This Master Service Agreement (“Agreement”) shall apply to any client Order Form (“COF”), Statement of Work (“SOW”) all agreements assigned, transferred, or conveyed to Facilitex and other agreements, addendums, appendices or referenced documents (together with these Terms, the “Agreement”) executed between Facilitex and the client identified in the Agreement (“Client”).
WHEREAS, Client desires to engage Facilitex to perform the services set forth in the applicable Statement of Work, under the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:
1. Scope of Services
1.1 Services: Facilitex agrees to provide the services described in one or more Statements of Work (“SOWs”) that may be executed by the Parties from time to time and attached hereto as Exhibit A and in accordance with the Service Level Agreement (“SLA”) attached hereto as Exhibit B. Each SOW shall detail the specific services to be provided, deliverables, timelines, and associated fees (collectively, the “Services”).
1.2 Incorporation: Each Client Order Form (“COF”), SOW, or any other agreement, addendum, appendices or referenced document executed between Facilitex and Client shall be incorporated by reference into this Agreement.
1.3 Modifications: All changes to the scope of Services shall be documented in writing, detailing the revised scope, timelines, and fees, and signed by both parties.
2. Term and Termination
2.1 Term: This Agreement shall commence on the Effective Date and continue for a period of one (1) year unless otherwise specified on the respective COF or SOW (the “Initial Term”). Except as otherwise stated in this Agreement or the respective COF or SOW, this Agreement shall automatically renew for a successive term of one (1) year (the “Renewal Term”) at the end of the Initial Term and each Renewal Term, unless either Party provides written notice of non-renewal to the other Party at least ninety (90) days before the expiration of the then-current Term (collectively, the “Term”). Facilitex reserves the right to increase its prices upon the renewal of any Term, provided it gives at least thirty (30) days’ notice to Client prior to the renewal.
2.2 Termination for Convenience: Either party may terminate this Agreement or any SOW for convenience by providing ninety (90) days’ written notice to the other party. In such cases, the Client shall remain liable for all fees and payments due to Facilitex for the 90-day notice period, even if services are discontinued prior to the end of that period.
2.3 Termination for Cause: Either Party may terminate this Agreement or any SOW immediately, without cause or penalty, if the other Party materially breaches any provision of this Agreement or any SOW and fails to cure such breach within ten (10) days after receiving written notice of the breach. A “Material Breach” includes, but is not limited to any of the following:
2.3.1 Non-payment of any amounts due, within ten (10) days of the date when due, subject to service interruption, and excluding any amounts disputed in good faith;
2.3.2 Failure by Client to timely execute all reasonable additional relevant documents or provide verbal authorization when requested, including any delivery & acceptance confirmation;
2.3.3 Attempts by the Client to assign this Agreement in whole or in part without written permission of Facilitex;
2.3.4 Any notification from Client (in any form) of termination (or intent to terminate) effective prior to the end of the Term (not including Notice of non-renewal effective at the end of the Term);
2.3.5 Any proceedings in bankruptcy are instituted by or against Client or any guarantor of this Agreement, or if Client or any guarantor of this Agreement files, or any creditor or other person files, any petition in bankruptcy under any law, rule or regulation of the United States of America or of any State, or if a receiver of the business or assets of Client or of any guarantor of this Agreement shall be appointed, or if a general assignment is made by Client for the benefit of creditors;
2.3.6 Client ceases to operate its business;
2.3.7 Client becomes insolvent under any generally accepted measure of insolvency, including if Client becomes unable pay its debts as they become due or if Client does not possess sufficient assets to pay its existing debts;
2.3.8 Client violates any law, regulation, ordinance, or contractual obligation to any person or entity that may result in the termination or suspension of Client’s business operations for any period of time, or of the sale or transfer of any amount of Client’s business or assets to any person or entity;
2.3.9 Client makes an unauthorized disclosure of Confidential Information, as described in Section 4 of this Agreement.
2.3.10 Facilitex informs Client in writing that any event constituting a Material Breach has occurred and Client fails, within fourteen (14) days to cure the breach or provide evidence, reasonably satisfactory to Facilitex, demonstrating no such breach has occurred; or
2.3.11 Any change of Client’s ownership, whether in whole or in part, unless assigned with written permission from Facilitex.
