THIS MASTER AGREEMENT GOVERNS YOUR USE OF M.I.S. SUPPORT, INC.’S SERVICES BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A DOCUMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE MISSUPPORT’S OFFERINGS. THE PARTIES AGREE THAT THIS AGREEMENT MAY BE ELECTRONICALLY SIGNED. THE PARTIES AGREE THAT THE ELECTRONIC SIGNATURES APPEARING ON THIS AGREEMENT ARE THE SAME AS HANDWRITTEN SIGNATURES FOR THE PURPOSES OF VALIDITY, ENFORCEABILITY AND ADMISSIBILTIY.
This Master Agreement (“Master Agreement”) is between M.I.S. SUPPORT, INC. a Florida corporation, with its principal office located at 8185 Via Ancho #880423, Boca Raton, FL 33433 (“Consultant”) and your organization, (“Client” or “You” or “Your”), is effective on the date set forth in the referencing Schedule and specifies the terms and conditions agreed between the Parties as a foundation for their relationship as further defined in any applicable Addendums. It shall govern all service orders and statements of work issued hereunder (individually referred to herein, as “Schedule”, “Service Order(s)”, and/or “Exhibit “A” and collectively, as “Service Orders”). The Master Agreement may incorporate any applicable Addendum attached hereto. If there is a conflict between the terms and conditions of the Master Agreement and the terms and conditions of the Service Orders, the terms of the Master Agreement shall govern.
Definitions:
“Addendum” means the additional terms and conditions applicable to the Master Agreement.
“Agreement” and “Master Agreement” means this Master Agreement, the applicable Addendum and applicable Schedule, and any document incorporated expressly therein by reference.
“Client” means you, or your organization
“Schedule”, “Service Order(s)”, and/or “Exhibit “A” means a signed mutually agreed ordering document such as a Consultant’s order quote or statement of work for the specific Consultant’s time.
Consultant and Client, intending to be legally bound, agree as follows:
1. SERVICES AND/OR DELIVERABLES.
1.1 Consultant agrees to provide the services, deliverables and/or products described in each Service Order, commencing with the Service Orders set forth in a document entitled Exhibit A. Exhibit A may change from time to time and/or on a yearly basis, upon Client’s prior approval.
1.2 Unless otherwise set forth in Exhibit A, Client agrees to pay to Consultant an hourly rate for services performed of One Hundred and Thirty Five Dollars ($135) per hour for each Consultant employee providing services to Client. Client hereby authorizes and consents to have Consultant and/or Consultant’s subsidiary Hackify, LLC, a Florida limited liability company (“Hackify”) scan Client’s entire server, individual laptops and website including, without limitation, a scan of Client’s security system and other components (collectively, “System”). Client hereby holds Consultant and Hackify harmless from any of Consultant’s and Hackify’s services and Consultant’s and Hackify’s access to Client’s System and Client waives any Losses (defined herein) and rights against Consultant and Hackify and Consultant’s and Hackify’s parent, affiliates, subsidiaries, members, managers and beneficial owners including, without limitation, a waiver of all Losses arising from such access by Consultant and Hackify to Client’s System including, without limitation, a waiver of any claims relating to loss of data, breach of the system and theft of personally identifiable information. Client acknowledges that Client is solely responsible for the management and servicing of its System and for implementing all safeguards recommended by Consultant.
2. Compensation.
2.1 As total compensation for the services, software, deliverables and/or other related products (collectively referred to herein as “Deliverables”) described in each Service Order, Client agrees to pay Consultant those amounts set forth in each such Service Order. Unless otherwise set forth in any applicable Service Order, Client shall pay all charges and fees net fifteen (15) days from the date of invoice. Consultant reserves the right to request advance deposits which will be offset from the invoices that are transmitted to Client. Any Deliverables provided by Consultant will be invoiced upon shipment. Any shipment to Client shall be F.O.B. shipper. Client assumes any and all risks after the Deliverables are tendered to the courier or other shipper. Consultant reserves the right to require a deposit for payment with respect to any Service Order. Client shall pay for reasonable shipping, handling and insurance charges on any shipment of Deliverables which shall be in addition to the prices outlined in the Service Orders.
2.2 Client also agrees to reimburse Consultant for expenses incurred in the performance of its responsibilities under this Agreement. Such expenses (including but not limited to travel, accommodation, etc.) shall be subject to prior written agreement between Consultant and Client, and shall be passed through to Client at cost. Such expenses and associated costs shall be payable net thirty (30) days from receipt of an invoice.
