April 25, 2014

iAccess Master Sales Agreement

To download a PDF copy of this document, click this link:  IACCESS_MSA

iACCESS, INC.

MASTER SALES AGREEMENT

 

This Master Sales Agreement (“MSA”) is by and between IAccess, Inc., its subsidiaries, and affiliates (collectively, the “Company”) and the individual and/or entity reflected on the signature line below (“Customer”) for the purchase of certain hardware and software (collectively, the “Product”), various professional services (“PS”), and/or Contract services (“CS”); PS and CS shall collectively be referred to as “Services.” Company and Customer shall be collectively referred to as “Parties.” In consideration of the mutual promises of the Parties and other good and valuable consideration, the Parties hereby agree to the following:

 

ARTICLE ONE: DEFINITIONS

 

1.1 Professional Services (“PS”). Professional Services are project-based or time and materials-based services provided to Customer including: consulting, staff augmentation, warehousing, integration, design, installation, configuration, support, project management and other services performed by Company’s employees, agents, subcontractors, consultants and representatives, based on customer request or as detailed in a PS Statement of Work (“SOW”).

 

1.2 PS SOW. A PS SOW is a document that details the services to be performed for Customer. Customer may initiate an unlimited number of SOW’s under the terms of this MSA, each of which will be incorporated herein once executed by both Parties.

 

1.3 PS Change Order. A PS Change Order is a document which modifies a previously executed SOW. A PS Change

Order is required when material changes or additional work is requested by Customer may initiate unlimited changes in the projected scope.

 

1.4 PS Time and Materials (“T&M”).  T&M Services will be provided on an as needed, best-effort basis.  The PS will be defined by the client based on the current request.  All customers will be required to sign either the IT PS Agreement which defines the Companies basic terms and conditions for all non-Contract Services (“CS”) work performed or a Contract Services (“CS”) Contract.  Contract Services provide the ability to define more granular SLAs and hourly bill rates.

 

1.5 Contract Services (“CS”). Contract Services includes ongoing remediation (problem resolution), administration, support or consulting work performed by Company for Customer for a fixed contract period with a defined scope.

 

1.6 Non-Recurring Charge (“NRC”). A one-time, non-recurring fee to initiate a CS Contract.

 

1.7 Monthly-Recurring Charge (“MRC”). Any monthly-recurring fee for continual services rendered under the terms of a PS or CS Contract.

 

1.8 CS Contract. A CS Contract is a document that defines the Contract Services to be performed by

Company for Customer and includes: the term (usually 12 months from receipt of payment), the NRC or MRC (usually in the form of a NRC retainer), contract rates, Service Level Agreement (“SLA”), and any special terms or conditions associated with Services. Customer may initiate an unlimited number of CS Contracts under the terms of this MSA, each of which will be incorporated herein once executed by both Parties.

 

1.9 CS Limitations.  Contract Services are to be used by Customer for support of existing install base.  Support is defined as break/fix, configuration changes, version updates, health checks, knowledge transfer and the like.  Any new Customer initiative involving new hardware or software, and the implementation and configuration services required to place these new components into service, are not covered under the CS Contract.  A PS Project SOW will be required for any new initiatives as detailed in Article Two below.

 

ARTICLE TWO: PROFESSIONAL SERVICES

 

2.1 Services. Under the terms of this MSA, Customer may choose to purchase PS where each project is initiated by a separate SOW, as defined above. Customer may initiate an unlimited number of SOW’s, each of which will be incorporated herein once executed by both Parties.

 

2.2 Changes. Changes to any SOW may be made only upon the mutual written agreement of the Parties. Any material changes which may cause a change in the scope shall be mutually agreed to and detailed in the PS Change Order. The PS Change Order and its accompanying Sales Estimate shall detail the estimated costs using the same or similar methods to those used in the SOW. No changes or additions shall be implemented until both Parties execute the PS Change Order.