2.4 Material Breach: In the event of a Material Breach, Facilitex shall have (i) the right during any cure period to suspend any or all Services and deny Client any or all access to Software, hardware, or security devices including but not limited to firewalls, reconnection to any of which will require a $500 Reconnect Fee, (ii) the right to immediately terminate the Agreement and recover all damages from Client (including but not limited to amounts due from Early Termination as defined in Section 2.3 above), and (iii) such other rights and remedies against Client as provided under the Agreement and applicable law. Facilitex’s rights and remedies are cumulative and not mutually exclusive.
2.5 Effect of Termination: Upon termination of this Agreement or any SOW, Facilitex shall cease all Services under the terminated SOW(s), and the Client shall pay Facilitex for all Services rendered and expenses incurred up to the effective date of termination.
Within thirty (30) days of such termination, Client may (a) request a return of any prepaid deposit amounts (“Deposit”) on file with Facilitex, which Deposit shall be returned, and (b) transfer its data hosted by Facilitex, if any, to different system, for the then current fees as outlined herein.
If the Client provides notice of non-renew, pursuant to Paragraph 2.1, or notice of termination for convenience, pursuant to Paragraph 2.3, Facilitex may, at its discretion, immediately cease providing support to the Client.
2.6 Survival: The provisions of this Agreement that by their nature are intended to survive termination (including, but not limited to, Sections on Confidentiality, Indemnification, Limitation of Liability, and Governing Law) shall survive any expiration or termination of this Agreement.
3. Fees and Payment Terms
3.1 Fees: The Client agrees to pay Facilitex the fees specified in each SOW. Fees may be based on a fixed price, hourly rate, or other agreed-upon pricing model. Facilitex reserves the right to adjust fees for services upon renewal of the Agreement, provided the Client receives thirty (30) days’ notice before the end of the current Term or the Parties otherwise agree in writing.
3.2 Software Licensing: The Client shall also be responsible for paying any software licensing fees, including those for third-party software. In the event that Client elects not to renew this Agreement, pursuant to paragraph 2.1, or this Agreement terminates for any reason, Client shall be responsible for paying any software licensing fees which extend beyond the termination date. These fees must be paid to Facilitex in full by the termination date.
3.3 Invoicing: Facilitex shall invoice the Client as specified in the applicable SOW. Unless otherwise stated in the SOW, payment shall be due immediately upon receipt of the invoice.
3.4 Late Payments: Payments not received within thirty (30) days of the due date shall be subject to a late fee of one and one-half percent (1.5%) per month on the outstanding balance. Facilitex reserves the right to suspend services if payment is not received within sixty (60) days of the due date. If payment is not received within sixty (60) days, Facilitex may also suspend access to email accounts or other critical systems, including withholding passwords or other system-related information, until all outstanding balances are paid in full.
4. Confidentiality
4.1 Confidential Information: Client agrees that this Agreement (including all related pricing, schedules, Orders, COFs, Amendments, proprietary information, trade secrets, or other non-public information) and all additional agreements and written correspondence with Facilitex shall be considered confidential (collectively, “Confidential Information”). Any disclosure of Confidential Information by Client unless required by law is prohibited and considered to be a material breach of this Agreement. If Client is required by law to disclose any Confidential Information, Client shall provide Facilitex with prompt written notice of such requirement and shall cooperate with Facilitex in seeking a protective order or other appropriate remedy.
4.2 Exceptions: Confidential Information does not include information that:
4.2.1 Is or becomes publicly available without breach of this Agreement; or
4.2.2 Is independently developed by the Client without reference to the Facilitex’s Confidential Information;
4.3 Return or Destruction: Upon notice of termination or non-renewal of this Agreement, the Client shall promptly return or destroy all Confidential Information of Facilitex.
