Master Service Agreement (July 01, 2018 version)
The following Master Service Agreement (“Agreement” or “MSA”) is a legal agreement between you (either an individual or an entity that you are representing, hereinafter “Customer”) and Dental Medical Automation, Inc. (“Master Service Provider” or “MSP” or “DMA”) and its suppliers and licensors (collectively “DMA”) for the DMA Services (the “Service” or “Services”).
DMA operates under the trade names Dental IT, DMA Tech Solutions and Juice Unified Communications (“Juice” or “Juice Phones”)
DMA and Customer shall each be referred to individually as a “Party” and collectively as the “Parties”.
If you are an individual entering this Agreement on behalf of an entity that you are representing, you represent and warrant that you have sufficient and appropriate authority to encumber said entity and are competent to do so.
Any of the following actions constitutes, without limitation or qualification, your approval to be bound by, and to comply with, the terms of this Agreement: (i) Your registering for Service anywhere on a DMA website and selecting “I Accept” or “I Agree” as part of the registration process; (ii) Your electronic or wet ink signature on a DMA Order Form; or (iii) Your use of the DMA Service.
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE DMA SERVICES.
The clauses below set forth the terms and conditions upon which DMA shall provide and Customer shall purchase the Services.
The Parties hereto agree as follows:
1. Contracted Services
This Agreement shall apply to the delivery of information technology services, support, and functions as further described in Addendum A, the Statements of Work (“SOW” or “Order”) that may be proposed and approved by the parties. Any such approved SOW shall be incorporated herein by reference (the services and functions described in any SOW are hereafter referred to as the “Services”). In the event that the scope of the Services is expanded, revised, or modified, for any SOW incorporated herein, the parties shall prepare and sign an amended or new SOW (or change order), which likewise shall be attached hereto and incorporated herein by reference. Absent the execution of a SOW, this Agreement does not, in and of itself, represent a commitment by Customer to receive any Services from DMA or pay DMA any fees.
2. Term and Termination
This Master Agreement shall commence on the date of execution by the Parties of any and all Orders (the “Effective Date”) and shall remain in effect for the Initial Term set forth on the Order (such term, the “Initial Term”, and such Order, the “Initial Order”). UPON THE EXPIRATION OF THE INITIAL TERM THIS MASTER AGREEMENT SHALL AUTOMATICALLY RENEW ON AN ANNUAL BASIS (“RENEWAL TERM”), UNLESS EITHER PARTY PROVIDES WRITTEN NOTICE OF NON RENEWAL TO THE OTHER PARTY AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION OF THE THEN CURRENT INITIAL TERM OR RENEWAL TERM, AS APPLICABLE.
MSP may: (a) terminate a specific Order if Customer fails to pay any applicable fees due for that Order within 30 days after receipt of written notice from MSP of non-payment; and/or (b) terminate this Agreement or an Order if Customer commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from MSP. If an Order for Services is terminated, Customer will promptly pay MSP for Services rendered, and expenses incurred through the termination date.
Customer may terminate this Agreement or an Order if MSP commits any other material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice from Customer.
Customer will pay MSP all fees due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable under this Agreement are exclusive of sales, use, excise, and any other applicable transaction taxes, which Customer will pay (excluding taxes based upon the net income of MSP). If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or at the rate of one and one-half percent (1.5%) per month from the date due until paid in full. Customer shall pay all expenses, including actual attorneys’ fees, incurred by MSP or its representatives in enforcing its rights under this Agreement, provided that MSP is successful on the merits. Customer’s obligation to pay undisputed amounts due for Services and MSP’s right to all such amounts are absolute and unconditional. Customer is not entitled to setoff of such amounts. All Fees will be detailed in an Order. Unless otherwise stated in a Purchase Order, Customer agrees to pay or reimburse MSP for all actual, necessary, and reasonable expenses incurred by MSP in performance of such Purchase Order, which are capable of verification by receipt. MSP will submit invoices to Customer for such fees and expenses either upon completion of the Services, or at stated intervals, in accordance with the applicable Purchase Order or Statement of Work.
4. Change Orders or Out-of-Scope Services
To the extent that Customer requires or requests additional services or services that exceed the Services set forth in any SOW incorporated herein, DMA will charge an additional fee for such additional services or out of scope work. Fees for such additional services or out of scope work will be set forth on a separate SOW, which will also provide a description of the changed or additional service(s) being requested. Once a separate SOW is signed by both parties, it will be incorporated into the Agreement and have the same legal effect as the SOW that is incorporated into the Agreement.
5. Confidentiality and Non-Disclosure
Both Parties to this Agreement recognize that, from time to time, they may come into contact with information that the other Party considers confidential. Confidential Information is defined for this Agreement as all information (whether written or oral) that comes into a Party’s possession under or in connection with this Agreement that is reasonably considered by the disclosing Party to be confidential and is clearly identified as confidential. The Parties shall keep all Confidential Information in strict confidence. The recipient will use a reasonable standard of care in protecting Confidential Information, which will not be less than the standard of care the recipient uses to protect its own confidential information; only use Confidential Information to perform its obligations and exercise its rights under this Agreement; not disclose Confidential Information to any third party; when requested by the disclosing Party, return or destroy the Confidential Information.
