Master Services Agreement
This Master Services Agreement (“Agreement”) sets forth the terms of Your agreement to purchase Services (“Service”) provided by Xpert Technologies, Inc. (“XTI”) subject to the prices, quantities, terms and conditions set forth in Your Order Form (“Order” or “Order Form”) and governed by the terms and conditions contained in this Agreement. As used herein, (“Customer”, “You”, and “Your”) refers to the customer. Property Rights.
copyrights, trade secrets, patents, and know-how relating to the design, function, or operation of plans and of the hardware and software systems and resources necessary to provide Service to You, unless otherwise expressly stated in the Order Form. This Agreement does not constitute a license to You to use XTI’s Logo, trade names, or service marks. Notwithstanding the foregoing, You consent to XTI’s use of Your trademark and/or logo XTI’s purpose of displaying You as a customer or vendor of Company to the public. If XTI providers software or operating system licenses to You, You agree to accept the terms and conditions of any license provided to You from a third party, as it relates to the Service.
Fees and Service charges are on the Order Form and do not include applicable Taxes and regulatory fees unless so indicated. New services or upgrades/relocations will result in additional fees/charges. If a prior Service location remains installed after a new Service location is installed, You will be responsible for Service charges for both Service locations until terminated as provided for each Service. In the event that XTI is required
by a governmental authority to pay any tax on Your behalf, XTI will have the right to be reimbursed by You for such amount. You must reimburse XTI within 30 days of written notice that a tax has been paid on Your behalf by XTI.
Term and Termination.
XTI may reject any Order Form at its discretion. This Agreement will remain in full force and effect for the term as specified on Your Order Form, beginning on the Date of XTI’s acceptance (the “Initial Term”), and will apply to all future services provided by XTI. At the end of the Initial Term, this
Agreement will automatically renew for a successive period equal in length to the Initial Term (the “Renewal Term”) unless you provide XTI with written notice of Your intent not to renew the Services at least 90 days prior to the expiration of the Initial Term. At the end of any Renewal Term or Additional Renewal Term, this Agreement will automatically renew for a successive period equal in length to the original Renewal Term (an “Additional Renewal Term”) unless you provide XTI with written notice of Your Intent not to renew the Services at Least 90 days prior to the expiration of the then current Renewal Term, or Additional Renewal Term, as the case may be. In no event may You terminate this Agreement prior to the expiration of the then current Initial Term, Renewal Term or Additional Term absent “XTI Cause” as defined herein. In the event that you terminate
this Agreement without XTI Cause prior to the expiration of the then current Initial Term, Renewal Term or Additional Term, as the case may be, You shall be liable to pay XTI an Early Termination Fee. For purposes of this Agreement, the Early Termination Fee shall be calculated as: i) 100% of your MRC for all Services covered by this Agreement multiplied by the remaining months in your then current Initial Term, Renewal Term or
Additional Termination Term, as the case may be; plus ii) all costs incurred by XTI in processing the Service; plus iii) all provisioning related and/or installation-related costs incurred for the required equipment and facilities up to the date of termination (including without limitation any termination, cancellation or other charges that XTI may be required to pay to any third party as a result of the termination; plus iv) the amount of any NRC’s
previously waived. As used herein, the term “XTI Cause” shall only occur in the event that XTI fails to perform a material obligation under this Agreement for more than 30 days after written notice and opportunity to cure are given by You to XTI. The parties agree that the Early Termination fee is a fair representation of the damages anticipated to be suffered by XTI in the event of an early termination by You and that the Early Termination Fee
is not a penalty. In the event of termination, You will also be responsible for compensating XTI for all services provided by XTI to move your Service to another provider or to move Your data from XTI’s system to another system. Equipment provided to You by XTI shall be returned to XTI upon termination. In the event that You fail to return XTI’s equipment after 30 days from the date of termination, You will be required to compensate XTI
for any such equipment retained by You. In the event of a material breach by XTI which is not covered by the SLA, You shall notify XTI in writing of their material breach and allow XTI 30 days to cure said material breach. In the event that XTI fails to cure a material breach upon the expiration of the required written notice, You may terminate this Agreement without penalty.
Currentness of Software and Operating Systems. Security and Internet Connection.