4.4 Remedies for Breach: In the event of an unauthorized disclosure of Confidential Information, Facilitex shall be entitled to seek injunctive relief, specific performance, or damages, in addition to any other remedies available under law.
4.5 Survival: The confidentiality provisions of this Agreement shall remain in full force and effect after the termination or expiration of this Agreement.
5. Intellectual Property Rights: Client acknowledges and agrees that all “Intellectual Property” (including but not limited to source code, copyrighted or patented material, trademarks, trade secrets, software and proprietary and confidential information) of Facilitex or its vendors are the property of Facilitex or its vendors, respectively. Client is granted a non-exclusive, non-transferable, limited license to use Facilitex’s Intellectual Property solely for the duration and purposes of this Agreement. Facilitex and its vendors retain all respective rights in their Intellectual Property, including any enhancements thereto or derivative works thereof. Client shall not modify, reverse engineer, or decompile, in whole or in part, any Intellectual Property. It is expressly understood and agreed that title to, or ownership of, any part of the Intellectual Property, including any enhancements thereto or derivative works thereof, shall never transfer to Client. Client agrees not to use Facilitex or its vendors’ service marks, trademarks or brand names (collectively, the “Marks”) relating to the Software without prior written permission of Facilitex. Facilitex’s grant of any right to use any of the Software is subject to the rights retained by Facilitex or its vendors, which are exercisable in Facilitex and its vendors’ sole discretion. Client’s use of any third-party Intellectual Property is subject to the terms of the respective third-party licenses. Facilitex shall not be responsible for obtaining or maintaining such licenses on behalf of the Client. Facilitex may use Client’s identification in its marketing literature, including on its website. In the event of any unauthorized use or infringement of Facilitex’s Intellectual Property, Facilitex may terminate this Agreement immediately and seek injunctive relief, damages, or other legal remedies.
6. Indemnification
6.1 Indemnification by Facilitex: Facilitex agrees to indemnify, defend, and hold harmless the Client from any claims, liabilities, damages, or expenses, to the fullest extent permitted by law, arising out of Facilitex’s gross negligence or willful misconduct in the performance of the Services, except to the extent that Client’s own negligence or willful misconduct contribute to the claims.
6.2 Indemnification by the Client: The Client agrees to indemnify, defend, and hold harmless Facilitex from any claims, liabilities, damages, or expenses, to the fullest extent permitted by law, arising from or related to the Client’s use of the Services, except to the extent such claims arise from the Facilitex’s gross negligence or willful misconduct.
7. Limitation of Liability
7.1 Limitation: USE OF THE SYSTEM IS AT THE SOLE RISK OF CLIENT. FACILITEX, ITS AFFILIATES, AND THEIR THIRD PARTY VENDORS SHALL HAVE NO LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR ANY DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE PRODUCT OR THE USE OF THE PRODUCT TO THE FULLEST EXTENT PERMITTED BY LAW.
7.2 Client Responsibility: ALL DATA ENTRY AND SUBMISSIONS ARE SOLELY THE RESPONSIBILITY OF CLIENT TO REVIEW AND SUBMIT; FACILITEX SHALL NOT BE RESPONSIBLE FOR ANY ERRORS CONTAINED THEREIN, EVEN IF FACILITEX ENTERED OR PREPARED THEM.
