Master Services Agreement
This Master Services Agreement (this “MSA”) is between Afinety, Inc., a California corporation with an office at 912 W. St. Germain St., Cloud, MN 56301 (“Afinety”) and the entity that signs a Transactions Document that incorporates this MSA by reference (“Client”) and is effective as of the Effective Date listed on such Transactions Document.
1. DEFINED TERMS.
Capitalized terms not otherwise defined herein have the meanings given in this Section.
Affiliate means an entity or other person that controls, is controlled by, or is under common control with the entity referred to; for purposes of this definition, “control” means the right to control the policies of the entity, whether by ownership of voting stock, control of the seats of the entity’s governing body, or otherwise.
Agreement means, collectively, the Transactions Document(s) and attached appendices, this MSA, the Service Specific Terms, the Business Associate Addendum, if applicable, and any document referenced in or attached to any of them, each as they may be amended in accordance with this MSA.
Application(s) means those software applications identified in a Transactions Document that are hosted or supported by Afinety. Applications may be commercial off-the-shelf applications or Client-proprietary applications.
Business Day means Monday – Friday , excluding federal public holidays in the United States.
Client Data has the meaning given in Section 4.1 (Rights in Client Data).
Cloud Infrastructure means the computer, storage, networking, database and related information systems infrastructure that Afinety uses to host an Application.
Cloud Infrastructure Provider means the provider of the Cloud Infrastructure which may be Afinety or a third party, such as Amazon Web Services, Inc. for AWS®, the Microsoft Corporation for Azure®, and Citrix Systems, Inc. for Citrix Cloud.
Cloud Platform means the Afinety managed cloud environment consisting of Cloud Infrastructure and Afinety’s proprietary technology for the management of application hosting environments.
Cloud Platform Services means Afinety’s provision of an online environment for hosting of Applications and related services as detailed in the Service Specific Terms.
Confidential Information means non-public information disclosed by one party to the other party, on any media, whether before or after the effective date of the Agreement that: (i) the recipient should reasonably understand to be confidential, such as (A) for Client, the Client Data, and (B) for Afinety, unpublished prices and other terms of service, product development plans, vendors, audit and security reports, and other proprietary information or technology, or (ii) is marked or otherwise conspicuously designated as confidential by the disclosing party. Information that is independently developed by a party without reference to the other party’s Confidential Information, or that becomes available to a party, other than through violation of this Agreement or applicable law, is not “Confidential Information” of the other party. Confidential Information includes information disclosed by making tangible objects or premises available for inspection.
Documentation means Afinety’s general release materials that describe, in writing, Afinety’s implementation and onboarding process, support workflow details, and other details of the Services.
Go Live Date has the meaning given in the Service Specific Terms.
Professional Services means services defined in a Transactions Document as “professional services” or with like term, such as custom configurations of Applications, implementation of major version upgrades for Applications and related data migration, and modifications to systems architecture.
Services means the Cloud Platform Services, Support, Professional Services, and Supplemental Services, collectively.
Service Specific Terms means the Afinety terms applicable to a particular Service that are referenced in the Transactions Document.
Supplemental Services has the meaning given in Section 2.4 (Supplemental Services).
Support means technical assistance for the use of the Cloud Platform Services and may include technical assistance for the configuration and management of commercial off-the-shelf Applications if included in the Transactions Document. Unless expressly included in the Transactions Document or some other party of the Agreement, Support does not include front-line assistance directly to Client’s Users or assistance with the use of Application features and functions.
Term means the initial service term of the applicable Transactions Document and any renewals thereof, unless earlier terminated in accordance with the terms of the Agreement.
Transactions Document means the agreement signed by Client and Afinety that defines the services to be provided by Afinety, related fees, service terms, and other specifics, whether styled as an “order,” “order form,” statement of work,” “SoW,” “proposal,” “quote,” or other title, as it may have been modified in accordance with Section 12.4.2 (Other Changes).
User means a unique individual authorized by Client as an Application user in accordance with Section 5.2 (Users).
2.1 Cloud Platform Services.
Afinety shall provide the Cloud Platform Services as described in each Transactions Document for the Term of the Transactions Document in accordance with the Agreement. Afinety warrants that its Cloud Platform Services will be provided in accordance with the specifications stated in the Transactions Document and other parts of the Agreement (the “Cloud Platform Services Warranty”).
