Master Services Agreement

Master Services Agreement

This Master Services Agreement (this “Agreement”), dated as of the date set forth below on the signature page hereto (the “Effective Date”), is by and between RestorePoint, Inc. a Georgia Corporation, (“Provider”) and ____________________, a ________ corporation, (“Client” and together with Provider, the “Parties”, and each a “Party”).

WHEREAS Provider has the capability and capacity to provide information technology and related services (the “Services”); and

WHEREAS Client desires to retain Provider to provide the said Services, and Provider is willing to perform such Services under the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Provider and Client agree as follows:

1. Services. Provider shall provide to Client the Services, and any other services that may be set out in one or more statements of work to be issued by Client and accepted by Provider (each, a “Statement of Work”). Any or additional Statements of Work shall be deemed issued and accepted only if signed by the Provider Contract Manager and the Client Contract Manager, appointed pursuant to Section 2.1(a) and Section 1, respectively. In the absence of any Statement of Work, the parties hereby agree that the services as defined in the recitals above shall be the Services delivered hereunder.
2. Provider Obligations. Provider shall:
   • Designate employees or contractors that it determines, in its sole discretion, to be capable of filling the following positions:
     • A primary contact to act as its authorized representative with respect to all matters pertaining to this Agreement (the “Provider Contract Manager”).
     • A number of employees or contractors that it deems sufficient to perform the Services set out in each Statement of Work (collectively, with the Provider Contract Manager, “Provider Representatives”).

3. Client Obligations. Client shall:
   • Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed.
   • Require that the Client Contract Manager respond promptly to any reasonable requests from Provider for instructions, information, or approvals required by Provider to provide the Services.
   • Cooperate with Provider in its performance of the Services and provide access to Client’s premises, employees, contractors, and equipment as required to enable Provider to provide the Services.
   • Take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Provider’s provision of the Services.
4. Fees and Expenses.
   • In consideration of the provision of the Services by the Provider and the rights granted to Client under this Agreement, Client shall pay the fees set out in any Statement of Work. Payment to Provider of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Said fee will be payable within thirty (30) days of receipt by the Client of an invoice from Provider. Invoices for payment shall be delivered by email to the Client to the following email address: .
   • Client shall reimburse Provider for all reasonable expenses incurred under this Agreement if such expenses have been pre-approved in writing by the Client Contract Manager or included in the applicable Statement of Work, within thirty (30) days of receipt by the Client of an invoice from Provider accompanied by receipts and reasonable supporting documentation.
   • Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, Provider’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
   • Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of three (3)% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Client shall also reimburse Provider for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Provider does not waive by the exercise of any rights hereunder), Provider shall be entitled to suspend the provision of any Services if the Client fails to pay any amounts/fees when due hereunder and such failure continues for five (5) days following written notice thereof.
5. Limited Warranty and Limitation of Liability.
   • Provider warrants that it shall perform the Services:
     • In accordance with the terms and subject to the conditions set out in the respective Statement of Work and this Agreement.
     • Using personnel of commercially reasonable skill, experience, and
     • In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
   • Provider’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows:
     • Provider shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Provider cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9.2.
     • In the event the Agreement is terminated pursuant to Section 5.2(a) above, Provider shall within thirty (30) days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for the Service or Deliverables (as defined in Section 6 below), less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
     • The foregoing remedy shall not be available unless Client provides written notice of such breach within thirty (30) days after delivery of such Service or Deliverable to Client.
   • PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
6. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the Provider in the course of performing the Services, including any items identified as such in any Statement of Work (collectively, “Client Intellectual Property”) shall be owned by Client in accordance with the terms of this Agreement. Notwithstanding the foregoing, this Agreement shall not be construed to apply to, and shall not create any assignment of, any (i) Intellectual Property Rights owned, optioned or licensed to Provider, including but not limited to all patents and patent applications that Provider owns or may have rights to acquire or use, (ii) Intellectual Property Rights of Provider existing prior to the date of this Agreement, and/or (iii) that relate to the business of Provider following the date of this Agreement (collectively, “Provider Intellectual Property”); provided, further, that, nothing in this Agreement grants Client any ownership right in or to any Provider Intellectual Property, regardless of whether or not such Provider Intellectual Property was developed while performing the Services hereunder. Provider hereby grants Client a license to use all Provider Intellectual Property incorporated into any deliverables or Client Intellectual Property developed under this Agreement, free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Client Intellectual Property and the Services. Provider retains all ownership right, title and interest, in and to all Provider Intellectual Property, including but not limited to all rights to file any patents and patent applications concerning Intellectual Property related to the business of Provider.
7. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, a reasonable person under the circumstances would understand such information to be confidential or proprietary to the Disclosing Party under this Agreement (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s employees, officers, directors, independent contractors or agents who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.

8. Data Security.

8.1 Data Ownership. As between the parties, Client owns all right, title and interest in and to all information input or generated on behalf of Client in connection with Services (“Data”). Data shall be deemed to be Client’s confidential information, and Contractor shall not use Data for any purpose other than performing its obligations hereunder or as otherwise agreed to in writing by the parties.

8.2 Data Security. Provider shall maintain industry best technical and organizational security measures to protect Data against: (a) accidental destruction, loss, and alteration; and (b) unauthorized disclosure of, or access to, Data transmitted, stored or otherwise processed as set forth herein. Provider uses secure hosting facilities that are independently audited using the SSAE-18 methodologies. Provider shall comply with applicable Data processing laws relating to the processing, transmission, and disclosure of Data. Client Data will be stored in a database that logically separates, via password protection, Client Data from information owned by other client of Provider.  Provider may access Client Data solely to respond to service or technical problems or at Client’s request.

