Master Services Agreement
Terms and Conditions
This Master Services Agreement, including any statements of work, exhibits, or purchase orders (this “Agreement” or “MSA”) is by and between BEI Holdings, Inc. (“BEI”) an Connecticut corporation located at Six Capital Drive in Wallingford, CT 06492 and you (“Client”). BEI and Client may be referred to herein collectively as the “Parties” or individually as a “Party.” This Agreement may be updated from time to time by BEI, and the Parties are bound by the most current terms and conditions listed herein.
WHEREAS BEI provides certain services (the “Services”), which may include, without limitation: hardware, software, equipment, infrastructure, cloud services, data center services, hosting services, resold services, managed services, maintenance services, and/or professional services, as more particularly described in the exhibit or statement of work applicable to the Services (the “SOW”), and is willing to provide the Services to Client; and
WHEREAS Client desires to have BEI provide the Services.
NOW THEREFORE, in consideration of the mutual promises made herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
1 – TERM, FEES, AND TERMINATION
1.0 Term: The initial term of this Agreement shall begin on the Commencement Date (as defined below) and shall continue for an initial term of three years (the “MSA Term”), and thereafter shall automatically renew for three-year renewal terms (the “MSA Renewal Term(s)”) unless or until terminated as provided herein. For clarity, each SOW will have its own term and renewal term provisions.
1.1 Fees: Client shall pay to BEI all fees set forth in the SOW (or applicable order form), including, without limitation: taxes, shipping, handling, credit card fees, and other fees or expenses as necessary (the “Fees”) on or before thirty (30) days of the invoice date. Client shall also provide complete and accurate billing and contact information to BEI, updated as necessary. All payments required by this Agreement shall be made in United States dollars. Fees may include one or more of the following, and may be further defined in the applicable SOW, purchase order, or exhibit:
1.1.1 One-Time Setup Fee: On or before the date the Services begin (the “Commencement Date”) as defined in the applicable SOW, purchase order, or exhibit, Client will pay to BEI a one-time fee in the amount set forth in the SOW (the “Setup Fee”).
1.1.2 Recurring Subscription Fee: Beginning on the Commencement Date, and through the SOW term and any SOW renewal term(s), Client will pay to BEI a recurring fee in the amount set forth in the SOW (the “Subscription Fee”).
1.1.3 Fixed Fees or Hourly Fees: If the Services are provided on a fixed fee, hourly, or time-and-materials basis, Client will pay to BEI such fees in the amount as set forth in the SOW (“Fixed Fees” or “Hourly Fees”).
1.1.4 Unpaid Fees: If Client does not pay fees when due, BEI may charge Client a late fee at the rate of 1.5% per month (or the maximum rate allowed by law) on any unpaid amount. If any fees remain unpaid fifteen (15) days after payment is due, BEI, in its sole discretion, may (after providing written notice) either terminate the applicable SOW, this Agreement, (“Termination for Unpaid Fees”) or suspend Client’s access to, or usage of, the Services. BEI’s election of any remedy set forth in this paragraph does not relieve Client of its payment obligations pursuant to this Agreement or any SOW and such remedies are in addition to, not in lieu of, all legal and equitable remedies available to BEI. Client must notify BEI of any invoice disputes prior to the payment due date of the invoice in question.
1.2 Termination: If either Party fails to perform any material provision of this Agreement, the non-defaulting Party shall give written notice to the defaulting Party of such default and, if the default is not cured within thirty (30) days, the non-defaulting Party may, in its sole discretion, terminate this Agreement (“Termination for Cause”). Either Party may provide written notice of non-renewal of this Agreement to the other Party on or before sixty (60) days prior to the termination date of the current MSA Term or MSA Renewal Term. If any SOW remains active and uncompleted upon termination of this Agreement, the Agreement shall continue to apply until such SOW is completed or terminated. This Agreement shall automatically terminate if Client purchases no Services from BEI pursuant to this Agreement for any period of twenty-four (24) consecutive months.’
