MASTER SERVICES AGREEMENT

This Master Services Agreement (“MSA”) made as of the last date signed below is by and between Accellis Inc. d/b/a Accellis Technology Group (“Accellis”) and ________ (“Client”).

1. Terms to Control All Transactions.

1.1. This MSA governs all transactions between Accellis and entities with the common ownership (“Affiliates”) and Client, including all services of Accellis and its Affiliates performed for, or provided to, Client (collectively, the “Services”),the Initial Assessment (as defined below) of the Client’s computer network, system, peripherals, devices which are installed or operated by Client (“System”) and all software, equipment and other goods supplied of third party manufacturers or vendors (collectively, the “Products”) and replaces all other agreements between the parties. Accellis’ review of Client’s System with recommendations for a fee of $___ (“Initial Assessment”) shall be governed by the MSA. Broadband Internet access must be provided by Client for Accellis to remotely access Systems remotely, which shall be accomplished through reputable software selected by Accellis.

1.2 Except for the Initial Assessment (if applicable), Accellis is not providing any Services or Products by this MSA until an attachment is executed outlining the terms and fees of Services or Products, which may be executed from time-to-time by both parties electronically or physical signature referencing this MSA (individually and collectively “Service Attachment”) whereupon it shall automatically be incorporated in and deemed a part of this MSA. In the event of a direct conflict between the language of this MSA and any Service Attachment the language of the Service Attachment shall control for the Services or Product referenced except as it relates to warranties, limitations of liability or termination, which are controlled by this MSA. 

1.3. Client may request work outside of the scope of a Service Attachment or the Initial Assessment (“Supplemental Services”) on a time-and-materials basis at Accellis’ regular hourly rates on the then-current rate sheet of Accellis which request shall be confirmed in writing by either party within thirty (30) days of such request and an invoice may serve as such confirmation. All Accellis representations relating to time relating to Supplemental Services are estimates of actual time and not a guarantee or agreement to perform Supplemental Services for a fixed fee as time and cost involved may vary based upon system configurations, infrastructure, interruptions, Client or third-party interruptions, or vendor support issues. Client may halt Supplemental Services at any time with notice and payment of balance of work performed. Different hourly rates may apply based upon overtime, weekends or holidays time, different levels of personnel experience, sophistication of work.

1.4. Client shall designate one authorized contact person (“Authorized Contact”) with authority to act pursuant to each Service Attachment. In the event that an Authorized Contact is not listed in a Service Attachment, the Authorized Contact shall be the signatory below. Accellis may accept direction of the Authorized Contact, until Client notifies Accellis otherwise together with identifying the new Authorized Contact.

2. FEES AND PAYMENT TERMS.

2.1. Fees. Client shall pay Accellis the fees, costs and expenses set forth in the applicable Service Attachment. If payment terms are not provided for in the Service Attachment, or as it relates to Supplemental Services, payment is due within thirty (30) calendar days of invoice. Client shall pay the reasonable out-of-pocket expenses, including (i.e., shipping, delivery, reproduction, travel expenses, parking, lodging, meals), incurred by Accellis in performing pursuant to a Service Attachment or for Supplemental Services together with all sales, use, excise, services taxes or regulatory fees assessed for Services or Products. Client shall pay interest 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 thirty (30) days following the invoice (the “Payment Deadline”). Good faith disputes of an invoice must be initiated by Client in writing prior to the Payment Deadline with a description of the dispute and requested adjustment. If the parties are unable to resolve prior to the Payment Deadline, Client shall pay the invoiced amount by the Payment Deadline and any amount ultimately determined to be paid shall be by adjustment to Client’s account.

2.2. Suspension of Services for Material Breach. Services may be suspended if Client is in material breach, including failure to pay by the Payment Deadline. Services will be restored upon curing the material breach, Accellis’ confirmation that System remains in compliance with security, updates, and best practices; a reactivation fee equal to the greater of $500.00 or the actual costs reasonably incurred by Accellis in restoring System. The right to suspend Services is in addition to all other remedies available, which may be pursued in conjunction with the suspension of Services. Accellis SHALL HAVE NO LIABILITY FOR ANY SUCH SUSPENSION OF SERVICES BASED ON CLIENT’S NON-PAYMENT OF FEES IN ACCORDANCE WITH THIS MSA.