Afinety shall provide Support for the Cloud Platform Services for the Term of each Transactions Document in accordance with the Agreement. Afinety warrants that it will provide Support in accordance with the terms of the Transactions Document and other parts of the Agreement (the “Support Warranty”).
2.3 Professional Services.
Afinety shall provide the Professional Services described in each Transactions Document within the time period defined in the Transactions Document and in accordance with the specifications stated in the Transactions Document (the “Professional Services Warranty”).
2.4 Supplemental Services.
Supplemental Services are: (i) those services identified in a Transactions Document as “Supplemental Services,” and (ii) any other services that Afinety provides to Client that are not Cloud Platform Services, Support, or Professional Services. For example, Supplemental Services may include support for Client’s on-premises hardware or systems or data migration services. Unless otherwise expressly agreed in writing by Afinety, Supplemental Services are provided on a “best efforts” basis, meaning that Afinety will use commercially reasonable efforts to achieve the Client’s desired outcome using personnel who have general knowledge and experience in information technology.
Afinety will configure the Cloud Platform Services in accordance with the specifications in the Transactions Document and Afinety’s Documentation. Client acknowledges that the overall responsibility for effective security is a shared responsibility between Afinety and Client, and that no Internet based services can be made completely secure. Accordingly, Afinety is not responsible for security issues resulting from Client’s failure to meet its security obligations under this Agreement, or for security issues that occur notwithstanding Afinety’s adherence to the security requirements stated in this Agreement.
2.6 Infrastructure Optimization.
Afinety may deploy tools and processes to optimize the Cloud Platform for Client’s usage patterns provided that any changes do not have an overall adverse impact on agreed functionality or the User’s quality of interaction with the Cloud Platform.
3. ADDITIONAL WARRANTIES, WARANTY BREACH REMEDIES, DISCLAIMERS.
3.1 Compliance with Law; Malware.
Afinety represents and warrants that it will perform the Services in accordance with applicable law and will use commercially reasonable efforts to avoid the introduction of malware to the Cloud Platform.
3.2 Intellectual Property.
Afinety warrants that Client’s use of the Cloud Platform Services, Support, and Professional Services as permitted by the Agreement will not infringe the United States intellectual property rights of any unaffiliated third party (the “IP Warranty”), provided that the IP Warranty shall not apply to the Cloud Infrastructure or any Application. Afinety’s sole obligations with respect to a breach of the IP Warranty, and Client’s sole and exclusive remedies, are stated in Section 9.1 (Afinety Indemnification of Client).
3.3 Warranty Breach Remedies.
Client may require Afinety to promptly correct or re-perform any Services or Professional Services that do not conform to the Cloud Platform Services Warranty, Support Warranty, or Professional Services Warranty as applicable. If Afinety fails to promptly re-perform the Services and the breach is material, Client may terminate the applicable Transactions Document and receive a refund of fees paid for the month in which Client reports the breach and any prepaid fees for unused Services. The remedies stated in this Section are Client’s sole and exclusive remedies with respect to Afinety’s breach of the Cloud Platform Services Warranty, Support Warranty, or Professional Services Warranty.
3.4 Warranty Exclusions and Disclaimer of Implied Warranties.
Except for the warranties expressly stated in this Agreement (excluding the Documentation), Afinety, its suppliers, licensors, subcontractors, distributors and resellers make no representations or warranties whatsoever as to the Services, and expressly disclaim any implied warranties, such as a warranty of merchantability, fitness for a particular purpose, non-infringement, and any warranty that may arise through a course of dealing. Afinety does not warrant the Services will be error free, uninterrupted, or completely secure. Afinety is not responsible for any failures or delays of any third party, including but not limited to network providers. Afinety does not make any warranty or representation regarding the Applications themselves, the Cloud Infrastructure, or any hardware that may be procured by Afinety on Client’s behalf, even if Afinety has procured the Application license or hardware on Client’s behalf.
4. CLIENT DATA
4.1 Rights in Client Data.
“Client Data” means the information and data that Client processes by means of the Applications. As between Afinety and Client, Client owns and retains ownership of and all right, title and interest in the Client Data. Afinety will use and process the Client Data only as necessary to provide the Services or as otherwise expressly permitted by this Agreement or required by applicable law, and subject to Section 8 (Confidential Information).
