AppSmart Master Services Agreement

Cloud Service Partners, Inc. Master Services Agreement


1.    INTRODUCTION

This Master Services Agreement applies to all services provided by Cloud Service Partners, Inc. (“CSP“) dba AppSmart (“AppSmart”) to a customer (“Customer”) who has signed or otherwise accepted a Sales Order and/or a Statement of Work (each referred to herein as an “Order”) to acquire the services described therein (“Services”).  This Master Services Agreement, along with the terms of the Order, constitutes a legally binding agreement (“Agreement”) between AppSmart and Customer.  By executing or otherwise accepting the Order, Customer agrees to all of the terms of this Agreement.  This Master Services Agreement is incorporated by reference into each Order. The terms of this Master Services Agreement shall govern if there is a conflict between an Order and this Master Services Agreement, unless expressly stated otherwise in the Order.

2.    SERVICES

2.1.   AppSmart will use commercially reasonable efforts to provide the Services to Customer.   Except as otherwise agreed in the Order, Customer is responsible for providing its own computers, internet access, and other equipment and software (“Equipment”) meeting the specifications provided by AppSmart required to access and use the Services.

2.2.   Customer acknowledges that Services may include the resale or other provision by AppSmart of third party products or services (“Third Party Services”).  Customer agrees that its use of Third Party Services, and AppSmarts’ liability with respect to Third Party Services, are each subject to the terms and agreement(s), including service level agreements, provided by the respective third party services providers (the “Third Party Terms”), links to which may be found at https://www.appsmart.com/company/third-party-terms. Customer acknowledges that Customer may be required to accept the Third Party Terms directly with the third party service provider prior to using the Services. To the extent AppSmart electronically accepts any such third party terms as part of setting up any such services, Customer authorizes AppSmart to act as Customer’s limited agent for this purpose, and further agrees that AppSmart is in no event a party to any such third party terms.

2.3.   Customer agrees that AppSmart shall not be liable for the acts or omissions of providers of Third Party Services, and that AppSmart shall not be responsible for any remedies set forth in the Third Party Terms.  AppSmart will use commercially reasonable efforts to seek and pass along to Customer available remedies for issues with Third Party Services. Customer’s remedies with respect to any issues with Third Party Services that affect multiple customers are limited to a proportionate amount of any remedies received by AppSmart as may be set forth in the Third Party Terms.  For purposes of this Agreement, “proportionate” means a percentage equal to the product of (i) the resources utilized by Customer divided by (ii) the total resources utilized by all of the affected customers, as determined by AppSmart.

2.4.   Customer acknowledges and agrees that any technical support for the Services will be provided by AppSmart, and that no third party service provider is obligated to provide direct technical support to Customer under this Agreement, unless specifically set forth otherwise in the Order.  If AppSmarts’ relationship with a third party provider terminates in the future: (a) technical support for the associated Services may be provided by such third party directly or via another reseller; and (b) Customer or end users will then be required to sign up for future associated Services with another reseller or with such third party directly.

2.5.   Customer acknowledges and agrees that AppSmart may maintain an administrative account for Customer’s Services solely for technical support and account management purposes.

2.6.   Customer acknowledges and agrees that AppSmart may from time to time transition one or more providers of Third Party Services to alternate third-party providers providing substantially equivalent services, or to direct provision of Services by AppSmart.  AppSmart will provide advance written notice to Customer of such transition and use commercially reasonable efforts to minimize disruption to Customer. In such event, Customer acknowledges and agrees that it will accept replacement Third Party Terms, or replacement AppSmart terms, associated with the transferred Services.

2.7.   Customer may from time to time increase the level or quantity of Services it receives under this Agreement, with the approval of AppSmart, not to be unreasonably withheld.   Changes may be reflected in amended or new Service Orders, and/or on subsequent invoices sent by AppSmart after the agreed change. Customer’s payment of any invoices reflecting such increased Services constitutes Customer’s agreement to such increased Services.

