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Terms of Service

MASTER SERVICES AGREEMENT

THIS AGREEMENT is entered into on the date hereinafter written by and between EASYSUPPORT LLC (“EASY”) and you, as an authorized user of EASY products and services, and governs the terms and conditions of your use of EASY products and services (“Terms of Service”). This Agreement, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time by EASY (collectively, the “Agreement”), constitutes the entire agreement between EASY and you regarding EASY products and services, and supersedes all prior agreements between the parties regarding the subject matter of this Agreement.

BACKGROUND

Provider provides IT consulting, project management, software, and solution services to organizations in the design, deployment, and support of IT infrastructure and applications systems, as well as integration and related services. Client desires to obtain and Provider agrees to provide such services as specified herein in accordance with this Agreement and the Attachments, Exhibits, Quotations, Proposals, and Statement of Work (“SOW”) attached and made part of this Agreement. Client and Provider agree that the following terms and conditions shall govern Provider’s provision of such services and Client’s acceptance of those services.

TERMS AND CONDITIONS

Client and Provider hereby agree as follows:

  1. Definitions
    1. “Deliverables” shall mean the hardware solutions, software solutions, reports, workpapers, plans, designs, programming or other designated work product specified in the applicable SOW.
    2. “Fees” shall mean Provider’s fees to be paid Provider by Client for Provider’s performance of the Services and/or provision of the Deliverables as specified in the applicable SOW.
    3. “Services” shall mean those services (e.g., consultative, implementation, design, programming, installation) to be provided to Client by Provider as specified in the applicable SOW.
    4. “Agreement” shall mean this Master Services Agreement, including its attachments, exhibits, and SOWs, and including any future SOWs executed between the parties in accordance herewith.
    5. “Statement of Work” or “SOW” shall mean a proposal, quotation, and/or addendum to this Agreement executed by Client and Provider that specifies the Services and/or Deliverables to be provided to Client by Provider, including any additional terms and conditions specific to that SOW.
  2. Term and Termination.
    1. The term of this Agreement shall be from the Effective Date of the Agreement and continue for a period of thirty-six (36) months, unless earlier terminated by either party in accordance with this Agreement; provided however, upon such termination, this Agreement shall continue to remain in effect with respect to any SOWs made a part hereunder during the term of this Agreement until such SOWs are themselves expired and performance thereunder is completed. Thereafter, this Agreement shall automatically renew for additional one (1) year terms, unless either party terminates this Agreement by providing the other party written notice of termination at least Thirty (30) days prior to the termination date.
    2. Each individual SOW may contain a provision governing the term, renewal, amendment, and extension options of that specific SOW.
    3. Client may terminate this agreement without cause by providing sixty (60) days written notice subject to the conditions of Section 13.9. Termination without cause will result in the lesser of a twelve (12) month charge at the then-current billing rate or the number of months remaining in the then-current term, which shall constitute liquidated damages and not as a penalty. Client acknowledges and agrees that such liquidated damages constitute a reasonable estimate of the damages that EASY will incur as a result of the premature termination of this agreement without cause. If Client has the right under this Agreement to reduce the level of service in any manner and Client takes advantage of that right, the reduction of service to a level lower than 50% of the original level of service on a monthly-charge basis shall be deemed a termination of this Agreement without cause subject to liquidated damages utilizing the original monthly contract rate. EASY may terminate this agreement without cause by giving 30 days written notice.
    4. If EASY fails to perform any of the services required by this agreement, Client shall provide EASY with written notice of the non-performance within five (5) business days of Client’s discovery of such failure; the written notice shall be clearly identified as a “Non-Performance Notice,” shall clearly and specifically identify the alleged non-performance, subject to the conditions of Section 13.9. EASY shall use its best efforts to reasonably cure such failure within thirty (30) days of receipt of the Non-Performance Notice. If EASY is unable to cure the alleged non-performance in a reasonably acceptable manner in accordance with industry standards, Client’s sole remedy shall be termination of this agreement and the reimbursement of any unearned monies paid to EASY related to the nonperformance of the specified items. EASY may terminate this agreement immediately upon written notice if Client has failed to timely make any payment when it is due
    5. If Client terminates this agreement for cause or without cause, Client shall, within five (5) business days of such termination, pay EASY for all previously unbilled work as well as for all outstanding invoices, remove any software provided by EASY and return any hardware provided by EASY.