7.3 Claims and Transmissions: FACILITEX SHALL NOT BE RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN ANY CLAIMS OR OTHER INTERFACE TRANSMISSIONS TO OR FROM CLIENT. WITH RESPECT TO PROCESS OR TRANSMISSION ERRORS, AS CLIENT’S SOLE AND EXCLUSIVE REMEDY, FACILITEX WILL USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE CLAIMS CLEARINGHOUSE OR OTHER ENTITY TO REPROCESS OR RESUBMIT THE APPLICABLE CLAIM OR TRANSMISSION. IT IS THE SOLE RESPONSIBILITY OF CLIENT TO REVIEW TRANSMISSION LOGS AND REPORTS AND TO IMMEDIATELY NOTIFY THE VENDOR OF ANY ERROR, OMISSION, OR OTHER DISCREPANCY. FACILITEX SHALL NOT BE RESPONSIBLE FOR ANY UNAUTHORIZED OR OTHER IMPROPER TRANSMISSION BY OR ON BEHALF OF CLIENT. CLIENTS AND END USERS HEREBY ACKNOWLEDGE THAT ANY INFORMATION SENT OR RECEIVED DURING USE OF THE SOFTWARE OR SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OBTAINED BY UNAUTHORIZED PARTIES.
7.4 Damages: THE CUMULATIVE LIABILITY OF FACILITEX, ITS AFFILIATES, AND THIRD-PARTY VENDORS FOR ALL LOSS AND DAMAGE WHATSOEVER AND HOWSOEVER ARISING RELATED TO THE AGREEMENT OR ANY UNDERLYING TRANSACTION SHALL NOT EXCEED THE AMOUNTS PAID BY CLIENT TO FACILITEX DURING THE SIX MONTHS PRIOR TO THE WRITTEN NOTIFICATION TO FACILITEX OF THE CLAIM to the fullest extent permitted by law.
7.5 Data Backup: IF DATA BACKUP SERVICES ARE INCLUDED, FACILITEX WILL MAKE REASONABLE COMMERCIAL EFFORTS TO TEST DATA BACKUP AND RECOVERY ON A PERIODIC BASIS, BUT CAN MAKE NO GUARANTEE THAT ANY DATA WILL BE RECOVERABLE. CLIENT ASSUMES ALL RISK ASSOCIATED WITH DATA LOSS.
7.6 Diagnosis, Treatment or Coding: FACILITEX EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR ANY CLAIM FOR INJURIES OR DAMAGES RELATED TO THE USE OF SYSTEMS FOR DIAGNOSIS, TREATMENT, OR CODING.
7.7 Data Privacy: FACILITEX SHALL IMPLEMENT COMMERCIALLY REASONABLE MEASURES TO PROTECT THE CONFIDENTIALITY AND SECURITY OF CLIENT DATA IN ACCORDANCE WITH APPLICABLE DATA PROTECTION LAWS. HOWEVER, CLIENT ACKNOWLEDGES THAT FACILITEX CANNOT GUARANTEE ABSOLUTE SECURITY OF DATA TRANSMITTED OVER THE INTERNET.
7.8 Shortened Statute of Limitations: CLIENT AGREES THAT ANY CAUSE OF ACTION IT MAY BRING ARISING OUT OF OR RELATED TO ANY PRODUCT OR SERVICE, INCLUDING BUT NOT LIMITED TO ACTIONS FOR BREACH OF CONTRACT OR TORT, MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES OR THE CAUSE OF ACTION IS PERMANENTLY BARRED.
7.9 Client’s Use: NEITHER FACILITEX NOR ITS VENDORS ASSUME ANY RESPONSIBILITY FOR CLIENT’S OR OTHER END USERS’ USE OR MISUSE OF INDIVIDUALLY IDENTIFIABLE INFORMATION OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED WHILE USING THE SYSTEM.
7.10 Third-Party Vendors: IN NO EVENT SHALL ANY LIABILITY OF FACILITEX, ITS AFFILIATES, OR THEIR THIRD-PARTY VENDORS, EXCEED THE LIABILITY OF ANY VENDOR AS PROVIDED FOR IN ITS RESPECTIVE END USER LICENSE AGREEMENT (“EULA”), AS INCORPORATED INTO THE AGREEMENT, AND FACILITEX SHALL BE A THIRD-PARTY BENEFICIARY OF ANY AND ALL SUCH EULAS. FACILITEX SHALL NOT BE LIABLE FOR ANY ERRORS, OMISSIONS, OR INTERRUPTIONS IN THIRD-PARTY CONTENT OR SERVICES, NOR FOR ANY LIABILITY RESULTING FROM THE USE OF SUCH CONTENT OR SERVICES.
