Master Services Agreement

This Master Services Agreement (this “Agreement”) is between Terminal B, LLC, a Texas limited liability company that maintains an address for correspondence at 4301 W. William Cannon Dr, Suite B150-302, Austin, Texas 78749 (“us”, “our”, “we” or “Terminal B”), and you, the entity who electronically or physically signs this document or a SOW or OFS that references this document. This Agreement is effective as of the latest date of the signatures of the parties on this document, SOW, or OFS (“Effective Date”).

1) Scope of Services; SOW. This is a master agreement that governs all services that we perform, as well as any licenses or products that we sell or re-sell to you (collectively, the “Services”). The Services will be described in one or more orders, quotes, proposals or statements of work that we provide to you (each, a “SOW”). All SOW’s will become a part of, and governed under, the terms of this Agreement. The terms of this Agreement will control unless the SOW expressly states that it is overriding the conflicting provisions of this Agreement.

1. General Requirements.
   1. System. For the purposes of this Agreement, “System” means, collectively, any computer network, computer system, peripheral or device installed, maintained, monitored, or operated by us pursuant to a SOW.
   2. Requirements. At all times, all software on the System must be genuine, licensed, and in compliance with any End User License Agreement (EULA) and you agree to provide us with proof of such licensing upon our request. If we require you to implement certain minimum hardware or software requirements in a SOW (“Minimum Requirements”), you agree to do so as an ongoing requirement of us providing our Services to you.
   3. Maintenance; Updates. If patches and other software-related maintenance updates (“Updates”) are provided under a SOW, we will install the Updates only if we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware. We will not be responsible for any downtime or losses arising from or related to the installation or use of any Update.
   4. Third Party Support. If, in Terminal B’s discretion, a hardware or software issue requires vendor or OEM support, we may contact the vendor or OEM (as applicable) on your behalf and invoice you for all charges and fees associated with that activity provided that prior written notice is provided by Terminal B to you.
   5. Advice; Instructions. From time to time, we may provide you with specific advice and directions related to the Services. If, in our discretion, your failure to follow or implement our advice renders part or all of the Services economically or technically unreasonable to provide, then we or you may terminate the applicable SOW for cause by providing notice of termination to the other party.
   6. Insurance. If you are supplied with Terminal B Equipment (defined below), you agree to acquire and maintain, at your sole cost, insurance for the full replacement value of that equipment.
2. Fees; Payment. You agree to pay the fees described in each SOW.
   1. Nonpayment. Fees that remain unpaid for more than thirty (30) days after the date on the invoice will be subject to interest on the unpaid amount(s) until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, to suspend part or all of the Services without prior notice to you in the event that any portion of fees are not timely received by us. Notice of disputes related to fees must be received by us within sixty (60) days after the applicable Service is rendered. Time is of the essence in the performance of all payment obligations by you.
   2. Microsoft 365.  Subscriptions to Microsoft 365 products are non-cancellable and must be maintained for the term elected at commencement.  Subscriptions will be automatically renewed and non-cancelable unless Customer provides 30 days’ written notice to Terminal B prior to renewal.  Terminal B may require the full prepayment for such Microsoft 365 products.  Additionally, any modifications to the number of licenses granted for such Microsoft 365 may result in non-coterminous terms.

1. Access. You hereby grant to Terminal B the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the System, on a 24x7x365 basis, for the purpose of enabling us to provide the Services.

1. Limited Warranties; Limitations of Liability.
   1. Hardware / Software Purchased Through Terminal B. Unless otherwise stated in a SOW, all hardware, software, peripherals or accessories purchased through Terminal B (“Third Party Products”) are nonrefundable once the applicable purchase order is placed in Terminal B’s queue for delivery.
   2. Liability Limitations. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to Terminal B), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below) shall not be limited by the foregoing limitation. Except for your payment obligations and your indemnification obligations described in this Agreement, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, hosting services, etc.) to Terminal B for the specific Service upon which the applicable claim(s) is/are based during the one (1) year period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.

1. Indemnification.Each party (an “Indemnifying Party”) agrees to indemnify, defend and hold the other party (an “Indemnified Party”) harmless from and against any and all losses, damages, costs, expenses or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