4.2 HIPAA and PHI.
Client may not use the Services or Supplemental Services to process information that is “protected health information” under the Health Insurance Portability, Accountability Act of 1996 unless it has signed a Business Associate Addendum to this MSA in a form acceptable to Afinety.
5. CLIENT OBLIGATIONS
Client shall pay the fees for the Services when due for the entire Term of the Transactions Document, and shall provide information reasonably requested by Afinety to complete implementation of the Services in a timely manner. If Afinety is delayed in performing an implementation or similar services due to Client’s delay in making payments or providing information, Afinety may reschedule the services and charge rescheduling fees as stated in the Transaction Document or this MSA.
Client may authorize as Services users its personnel, the personnel of its Affiliates, and the personnel of any outsourcer retained by Client or its Affiliates to perform services in support of Client’s or its Affiliates’ internal business operations (each a “User”), subject to the limitations of any applicable third-party license terms and procurement of the appropriate number of User licenses, whether directly by Client or through Afinety. Client is solely responsible for requesting de-activation or updates of User permissions and authentication credentials for Client’s account, such as on the termination of employment of a User. Client authorizes Afinety to act on the instructions of any person or service that authenticates its identity using active User account credentials, provided the instructions are within the defined role-based permissions for that User.
5.3 Per User Fee Metric.
For Services fees that are stated in the Transactions Document as “per User” or with like designation Client may not permit the number of unique individuals using the Services to exceed the number of authorized Users. The number of authorized Users is stated in the Transactions Document but may be modified from time-to-time on Client’s written request, subject to written confirmation by Afinety or the applicable third-party provider. For clarity, the number of authorized Users does not refer to contemporaneous users, but to unique individuals; User seats may not be re-assigned from one individual to another.
Client shall use reasonable security precautions in connection with the Services such as requiring Users to establish reasonably secure passwords and using commercially reasonable efforts to protect Client systems and data from malware. Client is responsible for any unauthorized use of the Services resulting from Client’s failure to use reasonable security precautions. Client shall notify Afinety without undue delay if it discovers a security vulnerability or security event affecting the Services or the Client Data and shall cooperate with Afinety’s reasonable investigation of the event.
Afinety shall provide technical assistance to the Client’s support contacts who are reasonably proficient in the use of information technologies and the operation of information technology systems and applications. Afinety is not responsible for providing technical assistance directly to all of Client’s Users unless Client has purchased Help Desk Support.
Client is responsible for any service failures or security issues that result from the Client’s unilateral changes to its Cloud Platform. Afinety recommends that Client confer in advance with Afinety to evaluate the effect of any changes.
5.7 Client Provided Licenses, Client Data, Client Proprietary Applications.
Client authorizes Afinety to use the Applications and Client Data as reasonably necessary to provide the Services in accordance with the Agreement and as otherwise expressly permitted by this Agreement. Unless Afinety has agreed to provide Application licensing in the applicable Transactions Document, Client represents and warrants that it owns or has a valid and current license from the Application owner(s), for all Applications and that any license includes the rights necessary for Afinety to host and use the Applications as permitted or required by this Agreement. If Client is in breach of the representation and warranty stated in the prior sentence as to a commercial off-the-shelf Application and fails to cure the breach promptly on notice from Afinety, Afinety may, in addition to any other rights and remedies available for breach of the Agreement, do one or more of the following: (i) notify the Application vendor, (ii) suspend the Cloud Platform Services, and (iii) purchase a license on Client’s behalf at the vendor’s then-current rate and charge the licensing cost to Client. Client represents and warrants that Afinety’s use of the Client Data and any Client-proprietary Application as permitted by the Agreement will not misappropriate or infringe the intellectual property rights of a third party.
5.8 Internet Access.
Client is responsible for procuring Internet access of sufficient quality and capacity to access and use the Cloud Environment and Application(s).
5.9 High Risk Use.
Client may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, Client may not use, or permit any other person to use, the Services as a component of or to operate any medical device or in connection with any aircraft or other mode of human transportation, or nuclear or chemical facilities.
Client must use the Services in accordance with applicable laws and industry standards for acceptable use as represented by the Acceptable Use Policies published by Amazon Web Services, Inc. and the Microsoft Corporation. Specifically, but without limitation, Client may not use the Services in a way that causes Afinety to be in violation of the export laws of the United States or other jurisdiction from which the Services are provided. For example, Client may not authorize any person to use the Services that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) or who is located in or is a national of any country that is embargoed under United States export laws, or use or permit the use of the Services to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State.