 

2.3 Personnel. Company shall provide the necessary skilled personnel to perform the PS described in the applicable

SOW. Customer reserves the right to change assigned personnel as required by its business needs and consideration or as otherwise required to complete the PS. Customer must provide Company a written notice of the request to change assigned personnel.

 

2.4 Customer Responsibilities. Customer shall support the activities of Company in any reasonable technical, administrative, and commercial way and shall provide Company with any documentation, statements, and credentials necessary for Company to perform the PS in a timely manner. Customer shall also be responsible to satisfy certain prerequisites before work by Company can begin as set forth in the applicable PS SOW. Company shall not be responsible for delays caused by Customer. Customer shall use reasonable efforts to assist Company by providing (a) adequate workspace, including access to office equipment reasonably required to perform the tasks described in PS SOW. Workspace facilities will be established on the first day Company arrives on site, (b) Access to internal systems and outside communication links, as required to enable performance of work, (c) Security access to Customer’s premises in accordance with Customer’s then-current security policy and (d) all relevant documentation required by the Company. (e) Access to key personnel whose participation is required, in Company’s reasonable discretion, in order for work to effectively proceed, (f) Support staff properly trained in their respective areas of technical expertise, (g) Meeting facilities as required, including phone hookups for telephone conferences. (h) Necessary site access at all work sites specified by the SOW. If additional sites are added to the original scope of work under the SOW, then additional time and materials fees will be assessed for work at those additional sites, including travel and subsistence expenses where required. (i) Customer shall manage and protect its own data on a daily basis. This includes regular backups and data management tasks, which shall not be assumed by Company unless specifically in the PS SOW.

 

2.5 Invoicing and Payment for PS. Notwithstanding the payments terms in Article Six below, PS invoices are either a Fixed-Price fee or Time and Materials fee (“T&M”) or a combination of both, as defined in the applicable PS SOW.  For Fixed-Price fees, Company shall invoice Customer upon completion of billable milestones as defined in the applicable PS SOW or at the end of each week based on the percentage of work performed, unless otherwise specified in PS SOW. Invoice shall include all applicable fees, costs, and expenses with particularity as separate line items corresponding to the line item descriptions on the PO. Upon Customer’s request, Company shall provide any reasonable receipts or other documentation, including copies of time records. For T&M PS SOWs, Company invoices Customer for completed work no more frequently than weekly.

 

2.6 Related Hardware and Software. Customer understands and acknowledges that the fees for PS provided under this MSA are independent of any Product purchased or leased. If Customer purchases or leases any Product, it shall be subject to additional fees.

 

ARTICLE THREE: CONTRACT SERVICES

 

3.1 Services. Under the terms of this MSA Customer may choose to purchase CS, where each CS engagement is initiated by a separate CS Contract and Service Level Agreement, as defined above. Customer may initiate an unlimited number of CS Contracts under the terms of this MSA, each of which will be incorporated herein once executed by both parties.

 

3.2 Initial Term and Termination. The initial term for a CS Contract is specified on each CS Contract and is typically specified in number of months (“Initial Term”). At the completion of the Initial Term the CS Contract automatically reverts to a Time and Materials (“T&M”) terms.

 

3.3 Cancellation. Unless otherwise stated on the CS Contract no CS may be cancelled before the end of the

Initial Term.

 

3.4 Scheduled Start Date. The scheduled start date for the CS Contract is found on the last page of the CS

Contract and is filled in by Company when the countersigned CS Contract is returned to Customer. This is the date on which Company estimates the CS will be fully deployed and available for Customer use. Company cannot guarantee a date for full deployment.

