This Master Services Agreement (“Agreement”) is made between XOBEE Networks, Inc., a California corporation (“XOBEE”), and Client.
This Agreement will confirm the terms and conditions described herein.
Services and Support
XOBEE is in the business of providing technology consulting, onsite and/or remote repair, troubleshooting, installation and configuration of hardware and software, application programming and development, network and computer management and operations, remote offsite backup, internet connectivity, e-mail and website hosting, and other services (herein collectively called “Services”). Client wishes to retain XOBEE for the purpose of providing one or more of the Services as requested by Client from time to time.
XOBEE agrees to provide the Services as requested by Client from time to time by verbal or written instruction. The parties may enter into executed Statements of Work (each a “Statement of Work”) to further specify the terms of a project or to modify the terms of this Agreement for purposes of a specific project. Each Statement of Work entered into by the parties shall reference this Agreement and shall be deemed to be part of this Agreement. Provided, however, the contents of any Statement of Work shall take precedence over any conflicting provision in this Agreement to the extent necessary to resolve any such conflict.
Fees and Payments
Client agrees to pay the fees for Services in accordance with the fee schedule attached hereto, or, if different, in accordance with any applicable Statement of Work. Unless otherwise specified in the applicable Statement of Work, Client shall reimburse XOBEE for all actual expenses incurred by XOBEE in the course of performing the Services hereunder and evidenced by receipts provided to Client (“Expenses”). XOBEE may modify its fee schedule from time to time. Any such modified fee schedule shall be effective thirty (30) days following written or email notice from XOBEE to Client.
From time to time in the performance of Services, it may be necessary for XOBEE to replace existing hardware, provide software, and/or provide new hardware for installation and/or use by Client. Client agrees to pay the purchase price for all such hardware to XOBEE as such purchase price has been specified in an applicable Statement of Work or other writing such as a purchase order.
Unless otherwise specified in the applicable Statement of Work, XOBEE will invoice Client on a monthly basis (“Invoice Period”) for the Services furnished, expenses incurred, and hardware furnished during the immediately preceding Invoice Period. Invoices for Services rendered on a time-and-materials basis will indicate a breakdown and distribution of charges. Statements of Work for Services rendered on a fixed-fee basis will indicate the basis upon which the fees are due and payable (e.g., milestones achieved or date passing). All invoices shall be due and payable to XOBEE in U.S. dollars within thirty (30) calendar days after the invoice date. All amounts not paid within thirty (30) days of the invoice date shall thereafter accrue interest, until paid, at the lesser of 1.5% per month or the maximum interest rate permitted under applicable law. Once any invoice has not been paid within the thirty (30) day period specified above, then thereafter XOBEE may condition provision of any Services under this Agreement to COD or other payment terms acceptable to XOBEE.
Except as may be otherwise provided in a Statement of Work, professional services shall be on time and materials basis and Client will be charged for all time spent on Client’s behalf. This includes time spent in conferences and meetings with Client and internal meetings of XOBEE personnel, preparation and research, preparing and updating documentation, project management, telephone support, and any other activity XOBEE deems necessary or appropriate to accomplish the work requested by the client.
Furthermore, the parties agree as follows:
- Client will be billed for travel time to have XOBEE technical resources physically go to the client’s site to provide services.
- Phone and remote support to be tracked in fifteen (15) minute increments, rounded to the nearest fifteen (15) minute mark with a fifteen (15) minute minimum time per support request.
- Service requested by the Client to be provided on an emergency basis and/or outside of normal business hours will be billed at the lesser of one and one-half (1.5) times the normal business hours hourly rate, or $175 per hour. For purposes of this agreement, normal business hours shall mean 8a.m.to 5p.m., Monday through Friday, excluding normal holidays.
- On-site service to be tracked in thirty (30) minute increments, rounded to the nearest thirty (30) minute mark with a one (1) hour minimum charge per visit.
Notwithstanding the foregoing, XOBEE may from time to time offer Client the opportunity to purchase blocks of prepaid hours at a reduced hourly rate (see Fee Schedule). Service can be charged against any prepaid hours under this Agreement until the total number of hours has been used for services. For services outside normal business hours and emergency services, prepaid hours shall be applied at 1.5 times the number of hours of service.
General Client Responsibilities
Client is solely responsible for all required software licenses and ensuring that all software is properly registered and licensed with the manufacturer or other applicable third parties, and otherwise complies with all applicable laws. XOBEE takes no responsibility for and will not track, verify or otherwise independently determine if any software used by the Client complies with licensing, registration or other legal requirements.
Client represents that it is the owner of any equipment for which Client requests service. Client acknowledges and agrees that only the president of XOBEE, Eric G. Rawn, is authorized on behalf of XOBEE to enter into any amendments, modifications or additional agreements on behalf of XOBEE.