Unless stated otherwise in the Order, it is Your responsibility to install and maintain operating systems and software and to ensure that said operating systems and software are current and updated. It is Your responsibility to be informed about the latest software updates and to invest Your own financial and personal resources into the maintenance of software and operating system. All server and desktop software must be licensed and vendor-supported and Your environment must have current licensed, vendor-supported firewall between the internal network and the Internet. All wireless data traffic must be secured and where applicable, You must maintain adequate and reliable Internet and adequate switch infrastructure to support the Services.
Billing and Collection of Charges.
You will be billed by XTI for the Service, on a monthly basis, for the Monthly Recurring Charges (“MRCs”), Non-Recurring Charges (“NRCs”), and Hourly Services, as provided in the applicable Order Form, in advance. Subject to the terms of Your Order Form, XTI reserves the right to adjust
Your rates and charges for Hourly Services. XTI reserves the right to adjust the prices of services on an annual basis to account for increases in the underlying costs of service including but not limited to license costs, hardware costs, labor costs, taxes. In the event an Agreement term spans multiple years XTI has the right to increase prices by a maximum of 10%. Any such price increase will take effect upon issuance of the first invoice of the calendar year or on a customer’s first invoice after the Agreement has been renewed. Price increases less than or equal to 10% do not require written communication nor acknowledgement. All invoices are due and payable by the invoice due date. When billing is based on customer usage or hourly services, charges will be billed weekly or monthly for the preceding billing periods, depending on the type of Service ordered. When Service does not begin on the first day of the month, or end on the last day of the month, the charge for the fraction of the month in which Service was
furnished will be calculated on a pro rata basis. Billing by XTI will begin on the Service Commencement Date or at the time of signing, as specified in the Order. Billing accrues through and includes the day that the Service is discontinued. Past due balances may be charged a minimum service fee of $35 plus 1.0% of the total outstanding amount. Declined credit cards will be charged a $10.00 declination fee. Accounts that are more than 30 days past due may have service discontinued for nonpayment. Accounts that have been discontinued for nonpayment are subject to a $100 reconnection fee and all equipment in the possession of XTI may be held as collateral for Your outstanding debt to XTI. If Your account has been turned over by XTI to an outside agent for collection, You agree to pay XTI a “Processing and Collection Fee” of not less than $50.
ALL PAYMENTS TO XTI ARE NON-REFUNDABLE. If You dispute a term or amount on an invoice, You must do so in writing within 60 days from the invoice date. Disputes must be sent in writing to firstname.lastname@example.org. You must pay an amount equal to the part of the bill that is not in dispute. Payment of the amount of the invoice not in dispute will not be deemed to constitute acceptance of the portion of the invoice that is in dispute. If You report a disputed charge to Your credit card company, and XTI later determines that it is a valid charge, You agree to compensate XTI for all reasonable damages incurred as a result of Your invalid
is a valid charge, You agree to compensate XTI for all reasonable damages incurred as a result of Your invalid dispute.
Transfers and Assignments.
You may not assign or transfer Your rights, passwords, or duties in connection with the Services provided by XTI without the prior written consent of XTI. All transfers of rights or duties herein, without the advanced permission in writing of XTI, shall be void and unenforceable as a matter of law.
Limitation of Liability.
