Master Services Agreement
This Master Services Agreement (“MSA”) is between _________ ( a _______ corporation, referred to as “you,” “your,” or “Client”) with its principal place of business being located at ____________ and MotivIT Group, including but not limited to MotivIT, LLC, OnKeyIT Solutions, Manyi Information Technology (SH) Co., Ltd, SOLUTIONaaS and ZerOne Solutions ( a California corporation, referred to as “we,” “us,” “our” or “MotivIT”) with its principal place of business being located at 2880 Zanker Rd., Suite 203, San Jose, CA 95134.
1. SCOPE OF SERVICES
1.1. Service Contracts
In addition to our Services, we may provide you with products or services (e.g., computer hardware or cloud software) that are sold or provided by third-party vendors or service providers (“Third-Party Products and Services”). The term “Services” is used in this MSA to refer to the services ordered by you and encompasses both Services and/or Third-Party Products and Services, as applicable.
Services may be ordered and shall be provided pursuant to an Estimate, Proposal, Sales Order, Scope of Work, Pricing Addendum, Order Form, or similar document (an “Order”) that describes the Services to be provided and the fees for those Services. Each Order (together with this MSA) creates an agreement for the provision of Services (a “Service Contract”) between the Client and the affiliate or subsidiary of MotivIT Group that signs the Order (referred to as “we,” “us,” “our” or “MotivIT”). A Service Contract shall not be binding on, nor impose any obligations upon, MotivIT Group or any affiliate or subsidiary that is not a signatory to the Order.
If an Order describes more than one type of Service, then it shall be deemed to create separate Service Contracts with respect to each of the individual types of Services. The termination or expiration of one Service Contract shall not affect other Service Contracts originating from the same Order.
In interpreting a Service Contract, the terms of the Order shall be controlling over the terms of this MSA, but only with respect to technical specifications, pricing, and other project details shall be controlling over the terms of this MSA.
Except for Supplemental Services or Project Services (described below), and unless otherwise agreed in writing, the services we will deliver to you are limited to those Services specifically identified in the Order.
1.2. Supplemental Services
“Supplemental Services” are limited, additional services that you may request on a “one-off” or emergency basis that are not included within the scope of a Service Contract. You agree to pay for any Supplemental Services that you request on a time-and-materials basis at MotivIT’s regular hourly rates, as reflected in the then-current rate sheet applicable to MotivIT customers generally.
1.3. Project Services
In some cases, you may ask us to deliver services outside the scope of any Order that is greater in scope than Supplemental Services. Examples of such services include major system upgrades, new computers, machine or device setup, network changes, data center moves or setups, or installations. In those cases, we will prepare a separate Order for Project Services describing the proposed scope of those services and our fees to deliver them. If a Service Contract for the performance of Project Services is entered into and the Client subsequently cancels the project prior to its completion, then MotivIT shall be entitled to be paid for all work performed through the date of cancellation. If the project was to be performed for a fixed fee, then MotivIT shall be entitled to be paid an amount proportional to the amount of work performed through the date of cancellation, rounded up to the next quarter (i.e. 25%, 50%, etc. of the fixed fee), the minimum payment amount being 25% of the fixed fee.
2. FEES AND PAYMENT
2.1. Service Fees
In consideration of the Services, you agree to pay to MotivIT the fees set forth in the applicable Order. In the absence of a written agreement with respect to fees, Services will be performed on a time-and-materials basis at MotivIT’s then-current rates. Invoicing will commence on the service start date. If a service begins in the middle of the month, MotivIT will pro-rate the fees accordingly for that initial period. Services may be canceled or terminated (as permitted by the terms of the Service Contract) only at the end of a monthly billing cycle.
2.2. Out-of-Pocket Expenses
Client shall pay the reasonable out-of-pocket expenses, including out-of-service-area travel expenses, lodging, meals, and other similar expenses, incurred by MotivIT in performing the Services. Any such expenses will be billed at cost and invoiced monthly. Any such expenses will be approved in writing in advance by Client prior to being incurred by MotivIT.
2.3. Payment Terms
The Client agrees to receive invoices via email and shall pay the full invoiced amount within thirty (30) business days of receipt (the “Payment Deadline”). If payment is not received by the Payment Deadline, interest at a rate of three percent (3%) per month, or a minimum of $50 (whichever is greater), will be applied 15 days after the due date. Interest will compound after 30 days on any outstanding balance.
2.4. Fee Disputes
If you dispute in good faith all or any portion of the amount shown on an invoice, or if you otherwise believe you are entitled to an adjustment of an invoiced amount, you must notify us in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If we are unable to resolve the issue prior to the Payment Deadline, you shall nevertheless pay the entire invoiced amount by the Payment Deadline. If we ultimately determine that such amount should not have been paid, we shall apply a credit equal to such amount against any fees owed for the following month.
2.5. Taxes, Regulatory Fees, Etc.
All charges and fees owed pursuant to any Service Contract are exclusive of any applicable sales, use, excise, or service taxes that may be assessed on the provision of the Services. In the event that any such taxes are assessed on the provision of any of the Services, you shall pay the taxes directly to the taxing authority or shall reimburse us for their payment. MotivIT shall have the right to pass through to you the amounts of any regulatory fees, surcharges, and/or similar charges imposed by law or otherwise required to be paid in connection with the provision of the Services.
2.6. Means of Payment
Except in instances in which payment by credit card is required, payment shall be made by (a) check; (b) wire transfer, ACH, or similar electronic funds transfer, or (c) at the Client’s option, by means of credit card, provided that MotivIT shall, to the extent permitted by law, have the right to collect from Client a convenience fee in an amount equal to the amount of any credit card processing fee(s) actually incurred by MotivIT.
2.7. Adjustment of Fees Based on Level of Usage
2.7.1. Usage Parameters
An Order for Services may set forth counts or other parameters (e.g. number of servers or other devices to be supported, number of users or software licenses, amount of storage space to be made available for backup, etc.) upon which the pricing for the Services is based. These are referred to as “Usage Parameters”.
2.7.2. Increases in Usage
If there is an increase in the level of the Client’s usage of the Services, growth in the size of the Client’s business or network, and/or the Client otherwise exceeds the Usage Parameters set forth in a Service Contract, then the fee for the Services will be increased by an amount equal to the difference between the then-current fee for the agreed-upon level of usage and the then-current fee for the Client’s actual, higher level of usage. In this regard:
a) The Client shall pay the increased fee for the Services retroactively to the monthly billing cycle during which the Client’s usage first exceeded the Usage Parameters.
b) There will be no proration of monthly fees (i.e., regardless of the day during a monthly billing cycle when the increased usage first occurred, billing for the entire month will be based on the higher level of usage).
c) With respect to Third-Party Products and Services, any count or other measurement of the level of the Client’s usage by the third-party vendor or service provider will be binding on the Client.