1. Term; Termination. This Agreement begins on the Effective Date and continues until terminated as described in this Agreement.
   1. Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a SOW or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately this Agreement or the relevant SOW (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within thirty (30) days (ten (10) days for non-disputed non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If you terminate any SOW without cause prior to such SOW’s expiration date, then Terminal B shall be entitled to receive, and you hereby agree to pay to us, (i) all amounts that would have been paid to Terminal B had this Agreement or SOW (as applicable) remained in effect, and (ii) all expenses incurred by us in our preparation and provision of the Services to you.
   2. Client Activity As A Basis for Termination. In the event that (i) any Client-supplied equipment, hardware or software, or any action undertaken by you, causes the System or any part of the System to malfunction consequently requiring remediation by Terminal B on three (3) occasions or more (“System Malfunction”), and if under those circumstances, you fail to remedy, repair or replace the System Malfunction as directed by us (or you fail to cease the activity causing the System Malfunction, as applicable), or (ii) you or any of your staff, personnel, contractors, or representatives engage in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide the Services to you, provided that both parties shall use good faith efforts to resolve any issues for a period of no less than 30 days, then Terminal B will have the right, upon 30 days (30) days prior written notice to you, to terminate this Agreement or the applicable SOW For Cause or, at our discretion and if applicable, amend the applicable SOW to eliminate from coverage any System Malfunction or any equipment or software causing the System Malfunction.
   3. Equipment / Software Removal. Upon termination of this Agreement or applicable SOW for any reason, you will provide us with access, during normal business hours, to your premises or any other locations at which Terminal B-owned equipment or software (collectively, “Terminal B Equipment”) is located to enable us to remove all Terminal B Equipment from the premises. If you fail or refuse to grant Terminal B access as described herein, or if any of the Terminal B Equipment is missing, broken or damaged (normal wear and tear excepted) or any of Terminal B-supplied software is missing, we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of any and all missing or damaged items.
   4. Transition; Deletion of Data. In the event that you request Terminal B’s assistance to transition away from our services, we will provide such assistance if (i) all fees due and owing to us are paid to us in full prior to Terminal B providing its assistance to you, and (ii) you agree to pay our then-current hourly rate for such assistance, with up-front amounts to be paid to us as we may require. For the purposes of clarity, it is understood and agreed that the retrieval and provision of passwords, log files, administrative server information, or conversion of data are transition services, and are subject to the preceding requirements. We will have no obligation to store or maintain any Client data in our possession or control beyond fifteen (15) calendar days following the termination of this Agreement. Client will be responsible for all costs associated with retaining data and/or resources beyond the termination of this agreement. We will be held harmless for, and indemnified by you against, any and all claims, costs, fees, or expenses incurred by either party that arise from, or are related to, our deletion of your data beyond the time frames described in this Section 7(d).

1. Response; Reporting.
   1. Response. We warrant and represent that we will provide the Services, and respond to any notification received by us of any error, outage, alarm or alert pertaining to the System, in the manner and within the time period(s) designated in an applicable SOW (“Response Time”).  In the event of scheduled downtime initiated by Terminal B, we will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.

1. Confidentiality.
   1. Defined. For the purposes of this Agreement, Confidential Information means any and all non-public information provided to us by you, including but not limited to your customer data, customer lists, internal documents, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of Terminal B, (ii) was developed independently by us, or (iii) is or was lawfully and independently provided to us prior to disclosure by you, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
   2. Use. We will keep your Confidential Information confidential, and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by you in writing, or (ii) as needed to fulfill our obligations under this Agreement.
   3. Due Care. We will exercise the same degree of care with respect to the Confidential Information we receive from you as we normally take to safeguard and preserve our own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
   4. Compelled Disclosure. If we are legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, we will immediately notify you in writing of such requirement so that you may seek a protective order or other appropriate remedy and/or waive our compliance with the provisions of this Section 9. We will use its best efforts, at your expense, to obtain or assist you in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, we may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that we have been advised, by written opinion from our counsel, that we are legally compelled to disclose.
   5. Data Security. Terminal B agrees to abide by and maintain adequate data security measures, consistent with industry standards and technology best practices, to protect Confidential Information from unauthorized disclosure or acquisition by an unauthorized person.

1. Additional Terms; Third Party Services.
   1. EULAs. If the acceptance of a EULA is required in order to provide the Services to you, then you hereby grant us permission to accept the EULA on your behalf. You agree to be bound by the terms of such EULAs, and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs. If, while providing the Services, we are required to comply with a third-party EULA and the third-party EULA is modified or amended, we reserve the right to modify or amend any applicable SOW with you to ensure our continued compliance with the terms of the third-party EULA.  We will use reasonable efforts to assist you in obtaining copies of any third-party EULAs which we have accepted on your behalf.
   2. Third Party Services. Portions of the Services may be acquired from, or rely upon the services of, third party manufacturers or providers, such as data hosting services, domain registration services, and data backup/recovery services (“Third Party Service”). Not all Third-Party Services may be expressly identified as such in a SOW, and at all times we reserve the right to utilize the services of any third-party provider or to change third party providers in its sole discretion as long as the change does not materially diminish the Services to be provided to you under a SOW. We will not be responsible, and will be held harmless by you, for the failure of any third-party provider or manufacturer to provide Third Party Services to Terminal B or to you.
   3. Data Loss. Under no circumstances will we be responsible for any data lost, corrupted or rendered unreadable due to (i) communication and/or transmissions errors or related failures, (ii) equipment failures (including but not limited to silent hardware corruption-related issues), or (iii) our failure to backup or secure data from portions of the System that were not expressly designated in the applicable SOW as requiring backup or recovery services.
   4. BYOD. You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices that are connected to the System.