XTI SHALL NOT BE LIABLE FOR ANY AND ALL: DIRECT OR INDIRECT, INCIDENTAL, GENERAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, LOSS OF INFORMATION KEPT ON A DRIVE OWNED OR MAINTAINED BY XTI, OR LOSS OF USE, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, TO CUSTOMER FOR A BREACH OF THESE POLICIES, BREACH OF AN ORDER FORM, OR BREACH OF THE MSA BY XTI. IN THE EVENT OF A BREACH OF AN OBLIGATION BY XTI, CUSTOMER’S DAMAGES SHALL BE LIMITED TO A MAXIMUM OF THE AMOUNT ACTUALLY PAID BY CUSTOMER TO XTI IN THE THREE MONTHS PRECEDING THE BREACH BY XTI, BUT IN NO CASE SHALL CUSTOMER’S DAMAGES EXCEED $1,000. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU AGREE TO ACCEPT THE SERVICE ON AN “AS-IS” NON-WARRANTABLE BASIS. XTI EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE PROVIDING OF GOODS AND SERVICES TO YOU. YOU RECOGNIZE THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND NOT SUBJECT TO XTI’S CONTROL. YOU AGREE THAT XTI SHALL NOT BE LIABLE FOR DAMAGES INCURRED OR SUMS PAID WHEN THE SERVICES ARE TEMPORARILY OR PERMANENTLY UNAVAILABLE DUE TO MALFUNCTION OF, OR CESSATION OF, INTERNET SERVICES BY NETWORK(S) OR INTERNET SERVICE PROVIDERS NOT SUBJECT TO XTI’S CONTROL, OR FOR TRANSMISSION ERRORS IN, CORRUPTION OF, OR THE SECURITY OF YOUR INFORMATION CARRIED ON SUCH NETWORKS OR INTERNET SERVICE PROVIDERS. XTI SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES INCURRED OR SUMS PAID DUE TO ANY FAULT OF CUSTOMER OR ANY THIRD PARTY, OR BY ANY HARMFUL COMPONENTS (SUCH AS COMPUTER VIRUSES, WORMS, COMPUTER SABOTAGE, AND ‘DENIAL OF SERVICE’ ATTACKS). XTI IS NOT LIABLE FOR ANY BREACH OF SECURITY ON YOUR NETWORK, REGARDLESS OF WHETHER ANY REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. YOU AGREE THAT YOU WILL NOT HOLD XTI RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, THIRD PARTIES IN CONNECTION WITH THE SERVICES (INCLUDING THOSE WITH WHOM XTI MAY CONTRACT TO OPERATE THE SERVICES), OR HOLD A THIRD PARTY RESPONSIBLE FOR ANY SELECTION OR RETENTION OF, OR THE ACTS OR OMISSIONS OF, XTI IN CONNECTION WITH THE SERVICES. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT YOU WILL NOT HOLD XTI RESPONSIBLE FOR (A) THIRD PARTY CLAIMS AGAINST CUSTOMER FOR DAMAGES, (B) LOSS OF OR DAMAGE TO CUSTOMER’S RECORDS OR DATA OR SOFTWARE MAINTAINED OR STORED BY XTI, OR (C) LOSS OR DAMAGE TO CUSTOMER ASSOCIATED WITH THE INOPERABILITY OF CUSTOMER’S EQUIPMENT OR APPLICATIONS WITH ANY COMPONENT OF THE SERVICES OF THE XTI NETWORK. YOU AGREE TO MAKE ALL CLAIMS RELATED TO THE SERVICES DIRECTLY AGAINST XTI, AND WAIVE ANY RIGHT TO RECOVER DAMAGES (DIRECTLY OR BY INDEMNITY) RELATED TO THE SERVICES BY CLAIMING AGAINST OR THROUGH A THIRD PARTY TO THIS AGREEMENT.
Notices and Communications.
You must designate on Your Order Form a mailing address and e-mail address to which XTI may mail or deliver notices and other communications. All notices You send to XTI must be in writing, by registered mail, sent to: Xpert Technologies, Inc. 38765 Mound Rd #102 Sterling Heights, MI 48310.
Service Level Agreement.
XTI will provide the Service to You in accordance with its standard Service Level Agreement (the “SLA”), as may be amended from time to time, as found on www.xxpert.com and which is incorporated by reference and made a part of this Agreement.
Acceptable User Policies.
In the event that You utilize the Service in a manner which is illegal, XTI may terminate Service for cause. Your Service will be governed by XTI’s Acceptable User Policies, which may be subject to change, as found on www.xxpert.com, and which is incorporated by reference and made a part of
During the term of this Agreement, a renewal term of this agreement, and for a period of two (2) years from the voluntary or involuntary termination of this Agreement, You shall not knowingly solicit, induce, or attempt to induce any past or current customers, clients, prospects, employees, attorney referrals, vendors and any other client, customer or referral contacts of XTI: (a) to cease doing business in whole or in part with or through XTI, or (b) to do business with any other person, firm, partnership, corporation, or other entity which performs services materially similar to or competitive with those provided by XTI. In the event of a breach of this clause, You agree that damages will be difficult to estimate and that XTI shall be entitled to seek injunctive, equitable relief to enforce this Agreement.
Applicable Law. Venue and Jurisdiction. Dispute Resolution.