2.7.3. Decreases in Usage
If the Client has committed to a Service Contract for a fixed term, then there will be no reductions in the fees payable by the Client based upon a reduction in usage below the agreed-upon Usage Parameters. If the Service in question is being provided pursuant to a Service Contract with a recurring term, then fees will be adjusted subject to the following:
a) A request for a reduction in fees based on decreased usage must be made in writing by means of an e-mail message to invoice@motivit.com.
b) A request must be received at least thirty (30) business days in advance.
c) Reductions will be made only as of the beginning of a monthly billing cycle (i.e. there will be no prorating or partial months).
d) No retroactive reductions will be made.
2.8. Adjustment of Fees Based on Complexity
If there is an increase in the scale or complexity of the Client’s business or network (e.g. the addition of new office locations, the inter-operation of different products, services, or technologies, the use of specialized or uncommon hardware or software, etc.) that results in a material increase in the efforts or costs required to be incurred by MotivIT in order to provide the Services, then MotivIT shall have the right to increase, in a commercially reasonable manner, the amounts of any relevant fixed, per-unit or other fees that don’t adequately reflect the increased scale or complexity. MotivIT shall provide at least thirty (30 days) written notice of the beginning of the monthly billing cycle with respect to which any such fee increases will take effect and, if the Client is unwilling to accept such fee increases, then MotivIT shall have the right to terminate any affected Service Contracts as of the end of the prior monthly billing cycle.
2.9. Price Increases
2.9.1. Annual Increases with Respect to Services
Except as set forth in the applicable Order or otherwise agreed by the parties in writing, the fees for Services provided pursuant to a Service Contract with a fixed term shall be subject to an annual increase of not more than ten (10%) percent with respect to each year of the initial term after the first and each renewal year. The foregoing shall not be construed to limit the right of a party not to renew or to propose a different pricing arrangement as a condition of renewal.
2.9.2. Increases in the Prices of Third-Party Products and Services
MotivIT shall have the right to pass through to the Client any increases in the prices of Third-Party Products and Services, provided that MotivIT shall provide at least sixty (60) business days written notice of the beginning of the monthly billing cycle with respect to which any such price increases will take effect (or the maximum amount of notice reasonably possible in light of the timing of the notice from the third-party vendor or service provider) and, if the Client is unwilling to accept such price increases, then the Client shall have the right to terminate any affected Service Contracts as of the end of the prior monthly billing cycle.
3. TERM
3.1. MSA
This MSA is effective as of the date of execution and will remain in effect until terminated by one of the parties. Either party may terminate this MSA for any reason or no reason upon at least thirty (30) business days’ advance written notice, provided, however, that termination of this MSA will not, by itself, result in the termination of any Service Contract, and this MSA will remain in effect notwithstanding any notice of termination unless and until all Service Contracts are terminated or expire according to their terms. This serves as the default agreement unless a separate MSA has been duly signed by both parties.
3.2. Individual Service Contracts
Service Contracts are entered into for either a fixed term (for example, one year) or for a recurring term (as described in Section 3.4). The term of each Service Contract shall be as set forth in the applicable Order. If no term for the Services is specified in an Order, then the initial term of the Service Contract shall be twelve (12) months. If Services are provided on an ongoing basis in the absence of a specified term, or if Services continue to be provided after a Service Contract has expired or been terminated, then the Services will be deemed to be provided on the basis of a recurring term (for purposes of clarity, this sentence shall not apply to a Service Contract that includes a renewal provision unless Services continue to be provided despite a party’s having given notice of intention not to renew).
3.3. Commencement of Contract Term
A Service Contract shall commence on the date on which MotivIT begins providing Services, unless such date is a day other than the first day of a calendar month, in which case, (a) the contract shall commence on the first day of the first full calendar month following the date on which MotivIT began providing the Services and (b) the Client shall pay to MotivIT, in addition to the Monthly Service Fees (as set forth in the Order) for the first month of the contract term, a pro rata portion of the Monthly Service Fees on account of the preceding partial month during which MotivIT began to provide the Services. The commencement date of the contract term shall be set forth in MotivIT’s first invoice for Monthly Service Fees.
3.4. Renewal of Contracts for a Recurring Term
A Service Contract with a recurring term shall remain in effect, and the Services shall continue to be provided and paid for each month until the Service Contract is terminated by one of the parties.
3.5. Renewal of Contracts for a Fixed Term
A Service Contract with a fixed term shall be automatically renewed for successive renewal terms unless a party gives written notice of its intention not to renew at least thirty (30) days prior to the expiration of the initial term or the then-current renewal term. If the initial term of the Service Contract is shorter than twelve (12) months, then the length of each renewal term shall be equal to the length of the initial term. If the initial term is twelve (12) months or longer, then the length of each renewal term shall be equivalent to the length of the initial term.
4. TERMINATION
4. TERMINATION
4.1. Termination of Contracts for a Recurring Term
A Service Contract with a recurring term may be terminated by either party, for any reason or no reason, upon thirty (30) business days advance written notice. The effective date of any termination must be the last day of a monthly billing cycle.
4.2. Termination of Contracts for a Fixed Term
4.2.1. Termination of Services
A Service Contract for the provision of Services over a fixed term may be terminated:
a) by either party if there is a material breach by the other party that is not cured within thirty (30) business days after written notice;
b) by the Client, if the agreement concerning response times, uptime or other performance objectives (“Service Levels”) with respect to the Services; and if the Order also sets forth circumstances (e.g. three (3) occasions during any period of twelve (12) months) that give rise to a right of termination on the part of the Client;
c) by MotivIT, if during any period of twelve (12) months, there are at least three (3) occasions on which there is a failure to comply with a written request by MotivIT for reasonable cooperation in connection with the provision of the Services, which requests may be made by e-mail and may pertain to the same or different matters (by way of example and without limitation, such matters may include a failure to follow recommended procedures or protocols in connection with the use of any products or services, a failure to implement reasonable security measures, a failure to provide access to Client’s site or a safe working environment, abuse of MotivIT personnel, or engaging in conduct that interferes with the performance by MotivIT of its obligations or makes such performance more costly or difficult);
d) by either party, in such other circumstances, if any
e) by either party, if it becomes apparent that the other party has become or threatens to become insolvent, has filed for bankruptcy protection, has had a receiver appointed, has called a meeting of creditors, or is otherwise affected by similar circumstances.
4.2.2. Termination of Third-Party Products and Services
A Service Contract for the provision of Third-Party Products and Services over a fixed term may be terminated prior to the expiration of the initial term or any renewal term only to the extent that there is an entitlement to terminate (whether by virtue of a failure to meet performance standards, the payment of an early termination fee by Client, or otherwise) under the terms of the agreement (“Third-Party Agreement”) pursuant to which the product or service in question is made available by the third-party vendor or service provider. An index of and links to such Third-Party Agreements may be found at www.motivit.com/tpa.