 

3.5 Payment. The one-time NRC is invoiced when the CS Contract has been executed by both Parties; payment of the NRC is due and payable upon receipt of the invoice. If the Customer fails to pay or dispute any invoice as provided for herein, Company may, upon five (5) business days written notice to Customer: (i) refuse to accept any additional orders for Services; ; or (ii) temporarily suspend performing Services until the Customer has paid all undisputed past due amounts. During any period of suspension no Service Interruption (as defined in the SLA) shall be deemed to have occurred. If any government authority requires Customer to withhold part of any fees payable to Company hereunder, those fees will first be increased so that after diversion of that withholding to the relevant authority Customer remits to Company the full amount which would have been payable in the absence of such withholding.

 

3.6 Order Acceptance. A CS Contract is considered accepted by Company when the countersigned CS Contract is returned to Customer via email, fax or mail.

 

3.7 Non-Exclusivity. For the term of the contract and for so long as Company adheres to the Services provided per

SLA, Company will be the CS preferred provider to Customer. While the Parties acknowledge and agree that their business relationship is non-exclusive and that each Party is free to contract for, offer, provide or obtain the Services from any other person or entity, Customer agrees to make reasonable efforts to communicate perceived deficiencies on Company’s part which would motivate Customer to procure like services from a competitor.

 

3.8 Acceptable Use Policy (“AUP”). If purchasing Contract services under this MSA, Customer agrees to abide by

Company’s “Acceptable Use Policy” (“AUP”) attached hereto as Exhibit A and incorporated herein by reference.

 

3.10 No Guarantee of Compliance. Customer recognizes that no specific guarantee is being offered about the completeness or accuracy of the compliance measures required under Section 404 of the Sarbanes-Oxley Act, as amended (“SOX”) or the Payment Card Industry Data Security Standards, as amended (“PCI DSS”), if applicable where Customer stores Primary Account Numbers (as defined by PCI DSS), the technical staff of Company shall make commercially reasonable efforts to comply with the internal controls required to meet or exceed any applicable industry standards, including but not limited to: (i) building and maintaining a secure network, systems, and applications, and (ii) tracking access. Unless otherwise stated in the applicable CS Contract, Sarbanes-Oxley Act compliance and Payment Card Industry Data Security Standards compliance with SOX or PCIDS cannot be guaranteed unless purchased.

 

ARTICLE FOUR: HARDWARE AND SOFTWARE

 

4.1 Acceptance. A Sales Proposal of hardware and software for Product only shall be considered an offer for the sale of Products and shall be accepted by Customer when the Customer does either of the following, whichever occurs first: (i) signs the Sales Proposal or; (ii) accepts the Products at the shipping address located on the Sales Proposal; (iii) issues a PO authorizing sale; however no such other turn of the PO shall apply to the sale. Products are deemed risk of loss transfers to Customer once product leaves the dock of the manufacturer, distributor, or any other third-party warehouse. Maintenance services are delivered electronically; acceptance occurs once services are sent. Where software cannot on be delivered electronically such as (bundled hardware and software, disks, tapes, etc.), it is the responsibility of Customer to notify Company prior to acceptance.

 

4.2 Shipment. Products will ship directly from the warehouse of the manufacturer of the Products, an authorized distributor of the Company, or from the Company’s offices (“Point of Shipping”). All Products are shipped F.O.B.

Shipping Point, and all title, risk of loss, damage, or destruction to the Products shall pass to Customer as soon as the Products leave the Point of Shipping. The Company reserves the right, in its sole discretion, to select the means of shipment, Point of Shipping, and routing.

 

4.3 Returns. Returns are only granted for products originally procured from the Company, for the reasons listed below, and require compliance with the manufacturer’s requirements. Acceptance of a return is in the sole discretion of the Company and subject to acceptance of the return by the manufacturer, where applicable. No software may be returned. The Company may impose a twenty-five (25%) restocking fee on all returns. Refunds will not be given, but credits will be applied. All returns require the filing of a Return Merchandise Authorization (“RMA”).

 

(i) Damaged Products. RMA must be filed within five (5) days from date of receipt of the damaged Products.

(ii) Breach of Warranty. RMA must be filed within five (5) days of the breach of the warranty. MANUFACTURER’S

RETURN POLICY IS NOT A WARRANTY.