3.  TERM AND RENEWAL.

3.1. This MSA shall begin on the Effective Date and shall continue until one year after the expiration or termination of all Service Attachment(s).

3.2. The term of all Service Attachments shall be, unless otherwise provided by the Service Attachment, three (3) calendar years (“Initial Service Attachment Term”), with an annual price adjustment equal to the greater of 5% or the annual Consumer Price Index published by the U.S. Bureau of Labor Statistics in the month prior to renewal (“CPI Adjustment”).

3.3. Upon the expiration of the Initial Service Attachment Term, the Service Attachment shall automatically renew for continuous one (1) year terms (each a Renewal Term”) on the same terms and conditions, but with the fees being adjusted for the greater of 5% or the CPI Adjustment, unless either party notifies the other party of its intention to not renew the Service Attachment no less than sixty (60) days prior to the end of the then-current term. The Initial Service Attachment Term and each Renewal Term shall be collectively referred to as the “Service Attachment Term”.

4.  TERMINATION.

4.1. The Service Attachment Term may be terminated by either party upon sixty (60) days’ advance written notice. Termination, whether for breach or no cause, shall be subject to the Termination Fee. Either party may terminate a Service Attachment for a material breach of the performance obligations hereunder (“Cause”) by first providing the other party thirty (30) days written notice setting forth the basis for such proposed Cause and an opportunity to cure. If the basis of the Cause is not remedied within the thirty-day written notice period, the particular Service Attachment for which the Cause existed may be terminated by the nonbreaching party.

4.2. Early Termination and Reimbursement of Costs. A Service Attachment may be terminated early by either party by submitting written notice of the intent to terminate the Service Attachment to the other party, at least sixty (60) days in advance of the termination date. If the termination is by Client and not for Cause or is by Accellis and resulting from a breach by Client, Client shall pay:

4.2.1. A termination fee equal to fifty percent (50%) of the average fees paid by Client per month over the prior 12 months for each month remaining in the Service Attachment Term; A termination fee equal to fifty percent (50%) of the average fees paid by Client per month over the prior 12 months for each month remaining in the Service Attachment Term;

4.2.2. Any unpaid monthly fees due through the termination date of the Service Attachment; and

4.2.3. All amounts for Products, vendor service and equipment commitments made by Accellis in order to provide Services to Client for (a) the remainder of the Term, or (b) the termination fees required by vendors of Accellis to terminate such commitments, whichever is less. Some vendors, i.e., Microsoft, do not allow early termination of license fees and Client understands and consents to payment of the licenses for the remainder of the license term. An index of links to such obligations may be found at Third Party AUPs | Accellis Technology Group, Inc.

4.3. Immediately by Accellis if Client fails to comply with Accellis’ Acceptable Use Policy (“AUP”), which may be found at https://www.accellis.com/legal/, and with any AUP’s applicable to Third-Party Products and Services that are contained in or referred to in the applicable Third-Party Agreements.

4.4. Cessation of Use; Return of Materials. Upon the termination of a Service Attachment, Client shall cease use of the terminated Services and promptly return to Accellis all Products, documentation and other tangible items provided to Client in connection with the Services; and shall delete from its computer systems all electronic copies of the Software and any documents, data or other information that was provided. Upon request, Client shall provide written certification of its compliance with the obligations set forth in the preceding sentence, which certification shall be by an officer (or other representative having similar authority).

4.5. Equipment Removal. Upon termination of a Service Attachment for any reason, Client shall provide Accellis with access, during normal business hours, to Client’s premises (or any other locations at which Accellis-owned equipment is located) to enable Accellis to remove all Accellis-owned equipment (if any) from Client’s premises.

4.6. Transition Services. Accellis shall cooperate with the Client in the orderly termination of the Services. If the Client requests assistance with transitioning to a new service provider, then Client shall pay, in advance, an amount which Accellis estimates is required to facilitate transition on a time-and-materials basis at Accellis’ then-current rates. Accellis shall reconcile actual charges for transition to new service provider with the prepaid amount described above within thirty (30) days of completion of transition assistance. Accellis shall be held harmless for and indemnified by Client against any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, Accellis’ transition assistance.