4.3. Termination for Violation of Acceptable Use Policy
The Client shall comply with MotivIT’s Customer Acceptable Use Policy (“CAUP”) and any CAUPs applicable to Third-Party Products and Services that are contained in or referred to in the applicable Third-Party Agreements. The Customer Acceptable Use Policy is included as Exhibit B and is attached hereto and incorporated herein by reference. MotivIT may terminate any Service Contract if there is a violation by the Client of an applicable CAUP and a failure by the Client to cure such violation within ten (10) days after written notice. In addition to its right to terminate a Service Contract, MotivIT shall have the right to suspend the affected Services immediately and without notice if required to do so by law, court order, or other legal requirement, or if the Services are used for purposes that are illegal; involve the distribution of viruses or other damaging computer code; involve the sending of “spam” email messages; violate the intellectual property or privacy rights of others; impair the use of the Services by others; threaten to impose liability on MotivIT or a third-party vendor or service provider; or otherwise involve conduct of a similarly serious nature.
4.4. Suspension of Services for Non-Payment
The Client will be provided with a non-payment notice at 15 and 30 days after the payment due date. A Client who fails to pay all amounts owed under a Service Contract when 45 days past the payment due date may have Services suspended until full payment is made. Following any suspension of Services under this provision, and after the Client makes full payment to us, we shall restore the Services after confirming that all aspects of the Client’s network, systems, and environment remain in compliance with the Service Contract and our requirements with respect to security, updates, and best practices. As a condition of reinstatement, the Client agrees to pay a “Reactivation Fee” of $450 or, if higher, the actual reasonable costs incurred for restoration, not exceeding one month’s service fee. Our right to suspend Services under this section is in addition to any right to terminate the Service Contract or other remedies that might be available to us.
MotivIT SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY INTERRUPTION OF BUSINESS OR OTHER CLAIMS, DAMAGES, OR COSTS OF ANY KIND IN CONNECTION WITH A SUSPENSION OF SERVICES BASED ON THE CLIENT’S NON-PAYMENT OF FEES.
4.5. Effect of Termination
4.5.1. Cessation of Use; Return of Materials
Upon the termination of a Service Contract, the Client shall cease its use of the affected Services. The Client shall promptly return to MotivIT all Equipment (as defined in Section 8.2 below), software, documentation, and other tangible items provided to the Client in connection with the Services, and shall delete from its computer systems all electronic copies of the software and any documents, data, or other information that was provided. Upon request, the Client shall provide written certification of its compliance with the obligations set forth in the preceding sentence, which certification shall be signed by an officer (or other representative having similar authority).
4.5.2. Transition Services
MotivIT shall cooperate with the Client in the orderly termination of the Services. If the Client wishes to obtain off-boarding services and/or assistance in transitioning to a new service provider, then Client shall compensate MotivIT for such services on a time-and-materials basis at MotivIT then-current rates or in accordance with such fee arrangement as might be agreed upon in writing. MotivIT may require that any such fees, or a reasonable estimate thereof, be paid in advance.
4.5.3. Retention of Client’s Data
At the time of termination of a Service Contract, MotivIT will provide to Client a copy of all Client Data (i.e., content or information transmitted to or from, or stored by Client on, MotivIT servers or that is otherwise created or used by Client in connection with the Services) that remains on servers, storage devices or otherwise in the possession or under the control of MotivIT.
After thirty (30) days, or otherwise agreed to in writing, FOLLOWING THE EFFECTIVE DATE OF THE TERMINATION OF A SERVICE CONTRACT BY EITHER PARTY FOR ANY REASON, MotivIT SHALL HAVE NO FURTHER OBLIGATION TO MAINTAIN OR PROVIDE ANY CLIENT DATA AND SHALL THEREAFTER, UNLESS LEGALLY PROHIBITED, DELETE ALL CLIENT DATA ON ITS SYSTEMS OR OTHERWISE IN ITS POSSESSION OR UNDER ITS CONTROL.
4.5.4. Payment of Fees
Notwithstanding the termination of a Service Contract, the Client shall remain responsible for the payment of all fees for Services properly provided prior to the date of termination by MotivIT and/or any third-party vendor or service provider and any early termination or similar fees that might be payable under the Service Contract or any Third-Party Agreement in connection with the circumstances of the termination.
5. OBTAINING SUPPORT
5.1. Service Request
All service requests must be initiated by contacting the Global Service Desk, which will create a service ticket. Clients can reach the Global Service Desk using the following methods:
- Email: servicedesk@motivit.com
- Hotline: +1 877 350 3300
- Client Portal: one.motivit.com
- Live Chat: www.motivit.com
5.2. Response Process
MotivIT will respond to service requests in accordance with its problem prioritization, management and escalation processes based on MotivIT’s Service Level Agreement (SLA). A support ticket in MotivIT’s ticketing system will be used to track and document each service request.
Service Level Agreement
| INDUSTRY STANDARD | MOTIVIT | |||
|---|---|---|---|---|
| Response Time | Resolution Time | Response Time | Resolution Time | |
| P1 Multiuser, no workaround | 30 mins | 4 hours | 15 mins | 4 hours |
| P2 Multiuser, with workaround | 1 hour | 8 hours | 30 mins | 8 hours |
| P3 Single user, no workaround | Same day | 2 business days | 1 hour | 1 business day |
| P4 Single user, with workaround | Same day | 5 business days | 4 hours | 3 business days |
| P5 Request/Enhancement | Next business day | 10 business days | Same day | 5 business days |
- Response Time: The time it takes to acknowledge and start addressing an issue after it is reported.
- Resolution Time: The time it takes to completely resolve an issue or provide a suitable workaround.
5.3. Hours of Operation
- Standard Support Hours: 8 AM to 5 PM local time zones, Monday through Friday excluding holidays
- After Hours Support: 6 PM to 8 AM weekdays and 24/7 weekend support provided by our Network Operations Center (NOC)
- Emergency Support Hours: 24/7/365 (additional charges apply unless, a plan that includes after-hours support has been purchased)
- Holiday Schedule (Limited Support):
| HOLIDAY | DATE |
|---|---|
| New Year’s Day | January 1 |
| Memorial Day | Last Monday of May |
| Independence Day | July 4 |
| Labor Day | First Monday of September |
| Thanksgiving Day | Fourth Thursday of November |
| Christmas Day | December 25 |
6. SERVICE LEVEL MATTERS
6.1. Service Levels and Service Level Credits
Except as otherwise agreed in writing, if a Service Order contains an agreement concerning Service Levels and a required Service Level is not met, then, as the Client’s sole and exclusive remedy, and MotivIT’s sole and exclusive liability, for the failure of the Services to meet the required Service Level, MotivIT shall provide the Client with a partial credit against the monthly fees payable for the Services in question (a “Service Level Credit”), calculated in the manner specified in the Service Order.
6.2. Service Level Policies
MotivIT will process Service Level Credits for failures to meet the required Service Levels (“Events”) as specified in the applicable Service Order. If an Event occurs that qualifies for a Service Level Credit, the Client must open a ticket via the MotivIT Global Service Desk, providing details of the Event within 30 business days of its occurrence (unless the Service Level is explicitly monitored proactively, meaning MotivIT will self-monitor performance, in which case no ticket submission is necessary).
If the Client fails to open a ticket within the required time frame, the right to claim a Service Level Credit is forfeited. To calculate whether a Service Level Credit is due, and to determine the duration of an Event, MotivIT will begin calculating from the earlier of (a) the timestamp of the alert in MotivIT’s monitoring systems, or (b) the timestamp of the Client-submitted ticket, unless otherwise specified in a Service Order. The calculation continues until MotivIT resolves the Event.
The maximum total amount of Service Level Credits that may be earned for Events occurring within a single calendar month shall not exceed 100% of one month’s fees for the affected Services. Any excess Service Level Credits are forfeited and cannot be carried over.
6.3. Service Level Exclusions
Service Levels and Service Level Credits apply only to Client and not to any customers of Client or to any other party. Client is not entitled to any Service Level Credit if (a) Client has not paid all fees when due, (b) the Client is otherwise in breach of the Service Contract, (c) Client has failed to provide MotivIT with appropriate access or otherwise interfered with MotivIT ability to provide the Services, or (d) a failure to meet Service Levels is attributable to:
a) Non-Standard Configuration. Matters caused by a Client-requested non-standard or unsupported configuration.
b) External Network Conditions. Matters caused by general internet or network conditions outside the reasonable control of MotivIT, including but not limited to DNS issues.
c) Non-Impacting Failure. Nominal failures that do not actually affect Client’s use of the Services (e.g. a failure during hours when Client’s business is closed or that affects a non-production computer system).
d) Unexpected Usage. Matters caused by usage patterns or traffic that exceeds the Usage Parameters.
e) Client Acts. Matters caused by Client acts (or the acts of others engaged or authorized by Client), including without limitation, any negligence or willful misconduct.
7. THIRD-PARTY PRODUCTS AND SERVICES
7.1. Terms and Conditions of Use
Client acknowledges that the Third-Party Products and Services are made available on the terms and conditions set forth in the Third-Party Agreements, including without limitation any applicable end user license agreement, retail customer terms and/or CAUP, and Client agrees to use the Third-Party Products and Services in accordance with such terms and conditions.
7.2. Third-Party Warranty and Remedies
MotivIT does not warrant the quality, performance, or any other aspect of the Third-Party Products and Services. In the event of a defect or difficulty in the use of the Third-Party Products and Services, the Client shall look solely to the warranty or remedies (if any) provided for in the applicable Third-Party Agreements, and in this regard, MotivIT agrees to provide the Client with commercially reasonable assistance in obtaining the benefit of any warranty or remedies offered by the third-party vendor or service provider. If MotivIT is a party to a wholesale, reseller, or other agreement with the third-party vendor or service provider, then MotivIT will similarly make commercially reasonable efforts to obtain for Client the benefit of any warranty or remedies provided for thereunder. The provisions of this section shall not be interpreted to require MotivIT to bring a lawsuit, commence arbitration proceedings or take any similar action against a third-party vendor or service provider; nor to require MotivIT to provide Client with any remedy greater in amount or extent than any remedy actually provided to MotivIT by the third-party vendor or service provider.
7.3. Rights of Third-Party Vendors and Service Providers
Use of the Third-Party Products and Services shall at all times be in accordance with the rights of the third-party vendors and service providers and in this regard Client represents and warrants that it will not:
a) engage in unauthorized use, copying or distribution of the Third-Party Products and Services in violation of licensing restrictions; disable or seek to disable any security, copy protection or similar features; or damage or fail to return hardware, equipment or other tangible items upon the completion of a Service Contract;
b) translate, modify, adapt, decompile, disassemble, create derivative works from, merge with other products or services, or reverse engineer the Third-
Party Products and Services; or
c) use any confidential or proprietary information provided with or as a part of the Third-Party Products and Services for any purpose other than facilitating Client’s use of the Third-Party Products and Services in accordance with the terms of a Service Contract; or fail to cooperate in the return, deletion and/or destruction of any such information upon the completion of a Service Contract.
8. CLIENT COVENANTS AND OBLIGATIONS
8.1. Limitations on Scope of Support
Except to the extent provided for in the applicable Order, support (including without limitation provisioning) for the products and services of third-party vendors and service providers is not included in the scope of the Services provided by MotivIT unless the client has entered into a Service Contract for Services, that covers the products and services in question. If the Client wishes to obtain support for products or services of a third-party vendor or service provider that does not satisfy these criteria, then such support may be included in a Service Contract for an additional fee or requested as either Supplemental Services or Project Services.
8.2. MotivIT Supplied Equipment
“Equipment” means any computer, networking or telephony equipment, racking, or associated hardware or other equipment (if any) that we install on your premises or that we ship to your location to facilitate the delivery of Services. Equipment does not include any hardware or devices that we may sell to you or that we may procure on your behalf.
You shall take reasonable care of the Equipment and shall not damage it, tamper with it, remove it, attempt to repair it, or attempt to install any software on it. You are financially responsible, up to the full replacement value of all Equipment, for all damage to or loss of the Equipment used at your location, other than loss or damage caused by MotivIT.
MotivIT is and will remain the sole owner of any Equipment, which is provided on a rental or temporary basis only. You shall not remove any sign, label or other marking on the Equipment identifying MotivIT as the owner of the Equipment. You do not acquire any rights of ownership in the Equipment, and you will not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Equipment.
On termination of any Service Contract pursuant to which we deliver Equipment, you shall provide MotivIT or its contractors with reasonable access to your premises to remove the Equipment. Alternatively, upon our request, you shall return the Equipment to us via the carrier of our choice, for which Client is responsible for shipping charges.
8.3. Assistance
Client shall provide in a timely and professional manner, and at no cost to MotivIT, assistance, cooperation, complete and accurate information and data, such equipment as is agreed to be the responsibility of Client, access to applicable computer and telecommunications facilities and related resources (including, without limitation, networks, firewalls, servers, programs, files, documentation and any passwords required for the provision of the Services), a suitable work environment, and such other resources as are reasonably requested by MotivIT to enable it to perform the Services. In addition, Client may be required to conduct preliminary diagnostic steps or to provide additional information related to a support request, prior to a technician being dispatched to Client’s facility. The foregoing is collectively referred to as “Assistance.” MotivIT shall not be liable for any deficiency in performing the Services if such deficiency results from Client’s failure to provide full Assistance as required hereunder. Assistance includes, but is not limited to, designating a project manager or contact person to interface with MotivIT during the course of the performance of the Services.
8.4. Software Licensing
Client represents and warrants that Client has proper licenses for (or otherwise has the right to use) any software or other technology that is in use by Client, or that is to be furnished by Client, and that Client has requested MotivIT to use, access or modify as part of the Services.
It is the Client’s responsibility to independently ensure that ALL such software and technology is properly licensed, and Client agrees to provide MotivIT with proof of such licensing upon request. MotivIT will not promote the use of, or knowingly support, software or other technology that is not properly licensed by Client. Assistance with software audits or licensing compliance matters may be obtained from MotivIT as Project Services.