6. FEES, PAYMENTS
The fees for the Services are as stated in the initial and any subsequent Transactions Document(s). Afinety may not increase its fees or rates during the initial or renewal term of a Transactions Document except: (i) as provided in Section 6.2 (Third Party Costs), (ii) Client’s use of the Services results in an unusual and unreasonable demand on Cloud Infrastructure that significantly increases Afinety’s costs to provide the Services, or (iii) as otherwise provided in the Transactions Document. Afinety may increase the fees or rates applicable to any renewal term by giving written notice of the increase at least thirty (30) days prior to the first day of the renewal term, provided that no increase may exceed the fees in effect for the immediately prior initial or renewal term by more than five percent (5%). Unless otherwise stated in the Transactions Document, fees are stated and must be paid in United States Dollars. Except as expressly stated otherwise in the Agreement, fees are non-refundable.
6.2 Third Party Costs.
If any third-party Cloud Infrastructure Provider increases its rates for the use of the Cloud Provider’s services (including by increasing the rates for a vendor-specific product such as a server or database fee), Afinety may make a corresponding increase in the Cloud Platform Services fees, provided that it gives as much advance notice of the fee increase as is reasonably practical under the circumstances.
Afinety may require Client to pay Afinety’s reasonable travel expenses for services performed onsite at Client’s location if the Transactions Document requires the services to be performed onsite or if Client asks Afinety, in writing, to provide services onsite. Travel expenses include air and ground transportation, parking, lodging, and meals. Afinety may also charge an hourly fee for the travel time of its personnel at the rate mutually agreed in writing.
6.4 Invoices and Payments.
Unless otherwise provided in the Transactions Document: (i) implementation, installation, set up fees and other one-time fees may be invoiced on the Transactions Document effective date, monthly recurring fees may be invoiced monthly in advance on or after the last day of the prior month, and hourly and usage fees may be invoiced monthly in arrears; (ii) Client must establish payment arrangements via ACH, and (iii) fees are due ten (10) days from invoice date. If the Transactions Document requires advance payment of setup up or other implementation-related fees, Afinety may require those fees to be paid in full before beginning the implementation of the Services. Afinety may charge a rescheduling fee of up to $500 for an implementation delay of more than ten (10) days where they delay is the resulting of Client’s delay in making a required payment or providing information reasonably requested by Afinety to perform the implementation service. Unless otherwise stated in the Transactions Document, Client shall make payments via ACH and Afinety may either refuse a payment made via other means or accept the payment and charge a $30.00 processing fee. Afinety may suspend any or all Services if the charge to Client’s account is refused and Client does not pay the amount due within four (4) Business Days of written notice from Afinety of such nonpayment. Afinety’s suspension of Services under this Section does not relieve Client of its obligation to pay fees for Services at the times required in the Transactions Document. Client agrees that if Client’s Services are reinstated after a suspension for non-payment, Afinety may charge Client its then-current hourly rate for Afinety personnel’s time spent to reinstate the Services, or $500.00, whichever is greater. Afinety may charge interest on overdue amounts at the lesser of 1.5% per month (or the maximum legal rate). If any amount is overdue by more than 30 days and Afinety brings a legal action to collect, or engages a collection agency, Client must also pay the reasonable costs of collection, including reasonable actual attorneys’ fees and court costs. Invoices that are not disputed within thirty (30) days of invoice date are conclusively deemed accurate.
6.5 Fee Disputes.
If Client reasonably disputes an invoiced amount and gives a written notice describing the dispute prior to the due date, Afinety shall extend the due date for the disputed amount for thirty (30) days (i.e., the disputed amount shall not be “due” until the date that is thirty (30) after the original due date, but all undisputed amounts shall remain payable on the original due date). During the thirty (30) day extension the parties shall cooperate in good faith to resolve the dispute. Any suspension, termination or other enforcement rights that Afinety has for overdue fees may not be taken during the thirty (30) day extension and no late interest will accrue even if it is ultimately determined that Afinety’s position with respect to the disputed amount is correct.
