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 Eplexity), 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 Eplexity as the vendor, then Client shall remit such taxes to Eplexity.
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.
Eplexity may make certain express warranties and representations in a Statement of Work. Eplexity makes no other express or any implied warranty to the Client and disclaims all warranties and representations other than those made in the Statement of Work.
8. INTELLECTUAL PROPERTY RIGHTS
Provided that the Client is not in default of this Agreement, Eplexity grants the Client a license to use work product from the Services for the Term. Eplexity retains all proprietary rights to and ownership of any intellectual property of Eplexity used to provide Services. No transfer of intellectual property rights shall arise from any Statement of Work or Services provided.
Permitted Use. Eplexity and the Client each agree that any Confidential Information of the other party shall not be used other than as permitted under this Agreement and any applicable Statement of Work (including credit checks prior to acceptance of a Statement of Work), and access to Confidential Information shall be limited to the employees and agents of the receiving party who need to know such Confidential Information. If a party is compelled to disclose Confidential Information by subpoena or other legal process, the disclosure shall be promptly disclosed to the owner of the Confidential Information.
Return or Destruction. All Confidential Information shall be promptly destroyed or returned to the disclosing Party upon request during the Term and upon expiration of termination of the Term. Provided however, a party shall not be required to expunge data from backup files unless and until such files are restored to a live environment.
10. TERMINATION AND DEFAULT
Nonpayment. If the default is nonpayment of amounts due to Eplexity, then the Client shall have five (5) days after notice to cure such default and pay all amounts due, and absent cure then Eplexity may terminate this Agreement and Services or may suspend Services.
Other Default. If Eplexity or the Client is in material default of this Agreement, then the other party may terminate this Agreement and any Services under any Statement of Work following written notice of default. If the default is other than nonpayment of amounts due to Eplexity and may be cured, then the party receiving the notice of default shall have fifteen (15) days to cure such default, and absent timely cure this Agreement and Services shall terminate. Provided however, if such default cannot be remedied, then the Agreement and Services shall terminate immediately upon notice of default.
Suspension of Services. If the Client is in default, Eplexity may elect to delay termination and suspend Services to allow additional time to attempt to resolve any matter which would otherwise result in Services termination. Fees and other charges shall continue to accrue and be payable during any suspension of Services. Services shall be reinstated if the matter is resolved within the time allowed by Eplexity, and Services may be terminated without further notice if unresolved. Suspension of Services does not waive the right of Eplexity to terminate Services.
Other Termination. Eplexity may terminate Services without liability to the Client in the event that Eplexity is no longer able to continue to provide Services due to a Force Majeure or due to a change in regulatory or other legal requirements. Eplexity shall give the Client such notice of termination as soon as practicable and if requested shall provide the Client with reasonable assistance in migrating to an alternative supplier.
Termination for Fee Increase. The Client may terminate Services without liability to Eplexity by notice thereof within thirty (30) days of receipt of notice of a fee increase of more than 15%.
Amounts Due Upon Default. If this Agreement or any Statement of Work is terminated as a result of a default of the Client, then all fees and other charges, inclusive of fees due to any Cloud Provider for the remainder of the Term, shall be accelerated and shall be immediately due and payable by the Client to Eplexity.
Recovery of Costs. The Client shall be liable for all collection costs incurred by Eplexity in recovering amounts due from the Client, including reasonable attorney fees. In the event of any other legal action arising as a result of breach of this Agreement or a Statement of Work, the prevailing party shall be entitled to recover its attorneys’ fees and costs of the suit from the other party.
Limitation of Damages. The Client agrees that the liability of Eplexity for any claim related to Services shall be limited to actual damages caused directly by the gross negligence or willful misconduct of an employee or agent of Eplexity and the aggregate liability of Eplexity for any loss or damage related to all Services to the Client shall be limited to the greater of $5,000 or an amount equal to total fees paid by the Client to Eplexity during the twelve (12) month period preceding the claim. The Client agrees that in no event shall Eplexity be held liable for any loss or damages arising from lost profits or lost revenues. The Client agrees that Eplexity shall not be liable for loss or damage arising from any loss of Client data.
Limitation of Claims. Any law suit asserting a claim as a result of this Agreement, any Statement of Work or Services must filed and promptly served upon the other party within twelve (12) months of the expiration or termination of the Term, otherwise such claim shall be barred, waived and released.
All notices and other communications regarding Services shall be in writing and effective upon delivery, and shall be delivered by electronic mail (email), telephone facsimile (fax), reputable overnight delivery service, in person or U.S. certified or registered mail, return receipt requested, postage prepaid, in each case addressed to the parties at the last known street or email address or fax number.
12. ENTIRE AGREEMENT
This Agreement and any corresponding Statement of Work together are the entire agreement of the parties. This Agreement may only be amended in writing accepted by both parties.
13. INVALID PROVISIONS
if any provision of this Agreement is found to be unenforceable, then that provision shall be stricken and the remainder of the Agreement shall not be affected.
This Agreement and any Statement of Work may not be transferred or assigned by the Client, in whole or in part, without the written consent of Eplexity. This Agreement and each Statement of Work shall be binding upon the successors and permitted assigns of the Client. This Agreement any Statement of Work may be assigned by Eplexity.
15. GOVERNING LAW AND VENUE
This Agreement shall be governed by and construed in accordance with the laws of Colorado. Venue for any dispute shall be proper in Arapahoe County, Colorado.