wear and tear accepted.
CLIENT EQUIPMENT
In the course of a Agreement, certain equipment owned by Client, or provided by a third party to Client, will be used or required for the effective and efficient provision or use of the Products (“Client Equipment”). Client agrees to maintain Client Equipment by replacing end of life equipment and keep in good working order and repair, and in compliance, with applicable law and industry standards for the effective and efficient provision and use of the Products. If the Parties agree that certain Client Equipment will be removed in order for Layered Systems to provide, and Client to use, the Products in an effective and efficient manner, Client shall not reinstall or redeploy such items.
INTELLECTUAL PROPERTY
Each Party is, and shall remain, the exclusive owner of its intellectual property (including patents, trademarks, copyrights, trade secrets, works of authorship, inventions and other proprietary information) (collectively, “Intellectual Property”) and Confidential Information (defined below), whether existing prior to or following the Effective Date of this Agreement. Layered Systems hereby grants Client a non-exclusive, royalty-free license during the Term of this Agreement to use Layered Systems disclosed to it solely and only to the extent necessary for using the Services and Equipment.
Except as provided herein, nothing in this Agreement or any Product Agreement shall be construed as transferring the rights to ownership or use of either Party’s Intellectual Property or Confidential Information to the other Party, its Representatives or any third party.
CONFIDENTIALITY
Layered Systems will not use or disclose Client information, except as necessary to or consistent with providing Services, and will protect against unauthorized use.
Customer may use the Layered Systems materials solely for Client’s use of the Services during any applicable Term and the same may not be transferred by Client to any other person, corporation or entity. Customer may not disassemble, decompile, reverse engineer, reproduce, modify or distribute the Layered Systems Materials, in whole or in part, or use them for the benefit of any third party.
INTERNET SERVICE PROVIDER
Unless otherwise indicated in a Layered Systems agreement, Layered Systems is not Client’s Internet Services Provider (ISP). At times, actions or inactions of third parties can impair or disrupt Client’s connections to the Internet (or portions thereof). Layered Systems cannot guarantee that such events will not occur. Accordingly, Client is solely responsible for all Losses (as defined below) resulting from or related to such event.
NON-SOLICITATION
During the term of this agreement and for a period of 12 months after the termination of this agreement, neither party shall indirectly; or through any other party, solicit for employment any employees of the other party. For each breach by Client of the forgoing restrictions, Client will pay Layered Systems an amount equal to any recruitment or referral fees paid by Layered Systems for such employee and the base salary and bonus earned by such employee during the twelve (12) months preceding Client’s breach of the forgoing restrictions.
WARRANTY
LAYERED SYSTEMS WILL PROVIDE SERVICES IN A GOOD WORKING ORDER AND SERVICES WILL MEET ANY APPLICABLE GENERALLY ACCEPTED INDUSTRY STANDARDS. CLIENT SHALL ALSO BE ENTITLED TO ANY WARRANTY, WHICH IS EXTENED TO LAYERED SYSTEMS BY MANUFACTURER AND/OR SOFTWARE VENDOR, AND ASSIGNED BY LAYERED SYSTEMS TO CLIENT, IN CONNECTION WITH THIS AGREEMENT AND THE APPLICABLE PRODUCT AGREEMENT.
IN PROVIDING ITS SERVICES, LAYERED SYSTEMS, ITS OFFICERS, DIRECTORS, PRINCIPALS, MEMBERS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS MAKE NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY STATED HEREIN AND EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR MULTIPLE DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO FOR LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF SECURITY, LOSS OF PRIVACY, COSTS OF RECREATING LOST DATA, COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, OR LOSS OF USE, RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON LAYERED SYSTEMS’S SERVICES OR THIRD PARTY SERVICES PROVIDED OR PASSED THROUGH BY LAYERED SYSTEMS OR BY ANY OTHER PARTY IN CONJUNCTION WITH LAYERED SYSTEMS SERVICES, BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), WHETHER IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY, EVEN IF EITHER CLIENT OR LAYERED SYSTEMS KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.EXCEPT AS EXPRESSLY STATED IN THIS SECTION, LAYERED SYSTEMS PROVIDES ALL THE PRODUCTS, AND REPAIRS “AS IS.”