1.2.1 Effect of Termination: Unless otherwise indicated in this Agreement, upon this Agreement’s termination for any reason, all license rights granted herein shall terminate and Client shall immediately pay to BEI any amount due pursuant to this Agreement or any SOW, including without limitation all Fees, which, in the case of recurring fees, shall be paid on a pro-rated basis to BEI for the period up to and including the date of termination. In the event of Termination for Cause or for Unpaid Fees, Client shall pay all amounts due through the end of the then-current MSA Term or MSA Renewal Term or applicable SOW term. Client shall pay any collection costs and attorney’s fees BEI incurs for recovery of unpaid fees.
2 – INTELLECTUAL PROPERTY AND LICENSE RIGHTS
2.0 Technology: “Technology” refers to the pre-existing and proprietary technology (and all derivative works thereof) of each Party, including: software tools, hardware designs, algorithms, software (in object or source code forms), user interface designs, architecture, libraries, documentation (in any fixed form), network designs, know-how, trade secrets, and any related intellectual property (or other proprietary) rights under the laws of any nation, whether owned directly or licensed by that Party or used in connection with the Services.
2.1 Title: All title to each Party’s Technology and/or hardware or equipment shall remain vested in that Party unless otherwise provided herein. Each Party expressly reserves all rights to such Technology and, as it relates to the Services, grants a limited, revocable, non-exclusive, non-transferable, license to the other Party to use the granting Party’s Technology strictly in connection with use of the Services pursuant hereto. Any Technology created during the MSA Term or any MSA Renewal Term (“New Technology”) will be owned by BEI, including any modifications, derivatives, improvements, and enhancements. BEI grants Client a limited, revocable, non-exclusive, non-transferable, license to use any New Technology for Client’s internal use only.
3 – CONFIDENTIALITY
3.0 Confidential Information: “Confidential Information” shall mean: all materials concerning a Party’s business, plans, customers, Technology, products, and other information held in confidence by such Party and marked “Confidential” (or that, under the circumstances of its disclosure, should reasonably be known by the other Party to be confidential). The Parties acknowledge that, as part of BEI’s provision of the Services, each Party may have access to the Confidential Information of the other Party. Accordingly, each Party shall use the highest degree of care to protect the other Party’s Confidential Information. The Parties shall use the Confidential Information only to the extent permitted by this Agreement and for no other purpose whatsoever without the written consent of the disclosing Party. The Parties further agree not to reverse engineer, decompile, or disassemble any Technology of the other Party. All Confidential Information (and copies thereof) shall remain the property of the disclosing Party, and upon that Party’s request, or upon termination of this Agreement, the other Party shall discontinue all use of the Confidential Information provided to it and return or (at the disclosing Party’s request), destroy all Confidential Information. The obligations of the Parties related to Confidential Information shall remain in full force and effect following termination.
3.1 Exceptions: This Agreement imposes no obligation upon the Parties with respect to Confidential Information that the receiving party proves: (a) was rightfully in its possession before receipt from the other Party; (b) is or becomes a matter of public knowledge through no fault of the receiving Party; (c) is rightfully received from a third party without a duty of confidentiality; (d) is independently developed by the receiving Party or a third party without use of the Confidential Information disclosed hereunder; (e) is disclosed by a Party with the other Party’s prior written approval; or (f) is required to be disclosed pursuant to court order or other governmental authority.