Client shall indemnify, defend and hold XOBEE harmless from any and all claims, losses, liabilities, costs and expenses (including, but not limited to, attorneys’ fees and costs) which arise from or relate to any breach of this Agreement by Client.
Representations and Warranties
Client hereby represents and warrants that it has and for the duration of this Agreement shall have all rights, titles, and interests in the pre-existing Client properties required for the performance of its obligations hereunder and has and for the duration of this Agreement shall have the authority and the legal right to enter into this Agreement.
XOBEE hereby warrants that the Services provided under this Agreement will be of commercially reasonable quality in accordance with any specifications or requirements set forth in a Statement of Work and will be performed in a good and workmanlike manner and in accordance with industry standards. Without prejudice to any other right or remedy available by law to Client, any claim for breach of XOBEE’s warranties must be made, by written notice to XOBEE, within sixty (60) days following the date of completion of the Services for which the claim is made (or, with respect to any deliverables that were subject to acceptance testing specified in the applicable Statement of Work, within sixty (60) days following the date of acceptance). XOBEE shall have a thirty (30) day period following receipt of any such notice in which to cure a breach. Provided, however, if any such breach cannot reasonably be cured within the thirty (30) day period, it shall be deemed to be cured so long as XOBEE commences the cure within the thirty (30) day period and diligently proceeds to completion.
Warranties, Remedies, and Limitation of Liability
CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE REPRESENTATIONS AND WARRANTIES PROVIDED HEREIN WILL BE, AT XOBEE’S OPTION, RE-PERFORMANCE OF THE DEFICIENT SERVICES OR TERMINATION OF THE APPLICABLE STATEMENT OF WORK AND RETURN OF THE PORTION OF THE FEES AND CHARGES PAID TO XOBEE BY CLIENT FOR THE NON-CONFORMING PORTION OF THE SERVICES AND/OR GOODS (AS DEFINED BELOW), IF ANY. ANY REPRESENTATIONS OR WARRANTIES PROVIDED IN THIS AGREEMENT ARE FOR THE SOLE BENEFIT OF CLIENT ONLY.
To the extent XOBEE provides any materials, goods, or products (“Goods”) to Client, they are provided on an “AS IS” basis, without warranty, express or implied, with the exception of any manufacturer warranty, to the extent transferrable to Client
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, XOBEE EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW ALL OTHER REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES AND/OR GOODS, IF ANY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON- SATISFACTORY QUALITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. XOBEE MAKES NO GUARANTEES WITH REGARD TO THE RESULTS OBTAINED FROM THE OPERATION OR USE OF THE CLIENT PROPERTIES OR XOBEE PROPERTIES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SALES OR BUSINESS, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY THE OTHER PARTY OR SUCH THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR GOODS, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
IN NO EVENT WILL XOBEE BE LIABLE FOR ANY DATA LOSS. BACKUP AND DISASTER RECOVERY ARE THE RESPONSIBILITY OF THE CLIENT. XOBEE’S SERVICES UNDER THIS CONTRACT MAY BE AVAILABLE TO HELP CLIENT DESIGN AND SET UP DISASTER RECOVERY SCHEMES. HOWEVER, THE PERFORMANCE OF ACTUAL BACKUPS AND THE CONFIRMATION OF THE APPROPRIATENESS AND EFFICIENCY OF SUCH SCHEMES SHALL REMAIN THE TOTAL AND UNIQUE RESPONSIBILITY OF THE CLIENT.
XOBEE’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SERVICES OR GOODS, SHALL IN NO EVENT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO XOBEE DURING THE PRECEDING TWELVE MONTHS.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE FEES UNDER THIS AGREEMENT WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF XOBEE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS EXPRESSLY SET FORTH HEREIN. XOBEE HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CLIENT THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE JURISDICTIONS, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW UNDER THE TERMS OF THIS AGREEMENT.
During the period beginning with the date of this Agreement and ending six (6) months after termination of this Agreement, Client and any individuals, corporations, partnerships, limited liability companies, trusts, or legal entities which control, are controlled by, or are under common control of Client, agree not to solicit for employment, any XOBEE employee, including but not limited to technical, sales, or managerial employees of XOBEE. For purposes of the preceding sentence, the term “employment” shall include any form of employment, consulting, contract relationship, or other arrangement pursuant to which such individual will, directly or indirectly, perform services for the new employer.