3. Term.
The Agreement shall remain in effect for an initial term of twelve (12) months (“Term”), and shall thereafter be automatically renewed for additional, consecutive terms of the same duration, unless a party tenders no less than ninety (90) days written notice prior to the end of the Term of its intent to not renew the Agreement. This Agreement shall remain in effect and shall not terminate until (i) all Service Orders between the parties have terminated in accordance with their own terms or (ii) either party provides the other with at least thirty (30) days prior written notice of its desire to terminate this Agreement (“Termination”). Notwithstanding the foregoing, either party may terminate this Agreement or any Service Order upon sixty (60) days prior written notice in the event of any material breach by the other party of its obligations thereunder, unless such breach is cured prior to the expiration of such sixty (60) day period. Upon Termination of this Agreement, all remaining amounts owed to Consultant as of such Termination date under this Agreement and all Service Orders between the parties shall immediately become due and payable. Except as otherwise provided herein, the rights and obligations of the parties set forth herein shall continue to bind the parties, and any successors and permitted assigns of the parties after Termination of this Agreement and all Service Orders. This Section 3 shall survive Termination of the Agreement. Termination by either party shall not prejudice any remedy that either party may have, at law, in equity or under this Agreement or under any Service Order. If the Agreement or any Service Order is terminated by Client without cause (where there is no material breach), Client shall also pay Consultant for any demobilization costs resulting from such early termination including, without limitation, start up fees and infrastructure costs (“Liquidation Fee”). This Liquidation Fee is not a penalty and is accepted by both parties as reasonable and is not the sole remedy of Consultant.
4. Taxes.
All sales, use, excise and personal property taxes, tariffs and other governmental charges (collectively, “Taxes”) are Client’s responsibility and shall be paid by Client.
5. Late Payment.
If Client fails to pay any invoice when due in accordance with the applicable Service Order, Client shall pay interest at the rate of 1.5% per month (or such greater rate as is the maximum rate allowable under applicable law) on the outstanding amount from the due date until the payment date. If Consultant undertakes collection or enforcement efforts, Client shall be liable for any and all costs thereof, including, without limitation, attorneys’ fees. If Client is in arrears on any invoice, Consultant may, on giving notice, apply any deposit thereto and withhold or cancel further performance of Deliverables until all arrearages are brought current. Consultant may suspend or terminate this Agreement or any Service Order immediately, and without any liability or penalty. Consultant reserves the right to assess and accrue late payment fees with respect to any disputed charge resolved in Consultant’s favor. Notwithstanding the foregoing, Consultant reserves, in its sole discretion, the right to pursue any and all remedies available in a court of law. Client agrees to pay for any and all attorneys’ fees and other related costs which Consultant incurs as a result of its collection efforts.
6. Warranty.
6.1 Client acknowledges that Consultant acts as a reseller only of the portion of the Deliverables which is comprised of software or hardware and which are provided to Client under this Agreement and any Service Order, that Consultant neither designs, publishes nor manufactures any of such Deliverables including, without limitation, Consultant and Hackify do not manufacture or design any hacking software or any other software, and that Consultant and Hackify therefore disclaim and Client waives any and all warranties relating to the software or hardware including, without limitation, any hacking and software protection software. Client acknowledges that its sole warranty, if any, as to any software or hardware provided is limited to any such warranty given by the third party (not Consultant or Hackify) manufacturer or publisher of the portion of the Deliverable, as the case may be. Client acknowledges that Consultant and Hackify shall provide recommendations regarding protection against hacking and other security measures to be implemented by Client and Client shall then bear sole responsibility for implementing such security measures. The definition of “hacking” shall include without limitation, the hacking, attacking, gaining access to, breaching, circumventing or testing the vulnerability of the user authentication or security of any host, network, server, personal computer, network access and control devices, software or data without express authorization of the owner of the system or network and any other direct or indirect disruption or breach of Client’s System.