4 – WARRANTY, INDEMNITY AND LIABILITY
4.0 Client Warranties: Client expressly represents and warrants to BEI that Client: (1) will use the Services for lawful purposes only and in accordance with this Agreement and will comply with all applicable laws, including the laws of each nation to which any Client data provided to BEI (“Client Content”), will be transmitted; (2) if applicable, has obtained the appropriate consent to provide Client Content to BEI according to all applicable privacy regulations; (3) if applicable, will not transmit any of the following strictly prohibited material: (i) bulk e-mail (often referred to as “Spam”); (ii) any content that infringes the copyrights, trademarks, trade secrets, patents, rights of publicity, or any other intellectual property right (now known or hereafter discovered) of BEI or any third party; (iii) threatening or obscene materials; (iv) defamatory, libelous, or other actionable content or statements; (v) content that contains viruses or other computer programming defects which might damage a user’s system or data; or (vi) unauthorized confidential data, whether protected by trade secret, agreement, or otherwise; (4) possesses all requisite rights, title and interest in and to the Client Content and that Client is aware of no existing or threatened claims in any way affecting Client’s right to the ownership, use, or disposition of such Client Content; (5) will use BEI’s Confidential Information only in accordance with this Agreement’s provisions; and (6) has the legal right to enter into this Agreement and perform its obligations hereunder.
4.1 BEI Warranties: BEI expressly warrants to Client that BEI: (1) will comply with all applicable laws; (2) has good and valid title to, or good and valid leasehold interest in, all equipment, if any, provided by BEI to Client; (3) is duly authorized, if applicable, to provide the Services to Client pursuant to this Agreement; and (4) has the legal right to enter into this Agreement and perform its obligations hereunder.
4.2 Exclusion of Warranties: Client will look exclusively to the manufacturer of any equipment or software for any warranty claims relating thereto and BEI has no responsibility for software or equipment remedy claims. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE WARRANTIES MADE BY THE PARTIES IN THIS AGREEMENT CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF EACH PARTY AND ARE IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AVAILABILITY, AND/OR ANY WARRANTY THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES ARE FURNISHED “AS IS” AND BEI DOES NOT WARRANT THAT THE SERVICES ARE FREE OF INACCURACIES, ERRORS, VIRUSES, HACKERS, INTERRUPTIONS OR OTHER PROGRAM LIMITATIONS. THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICES IS BORNE BY CLIENT.
4.3 Indemnification: Each Party will defend, indemnify, and hold harmless the other Party from and against all claims, losses, harm, costs, liabilities, damages, and expenses (including but not limited to court costs, reasonable attorney’s fees, and related expenses (collectively, “Losses”) related to any third-party claim, action, suit or proceeding brought against such other Party (“Claim”) that is based on, related to, results from, or arises out of, any breach of the indemnifying Party’s representations and warranties set forth in this Agreement. Notwithstanding the foregoing, neither Party will be liable for any Claim to the extent (a) the Party seeking indemnification has violated any material provision of this Agreement or of any SOW; and (b) the Claim would have been avoided in the absence of such violation.
4.4 Conduct of Defense: A Party seeking indemnification pursuant to this Agreement (the “Indemnified Party”) shall: (a) notify the other Party (the “Indemnifying Party”) in writing within five (5) business days of the Indemnified Party’s receipt of the Claim or action upon which such claim for indemnification is based and tender the defense thereof to the Indemnifying Party, (b) permit the Indemnifying Party to direct the defense of such Claim or action at the Indemnifying Party’s expense, (c) provide the indemnifying Party with all information and assistance reasonably necessary to defend the same, and (d) not enter into any settlement of the Claim or action without the Indemnified Party’s written consent. Notwithstanding the foregoing, the Indemnified Party may, at its sole option and expense, participate in the defense of the Claim or action with additional counsel of its own choosing. Failure to comply with this section will not relieve a Party of its indemnification obligations unless such failure results in material prejudice to the Indemnifying Party’s defense of a Claim or action.
4.5 Limitation of Liability: EXCEPT FOR CLIENT’S OBLIGATIONS TO PAY ALL FEES OR PAYMENTS (INCLUDING ANY INTEREST, COSTS OR FEES DUE ON UNPAID AMOUNTS) DUE TO BEI PURSUANT TO THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAYABLE PURSUANT TO THIS AGREEMENT.