(iii) Errant Products. If Customer receives shipment of Products over the quantity ordered, or errant products,

Customer shall notify the Company and return such Products with manufacturer’s external seal intact within five (5) days of Customer’s receipt thereof.

(iv) Upgrades. If the Products purchased by Customer constitute an upgrade, Customer may return the original Product in accordance with the manufacturer’s requirements for return of the same. If Customer fails to return the original part within thirty (30) days of the date of receipt of the upgrade, then Customer will not receive a credit for the original part and shall pay the full purchase price for the upgrade.

 

4.4 Cancellations. The Company has the right to cancel any orders placed for any Products listed at an incorrect price or shown with incorrect information, whether due to typographical error or otherwise, and whether or not

Customer’s order was accepted. Upon any such cancellation, if the Products have not shipped, the Company will credit Customer for any fees owed. Upon any cancellation of Products that shipped, Customer shall return all Products within five (5) business days of the Company’s written notification to Customer of such cancellation, and upon such return the Company will issue a credit to Customer’s account.

 

ARTICLE FIVE: WARRANTIES; LIABILITY

 

5.1 PS and CS Warranty. Company represents and warrants that: (i) the PS and/or CS delivered to Customer pursuant to the applicable PS SOW or CS Contract shall conform and perform in all material respects to the specifications described in to the applicable PS SOW or CS Contract; (ii) Company shall perform all Services hereunder consistent with or exceeding customary industry standards; and (iii) Company’s services shall not infringe the intellectual property rights of Customer or any third party in its performance of services. In order to receive any warranty remedies, Customer must report deficiencies in the services within thirty (30) days of completion of those services. For any breach of the above warranties, Customer’s exclusive remedy, and Company’s entire liability, shall be the re-performance of the Services. If Company is unable to perform the Services as warranted, Customer shall be entitled to a credit for the fees paid to Company for the deficient services; refunds will not be given.

 

5.2 Hardware and Software Warranty. Warranty and warranty information, if applicable, are provided by the manufacturer of the Products, which shall pass to the Customer upon acceptance of the Products. While the Company tries to ensure the accuracy and completeness of its Products, the Company is not responsible for manufacturer’s errors. EXCEPT FOR THE MANUFACTURER’S WARRANTY, IF ANY, AND TO THE EXTENT PERMITTED BY LAW, THE PRODUCTS SOLD HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.

 

5.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY DOES NOT MAKE ANY

WARRANTY OR REPRESENTATION, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, OR PRODUCT NON-INFRINGEMENT.

 

5.4 Limitation of Liability. UNDER NO CIRCUCSTANCES SHALL COMPANY, OR ITS RESPECTIVE OFFICERS

OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,

OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, MISREPRESENTATION, LOSS

OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE (EVEN IF THEY HAVE

BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) AND EVEN IF SUCH DAMAGES WERE

FORESEEABLE, ARISING FROM THE USE OF OR INABILITY TO USE THE CUSTOMER’S SYSTEM AND/OR

COMPONENTS; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES,

ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. IN NO

EVENT SHALL ANY LIABILTY EXCEED THE AMOUNT INVOICED UNDER THE APPLICABLE PS SOW OR CS

SERVICE ORDER.

 

ARTICLE SIX: GENERAL PAYMENT TERMS

 

6.1 General Terms. All invoices are due and payable net 30 days after receipt of invoice. Except as expressly provided herein, this payment obligation is non-cancelable and any sums when paid will be non-refundable.

 

6.2 Payment for Incidental Expenses. For any services where Company incurs travel costs, Customer shall reimburse Company for reasonable, actual travel and out-of-pocket expenses incurred in connection with providing of such services, where such expenses shall be pre-approved by Company in writing or via email. Travel and other related expenses shall be billed to Customer once incurred and in no event more than once per month. Invoices are due and payable Net 30 days after receipt.