4.7. Client’s Management Data. Upon request by the Client, Accellis will make available to Client administrative access to Client’s network. All other documentation created by Accellis used or stored by the Client in connection with the Services (“Client Management Data”) that remains on servers, storage devices or otherwise in the possession or under the control of Accellis, upon payment of Accellis’ anticipated cost at current rates for the time reasonably required to assemble and copy such data, as well as for the cost of any media used to transfer the data. Accellis HAS NO OBLIGATION RELATING TO CLIENT DATA thirty (30) days following the expiration or termination of a Service Attachment.

5. INTELLECTUAL PROPERTY RIGHTS 

5.1. All patent, copyright, trademark, trade secret, know-how and other proprietary or intellectual property rights (“IP Rights”) with respect to the Services shall remain the property of Accellis and/or the Third-Party Products and Services. Client shall not acquire any interest in any IP Rights associated with the Services nor shall such Services be deemed “work for hire.” Client shall be responsible for software licenses for software installed on the System and warrants Client is authorized to use all software installed or stored on the System and, upon request will provide evidence of licenses to Accellis.

5.2. Accellis shall not be required to provide Services for any portion of the System on which unlicensed software is installed.

5.3. Client may use any intellectual property provided to Client by Accellis pursuant to this MSA, provided Client (i) does not infringe upon the intellectual property rights of any third party, (ii) does not reverse engineer Accellis’ intellectual property, and (iii) does not negatively impact the security or integrity of any of Accellis’ equipment, or Accellis’ provision of Services. Each party’s limited right to use the other party’s intellectual property as described herein automatically terminates upon the termination of an applicable Service Attachment and this MSA.

6. NON-DISCLOSURE AND CONFIDENTIALITY

6.1. During the course of performance under a Service Contract, a party may become privy to the other’s proprietary or confidential information, including but not limited to: (a) prices for Services or Product, audit and security reports, server/network configuration designs, passwords, business plans, technical information or data, product ideas or other research and development, methodologies, calculation algorithms and analytical routines, content or information transmitted to or from, or stored by Client on, Accellis’ servers or that is otherwise created or used by Client in connection with the Services (“Client Data”); and information that is either marked or designated as “Confidential” or could reasonably be understood to be confidential or proprietary under the circumstances (“Confidential Information”). Each party shall treat the other party’s Confidential Information in strict confidence and shall use or not disclose such information to any third party.

6.2. Exceptions. Confidential Information does not include:

6.2.1. Information that at the time of disclosure is, without fault of the recipient, available to the general public;

6.2.2. Information that the recipient can show was independently in its possession at the time of disclosure;

6.2.3. Information received from a third party who had the right to disclose the information without violation of any confidentiality agreement with the other party; or

6.2.4. Information required to be disclosed pursuant to court order or by law, provided that the disclosing party is, to the extent possible, provided with advance notice of any such disclosure, and that any disclosure is limited to the minimum amount of information required.

6.3. Agreement Terms to be Kept Confidential. No copies of this MSA or Service Attachments shall be disclosed to any third party, except by reason of legal, accounting, or regulatory requirements, without the prior written consent of the other party.

7. COMPLIANCE MATTERS

Accellis shall not be deemed to be providing Client with advice concerning the meaning, interpretation of, or compliance with any laws, regulations or other legal requirements, including, without limitation, Payment Card Industry (PCI) standards, the Sarbanes-Oxley Act (SOX), the Health Insurance Portability and Accountability Act (HIPAA), the European Union General Data Protection Regulation (GDPR) or the New York Department of Financial Security Cybersecurity Requirements for Financial Services Companies. Any involvement by Accellis shall be deemed to be the provision of technological advice on implementation of solutions or protocols developed by the Client, its attorneys and/or advisors.

8. WARRANTIES, DAMAGES, INDEMNIFICATION AND LIMITATIONS

8.1. DAMAGES. IN NO EVENT SHALL ACCELLIS BE HELD LIABLE TO CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOST PRODUCTIVITY, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR LOSS OF PROGRAMS OR INFORMATION, THAT RESULT FROM ANY BREACH OR CLAIM OF ANY KIND, REGARDLESS OF WHETHER IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR UNFORESEEABLE.

8.2. Warranties. Accellis warrants only that the Services will be performed by personnel with sufficient experience or education to provide the Services. Services will be deemed to have been accepted by the Client and to be conforming unless Client notifies Accellis in writing within ten (10) business days following completion of the Services. Accellis does not independently warrant any Third-Party Products and Services, however, will assist the Client in obtaining the benefit of any warranties and remedies that might be available from the third-party vendor or service provider.

