Master Services Agreement

Master Services Agreement – Enterprise v2

Last Updated May 22, 2018 (version 2.0)

THIS MASTER SERVICES AGREEMENT (“AGREEMENT” OR “MASTER AGREEMENT”) GOVERNS YOUR (“CUSTOMER”) ACQUISITION, DEPLOYMENT, AND USE OF OUR SERVICES. ACCEPTING THIS MASTER AGREEMENT, BY CHECKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM THAT REFERENCES THIS MASTER AGREEMENT, AND/OR UTILIZING THE SERVICES, INDICATES CUSTOMER’S AGREEMENT TO THE TERMS HEREOF. IF CUSTOMER ENTERS INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT USE THE SERVICES.

Customer represents and warrants that it is not a direct competitor of STORMSOURCE, LLC (dba DaySmart Appointments), and Customer may not access the Services if Customer is a direct competitor of STORMSOURCE, except with prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1. SERVICES AND LICENSES

1.1 Scope. STORMSOURCE will perform the services, deliver the Deliverables, and/or provide software and account access and use (software as a service license) as specified in the applicable Order Form(s) (collectively referred to as the “Services”). Other than as expressly set forth in the applicable Order Form(s), Customer may not resell, lease or sublicense the Services or STORMSOURCE Supplied Software.

1.2 Change of Scope or Additional Services. Scope may be changed by mutual execution of a new Order Form.

2. FEES AND PAYMENT

2.1 Order Form. Customer shall order the Services by completing and signing an Order Form. STORMSOURCE shall accept or reject such Order Form within fifteen (15) days. Each accepted, fully executed Order Form shall be deemed to become incorporated herein by reference as if attached and made an integral part of this Agreement. In the event that Customer’s business practices require a purchase order number be issued prior to payment of any STORMSOURCE invoice issued pursuant to an Order Form, then such purchase order number must be provided to STORMSOURCE prior to the Effective Date of such Order Form. Customer’s execution and return of applicable Order Form to STORMSOURCE without designating a purchase order number shall be deemed an acknowledgement that no purchase order number is required for payment of invoices hereunder. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing that Customer may provide to STORMSOURCE or use in connection with the procurement of Services (or any software) from STORMSOURCE will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of STORMSOURCE to object to such terms, provisions or conditions

2.2 Fees and Charges. Customer and STORMSOURCE shall agree upon and specify Fees and Charges in the applicable Order Form(s). Customer agrees to pay STORMSOURCE for the Services in accordance with the Order Form(s) and this Agreement.

2.3 Payment. Customer agrees to pay STORMSOURCE all fees as specified in the applicable Order Form(s). All amounts payable under this Agreement shall, unless otherwise specifically set forth in a related Schedule, be payable in full within thirty (30) days of the date of the invoice, in United States dollars at the address of STORMSOURCE specified in the Order Form. STORMSOURCE reserves the right to charge interest at the rate of 1.5% per month (18% per annum), or the highest rate allowed by applicable law, whichever is lower, if payment in full is not received within thirty (30) days of the date due. In addition, if payment is not made in a timely manner, STORMSOURCE reserves the right to suspend access to the Services, upon 30 days written notice issued after the expiration of the missed payment period. Customer agrees to pay any costs of collection (including reasonable legal and professional fees) incurred in collecting any amounts due hereunder.

2.4 Taxes. Customer shall pay all United States and foreign sales, use, value added, and other taxes and duties, of whatever nature, federal, state, provincial, or otherwise, which are levied or imposed by reason of this Agreement or any of the Services. Customer shall promptly pay STORMSOURCE for any such taxes and duties actually paid by STORMSOURCE on behalf of Customer or which are required to be collected or paid by STORMSOURCE. STORMSOURCE shall notify Customer within a reasonable time in the event that new taxes become applicable to the Order Form and any such taxes shall be detailed in a separate line item to Customer. Notwithstanding the foregoing, Customer will not pay for any taxes on STORMSOURCE’s income, property and employees.

3. PROPRIETARY RIGHTS

3.1 Proprietary Rights. Subject to the limited rights expressly granted hereunder, STORMSOURCE reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Code modifications to the Services, if any, whether under a Professional Services request or other agreement shall always remain the exclusive property of STORMSOURCE and may at the option of STORMSOURCE be made available as part of the StormSource base code.