8.5. Remote Access; Client Facilities
Broadband Internet access must be provided and MotivIT must be provided with remote access (via VPN, remote monitoring and management (RMM) tool or other reasonable means) to covered equipment. Client acknowledges that MotivIT may require unattended remote access to Client’s systems. Appropriate cabling to all covered computers and devices must be provided. Appropriate air conditioning and ventilation for all covered computers and devices must be provided in order to maintain temperature and air quality as specified by the applicable hardware manufacturers. Power surge protection must be provided for all covered computers and devices.
8.6. Existing Service Providers; Disposal of Old Equipment and Packaging
Unless otherwise agreed in writing, Client is responsible for arranging for the disconnection or termination of any existing services, for arranging for any migration, porting or other transition services required, and for the payment of any charges related to the foregoing to Client’s existing service provider(s). MotivIT is not responsible for the acts or omissions of any other service providers, utility companies or other third parties. Client is responsible for the disposition or disposal of any old or unused hardware, racking, cabling or other items and for the disposal of any shipping or packaging materials associated with new items.
8.7. Network Security and Malicious Events
In performing the Services, MotivIT shall utilize cyber-security practices and technology that are in accordance with industry standards as of the date of performance. Unless specifically agreed in a Service Contract for the provision of cyber-security consulting services, MotivIT is not undertaking a duty to update the Client’s existing network, systems or environment or any previously-performed Services or to provide any advice, monitoring or other services related to cyber-security services, and MotivIT shall not be responsible for the security of your computer network, voice circuits or other systems, or any other aspect of your environment nor shall MotivIT be liable for any damages resulting from a Cyber-Attack, as defined below (except to the extent, if any, that the Cyber-Attack is attributable to a breach of the obligation set forth in the first sentence of this section, in which case MotivIT liability shall be limited in accordance with the general limitation of liability set forth in Section 13.1). WITHOUT LIMITING THE FOREGOING, MotivIT SHALL HAVE NO LIABILITY FOR DAMAGES RELATED TO SECURITY DEFECTS IN COMMERCIALLY-AVAILABLE SOFTWARE, HARDWARE OR OTHER PRODUCTS AND SERVICES THAT ARE SUBSEQUENTLY FOUND TO EXIST (REGARDLESS OF WHETHER THE PRODUCTS AND SERVICES IN QUESTION ARE RELATED TO CYBER-SECURITY OR ARE USED FOR INFORMATION TECHNOLOGY MANAGEMENT, BUSINESS PRODUCTIVITY OR OTHER PURPOSES).
Except to the extent provided in a Service Contract, it is Client’s sole responsibility to determine what actions are necessary to make Client’s network, systems and environment secure and to take those actions. Without limiting the foregoing, Client has the responsibility to protect its network, systems and environment from, and to train its employees with respect to, viruses, spam, malware, ransomware, the acts of third parties such as hackers and phishers, and other types of malicious code, unauthorized access or similar threats (collectively “Cyber-Attacks”).
If a Service for the provision of cyber-security consulting services is entered into, then MotivIT will use commercially reasonable efforts to protect those aspects of Client’s network, systems and/or environment that are identified in the Service Contract from Cyber-Attacks, however Client understands that no cyber-security software, devices or procedures can guarantee complete protection against Cyber-Attacks as such attacks are constantly evolving and often involve the intentional action of third parties endeavoring to invade and damage computer systems. The fact that MotivIT may agree to provide, or to provide support for, anti-virus software, firewalls or other products and services related to cyber-security shall not, in itself, be construed as an agreement by MotivIT to provide cyber-security consulting services. IF MotivIT SHALL HAVE AGREED IN WRITING TO PROVIDE CYBER- SECURITY CONSULTING SERVICES, THEN MotivIT LIABILITY WITH RESPECT TO ANY CYBER-ATTACK SHALL BE LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CLIENT AND SHALL NOT EXCEED THE GREATER OF (1) $2,500, OR (2) THREE (3) TIMES THE MONTHLY FEES PAID BY CLIENT FOR CYBER-SECURITY CONSULTING SERVICES.
8.8. Theft of Services
Client shall notify MotivIT immediately, by e-mail to MotivIT Global Service Desk, if Client becomes aware at any time that the Services are being stolen or used fraudulently. If Client fails to notify MotivIT within one (1) business day after becoming aware of any such theft or fraudulent use of the Services, or if such theft or fraudulent use is attributable to a failure by Client to maintain reasonable physical, electronic or other security measures, then Client shall reimburse MotivIT for any fees or costs incurred as the result of such theft or fraudulent use, including, without limitation, the usage or service fees that would normally be charged by MotivIT or an affected third-party vendor or service provider and/or the replacement cost of any Equipment, products or other items owned by MotivIT or a third-party vendor or service provider that have been lost.
8.9. Data Backup
Except in instances in which the Services are agreed in writing to include backup Services, Client shall be solely responsible for backing up Client’s data and MotivIT shall have no liability with respect to the loss or unavailability of data. A backup solution must be in place, with backup copies stored off-site. It is the Client’s responsibility to ensure that backups are made regularly and to verify the integrity of the backups. IF MOTIVIT SHALL HAVE AGREED IN WRITING TO PROVIDE BACKUP SERVICES, THEN MOTIVIT’s LIABILITY WITH RESPECT TO ANY LOSS OR UNAVAILABILITY OF DATA SHALL BE LIMITED TO ANY ACTUAL AND DIRECT DAMAGES INCURRED BY CLIENT.
8.10. Recovery Services
Any services to rebuild or recover Client’s network, systems or environment following a natural disaster, Cyber-Attack or similar event shall be provided by MotivIT, upon Client’s request, as Project Services.
8.11. Ownership of Client Data
As between MotivIT and Client, all Client Data is owned exclusively by Client. MotivIT may access the Client Data to the limited extent necessary to provide the Services or respond to support requests, but shall not otherwise access the Client Data except upon Client’s instructions.
8.12. Compliance Matters
MotivIT shall not in any instance be deemed to be providing the Client with advice concerning the meaning, interpretation of, or compliance with any laws, regulations or other legal requirements, including, without limitation, Payment Card Industry (PCI) standards, the Sarbanes-Oxley Act (SOX), the Health Insurance Portability and Accountability Act (HIPAA), the European Union General Data Protection Regulation (GDPR) or the New York Department of Financial Security Cybersecurity Requirements for Financial Services Companies. Client agrees that it will not rely upon MotivIT for any such advice and that it will obtain any required advice from its attorneys or other appropriate advisors. Any involvement by MotivIT shall be deemed to be limited to the provision of technological advice with respect to the implementation of solutions or protocols developed by the Client, its attorneys and/or advisors.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Ownership
All patents, copyrights, trademarks, trade secrets, know-how, and other proprietary or intellectual property rights (“IP Rights”) related to the Services shall remain the property of MotivIT and/or the respective providers of any Third-Party Products and Services. The Client shall not acquire any interest in these IP Rights, except for a limited license granted to the Client, allowing use of the Services for its own internal business purposes, in accordance with the terms of the applicable Service Contracts.