All fees are stated exclusive of sales, use, VAT, GST or similar tax (“Sales Tax”) unless expressly stated otherwise in the Transactions Document. Unless Client has provided an exemption certificate or direct pay permit, Client must remit to Afinety any applicable Sales Tax. Sales Tax is due on the payment terms applicable to the fees for the related Services. Client represents and warrants that Client’s address shown on the Transactions Document is the correct address for purposes of determining Sales Tax, and that all other information Client has provided to Afinety for Sales Tax purposes is accurate and complete. For clarity, Client is not required to pay any tax that is assessed on the basis of Afinety’s net income.
7. TERM, TERMINATION, SUSPENSION
The initial and renewal term of each Transactions Document is stated in the Transactions Document. If the Transactions Document is silent as to the initial term, the initial term is thirty-six (36) months. If the Transactions Document is silent as to renewals, the Transactions Document renews on expiration of the initial term for consecutive renewal terms having the same length as the initial term unless either party gives a notice of non-renewal at least thirty (30) days prior to the expiration of the initial or then-current renewal term, as applicable. Services that are billed on a per-User basis that are added to a Transactions Document by Client during the initial or a renewal term are co-terminous with the initial or renewal term applicable to that Transactions Document. “Co-terminous” means that the term expires or renews at the expiration or renewal of the Transactions Document to which it refers.
7.2 Termination for Breach.
Either party may terminate the Agreement for breach if the other party is in material violation of the Agreement, provided that if the violation is curable the terminating party shall first give the other party written notice of the breach and thirty (30) days to cure the breach.
7.3 Termination Other than for Breach.
Afinety may terminate the Agreement or all or part of any Transactions Document on ninety (90) days advance written notice if an Application vendor terminates its support for an Application or a Cloud Services Provider terminates its Services. Either party may terminate the Agreement if the other party is insolvent or files for bankruptcy or similar protection. Neither party has any liability with respect to a termination under this Section.
Afinety may suspend the Services and Client’s access to the Client Data, in whole or in part, during any period that Client is in material breach of this Agreement or as reasonably necessary to address any material security vulnerability that it discovers or reasonably suspects. Afinety will give Client at least two (2) business days’ advance notice of the suspension unless emergency circumstances require suspension on less notice. Afinety will reinstate Client’s access to the Services when the grounds for suspension are cured unless Afinety has already terminated the Agreement as described in this Section. Afinety’s suspension of Services under this Section for Client’s breach does not relieve Client of its obligation to pay fees for Services at the times required in the Transactions Document.
7.5 Obligations on Termination.
On expiration or earlier termination of a Transactions Document Afinety may disable Client’s access to the Applications, except for those Applications provided by Client which can be run outside of the Cloud Platform, and Client shall stop using the Services, and (ii) each party shall return or destroy the other party’s Confidential Information except as reasonably necessary to comply with the law or its reasonable record keeping processes and policies. Unless otherwise agreed prior to termination, Afinety shall destroy Client Data (including any backups) in accordance with its standard data destruction policies and schedule.
The following terms survive expiration or termination of the Agreement: Section 1 (Definitions) to the extent the terms defined are used in other surviving sections, Section 6 (Fees) as to fees accrued prior to expiration or termination, Section 8 (Confidential Information), this Section (Term, Termination, Suspension), Section 9 (Indemnification), Section 10 (Limits on Liability), Section 11 (Notices), Section 12 (General), any other terms that are expressly stated to survive termination, and any terms that by their nature are intended to survive termination.
8. CONFIDENTIAL INFORMATION
Neither party may use the other party’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of the party’s legal rights under this Agreement, or as may be otherwise permitted under this Agreement or required by law. Each party agrees not to disclose the other party’s Confidential Information to any third person except as follows: (i) to the party’s respective service providers, agents and representatives, provided that such service providers, agents or representatives are bound by written confidentiality measures that are at least as stringent as these terms; (ii) in response to a subpoena or other compulsory legal process, provided that the party gives the other party advance written notice of at least seven (7) days prior to disclosing Confidential Information under this subparagraph (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law or a reasonable interpretation of it, forbids such notice; or (iii) as required by law, such as a requirement under a data privacy regulation that a notice of data breach be given to a supervisory authority or regulatory agency. On expiration or earlier termination of the Agreement, each party will return or destroy the other party’s Confidential Information. Each party will use commercially reasonable efforts to prevent the unauthorized use, disclosure, corruption and deletion of the other party’s Confidential Information. Each party is responsible for a breach of this Section by its service providers, agents and representatives to whom it has disclosed the other party’s Confidential Information.