4.6 Exclusion of Damages: NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF GOODWILL, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR RELATED TO, THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THIS EXCLUSION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5 – SUPPORT AND MAINTENANCE (AS APPLICABLE)
5.0 Service Levels: BEI will make reasonable efforts to ensure the reliability and availability of all systems under BEI’s direct control related to providing the Services in accordance with BEI’s Service Levels (“SL”) as shown in the SOW. Client agrees to its obligations set forth in the SL.
5.1 Downtime Disclaimer: Client agrees that BEI shall not be responsible if the Services are inaccessible or inoperable due to scheduled periodic maintenance or upgrades, or for reasons beyond BEI’s reasonable control, including but not limited to: (i) Client or BEI equipment or software malfunctions; or (ii) interruptions caused by third parties that provide connectivity to BEI’s or Client’s data centers.
5.2 Reasonable Precautions: Due to the risks (including, without limitation, loss or corruption of data, delays, non-deliveries, mis-deliveries, and service interruptions) associated with the reception, manipulation, transmission, storage, and other uses of data over networks such as those related to the Services, Client agrees that it will be responsible for all necessary precautions to protect against such risks. Any dependence upon, or use of, data, information, or other content, whether human or machine-readable, received or transmitted in relation to the Services, is at Client’s own risk.
5.3 Assumption of Costs: Client agrees to assume the cost of necessary servicing, repair, or correction of problems caused by any of the risks set forth in the foregoing subsections, or similar risks, including internet blackouts or brownouts, improper client application architecture and/or implementation, alteration of transmission(s) or data, any harmful material or data sent or received, any harmful transmission(s) arising through use of the Services, any threatening, obscene, defamatory, offensive, or illegal content, or conduct of any third party.
5.4 Client Modifications: In connection with its use of the Services, Client may have the ability to modify certain system configuration settings. However, if Client elects to modify such configuration settings, such modification(s) shall release BEI from any liability or responsibility to repair or reconfigure the affected system(s) pursuant to BEI’s standard support. Accordingly, if such modification(s) by Client require reconfiguration or repair, Client agrees to pay for such reconfiguration or repairs on a time-and-materials basis at then-current hourly rates.
6 – NETWORKS AND ACCESS
6.0 Networks: BEI will use reasonable efforts to ensure the quality of systems under its control related to delivery of the Services; however, BEI cannot guarantee the level of service of any network that is not operated or controlled by BEI (“Third-Party Networks”). Accordingly, Client agrees that BEI is not responsible for network delays or interruptions caused by Third-Party Networks.
6.1 Access: Client agrees not to use, or permit others to use, any process, program, or tool that creates or attempts to create unauthorized access to any systems or networks. Client and BEI will aid authorities in the prosecution of any illegal activities. Client agrees to comply with any rules related to any network access provided by BEI.
7 – ACCEPTABLE USE
7.0 Use: Client will ensure that Client and its end-users use the Services appropriately. Client will take commercially reasonable steps to manage the use of the Services to minimize network abuse. Client will prohibit its end-users from reselling or distributing the Services. Client shall not grant any rights to its end-users beyond the scope of this Agreement, including any SOWs. Client shall inform BEI of Client’s authorized contact(s) in case of emergencies or complaints.
8 – GENERAL
8.0 For Equipment Sales Only: If equipment is delivered to Client based on the expectation that the Parties will enter into an agreement, and the Parties fail to enter into an agreement within ten (10) days after delivery of the equipment to Client, then Client shall immediately pay BEI’s invoice for the equipment. As applicable, Client grants BEI a purchase money security interest in the equipment to secure payment of the purchase price of the equipment, and Client hereby authorizes BEI to file a financing statement reflecting such security interest. Purchase orders and/or order acknowledgements shall be binding only with respect to (i) the equipment ordered; (ii) the fees therefor; and (iii) the delivery location. Other Client terms found in such forms shall be void and of no effect. As applicable, title and ownership of any equipment purchased through BEI shall remain vested in BEI until the point of shipment of the equipment. Equipment will be free and clear of all liens, claims and encumbrances. Title to any software provided by BEI will remain with the applicable licensor(s), and Client’s rights therein are governed by the license agreement between such licensor and Client.