In connection with the Services provided by XOBEE hereunder, Client may disclose to XOBEE and XOBEE may disclose to Client, certain confidential and proprietary written and oral business and technical information and other proprietary data including, without limitation, all technical and non-technical information provided by either party to the other, including but not limited to, trade secrets, business processes, manufacturing processes, business plans, inventions, patents, patent applications, copyrighted information, proprietary information of any kind, including but not limited to, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details, specifications, engineering and proprietary business information of any sort, including but not limited to, pricing and cost data, pricing schedules and fee amounts, pricing and billing policies, quoting procedures, invoices of any kind, service agreements, internal personnel, vendor names, and other vendor information (including vendor characteristics, services, and agreements), purchasing and internal cost information, internal services and operational manuals, timesheets, computer files (including, but not limited to, emails, Microsoft Word files, and Excel files), and the manner and methods of conducting company business (including, but not limited to, all company-generated forms and manuals), product descriptions, requests for proposals and supporting documentation, estimates, security documentation, disaster recovery plans, SAS-70 and audit documentation, financial information and statements, tax returns and the type, procurement requirements, purchasing, manufacturing, names of customers and their representatives, the type, quantity, specifications, and history of products and services purchased, leased, licensed, or received by customers, customer services, customer billing records, customer work-in-progress reports, data provided by customers, customer work papers, customer lists, investors, employees, business and contractual relationships, business forecasts, future plans and potential strategies which have been or are being discussed, sales and merchandising, marketing and development plans, sales data, research or development projects or results, tests, and any non-public information which concerns the business, operations, ideas or plans of a party to this Agreement conveyed to the other party by any format or means including, but not limited to written, typed, magnetic, or oral transmission (collectively “Confidential Information”).
- which is generally known to the trade or the public at the time of such disclosure;
- which becomes generally known to the trade or the public subsequent to the time of such disclosure, but not as a result of disclosure by the receiving party;
- which is legally received from a third party without restriction;
- which is independently developed by the receiving party, without reference to or in connection with the Services contemplated in this Agreement;
- which is approved for release in writing by the disclosing party prior to any release by the recipient party; or,
- demanded by a lawful order from any court or governmental body empowered to issue a legally binding order. The receiving party shall provide the disclosing party with a copy of such order promptly following receipt. If either party is required to disclose Confidential Information in response to a valid order by a court or other governmental body, as required by law, said party may disclose such Confidential Information only to the extent legally compelled. The disclosing party will be given an opportunity to oppose any such order or to seek a protective order that protects the Confidential Information at issue before the recipient party complies with any such court or governmental order provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
Neither party shall share or disclose Confidential Information with any individual(s) or entities except as expressly provided for under the terms of this Agreement, or as necessary to perform the Services contemplated under the terms of this Agreement. The parties and their affiliates shall not disclose Confidential Information to their respective employees, officers, directors, consultants, subcontractors, vendors, advisors or any other agent, except on a need-to-know basis. In no case may Confidential Information be shared with or disclosed to any third party not a party to this Agreement in such a manner as to violate the Gramm Leach Bliley Act, the California Financial Information Privacy Act, the Fair Credit Reporting Act and its amendments, NCUA Regulation 716, NCUA Regulation 748, Appendix A, Safeguarding Member Information, or any other state or federal protection for personal and financial information privacy and confidentiality.
All documentation and other information shall remain the disclosing party’s property and shall be immediately returned to the disclosing party or destroyed upon request. Neither party shall make copies of Confidential Information supplied by the other party except as required for back-up or redundancy and shall erase, destroy, return, or otherwise render useless, any information that is no longer necessary to fulfill its obligations hereunder. Data destruction shall conform to the FTC’s Final Regulation on Consumer Information and Records Disposal 16 CFR 682.
XOBEE shall take adequate steps necessary to maintain the confidentiality of Client’s Confidential Information through implementation of a comprehensive information security program, written in one or more readily accessible parts, containing administrative, technical and physical safeguards designed to (a) ensure security and confidentiality of Client’s Confidential Information, (b) protect against any anticipated threats or hazards to the security or integrity of such information, and (c) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Client or any Client member. Such safeguards are appropriate to XOBEE’s size and complexity, the nature and scope of its activities, and the sensitivity of the information it handles. They include, but are not limited to, VPN technology, minimum 256 bit encryption, video surveillance, electronic badge entry/exit systems, attack and intrusion detection monitoring systems and the elements set forth in California Civil Code Section 1798.81.5, 16 C.F.R. Section 14, the Gramm Leach Bliley Act and other applicable state and federal laws
Client shall take adequate steps necessary to prevent disclosure of XOBEE’s Confidential Information (including, but not limited to, pricing schedules, invoicing, XOBEE policies and procedures, SAS-70 documentation and security related documentation) to third parties including, but not limited to, Client’s consultants and independent contractors, without the express written consent of a XOBEE officer.
The parties agree that breach of these confidentiality provisions will cause immediate irreparable harm to the other party for which money damages would be inadequate and extremely difficult to measure and for which there is no adequate remedy at law. Accordingly, either party shall be entitled to seek immediate and permanent injunctive relief, without bond, from a court of competent jurisdiction in the event of any such breach or threatened breach.
