This Master Service Agreement (the “Agreement”) is by and between intlx Solutions, LLC (intlx), with HQ at 30 Pond Park Rd Unit 6, Hingham, MA 02043 and the Customer (“Customer”) and sets out the terms and conditions under which intlx will provide and Customer will receive specified Services.
The effective date of this agreement is (the “Effective Date”). Where the Effective Date is not defined above, this Agreement will be effective on the date that intlx countersigns this Agreement.
The term of this Agreement commences on the Effective Date and, unless terminated earlier or extended by agreement of the parties, expires five (5) years thereafter (the “Term”). The General Terms defined in Attachment A shall take priority over any other terms of this Agreement unless otherwise specifically provided.
Please note Payment/Invoice Point of Contact Information and any special notes below.
Name: Jennie Yep
Address: 1 Hartwell Ave #2, Lexington, MA 02421
E-mail: accountspayable@intlxsolutions.com
Phone: 781-457-0352
Description of Services and Structure
Payment and Payment Schedule
Term
Termination
Relationship of the Parties
Warranties and Disclaimer
No Guarantees
Consents and Data
Excused Performance
Customer Data
Security of Customer Data
Loss of Data
Return of information
Confidential Information
Nondisclosure
Non-Solicitation of Employees
Cooperation; Customer Tasks; Use of Data
Authorization Under Laws
Limitation of Liability
Assignment
Force Majeure
Counterparts
Electronic Communication
Jurisdiction and Timing
Severability
Waiver
General
Publicity
Intellectual Property Rights
intlx Solutions, LLC will provide Customer such services as and to the extent specified in the Sales Service Agreement (SSA) attached to this Agreement (“Services”). More than one SSA may be attached to this Agreement and each such SSA will be separately executed by the parties with reference to this
Agreement. Unless otherwise restricted in a SSA, intlx is permitted to perform the Services remotely from any intlx or Team Member facility within the United States and Customer will reasonably cooperate with intlx to facilitate such performance. Any material change to the schedule or scope of an SSA must be mutually agreed upon in writing. If in intlx’s judgment the change requires additional work, support, and travel not included in the original SSA, this will constitute a request for a change order, which must be mutually agreed upon in writing by intlx and the Customer. Any agreed upon changes to the delivery dates and the professional fee for the engagement will be detailed in a change order signed by the parties.
Amounts to be paid by Customer for the Services will be specified on separate quotes. intlx will submit monthly invoices to the Customer for amounts owed. Payment is due net thirty (30) days of the receipt of the invoice. intlx reserves the right to charge up to one and one half percent (1.5%) per month for any delinquent payment of invoices if not paid within thirty (60) days.
The term of this Agreement commences on the Effective Date and, unless terminated earlier or extended by agreement of the parties, expires five (5) years thereafter (the “Term”). Performance of the Services in a SSA will commence on the date specified in a SSA.
The parties are independent contractors. Unless otherwise specified in an SSA, none of the Services are intended to constitute an investigation subject to the regulatory requirements of applicable laws regulating private investigators; provided, that to the extent a court or regulatory body of competent jurisdiction declares (or is likely to declare) that such laws regulating private investigators apply to the Services in whole or in part, the parties will promptly modify this Agreement as reasonably required to cause such laws to not apply to the Services. This Agreement is for the sole benefit of the parties who sign it, and no third party will be entitled to assert third party beneficiary status or otherwise make a claim under this Agreement.
Each party warrants to the other that it has full corporate power and authority to enter into the Agreement and to carry out the transactions contemplated under the Agreement.