8. Independent Contractor
8.1 Independent Contractor Status: Facilitex is an independent contractor and not an employee, agent, or partner of the Client. Nothing in this Agreement shall be construed to create a joint venture, partnership, or employment relationship between the parties.
8.2 No Authority: Neither Party shall have authority to bind the other Party to any agreements or contracts without the Party’s express written consent.
9. Client Supplied Items. Facilitex is not responsible for providing maintenance for any Client Supplied Items, or any System issues that result from them, regardless of whether Facilitex referred or recommended the source of such Client Supplied Items. Client acknowledges and agrees that it has an affirmative obligation to ensure that any Client Supplied Items comply with all applicable software systems, network, and equipment requirements and guidelines, including but not limited to the applicable System Requirements; Facilitex’s obligations under the SLA shall be immediately suspended upon discovery of non-compliance with system requirements and shall remain suspended until full compliance is achieved. If the Client Supplied Items do not meet all approved specifications, Facilitex is not obligated to provide any support and Client may be required to purchase additional hardware, software, and/or ISP bandwidth in order to have the System run properly. In the event that Client Supplied Items do not meet specifications, Client shall be responsible for any costs or expenses (as Additional Charges) associated with (i) any additional support provided by Facilitex that may have resulted from such Client Supplied Items, (ii) any efforts by Facilitex to determine whether Client Supplied Items meet the specifications, and (iii) the purchase, configuration, and installation of additional hardware, software, networking or ISP Broadband required to meet specifications. Client shall pay any additional charges within thirty (30) days of invoicing, and Facilitex reserves the right to suspend services until such payment is received. Facilitex shall not be liable for any direct, indirect, or consequential damages arising from the use of Client Supplied Items
10. Modification and Amendments. Facilitex may from time to time modify these Terms by posting a copy of the amended Terms at https://www.facilitex.com/documents In the event such modifications materially and adversely affect Client’s existing material rights and obligations, Facilitex shall electronically notify Client that these Terms have changed, and if Client does not agree to (or cannot comply with) such materially and adversely affected Terms, Client must advise Facilitex of such by providing official Notice (pursuant to Section 15.4) of the specific Section change(s) contested on or before five days from the date notice of the new Terms are provided to Client by Facilitex. If Client fails to provide notice as required by this Section within ten (10) days, Client shall be deemed to have waived any right to contest the changes. Upon Facilitex’s receipt of such timely Notice, Facilitex may elect to continue with the prior version of the Terms, or provide Client with the option to terminate the Agreement early pursuant to the previously existing Terms. In the event a pre-existing COF or other document references a specific section by number, such reference shall be adjusted accordingly. No other modification, addendum, or amendment by Client or any representative of Facilitex to this Agreement, in whole or in part, is authorized or valid unless such modification, addendum, or amendment is set forth in a written document executed by an authorized officer of Facilitex.
11. Material Changes. Notwithstanding anything herein to the contrary, the terms and conditions in the Agreement are subject to periodic review and may be revised by Facilitex in the event that Client exceeds the average Users to Provider ratio, support cases or calls exceed the Facilitex average duration or frequency, or a significant change in any insurance, tax, vendor terms, CPI, third party reimbursement, or other regulations, laws, policies or procedures which materially and adversely affect the ability of Facilitex to provide services hereunder or otherwise render performance by Facilitex difficult, unprofitable, or burdensome. Likewise, products may be substituted for like products which, in Facilitex’s sole discretion, are as good or better. In the event of any such adverse change in any pricing or product substitution (other than pricing or product changes Facilitex passes through on behalf of its vendors, or price increases permissible under this Agreement), Client may terminate the affected product or Service as its sole remedy, provided that Client gives notice within 30 days of receiving notice of the change, and hold Facilitex harmless and indemnify Facilitex against any claims, actions, losses, or damages arising from or relating to such termination.
