Master Service Agreement

These Terms and Conditions of this Master Service Agreement (MSA) and any Addendum/Addenda and/or ProTelesis Sales Order Quote constitute the “Agreement” by and between Customer and ProTelesis (collectively, the “Parties”) for the equipment, licenses, and/or services specified on the ProTelesis Addendum and/or Sales Order Quote. Unless in conflict with an Addendum or Sales Order Quote, the terms and conditions in this Master Service Agreement will be the controlling language. If there is a conflict or variance between this MSA and the addendums or sales order quotes, the addendums and sales order quotes are the controlling language and incorporated with the MSA. Any attached Addendums or Sales Order Quotes or exhibits to this Agreement are incorporated in this Agreement by Reference.

1. Agreement

1.1 Overview of Documents.

This Master Service Agreement and the Addendums, and/or Sales Order Quote (collectively, the “Agreement”) shall apply to all services and equipment PROTELESIS provides to Customer pursuant to this Agreement and any future Addendum attached hereto. This Agreement shall continue in effect until terminated by either the Customer or by ProTelesis in accordance with the terms hereof.

1.2 Each Addendum and/or Sales Order Quote shall define with specificity the schedule term, services to be provided to Customer, the applicable pricing, and other appropriate terms and conditions.

1.3 Each Addendum shall be governed by the terms and conditions of this Agreement; however, in the event of any conflict between this Agreement and an Addendum, the provisions of the Addendum shall prevail.

1.4 Customer understands and agrees that by executing this Agreement, Customer is not committing or obligating itself to use the Services of Seller and that no work or charges are or shall be authorized hereunder unless and until authorized in writing by an Addendum signed by both parties.

1.5 Seller shall have the right with Customer’s prior written consent in each case, to use third parties (the “Subcontractors”) in performance of its obligations and Services hereunder.

1.6 This Agreement shall commence on the Effective Date of the Services and shall remain in effect for 1 year, and shall be automatically extended in 1 year increments thereafter, unless and until terminated by (a) either Party due to a breach of this Agreement by the other Party or either Party’s discontinuation of the respective Services; or by (b) either Party with or without cause, upon written notice to the other Party thirty (30) days prior to the end of each annual term.

2. Pricing and Billing

2.1 Prices. All prices will be as set forth on any PROTELESIS Sales Order Quote or Addendum, approved by both PROTELESIS and Customer, or on a valid purchase order from Customer that has been approved by ProTelesis in written form. Each quote or Addendum will be assigned a new contract number.

2.2 Additional charges and taxes. Prices set forth in a quote may be exclusive of, but Customer agrees to pay all taxes (excluding those on PROTELESIS net income), surcharges, recovery fees, customs clearances, duties, levies, shipping charges and other similar charges (and any associated interest and penalties resulting from Customer’s failure to timely pay such taxes or similar charges) relating to the sale. Transfer of ownership, installation, license, use or provision of the Services, except to the extent Customer provides a valid exemption certificate prior to the delivery of Services. Customer shall reimburse Seller for all pre-approved reasonable travel, food, lodging, and other out-of-pocket expenses incurred in performance of a given Addendum.

2.3 Billing. PROTELESIS shall invoice Customer in accordance with the terms of an approved Sales Order Quote or Customer Purchase Order approved by ProTelesis. A Customer’s purchase order terms does not supersede the terms of an approved quote. At Customer’s request, but subject to PROTELESIS’s consent (which may not be unreasonably withheld or withdrawn), Customer’s Affiliates may be invoiced separately, and PROTELESIS will accept payment from such Affiliates. Customer will be responsible for payment if Customer’s Affiliates do not pay charges in accordance with this Agreement.