NEITHER PARTY MAKES ANY WARRANTY OTHER THAN AS STATED IN THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE ARISING FROM THE COURSE OF PERFORMANCE OR USAGE OF TRADE.
intlx will use reasonable care in the performance of the Services. Customer acknowledges, understands and agrees that intlx does not covenant, guarantee or warrant that it will find, locate, discover and/or repair any or all of Customer’s system’s vulnerabilities, or that intlx will be ultimately successful in determining the source or full impact of any authorized or unauthorized access or security breach (or attempted access or security breach), and will not hold intlx responsible therefor. Customer agrees not to represent to any third party that intlx has provided any such covenant, guarantee or warranty. All determinations regarding the customer’s approach to compliance with applicable laws and regulations, including how and whether the services contribute to such approach, shall be made solely by the customer and customer specifically acknowledges that intlx has not represented, warranted, or otherwise guaranteed performance of the services will result in any such compliance. Intlx agrees that it will perform all services under this Agreement to the best of its abilities, using qualified, experienced, and licensed (if applicable) individuals. All services and products provided by intlx will be consistent with industry standards, any and all manufacturer specifications, requirements, and or recommendations, and in compliance with any and all applicable laws.
Customer is solely responsible for the content of the data contemplated to be accessed by intlx from Customer’s systems under this Agreement.
Customer has the right to grant to intlx, and does hereby grant to intlx (except to the extent otherwise specified in an SSA), the right to access all such data, all such systems, and all facilities associated with such systems and data for the purpose of providing the Services. Customer represents and warrants that intlx’s performance of the Services does not and will not conflict with any obligations of Customer to any third party, including without limitation employees of Customer.
Each party shall be excused from the performance of any obligation to the extent that such performance conflicts with any applicable law or regulation, including without limitation when the party, in good faith, believes that such performance is likely to conflict, after written notice to the other party.
Data that is within the scope of information contemplated and/or permitted to be accessed by intlx in connection with the provision of the Services will be deemed to be “Customer Data.” Except as otherwise provided in a SSA, Customer Data will be maintained by intlx in confidence and will be used by intlx only for purposes of performing and enforcing this Agreement. Keeping Customer Data in confidence means that intlx will intentionally disclose Customer Data only in support of intlx’s performance and enforcement of the Agreement and intlx will use the same measures as it takes with its own confidential information to maintain the confidentiality of Customer Data.
intlx will at all times in connection with this Agreement: (i) maintain and enforce an information security program including administrative, physical and technical security policies and procedures with respect to its access to or storage of Customer Data that meets or exceeds no less than commercially reasonable industry practices and standards; (ii) provide technical and organizational safeguards adequately designed to protect against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information and ensure a level of security appropriate to the risks presented by the access or maintenance of such information and the nature of such information, consistent with not less than commercially reasonable industry practice and standards; (iii) take commercially reasonable measures to secure its networks against “hackers” and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use the network or the information found therein; (iv) take commercially reasonable measures to logically separate Customer Data from that of other customers; and (v) ensure all transmissions of Customer Data are secure through a virtual private network or encryption using TLS regardless of whether the Customer Data is being exchanged with Customer or with another party and that the Customer Data will be encrypted at rest. Additionally, intlx will periodically test and continuously monitor its systems for potential areas where security could be breached and shall also periodically conduct security testing, including penetration testing. Intlx will be solely responsible for its information technology infrastructure, including all computers, software, databases, electronic systems and networks and hosting platforms that are owned or controlled or provided by intlx that may be used by intlx to access Customer’s systems or otherwise in connection with the Services. To the extent that intlx uses service providers or subcontractors in connection with the performance of the Services, intlx acknowledges that this provision applies equally to any such service provider or subcontractor and such service provider or subcontractor will possess a level of security and data protection equal to the requirements of this Section. All Customer Data will be stored, processed, transmitted and accessed only within the United States.
If intlx learns or has reason to believe that Customer Data provided to or maintained by intlx or its subcontractors in any form has been lost, or accessed or disclosed by an unauthorized entity, intlx will immediately notify Customer of the event and investigate the extent of such loss or disclosure at intlx’s own expense. If a breach notification is required by law, intlx will, if requested by Customer, assist Customer with notifying affected individuals.