9.1 Afinety Indemnification of Client.
Afinety will defend, at its expense, any claim brought by an unaffiliated third party against Client, and Client’s officers, directors or personnel to the extent that the claim arises from Afinety’s breach of the IP Warranty and will pay any resulting damages, costs, and expenses finally awarded by a court or other tribunal having jurisdiction. In the alternative, Afinety may settle the claim provided that the settlement fully resolves the claim and does not require Client or other indemnified person to make any statement of culpability. Afinety’s obligations under this Section do not extend to any claim to the extent the claim arises from Client’s unauthorized combination of the Services with information, materials, software or other technology not provided by Afinety, Client’s unauthorized changes to the Services, or Afinety’s provision of Supplemental Services, or Afinety’s authorized use of an Application.
9.2 Client’s Indemnification of Afinety.
Client will defend, at its expense, any claim brought by an unaffiliated third party against Afinety, Afinety’s Affiliates, and their respective officers, directors or personnel to the extent the claim arises from Client’s breach of Section 5.6 (Client Provided Licenses, Client Data, Client Proprietary Applications) and pay any resulting damages, costs, and expenses finally awarded by a court or other tribunal having jurisdiction. In the alternative, Client may settle the claim provided that the settlement fully resolves the claim and does not require Afinety or other indemnified person to make any statement of culpability.
The indemnified party must give notice of the indemnified claim to the indemnifying party within ten (10) days of the date the claim is made, provided that failure to give notice within the 10 day period does not relieve the indemnifying party of its obligations under this Section except to the extent the delay prejudices the defense of the matter. The indemnifying party has the right to select counsel to defend any indemnified claim under this Section, and has the right to control the defense of the claim, except that the indemnified party may participate in the defense of the claim at the indemnified party ’s option and expense, with counsel of its choice. The indemnified party shall comply with any the indemnifying party’s reasonable request for information or cooperation regarding the defense of the claim.
10. LIMITS ON LIABILITY
10.1 No Consequential, Indirect Damages.
Except for indemnification obligations, claims arising from a party’s breach of Section 8 (Confidential Information), and claims based on the party’s breach of the other party’s intellectual property rights, neither party nor its affiliates, licensors, suppliers, subcontractors, distributors or resellers is liable to the other for any lost profits, lost revenue, lost business opportunity, or any indirect, special, incidental, punitive, or consequential loss or damage of any kind arising in connection with this Agreement, or any loss or damage that could have been avoided by the claiming party’s reasonable mitigation, even if the party has been advised of or should be aware of the possibility of such damages.
10.2 Maximum Liability.
Notwithstanding anything to the contrary in this Agreement, excluding: (i) claims arising from a party’s intentional tort, (ii) claims arising from a party’s intentional breach of Section 8 (Confidential Information), (iii) claims based on the party’s infringement or misappropriation of the other party’s intellectual property rights, and (iv) payment obligations under Section 6 (Fees, Payments), the maximum aggregate liability of a party and its affiliates, licensors, suppliers, subcontractors, distributors and resellers under or in connection with this Agreement for any type of damages shall not exceed the greater of Twenty Five Thousand Dollars ($25,000.00) or the amount of fees paid or payable by Client under the Transactions Document giving rise to the claim for the two (2) months preceding the event giving rise to the claim. For clarity, the maximum aggregate monetary limit stated in this subsection is not “per incident” but is an aggregate limitation applicable to all claims arising under or reLATING TO this Agreement (AND ANY AND ALL COMPONENTS THEREOF).
The parties acknowledge that Afinety has set its prices and entered into this Agreement on reliance on the limitations of remedies and liability stated in the Agreement, and that these limitations reflect an agreed allocation of risk between the parties. The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. Nothing in this Section precludes a party from seeking specific enforcement, injunctive relief or other non-monetary equitable remedy that is available by law. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
Unless another method of notice is expressly required by this Agreement, notices must be given by electronic mail. Afinety’s notice to Client must be given to Client’s primary account contact. Client’s notices to Afinety must be given to Client’s Afinety account team via a ticket submitted on the support portal. Client’s notice of breach of this Agreement, request for indemnification or other legal matter must be copied to email@example.com with a copy mailed via 1st class United States mail to Afinety Technology, LLC ATTN LEGAL NOTICES,912 W. St., Suite 21, Germain Street, St. Cloud, MN 56301.