6.2 Consultant is not responsible for any errors, defects, malfunctions, or other problems resulting from the following and Client hereby holds Consultant and Hackify harmless from the following: (i) incorrect specifications having been submitted to Consultant, (ii) any hacking software and any hacking procedures and safeguards recommended by Consultant or Hackify or provided by Consultant or Hackify including, without limitation, any hacking that occurs after or before Consultant provides its services; (iii) Client having approved incorrect specifications, (iv) improper use of Deliverables, (v) any modification having been made to said Deliverables by other than Consultant personnel, (vi) any security safeguards and protocols that are not implemented by Client or which Client alters; (vii) Client negligence, (viii) hardware equipment malfunctions, or (ix) any other circumstances not caused by Consultant, and any effort by Consultant to diagnose or correct any of the above problems shall be performed at Consultant’s then current time and material rates. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED HEREIN, CONSULTANT AND HACKIFY MAKE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE SERVICES PROVIDED BY CONSULTANT OR HACKIFY ARE BEING PROVIDED AS IS AND CLIENT ASSUMES THE RISKS OF ALL LOSSES ARISING FROM ANY HACKING. In the event Client discovers any hacking activities, Client shall immediately report such activities in writing to Consultant or Hackify. Consultant or Hackify shall then engage in its additional Services at the time and material rates set forth herein.
6.3 Consultant and Hackify shall not be responsible for Client’s loss of data or breach of personally identifiable information and other information including without limitation, any loss of data arising from security protocols, security software, theft of personally identifiable information and other recommendations of Consultant or Hackify to Client. Client shall be solely responsible for implementing recommendations from Consultant or Hackify for the implementation of security safeguards. Except as otherwise outlined in the attached service order, schedule or attachment to this Agreement, Client shall be solely responsible for maintaining current backups of all data and for implementing security safeguards in its System. Any warranty outlined herein does not cover infection of any Client system with a virus or breach of any security protocols or software recommended by Consultant or Hackify. All work necessary for Consultant to remove a virus or implement security and safety protocols will be billed to Client. Consultant and Hackify will not be responsible for service or work arising from abuse, misuse, illegal use or modification of the application or system other than by Consultant. Unless otherwise specified, Client acknowledges and agrees that this is a contract for services and as such is not governed by the provisions of Article 2 of the Uniform Commercial Code. Client acknowledges that Consultant owns all of the rights to its work product, services, trademarks, patents and other intellectual property and Client waives any rights to the foregoing. Client acknowledges that all past, present and future confidential information and intellectual property of Consultant and Hackify, is solely owned by Consultant or Hackify respectively and Consultant’s and Hackify’s trade secrets, confidential information and intellectual property are valuable, confidential, special and unique assets of Consultant and Hackify, expensive to produce and maintain, and essential for the profitable operation of its business. All documents relating to the business of Consultant and Hackify including, without limitation, all confidential information, trade secrets, processes, recommendations, reports and intellectual property, prepared by Consultant or Hackify or otherwise coming into Client’s possession, and whether in original form or in duplicated or copied form, are the exclusive property of the Consultant and Hackify and are owned exclusively by Consultant. This Agreement shall be confidential and not be disclosed at any time to any parties.
7. Indemnification.
Consultant hereby agrees to indemnify and hold Client harmless from and against any claim, suit, demand, liability, cause of action, damage or cost (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) solely arising from or relating to bodily injury or death of any person or damage to real and or tangible personal property directly caused by the sole negligence or willful misconduct of Consultant, its personnel or agents. Said indemnification obligation does not apply to subcontractors of Consultant.
Client herby agrees to indemnify, defend and hold Consultant and Hackify, and their employees, parent, affiliates, subsidiaries, principals, agents and affiliates harmless from and against any Losses arising from or relating to (i) any bodily injury or death of any person or damage to real and/or tangible personal property caused by the negligence or willful misconduct of Client, its personnel, employees, or agents; (ii) any act or omission of Client or its agents or employees that fails to comply with requisite standard of care or Client responsibilities; and (iii) any third party Claims.
8. Limitation of liability.
8.1 IN NO EVENT WILL CONSULTANT OR HACKIFY OR THEIR PARENT, SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, DAMAGE TO, OR LOSS OF, THEFT OF PERSONALLY IDENTIFIABLE INFORMATION, BREACH OF THE SYSTEM, ANY RECORDS OR DATA OR ANY CLAIM OR DEMAND AGAINST CLIENT BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER, EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN OF SUCH POSSIBILITY.