Subject only to any need to access and retain Confidential Information and/or Customer Data in order to perform or enforce this Agreement, following a party’s request for such the other party will promptly return such requested Confidential Information and/or Customer Data, or, at the returning party’s option, promptly destroy it and provide the other party with written certification of destruction. The foregoing obligations to return or destroy material will not include extracts, summaries, and records kept in the normal course of business, reasonably required to document the performance or enforcement of this Agreement, and which are either physically impractical or commercially unreasonable to so destroy or return, including without limitation such data as resides in e-mail backup storage; provided that a party will not so store Confidential Information or Customer Data with the intention of doing so solely to avoid its return or destruction pursuant to this Section.
The Parties agree that this Agreement is Confidential information of intlx in total and of Customer only to the extent that CUSTOMER-specific information (e.g., Customer name, Customer Locations) is included. Additionally, the Parties agree that all information provided to intlx by Customer that is related to improvements in or changes to the Services, including without limitation evaluations, errors reports, and suggestions, will be owned by intlx and will be intlx Confidential Information from the time of its creation.
Neither Party will have any nondisclosure obligation or liability with respect to Confidential Information or Customer Data to the extent that such must be disclosed pursuant to a court order or as required by any governmental or administrative authority or authorized regulatory agency or other law; provided, that if a Party is ordered to disclose Confidential Information or Customer Data, such Party will notify the other Party in advance of any such disclosure and, at the request of the other Party will use reasonable efforts (at the disclosing Party’s cost and expense) to assist the other Party in resisting or limiting such disclosure. Intlx may disclose this Agreement and information related to intlx’s performance of Services to its contractors, professional advisors, and other third parties who assist intlx in the tracking and fulfillment of intlx’s obligations hereunder; provided, that such disclosures will only be in furtherance of intlx’s performing and enforcing this Agreement and are subject to agreement not to further disclose. Permitted disclosures of Confidential Information and Customer Data to third parties (other than pursuant to a court order) is subject to the disclosing Party having in place with such third parties contractual obligations restricting further disclosure of such that are generally no less restrictive than those in this Agreement.
Unless approved in writing by the other party, neither party shall directly solicit employees of the other to undertake employment with it, or any affiliate during the performance of this Agreement and for a period of one (1) year thereafter. Direct solicitation does not include: (a) responding to advertisements in the general media; (b) submission of resumes through a party’s web site; and/or (c) submission of resumes while attending a party’s job fair, and, except to the extent an individual was specifically encouraged to respond to such advertisements or submit a resume as set forth above, there shall not be a restriction on the hiring of individuals so responding.
Customer acknowledges that intlx’s ability to perform the Services is dependent on Customer providing intlx with access to data, systems, facilities, employees and/or information directly related services to be rendered as outlined in separate SSAs, as well as providing intlx with such other assistance as reasonably requested.
To the extent that Customer can or must provide intlx with authorization under any applicable law or regulation to perform any task associated with Services, Customer hereby does so, will continue to do so throughout the Term, and will provide further written confirmation of such to intlx or to others as intlx directs upon request. Such authorizations include, without limitation, those under: the Computer Fraud and Abuse Act, 18 U.S.C. §1030 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. §2701 et seq. as well as S.D. Stat. 43-43B-1 et. seq. Additionally, Customer hereby appoints intlx as the agent of Customer for purposes of 18 U.S.C. §2511(2)(a)(i) and Customer represents that intlx is retained to provide the Services for the protection of Customer’s rights and property.
19(a) TO THE EXTENT ARISING UNDER THIS AGREEMENT BUT NOT RELATED TO ANY SSA, THE LIABILITY OF EACH PARTY FOR DAMAGES UNDER AND RELATED TO THIS AGREEMENT AND ITS SUBJECT MATTER FOR ALL EVENTS, ACTS, OR OMISSIONS WILL BE LIMITED TO A TOTAL AGGREGATE AMOUNT OF $25,000.00 WHETHER BASED ON ONE OR MORE ACTIONS OR CLAIMS IN CONTRACT, EQUITY, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, OR OTHERWISE. FOR THE AVOIDANCE OF DOUBT, CLAIMS RELATED TO ANY SSA ARE SUBJECT TO THE LIMITATION IN SECTION 19(b) BELOW IN LIEU OF THIS LIMITATION IN SECTION 19(a).