8.3       Incidents. Provider shall, as expeditiously as possible after discovery thereof, notify Client of: (a) any loss, unauthorized disclosure, or unauthorized use of Data; or (b) any access, acquisition or misappropriation of Data by third parties, including any intrusion into a computer system used to process Data; or (c) any other disclosure of Data in violation of this Agreement (collectively, “Security Breach”). In the event of a Security Breach, Provider shall take such steps as are necessary to: (i) promptly mitigate the effects of such Security Breach and prevent a recurrence thereof; and (ii) comply with applicable laws relating to such Security Breach.

9. Term, Termination, and Survival.
   • This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work unless sooner terminated pursuant to Section 9.2 or Section 9.3.
   • Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
     • Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach.
     • Becomes insolvent or admits its inability to pay its debts generally as they become due.
     • Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed or is not dismissed or vacated within forty-five (45) days after filing.
     • Is dissolved or liquidated or takes any corporate action for such purpose.
     • Makes a general assignment for the benefit of creditors.
     • Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   • Notwithstanding anything to the contrary in Section 9.2(a), Provider may terminate this Agreement before the expiration date of the Term on written notice if Client fails to pay any amount when due hereunder, and such failure continues for ten (10) days after Client’s receipt of written notice of nonpayment;
   • The rights and obligations of the parties set forth in Section 5, Section 6, Section 7, Section 8, Section 10, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
10. Limitation of Liability.
    • IN NO EVENT SHALL PROVIDER BE LIABLE TO Client OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER PURSUANT TO THE APPLICABLE STATEMENT OF WORK GIVING RISE TO THE CLAIM.
11. Insurance. During the term of this Agreement, Client shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers, in full force and effect that includes, but is not limited to, commercial general liability coverage with financially sound and reputable insurers. Upon Provider’s request, Client shall provide Provider with a certificate of insurance from Client’s insurer evidencing the insurance coverage specified in this Agreement. The certificate of insurance shall name Provider as an additional insured. Provider shall provide Client with thirty (30) days’ advance written notice in the event of a cancellation or material change in Provider’s insurance policy.
12. Force Majeure. If, during the Term of this Agreement, either party fails to comply with any provision of this Agreement due to an act of God, hurricane, war, fire, riot, earthquake, act of public enemies, act of terrorism, or actions of governmental authorities outside of the control of such party (“Force Majeure Event(s)”), such failure shall not be considered a breach of the Agreement. In such event, the parties may add a period of time equal to all or any part of the period of such suspension of performance due to the Force Majeure Event(s) to the applicable period of the term of the Agreement. Notwithstanding the foregoing, however, in the event that the Force Majeure Event(s) continue for a period in excess of sixty (60) consecutive days, then either party may terminate this Agreement without further liability to the other.
13. • Provider and Clients (each as an “Indemnifying Party”) will mutually indemnify, defend and hold harmless the other and its officers, directors, employees, agents, representatives, and subsidiaries (“Indemnified Party”) from and against all third party claims, demands, damages, or costs, including reasonable attorneys’ fees and expenses (collectively, “Claims”), incurred by Indemnified Party, and caused by or resulting from (i) a breach or alleged breach of the Indemnifying Party’s representations, warranties, or obligations under this Agreement; (ii) the gross negligence or willful misconduct of the Indemnifying Party; or (iii) the Indemnifying Party’s violation of applicable law or regulation, including without limitation any data privacy or similar law.
    • The Indemnified Party shall notify the Indemnifying Party promptly after the Indemnified Party receives notice of a Claim for which indemnification is sought under this Agreement, provided, however, that no failure to so notify the Indemnifying Party shall relieve the Indemnifying Party of its obligations under this Agreement except to the extent that it can demonstrate damages directly attributable to such failure. The Indemnifying Party shall have authority to defend or settle the claim; provided, however, that the Indemnified Party, at its sole discretion and expense, shall have the right to participate in the defense and/or settlement of the Claim, and provided further, that the Indemnifying Party shall not settle any such Claim imposing any liability or other obligation of the Indemnified Party without the Indemnified Party’s prior written consent.
14. NON-COMPETITION
    • Non-Competition. To the extent that this Section 14 is enforceable under applicable law (e.g., based on the amounts paid under an applicable Statement of Work), during the term of this Agreement and for one year after the termination of this Agreement, Client will not directly or indirectly, for itself or any third party other than Provider, perform any of the following actions:

(a) perform services for a business with the development, manufacture, marketing, or sale of a Competing Service or Product;

(b) solicit sales of any Competing Service or Product from any of Provider’s clients;

(c) entice or otherwise engage in any activity that would cause any vendor, Contractor, collaborator, agent, or contractor of Provider to cease its business relationship with Company; or

(d) solicit or encourage any employee or contractor of Provider or its affiliates to terminate employment with, or cease providing services to, Provider or its affiliates.

15. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
16. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 16.

The Provider point of contact for any changes is:

Provider: RestorePoint, Inc.

Attn: Sales

Address: 4920 Atlanta Highway, Suite 530, Alpharetta, GA 30004

e-mail: [email protected]

17. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
18. Amendments. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
19. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20. Assignment. Client shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section 20 shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Agreement. Provider may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Provider’s assets without Client’s consent.
21. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
22. Relationship of the Parties. The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the Services by Provider shall be under its own control, Client being interested only in the results thereof. The Provider shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services.  The Services must meet the Client’s final approval and shall be subject to the Client’s general right of inspection throughout the performance of the Services and to secure satisfactory final completion.  Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
24. Choice of Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Delaware, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
25. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the state and federal courts of the State of Utah. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in state and federal courts located in Utah. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
26. Waiver of Jury Trial. Each Party acknowledges that any controversy that may arise under this Agreement, including exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions contemplated hereby.
27. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 16, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this Master Services Agreement to be executed as of the Effective Date by their respective duly authorized officers.