 

6.2 Taxes. All prices are based on U.S. dollars. Customer shall be solely responsible for the payment of all taxes, including any interest and penalties, in connection with the services, including but not limited to any sales, use, excise, value-added taxes (“VAT”), consumption, and other taxes and duties assessed on the services. All Services under this Agreement are deemed taxable unless Customer provides the Company with a tax exemption certification acceptable to all relevant taxing authorities prior to delivery. The Company shall bill applicable taxes as a separate item on Customer’s invoice and shall not include them in the purchase price. If a transaction is exempt from tax, Customer shall provide Company with a valid exemption certificate or other evidence of such exemption in a form acceptable to Company.  If Customer is required by law to withhold any tax from the payment, Customer shall provide to the Company original or certified copies of all tax payment receipts or other evidence of payment of taxes by Customer with respect to transactions under this Agreement. If Customer fails to provide Company with such tax payment receipts, if applicable, then Customer shall reimburse the Company for any fines, penalties, taxes and other governmental agency charges resulting from such failure.

 

6.3 Late Payments. A service charge equal to 1.5% per month will be assessed on all amounts past due 30 days or more until paid. In its sole discretion and option, the Company reserves the right to suspend any Services for payments later than 30 days from due date.

 

ARTICLE SEVEN: EXPORT COMPLIANCE

 

7.1 Compliance. Customer understands and acknowledges that United States law and, in particular, the United

States Export Administration Regulations (“EAR”) govern the sale, export or other disposition of the products and related technical data that are the subject of this Agreement. Customer therefore agrees to adhere to all provisions of the EAR and the terms, conditions, required procedures, and documentation of any export licenses or other approvals issued for such products and related technical data. Specifically, Customer agrees that it will not participate in the transfer by any means of any product or technical data acquired from the Company: (i) in violation of the EAR or any order or license issued under its provisions, or (ii) with the knowledge or with reason to know that a violation of the EAR, an order or a license has occurred, is about to occur, or is intended to occur with respect to any such product or technical data. In the event that any license or approval is required in order for the Company to perform its obligations under this Agreement the Company agrees to use its best efforts in obtaining such license or approval. The Customer agrees to fully cooperate with and support the Company in obtaining any required license or approval and in maintaining the Company’s strict compliance with the EAR, including, but not limited to, executing any required documents or providing any required information.

 

7.2. Violations. The Company shall be relieved of all obligations to Customer if Customer violates the EAR or the provisions of any export license or approval, or if such export licenses or approvals are not issued, are suspended or revoked by the United States Government, or if Customer fails to comply with the other requirements of this sect.

 

ARTICLE EIGHT: CONFIDENTIALITY; NON-SOLICITATION

 

8.1 Duty to Protect. By virtue of this Agreement the Parties may have access to information that is confidential or proprietary to the other Party (“Confidential Information”). Confidential Information shall be limited to information provided to the other Party under this Agreement, which has been identified by the disclosing Party in writing, prior to or at the time of disclosure, as confidential, or proprietary. The Parties agree not to make each other’s Confidential

Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than for the purposes specifically contemplated in the applicable SOW or CS Contract. Each Party agrees to use the same standard of care as it uses to protect its own Confidential Information to ensure that its employees, agents, consultants and other representatives do not disclose or make any unauthorized use of the other Party’s Confidential Information.

 

8.2 Exclusions. Confidential Information shall not include any information that: (i) has been disclosed in publicly available sources of information, (ii) is, through no fault of either party, hereafter disclosed in publicly available sources of information, (iii) was in the possession of either party without any obligation of confidentiality, or (iv) has been or is hereafter rightfully acquired from a third party and the disclosure is authorized by the third party.

 

8.3 Remedies. Each Party acknowledges that any breach of the provisions of this paragraph shall result in serious and irreparable injury to the non-breaching Party for which the non-breaching Party cannot be adequately compensated. Each Party agrees, therefore, that in addition to any other remedy that the non-breaching party may have in law or equity, the non-breaching Party shall be entitled to seek specific performance of this paragraph by the breaching Party by way of an injunction.