    6. EASY will make reasonable efforts to cooperate with any Client-chosen provider subsequent to proper termination, provided Client has paid all amounts due under this agreement within five (5) days after the termination of this agreement. Client agrees to return to EASY any unpaid deliverables in Client’s possession.
    7. Termination of this Agreement shall not affect rights and/or obligations of the parties which arose prior to any such termination (unless otherwise provided herein) and such rights and/or obligations shall survive any such termination.
  3. Services.
    1. Provider shall provide the Services and/or Deliverables specified in the SOW(s) mutually entered into from time to time by and between Client and Provider and attached hereto as an addendum.
    2. Each SOW shall describe the specific nature of the Services to be rendered to Client by Provider, and may include: (a) a description of the Services and/or Deliverables to be provided, (b) work schedule and anticipated completion date, (c) schedule of Fees, (d) assumptions related to the SOW, (e) Client’s responsibilities, and (f) applicable terms and conditions specific to the SOW.
    3. In the event of a conflict between the terms of this Agreement and the terms of any SOW, the terms of the SOW shall control.
  4. Fees and Payments.
    1. Client shall pay Provider’s Fees for the Services rendered and/or Deliverables provided by Provider per the terms of the applicable SOW.
    2. Customary and reasonable out-of-pocket expenses for travel, subsistence, certain communications, and similar business expenses incurred by Provider in the provision of the SOW will be billed, at actual cost, to Client.
    3. Other costs to Client specified in the applicable SOW (e.g., equipment provided by Provider, third-party licensing fees, etc.) shall be billed to Client per the payment terms specified therein.
    4. Unless otherwise specified in the applicable SOW, Provider may invoice Client on a monthly or semi-monthly basis as defined in the SOW for the Services rendered, Deliverables provided, and out-of-pocket expenses incurred by Provider. Provider’s billings to Client shall be governed by Provider’s Billing Policies and Rate Structure attached as Attachment A to the SOW.
    5. Payment is due within fifteen (15) days of the date of Provider’s invoice. Provider shall assess Client a late payment charge on any undisputed amount that remains unpaid after it is due of ten percent (10%). Provider shall access Client interest on any undisputed amount that remains unpaid thirty (30) days after after its due date. Client shall not be assessed a late payment charge on amounts disputed in good faith for which Client submits to Provider a written, detailed description of the dispute, provided Client pays all undisputed amounts within fifteen (15) days of the date of Provider’s invoice.
    6. Client shall be responsible for the payment or reimbursement of all sales, use, excise, and similar taxes, except for Provider income taxes, applicable to the Services rendered and/or Deliverables provided by Provider under this Agreement.
    7. Provider’s obligations and Client’s rights under this Agreement are conditional upon Client’s timely payment of all fees and charges.
  5. Confidentiality and Non-disclosure.
    1. “Confidential Information” shall mean, proprietary information and materials provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), which at the time of disclosure is designated as confidential by the Disclosing Party or which by its nature would be understood to be confidential information. This includes, but is not limited to, Provider Intellectual Property (as defined in Section 6.1(a) herein), information concerning subsidiaries, affiliates and contractors, business plans, customers, employees, trading partners, trade secrets, new products and concepts, proprietary systems and technologies, financial data and operating procedures, and patient information regardless of form or media.
    2. Information provided by the Disclosing Party shall not be considered Confidential Information if the Receiving Party can demonstrate the disclosed information: (a) was known to the Receiving Party prior to disclosure by the Disclosing Party, (b) is or becomes publicly known in the public domain, (c) is given to the Receiving Party by a third party who has the right to disclose the information, (d) is independently created or developed by the Receiving Party, or (e) is required to be disclosed by law or court of competent jurisdiction.
    3. Provider and Client agree that the Confidential Information made available to the Receiving Party by the Disclosing Party shall be used by the Receiving Party solely for the purposes set forth in this Agreement and the applicable SOW(s), and that no license or grant, express or implied, in the Confidential Information is made by the Disclosing Party. Unless otherwise expressly authorized by either party or required by law, all Confidential Information shall be kept in strict confidence. Provider and Client shall execute similar confidentiality and non-disclosure agreements with all officers, employees, agents, consultants and sub-contractors that may have access to Confidential Information and agree to be responsible for any breach of this Section 5.