2.4 Payments. Payment is due within 30 days after the date of the invoice unless another date is specified on the invoice, sales order quote or Addendum. The payment must refer to the invoice number. Charges can be paid by Customer’s check mailed, to the address shown on the invoice, in the currency specified on the invoice. Customer may also pay via electronic transfer (“EFT”), through the Automated Clearinghouse Association (“ACH”) to the financial institution designated by PROTELESIS. Credit card payments will be accepted with an additional 2% fee incurred. Customer will reimburse PROTELESIS for all costs associated with collecting delinquent or dishonored payments, including reasonable attorneys’ fees. PROTELESIS may charge late payment fees at the lower of 1.5% per month (18% per annum) or the maximum rate allowed by law for overdue payments.

2.5 Credit terms/Escrow/Creditor arrangements/Deposits. If PROTELESIS determines, in its reasonable judgment, that Customer is not creditworthy, the parties will explore alternatives to mitigate the associated risks to PROTELESIS’s satisfaction, and if the parties are unable to agree to such an alternative, Customer agrees to establish a reasonable deposit arrangement pursuant to which PROTELESIS may apply deposit amounts to any overdue charges owed.

3. ProTelesis Deliverables

3.1 Acceptance of Order; Termination. Acceptance of any order is subject to credit approval and acceptance of order by ProTelesis Corporation and, when applicable, the suppliers of ProTelesis. If credit of the buyer of the goods (“Buyer”) becomes unsatisfactory to ProTelesis, ProTelesis reserves the right to terminate upon notice to Buyer and without liability to ProTelesis.

3.2 Returns of Goods. The terms and time periods for product returns are limited to those set forth in Seller’s Return Merchandise Authorization (“RMA”) policies and procedures, which are located on Seller’s website. See RMA Addendum at www.ProTelesis.com/terms-and-conditions/RMA . These policies and procedures may be modified by Seller at any time. All returns must be accompanied by a RMA number that has been assigned by ProTelesis. All returns are subject to in-house credit only.

3.3 Delivery. ProTelesis is not accountable for delays in delivery resulting from an occurrence of a force majeure, failure of its suppliers to ship or deliver on time, or other circumstances beyond reasonable control by ProTelesis. Expected delivery dates are estimates of our suppliers and in no circumstance shall ProTelesis be liable for any consequential or special damages arising from any delay in shipment or delivery.

3.4 ProTelesis Equipment. Services may be provided using equipment owned by PROTELESIS (or an Affiliate of PROTELESIS) that is located at a Customer’s Site (“Equipment”), but title to the Equipment will remain with PROTELESIS or its Affiliate as the case may be. If required, Customer must provide electric power for the Equipment and to keep the Equipment physically secure and free from liens and encumbrances. Customer shall bear the risk of loss or damage to Equipment at Customer Sites (other than ordinary wear and tear) except to the extent caused by PROTELESIS or its agents.

4. Confidential Information

4.1 Confidential Information. Means: (aa) information the parties or their Affiliates share with each other in connection with this Agreement or in anticipation of providing products or services under this Agreement (including pricing or other proposals), but only to the extent identified as Confidential Information in writing; and (ab) except as may be required by applicable law or regulation, or the terms of this Agreement. The parties acknowledge that all non-public information provided to the other party in connection with this Agreement or Addendums shall be considered confidential and proprietary information of the disclosing party.

4.2 Obligations. For a period of 3 years following a party’s receipt of Confidential Information from the other party (except in the case of software, for which the period is indefinite), the receiving party shall: (a) not disclose such Confidential Information, except to the receiving party’s employees, agents and contractors having a need-to-know (but only if such agents and contractors agree in writing to use and disclosure restrictions as restrictive as this Section 4 or to the extent authorized to be revealed by law, governmental authority or legal process (but only if such disclosure is limited to that which is so authorized and prompt notice is provided to the disclosing party to the extent practicable and not prohibited by law, governmental authority or legal process); (b) use such Confidential Information only for purposes of evaluating proposals for new products or services or performing this Agreement (including in the case of PROTELESIS to detect fraud and to check quality); and (c) use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the unauthorized use or disclosure of such Confidential Information.

4.3 Exceptions. The restrictions in this Section 4 will not apply to any information that: (a) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (b) is lawfully received by the receiving party.