 

8.4 Non-Solicitation of Personnel. During the term of this MSA, and for a period of one (1) year thereafter, neither

Party shall, either directly or indirectly, employ or solicit for employment any employee of the other Party or any of its affiliates with whom the hiring Party had contact or became aware of during the execution of any PS SOW or CS

Contract covered under this MSA. If a party breaches this Article, the breaching party shall pay thirty percent

(30%) of the current base salary of the employee, within five (5) days of breach.

 

ARTICLE NINE: OWNERSHIP RIGHTS

 

9.1 Ownership. Unless otherwise provided in the applicable SOW or CS Contract, all specifications, documentation, ideas, know-how, technique, processes, developments, inventions created for the Services shall remain the property of the Company; however, the Company hereby grants the Customer a perpetual, irrevocable, worldwide royalty-free, non-exclusive, nontransferable right and license to use such intellectual property rights in support of the Customer’s use of the services. The rights granted in this Section 8.1 are not extended to any parent, subsidiary, or affiliate of the Customer. Upon termination of this MSA for any reason or in any manner, or upon the request of the Customer, the Company agrees to deliver promptly to Customer all such documents, whether in written, graphical or electronic form, together with any other of the Company’s property then in the Customer’s possession, except as Company may, by prior written approval, allow Customer to retain.

 

9.2 Restrictions. Company retains full title to and ownership of all specifications, documentation, ideas, know-how, technique, processes, developments and inventions other than those specifically granted in Section 8.1 without limiting the generality of the foregoing, Recipient will not (i) modify, create derivative works from , distribute, or sublicense the specifications, documentation, ideas, know-how, technique, processes, developments and inventions; (ii) use the specifications, documentation, ideas, know-how, technique, processes, developments and inventions in any way that allows third parties to use or benefit directly from the specifications, documentation, ideas, know-how, technique, processes, developments and inventions.

 

ARTICLE TEN: TERM AND TERMINATION

 

10.1 Term. This MSA shall commence upon the signature from Customer on this MSA and shall remain in full force and effect until terminated. In order to commence the services in each applicable SOW or CS Service

Order, Company must receive from Customer a valid Purchase Order against which the Services are to be billed or proof of PO exemption.

 

10.2 Termination for Convenience. Customer may terminate CS for convenience upon ninety (90) days prior written notice to Company after the Initial Term, provided that it pays Company the remaining balance of fees for the term of the applicable CS Contract. SOW’s may only be terminated for material breach.

 

10.3 Termination for Breach. Upon material breach this MSA and any applicable SOW or Service Order may be terminated by either party immediately and upon written notice provided that the violation is not remedied within fifteen (15) days of the notice. Upon termination of this MSA the obligations of either Party to the other under existing PS SOW or CS Contract shall continue in effect as though this MSA had not been terminated until such Services are completed unless a uncured breach for a specific SOW or CS Contract, in which case, it will be terminated.

 

ARTICLE ELEVEN: MISCELLANEOUS

 

11.1 Relationship of Parties. Company’s relationship with Customer is that of an independent contractor and nothing in this MSA will be construed to create a joint partnership, joint venture, or employer-employee relationship.

 

11.2 Customer’s Representations. Customer represents and warrants to the Company that: (i) the person accepting the products on behalf of Customer, has been duly authorized by all necessary corporate procedures or other action of Customer; (ii) Customer’s execution of these terms and conditions will not violate any provision or law of its governing, organizational documents, or result in the breach of any agreement to which the Customer is a party; and (iii) Customer is the end-user of the Products. Customer acknowledges and agrees that the Company’s performance is dependent on the Customer’s timely and effective satisfaction of all of Customer’s responsibilities hereunder and timely approvals by Customer. The Company is entitled to rely on all approvals of Customer in connection with the products provided hereunder. Customer further acknowledges and agrees that Customer may have to comply with other terms and conditions apart from those hereunder which may be required by third parties with whom the Company conducts business. Customer agrees to abide by Company’s “Acceptable Use Policy” (“AUP”) attached hereto as Exhibit A.