8.1 Notice: Any notice given by one Party to the other pursuant to this Agreement, shall be in writing and shall be effective: (a) one (1) business day after it is sent to the other Party’s signatory set forth below at such Party’s address shown herein (or such other address as the Parties may provide by written notice from time to time), by personal delivery, or by recognized overnight delivery service; or (b) three (3) business days after it is sent via first class mail, postage prepaid; or (c) on the date sent by email to the email address designated by such Party pursuant hereto.
8.2 Credit: The provision of the Services is subject to BEI’s continuing approval of Client’s creditworthiness. Client shall furnish appropriate information to BEI, as BEI may from time-to-time reasonably request, to determine Client’s ongoing creditworthiness.
8.3 Force Majeure: Nonperformance of either Party shall be excused to the extent that performance is rendered impossible by any event(s) beyond that Party’s control, including without limitation: acts of God, fires, floods, earthquakes, storms, natural disasters, riots, explosions, insurrections, acts of sabotage, epidemics, pandemics, quarantine restrictions, strikes, labor disputes or shortages, governmental acts, orders, or restrictions, supply failures, internet outages, or any other events or occurrences where such failure to perform is beyond the control of, and not caused by, any act or negligence of the nonperforming Party.
8.4 Independent Contractors: Each Party is an independent contractor to the other Party in the performance of its obligations pursuant to this Agreement. Neither Party will be entitled to, or will attempt to, create or assume any obligation, express or implied, on behalf of the other Party. This Agreement will not be construed to create an association, joint venture, partnership, or franchise between the Parties or to impose any obligation, or liability except as specifically set forth herein.
8.5 Assignment: Client may not assign or transfer this Agreement to any third party under any circumstances including, without limitation: by court order, operation of law, statute, regulation, ordinance, or otherwise, without BEI’s prior express written consent. Any attempt by Client to assign this Agreement shall be null and void and shall, at BEI’s sole option, be a basis for the immediate termination of this Agreement.
8.6 Non-solicitation: During the MSA Term, any MSA Renewal Term, and for a period of twelve (12) months following termination of this Agreement, neither Party shall solicit for employment any of the other Party’s existing employees. This restriction shall not apply to persons who respond to advertisements of general or industry circulation.
8.7 Non-Waiver: A Party’s failure to insist upon or enforce strict performance by the other Party of any provisions of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment of any right or provision of this Agreement and such provisions and rights will remain in full force and effect. No waiver shall be effective unless it is in writing and signed by the Party charged with making such waiver.
8.8 Governing Law: This Agreement shall be exclusively interpreted, construed, and enforced in all respects in accordance with the laws of the State of Connecticut without reference to its choice of law rules. The exclusive venue for all disputes or actions hereunder will be the appropriate courts in New Haven County, Connecticut, and the Parties irrevocably consent to the jurisdiction of such courts for any dispute related to this Agreement.
8.9 Entire Agreement: This Agreement sets forth the entire agreement of the Parties and supersedes, merges, and voids all prior agreements related to its subject matter. No change, amendment, or modification of any provisions of this Agreement will be valid unless set forth in writing signed by the Parties.
8.10 Miscellaneous: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Headings used through this Agreement are for reference purposes only and such headings and terms shall not be held to explain or aid in the interpretation, construction, or meaning of this Agreement’s provisions. If any term or provision of this Agreement is found to be illegal or unenforceable, this Agreement’s remaining terms shall remain in full force and effect and such offending term or provisions alone shall be stricken. In the event of conflict between this Agreement and any SOW or exhibit, the SOW or exhibit shall prevail. In the event of conflict between this Agreement and any online BEI agreement, this Agreement shall prevail, unless otherwise agreed between the Parties. All provisions regarding indemnification, warranty, liability, and limits thereon, and confidentiality and/or protections of proprietary rights and trade secrets shall survive the termination of this Agreement.
Last updated January 2022.