12. Non-Solicitation: During the term of this Agreement and for a period of one (1) year thereafter, the Client agrees not to directly or indirectly hire, solicit, or encourage to leave Facilitex any employee, consultant, agent or contractor of Facilitex or any such employee, consultant, agent or contractor who has left Facilitex’s employment or contractual engagement within one year of such employment or engagement. In the event of a breach of this provision, the Client shall pay Facilitex a monetary penalty equal to one (1) year’s compensation of the hired, solicited, or encouraged individual. This penalty is agreed upon by the parties as a reasonable estimate of the harm caused by such breach, considering the anticipated harm, the difficulty of proving actual damages, and the parties’ interest in ensuring compliance with this provision. This clause is intended to be enforceable under the laws of New York, and the parties agree that this penalty is not punitive but compensatory in nature, reflecting a reasonable approximation of losses that may be difficult to ascertain with precision.
The Client further agrees that during the term of this Agreement and for a period of one (1) year thereafter, the Client shall not purchase (other than directly through Facilitex) any hardware, products, Software or Services provided under this Agreement, directly or indirectly, from (i) any vendor that is then or has been within the preceding year contracted with Facilitex, or (ii) a reseller of such vendor. In the event of a breach of this Section, Facilitex shall be entitled to seek injunctive relief, liquidated damages, or other remedies as permitted by law.
13. Force Majeure: Facilitex shall not be liable for any failure or delay in performing its obligations under this Agreement due to causes beyond its reasonable control, or that could not have been reasonably anticipated or avoided, including but not limited to acts of God, natural disasters, pandemics, war, terrorism, cyberattacks, internet outages, supply chain disruptions, labor strikes, or government actions. Facilitex shall notify the Client promptly of any force majeure event and shall use reasonable efforts to mitigate the impact of such event on its performance. If the force majeure event continues for a period exceeding sixty (60) days, either Party may terminate this Agreement upon written notice to the other Party.
14. Governing Law and Dispute Resolution
14.1 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
14.2 Dispute Resolution: Any dispute arising out of or in connection with this Agreement shall be resolved through good faith negotiations between the parties. If the dispute cannot be resolved through negotiations, it shall be submitted to mediation, and if necessary, binding arbitration in accordance with the rules of the JAMS Expedited Procedures in New York, New York.
14.3 Exception to Dispute Resolution: Notwithstanding anything to the contrary contained in this Agreement, for any dispute involving a material breach of this Agreement or any other matter Facilitex deems significant, including payment or collections, Facilitex may bypass the mediation and arbitration procedures, and submit such disputes directly to any court of competent jurisdiction, which will have exclusive jurisdiction to determine the dispute.
14.4 Venue: The Parties agree that any and all litigation proceedings related to the subject matter of the Agreement shall be maintained in the United States District Court for the Eastern District of New York or the New York state courts located in Kings County, which courts shall have exclusive jurisdiction for such purpose.
14.5 Attorneys’ Fees: In any litigation or arbitration arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
15. Miscellaneous
15.1 Entire Agreement: This Agreement, together with any SOWs, constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, negotiations, and understandings, whether oral or written.
15.2 Amendments: This Agreement may be amended only by a written instrument executed by both parties.
15.3 Assignment: Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, except that Facilitex may assign this Agreement to an affiliate or in connection with a merger or sale of substantially all of its assets without requiring Client’s consent, with notice to Client.
15.4 Notices: All notices under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by certified or registered mail, return receipt requested, or by email with confirmed receipt, to the addresses specified in the introductory paragraph to this Agreement.
15.5 Severability: If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
15.6 Waiver: The waiver by either party of any breach or default under this Agreement shall not constitute a waiver of any other or subsequent breach or default.
15.7 Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.