 

11.3 Notices. All notices required or permitted to be given hereunder shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed facsimile if sent during normal business hours of the recipient, if not, then on the next business day; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier. All communications shall be addressed to the parties at their respective addresses set forth on the signature page of this MSA. Either party may change the address to which notices or other communications shall be sent or delivered by giving advance written notice to the other party.

 

11.4 Arbitration. Any claim arising out of or related to this MSA will be submitted to binding, mandatory arbitration under the auspices of The Commonwealth of Virginia, with the parties sharing equally the costs of arbitration.

The preceding sentence does not limit the right of either party to provisional or ancillary remedies from a court of competent jurisdiction before, after, or during the pendency of any arbitration, and the exercise of any such remedy does not waive either party’s right to arbitration.

 

11.5 Waiver. The waiver by either party of any default or breach of this MSA shall not constitute a waiver of any other provision of this MSA.

 

11.6 Assignment. This MSA shall not be assigned, transferred, or any of the rights Customer obtains in the products be sublicensed without prior written consent of the Company. Consent will not be unreasonably delayed or denied if assignment, transfer, or sublicense of the rights is to a reputable company (as determined in the sole discretion of the

Company).

 

11.7 Governing Law. This MSA shall be construed under and governed by the laws of the Commonwealth of Virginia excluding any conflict of laws principles that would require the application of the law of another jurisdiction. Any controversy, or claim arising out of, or related to this MSA, or breach thereof, shall be settled by arbitration, to be held in Richmond, Virginia, in accordance with the rules of the American Arbitration Association and the decision of the arbitrator(s) shall be binding on the parties thereto.

 

11.8 Severability. If any part of this MSA shall be held invalid or unenforceable, the remaining provisions of this MSA will remain in full force and effect.

 

11.9 Entire Agreement Amendment. This MSA (including any PS SOW’s, Contract CS Contracts entered into between the parties) shall constitute the complete and exclusive agreement between the parties respecting the subject matter. This MSA may not be amended, terminated or superseded except by an agreement in writing between the parties. This MSA supersedes all previous agreements between the parties, whether oral or written, regarding the services to be provided hereunder. To the extent of a conflict between or among any provisions of this MSA with a PS SOW or CS Contract, the provisions of this MSA shall control. The Company expressly rejects all terms and conditions set forth on Customer’s purchase order or other documentation which are contrary to, or in addition to, or which in any way modify any of the terms and conditions contained herein.

 

11.10 Force Majeure. The Company shall not be liable for any loss or damage, for any failure or delay in delivery due to causes beyond its control, including, but not limited to, fire, acts of God or the public enemy, terrorist act, or acts of governmental bodies or agencies.

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit A

Acceptable Use Policy (“AUP”)

 