19(b) TO THE EXTENT ARISING UNDER THIS AGREEMENT AND RELATED TO A SSA, THE LIABILITY OF EACH PARTY FOR DAMAGES UNDER AND RELATED TO THIS AGREEMENT AND ITS SUBJECT MATTER FOR ALL EVENTS, ACTS, OR OMISSIONS RELATED TO SUCH SSA WILL BE LIMITED TO A TOTAL AGGREGATE AMOUNT OF THE GREATER OF (a) PAYMENTS MADE BY CUSTOMER TO INTLX UNDER SUCH SSA DURING THE FIRST SIX (6) MONTHS OF SUCH SSA OR (b) $25,000.00, WHETHER BASED ON ONE OR MORE ACTIONS OR CLAIMS IN CONTRACT, EQUITY, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, OR OTHERWISE. FOR THE AVOIDANCE OF DOUBT: MULTIPLE CLAIMS RELATED TO A SINGLE SSA WILL BE SUBJECT TO THE AGGREGATE LIMITATION OF LIABILITY FOR SUCH SSA; EACH CLAIM RELATED TO A SSA MUST BE ASSOCIATED WITH ONLY ONE SSA; AND CLAIMS RELATED TO ANY SSA ARE SUBJECT TO THE LIMITATION IN THIS SECTION 19(b) IN LIEU OF THE LIMITATION IN SECTION 19(a).
19(c) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES SET FORTH IN SECTIONS 19(a) OR SECTIONS 19(b) INCLUDE, ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OR AMOUNTS FOR LOSS OF INCOME, PROFITS, GOOD WILL, OR SAVINGS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
19(d). EACH PARTY SHALL INDEMNIFY AND HOLD THE OTHER PARTY HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, FINES, INTEREST, JUDGMENTS, LOSSES, LIABILITIES, SUITS, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES) ARISING FROM A PARTY’S (1) INTENTIONAL OR NEGLIGENT ACTS OR OMISSIONS; (2) BREACH OF THIS AGREEMENT; AND/OR (3) FAILURE TO COMPLY WITH ANY AND ALL APPLICABLE LAWS, RULES, AND REGULATIONS.
THE LIMITATIONS IN SECTIONS 19 (a), (b), AND 19(c) ABOVE SHALL NOT APPLY TO A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; AMOUNTS OWED TO INTLX FOR CHARGES AND TERMINATION FEES; THE INDEMNIFICATION OBLIGATIONS IN SECTION 19 (d) (CONSENTS AND DATA), AND SECTION 15 (COOPERATION; CUSTOMER TASKS; USE OF DATA); SECTION 14 (NON-SOLICITATION OF EMPLOYEES), OR SECTION 16 (AUTHORIZATION UNDER LAWS). FOR THE AVOIDANCE OF DOUBT, THE LIMITATIONS IN SECTIONS 19(a), 19(b), AND 19(c) ABOVE SHALL APPLY TO THE SECTION 10 (CUSTOMER DATA). MONETARY DAMAGES AS SET FORTH IN SECTION 19 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WHERE NO OTHER REMEDY IS PROVIDED AND ARE CUSTOMER’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT ANOTHER REMEDY IS PROVIDED IN THIS AGREEMENT AND SUCH OTHER REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
Neither party shall assign or in any manner transfer its interest or any part thereof in this Agreement without the prior written consent of the other party; provided that assignments and transfers to successors in interest are permitted. Nothing contained herein, however, will prohibit intlx from using third parties to assist intlx in the performance of the Services.
Neither party shall be considered to be in default in the performance of its obligations under this Agreement (other than payment obligations) to the extent that the performance of any such obligation is prevented or delayed by any cause which is beyond the reasonable control of the affected party.
This agreement and any SSA may be signed in one or more counterparts (by original or facsimile or electronic signature) and each of which, when so executed, shall be deemed to be an original, and such counterparts together shall constitute one in the same instrument.