3.    PAYMENT TERMS

3.1.   Customer shall pay the fees for Services as set forth in the Order.  Charges for additional services required for implementation or use of such Services (beyond the scope of implementation or use as defined in the Order) shall be at AppSmarts’ then-current charges. Billing to Customer for recurring Services charges will begin on the “Start Date”, defined as the earlier of: (a) date that the Services are activated for Customer, or (b) thirty (30) days after the date of the Order and will continue as specified on the Order. All recurring charges are invoiced in advance.  On the Start Date, Customer will be invoiced for all non-recurring charges, including any initial setup fee, unless otherwise specified on the Order. All other charges for Services may be billed at times designated by AppSmart. The fees for Services may be increased from time to time in AppSmarts’ reasonable discretion and reflected in invoices submitted by AppSmart.  Customer’s payment of any such invoices shall constitute Customer’s agreement to such increased fees. As its sole remedy, Customer may terminate this Agreement in the event that it objects to any fee increase by providing notice to AppSmart within thirty (30) days of notice of the fee increase.

3.2.   Customer shall pay all invoices within seven (7) days after date of invoice. AppSmart in its discretion may require Customer to pay by credit card or other electronic payment mechanism, and Customer hereby authorizes AppSmart to automatically draft payment at or near the date of invoice.  AppSmart may also in its discretion require Customer to make a deposit. Any deposit will be held by AppSmart as security for payment of Customer’s charges, and, in AppSmarts’ sole discretion, may be applied against any past-due charge (and Customer may be required to replenish such deposit). Upon termination of this Agreement, the amount of any deposit then remaining will be credited to Customer’s account and any remaining credit balance will be refunded to Customer. Any deposit held by AppSmart shall not accrue interest, and AppSmart shall not be required to place any deposit into an escrow account.  All amounts owed shall be paid in U.S. Dollars without offsets or deductions of any kind. All payment obligations are non-cancelable and all amounts paid are non-refundable.

3.3.   Past due amounts bear interest at a rate of 1.5% per month (or the highest rate allowed by law, whichever is less) beginning from the date first due until paid in full.  Customer agrees to pay AppSmarts’ reasonable costs of collection of past due amounts, including collection agency fees, attorneys’ fees and court costs.

3.4.   Customer shall at AppSmarts’ direction promptly reimburse AppSmart or pay directly to the applicable taxing authority all applicable taxes, fees, duties, charges, or regulatory surcharges that arise in any jurisdiction on the provision, sale or use of any Services and permitted by applicable law to be passed through to Customer, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise and other taxes or federal or state universal service charges, except for taxes based on AppSmarts’ net income and taxes assessed on AppSmarts’ property (collectively, “Applicable Taxes”), and any penalties and interest related to such Applicable Taxes, except to the extent that Customer provides AppSmart an appropriate exemption certificate related to any Applicable Tax. AppSmart will give prospective effect to any valid exemption certificate to the extent that it applies to any Services and shall cooperate at Customer’s sole expense in pursuing any claim for refund of Applicable Taxes paid by Customer.

4.    RIGHTS AND OBLIGATIONS

4.1.   Customer shall not and shall not permit others, including its employees and agents, to reproduce, reverse-engineer, de-compile, disassemble, modify, adapt, market, resell, sublicense, or sublease any Services, unless expressly permitted by this Agreement.  Other than as specified herein, no license, title, or right is granted or transferred to Customer in or to any trademarks, copyrights, patents, trade secrets or other intellectual property rights of AppSmart (“Proprietary Information”), and Customer shall not have any right to use any Proprietary Information, or any AppSmart software or hardware.  Without the prior written consent of AppSmart, Customer shall not permit the Services to be utilized for the provision of any services that compete with any Services.

4.2.      Customer shall reasonably, timely, and in good faith cooperate with AppSmart and AppSmarts’ designees and agents to facilitate AppSmarts’ implementation and performance of Services and shall provide AppSmart with reasonable access to the necessary information, including but not limited to, system or platform design, network architecture, IP addresses, hardware, and software (“Customer Information”) to implement and provide the Services described in this Agreement.  It is essential to AppSmarts’ performance hereunder that AppSmart have reasonable access to Customer Information.  AppSmart assumes no responsibility to obtain from Customer’s licensors necessary licenses or consents to monitor or access Equipment to perform the Services.  If Customer modifies its Customer Information in a manner that requires a change to the Services, then Customer shall pay any reasonable time and materials that AppSmart incurs to troubleshoot, modify, or make repairs necessary to adapt to the Customer modifications. Unless specified otherwise in the Order, Customer is responsible for purchasing and maintaining all manufacturer warranties, updates, patches, upgrades, and service plans reasonably required to ensure that the Equipment remains in working order through the Term and AppSmart shall not be responsible for any delay or failure by Customer to purchase or maintain such items.

