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Master Service Agreement (MSA)

This Master Service Agreement (“Agreement”) is made and entered into by and between Prominic.NET, Inc., an Illinois Corporation (“Provider”), and “Customer,” as indicated in Proposal, attached as “Exhibit A” and made part of this agreement.

WHEREAS, Provider provides a variety of technical and consulting services regarding the sourcing, development, installation and maintenance of hardware, firmware, software, and communications facilities relating to data management and network operations; and

WHEREAS, Customer desires to obtain said services for their use, or for the use of their respective clients; and

WHEREAS, Provider recognizes its role in the operation and success of Customer, thus, Provider shall strive to provide the highest quality services and support at market leading rates, while exercising state of the art technical and physical security practices; and

WHEREAS, Customer recognizes the investment made by Provider to successfully provide services to Customer, and that Providers’ continued ability to offer market leading terms is dependent upon successful completion of the duration of this Agreement.

NOW, THEREFOR, this Agreement contemplates that Provider will provide such services to Customer on the terms and conditions set forth as follows:

1. Goods and Services.

1.1 Provider shall provide the goods and services as detailed in the Proposal (Exhibit A) above.

1.2 Service Level Agreement – Provider’s responsibilities for providing the services outlined in the attached Proposal (Exhibit A) shall be governed by the Service Level Agreement (“SLA”). The current SLA can be found at Prominic.NET/SLA, and shall be subject to change upon thirty (30) days written notice by Provider.

1.3 Additional Services – Any follow on or additional work, including consulting services, that is not contemplated by this Agreement and is requested by Customer shall be performed on a time and materials basis at Provider’s then current rates for such work.

1.4 Exclusions –Provider shall not provide, and Customer shall be solely responsible for, Customer equipment, third party software licensing fees, and transport communications from Customer’s local computer, unless additional services are specifically included in services purchased from Provider.

2. Pricing and Payment.

2.1 PricingProvider shall provide said goods and services at the prices set forth in Proposal, attached as Exhibit A, and made part of the agreement. Provider shall bear all costs associated with successfully providing services in accordance with the standards set forth in this Agreement. All other costs associated with access, use of services, and licensing shall remain the sole responsibility of Customer.

2.2 Taxes – In addition to the charges set forth above, Customer shall pay all applicable federal, state, local and other taxes which may be imposed by any taxing authority.

2.3 Payment – Customer will be billed in accordance with Provider’s Billing & Payment Policy, which is found at http://www.Prominic.NET/LegalPolicies. Unless otherwise agreed in advance, the fees for any follow on or additional work not described within this Agreement and requested by Customer shall be performed on a time and materials basis at Provider’s then current rates for such work.

3. Automatic Renewal.

This agreement shall automaticially renew at the end of THE initial and any subsequent contract period(s) FOR AN IDENTICAL period, unless Customer notifies Provider OF CANCELLATION AT LEAST 30 days prior to the then current contract period expiration, PURSUANT TO SECTION 4.2 OF THIS AGREEMENT.

4. Termination.

4.1 Termination by Provider – This Agreement may be terminated:

4.1.1 – if Customer fails to pay within 15 days of Provider giving notice to Customer, at the address Prominic has on file for Customer, that Customer has failed to pay any charges or taxes, or

4.1.2 – immediately if Customer becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law.

4.2 Termination by Customer – This Agreement may be terminated upon 30 days prior notice by an authorized representative of Customer via Prominic.NET/CloseAccount In the event the website in the preceding

sentence is not accessible by the Customer, then an authorized representative of the Customer may give notice of termination as defined in Section 13. Notice will be deemed effective when actually received by Provider.

4.3 – In the event of any termination/cancellation of this Agreement, Provider may:

4.3.1 – Declare the equivalent of the remainder of the current term rent from the date of service termination (30 days after prior notice is given to Provider) to be immediately due and payable; and

4.3.2 – Deny Customer further access to Provider’s services hereunder without liability to Provider.

4.4 – The foregoing rights and remedies of Provider shall be cumulative and in addition to all other rights and remedies available to it in law and in equity.

4.5 – In the event of any expiration, termination or cancellation of this Agreement, provisions hereof which are intended to continue and survive shall so continue and survive.

4.6 – Upon termination or suspension of services permitted by this Agreement, Provider reserves the right to erase or remove any data stored in Provider’s facilities.

5. No Warranties.

5.1 – Provider has devoted significant resources to ensuring continuous reliable services. In the event of service interruption longer than 30 minutes, Provider will refund usage charges on a prorated basis, except for weekly scheduled downtime as specified in the SLA. Provider expressly disclaims all warranties, whether express or implied, including but not limited to, those of merchantability, fitness for a particular purpose, and warranty of title. This disclaimer shall apply to any equipment sold and to all advice, assistance, data, information, or service now or in the future provided. This includes loss of data resulting from delays, non-deliveries, misdeliveries or service interruption caused by force majeure or Customer’s negligence, errors and omissions. Use of any information obtained by Provider’s network is at Customer’s own risk. Provider specifically disclaims any responsibility for the accuracy, marketability or quality of any of the information obtained and/or services provided under this Agreement.

5.2 – Customer understands and agrees that the use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to Customer’s computer systems, networks and any and all information stored therein. All information transmitted and received through the Internet cannot be expected to remain confidential and Provider cannot and will not guaranty the privacy, security, authenticity, and noncorruption or any information so transmitted, or stored in any system connected to the Internet. Provider shall not be responsible for any adverse consequences whatsoever of Customer’s connection to or use of the Internet, and Provider shall not be responsible for any use by Customer’s Internet connection in violation of any law, rule or regulation or any violation of the intellectual property rights of another.

5.3 – Provider exercises no control whatsoever over the contents of any information passing through the Internet. Representations of the stated bandwidth apply only to the Customers of Provider under these agreements and there is no guaranty of end-to-end bandwidth on the Internet.

6. Revocable, Non-Portable Address.

Provider grants Customer the use of revocable, non-portable network IP addresses for the duration this Agreement. Network IP addresses may not be transferred, and shall not become the property of Customer, nor shall customer have any right to such network IP address upon expiration or termination of this Agreement. Provider may in its sole discretion renumber Network IP addresses as necessary after providing notice to Customer.

7. Violation of Laws and Indemnification.

7.1 – It shall be a material breach of this Agreement and grounds for immediate termination without an opportunity for cure for Customer to use or allow the use by any party of the goods or services provided under this Agreement for any tortuous or unlawful purposes, including without limitation, the following:

7.1.1 – The transmission of material in violation of any applicable state or federal laws, including copyright laws; or

7.1.2 – The transmission of material that constitutes the unauthorized disclosure of a trade secret; or

7.1.3 – The transmission of material deemed to be threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable; or

7.1.4 – The use of any process, program or tool for the purpose of guessing passwords, or making any unauthorized attempt to access or otherwise corrupt the integrity of any other data, system or network.

7.2 – In the event that Customer or any party who has service access via the Customer engages in any tortuous or unlawful purpose, the Customer agrees to indemnify and hold harmless Provider from any and all demands, liabilities, penalties, damages, losses, costs, expenses, including reasonable attorneys’ fees and court costs, causes of action, claims or judgments directly or indirectly arising out of or related to Customer’s or such party’s actions and resulting in damage to any other party, against Provider, its agents, its employees, its customers, its successors and its assigns.

7.3 – In order to guaranty the integrity of the Provider’s hosting provision system and in order to guaranty the smooth, uninterrupted provision of access service, Customer expressly acknowledges that any activity on the part of Customer or those using its access which subverts, conflicts with, or interferes with the integrity of the hosting provision system and Provider’s computers, routers, and network are grounds for immediate cancellation of access services by Provider without further notice.

 

8. Limitation of Liability.

8.1 – Provider undertakes no obligation to moderate or monitor Customer’s activities or transmissions.

8.2 – In no event shall Provider be liable to Customer for any indirect or consequential damages or lost profits arising out of or related to this Agreement, the performance or breach thereof. Customer expressly assumes all risks associated with Customer’s use of the services provided.

8.3 – In no event shall Provider be liable to Customer for any damages resulting from or related to any failure or delay of Provider in providing access to the services under this Agreement. In the event of service interruption longer than 30 minutes, with the exception of weekly scheduled downtime as specified in the SLA, Provider’s sole liability is limited to a refund of usage charges on a prorated basis.

8.4 – The Provider reserves the right to assist local, state, and federal authorities in prosecuting any and all illegal use of the Internet. If notified of any alleged infringing, defamatory, damaging, obscene, offensive or illegal use or activity, Provider may (but shall not be required to) investigate the allegation, or refer it to Customer or a third party for investigation, and Provider reserves the right to remove or request the removal of the applicable content from the Internet or any other text or item linked to the Internet. In the event Provider removes the subject material, or other related text or items from the Internet, suspends the services provided hereunder, or terminates this Agreement, Provider shall not be liable for any damages incurred by Customer as a result of such action.

 

9. Confidential Information and Intellectual Property Rights.

9.1 – Each party hereto shall hold in trust for the other party, and shall not disclose to any non-party to this Agreement, any confidential information of the other party. Confidential information is any information which relates to the party’s research, development, trade secrets or business affairs, INCLUDING THE PRICING AND TERMS GOVERNING THIS AGREEMENT, but does not include information which is generally known or easily ascertainable by nonparties of ordinary skill and computer design, services and programming.

9.2 – Each party hereby acknowledges that during the performance of this Contract, the parties may learn of or receive information confidential to the other party, and therefore, both parties hereby confirm that all such information relating to the other party’s business will be held in confidence, and shall be divulged solely to the receiving party’s staff on a need-to-know basis as required to enable performance of the contractual obligations under this Agreement.

9.3 – Each party agrees not to tamper with, reverse engineer, sell, distribute, or otherwise misuse any of the other party’s proprietary technology without express written consent.

