The terms and conditions described in this Master Services Agreement (the “Agreement”) apply to all Services provided by Eplexity to the Client, and are a part of any Statement of Work, whether or not referenced in the Statement of Work.
Acceptable Use Policy is the current version of the written guidelines provided by Eplexity or by any Cloud Provider or both, which describe permitted and prohibited uses of the Services.
Agreement means this Master Services Agreement.
Client means the recipient of Services described in a Statement of Work and subject to the terms and conditions of this Agreement.
Cloud Provider means a company other than Eplexity which provides a network of remote servers hosted on the Internet to store, manage, and process Client data.
Confidential Information means all documents and other information furnished by either party to the other which is designated as “confidential” or which the recipient understands is not generally available to the public. Information ceases to be Confidential Information if it becomes public knowledge other than as a result of breach of this Agreement or if lawfully acquired or developed without the use of Confidential Information.
Credentials mean a user name and user password combinations which may be provided by Eplexity to the Client for access to the Services.
Eplexity means Eplexity, LLC, a Colorado limited liability company, located at 4700 S. Syracuse Suite 600, Denver, CO 80237.
Force Majeure means the occurrence of a natural disaster or other act of God, labor strike, fire, riot, acts of war or other armed conflict, terrorism, any court order or any other circumstances which are not within the reasonable control of a party to this Agreement which prevents or hinders the performance of Services.
Statement of Work means a written summary of Services to be provided and fees and charges for the Services, which has been accepted by Eplexity and the Client, and any subsequent written amendments or changes to a Statement of Work.
Services mean those services to be provided by Eplexity to the Client, as described in a Statement of Work. Services may include consulting, design and engineering work performed on an hourly or fixed fee basis (“Professional Services”), facilitating and managing the Client’s relationship with a Cloud Provider (“Cloud Provider Services”) or management of Client computer operations and Internet access (“Managed Services”) or a combination of those components, as specified in a Statement of Work. Only if Managed Services are included in the Services, then the Eplexity Service Level Terms and Conditions are attached and are part of this Agreement. Services are nonexclusive and similar services may be provided to others.
Start Date means the date that Services are commenced.
Term means the period of time following the Start Date when Services shall be provided.
Start Date. The Start Date may be specified in a Statement of Work; otherwise the Start Date shall be determined by Eplexity. The Start Date may be delayed by access or other conditions dependent upon third parties. The Term may be specified in the Statement of Work.
Unstated Term. If a Term is not specified in a Statement of Work, then for Professional Services, the Term shall end when the Services are completed, unless sooner terminated in accordance with this Agreement, and for all other Services, the Term shall be for an initial period of twelve (12) months from the Start Date, plus additional consecutive renewal periods of twelve (12) months until cancelled, unless sooner terminated in accordance with this Agreement. Either Eplexity or the Client may cancel and terminate Services at the end of the initial twelve month period or any renewal twelve month period by giving notice of cancellation at least ninety (90) days prior to the end the current twelve month period.
3. ACCEPTABLE USE POLICY
Client agrees to comply with the Acceptable Use Policy applicable to the Services. Client agrees that the Acceptable Use Policy may be modified from time to time and it is the Client’s responsibility to review the Acceptable Use Policy when notified of modification of the terms. Client acknowledges that if the Client violates the Acceptable Use Policy or authorizes or helps others to do so, then Eplexity may suspend or terminate the Services.
Client shall not permit any unauthorized third party to use the Client’s Credentials. Upon notice from the Client of unauthorized access to Credentials, Eplexity shall terminate and reissue Credentials. Client shall be liable for any unauthorized use of Credentials.
Payment. The Client agrees to pay Eplexity all fees and costs for Services when due. Fees and costs and payment dates shall be described in a Statement of Work. Recurring periodic fees and costs shall be due and payable in advance of each period (typically monthly or quarterly). Eplexity may provide an invoice of fees and costs to the Client, and payment is due upon receipt of the invoice. Eplexity shall not be obligated to provide an invoice to the Client if payment dates are provided in the Statement of Work. The Client may be required to authorize and pay fees and charges in the manner directed by Eplexity.
Taxes. Fees do not include any applicable taxes. The Client shall be responsible for and shall pay all taxes assessed upon Services (other than income tax payable by Explexity), such as sales, use and excise taxes. Client shall timely remit such taxes to the applicable taxing authority, or if such taxes are collected by Explexity as the vendor, then Client shall remit such taxes to Explexity.
Fee Increases. If the Term is unstated in the Statement of Work, then after six (6) months from the Start Date, Eplexity may change the Service fees and costs upon not less than sixty (60) days notice to the Client in advance of the fee increase, subject to the Client’s right to terminate as provided in Section 10 below.
Disputed Fees. The Client shall promptly notify Eplexity of any dispute regarding fees or costs, and may delay payment of the disputed amount until resolution of the dispute. However, Eplexity may terminate or suspend Services if no bona fide dispute exists or if resolution is unduly delayed. The Client may not set off undisputed fees and costs if disputed amounts were already paid. The Client waives the right to dispute paid fees or costs if more than 60 days have elapsed since payment. Any credit arising from resolved fee disputes for paid fees shall be repaid as a credit against subsequent fees, if any; otherwise a refund shall be made.
Late Payments. If the Client is more than five (5) days late in paying any amount due to Eplexity, then the Client shall pay an additional charge for such late payment of $50.00, and in addition interest shall accrue on all amounts not paid within five (5) days of the due date at a rate of ten percent (10%) per annum compounded monthly. All payments shall be applied first to accrued interest, then late payment charges, then to amounts past due.
The Client agrees to indemnify and hold Eplexity and Eplexity’s employees, members, managers and officers harmless from and against all claims of losses and damages which arise directly or indirectly from a breach by the Client of this Agreement, including from the authorized use of Credentials.