|Master Sales Agreement
This Master Sales Agreement is by and between Technology as a Service LLC, its affiliates and subsidiaries,(collectively “Company”) and you, and your affiliates and subsidiaries(“Customer”) for the purchase of certain hardware and software (collectively, the “Product”) and/or various professional services (“PS” or the “Services”) (the “MSA”).Company and Customer shall be collectively referred to as “Parties.” Customer’s purchase of Product and/or PS is governed by the following terms:
|ARTICLE ONE: PROFESSIONAL SERVICES
1.1 Professional Services (“PS”).Professional Services are services provided to Customer, including but not limited to: consulting, staff augmentation, warehousing, integration, design, installation, configuration, support, project management, and other services performed by Company’s employees, agents, subcontractors, consultants, and representatives, as detailed in a Statement of Work (“SOW”) or a Letter of Delivery (“LOD”).
1.2 SOWs. Under the terms of this MSA, Customer may choose to purchase PS by executing an SOW or LOD. Customer may initiate an unlimited number of SOWs or LODs, each of which will be incorporated herein once executed by both Parties. Changes to any SOW or LOD may be made only upon the mutual written agreement of the Parties through a Change Order. The Change Order shall detail the estimated costs using the same or similar methods to those used in the SOW or LOD. No changes or additions shall be implemented until both Parties execute the Change Order.
1.3 Personnel. Company shall provide the necessary skilled personnel to perform the PS described in the applicable SOW or LOD. Company reserves the right to change assigned personnel as required by its business needs and consideration or as otherwise to complete the PS.
1.4 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 Services. Customer shall also be responsible to satisfy certain prerequisites before work by Company can begin as set forth in the applicable SOW or LOD. Company shall not be responsible for delays caused by Customer.
1.5 International Services. PSmay not be provided internationally unless detailed in an applicable SOW.
ARTICLE TWO: HARDWARE AND SOFTWARE
2.1 Product Sales. Company issues Customer a sales proposal for product (a “Sales Proposal”), which shall be accepted by Customer when the Customer does any 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; or (iii) issues a PO authorizing the sale. Software is deemed accepted and title passes to Customer once Software is sent to Customer, which shall occur electronically unless expressly stated otherwise in a Sales Proposal. Where software is delivered in hard copy (e.g. bundled hardware and software, disks, tapes), it shall be deemed accepted as soon as the software leaves the Shipping Point.
2.2 Shipping. Products will ship to Customer directly from the manufacturer of the Products, an authorized distributor of the Company, or from the Company’s third party warehouse or Company’s integration center, collectively, the “Shipping Point.” Company reserves the right to select the means of shipment, Shipping Point, routing, and shipping term. Unless Products are sourced outside of the US, which would require a separate contract or Addendum with a Technology as a Service LLC subsidiary, title shall pass to Customer as soon as the Products leave the manufacturer in the US. Regardless of shipping term, all risk of loss, damage, or destruction to the Products shall pass to Customer as soon as the Products leave the manufacturer, and Customer shall be responsible for shipping and handling charges. Company is not a warehouseman, and in the event Product remains at the integration center for longer than the time needed to perform PS, Company reserves the right to ship the Product to Customer and/or charge a fee until Customer takes delivery.
2.2.1 International Shipments. Unless otherwise agreed to in writing by the Parties pursuant to section 2.2.3, Customer or its designee shall be the importer of record (IOR) in the destination country. All duties, customs, and taxes shall be paid by Customer, using Customer’s country-specific tax registration ID (e.g., VAT, GST) upon entry into the destination country, where required by the applicable jurisdiction. Company will not sell and Customer will not purchase from Company product that is intended for delivery to countries embargoed by the United States government. Customer will not transfer the Product to a military or government end user.
2.2.2 Export 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. Customer 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. Customer will not participate in the transfer by any means in violation of the EAR of any Product acquired from the Company.
2.2.3 Procurement and/or Importer of Record Services by a Technology as a Service LLC Subsidiary. If the Parties agree and Customer signs an addendum as follows, a Technology as a Service LLC subsidiary may procure product for Customer and/or may provide importer of record services for Customer. Addendum A governs procurement by Technology as a Service LLC Netherlands B.V. and importation by Technology as a Service LLC Netherlands B.V. into the European Union via the Netherlands; Addendum B governs procurement by Technology as a Service LLC Hong Kong Limited; and Addendum C governs procurement by Technology as a Service LLC VAR Company Beijing Limited and importer of record services into China by Technology as a Service LLC VAR Company Beijing Limited.