4.3.      Customer agrees to use reasonable security precautions in connection with the use of the Services (including encrypting any information that is subject to special legal or regulatory security requirements and that is transmitted to or from, or stored by Customer on, the services or storage devices used by Customer) and, require its customers and end users to use reasonable security precautions.  Customer is otherwise responsible for the security of the Equipment. Customer shall be responsible for unauthorized use of the Services by any person, unless such unauthorized use results from AppSmarts’ failure to perform its obligations hereunder.

5.    CONFIDENTIAL INFORMATION

5.1.   Each party may have access to certain non-public information of the other party.  All such information, if in writing, shall be clearly marked as “confidential” by the disclosing party at the time of disclosure, or if disclosed orally, shall be orally designated as confidential and thereafter identified as confidential by written notice to the receiving party within a reasonable time (“Confidential Information”).  The pricing and terms of this Agreement (including the Order), AppSmarts’ physical security systems, specialized recovery equipment, techniques, audit and security reports, server configuration designs, names of AppSmart customers, method of providing its respective services and products are hereby deemed AppSmart Confidential Information.  Neither party will use for its own account or the account of any third party, nor disclose to any third party (except as required by law or as reasonably necessary to the receiving party’s attorneys, accountants and other advisors who are obligated to maintain the confidentiality of such information), any of the other party’s Confidential Information.  The disclosing party retains all right, title and interest in all Confidential Information it discloses under this Agreement. Each party will use reasonable care, at least equivalent to the care used for its own similar Confidential Information, to protect the confidentiality of the disclosing party’s Confidential Information. Each party agrees to use the other party’s Confidential Information only in connection with the performance or use of Services hereunder.

5.2.   Confidential Information shall not include information that (i) is in or enters the public domain without breach of this Agreement and through no fault of the receiving party, (ii) the receiving party was legally in possession of prior to receiving it, (iii) the receiving party can demonstrate was developed by it independently and without use of or reference to the disclosing party’s Confidential Information, or (iv) the receiving party receives from a third party without restriction on disclosure.  If a party is required to disclose the other party’s Confidential Information by law, court order, or government agency, such party will provide the other party with written notice and cooperate in allowing the other party to seek a protective order or other means to limit the scope of any such required disclosure.

5.3.   Any unauthorized copying, transfer, or use of any Confidential Information of the other party shall cause irreparable injury to the disclosing party that cannot be adequately compensated by monetary damages and the disclosing party shall be entitled to seek equitable relief, including injunctive relief, with bond waived, against the receiving party as a remedy for any material breach of this Section.  The disclosing party may in addition to equitable relief, pursue any and all legal and contractual remedies available to the disclosing party.

6.    TERM AND TERMINATION

6.1.   This Agreement shall continue for the term specified on the Order (“Term”), unless earlier terminated as set forth herein, or by the applicable third party service provider pursuant to the Third Party Terms.  This Agreement will automatically renew for successive annual renewal terms, unless a party provides written notice to the other party of its intent to terminate this Agreement at least sixty (60) days prior to the end of the then-current term.

6.2.   Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such material breach within thirty (30) days after written notice.  AppSmart may also terminate this Agreement or any specific Services if Customer fails to pay any amount due hereunder or for such Services within seven (7) days after the payment due date.  In addition, AppSmart may suspend some or all of the Services upon written notice to Customer if Customer materially breaches this Agreement, including failure of Customer to pay amounts due hereunder by their due date.