6. Provision of Materials and Services to MSP
Customer agrees to timely furnish, at its own expense, all personnel, all necessary computer hardware, software and related materials and appropriate and safe work spaces for purposes of MSP performing the services. Customer will also provide MSP with access to all information, passwords and facilities requested by MSP that is necessary for MSP to perform the services. Access may be denied for any reason at any time, however if access to information, passwords or facilities is denied, Customer understands that the MSP may be unable to perform their duties adequately and if such a situation should exist, the MSP will be held harmless.
7. Working Environment
Customer shall provide a suitable working environment for any Equipment located at Customer’s facility. Such environment includes, but is not limited to the appropriate temperature, static electricity and humidity controls and properly conditioned electrical supply for each piece of Equipment. Customer shall bear the risk of loss of any Equipment located at Customer’s facility.
8. Customer Responsibility For Equipment
Customer acknowledges that from time to time (a) MSP may identify additional items that need to be purchased by Customer, and (b) changes in Customer’s systems may be required in order for MSP to meet Customer’s requirements. In connection therewith, Customer agrees to work in good faith with MSP to effectuate such purchases or changes. In the event that MSP is required to purchase any assets, including computer hardware and/or software, in connection with MSP providing the services, all such assets will remain the sole property of MSP unless specifically stated otherwise in writing. Customer will be responsible for the quality, completeness and workmanship of any item or service furnished by it and for ensuring that the materials provided to MSP do not infringe or violate the rights of any third party. Customer will maintain adequate backup for all data and other items furnished to MSP.
It is the Customers responsibility for any failure or malfunction of electrical or telecommunications infrastructure or services that causes damage to MSP’s products or services and MSP disclaims all responsibility for any loss including data.
9. Customer Data Ownership and Responsibility
Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Customer to MSP.
9.1 Software Installation or Replication
If MSP is required to install or replicate Customer software as part of the Services, Customer will independently verify that all such software is properly licensed. Customer’s act of providing any software to MSP will be deemed Customer’s affirmative acknowledgement to MSP that Customer has a valid license that permits MSP to perform the Services related thereto. In addition, Customer will retain the duty and obligation to monitor Customer’s equipment for the installation of unlicensed software unless MSP in a written statement of work (“SOW”) expressly agrees to conduct such monitoring. Customer will indemnify and hold harmless MSP against all damages and expenses it may incur (including reasonable attorney’s fees and disbursements) related to Customer providing infringing materials to MSP or any Customer breach of this Section.
10. Intellectual Property
MSP retains all intellectual property rights in any property invented or composed in the course of or incident to the performance of this Agreement, as well as any software, materials, or methods created prior to or after conclusion of any work. Customer acquires no right or interest in any such intellectual property, by virtue of this Agreement or the work performed under this Agreement.
10.1. Customer may only use and disclose Product in accordance with the terms of this Agreement and applicable Order. MSP reserves all rights in and to the Product not expressly granted in this Agreement. Customer may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without MSP’s prior written approval. Except as expressly authorized in this Agreement or an Order, Customer may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or MSP business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product – applicable installation instructions or release notes will contain the relevant details.
10.2. License Agreements.
(a) License. Subject to the terms of this Agreement, MSP grants Customer a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other product provided as part of the Services solely for its own internal use.
(b) Pre-Existing License Agreements. Any software product provided to Customer by MSP as a reseller for a third party, which is licensed to Customer under a separate software license agreement with such third party, will continue to be governed by the third party license agreement.
(c) EULA. Customer hereby consents permission to MSP to sign all EULA’s necessary for any software product installed on Customer’s computer system.
10.3. Third-Party Products. Product warranties for third party products, if any, are provided by the manufacturers thereof and not by MSP. MSP’S sole obligation is to act on behalf of Customer to assist in the satisfaction of any such warranty.
MSP warrants that it will perform the Services substantially in accordance with the specifications set forth whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them. For any breach of the foregoing warranty, MSP will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the ten (10) business day period immediately preceding the date of Customer’s written notice to MSP specifying in reasonable detail such non-conformance. If MSP concludes that conformance is impracticable, then MSP will refund all fees paid by Customer to MSP hereunder, if any, allocable to such nonconforming Services.
Notwithstanding the above, MSP does not warrant its products or services beyond a reasonable standard or skill consistent with industry standards. MSP does not guarantee or promise any cost savings, profits, or returns on investment.
12. Software, Hardware & Security
Customer understands and agrees that data loss or network failures may occur, whether or not foreseeable, if the Customer fails to maintain proper security for its computer and information system including software and hardware updates. Customer therefore warrants that it will follow software and hardware updates per the original software or hardware manufacturer outlines and best practices.