8.3. Limitation of Remedies. FOR ANY BREACH OF THE WARRANTIES MADE OR CLAIM OF DEFECT IN THE SERVICES (OTHER THAN THE THIRD-PARTY PRODUCTS AND SERVICES), CLIENT’S EXCLUSIVE REMEDY AND ACCELLIS’ ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES, OR, IF ACCELLIS CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY WITHIN A REASONABLE TIME, THEN CLIENT MAY TERMINATE THE APPLICABLE SERVICE CONTRACT AND ACCELLIS WILL REFUND TO CLIENT THE FEES FOR THE AFFECTED SERVICES, OR PORTION THEREOF, THAT WERE NOT PROPERLY PERFORMED, TOGETHER WITH ANY FEES PRE-PAID ON ACCOUNT OF ANY PORTION OF THE AFFECTED SERVICES NOT YET PERFORMED PROVIDED CLIENT NOTIFIES ACCELLIS AND PROVIDES ACCELLIS A REASONABLE OPPORTUNITY OF AT LEAST 30 DAYS TO CURE. THE SERVICES, INCLUDING ANY THIRD-PARTY PRODUCTS AND SERVICES, ARE PROVIDED ON AN “AS IS” BASIS AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SAME, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM AND USAGE, PRIOR PRACTICE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED. WITHOUT LIMITING THE FOREGOING, IT IS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICES WILL MEET ANY CLIENT’S PARTICULAR REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES WILL BE COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN LAPSES IN THE AVAILABILITY OR SECURITY OF THE SERVICES. ACCELLIS SHALL HAVE NO LIABILITY WITH RESPECT TO ANY BREACH OF WARRANTY OR CLAIM OF DEFECT IN ANY THIRD-PARTY PRODUCTS OR SERVICES AND CLIENT SHALL LOOK EXCLUSIVELY TO SUCH REMEDIES AS MIGHT BE MADE AVAILABLE BY THE THIRD-PARTY VENDOR OR SERVICE PROVIDER.

8.4. Other than for payment obligations of Client for Products or Services provided pursuant to this MSA or incorporated Service Attachment, no action or other proceeding of may be commenced by either party more than one (1) year after the date of the breach or event giving rise to the claim; failure to make such a claim within such one (1) year period shall forever bar the claim.

8.5. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE SPECIFICALLY AGREED IN WRITING, ACCELLIS’ LIABILITY IN CONNECTION WITH ANY CLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CLIENT AND WILL NOT EXCEED THE GREATER OF (1) $5,000, OR (2) THE FEES ACTUALLY PAID BY CLIENT TO ACCELLIS IN CONNECTION WITH THE SERVICE CONTRACT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM. THE LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES SHALL NOT APPLY TO CLAIMS MADE WITHIN THE AVAILABLE COVERAGES OF CONSULTANT’S PROFESSIONAL LIABILITY INSURANCE. Accellis shall not be liable for delay in performance or nonperformance of any term or condition of this MSA directly or indirectly resulting from lack of full and free access to System or Premises. THIS LIMITATION OF LIABILITY REPRESENTS A BARGAINED FOR EXCHANGE AND IS A MATERIAL COMPENENT TO THE CALCULATION OF FEES BY COMPANY. NOTWITHSTANDING FOREGOING, COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES WHICH WERE CAUSED OR WOULD HAVE BEEN PREVENTED BY PRODUCTS OR SOFTWARE OFFERED TO CLIENT BY COMPANY FOR WHICH CLIENT DECLINED OR FOR THE INTENTIONAL CRIMINAL ACTS OF THIRD PARTIES.

8.6. INDEMNIFICATION. Client shall indemnify and hold Accellis harmless against and from any and all causes of action, damages and other liabilities and expenses of any kind whatsoever (including, without limitation, reasonable attorney’s fees) incurred by Accellis related to:

8.6.1. Client’s use of the Services in violation of an applicable AUP or illegal or improper use of the Services by Client;

8.6.2. Use of software or other technology provided or furnished by Client;

8.6.3. Client’s violation of the rights of a third-party vendor or service provider; or

8.6.4. Client’s transmission or use of Services or Products violating a regulation, including GDPR.

9. MISCELLANEOUS TERMS.

9.1. Independent Contractors. Accellis will perform all Services solely as an independent contractor and not as an employee, agent or representative of Client.