4.4 Privacy Laws. Each party is responsible for complying with the privacy laws applicable to its business. If Customer does not want PROTELESIS to comprehend Customer data to which it may have access in performing services, Customer must encrypt such data (or require the Customer that it must encrypt such data) so that it will be unintelligible.

5. Limitations of Liability and Disclaimers

5.1 Limitation of Liability

(a) EITHER PARTY’S ENTIRE LIABILITY OR THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DAMAGES ON ACCOUNT OF ANY CLAIM ARISING OUT OF AND NOT DISCLAIMED UNDER THIS AGREEMENT SHALL BE:
(i) FOR BODILY INJURY, DEATH OR DAMAGE TO REAL PROPERTY OR TO TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY A PARTY’S NEGLIGENCE, PROVEN DIRECT DAMAGES;
(ii) FOR BREACH OF SECTION 4 (Confidential Information) OR SECTION 10.13 (Trademarks), PROVEN DIRECT DAMAGES;
(iii) FOR ANY THIRD-PARTY CLAIMS, THE REMEDIES AVAILABLE UNDER SECTION 6 (Third Party Claims);
(iv) FOR CLAIMS ARISING FROM THE OTHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, PROVEN DAMAGES; OR
(v) FOR CLAIMS OTHER THAN THOSE SET FORTH IN SECTION 5(a)(i)-(iv), PROVEN DIRECT DAMAGES NOT TO EXCEED, ON A PER CLAIM OR AGGREGATE BASIS DURING ANY TWELVE (12) MONTH PERIOD, AN AMOUNT EQUAL TO THE TOTAL NET CHARGES INCURRED BY CUSTOMER FOR THE AFFECTED PRODUCT OR SERVICE DURING THE SIX (6) MONTHS PRECEDING THE MONTH IN WHICH THE CLAIM AROSE.
(b) EXCEPT AS SET FORTH IN SECTION 6 (Third Party Claims) OR IN THE CASE OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OR FOR INCREASED COST OF OPERATIONS.
(c) THE LIMITATIONS IN THIS SECTION 5.1 SHALL NOT LIMIT CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THIS AGREEMENT AND ANY FUTURE ADENDUM.

Seller warrants that it has the right to enter into this Agreement and that all Services performed under this Agreement shall be performed in a workmanlike and professional manner consistent with the highest standards in the industry.

5.2 Disclaimer of Warranties. PROTELESIS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND SPECIFICALLY DISCLAIMS ANY WARRANTY ARISING BY USAGE OF TRADE OR BY COURSE OF DEALING. FURTHER, PROTELESIS MAKES NO REPRESENTATION OR WARRANTY THAT PROTELESIS’S SECURITY PROCEDURES WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO CUSTOMER”S OR ITS CUSTOMERS’ DATA AND INFORMATION.

5.3 Application and Survival. The disclaimer of warranties and limitations of liability set forth in this Agreement will apply regardless of the form of action, whether in contract, equity, tort, strict liability or otherwise, of whether damages were foreseeable and of whether a party was advised of the possibility of such damages and will apply so as to limit the liability of each party and its Affiliates and their respective employees, directors, subcontractors and suppliers. The limitations of liability and disclaimers set out in this Section 5 will survive failure of any exclusive remedies provided in this Agreement.

6. Third Party Claims

6.1 PROTELESIS’s Obligations. PROTELESIS agrees at its expense to defend and either (i) settle any third-party claim against Customer, its Affiliates and its respective employees and directors or (ii) pay all Damages that a court finally awards against such parties for a claim alleging that a product or service provided by ProTelesis to Customer under this Agreement infringes any patent, trademark, copyright or trade secret, but not where the claimed infringement arises out of or results from:

6.2 Infringing Services. Whenever PROTELESIS is liable under Section 6.1, PROTELESIS may at its option either procure the right for Customer to continue using, or may replace or modify, the product or service so that it is non-infringing.

6.3 Notice and Cooperation. The party seeking defense or settlement of a third-party claim under this Section 6 will provide notice to the other party promptly upon learning of any claim for which defense or settlement may be sought, but failure to do so will have no effect except to the extent the other party is prejudiced by the delay. The party seeking defense or settlement will allow the other party to control the defense and settlement of the claim and will reasonably cooperate with the defense. The defending party will use counsel reasonably experienced in the subject matter at issue and will not settle a claim without the written consent of the party being defended, which consent will not be unreasonably withheld or delayed, except that no consent will be required to settle a claim where relief against the party being defended is limited to monetary damages that are paid by the defending party under this Section 6.

7. Suspension and Termination

7.1 Termination of Agreement – This Agreement may be terminated immediately upon notice by either party if the other party becomes insolvent, ceases operations, is the subject of a bankruptcy petition, enters receivership or any state insolvency proceeding or makes an assignment for the benefit of its creditors.

7.2 Termination or Suspension – The following additional termination provisions apply:
(a) Seller may terminate the Agreement if Customer fails to make any undisputed payments due hereunder within thirty (30) days after Seller delivers notice of default to Customer; or either party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
(b) Either party may terminate the Agreement in the event the other has failed to perform any obligation required to be performed under this Agreement or a Schedule (including without limitation Seller’s failure to perform Services in an acceptable manner) and such failure is not corrected within thirty (30) days from receipt of written notice from the other party advising of such failure.

7.3 Material Breach. If either party fails to perform or observe any material warranty, representation, term or condition of this Agreement, including non-payment of charges, and such failure continues unsettled for 30 days after receipt of notice, the aggrieved party may terminate this Agreement and seek damages in accordance with Section 5 of this Agreement. If Customer is in breach, PROTELESIS may elect to suspend (and later terminate) any service being provided hereunder and, if the breach materially and adversely affects the entire Agreement, suspend (and later terminate) the entire Agreement. If Customer fails to comply with Section 10.13 (Trademarks) of this Agreement, and such failure continues unsettled for 30 days after receipt of notice, PROTELESIS may elect, following the 30 day period, to suspend any services being provided hereunder (and later terminate) the entire Agreement, except that such notice and opportunity to cure will not apply if PROTELESIS has provided a notice of non-compliance more than twice in the preceding twelve month period.

7.4 Hazardous Materials. If PROTELESIS encounters any Hazardous Materials at a Site, PROTELESIS may terminate the affected services or may suspend performance until Customer removes and remediates the Hazardous Materials at Customer’s expense in accordance with applicable law.

8. Effect of Termination

8.1 Termination or suspension. By either party does not waive any other rights or remedies a party may have under this Agreement.

9. Import/Export Control

9.1 Import/Export Control. Neither party will use, distribute, transfer or transmit any equipment, services, software or technical information provided under this Agreement (even if incorporated into other products) except in compliance with all applicable import and export laws, conventions and regulations. Customer is responsible for each of its Customers’ (and their Users’) use, distribution, transfer or transmission of any equipment, services, software or technical information provided under this Agreement (even if incorporated into other products), and in connection therewith will require a similar covenant and agreement in all contracts with its Customers that they and their Users will not distribute, transfer or transmit any equipment, services, software or technical information provided under this Agreement (even if incorporated into other products) except in compliance with all applicable import and export laws, conventions and regulations.
(a) Neither party will use, distribute, transfer or transmit any equipment, services, software or technical information provided under this Agreement (even if incorporated into other products) except in compliance with all applicable import and export laws, conventions and regulations. Customer is responsible for each of its Customers’ (and their Users’) use, distribution, transfer or transmission of any equipment, services, software or technical information provided under this Agreement (even if incorporated into other products), and in connection therewith will require a similar covenant and agreement in all contracts with its Customers that they and their Users will not distribute, transfer or transmit any equipment, services, software or technical information provided under this Agreement (even if incorporated into other products) except in compliance with all applicable import and export laws, conventions and regulations.

10. Miscellaneous Provisions

10.1 Amendments and waivers. Any supplement to or modification of any provision of this Agreement must be in writing and signed by authorized representatives of both parties. A waiver by either party of any breach of this Agreement must be in a writing signed by the party making the waiver and will not operate as a waiver of any other breach of this Agreement.

10.2 Force majeure. Except for payment of amounts due, neither party will be liable for any delay, failure in performance, loss or damage due to fire, explosion, cable cuts, power blackout, earthquake, flood, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism, acts of God, acts of a public enemy, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies or other causes beyond such party’s reasonable control.

10.3 Assignment and Subcontracting. Customer may, without PROTELESIS’s consent but upon notice to PROTELESIS, assign in whole or relevant part its rights and obligations under this Agreement to a Customer Affiliate. PROTELESIS may, without Customer’s consent, assign in whole or relevant part its rights and obligations under this Agreement to an PROTELESIS Affiliate. In no other case may this Agreement be assigned by either party without the prior written consent of the other party (which consent will not be unreasonably withheld or delayed). In the case of any assignment, the assigning party shall remain financially responsible for the performance of the assigned obligations.

10.4 Injunctive Relief. Nothing in this Agreement is intended to or should be construed to prohibit a party from seeking preliminary or permanent injunctive relief in appropriate circumstances from a court of competent jurisdiction.

10.5 Legal Action. Any legal action arising in connection with this Agreement must be filed within one (1) years after the cause of action accrues, or it will be deemed time-barred and waived. The parties waive any statute of limitations to the contrary.

10.6 Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Seller shall be sent to the attention of the Consulting Contracts Manager.

10.7 Governing Law. This Agreement will be governed by the law of the State of California, without regard to its conflict of law principles, unless a regulatory agency with jurisdiction over the applicable Service applies a different law. The United Nations Convention on Contracts for International Sale of Goods will not apply.

10.8 Compliance with Laws. Each party will comply with all applicable laws and regulations and with all applicable orders issued by courts or other governmental bodies of competent jurisdiction.

10.9 No Third Party Beneficiaries. This Agreement is for the benefit of Customer and PROTELESIS and does not provide any third party (including Users) the right to enforce it or to bring an action for any remedy, claim, liability, reimbursement or cause of action or any other right or privilege.

10.10 Entire Agreement. This Agreement and its Addendum and/or Sales Order Quote constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals, prior discussions and writings between the parties with respect thereto. The terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement, which is in addition to, or inconsistent with the terms and conditions of this Agreement shall not be binding on Seller.

10.11 Modifications. The parties agree that this Agreement cannot be altered, amended or modified, except in writing, which is signed by an authorized representative of both parties.

10.12 Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.

10.13 Trademarks. Each party agrees not to display or use, in advertising or otherwise, any of the other party’s trade names, logos, trademarks, service marks or other indicia of origin without the other party’s prior written consent, which consent may be revoked at any time by notice.

10.14 Independent Contractor. Each party is an independent contractor. Neither party controls the other, and neither party nor its Affiliates, employees, agents or contractors are Affiliates, employees, agents or contractors of the other party under this Agreement.

11. Definitions

11.1 “Addenda/Addendum” Applies to this Agreement and any Addendum any document, including but not limited to Customer purchase orders, service agreements, terms and conditions specific to a product or service, that is attached hereto at the time this Agreement is executed, or later attached after written approval by both Customer and PROTELESIS.

11.2 “Affiliate” of a party means any entity that controls, is controlled by or is under common control with such party or has a contractual relationship with a party to provide services on behalf of such party.

11.3 “Damages” means collectively all injury, damage, liability, loss, penalty, interest and expense incurred.

11.4 “Purchased Equipment” means equipment or other tangible products Customer purchases under this Agreement, including any replacements of Purchased Equipment provided to Customer. Purchased Equipment also includes any internal code required to operate such Equipment. Purchased Equipment does not include Software but does include any physical media provided to Customer on which Software is stored.

11.5 “Site” means a Customer’s physical location, including a collocation space on PROTELESIS’s or its Affiliate’s property, where PROTELESIS delivers and/or installs Purchased Equipment or provides a service at the request of Customer.

This Agreement and any attached Addendum and/or Sales Order Quote form the entire Agreement.