9.2. License Restrictions
Client shall not:
a) copy, translate, modify, adapt, decompile, disassemble, create derivative works from, merge the Services with any other products or services or reverse engineer the Services; or
b) Use any of the ideas, features, functions, graphics or other aspects of the Services for purposes of creating any similar products or services.
9.3. Works of Authorship
Unless otherwise agreed in writing, any software program, application, computer code, writing or other work of authorship (“Work”), regardless of medium, which is created or developed by MotivIT in the course of performance under a Service Contract and which is related to the Services or to other products or services offered by MotivIT shall not to be deemed a “work made for hire” and shall remain the sole and exclusive property of MotivIT. To the extent a Work is for any reason determined not to be owned by MotivIT, Client hereby irrevocably assigns and conveys to MotivIT all of its copyright in such Work.
Without limiting the foregoing, MotivIT shall own all network diagrams and other documents concerning Client’s network, systems or environment that might be created by MotivIT for MotivIT use in performing the Services. MotivIT will provide Client with copies of any such documents upon reimbursement, at MotivIT then- current rates, for the time that was required to create such documents.
9.4. Improvements
Client hereby assigns to MotivIT any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or its users relating to any proposed improvements of or modifications to the Services. MotivIT shall solely and exclusively own all IP Rights with respect to any invention, addition or other improvement (“Improvement”) to the Services, or to any other products or services offered by MotivIT, that might be created by MotivIT, regardless of whether based in whole or in part on any such suggestion, idea, etc. or whether created during or in connection with the provision of the Services to Client.
9.5. Confirmation
Client hereby irrevocably assigns to MotivIT all of its IP Rights, if any, with respect to all Works and Improvements pertaining to the Services or any other products or services offered by MotivIT and hereby agrees to execute such assignments and/or take such other actions as might reasonable be required to confirm MotivIT ownership of such IP Rights, provided that Client is reimbursed by MotivIT for any time or expenses reasonably incurred in so doing.
10. NON- DISCLOSURE AND CONFIDENTIALITY
10.1. Confidential Information
During the course of performance under a Service Contract, a party may become privy to the other’s proprietary or confidential information. Each of us shall hold all such “Confidential Information” of the other in strict confidence and shall not disclose such information to any third party.
Confidential Information includes but is not limited to: (a) with respect to MotivIT, MotivIT unpublished prices for Services, audit and security reports, server/network configuration designs, passwords, business plans, technical information or data, product ideas or other research and development, methodologies, calculation algorithms and analytical routines, and other proprietary technology; (b) with respect to Client, Client Data; and (c) with respect to both parties, other information that is either marked or designated as “Confidential” or could reasonably be understood to be confidential or proprietary under the circumstances.
10.2. Exceptions
Notwithstanding the preceding Section 10.1, Confidential Information does not include:
a) Information that at the time of disclosure is, without fault of the recipient, available to the public;
b) Information that the recipient can show was independently in its possession at the time of disclosure;
c) Information received from a third party who had the right to disclose the information without violation of any confidentiality agreement with the other party; or
d) Information required to be disclosed pursuant to court order or by law, provided that the disclosing party is, to the extent possible, provided with advance notice of any such disclosure, and that any disclosure is limited to the minimum amount of information required.
10.3. Agreement Terms to be Kept Confidential
No copies of this MSA, the Service Attachments, Orders or other agreements between the parties, or any information concerning the same, shall be disclosed to any third party, except by reason of legal, accounting or regulatory requirements, without the prior written consent of the other party.
11. WARRANTIES AND LIMITATIONS
11.1. Warranties
Services are warranted to the extent set forth in the applicable Service Order.
With respect to Supplemental Services and Project Services, MotivIT warrants that the Services will be performed in a professional and workmanlike manner and in accordance with any written agreement between the parties. All such Services will be deemed to have been accepted by the Client and to be conforming unless Client notifies MotivIT in writing within thirty (30) business days following completion that the Services do not conform to this warranty.
MotivIT does not independently warrant any Third-Party Products and Services, however MotivIT will, as set forth in Section 7.2, assist the Client in obtaining the benefit of any warranties and remedies that might be available from the third- party vendor or service provider.
11.2. Limitation of Remedies
FOR ANY BREACH OF THE WARRANTIES MADE BY MOTIVIT OR CLAIM OF DEFECT IN THE SERVICES (OTHER THAN THE THIRD-PARTY PRODUCTS AND SERVICES), CLIENT’S EXCLUSIVE REMEDY AND MOTIVIT’s ENTIRE LIABILITY SHALL BE THE CORRECTION BY MOTIVIT OF THE DEFICIENT SERVICES, OR, IF MOTIVIT CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY WITHIN A REASONABLE TIME, THEN CLIENT MAY TERMINATE THE APPLICABLE SERVICE CONTRACT AND MOTIVIT WILL REFUND TO CLIENT THE FEES FOR THE AFFECTED SERVICES, OR PORTION THEREOF, THAT WERE NOT PROPERLY PERFORMED, TOGETHER WITH ANY FEES PRE-PAID ON ACCOUNT OF ANY PORTION OF THE AFFECTED SERVICES NOT YET PERFORMED.
MOTIVIT SHALL HAVE NO LIABILITY WITH RESPECT TO ANY BREACH OF WARRANTY OR CLAIM OF DEFECT IN ANY THIRD-PARTY PRODUCTS OR SERVICES AND CLIENT SHALL LOOK EXCLUSIVELY TO SUCH REMEDIES AS MIGHT BE MADE AVAILABLE BY THE THIRD-PARTY VENDOR OR SERVICE PROVIDER.
11.3. Disclaimers
EXCEPT AS SET FORTH IN SECTION 11.1 OR OTHERWISE EXPRESSLY AGREED IN WRITING, THE SERVICES, INCLUDING ANY THIRD-PARTY PRODUCTS AND SERVICES, ARE PROVIDED ON AN “AS IS” BASIS AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SAME, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM AND USAGE, PRIOR PRACTICE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED. WITHOUT LIMITING THE FOREGOING, IT IS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICES WILL MEET ANY CLIENT’S PARTICULAR REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICES WILL BE COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN LAPSES IN THE AVAILABILITY OR SECURITY OF THE SERVICES.
11.4. Interpretation
If any of the limitations or disclaimers set forth above, or elsewhere in this MSA or a Service Contract, are found to be void or unenforceable under applicable law, then the provision in question shall, if possible, be deemed to be modified to the minimum extent necessary to make it compliant, or, if such a modification is not possible, then the provision in question shall be stricken without prejudice to any similar provisions, all of which shall remain in full force and effect.