3.2 Mutual Indemnification Obligations. To the extent permitted by applicable law, each party shall indemnify and defend the other as provided for in this Section 3.2 against any third party claim against a party (i) that any hardware, software, data, or other material provided by the other party pursuant to this Agreement constitutes an infringement or misappropriation of any third party’s copyright, United States patent, trade secret, trademark, or similar proprietary rights; or (ii) that any hardware, software or other materials provided by the other party is not properly licensed for the use contemplated by this Agreement. All such claims will be handled as follows: The party providing the allegedly infringing material will defend or settle such claim at its sole expense, and indemnify the other party against any damages and costs awarded by a court of final jurisdiction in an action relating such claim or pursuant to a settlement agreement, provided the other party notifies the indemnifying party promptly in writing of the claim, permits the indemnifying party to control the defense or settlement, and cooperates fully with the indemnifying party in such defense and settlement.

3.3 Restrictions. Customer agrees that the STORMSOURCE Supplied Software contains trade secrets and other proprietary information owned by STORMSOURCE. Customer shall use the STORMSOURCE Supplied Software solely for the purpose of utilizing the Services provided hereunder.

4. CUSTOMER DATA AND CONFIDENTIAL INFORMATION.

4.1 Customer Data. All Customer data received, computed, developed, used or stored pursuant to this Agreement shall be the exclusive property of Customer and shall be considered Confidential Information owned by Customer. Customer is solely responsible for the adequacy and accuracy of Customer data. STORMSOURCE may access such data solely for the purpose of delivering and/or supporting the Services, and such access shall be limited to authorized STORMSOURCE personnel. At termination and upon written request of Customer, STORMSOURCE shall perform a data export and provide Customer with a copy of the Customer Data (appointments and end-users) at Customer’s expense. Customer may also export such data at any time through the Reports functionality.

4.2 Confidential Information. “Confidential Information” means any information and data, including intangible, electronic or other form, of STORMSOURCE or Customer that is identified as confidential or proprietary at the time of disclosure or which should be understood to be confidential by the nature of the information or the circumstances of the disclosure. Confidential Information shall include without limitation Services, products, Customer data, business plans, strategies, technology, software, documentation, methodologies, know-how, technical information, financial information, information regarding each party’s operations, business relationships and the terms of this Agreement. Confidential Information shall not include any information which: (a) is known to the receiving party prior to receipt hereunder from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes lawfully known (independently of disclosure by the disclosing party) to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement; or (d) is independently developed by the receiving party without use of the Confidential Information. The receiving party agrees that it will not use the Confidential Information of the disclosing party in any way, for its own account or the account of any third party, except for the purpose of performing this Agreement, nor will the receiving party disclose the Confidential Information of the disclosing party to any third party except as required by law. In the event that either party is required by law to make any disclosure of any Confidential Information, by subpoena, judicial or administrative order or otherwise, such party must first give written notice of such requirement to the other party, and must permit such party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance in seeking to obtain such protection. The STORMSOURCE Data Privacy Statement is available at https://www.daysmartappointmen…, and its terms are incorporated herein by reference.

4.3 Disaster Recovery. STORMSOURCE maintains a Backup and Disaster Recovery Plan, a summary of which is available online at https://www.daysmartappointmen…, and incorporated herein by reference. The Plan Summary describes STORMSOURCE’s general backup and disaster recovery procedures. In the event of disaster, STORMSOURCE will perform disaster recovery on a best efforts basis and will communicate with the Customer on a daily basis as to the status of the recovery process. STORMSOURCE may provide Customer with additional disaster recovery planning and implementation services, upon Customer’s request, as a billable service.

4.4 Backup Procedures. STORMSOURCE maintains Backup Procedures that provides daily and incremental backups of Customer data and application configuration information. Backups are encrypted and maintained at redundant hosting facilities. STORMSOURCE maintains at least two (2) weeks of rotating backups.

4.5 Data Security Practices. STORMSOURCE maintains a Data Security Statement, a summary of which is available at https://www.daysmartappointmen…, and incorporated herein by reference. This Plan describes general procedures and practices employed by STORMSOURCE.

5. WARRANTIES, disclaimers and limited remedies

5.1 Warranty. STORMSOURCE warrants that the Services will perform as described in its published documentation in all material respects and in accordance with the terms and conditions of this Agreement.

5.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SCHEDULE TO THIS AGREEMENT, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY EITHER PARTY, AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. STORMSOURCE DISCLAIMS ALL WARRANTIES AND INDEMNITIES WITH REGARD TO THIRD PARTY HOSTING SERVICES. STORMSOURCE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, IF ANY, WITH RESPECT TO HIPAA, ADA OR SIMILAR LAWS AND REGULATIONS UNLESS SPECIFICALLY SET FORTH HEREIN OR IN AN ATTACHED SCHEDULE HERETO.