This Agreement shall be interpreted under the laws of the State of Michigan. All parties consent to jurisdiction the state court sitting in Oakland County, Michigan, or the federal district court for the Eastern District of Michigan for all disputes arising from this Agreement. Notwithstanding the forgoing, any claim or dispute arising out of this Agreement may be if XTI gives a written notice to You of its election to cause such claim or dispute to be arbitrated (the “Arbitration Notice”). In the event that XTI gives the Arbitration Notice, You and XTI shall be bound to submit such claim or dispute to binding arbitration conducted in Oakland County, Michigan before a single arbitrator pursuant to the commercial rules of the American Arbitration Association, and with the arbitrator selected in accord with the commercial rules of the American Arbitration Association, and any award issued as a result of that arbitration shall be final and binding, and either You or XTI shall have the right to compel any court of competent jurisdiction in the State or federal courts in Michigan to enforce that award.
XTI promotes and advertises services for third-parties (“Merchants”) on www.xxpert.com and in person, from which You may purchase certain goods or services. You understand that XTI does not operate or control the products or services offered by Merchants and that XTI is not responsible for information provided to You by the Merchants. Merchants are responsible for all aspects of order processing, truth in advertising, fulfillment, billing, and customer service relating to the services and offers advertised and sold by Merchants. XTI is not a party to the transactions entered into between You and the Merchant and You agree that XTI will not be liable to You for any contract, promise, obligation, pledge, or other agreement entered into between You and the Merchants unless stated in an agreement signed by XTI.
Partial Invalidity. Waiver. Conflict of Terms.
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remaining provisions will nevertheless remain in full force and effect. One or more waivers of a breach of the terms and conditions of this Agreement shall not constitute a waiver of any future breach thereof. In the event of a conflict between the MSA and an Order, the Order shall control. Statute of Limitations. YOU AGREE THAT ANY CLAIM AGAINST XTI, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE, MUST BE BROUGHT WITHIN 6 MONTHS OF THE DATE GIVING RISE TO THE CLAIM.
Entire Agreement; Modifications.
This Agreement and Your Order Form set forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified except by the written consent of both parties.
Risk of Loss.
At all times, You will bear the risk of any loss, damage or destruction of Your assets, equipment or property provided or maintained by XTI, from: fire, water damage, theft or other casualty. You will be solely responsible for insuring Your property and filing insurance claims for losses associated therewith. If XTI is aware of loss or casualty to Your property, XTI will immediately notify You, stating the extent of loss or damage incurred and the cause, if known.
You agree to indemnify, defend, and hold XTI harmless, as well as its subsidiaries, affiliates, officers, directors, employees, agents, licensors, consultants, suppliers, and any third- party Web site provider, from and against all claims, demands, actions, liabilities, losses, expenses, damages, judgments and costs, including attorneys’ fees, resulting from Your violation of this Agreement, misuse or abuse of the Service, violation of State or Federal law, or infringement thereof by You or Users of Your account. XTI reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You. You must not in any event accept a settlement of any dispute relating to this contract without prior written consent of XTI.
If legal proceedings are instituted to enforce any or the terms and conditions of Your Order Form or this Agreement, You agree to pay all costs of XTI in connection therewith, including actual attorneys fees.
You hereby grant XTI authorization in advance to view any files or information, which arises as a result of a repair or system improvement. Any information disclosed to XTI during a repair or system improvement shall be treated as confidential and proprietary and shall not be disclosed by XTI to any party or used by XTI for any purposes other than the performance of this agreement. You also authorizes XTI to delete, change, and /or rewrite any necessary information to complete the system repair or improvement. Hardware costs of any kind are not covered under the terms of this Agreement shall be billed at market rates.
Unless otherwise stated in an Order, Services rendered under this Agreement do not include: (i) parts, equipment or software not covered by vendor/manufacturer warranty or support; (ii) the cost of any parts, equipment or shipping charges; (iii) the cost of any Software, Licensing, Software renewal or upgrade fees not specifically included within this Agreement; (iv) the cost of any 3rd party vendor or manufacturer support; (v) the cost associated with modifications to Client’s environment made to reach minimum standards required for Services, (vi) the cost of services and repairs due to modification of equipment, other than that those authorized by XTI, including but not limited to alterations, software installations or modification of equipment made by Client’s employees or anyone other than XTI; (vii) maintenance of application software packages; (viii) modification of software code as it relates to programming; (ix) website maintenance, updates, configuring, design, programming; (x) training services; (xi) cabling services; (xii) printer maintenance; and (xiii) computer lab equipment, software and/or hardware of any kind.