8.2 CONSULTANT’S AND HACKIFY’S AND THEIR PARENTS’ AND SUBSIDIARIES’ ENTIRE LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR BY STATUTE OR OTHERWISE) TO CLIENT OR TO ANY THIRD PARTY CONCERNING THE PERFORMANCE OR NONPERFORMANCE BY CONSULTANT OR ANY MATTER RELATED TO THIS AGREEMENT OR ANY SERVICE ORDER, FOR ANY AND ALL CLAIMS, SHALL NOT IN THE AGGREGATE EXCEED THE AMOUNT PAID BY CLIENT TO CONSULTANT OR HACKIFY THEREUNDER WITH RESPECT TO THE PARTICULAR DELIVERABLE PROVIDED UNDER THE APPLICABLE SERVICE ORDER IN THE PRIOR TWO MONTHS AND GIVING RISE TO THE LIABILITY. In addition to the foregoing, Consultant’s and Hackify’s entire liability to Client under this Agreement, for any cause of action, shall in the aggregate be limited to the lesser of Consultant’s or Hackify’s (respectively) charges applicable to the service order in the two months preceding any claim under this Agreement for the specific deliverables which are the subject of the alleged claim.
8.3 The foregoing or anything in this Agreement to the contrary notwithstanding, regardless of the negligence or fault of Consultant or Hackify, Client will release, indemnify, defend and hold harmless Consultant and Hackify and its respective directors, officers, shareholders, employees, agents and affiliates, from and against all Losses arising from the use of any motor vehicle.
8.4 Client shall be solely responsible for insuring that any information provided to Consultant is accurate and complete in all respects, and Consultant shall not be liable for any defect or delay resulting from Client’s failure to fulfill its obligations under this Agreement.
8.5 In addition to the foregoing, Consultant shall not be liable for (i) any claim of infringement of software which Consultant re-sells or provides to Client; (ii) any security protocols recommended for Client’s System; (iii) any security software whether or not provided by Consultant or Hackify; (iv) where said software is provided by Client to Consultant for installation; or (v) said software is pre-existing on Client’s database and at Client’s request the software is installed on additional Client systems or computers. Client hereby agrees to waive any and all claims against Consultant relating to said infringement and agrees to indemnify, defend and hold Consultant harmless from any and all Losses which result from Client’s use of Consultant provided Software or other security protocols. If Client is sued by a third party for software infringement, Client’s sole recourse shall be to bring a legal claim against the manufacturer of said software. Client hereby irrevocably waives any rights or claims for Losses or otherwise against the parent and subsidiaries of Consultant.
9. Soliciting employees or representatives.
During the Term and for a period of two (2) years following the termination of the Agreement and all Service Orders, Client shall not (a) offer employment to any employee, consultant or subcontractor of Consultant or its subsidiary; (b) attempt to directly or indirectly induce any employee of Consultant or its subsidiary to terminate his or her employment with Consultant or its parent; or (c) offer employment to a former employee or consultant of Consultant or its subsidiary for the twelve (12) month period immediately following the former employee’s termination. In the event of a breach of this Section 9, Client shall, within ten (10) days of such breach, pay Consultant in addition to any other fees required under these General Conditions, damages in an amount equal to the full amount of the total compensation paid to such Consultant employee or former Consultant or its subsidiary employee in the last twelve (12) months of his or her employment by Consultant or its subsidiary. In the alternative, in the event of a breach of this Section 12, money or damages may not be an adequate remedy, and, therefore, in addition to any other legal or equitable remedies, Consultant and its subsidiary shall be entitled to obtain an injunction against such breach. The obligations set forth in this Section are independent covenants and shall survive the termination or expiration of this Agreement and any Service Order which is terminated for any reason.
Client shall indemnify, defend and hold harmless Consultant (as well as any others acting by or under authority of Consultant) and Hackify for any Losses arising out of, and Client shall at its own expense defend or settle, any cause of action or proceeding brought against Consultant or Hackify, (as well as any others acting by or under authority of Consultant) that is based on a claim of infringement by a third party or by Client of intellectual property rights arising in connection with Client’s intellectual Property or any portion thereof including, without limitation, software and hardware provided by Client to Consultant or Hackify or which is owned or licensed by Client.
10. Independent consultant.
For the purposes of this Agreement and any Service Order, Consultant is an independent consultant and nothing in this Agreement or any Service Order shall create, or be construed to create, any agency, partnership, joint venture or other form of joint enterprise between Consultant and Client.
11. Assignment.
This Agreement and the performance of any obligation hereunder, or under any Service Order, may not be assigned, delegated or otherwise transferred by Client without the prior written consent of Consultant. Consultant may, without Client’s consent, assign this Agreement or the performance of any obligation hereunder, or under any Service Order, to an entity (a) which acquires substantially all of its or its parent’s membership units or assets, or (b) which merges with, or otherwise consolidates into, Consultant, upon reasonable notice to Client. The obligations of Consultant and Client under this Agreement and any Service Order shall inure to the benefit of and shall be binding upon the successors and permitted assigns of Consultant and Client.