    4. Client agrees and accepts that as part of Provider’s confidential client files Provider will retain copies of the Deliverables and other pertinent work papers generated as part of the Services as evidence of the work performed for and the Deliverables provided to Client by Provider. Further, such Deliverables and other pertinent work papers may contain Confidential Information and such shall be retained in confidence by Provider per the terms of this Section 5.
    5. Protected Health Information.
    6. The terms and conditions of this Section 5 shall survive the termination of this Agreement.
  6. Ownership of Materials.
    1. Provider Proprietary Information.
      (a) Client acknowledges that Provider and its suppliers retain all right, title, copyright, and proprietary interests in any and all development tools, know-how, trade secrets, methodologies, processes, plans, technologies, materials, computer programs and software, vendor lists, and other proprietary information (collectively, “Provider Intellectual Property”) used in providing the Services under this Agreement.
      (b) Client represents that any and all Provider Intellectual Property disclosed or provided to Client by Provider pursuant to Provider’s performance of the Services hereunder shall not be used by Client in any manner inconsistent with the purpose for which such Provider Intellectual Property was so disclosed or provided to Client.
      (c) Client shall limit access to Provider Intellectual Property to its employees and such agents and consultants whose responsibilities to Client require such access in accordance with Section 5 (Confidentiality and Non-disclosure) herein. Client shall exercise commercially reasonable safeguards over Provider Intellectual Property and shall treat Provider Intellectual Property in a manner consistent with Client’s own most Confidential Information.
      (d) Client recognizes that Provider Intellectual Property is a valuable asset of Provider and is not to be used in an unauthorized manner or, except as expressly specified in this Agreement, disclosed to any third party. Client acknowledges that a breach of the terms of this Section 6.1 would cause irreparable harm to Provider and Provider shall be entitled to immediate injunctive relief in addition to any and all other rights which Provider may have under this Agreement, at law or in equity.
    2. Provider represents to Client that Provider has the rights to any and all Provider Intellectual Property used by Provider in the performance of the Services and/or replicated in whole or part in the Deliverables. If any component of Provider Intellectual Property is owned by a third party and such component is to be embedded in or otherwise become part of the Deliverables, Provider shall obtain the right for Client to use such component in a manner consistent with the terms and conditions of this Section.
    3. Client represents to Provider that Client has the rights or license to use any and all materials provided to Provider by Client for Provider’s use under this Agreement, including all materials produced by any third party.
    4. The terms and conditions of this Section 6 shall survive the termination of this Agreement.
  7. Client Responsibilities.
    1. Client understands and acknowledges that the obligations of Provider to perform in accordance with this Agreement are dependent upon, among other things, the accuracy of the assumptions and representations made by Client, the timeliness of Client management decisions, and the performance of Client personnel in meeting their obligations in accordance with the Client Responsibilities section of the applicable SOW
    2. As appropriate and reasonably necessary for Provider’s performance of the Services, Client shall supply, without charge to Provider, on-site Provider personnel with suitable office and storage space and use of other normal office equipment such as telephones and copiers, including supplies.
    3. For Services in which Provider requires access to Client’s computer systems, including but not limited to operating systems, applications, servers, network and network equipment, circuits, physical access to data centers and wiring closets, or other information technology components (“IT Environment”), Client will provide Provider with proper access to its IT Environment, including the use of appropriately configured workstations and printers as necessary. Client shall be responsible for all costs and expenses for any associated third-party consents, approvals, and authorizations necessary to allow Provider to access, operate, and use Client’s IT Environment.
  8. Independent Contractor.
    1. Provider is an independent contractor as that term is commonly used and not an employee of Client. As such, Provider assumes complete responsibility for its own employees with regard to federal or state employer’s liability and withholding tax, worker’s compensation, social security, unemployment insurance, and other federal, state, and local laws.
    2. Further, Provider is solely responsible for any and all taxes due for any and all compensation earned by Provider under this Agreement.
    3. Neither party shall be deemed to be a legal representative of the other. Provider has no authority, either express or implied, to bind or obligate Client in any way.