13. Terrorism and Cyber Terrorism
In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any act of terrorism, strike or similar labor action, war, invasion, act of foreign enemy, hostilities or warlike operations, civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, or any action taken in controlling, preventing or suppressing any of these things, including any such act or series of acts of any person or group(s) or persons, whether acting alone or on behalf of or in connection with any organization(s), committed for political, religious or ideological purposes including but not limited to the intention to influence any government and/or to put the public in fear for such purposes by using activities perpetrated electronically that are directed towards the destruction, disruption or subversion of communication and information systems, infrastructure, computers, telecommunications or electronic networks and/or its content thereof or sabotage and or threat therefrom.
14. Extraordinary Events
In no event, including the negligent act or omission on its part, shall MSP, whether under this Agreement, a purchase order, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of or arose from any failure or malfunction of electrical or telecommunications infrastructure or services not under MSP’s control, any satellite failure, or from any fire, flood, earthquake, volcanic eruption, explosion, lighting, wind, hail, tidal wave, landslide, act of God or other physical event, pandemic, or plague.
15. Limitations of Liability
Customer agrees that DMA shall not be liable to Customer, or any third party, for (1) any liability claims, loss, damages or expense of any kind arising directly or indirectly out of services provided herein for (2) any incidental or consequential damages, however caused, and Customer agrees to indemnify and hold DMA harmless against such liabilities, claims, losses, damages (consequential or otherwise) or expenses, or actions in respect thereof, asserted or brought against DMA by or in right of third parties or for (3) any punitive damages. For purposes of this Agreement, incidental or consequential damages shall include, but not be limited to, loss of anticipated revenues, income, profits or savings; loss of or damage to business reputation or good will; loss of Customers; loss of business or financial opportunity; or any other indirect or special damages of any kind categorized as consequential or incidental damages under the law of the State of Ohio. DMA’s liability for any damages hereunder shall in no event exceed the amount of fees paid by Customer to Verified as of the date the alleged damages were incurred.
Customer agrees to defend, indemnify and hold DMA, its Affiliate(s) and its vendors harmless from any claims or damages relating to this Agreement.
The express remedies set forth in this Agreement will constitute Customer’s exclusive remedies, and MSP’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.
MSP shall not be responsible for impairments to the Services caused by acts within the control of Customer or its employees, agents, contractors, suppliers or licenses, the interoperability of Customer applications, or other cause reasonably within Customer’s control and not reasonably related to services provided under this Agreement.
EXCEPT FOR THE WARRANTIES MADE BY MSP IN SECTION 10, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CUSTOMER, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.” MSP DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER. THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.
MSP DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY CUSTOMER REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CUSTOMER, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.
18. Confidential and Proprietary Information
DMA and Customer acknowledge that during the term of this Agreement, DMA and Customer may not disclose certain confidential information about business, vendors, clients, agents, or suppliers (hereinafter referred to as “Contacts”), which may include, but is not limited to, statements regarding income, expenses or costs, financial projections, list of vendors, suppliers employees, customers, potential customers product research marketing and strategic plans, trademarks, and information crucial to both DMA and Customer business. Both DMA and Customer shall protect this information to the highest degree of confidentiality unless requested by legal authorities to release specific information.
Neither Party shall have the authority to bind the other by contract or otherwise make any representations or guarantees on behalf of the other. Each Party acknowledges and agrees that the relationship arising from this Agreement does not constitute an agency, joint venture, partnership, employee relationship or franchise.
Except as otherwise provided, this Agreement may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order, be effective. Notwithstanding the foregoing, DMA may update this Agreement or any of its Policies from time to time and will provide notice to you via email. Such updates will become effective thirty (30) days after such notice to you. In the event that any such update would be of material detriment to you and is not required by Law, you must inform DMA of your objection within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach agreement within thirty (30) days, either Party may terminate the portion of the Services affected by the change without penalty by written notice to the other Party. Any use of the Services after the effective date will be deemed your acceptance of the change.
21. Assignment and Transfer
This Agreement shall bind DMA and Customer, their respective Affiliates and successors. No Party may assign its rights or obligations under this Agreement without the prior written consent of the other parties, which consent shall not be unreasonably withheld, provided that DMA may assign this Agreement and its obligations hereunder to any successor to its business by merger or consolidation or to any party acquiring substantially all of the assets of DMA’s business, provided the assigning party guarantees the performance of and causes the assignee to assume in writing all obligations of the assignor under this Agreement.
22. Force Majeure
With the exception of Customer payment for service rendered, neither party shall be responsible for any failure to perform or delay caused where such failure or delay is due to circumstances reasonably beyond the party’s control. This includes fire, flood, earthquake, volcanic eruption, explosion, lightening, wind, hail, tidal wave, landslide, act of God or any other physical event.
23. Governing Law
This Agreement shall be interpreted and construed according to, and governed by, the laws of the United States, excluding any such laws that might direct the application of the laws of another jurisdiction. The federal or state courts located in the state of Ohio shall have jurisdiction to hear any dispute under this Agreement.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties hereto agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
25. Entire Agreement
This Agreement contains the full understanding of the Parties and neither Party has relied upon any oral or any other written representation. This Agreement supersedes any other oral or written agreement prior to the date hereof. Any modifications to this Agreement must be in writing and signed by both Parties.