2.3 Returns. Returns are only granted if: (i) the hardware is damaged; (ii) there is a breach of manufacturer’s warranty, or (iii) the Product is errant, all of which require compliance with and acceptance by manufacturer specifications. Software may not be returned. Refunds will not be given, but credits will be applied. All returns require the filing of a Return Merchandise Authorization (“RMA”) to be filled out and returned to the Company within five (5) days of receipt of the Product.
2.4 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.
2.5 Leasing. Products procured through leasing are subject to the following: (i) the terms of this MSA; (ii) applicable agreements with third party leasing entities, including multi-party assignment agreements between Customer, Company, Lessor, and Lessor’s Assignee; and (iii) Customer shall execute or supply, as applicable, any other Lease documents as required by the Company, the Leasing entity or the Leasing entity’s Assignee.
2.6 Maintenance Services. Maintenance Services may be available from the Product manufacturer. Where Customer purchases such services from Company, Company shall pass through the Maintenance Contract directly to Customer, and all terms and conditions of the Maintenance Services contract shall apply. Company shall not be liable for any deficiencies, breaches, or other issues with the Maintenance Services, and Customer shall look solely to the manufacture or Maintenances Service Provider for remedy.
ARTICLE THREE: WARRANTIES; LIABILITY
3.1 PS Warranty. Company represents and warrants that: (i) the Services delivered to Customer pursuant to the applicable SOW or LOD shall conform and perform in all material respects to the specifications described in to the applicable SOW or LOD; (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 in writing 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.
3.2 Product 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.
3.3 Warranty Disclaimers. 3.3.1. PS Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, COMPANY DOES NOT MAKE ANY WARRANTY OR REPRESENTATION FOR SERVICES PROVIDED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE.
3.3.2. Product Warranty Disclaimer. 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 OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OR PRODUCT NON-INFRINGEMENT.
3.4 Customer’s Representations. Customer represents and warrants to the Company that: (i) the person signing this MSA and any SOW, LOD, or Sales Proposal is duly authorized to act on behalf 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; (iii) Customer is the end-user of the Products, and (iv) Customer’s use of the Products and/or PS shall not violate any law in any jurisdiction. 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 and/or PS provided hereunder.
3.5 Indemnification. Each Party (an “Indemnifying Party”) will defend (or settle), at its expense, any action brought against the other party (an “Indemnified Party”) by a third party to the extent that it is based upon a claim for bodily injury, personal injury (including death) to any person, or damage to the Indemnified Party’s property, resulting from the grossly negligent acts or omissions or malicious misconduct of the Indemnifying Party or its personnel hereunder, and will pay any costs, damages and reasonable attorney’s fees attributable to such claim that are awarded in final judgment against the Indemnified Party (or are payable in settlement by the Indemnified Party); provided that the Indemnified Party: (i) promptly notifies the Indemnifying Party in writing of the claim; (ii) grants the Indemnifying Party sole control of the defense and settlement of the claim; and (iii) provides the Indemnifying Party, at Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The Indemnifying Party will have no obligation under this provision to the extent any claim is based on the negligent acts or willful misconduct of the Indemnified Party or its employees or subcontractors.
3.6 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL COMPANY, OR ITS RESPECTIVE OFFICERS OR AGENTS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE ARISING FROM THIS MSA OR A RELATED SALES PROPOSAL, SOW, OR LOD, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL ANY LIABILTY EXCEED THE AMOUNT INVOICED UNDER THE APPLICABLE SALES PROPOSAL, SOW, OR LOD.
ARTICLE FOUR: INVOICING AND PAYMENT
4.1 Invoicing and Payment. Customer shall be invoiced for Product as soon as it ships from the manufacturer or distributor. For PS with Fixed-Price fees, Company shall invoice Customer upon completion of billable milestones as defined in the applicable SOW or at the end of each month based on the percentage of work performed. For PS with T&M SOWs or LODs, Company invoices Customer for completed work no more frequently than weekly. Unless otherwise described herein, all invoices are due and payable net 30 days after date of invoice.
4.2 Incidental Expenses. Freight charges may be invoiced separately and at a later date from Product. 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. Travel and other related expenses shall be invoiced to Customer once incurred and in no event more than once per month. Invoices for incidental expenses are due and payable net 30 days after date of invoice.
4.3 Fees on International Transactions. Additional fees may apply to Product shipments and Services provided in a country outside the United States, including but not limited to taxes, duties, and subcontractor fees, which shall be the responsibility of Customer. Fees for VAT, import duties, shipping, administrative fees, insurance, freight, or tax apply to Products delivered, or Services provided, outside the United States, and are the responsibility of Customer. Some fees are estimated on quotes; final fees will be invoiced.