  1. 1.     Introduction. This Acceptable Use Policy (“AUP”) is designed to help protect customers and the internet community from fraud, abuse of resources, and irresponsible or illegal activities. IAccess, Inc. makes no guarantee regarding, and assumes no liability for the security and integrity of, any data or information the Customer or its users transmits via the service or over the Internet, including any data information transmitted via any server designated as “secure.” Any persons or organizations, including IAccess, Inc. customers, who publish material or information made accessible through IAccess, Inc.’s networks are solely responsible for the content of such material and information, and are solely responsible to know and comply with the laws applicable to the publication of such materials and information.  IAccess, Inc. will cooperate with legal authorities in the investigation of any suspected criminal or civil infringements.
  2. 2.     Customer Responsibilities. IAccess, Inc. Services are intended solely for the use of the Customer, its affiliates and/or subsidiaries that are connected by LAN, WAN or remote access applications; services may not be re-sold to or used by any outside entity without prior written consent form IAccess, Inc. Customer is responsible for the activities of its end-users and agrees to inform its customers and/or end-users of this AUP or its own Acceptable Use Policy, which must not be inconsistent with the terms herein.
  3. 3.     Prohibited Conduct. IAccess, Inc. services are only to be used for lawful purposes. Customers may not transmit, retransmit or store material in violation of any federal or state laws or regulations, including, but not limited to, obscenity, indecency, defamation or material infringing trademarks or copyrights. Customer may not abuse or fraudulently use IAccess, Inc. services, nor allow nor permit such fraudulent use by others. The following activities illustrate some, but not all, prohibited uses under this AUP:
    1. Child Pornography: It is illegal to possess, produce, receive, transport or distribute by any means, including computer, visual depictions of “sexual intercourse” and/or “sexually explicit conduct” involving children.
    2. Denial of Service: Engaging in any activity that will interfere or attempt to interfere with the service of any other user, host or network on the internet. Distribution of Viruses: Intentional distribution of software that attempts to and/or causes damage or annoyance to persons, data, and/or computer systems.
    3. Forging Headers: Forging or misrepresenting any message header, in part or whole, of any electronic transmission, originating or passing through the IAccess, Inc. network.
    4. Email Spamming or Mail Bombing: The transmitting of unsolicited email to multiple recipients, sending large amounts of email repeatedly to a person to harass or threaten, or any attempt to use IAccess, Inc. servers as a mail drop or name server for SPAM. Sending unsolicited bulk email from another Internet service provider’s network advertising or implicating any service hosted or provided by IAccess, Inc., including without limitation email, web, FTP and DNS services.
    5. Fraudulent Activities: Any intentional misrepresentation or misleading statement, writing, or activity made with the intent that the person receiving it will act upon, obtaining or attempting to obtain service by any means or device with intent to avoid payment.
    6. Illegal or Unauthorized Access to other Computers, Accounts or Networks: Accessing, or attempting to access, any computer resource belonging to another party, or attempting to penetrate security measures of other systems, whether or not the intrusion results in corruption or loss of data.
    7. Network Sabotage: Any use of IAccess, Inc.’s services to interfere with the use of the internet resources or the IAccess, Inc. network by other customers or end-users.
    8. Pyramid Schemes: A fraudulent system of achieving financial gain, which requires an endless stream of recruits for success.
    9. Unlawful Acts: Any use of IAccess, Inc.’s services to violate the law or aid of any unlawful act.
    10. Usenet Spamming: Posting of messages to newsgroups, and the posting of harassing and/or threatening messages.
    11. Telemarketing/Unsolicited FAX: Use of the network for telemarketing via IP based telephony in violation of the Telephone Consumer Protection Act, Telemarketing and Consumer Fraud Abuse Prevention Act as well as other applicable laws, including both voice and facsimile transmissions.
    12. Facilitating a Violation of this AUP: Advertising, transmitting, or otherwise making available any software, program, or product, or service that is designed to violate this AUP which includes, but is not limited to, the facilitation of the means to spam, initiation of pinging, flooding, mail bombing, denial of service attacks, and privacy software.

 

4. Violations and Enforcement. At IAccess, Inc.’s sole discretion, violations of any element of this AUP may result in a written warning to the Customer followed by suspension or termination of services if the Customer does not cease the violation, or immediately suspend or terminate services with or without notice. IAccess, Inc. will enforce this AUP according to the severity of the offense and the Customer’s history of prior AUP infringements. Repeat offenses will result in immediate termination of services. IAccess, Inc. is not liable for any damages of any nature suffered by any

Customer, user, or third party resulting in whole or in part from IAccess, Inc. exercising its rights under this AUP and waives any liability related to any violation.

 

To download a PDF copy of this document, click this link:  IACCESS_MSA