12. DISPUTE RESOLUTION
12.1. Mediation Procedures
Each of us shall attempt to settle amicably any disputes related to this MSA or a Service Contract by means of mediation in accordance with the Commercial Mediation Procedures of the American Arbitration Association. Mediation proceedings shall take place in California and the costs of such proceedings shall be shared equally by the parties. No action or proceeding concerning a dispute shall be commenced prior to the expiration of sixty (60) days following the date of the first mediation session. Failing such amicable settlement, any such dispute, including without limitation claims related to the existence, validity, interpretation, performance, termination or breach of this MSA or a Service Contract, shall be resolved by means of an action brought in a state court in California or in federal court.
12.2. Period for Bringing Claim Concerning a Defect in the Services
No action or other proceeding based on a breach of warranty or other claim concerning a defect in the Services may be commenced by Client more than one (1) year after the date of the breach or event giving rise to the claim; failure to make such a claim within such one (1) year period shall forever bar the claim.
12.3. Attorneys’ Fees
If, in the event of a failure by Client to pay fees or other sums due to MotivIT under the terms of this MSA or a Service Contract, MotivIT commences litigation or other proceedings to collect such sums and is the prevailing party in such proceedings, then MotivIT shall be entitled to an award of reasonable attorneys’ fees incurred in pursuing the collection of such sums.
12.4. Liquidated Damages
12.4.1. Service Contracts for Primary Services
If there is a breach of the terms of, or attempt to cancel prior to its expiration, a Service Contract for Primary Services that includes a commitment for a specific term, then Client shall pay as liquidated damages on account of MotivIT’s lost profits for the remaining portion of the contract term an early termination fee equal to seventy-five percent (75%) of the recurring monthly (or other periodic) fees remaining to be paid from the date of the breach or attempted cancellation through the end of the initial term or then-current renewal term, based on the monthly (or periodic) charges then in effect.
12.4.2. Service Contracts for Third-Party Products and Services
If there is a breach of the terms of, or attempt to cancel prior to its expiration, a Service Contract for Third-Party Products and Services that includes a commitment for a specific term, then Client shall pay as liquidated damages on account of MotivIT’s lost profits, contractual liability to the third-party vendor or service provider, and administrative costs an early termination fee equal to one hundred percent (100%) of the recurring monthly (or other periodic) fees remaining to be paid from the date of the breach or attempted cancellation through the end of the initial term or then-current renewal term, based on the monthly (or periodic) charges then in effect.
12.4.3. General Provisions
In no event shall the amount of the monthly (or periodic) charges used for purposes of calculating the amount that would have been payable by the Client over the remainder of the contract term be less than the amount of the monthly (or periodic) charges that were in effect at the beginning of the most recent contract term or renewal period. The right to collect the damages provided for in this Section 12.4 shall be without prejudice to MotivIT’s right to recover in addition damages for any other type of loss, injury or harm that might be suffered by MotivIT as a result of Client’s conduct.
13. LIMITATIONS OF LIABILITY
13.1. General Limitation
EXCEPT AS OTHERWISE SPECIFICALLY AGREED IN WRITING, MOTIVIT’s LIABILITY IN CONNECTION WITH ANY CLAIM RELATED TO A SERVICE CONTRACT, WHETHER IN CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CLIENT AND WILL NOT EXCEED THE GREATER OF (1) $5,000, OR (2) THE FEES ACTUALLY PAID BY CLIENT TO MOTIVIT IN CONNECTION WITH THE SERVICE CONTRACT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM. THE SAME LIMITATION SHALL APPLY TO ANY CLAIM RELATED TO SUPPLEMENTAL SERVICES OR ANY OTHER PROVISION OF SERVICES BY MOTIVIT OUTSIDE THE CONTEXT OF A SERVICE CONTRACT (IN WHICH CASE THE LIMITATION IN CLAUSE (2) SHALL BE TO THE FEES ACTUALLY PAID BY THE CLIENT TO MOTIVIT IN CONNECTION WITH THE WORK OR PROJECT IN QUESTION DURING THE PRECEDING SIX (6) MONTHS).
13.2. Products and Services from Other Sources
MOTIVIT SHALL NOT BE LIABLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CONTENT, MODIFICATIONS, OR PRODUCTS AND SERVICES OBTAINED BY THE CLIENT OTHER THAN THROUGH MOTIVIT. WITHOUT LIMITING THE FOREGOING, MOTIVIT SHALL NOT BE LIABLE FOR ANY KIND OF UNAUTHORIZED ACCESS OR OTHER HARM THAT MAY BE CAUSED BY CLIENT’S ACCESS TO WEBSITES OR USE OF APPLICATION PROGRAMMING INTERFACES OR OTHER COMPUTER CODE AVAILABLE FROM OUTSIDE SOURCES, INCLUDING WITHOUT LIMITATION HARM RESULTING FROM THE EXECUTION OR TRANSMISSION OF MALICIOUS CODE OR SIMILAR OCCURRENCES, SUCH AS DISABLING DEVICES, DROP-DEAD DEVICES, TIME BOMBS, LOGIC BOMBS, TRAP DOORS, TROJAN HORSES, WORMS, VIRUSES, HACKERS, PHISHERS, CRYPTO-LOCKERS, RANSOMWARE, AND SIMILAR MECHANISMS.
14. INDEMNIFICATION
Client shall indemnify and hold MotivIT harmless against and from any and all causes of action, damages and other liabilities and expenses of any kind whatsoever (including, without limitation, reasonable attorney’s fees) that might be incurred by MotivIT in connection with a claim by a third party related to any of the following:
a) Client’s use of the Services in violation of an applicable AUP or illegal or improper use of the Services by Client as described in Section 4.3;
b) Client’s failure to ensure that any software or other technology that is in use by Client, or that is to be furnished by Client, and that Client has requested MotivIT to use, access or modify as part of the Services, is duly licensed as set forth in Section 8.4;
c) Client’s violation of the rights of a third-party vendor or service provider as described in Section 7.3;
d) Client’s transmission to MotivIT, or use of the Services to process, data that is subject to regulation under the GDPR or similar data protection requirements without first providing notice to MotivIT and obtaining MotivIT’s written agreement to the processing of such data, in violation of the requirements of Section 16.2; or
e) Client’s use of the Services for any High-Risk Use (as defined in Section 17.5).
15. INSURANCE
15.1. Client Coverage
Client shall maintain during the term of this MSA commercial general liability and first party cyber liability insurance with limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate.
15.2. MotivIT Coverage
MotivIT agrees to maintain during the term of this MSA professional liability insurance, including technology errors and omissions and cyber incident response coverages, with limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate.
15.3. Additional Provisions
Client’s insurance shall be primary over MotivIT insurance. Client agrees to waive, and to require its insurers to waive, any rights of subrogation or recovery they might have against MotivIT, its agents, officers, directors and employees.
16. DATA PRIVACY
16.1. Client Data & Processing
Insofar as the Client Data includes personally identifiable information (“PII”), MotivIT agrees that it will comply with applicable United States data privacy laws and will only use such data for the purpose of providing Services under this Agreement.