The parties acknowledge that: (a) intlx may correspond and convey documentation via Internet e-mail unless the Customer expressly requests otherwise in writing, and (b) intlx has no control over the performance, reliability, availability, or security of Internet e-mail.
This Agreement (a) shall be governed and construed in accordance with the laws of the courts of Massachusetts, excluding its principles of conflict of laws; (b) incorporates the entire understanding of the parties with respect to the subject matter hereof and supersedes any previous understanding, commitment or agreement, oral or written, with respect to such; and (c) may not be amended or modified except in writing executed by both parties
hereto. TO THE EXTENT HEARD AND TRIED BY A COURT, ALL ACTIONS BETWEEN THE PARTIES WILL BE HEARD AND TRIED BY THE COURT SITTING WITHOUT A JURY AND TO THE EXTENT NOT PROHIBITED BY LAW THE PARTIES IRREVOCABLY WAIVE ANY RIGHTS TO A JURY
TRIAL. Any action against intlx must be brought within eighteen (18) months after the Services giving rise to the action are rendered. The parties agree that venue for such action is appropriate in the Courts for Massachusetts. The United Nations’ Convention for the International Sale of Goods is expressly excluded from this Agreement, and shall have no force or effect on the parties.
If any term or provision of this agreement or any SSA is determined to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such term or provision shall be deemed stricken and all other terms and provisions shall remain in full force and effect. As a substitute for such invalid, illegal or unenforceable provisions the parties will negotiate in good faith an alternative mutually acceptable provision consistent with the original intent of the parties.
The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the full right to require such performance at any time thereafter except to the extent the other party is actually prejudiced by such later requirement. The waiver by either party of a portion of a provision herein shall not be taken or held by the other party to be a waiver of the provision itself unless such a waiver shall be express and in writing.
The titles of the clauses in this Agreement, including all SSAs, shall be read as references interpretation of this Agreement. Notices under this Agreement that seek to enforce or exercise specific rights under this Agreement shall be deemed effective if in writing and personally delivered, sent by U.S. Mail (postage prepaid), Electronically or sent by an independent delivery service providing delivery receipt at the addresses first specified above. Notices in respect of day-to-day operations (to include invoices), however, may be exchanged between the parties using any reasonable manner (including without limitation e-mail). The terms of any section of this Agreement, including all SSAs, which by their nature should survive to give adequate meaning and effect to the terms will survive the termination or expiration of this Agreement and/or SSA(s).
Neither party will make any announcement or written statement concerning the existence or substance of this Agreement or the transactions contemplated hereby for dissemination to the general public without the prior consent of the other party. This provision will not apply, however, to any announcement or written statement required to be made by applicable law or the regulations of any governmental body.
(a) Ownership of Intellectual Property. Except as otherwise explicitly agreed in a separate Statement of Work, each party shall retain sole and exclusive ownership of all intellectual property, proprietary information, patents,copyrights, trademarks, software, methodologies, algorithms, and trade secrets owned or developed by such party prior to or independently of this Agreement (“Pre-existing IP”). intlx Solutions retains all rights, title, and interest in andto the managed appliances, virtual appliances, custom scripts, configurations, and remote management software developed,utilized, or delivered under this Agreement, including any enhancements, modifications, or derivative works thereof(collectively, “intlx IP”).
(b) License Grant. Subject to the terms and conditions of this Agreement and Customer’s timely payment of all applicable fees, intlx Solutions hereby grants to Customer a limited, non-exclusive, non-transferable, royalty-free,fully paid-up license to use the intlx IP solely as embedded in the deliverables and appliances provided hereunder, and only for Customer’s internal business operations during the term of the applicable Service Order. Customer shall not reverse engineer, decompile, or attempt to derive the source code of any intlx IP.
Renewal policy of any support and managed services are congruent conditions outlined in Attachment A, “General Terms” of the Master Service
Agreement, unless otherwise noted in the applicable SSA to the support or managed services in questions.