  9. Sub-contracting.
  10. Non-solicitation.
  11. Warranty, Indemnification and Limitation of Liabilities.
    1. Provider warrants that all Services shall be performed by personnel with relevant skill sets, familiar with the subject matter for the SOW, in a professional, competent and workman-like manner.
    2. Each party shall indemnify, defend and hold the other harmless against any actions, loss, judgment, damage or expense associated with any third-party claim for bodily injury or personal property damage arising out of the indemnifying party’s performance within the scope of its responsibilities under this Agreement.
    3. It is understood by the parties that under the terms of this Agreement Provider is responsible for providing ideas, recommendations, and certain Deliverables (as identified in the applicable SOW) to Client, and Client shall be responsible for how Client subsequently uses those ideas, recommendations, and Deliverables. Each party shall be liable only for damages that might arise from the performance of its own responsibilities created herein.
    4. Client shall indemnify, defend, and hold harmless Provider and its officers, employees, partners, agents, principals, and sub-contractors, from any and all losses, liabilities, and claims, including costs and expenses, arising out of or resulting from Client’s subsequent use of Provider’s ideas, recommendations, Deliverables, or other work provided to Client by Provider under this Agreement.
    5. Intellectual Property Protection.
      (a) Provider warrants and represents that neither the Deliverables nor any Provider Intellectual Property used in the performance of the Services hereunder does or will violate or infringe upon any US patent, copyright, trade secret, or other property right of any person. If a claim is made against Client that any Deliverable or component thereof infringes or is alleged to infringe a US patent, copyright, trade secret, or property rights of any person, Provider will indemnify, defend, and hold Client harmless from such claim at Provider’s expense and will pay resulting costs, damages, and reasonable attorney’s fees finally awarded, provided: (i) Client promptly notifies Provider in writing of such a claim; and, (ii) Provider has sole control of the defense and all related settlement negotiations.
      (b) If any Deliverable or component thereof rendered by Provider under this Agreement is, or in Provider’s opinion is likely to be, held to constitute an infringing product, Provider shall at its expense and option immediately: (i) procure the right for Client to continue using it, (ii) replace it with a non-infringing equivalent, or (iii) modify it to make it non-infringing. If, in Provider’s judgment, none of the foregoing alternatives are commercially reasonable, then upon written request by Provider, Client shall return any infringing Deliverable or component thereof to Provider and Provider shall credit or refund to Client, at Client’s option, the actual cost of the infringing Deliverable or component thereof; if the actual cost of the infringing Deliverable or component thereof is not specifically identified in the associated SOW or specifically identified in Provider’s invoice to Client regarding same, then the determination of the actual cost of the infringing Deliverable or component thereof shall be solely determined by Provider.
    6. WARRANTY DISCLAIMER. ALL CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE REGARDING THE SERVICES AND DELIVERABLES ARE HEREBY DISCLAIMED AND EXCLUDED. PROVIDER DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR WILL PERFORM, OR BE PERFORMED, WITHOUT ERROR OR INTERRUPTION, AND PROVIDER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
    7. EXCLUSIVE REMEDY AND LIMITATION OF LIABILITY. UNLESS FURTHER LIMITED ELSEWHERE IN THIS AGREEMENT, THE ENTIRE LIABILITY OF PROVIDER, AND CLIENT’S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL NOT IN THE AGGREGATE EXCEED THE LESSER OF (a) THE FEES PAID TO PROVIDER BY CLIENT PURSUANT TO THE SOW(S) (FOR WHICH SUCH SERVICES GAVE RISE TO THE LIABILITY) FOR THE TWELVE (12) MONTHS PRIOR TO THE MONTH IN WHICH THE MOST CURRENT EVENT GIVING RISE TO THE LIABILITY OCCURRED, OR (b) THE FEES PAID TO PROVIDER BY CLIENT PURSUANT TO THE SOW(S) FOR WHICH SUCH SERVICES GAVE RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO CLAIMS COVERED BY SECTION 11.2 AND SECTION 11.5.
    8. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL PROVIDER BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUES, PROFITS OR SAVINGS, OR LOSS OF OR DAMAGE TO CLIENT DATA FROM ANY CAUSE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    9. No action, regardless of form, arising out of the subject matter of this Agreement may be brought by either party more than one (1) years after the cause of action has occurred, provided however that an action for non-payment may be brought within one (1) years of the date of the last payment.