9.4 – All materials, documentation, computer programs, inventions (whether or not patentable), pictures, audio, video, artistic works, and all works of authorship, including all worldwide rights therein under patent, copyright, trade secret, or other property right, created or developed by Provider while providing services (collectively, Work Product) pursuant to this Agreement are owned by Provider. Work Product shall not include the Confidential Information of Customer. If ownership of all right, title and interest of the intellectual property rights in the Work Product shall not otherwise vest exclusively in Provider, Customer hereby assigns to Provider, and upon the future creation thereof automatically assigns to Provider, without further consideration, ownership of all Work Product.

10. Relationship of the Parties.

10.1 Independent Contractor Status– Provider is an independent contractor and neither Provider nor Provider’s staff is, or shall be deemed to be employed by Customer. Customer is hereby contracting with Provider for the services described herein and Provider reserves the right to determine the method, manner and means by which the services will be performed. Provider is not required to perform the services during a fixed hourly or daily time, except for those services which are continuous. If the services are performed at Customer’s premises, then Provider’s staff time spent at the premises is to be at the discretion of Provider, subject to Customer’s normal business hours and security requirements. The sequence in which the work is to be performed shall be under the control of Provider.

10.2 Non-Solicitation – Each party hereto agrees that, while performing services under this Agreement, and for a period of six (6) months following the termination of this Agreement, neither party will, except with the other party’s prior written approval, solicit or offer employment to the other party’s employees or staff engaged in any efforts under this Agreement.

10.3 No Other Relationship – Provider and Customer shall not be construed as being parties to a joint venture, franchise, partnership or agency relationship. Each party has no authority, apparent or otherwise, to represent, contract for or on behalf of, or in any other way legally bind the other party hereto in any fashion.

11. General Provisions.

11.1 – This is the sole Agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, writings, proposals, representations or communications, oral or written by either party. Only a written instrument executed by authorized representatives of both parties hereto or a notice given by Provider in accordance with its standard business policies, may amend this Agreement.

11.2 – Provider may assign its rights and obligations hereunder to any successor to all or any substantial part of its business pertaining to this Agreement. Customer may assign this Agreement, together with all rights and obligations herein, solely to a successor to all or any substantial part of its business.

11.3 – This Agreement shall be interpreted in its entirety in accordance with the substantive laws of the state of Illinois. In the event any provision of this Agreement is found unenforceable under applicable law, the remaining provisions of this Agreement shall nonetheless be enforced to the maximum extent permitted by law consistent with the fundamental intent of the parties.

11.4 – The waiver by either party of a breach or default in any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power, or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party. The prevailing party in any legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement shall be entitled to recover its reasonable legal expenses, including court costs and reasonable attorney fees.

11.5 – Any purchase order or other document issued by Customer is for administrative convenience only. In the event of any conflict between this Agreement and any such document, this Agreement shall prevail.

11.6 – Nothing contained in this Agreement, express or implied, shall be deemed to confer any rights or remedies upon, nor obligate any of the parties hereto, to any person or entity other than Provider and Customer, unless so stated to the contrary.

11.7 – Provider shall be excused from performance hereunder to the extent that such performance is prevented, delayed, or obstructed by causes beyond its reasonable control, including, but not limited to, acts of any federal, state, or local government authority, fires, floods, or other natural disasters; strikes or labor unrest; terrorism or acts of war; degradation of telecommunication service; severe weather conditions; or for any other matters that are beyond Provider’s control, whether or not otherwise foreseeable.

11.8 – This Agreement shall be binding upon and inure to the benefit of each of the parties hereto, and their respective legal successors and permitted assigns.

 

12. Disputes.

12.1 – Any disputes that arise between the parties with respect to the performance of this Agreement shall be submitted to binding arbitration by the American Arbitration Association to be determined and resolved by said Association under its rules and procedures in effect at the time of submission and the parties hereby agree to share equally in the costs of said arbitration without respect to the outcome.

12.2 – The final arbitration decision shall be enforceable only through the courts of the state of Illinois located in Champaign County, Illinois, USA.

 

13. Representation.

13.1 – Each party shall designate a contact to act as that party’s authorized representative and liaison during the performance of this Agreement with respect to the services as defined herein.

13.1.1 – Notices to Provider delivered to:

  • Prominic.NET, Inc.
  • P.O. Box 7301
  • Champaign, Illinois 61826-7301
  • Attention: Contract Administrator
  • Phone: 217.356.2888
  • Fax: 217.356.3356
  • E-Mail: Support@Prominic.NET

13.1.2 – Notices to Customer will be delivered to the individual accepting this agreement, unless otherwise communicated in writing by that individual upon initial payment.

13.2 – In the event of a change of contact information, the other party must be notified within 14 days. Should Customer fail to notify Provider of a change of contact information, Customer holds Provider harmless for any interruption in service due to Provider’s inability to contact Customer.

 

14. Signatures.

By initialing all pages and signing below, the Customer signifies that he is authorized to enter into a contract on behalf of the company represented. Further, the Customer acknowledges that he has read, understands and agrees to the terms and conditions of this Agreement.