6.3.   Customer acknowledges that the amount of the recurring fee for Services is based on Customer’s agreement to pay the recurring fees for the entire Term.  AppSmarts’ damages from (i) termination by AppSmart associated with a Customer breach or (ii) the early termination by Customer not associated with a AppSmart breach are difficult to ascertain.  For that reason, Customer agrees to pay one hundred percent (100%) of the remaining recurring charges and of any charges due and payable under any applicable Orders through the then current Term.  Customer also agrees to pay one hundred percent (100%) of any third party termination or cancellation charges that AppSmart incurs as a result of Customer’s payment breach for any of the Services ordered for and provided to Customer under this Agreement.  This provision is intended to establish liquidated damages and is not intended as a penalty. Other than as set forth herein, this liquidated damages provision does not waive or alter any remedies available to AppSmart under this Agreement for Customer’s breach or early termination.

6.4.   Customer acknowledges and agrees that, upon termination of this Agreement or any individual Services for any reason, Customer will no longer have any rights to access the terminated Services or any Customer data stored or otherwise associated with the terminated Services after termination.

7.    MARKETING

7.1.   AppSmart shall have the right, but not the obligation, to use the name and logos of Customer on AppSmarts’ websites and other marketing documents, for the purpose of identifying Customer as a customer.  AppSmart agrees Customer shall retain ownership of all of its trademarks and logos.

7.2.   Customer further agrees to provide AppSmart with reasonably requested information for possible use on AppSmarts’ websites and on other promotional material in conjunction with Customer’s name and logo.

8.    WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY

8.1.   THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED.  APPSMART DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE.  APPSMART, GOOGLE AND THE OTHER THIRD-PARTY SERVICE PROVIDERS DISCLAIM ANY AND ALL WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

8.2.   To the maximum extent permitted by applicable law and regardless of whether any remedy herein fails of its essential purpose, in no event shall either AppSmart, or any third-party service provider, be liable to Customer or any third party arising out of the use of or inability to use the Services, under any contract, negligence, strict liability or other theory, for any damages, whether direct, indirect, special, incidental, exemplary or consequential damages (including lost profits), or for loss of or corruption of data, lost profits, or for cost of procurement of substitute goods or technology, regardless of whether AppSmart, or any third-party service provider has been advised of the possibility of such damages.

8.3.   Notwithstanding anything herein to the contrary, except for claims based on AppSmarts’ willful misconduct, AppSmarts’ maximum aggregate liability to Customer related to or in connection with this Agreement, Order or the Services will be limited to the total amount paid by Customer to AppSmart during the prior three (3) month period.

9.    MISCELLANEOUS

This Agreement is the sole and exclusive agreement between the parties related to its subject matter, and supersedes and replaces all other prior and contemporaneous agreements and communications related thereto, whether oral or written.  This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and enforced in accordance with, the laws of the State of North Carolina without regard to North Carolina’s conflict of law principles.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any and all disputes shall have exclusive venue in the federal and state courts in Wake County, North Carolina, and both parties consent to the jurisdiction of these courts.  No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the waiving party; failure to insist upon strict compliance with this Agreement shall not be deemed a waiver of any future right arising out of this Agreement. Customer may not assign the Agreement, or any of its rights or duties under the Agreement, directly, indirectly, by operation of law or otherwise, without the written consent of AppSmart, and any such purported assignment shall be void.   The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel. Either party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence beyond its reasonable control, including but not limited to, acts of God, terrorism, significant failure of the Internet, significant failure of a part of the power grid, labor disputes and strikes, riots, war, governmental acts or requirements and other events of a magnitude or type for which precautions are not generally taken in the industry.  The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. Customer represents and warrants that: (i) it has full legal authority to enter into this Agreement; (ii) it has read and understands this Agreement; (iii) it agrees to all of the terms of this Agreement; and (iv) it will comply with all applicable laws and regulations in connection with its use of the Services. The respective rights and obligations of AppSmart and Customer, which by their nature would continue beyond the termination or expiration of this Agreement, including without limitation, the rights and obligations regarding ownership of intellectual property, confidentiality, limitation of liability, disclaimer of warranties and these miscellaneous provisions, shall survive the termination or expiration of this Agreement.  This Agreement may be amended by AppSmart from time to time with or without notice to Customer. AppSmart will endeavor to provide Customer with notice of any material changes to this Agreement, which notice may be given by e-mail or may be included in an invoice to Customer. Customer agrees that it is responsible for checking the URL where this Agreement is stored to view any changes, and Customer’s continued use of the Services after changes to this Agreement constitutes Customer’s agreement to the changed Agreement.