  12. Force Majeure.
  13. Miscellaneous.
    1. Insurance.
      (a) Each party shall maintain comprehensive public liability and property damage insurance, insuring against liability for, among other things, bodily injury and property damage.
      (b) During the term of this Agreement, Provider shall maintain General Liability insurance coverage at a minimum of $1,000,000 per occurrence and $ 2,000,000 in the aggregate.
    2. Licenses and Permits. Provider and Client agree to obtain and maintain all applicable permits and licenses required to perform the SOW(s) contemplated by this Agreement.
    3. Examination of Records. Until the expiration of four years after the furnishing of any of the Services pursuant to this Agreement, or for such longer period as required by law or regulation, Provider agrees to make available upon the written request of the Secretary of Health and Human Services or the Comptroller General, or their representatives, this Agreement and such books, documents and records as may be necessary to verify the nature and extent of the costs of the services rendered hereunder to the full extent required by the Health Care Financing Administration implementing Section 952 of the Omnibus Section 1395x(v)(1)(1), or by any applicable federal or state authority.
    4. Entire Agreement. This Agreement, including its attachments, exhibits, and SOW(s), sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes any and all prior oral and written agreements, understandings or quotations regarding the subject matter of this Agreement. No amendment, alteration,
      modification or cancellation of the provisions of this Agreement shall be binding unless made in writing and signed by both parties. Printed terms and conditions on Client’s purchase orders shall not apply to the Services or Deliverables provided under this Agreement. 5. Severability. In the event a court of competent jurisdiction finds a provision of this Agreement to be invalid or unenforceable, the invalidity of that provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect as if the invalid provision had been omitted.
    5. Choice of Law. This Agreement shall be construed and governed in accordance with the laws of Florida. Any suit or action arising under this Agreement shall be brought in a State or Federal Court in Pinellas County, Florida.
    6. Waiver. The failure of either party in one or more instances to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms on any future occasion.
    7. Assignment. Except as otherwise specified herein, this Agreement or any SOW, shall not be assigned by either party without the express prior written consent of the other except to a parent or subsidiary, or to a successor by purchase merger or acquisition. No assignment shall relieve the assignor of its obligations under this Agreement. Any assignment not in accordance with these provisions shall be void.
    8. Notice. All notices, requests, demands or other communications to either party shall be in writing and mailed by registered and/or certified mail, to EASYSUPPORT LLC, Attn: Legal Department,1309 Coffeen Avenue STE 3946, Sheridan, Wyoming 82801 with evidence of effective transmission.
    9. CONSENT FOR ELECTRONIC COMMUNICATIONS AND DISCLOSURES. Please read this Consent for Electronic Communications and Disclosures carefully and print or retain a copy for your records, we are providing this notice to you in order to obtain your consent to do business with EASY electronically by entering into this Agreement and using electronic signatures (or a click acceptance button) to agree to the terms and conditions contained herein. You acknowledge that by electronically signing (or using a click acceptance button) you demonstrate that you can access this Agreement and any Exhibits attached thereto. You acknowledge and agree that by clicking the accept button or electronically signing you are involved in a transaction affecting commerce that is subject to the Electronic Signatures in Global and National Commerce Act and Florida Law and that EASY and you both intend that both acts shall apply to the fullest extent possible to validate EASY’s ability to conduct business with you by electronic means. You acknowledge that your electronic signature or click acceptance of the terms of this Agreement shall be the equivalent of a legally binding signature and EASY may rely upon it as such. You have the right to request, free of charge, a paper copy of any documents you have signed electronically by contacting EASY subject to the conditions of Section 13.9. You have the option to complete this process using the traditional signature process. You must contact EASY if you wish to sign your Agreement in ink. In order to access your electronically signed agreement, your computer must be equipped with the following hardware and or software: A printer compatible with your computer and Internet access. BY ELECTRONICALLY SIGNING OR USING A CLICK ACCEPTANCE BUTTON YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT DRAWN UP IN ENGLISH, YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, ALL INFORMATION SUBMITTED BY YOU IN THIS AGREEMENT IS COMPLETE, TRUE, ACCURATE, AND NOT MISLEADING AND IF YOU ARE SUBMITTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION YOU ARE DULY AUTHORIZED TO BIND THE ORGANIZATION TO THESE TERMS.