4.4 Taxes. All prices are based on U.S. dollars unless otherwise specifically agreed to in writing by both parties. Customer shall be solely responsible for the payment of all taxes, including any interest and penalties, in connection with this MSA, including but not limited to any sales, use, excise, value-added taxes (“VAT”), consumption, and other taxes and duties assessed on the Products and Services. All Products and 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.
4.5 Late Payments. A service charge equal to 2.5% per month may be assessed on all amounts past due 30 days or more until paid. In its sole discretion and option, Company reserves the right to suspend any Services for payments later than 30 days from due date.
ARTICLE FIVE: CONFIDENTIALITY; NON-SOLICITATION
5.1 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 LOD. 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.
5.2 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.
5.3 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.
5.4 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 SOW covered under this MSA. If a party breaches this Article, the breaching party shall pay thirty percent (30%) of the employee’s base salary at the non-breaching party, within five (5) days of breach.
ARTICLE SIX: OWNERSHIP RIGHTS
6.1 Ownership. Unless otherwise provided in the applicable SOW or Service Order, all specifications, documentation, ideas, know-how, technique, processes, developments, inventions created for the Services shall remain the property of Company; however, Company hereby grants Customer a perpetual, irrevocable, worldwide royalty-free, non-exclusive, nontransferable right and license to use such intellectual property rights in support of Customer’s use of the services. The rights granted in this Section 6.1 are not extended to any parent, subsidiary, or affiliate of Customer, other than those included as a party to this Agreement. Upon termination of this MSA for any reason or in any manner, or upon the request of Company, Customer agrees to deliver promptly to Customer all such documents, whether in written, graphical, or electromagnetic form, together with any other of Company’s property then in Customer’s possession, except as Company may, by prior written approval, allow Customer to retain.
6.2 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 6.1.Without limiting the generality of the foregoing, Customer 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 SEVEN: TERM AND TERMINATION
7.1 Term. This MSA shall begin on the Effective Date and shall remain in full force and effect until terminated.
7.2 Termination for Convenience. Either Party may terminate this MSA for convenience upon ninety (90) days prior written notice to the other Party, such termination to take effect once all Sales Proposals, SOWs, and LODs have been completed or have been terminated in accordance with their terms.
7.3 Termination for Breach. Upon material breach, this MSA may be terminated by the non-breaching party immediately and upon written notice provided that the violation is not remedied within fifteen (15) days of the notice (the “Cure Period:”), and provided that all applicable SOWs, LODs, or Change Orders will also terminate upon termination of the MSA. Where Customer is the non-breaching party, within five (5) days after the Cure Period, Customer shall provide written notice to Company if the material breach is not cured. Upon receipt of such written notice, Company shall re-perform the Services pursuant to Section 3.1. Upon expiration of Cure Period plus 5 days, if Company has not received such written notice, the material breach shall be deemed cured and the MSA and all related orders shall remain in full force and effect. Upon termination of this MSA or any SOW or LOD the payment obligations become immediately due and payable for all Products delivered, work performed, or service provided.
ARTICLE EIGHT: MISCELLANEOUS
8.1 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.
8.2 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. Company’s address for Notices is: Technology as a Service LLC, 61 Maine Trail, Suite 100, Medford, NJ 08055, Attention: Contracts. 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.
8.3 Dispute Resolution. Both Parties shall use best efforts to resolve disputes under this MSA amicably without intervention. If a dispute cannot be resolved in thirty (30) days, then the controversy, or claim arising out of, or related to this MSA, or breach thereof, other than disputes concerning international sales made pursuant to an addendum signed by the parties, which shall be handled in accordance with the applicable addendum to this MSA, shall be settled by arbitration, to be held in Medford New Jersey, in accordance with the rules of the American Arbitration Association. The parties shall share equally the costs of arbitration, and the decision of the arbitrator(s) shall be binding on the parties thereto. 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.
8.4 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.
8.5 Assignment. This MSA shall not be assigned, transferred, nor shall 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).
8.6 Governing Law. This MSA shall be construed under and governed by the laws of the Commonwealth of Massachusetts excluding any conflict of laws principles that would require the application of the law of another jurisdiction.
8.7 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.
8.8 Entire Agreement Amendment. This MSA (including any SOWs or LODs 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 and products to be provided hereunder. To the extent of a conflict between or among any provisions of this MSA with a Sales Proposal, Purchase Order, SOW, LOD, or Change Order, 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.
8.9 Force Majeure. The Company shall not be liable for any loss or damage, or 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.
The parties have signed below to indicate their acceptance of the terms and conditions herein.
Technology as a Service LLC
Address for Notices:
Address for Notices: