Master Service Agreement
ANY REFERENCE TO “COMPANY” WITHIN THIS AGREEMENT SHALL BE UNDERSTOOD TO MEAN INSYNC BUSINESS GROUP, LLC.
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE USING COMPANY’S SERVICES. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE CLOSE YOUR BROWSER AND DO NOT PROCEED WITH USING THE SERVICES.
This Master Service Agreement is by and between Company and the individual, corporation, partnership, association, joint-stock company, trust, unincorporated organization, or government or political subdivision which is utilizing Company’s hosting and/or other services provided hereunder (“You”).
In consideration of the mutual promises, covenants and agreements hereinafter set forth, Company and You agree as follows:
1. Lawful Use of the Services. You agree to use Company’s hosting and/or other services provided hereunder (the “Services”) only for lawful purposes. In the event that Your use of the Services violates any law, rule or regulation, Company shall have the right to immediately terminate this Agreement.
2. Provision of Services. Company agrees to provide the Services to You in accordance with the Service Level Agreement applicable to the purchased service. You hereby agree to comply with the terms and conditions of this Master Services Agreement and corresponding documents referenced above (collectively, this “Agreement”). YOU SHALL AT ALL TIMES PROVIDE AND KEEP CURRENT AND UP TO DATE YOUR CONTACT, CREDIT CARD, IF APPLICABLE, AND BILLING INFORMATION ON THE CLIENT PORTAL.
3. Term and Termination.
a. Term. Unless defined otherwise between the Company and You, the following shall apply: The Agreement term is either the Initial Term or Renewal Term (each, a “Term”) as defined herein. The Initial Term is defined as the period from the date of Your initial payment or execution of this Agreement, whichever occurs earlier, through the remainder of the calendar month or year in which this Agreement was executed. The Renewal Term is defined as one calendar month or year beginning at the end of the Initial Term and each subsequent calendar month or year thereafter.
b. Automatic Renewal. This Agreement shall renew automatically at the end of the prior Term unless terminated in accordance with this Agreement either by You or by Company. When a new Term begins, the then current Master Service Agreement and applicable Service Level Agreement shall replace in their entirety the previous Master Service Agreement and applicable Service Level Agreement. The then current Master Service Agreement and applicable Service Level Agreement shall be considered this “Agreement”. Please review the then current Master Service Agreement and applicable Service Level Agreement from time to time so that You will be apprised of any changes (http://insyncbusinessgroup.com/our-company/legal).
3.1. Termination by You without cause.
a. You may terminate this Agreement at any time without cause by following the termination procedure located within the Account section of the Client Portal prior to the beginning of any Renewal Term. If You terminate without cause prior to the end of the then current Term, Company shall not be required to refund to You fees already paid.
b. Refunds/Fees for Termination by You without cause. Fees for non-recurring services and set up fees shall not be refunded. Any fees previously waived or discounts applied may be reinstated if You terminate the account for no cause during the term or if You breach this Agreement.
3.2. Termination by Company without cause. Company may terminate this Agreement without cause by providing written or electronic mail notice of termination to Your Administrative email contact address not less than fifteen (15) calendar days prior to the effective termination date.
3.3. Termination for Cause.
a. By You. To terminate Your account for Company’s violation of the terms of this Agreement or the applicable Service Level Agreement, You shall provide to the Company’s Administrative Contact in writing, via email or via certified mail, the details of the Company’s violation and allow Company thirty (30) days to cure any such violation prior to termination of Your account.
b. COMPANY MAY TERMINATE SERVICES TO YOU IMMEDIATELY AND WITHOUT PRIOR NOTICE (TERMINATION FOR CAUSE) FOR ANY OR ALL OF THE FOLLOWING REASONS:
1). ANY MATERIAL BREACH OF THIS AGREEMENT, WHICH INCLUDES BUT IS NOT LIMITED TO FAILURE TO MAKE PAYMENT WHEN DUE, VIOLATION OF THE COMPANY’S ACCEPTABLE USE OR NO SPAM POLICIES; OR ANY NON-MATERIAL BREACH OF THIS AGREEMENT WHICH REMAINS UNCURED BEYOND A REASONABLE TIME AFTER BREACH NOTIFICATION; AND FAILURE TO PROVIDE AND KEEP CURRENT ALL ADMINISTRATIVE CONTACT AND BILLING INFORMATION.
2). IN THE EVENT OF TERMINATION FOR CAUSE, COMPANY SHALL NOT REFUND ANY PAID FEES. TERMINATION FOR CAUSE WILL NOT CANCEL OR WAIVE ANY FEES OWED TO COMPANY PRIOR TO ACCOUNT TERMINATION.
3.4. Following Termination. TERMINATION OF YOUR ACCOUNT WILL NOT CANCEL OR WAIVE ANY FEES OWED TO COMPANY PRIOR TO OR UPON TERMINATION. YOUR DATA AND ACCOUNT SETTINGS SHALL BE IRREVOCABLY DELETED IMMEDIATELY UPON TERMINATION, INCLUDING BUT NOT LIMITED TO, WEB SITE CONTENT, DATABASES, AND EMAIL MESSAGES. IT SHALL BE SOLELY YOUR RESPONSIBILITY TO SECURE ALL NECESSARY DATA FROM YOUR ACCOUNT PRIOR TO TERMINATION.
4. Fees, Billing, Taxes, Charges.
4.1. Fees. The fees set forth in the order form created at the outset of Your account shall be effective for the Initial Term and each Renewal Term of this Agreement, provided, that Company shall have the right to increase these fees at any time upon thirty (30) days’ written notice to You. In the event that You do not agree with such fee increase, You shall have the right to terminate this Agreement upon thirty (30) days’ written notice, provided, that such notice of termination must be received within thirty (30) days of date of notice of the fee increase.
4.2. Billing and Payment Arrangements. Company will bill You on a monthly or yearly basis for all recurring and one-time fees, including but not limited to late payment fees, invoice processing fees and returned check fees.
4.3. Payment by Credit Card.
a. Unless otherwise agreed upon between You and the Company, it is understood that all payments will be made through the Company’s online payment system within the timeframe specified by the payment terms between You and the Company. The Company will send You a monthly or yearly invoice on the agreed upon billing date between You and the Company.
b. In the event You are unable to make an electronic payment within the agreed upon payment terms, You will be expected to make alternate payment arrangements with the Company before the deadline on your payment terms has been reached.
4.4. Payment by Other Method. Payment by other methods such as check, purchase order, etc. may be agreed upon between You and the Company. Acceptance into the Company’s invoice program shall be at Company’s sole discretion.
4.5. Payment Terms.
a. All invoices will reflect any activities, services, fees, etc. from the previous month or year only. If, after ten (10) days beyond the deadline referred to in your payment terms, Company may, at its discretion, apply a late fee to the existing invoice total. If, after thirty (30) days beyond the deadline referred to in your payment terms, Company has not received payment, Company may suspend Your access to the Services. During this suspension, incoming email as well as existing data will not be affected. After forty five (45) days of non-payment beyond the deadline referred to in your payment terms, Company shall have the right to immediately terminate this Agreement to include permanently deleting all associated stored data, accounts and access.
b. Unless otherwise agreed upon between You and the Company, it is understood that Your payment terms will due upon the due date listed on your invoice. If no due date is listed, then the payment terms are assumed to be Due Upon Receipt. Due Upon Receipt refers to the issuance of the invoice and not the acceptance of it.
4.6. Excess use. You shall monitor and maintain Your accounts within all plan-specified limits and in a manner that does not disrupt the activities of other Company customers. In the event Your usage exceeds the limits for Your account or may disrupt the activities of other Company customers, You agree Company may, in its sole discretion, (i) charge You for such excess usage via Your credit card, or by invoice if You have been accepted into a check paying program, (ii) upgrade You to a plan or increase the limits on Your account to address this excess usage, and/or (iii) suspend or terminate Your account for cause. Usage and associated charges for excess usage shall be determined based solely upon Company’s collected usage information. Unused monthly allotments shall not accrue or carry over from one month to any other month. Upon any upgrade or increase on the limits of Your Account, You shall be responsible for the new costs and fees.