9.2. Placement Fee. Client agrees that during the term of this MSA and for a period of one (1) year following the termination of this MSA, Client will pay Accellis the Placement Fee (defined below) for, individually or in conjunction with others, hiring or retaining, directly or indirectly any of Accellis’ employees or subcontractors (“Accellis Resource”) in order to compensate company for the internal and external costs of recruitment, interviewing, placement expenses, training, certification and other efforts of Accellis relative to such person. “Placement Fee” means forty percent (40%) percent of that employee or subcontractor’s annualized compensation with Accellis (including any bonuses) which shall be due and payable 15 days following Client’s hiring of Accellis Resource. Notwithstanding the foregoing, Client shall not be precluded from conducting general recruiting activities, such as participating in job fairs or publishing help wanted advertisements for general circulation.

9.3. Accellis and Client (i) consent to the recording of telephone conversations between personnel of the parties in connection with the Services.

9.4. Marketing. Client hereby grants Accellis the right, upon execution of a Service Attachment, to reference Client’s name, industry, logo, and URLs in its marketing literature, website, and/or correspondence to potential new customers, so as to identify Client as a customer of Accellis for marketing purposes.

9.5. Severability. If any provision hereof or any is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this MSA or any shall be valid and enforceable to the fullest extent permitted by applicable law. Such unenforceability shall not affect any other provision of this MSA, and the MSA shall be construed as if such an unenforceable provision or provisions had never been included in this MSA.

9.6. Survival of terms beyond termination. The party’s respective duties and obligations regarding proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this MSA or any Service Attachment.

9.7. All notices shall be in writing and deemed to delivered in person, over email, or on the next business day if sent via overnight delivery service, or on the third business day after deposit, postage prepaid, in the United States Mail for delivery via Certified Mail, return receipt requested, and addressed to the addresses of the parties listed in the initial paragraph.

9.8. Force Majeure. A party will not be liable for any failure of performance due to causes beyond its reasonable control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorism, epidemics, 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 a party or the Services provided hereunder (a “Force Majeure Event”). A party whose performance is so affected shall give written notice to the other party describing the performance that has been prevented (the “Affected Performance”). If the delay caused by the Force Majeure Event lasts for a period of more than thirty (30) days, then either party may serve thirty (30) days’ written notice of termination.

9.9. 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.

9.10. Governing Law, Jurisdiction and Attorneys’ Fees. This agreement is to be governed by and construed in accordance with the law of the State of Ohio without giving effect to principles of conflict of laws. Any action brought hereunder shall be in the State or Federal Courts within the State of Ohio. If, Accellis commences litigation to collect fees hereunder and is the prevailing party, then Accellis shall be entitled to reasonable attorneys’ fees incurred in collecting such sums.

9.11. Third Party Licenses. Client acknowledges that the Third-Party Products and Services are made available on the terms and conditions set forth in the Third-Party Agreements (copies of which may be found at www.accellis.com/tpa), including without limitation any applicable end user license agreement, retail customer terms and/or AUP, and Client agrees to use the Third-Party Products and Services in accordance with such terms and conditions.

9.12. Assignment. Neither party may assign this MSA or a Service Contract, in whole or in part, or any of its rights or obligations, without the prior written consent of the other party, and any purported assignment made without such consent shall be void and of no effect. However, Accellis may assign its rights, and obligations in the event of a change in control of 50% or more of its equity, the sale of all or substantially all of its assets, or to an affiliated company. Accellis may contract with third parties to deliver Services, and no such third-party contract shall be interpreted as an assignment.

9.13. Cyber insurance. Upon execution of any Service Attachment, Client will, at Client’s expense, maintain cyber insurance covering Client’s System with financially sound and reputable insurers. Upon request, Client will provide Accellis with a certificate of insurance from Client’s insurer evidencing the insurance coverage. Accellis shall maintain professional liability insurance, including technology errors and omissions and cyber incident response coverages, with limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate and will provide Client with a certificate of insurance evidencing the insurance coverage.

9.14. Captions. All captions, headings and subheadings in this MSA are included for reference only, and in no way define or otherwise modify the terms of this MSA.

9.15. This MSA sets forth our entire understanding with respect to the subject matter hereof and is binding upon the parties, their successors, and their permitted assigns.