6. TERMINATION

6.1 Term. This Agreement commences on the date Customer accepts it and continues until all Customer subscriptions granted in accordance with this Agreement and applicable Order Forms have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

6.2 Termination of the Agreement. Either party may terminate this Agreement (including all Schedules hereto) by written notice to the other party if there occurs a Bankruptcy Event with respect to the other party.

6.3 Termination of Schedules for Default. Either party may terminate this Agreement, Schedules and an Order Forms by written notice to the other party (i) if the other party fails to observe or perform or defaults on any material term or condition of the Order Form, Subscription, Schedule or this Agreement, and does not cure such default or failure within thirty (30) days after written demand by the first party specifying the nature of the default in reasonable detail and stating such party’s intention to terminate; provided, however, that such written demand must be sent within thirty (30) days of the event or such right to terminate shall be deemed waived, unless such default is continuing; or (ii) otherwise as expressly provided in the Order Form, Schedules, or Agreement. The failure to pay amounts owed under an Order Form when due shall be considered a material default.

6.4 Effect of Termination. Upon termination of the Agreement, all rights and obligations of the parties under the terminated Schedule shall cease, except for those rights and obligations that by the terms of this Agreement or the nature of the right or obligation survive termination. Termination will not relieve either party of any obligations that arose prior the effective date of the termination. Upon termination of this Agreement, (i) Customer must cease using any terminated Services and/or STORMSOURCE Supplied Software; (ii) each party will return to the other party any Confidential Information of the other; (iii) each party will return to the other any Software or other property of the other party in its possession; (iv) STORMSOURCE will provide Customer with back-up media containing Customer data in accordance with this Agreement; and (v) STORMSOURCE will provide, at Customer’s expense, reasonable termination/expiration assistance requested by Customer to facilitate the orderly transfer of Services and migration of Customer’s data and Customer Supplied Software to Customer or another third party provider. Customer shall pay STORMSOURCE all amounts owed under the Order Forms, Schedule and Agreement through the effective date of the termination. In the event that Customer terminates a Schedule or this Agreement other than as expressly permitted herein or in the event that STORMSOURCE terminates this Agreement as a result of a material default by Customer, Customer shall be obligated to pay any fees owing through the end of the then current term under the terminated Order Form (i.e. either the Initial Period or the Renewal Period as applicable).

7. LIMITATION OF LIABILITY.

7.1 Limitation of Liability. IN NO EVENT SHALL STORMSOURCE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF PROFITS OR BODILY INJURIES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SERVICES OR ANY STORMSOURCE SUPPLIED SOFTWARE, OR THIRD PARTY SOFTWARE EVEN IF STORMSOURCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL STORMSOURCE HAVE LIABILITY IN THE AGGREGATE UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF THE ACTION FOR ANY AMOUNT IN EXCESS OF THE TOTAL AMOUNTS PAID BY CUSTOMER DURING THE FULL INITIAL TERM OF THE ORDER FORM SUBSCRIPTION.

7.2 Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that STORMSOURCE has set its prices and the parties have entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose.

8. GENERAL

8.1 Technical Requirements. The technical requirements and supported browsers for use of the web-based software services supplied by STORMSOURCE are set forth in “Technical Requirements” section of the standard Terms and Conditions: https://daysmartappointments.com/terms. STORMSOURCE reserves the right to update the supported “Technical Requirements” section from time to time as published at https://www.appointment-plus.c…. STORMSOURCE also reserves the right to make changes, modifications and enhancements to the Service from time to time.

8.2 Relationship of Parties. Nothing in this Agreement will be construed to imply a joint venture, partnership, or agency relationship between the parties, and STORMSOURCE will be considered an independent contractor when performing Services under this Agreement.

8.3 Non-STORMSOURCE Providers and Integrations. All applications and interoperations referenced in this section are elected and enabled, and authorized at the sole option of Customer. In the event that Customer elects to utilize any such applications and interoperations, the terms in this Section 8.3 apply.

8.4 Mobile Access. The Services include optional access to the administrative control panel via STORMSOURCE mobile platforms (i.e. iPhone and Android), collectively referred to as “Mobile Access”. Customer has the option via account settings to enable mobile access for its administrative (staff) users. If Customer chooses to enable Mobile Access for its administrative users, all such Mobile Access and use, including service levels (if any), shall be expressly subject to the applicable Mobile Order Form required of each mobile user (app download). While STORMSOURCE strives to maintain concurrent functionality between its web and mobile platforms, STORMSOURCE does not guarantee that all web features are available on the mobile platform. Customer shall test all mobile usage requirements prior to execution of the Order Form.