Without limiting the foregoing, Layered Systems shall not be liable for any damages resulting from the use or inability to use its services, reliance on its services or on information obtained therefrom, interruptions of service, breach, compromise, unauthorized access to any records, files, data, systems, or other assets, valuables and resources; errors, defects, viruses, malware, delays in operation or transmissions or any other failure of performance or business function. Further, except in the event of willful misconduct by Layered Systems, Layered Systems shall not be liable for any direct damages resulting from the loss of any of Client’s data or third party data, breach of security or loss of privacy of data on Client’s systems or third party systems that may occur on systems installed, serviced, and/or managed by Layered Systems, or any direct or indirect damages resulting therefrom; the malfunction, performance or compromise of any system, network or other resource related to or associated with in any capacity or by any theory with Layered Systems services, and any Client or third party damages, claims, losses or expenses resulting therefrom; any personal injury (whether of a physical or psychological nature) or death of any person, whether associated with Client or otherwise, that may in any capacity or by any theory be associated with
services provided by Layered Systems, and any Client or third party damages, claims, losses or expenses resulting there from.
LIMITATION OF LIABILITY
Both parties agree that it is impossible to guarantee the trouble-free performance of computer hardware, software, networks, environments, security and systems, the security, privacy, specific functionality or performance of any free-standing or integrated system or resource; the reliability, applicability or performance of any technology or technology-related asset; the applicability, outcome or performance of any training or the behavior of any human resources; whether procured, provided, installed, managed, supported, administered, trained and/or supervised by Layered Systems, or in any way associated with Layered Systems services or otherwise. Therefore, Client and Layered Systems agree to certain further limitations of liability and damages.
To the extent not prohibited by applicable law, Layered Systems maximum aggregate and cumulative liability under this Agreement for any and all losses, claims, damages, expenses, attorney and expert fees or liability of any kind, including but not limited to claims of breach of contract, breach of warranty, negligence (including strict liability), whether in contract or in tort, or under any other legal theory, is limited to the amount in fact paid by Client hereunder for the two (2) months immediately preceding the event giving rise to such loss, damage, claim, or liability. In no event shall Layered Systems be liable for any consequential, incidental, special, exemplary, indirect, punitive or multiple damages in connection with or arising out of this Agreement, (ii) any accompanying or associated MSA, whether signed concurrently or not, and, (iii) any other agreement between Client and Layered Systems that incorporates this Agreement; including but not limited to claims or damages involving loss of business, revenue, profits, use, data, good will, reputation, or other economic advantage, however caused, and regardless of the legal theory of
liability, even if Layered Systems and/or Client knew, or should have known of the possibility thereof. Client and Layered Systems agree that the provisions of Section 9 (No Warranty) and this Section 11 (Limitation of Liability) of this Agreement shall constitute Client’s sole and exclusive remedy with respect to (i) Layered Systems IT’s services and any claims or actions arising therefrom, and, (ii) any third party services passed through or provided by Layered Systems or by any other party in conjunction with Layered Systems services, and any claims or actions arising therefrom; even if a mediator, arbitrator, or court of competent jurisdiction finds that such sole and exclusive remedy has failed its essential purpose.
FORCE MAJEURE
Neither party to this Agreement shall have liability or responsibility to the other party for any delay, failure to perform, service interruption, outage, damage, malfunction, or any consequence thereof or damage resulting therefrom, due to any circumstance beyond the party’s reasonable control including, but not limited to, inclement weather, climate change, resource shortages, all acts of nature and acts of God, strikes, civil disturbances, riots, terrorist acts, unavailability of or delays in goods or services needed from third parties including but not limited to third party hardware, software, data center, collocation, and cloud service providers, interruption or outage of or delay in telecommunications including the public internet.