12. Project changes.
No changes involving the deletion or addition of hardware, Deliverables or otherwise involving changes in any amounts payable hereunder shall be made except in writing in a Change Order or Service Order and signed by Authorized Representatives of the other party. Consultant reserves the right to increase or decrease its pricing, in its sole discretion, due to any Change Orders.
13. General provisions.
13.1 Entire Agreement.
13.1.1 This Agreement sets forth the entire understanding between the parties hereto and supersedes all prior agreements, arrangements and communications, whether oral or written, with respect to the subject matter hereof. Any Purchase Order issued by Client shall be for its administrative purposes only and none of its terms and conditions shall have of any legal force or effect. Each Service Order, except as its terms otherwise expressly provide, shall be a complete statement of its subject matter and shall supplement the terms and conditions of this Agreement for the purposes of that engagement only. No other agreements, representations or warranties, whether oral or written, shall be deemed to bind the parties hereto with respect to the subject matter hereof.
13.1.2 Neither this Agreement nor any Service Order may be modified or amended except by the mutual written agreement of the parties. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by the party against which it is sought to be enforced.
13.2 Severability. If any provision of this Agreement, other than Section 2 hereof and any other provision relating to Consultant’s compensation, or any Service Order is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement or such Service Order, and all provisions not affected by such invalidity shall remain in full force and effect.
13.3 Notice of Default. Neither party may commence a suit or legal action on account of a default by the other party in the performance of any of its obligations under this Agreement or under any Service Order, unless the party seeking such suit or action shall first give the defaulting party written notice of the default, specifying the nature and circumstances thereof. Such notice shall be properly delivered to the address indicated in the Service Proposal, or such amended address as may have been previously noticed, at least thirty (30) days prior to the commencement of the suit or legal action, except for non-payment which action may be brought immediately, without prior notice. The waiver by either party of a breach or default in any of the provisions of this Agreement or any Service Order by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.
13.4 Applicable Law. This Agreement and any disputes arising out of or in connection with this Agreement, or any Service Order, shall be governed by and construed in accordance with the laws of the State of Florida in the county of Palm Beach without regard to conflicts of law principals, Client submits to the exclusive jurisdiction of the state courts located exclusively in Palm Beach County Florida and Client hereby waives any rights to contest such jurisdiction including, without limitation, any defense of forum non-conveniens. In the event of a conflict or lawsuit between the Parties, the non-prevailing party shall be responsible for the attorneys’ fees and costs of the prevailing party.
13.5 Notices. Unless otherwise specified herein, all notices, requests, demands, reports and other communications under this Agreement and any Service Order or Change Orders shall be in writing and delivered by overnight delivery services, first class pre-paid mail, or by facsimile machine to the parties at the addresses set forth herein or such other location(s) as may be requested in writing by the parties from time to time.
13.6 Counterparts, Facsimile Machine. This Agreement and any Service Order may be executed by facsimile machine, in a pdf or clickthrough agreement and in counterparts, which when taken together, shall constitute one and the same agreement.
13.7 Returns and Exchanges
13.7.1 RETURNS FOR REFUND: All returns must be postmarked within seven (7) days of the purchase date. All returned items must be in new and unused condition, with all original tags and labels attached.
13.7.2 RETURN PROCESS: To return an item, please email customer service at accounting@missupport.com to obtain a Return Merchandise Authorization (RMA) number and return process instructions.
Please note, Client will be responsible for all return shipping charges. We strongly recommend that you use a trackable method to mail your return.
13.7.3 TIME FRAME: After receiving your return and inspecting the condition of your item, we will process your return. Please allow at least seven (7) days from the receipt of your item to process your return and/or exchange. We will notify you by email when your return has been processed.
13.7.4 RETURN EXCEPTIONS: The following items cannot be exchanged:
- opened computers
- opened servers
- used electronics
13.7.5 DEFECTIVE OR DAMAGED PRODUCTS: please contact accounting@missupport.com to arrange a refund or exchange.
13.7.6 RESTOCKING FEE: A 25% restocking fee will be charged for all returns/exchanges unless product was defective or damaged.
Agreed upon by the Parties as of the Effective Date as of the initial Schedule of Service.