1. Ownership.Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights and other intellectual property owned or licensed by such party (“Intellectual Property”), and nothing in this Agreement or any SOW shall be deemed to convey or grant any ownership rights or goodwill in one party’s Intellectual Property to the other party. Each party agrees to refrain from modifying, reverse engineering, or otherwise using the other party’s Intellectual Property (such as any software tools) without prior written consent.

1. Arbitration. Once a good faith effort has been attempted to resolve any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration before one arbitrator to be mutually agreed upon by the parties. The arbitration shall be administered and conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “Rules”). The cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

1. Miscellaneous.
   1. Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are purposely or intentionally downloaded or installed into the Environment. We do not warrant or guarantee that all malware or malicious activity will be capable of being detected, avoided, quarantined or removed, or that any data deleted, corrupted, or encrypted by such malware (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a SOW, the recovery of Impacted Data is not included in the scope of a SOW. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless such incidents are caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents.
   2. Aggregate Data. As between the parties, Terminal B owns and shall continue to own all right, title and interest in and to all aggregate and statistical information or analyses created and developed by Terminal B from performance and usage data generated through Customer’s use of the Services (collectively, “Aggregate Data”). With the exception of confidential information necessary to fulfill any SOW, use of Aggregate Data excludes confidential information, and is de-identified so that Customer cannot be identified as the source within the Aggregate Data.
   3. Assignment. Neither this Agreement nor any SOW may be assigned or transferred by a party without the prior written consent of the other party provided, however, that you may assign this Agreement pursuant to a merger, consolidation, reorganization, or sale of all or substantially all of your assets or business. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns.
   4. Amendment. Unless otherwise expressly permitted under this Agreement, no amendment or modification of this Agreement or any SOW will be valid or binding upon the parties unless such amendment or modification is originated in writing by Terminal B, specifically refers to this Agreement or the SOW being amended, and is accepted in writing by one of your Authorized Contacts.
   5. Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of this Agreement or any SOW (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
   6. Severability. If any provision hereof or any SOW is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions of this Agreement or any SOW will be valid and enforceable to the fullest extent permitted by applicable law.
   7. No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
   8. Merger. This Agreement, together with any and all SOWs, sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
   9. Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, pandemic, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen excluding disputes with either parties own employees or contractors,, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
   10. Non-Solicitation. You acknowledge and agree that during the term of this Agreement and for a period of eighteen (18) months following the termination of this Agreement, you will not, knowingly or intentionally, individually or in conjunction with others, directly or indirectly solicit, induce or influence any of Terminal B’s employees or subcontractors to discontinue or reduce the scope of their business relationship with Terminal B, or recruit, solicit or otherwise influence any employee or agent of Terminal B to discontinue such employment or agency relationship with Terminal B. Any solicitation or attempted solicitation for employment directed to any of our employees by you will be deemed to be a material breach of this Agreement, in which event we shall have the right, but not the obligation, to terminate this Agreement or any then-current SOW immediately For Cause.
   11. Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
   12. Insurance. Terminal B and you will each maintain, at each party’s own expense, all insurance reasonably required in connection with this Agreement or any SOW, including but not limited to, workers compensation and general liability. We agree to maintain a general liability policy with a limit not less than $1,000,000 per occurrence.
   13. Governing Law; Venue. This Agreement and any SOW will be governed by, and construed according to, the laws of the state of Texas. You hereby irrevocably consent to the exclusive jurisdiction and venue of Travis County, Texas, for any and all claims and causes of action arising from or related to this Agreement.
   14. No Third-Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
   15. Business Day. If any time period set forth in this Agreement expires on a day other than a business day in Travis County, Texas, such period will be extended to and through the next succeeding business day in Travis County, Texas.
   16. Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by U.S. mail, overnight courier, fax or email as follows: notice will be deemed delivered three (3) business days after being deposited in the United States Mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx or other overnight courier, or one (1) day after notice is delivered by fax or email. Notice sent by email will be sufficient only if (i) the sender emails the notice to the last known email address of the recipient, and (ii) the sender includes itself in the “cc” portion of the email and preserves the email until such time that it is acknowledged by the recipient.
   17. Independent Contractor. Terminal B is an independent contractor, and is not your employer, employee, partner, or affiliate.
   18. Data Access/Storage. Depending on the Service provided, a portion of your data may occasionally be accessed or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify our standard access or storage procedures.
   19. Counterparts. The parties intend to sign, accept and deliver this Agreement, SOW or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and deliver this Agreement, any SOW or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature), and the receiving party will be entitled to rely upon the apparent integrity and authenticity of the other party’s signature for all purposes.