8.5 Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of the permitted successors and assigns of each party. Neither party shall not have the right to assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided that either party may, without obtaining written consent, assign this Agreement to a successor in interest in the event of a change of control resulting from a merger, sale of stock or sale of substantially all of the assets of that party.

8.6 Affiliates and Contractors. Customer may extend the terms of this Agreement to its Affiliates (entities that control, are controlled by or under common control with Customer) subject to the payment of additional fees based on number of locations, appointments, users, increased requirements for the hosting environment as further specified in an SLA or other increased requirements that increase the cost of delivery of Services by STORMSOURCE as mutually agreed by the parties. Customer shall be responsible for ensuring that its Affiliates and authorized third party contractors comply with the terms and conditions of this Agreement and Customer shall be liable for the acts and omissions of such parties. STORMSOURCE shall have the right to use subcontractors in delivering the Services. STORMSOURCE will be responsible for the Services performed by its subcontractors.

8.7 Complete Understanding; Modification. This Agreement constitutes the entire agreement between the parties relating to its subject matter and this Agreement supersedes all prior agreements and understandings between the parties and may not be changed unless mutually agreed upon in writing by both parties. No different or additional terms set forth in a purchase order or other communication will be binding on STORMSOURCE unless STORMSOURCE specifically agrees in writing to such different or additional terms. STORMSOURCE reserves the right to change the terms and conditions of this Agreement, the Schedules, or its policies relating to the Services and shall notify Customer in accordance with the “Notices” provision hereof. Such changes shall supersede the prior versions upon continued use.

8.8 Schedules. A Schedule may add additional terms and conditions. The parties agree that a Schedule may modify the Master Agreement to the extent that such Schedule expressly amends the Master Agreement and such amendment shall apply only to such Schedule. Except as provided above, in the event of any conflict or inconsistency between the provisions of the Master Agreement and those of a Schedule, the Master Agreement shall prevail.

8.9 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or any indemnifiable claim). Billing-related notices to Customer shall be addressed (mail or email) to the relevant billing contact designated by Customer.

8.10 GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ARIZONA, USA, INCLUDING ITS CONFLICT OF LAW RULES. IN ADDITION, EACH PARTY HERETO FOR SUCH PARTY AND SUCH PARTY’S SUCCESSORS AND ASSIGNS AGREES THAT THE STATE OF ARIZONA SHALL BE THE EXCLUSIVE VENUE (TO THE EXTENT THAT SUBJECT MATTER JURISDICTION EXISTS) FOR ALL CAUSES OF ACTION ARISING OUT OF THIS AGREEMENT. THIS CONSENT SHALL NOT BE DEEMED A WAIVER OF THE RIGHT TO REMOVE ANY LITIGATION TO A FEDERAL COURT IN ARIZONA. STORMSOURCE AND CUSTOMER AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.

8.11 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

8.12 Force Majeure. Except with respect to any payment obligations, neither party will be liable for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control (“Force Majeure”), and, except as otherwise provided in a Schedule attached hereto, will be entitled to a reasonable extension of time to remedy any such delay or failure to perform.

8.13 Export. Customer shall be responsible for complying with any applicable export laws, rules or regulations relating to Customer’s use of the Services at the Customer premises or locale. STORMSOURCE shall be responsible for complying with any applicable export laws, rules or regulations relating to the delivery of STORMSOURCE’s Services at STORMSOURCE premises.

8.14 Waiver or Failure to Act. Except as expressly stated herein, the waiver or failure of either party to exercise in any respect any right provided for such party in this Agreement shall not be deemed a waiver of any further right hereunder.

8.15 No Hire Clause. During the term of the Agreement, and for a period of twelve (12) months thereafter, neither party nor its affiliates will solicit any employee of the other party or any of its affiliates to become an employee of, or consultant or subcontractor to the other party or any of its affiliates. If there is a breach of the foregoing provisions, the non-breaching party shall be entitled to be paid, on demand, as liquidated damages and not as a penalty, an amount equal to the annualized base salary and other regular compensation being paid to such employee as of the date of the termination of his or her employment with such party or its affiliate. The amount of damages, which would be suffered as a result of a breach of the foregoing provisions of this Section, would be difficult to measure and such payment amount constitutes reasonable.

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