Each party may use the other party’s name and logo in presentations to individuals or small groups, in web site publications, and collateral materials (i.e. brochures and other promotional material) and may provide the name of the other party’s primary contact as a reference as part of private business discussions, provided that it uses the other party’s trademarks in accordance with the other party’s trademark usage guidelines. A party may not use the other party’s name, logo, or primary contact information in any other manner without the other party’s prior written consent.
12.2 Transactions Document Process. Transactions Document Process.
Each Transactions Document becomes a legally binding commitment when executed by both of the parties thereto.
12.3 Employee Non-Solicitation.
Neither party shall directly or indirectly solicit any personnel of the other party with whom it has interacted in connection with the Agreement to terminate their employment with the other party, provided however, that this Section does not restrict a party from employing an individual who responds to the party’s general employment advertisement or notice. The parties agree that reasonable liquidated damages for a breach of this Section is the solicited individual’s base pay for the twelve (12) months preceding the solicitation in breach of this Section. This restriction shall survive expiration or termination of the Agreement for a period of twelve (12) months.
12.4 General Warranty.
Each party represents and warrants to the other that: (i) it has the right, power, and authority to enter into the Agreement and to fully perform its obligations under the Agreement; and (ii) the making of the Agreement does not violate any agreement existing between it and any third party. Client represents to Afinety that the information Client has provided to Afinety to establish Client’s account is accurate and complete.
12.5 Reservation of Rights.
Except for the rights expressly granted in the Agreement, each party retains all right, title and interest in and to its intellectual property, and the parties agree that no rights in intellectual property may arise by implication or estoppel. Neither party may reverse engineer, disassemble or decompile the other party’s intellectual property except as permitted by applicable law notwithstanding this restriction. Neither party is authorized to modify or create derivative works of the other party’s intellectual property. Neither party may remove any proprietary rights notices included by the other party on its licensed intellectual property. No information, materials, software, or other technology created or delivered under this Agreement is a work made for hire unless expressly defined as a “work made for hire” in a Transactions Document for Professional Services signed by the parties. Specifically, but without limitation, Client acknowledges that Afinety’s configurations and methodology for providing Cloud Platform Services is Afinety’s intellectual property.
Afinety is authorized to use any feedback, comments, or suggestions for the improvement of the Services that Client provides for Afinety’s general business purposes without payment of any compensation to Client.
12.7 Assignment, Subcontractors.
Either party may assign this Agreement without the other party’s prior written consent: (a) in connection with the sale of all or substantially all of its assets; (b) to the surviving entity in any merger or consolidation; or (c) to an affiliate. Any other assignment requires the prior written consent of the other party. Afinety may use subcontractors to perform all or any part of the Services, but subject to exclusions and limitations expressly stated in this Agreement remains responsible to Client under this Agreement for Services performed by its subcontractors to the same extent as if Afinety performed the Services itself. For the avoidance of doubt, the Application providers and Cloud Infrastructure Providers are not subcontractors hereunder.
12.8 Governing Law.
This Agreement is governed by and interpreted under the laws of the State of Minnesota and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Transactions Act. The parties agree that neither the Services nor the Cloud Platform are considered “goods” covered by any State version of the Uniform Commercial Code.
Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not file a lawsuit or other legal action in connection with this Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation. At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator in Stearns County, Minnesota. The mediator will be chosen by mutual agreement of the parties within twenty-one (21) days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants and experts in connection with the dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party. If the dispute is not resolved through negotiation or mediation within forty-five (45) days of the date of the initial demand for mediation, the parties are free to file a lawsuit or other action.
12.9.2 Jurisdiction, Venue.
Each party agrees that it shall bring any lawsuit or other legal action related to this Agreement in the State or Federal courts sitting in Stearns County, Minnesota. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court.
12.9.3 Waiver of Jury Trial.
To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of this Agreement and the parties’ activities regarding this Agreement.
12.9.4 Time Bar.
A party may not bring an action in relation to this Agreement more than two (2) years after the date that the cause of action accrued.
12.9.5 Prevailing Party Entitled to Fees and Costs.
The prevailing party in any action to enforce this Agreement, including an action for equitable relief, may recover its costs and expenses of the action from the other party, including reasonable attorney fees.