Binding Dispute Resolution
The parties shall submit all disputes, claims or demands of any kind relating to or arising out of this Agreement (“Controversy”) to a three-step dispute resolution process. The three-step process shall (i) begin with informal negotiation conducted in good faith, (ii) be followed, if necessary, by mediation, initiated by written demand of one party served on the other, and if the mediator determines that the Controversy cannot be resolved by mediation, then (iii) the Controversy shall be submitted to binding arbitration in accordance with the rules and regulations of the American Arbitration Association, except that the provisions of Section 1283.05 of the California Code of Civil Procedure shall be adopted and used with respect to the conduct of discovery prior to any such arbitration. The arbitration award shall include attorney’s fees and costs as provided in this Agreement and be supported by written conclusions of law and fact. Application may be had by any party to any court of general jurisdiction for entry and enforcement of judgment based on the arbitration award. The foregoing notwithstanding, either party may maintain, for the purpose of obtaining a provisional remedy or provisional relief, any underlying action or claim on which such affirmative relief may be based. The court, pending mediation or arbitration of claims, shall stay the prosecution of such party’s underlying claims on which any provisional remedies or relief are based.
Complete Agreement. This Agreement, including any Statements of Work hereunder, is the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, and agreements (including confidentiality agreements), whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument executed by authorized representatives of the parties.
No Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right, power or privilege hereunder will operate as a waiver thereof, nor will any party’s exercise of any right, power or privilege hereunder preclude further exercise of the same right or the exercise of any other right hereunder.
Enforceability. If any part of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable Law.
Force Majeure. Either party shall be excused from performance and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any Force Majeure Event beyond the reasonable control either of the excused party or its subcontractors or suppliers, for as long as the Force Majeure Event continues and the excused party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. “Force Majeure Events” shall be limited to the following: fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of the excused party.
Notices. Any notice required or permitted hereunder to the parties hereto will be deemed to have been duly given only if in writing to the address of the receiving party as set forth on the initial page hereof or such other address as may be specified by such party in a notice delivered to the other party in accordance with this Section and delivered by: (i) certified U.S. mail, return receipt requested, postage prepaid; (ii) nationally recognized overnight courier, delivery charges prepaid; or (iii) by hand delivery with signed receipt. Any notice shall be deemed delivered: (a) on the fifth (5th) business day following deposit of such notice with the U.S. Postal Service if notice is given in accordance with (i), above; (b) on the second (2nd) business day following deposit of such notice with the courier if notice is given in accordance with (ii), above; or (c) on the date of actual delivery if notice is given in accordance with (iii), above.
Governing Law, Jurisdiction and Venue. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of, the State of California, excluding its choice of law principles. Any legal action between Client and XOBEE shall be conducted in the appropriate state or federal court located in Fresno County, California.
Headings; Subsections; Interpretation. Section headings are provided for convenience of reference and do not constitute part of this Agreement. Any references to a particular section of this Agreement shall be deemed to include reference to any and all subsections thereof. References to the words “including, “includes” or “include” or the abbreviation “e.g.” in this Agreement (including any Statement of Work) shall mean “including, without limitation.”
References to Client. For purposes of clarity, to the extent an Affiliate of Client is receiving Services hereunder, references in this Agreement (including a Statement of Work) to Client as the recipient of Services shall include such entity, and references to Services being performed for or received by Client shall include the performance of such Services for and receipt of such Services by such entity
Assignment. Neither party may assign or delegate any or all of its rights (other than the right to receive payments) or its duties or obligations hereunder without the consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign this Agreement, without the need to obtain consent of the other party, to an Affiliate of such party or to a successor in interest to substantially all of the business of that party to which this Agreement relates. For purposes of clarity, and without limitation, a non-assigning party’s refusal to consent to an assignment proposed by the other party shall be deemed reasonable if based on grounds that the proposed assignee is not financially stable or is a competitor of the non-assigning party. An assignee of either party authorized hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement. If any assignee shall fail to agree to be bound by all of the terms and obligations of this Agreement, then such assignment shall be deemed null and void and of no force or effect.
Attorneys’ Fees. In the event any action, suit, proceeding, or arbitration is brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys’ and consultants’ fees and costs to be fixed by the court or arbitrator.
No Third-Party Benefit. The provisions of this Agreement are for the sole benefit of the parties hereto. This Agreement confers no rights, benefits, or claims upon any person or entity not a party hereto.
Counterparts. This Agreement may be executed in any number of counterparts (including facsimile counterparts), each of which will be deemed an original, but all of which taken together shall constitute one single agreement between the parties.