4.7. Taxes. You shall be liable for taxes, governmental fees and assessments to be paid related to fees and charges arising under this Agreement or in connection with the Services. You shall also pay all taxes, fees, and assessments of any nature associated with products or services sold through the use of or with the aid of the Services.
5. Modification of Terms. Company may update, amend, modify or supplement the terms and conditions of this Agreement from time to time without notice to You. You can review the most current version of this Agreement at any time at: (http://insyncbusinessgroup.com/our-company/legal).
6. Beta Products and Services.
6.1. Provided “As Is”. THIS SECTION APPLIES ONLY TO CUSTOMERS WITH ACCOUNTS CREATED ON EXPERIMENTAL “BETA” PLANS AND PLATFORMS. “BETA” SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS. COMPANY’S SERVICE LEVEL AGREEMENT SHALL NOT APPLY TO “BETA” PLANS OR PLATFORMS. NOTWITHSTANDING ANYTHING ELSE SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE “BETA” PLANS OR PLATFORMS NOR DOES IT MAKE ANY REPRESENTATIONS AND WARRANTIES REGARDING THE INTEGRITY OF DATA STORED ON “BETA” SERVERS. YOU ARE STRONGLY DISCOURAGED FROM USING ACCOUNTS ON “BETA” PLANS OR PLATFORMS FOR HOSTING ANY PRODUCTION APPLICATIONS OR FOR STORING SENSITIVE DATA.
6.2. Upgrades. Company shall upgrade software on “beta” programs when and as Company deems necessary in its sole discretion. Company does not represent or warrant that new versions of the software installed on “beta” programs will be compatible with the currently installed version or that loss of functionality or interruption of service will not occur as a result of such upgrades.
6.3. Termination. Company reserves a right to terminate any “beta” program at any time by giving You fifteen (15) days written or electronic mail notice. Company will convert the “beta” servers at the end of the fifteen (15) day notice period to an Company’s Services Plan selected at Company’s sole discretion. To discontinue the account and avoid incurring increased charges under selected Company Services Plan, You must terminate the account in accordance with the termination provisions in Section 3 of this Agreement.
7. Materials, Data, Software or Products.
7.1. Server Ready. Any material, data, software or products You provide to Company in connection with Company’s services shall be Server Ready, meaning that they shall be in a condition and form, as determined solely by Company, which requires no additional manipulation or verification on the part of Company. Attempting to place or requesting placement of Non-Server-Ready material, data, software or products on Company’s servers shall be a breach of this Agreement.
7.2. Rejection. Company may, in its sole discretion, reject material, data, software or products that You have placed, attempted to place, or have requested be placed on Company’s servers. Company shall notify You of its rejection and provide You with an opportunity to amend or modify such material, data, software or products to meet the requirements of Company.
7.3. Malicious Code. Any material, data, software or products placed on Company’s servers by or through You shall be free of any and all malicious code, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, Trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact the servers.
8. LIMITED WARRANTY; LIMITATION OF DAMAGES.
8.1. COMPANY PROVIDES SERVICES “AS IS”. YOU EXPRESSLY AGREE THAT USE OF COMPANY SERVICES IS AT YOUR SOLE RISK. COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, VENDORS AND LICENCORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU HEREBY AGREE THAT THE TERMS OF THIS AGREEMENT SHALL NOT BE ALTERED DUE TO CUSTOM OR USAGE OR DUE TO THE PARTIES’ COURSE OF DEALING OR COURSE OF PERFORMANCE UNDER THIS AGREEMENT.
8.2. COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, VENDORS AND LICENCORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE, THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF SUCH DAMAGES OR THEIR POSSIBILITY.
8.3. You agree that the total liability of Company and its subsidiaries, affiliates, officers, employees, agents, partners, vendors and licencors and Your sole remedy for any claims regarding the Services is limited to the credits set forth in the applicable Service Level Agreement.
8.4. Company will exercise no control over the content of the information passing through Company’s network except those controls expressly provided herein.
9. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights.
9.1. Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to You. All right, title, and interest in any product or service provided to You, including without limitation any copyright, trade secret and vested or potential trademark and patent rights, is solely the property of Company and its vendors and licencors. You shall not reverse engineer, transfer, assign, copy, modify, reproduce or use any of product or service, hardware, software or otherwise which is provided in connection with the Services for purposes other than in conjunction with the permitted use of the Services.
9.2. You hereby represent and warrant to Company that You have the right to use any patented, copyrighted, trademarked or proprietary material which You use, post, or otherwise transfer to or by way of Company servers.
10. Hardware, Equipment, and Software. You are responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access the Services. Company makes no representations, warranties, or assurances that Your equipment will be compatible with Company services.
11. Indemnification. You shall defend, indemnify, save, and hold Company and its subsidiaries, affiliates, officers, employees, agents, partners, vendors and licencors harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against them that may arise or result from Your breach of this Agreement, Your negligence or willful misconduct or any of Your services or products.
12.1. Governing Law; Jurisdiction; Forum; Attorneys’ Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with this Agreement, to the exclusive jurisdiction and venue of the courts of Hampshire County, Massachusetts. In any action to enforce this Agreement, including, without limitation, any action by Company for the recovery of fees due hereunder, You shall pay Company reasonable attorneys’ fees and costs in connection with such action.
12.2. Age and Capacity. You hereby represent and warrant that You and any person to whom You grant access to Your Company account have reached the age of eighteen and that You are not subject to a limitation on Your ability to enter into this Agreement.
12.3. Severability. In the event that any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any of the other provisions of this Agreement, and this Agreement shall be construed as if such provision(s) had never been contained herein, provided that such provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
12.4. Waiver; Modification. No waiver by Company of any breach by You of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver shall be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing. No modification of this Agreement shall be effective unless it is in writing and signed by Company, and then only to the extent set forth in such writing. Company may modify or amend this Agreement, including the applicable Service Level Agreement and the rates and fees, from time to time. Unless otherwise provided in this Agreement, all such modifications or amendments shall be effective immediately upon posting on the Company Website. You may request a copy of the revised Agreement by e-mailing the Company’s administrative contact. YOUR CONTINUED USE OF YOUR ACCOUNT AND/OR THE SERVICES AFTER THE NOTICE PERIOD WILL BE CONCLUSIVELY DEEMED TO BE ACCEPTANCE BY YOU OF ANY SUCH MODIFICATIONS OR AMENDMENTS.
12.5. No Assignment. No benefit or duty under this Agreement shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void.
12.6. Force Majeure. Except for monetary obligations, this Agreement and Your obligations hereunder shall not be affected or impaired because Company is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of Force Majeure Event and Company’s obligations under this Agreement shall be suspended by any such Force Majeure Event. “Force Majeure Event” is defined as any cause beyond Company’s reasonable control or anticipation, including, without limitation, acts of war, acts of God, terrorism, earthquake, hurricanes, flood, fire or other casualty, embargo, riot, sabotage, labor shortage or dispute, governmental act, insurrections, epidemics, quarantines, inability to procure materials or transportation facilities, failure of power, restrictive governmental laws or regulations, condemnation, acts of third parties, failure of the Internet or other reason that is beyond Company’s reasonable control.
12.7. Survival. Sections 8, 9, 11 and this Section 12 of this Agreement shall survive termination.
12.8. Entire Agreement; Third Party Beneficiaries. This Agreement constitutes the entire agreement for provision of the Services to You and supersedes all other prior agreements and understandings, both written and oral, between You and Company with respect to the Services. You understand and agree that Company and You intend to include, as the sole third party beneficiaries of this Agreement, Company’s vendors and licencors, with all rights and remedies available as if such vendors and licencors were a party to this Agreement.
Revised February 1, 2016