12.10 Expenses Arising from Legal Disputes, Subpoenas Regarding Client’s Account.
In addition to Client’s indemnification obligations, Client must also pay or reimburse Afinety’s reasonable actual attorneys’ fees and other expenses incurred in connection with any dispute between persons having a conflicting claim to control of Client’s account, or to comply with any third-party subpoena, warrant or other mandated disclosure that is unrelated to any claim between Client and Afinety.
12.11 Force Majeure.
Except for Client’s payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, pandemic, governmental restriction, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
12.12 Interpretations of Certain Words.
The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). The term “law” refers to statutes, regulations, executive orders, and other legally binding rules issued by a government agency having jurisdiction. The word “including” means “including, without limitation.” The words “will” and “shall” are words of obligation, not expressions of intent or expectation. All references to monetary amounts mean United States Dollars unless otherwise indicated. The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement unless identified as a “third party.” A reference to “day” means a calendar day, unless expressly designated as a “business” day. The term “personnel” refers to employees other individuals under the direct supervision of the person referred to. All technology provided under this Agreement is licensed and not sold; any use of the term “sale” or like word means a sale of a license. Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. Nouns stated in the singular may imply the plural as indicated by the context, and pronouns that are gender specific should be read to refer to either gender. The Section captions in this Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement. References to sections in any of the documents that comprise the Agreement are references to the sections of the document in which the references appear unless otherwise indicated.
12.13 Relationship Between the Parties. The parties are independent contractors, and neither party is the agent of the other or has the right to bind the other on any contract with a third party. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. Nothing in this Agreement creates an obligation of exclusivity or non-competition. Each party is free to purchase and sell services of the type described in the Agreement to any person, including competitors of the other party.
12.14.1 Changes to Online Terms.
Afinety may modify the MSA, Service Specific Terms, and any other online document that is part of the Agreement. Modifications are effective as to any Transactions Document that is signed after the date the modified version is published, and are effective as to then- existing Transactions Documents as of the first renewal term that begins at least thirty (30) days after the modification is published. If Client executes a modification to an existing Transactions Document, the version of the MSA, Service Specific Terms, and other online documents that are published on the date of that modification control as to all Transactions Documents for the Services covered by the Transactions Document as modified. In addition, Afinety may make modifications effective as to existing Transactions Documents by giving Client notice of the modification or publishing a description of the modification in a conspicuous location (such as the Client login page for the Services) provided that if Client gives a notice of objection to the modification within thirty (30) days of the notice or publication and the parties are not able to resolve the objection through the use of good faith negotiations, then the modification shall not become effective as to Client and Afinety may terminate the Agreement on written notice.
12.14.2 Other Changes.
Except as provided in Subsection 12.14.1, the Agreement may be modified only as follows: (i) a Transactions Document may be modified by a signed written agreement that expressly references the Transactions Document, and (ii) the MSA, Service Specific Terms, or other part of the Agreement by an amendment that specifically references that document to be modified and that is signed by the parties.
12.15 Order of Precedence.
If there is a conflict between the documents that comprise the “Agreement,” the documents control in the following order: the Business Associate Addendum (if applicable), this MSA, the Service Specific Terms, and the Transactions Document, except to the extent the Transactions Document expressly states that a particular attachment or provision thereof shall supersede a specific provision of this MSA. If there is a conflict between the Transactions Document and any of its appendices, the body of the Transactions Document controls.
12.16 Third Party Beneficiaries.
Unless and to the extent specifically stated otherwise in some other section of this Agreement, there are no third-party beneficiaries to this Agreement. Neither party’s customers, end users, suppliers, or other person shall have the right to enforce this Agreement.
In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
No right or remedy arising regarding this Agreement shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy. A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived. Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy.
12.19 Counterparts, Signatures.
This Agreement may be signed in multiple counterparts, which taken together shall be read as one Agreement. A signed agreement transmitted by facsimile, email attachment, or other electronic means shall be considered an original. The parties agree that electronic or digital signatures shall be given the same effect as a manual signature. This MSA, together with the other portions of the Agreement, is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces in its entirety any prior or contemporaneous agreement or understanding, written or oral. The parties represent to each other that they have not entered into the Agreement in reliance on any statement other than those included in the