16.2. Data Concerning Individuals in the EU and Other Jurisdictions
If the Client will require the processing of PII pertaining to individuals in the European Union that is subject to regulation under the GDPR, or PII pertaining to individuals located in another jurisdiction that is subject to similar data protection requirements, then Client must notify MotivIT in writing and obtain MotivIT written agreement to the processing of such PII prior to transmitting any such data to any MotivIT system or otherwise using the Services to process such data in any way. Any such written agreement shall set forth the policies and procedures that will be followed in order to facilitate compliance with the GDPR or other applicable data protection requirements.
16.3. Data Protection Agreement
The Data Protection Agreement is included as Exhibit A and is attached hereto and incorporated herein by reference.
17. GENERAL
17.1. Notices
Except as set forth in Section 17.15 (pertaining to electronic communications), all notices, demands or requests to be given by one party to the other shall be in writing and shall be deemed to have been duly given on the date delivered in person, on the next business day if sent via overnight delivery service, or on the third business day after deposit, postage prepaid, in the United States Mail for delivery via Certified Mail, return receipt requested, and addressed as specified on the signature page.
Either Party may also deliver notice electronically to the email address noted on the signature page. Notices are effective the same day if delivered electronically.
A party may change its address by means of a written notice given in accordance with the requirements of this section.
17.2. Independent Contractor
MotivIT will perform all Services solely as an independent contractor and not as an employee, agent or representative of Client.
17.3. No Hiring
MotivIT and Client shall not solicit any MotivIT or Client employee with whom you have had contact in connection with the Services for employment by you or any other person either during the term of this MSA or during the twelve (12)-month period following the last date on which Services were provided to you by MotivIT. Notwithstanding the foregoing, you shall not be precluded from conducting general recruiting activities, such as participating in job fairs or publishing help wanted advertisements for general circulation.
We and you acknowledge that the injury resulting from a breach of this provision would be significant and that it would be extremely difficult to ascertain the precise amount of damages resulting from such breach. Therefore, we and you agree that in the event of a breach, the breaching party will pay the other party liquidated damages in the amount of one hundred and fifty percent (150%) of the affected employee’s base salary for one year. Such amount is not intended as a penalty but as a reasonable estimate of damages based upon the projected costs each party would incur to identify, recruit, hire and train a suitable replacement for the affected employee.
17.4. Force Majeure
A party will not be liable for any failure of performance due to causes beyond its reasonable control, including, but not limited to, fire, flood, electric power interruptions, national emergencies, civil disorder, acts of terrorism, riots, strikes, Acts of God, or any law, regulation, directive, or order of the United States government, or any other governmental agency, including state and local governments having jurisdiction over a party or the Services provided hereunder.
17.5. No High-Risk Use
You acknowledge that the Services are not fault-tolerant, are not guaranteed to be error-free or to operate uninterrupted, and are not intended to be used in any application or situation where the failure of the Services could lead to the death or serious bodily injury of any person, or to significant property or environmental damage (“High-Risk Use”). Accordingly, you agree not to use the Services for any High-Risk Use.
17.6. Export Control; Government Use
You represent and warrant that your use of the Services will comply with all export laws, restrictions, national security controls, and regulations of the United States or other applicable authority. You will not export or re-export, or allow the export or re-export of the Services in violation of any such export laws, restrictions, controls or regulations.
If the Services are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding upon us unless specifically agreed to by us in writing. If Client is a U.S. Government entity or person, then the Services are being provided as “Commercial Items” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights granted in the Services to such a government user are the same as the rights granted to all other users.
17.7. Waiver
No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy hereunder will constitute a waiver of any right or remedy, or future exercise thereof.
17.8. Assignment
Neither party may assign this MSA or a Service Contract, in whole or in part, or any of its rights or obligations, without the prior written consent of the other party, and any purported assignment made without such consent shall be void and of no effect. However, MotivIT Group may assign or otherwise transfer its rights, interests and obligations under this MSA and the Service Contracts, and a MotivIT company may assign or otherwise transfer its rights, interests and obligations under the Service Contracts to which it is a party, without your consent in the event of a change in control of 50% or more of its equity, the sale of all or substantially all of its assets, or to an affiliated company. In addition, unless otherwise agreed, we may contract with third parties to deliver some or all of the Services, and no such third-party contract shall be interpreted as an assignment. However, we will use commercially reasonable efforts to ensure that any and all such third parties abide by all of the terms of this MSA and any affected Service Contracts, and except as otherwise agreed, we will remain solely responsible for the fulfillment of all of our obligations. This MSA and the Service Contracts shall be binding upon the parties, their successors and permitted assigns.
17.9. Marketing
Client hereby grants MotivIT the right to reference Client’s name, industry, logo, and URLs in its marketing literature, website, and/or correspondence to potential new customers, so as to identify Client as a customer of MotivIT for marketing purposes.
17.10. Terms of Service
MotivIT may occasionally update the terms of the Service Order. If these changes affect the Client, MotivIT will notify the Client in writing. Sixty (60) business days after being posted, the updated Service Attachments will take effect for:
a) new Service Contracts entered into after that date;
b) Service Contracts for a recurring term that continue in effect after that date; and
c) renewal terms of Service Contracts for a fixed term that commence after that date.
17.11. Survival
Our respective duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure and confidentiality will survive and remain in effect, notwithstanding the termination or expiration of this MSA or any Service Contract.
17.12. Amendment
This MSA can be modified or amended only through a written agreement signed by both parties.
17.13. Governing Law
This agreement is to be governed by and construed in accordance with the law of the State of California without giving effect to principles of conflict of laws.
17.14. Severability
If any term or provision of this MSA or a Service Contract is declared invalid by a court of competent jurisdiction, the remaining terms and provisions will remain unimpaired, and the invalid terms or provisions are to be replaced by such valid terms and provisions that most nearly fulfills the parties’ intention underlying the invalid term or provision.
17.15. Counterparts, Electronic Signatures
This MSA or any Service Contract may be executed in separate counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The parties agree that execution of any document may be by digital signature, PDF copy of a signature or other electronic means. Unless you provide MotivIT with written notice to the contrary, you agree that all notices and other communications concerning this Agreement or any Service Contract may take place by electronic means and that documents may be executed via the electronic signature system. An executed copy of this Agreement will be retained by MotivIT in electronic record form and can be reproduced for Client upon request.
17.16. Recording of Conversations / Telephone Calls
MotivIT and Client (i) consent to the recording of telephone conversations between personnel of the parties in connection with the Services, and (ii) agree, to the extent permitted by applicable law, that recordings may be submitted in evidence in any lawsuit, arbitration or similar proceedings.
17.17. Notifications and Alerts
The Client hereby grants MotivIT the right to use Client information to send alerts, notifications, news, and general correspondence related to the Services.
17.18. Entire Agreement
This MSA sets forth our entire understanding with respect to the subject matter hereof. Each party, along with its legal counsel, has had the opportunity to review this MSA, and no ambiguity will be construed in favor of, or against, either party.