Master Service Agreement Terms and Conditions

Master Service Agreement

This Master Service Agreement (“MSA”) is made by and between Client, and Orange County Computer, Inc.® (“Cloud Consultant” or “We”). This agreement shall supersede any previous agreement between the parties. This agreement shall remain valid unless terminated by either party under the provisions of this agreement. In consideration of the mutual promises and covenants set forth in this Agreement and intending to be legally bound, Client and Cloud Consultant agree as follows

1. Description of Work

Client hereby engages Cloud Consultant, and Cloud Consultant hereby accepts such engagement, to provide the Services described in Exhibit A (referred to in the aggregate as (“Services”), a true and correct copy of which is attached hereto as Exhibit “A” and incorporated herein by reference. Cloud Consultant will use its best efforts, skill and ability to perform the Services. Industry standards/best practices mandate that Cloud Consultant maintains a Service Agreement with Client in tandem with Microsoft 365 (“MS365”) Subscription Licensing.

2. Fee

Client shall pay Cloud Consultant the setup fee upon execution of this Agreement. Cloud Consultant shall have no obligation to perform any services hereunder unless and until said payment is made.
Client shall pay Cloud Consultant a monthly fee. This fee may be increased or decreased monthly should the number of Users/Services increase or decrease.
Payment of the monthly fee is due on or before the 1st day of the billing cycle each month.
Payments made after the 10th day of the billing cycle will be charged a service charge of one and one-half percent (1 ½%) per month, or the maximum amount allowed by law, whichever is less, until paid in full. The service charge will be based on the monthly fee indicated in section 2.2. If the abovementioned monthly fee has increased since the signing of this agreement, Client will pay a service charge based on the higher amount.
Every annual anniversary (from the contract start date), prices are subject to a 5% increase (data center utilities charge). Client will be notified 30 days prior to the anniversary date of such changes.
Cloud services require a form of automatic payment. Licensing and Data Center fees are incurred for each client regardless of use. Each day after your monthly subscription is due, Cloud Consultant will continue to pay Client Licensing and Data Center fees to keep Client infrastructure online. After the 10th day of non-payment, all cloud subscription services will be paused until payment is received. A reinstatement fee may be applied.
Client shall be responsible for payment of all software licensing subscription fees through the end of said subscription, even if Client terminates this agreement.
Payments made by credit card are subject to an additional 3% convenience fee.

3. Term

This agreement shall have an initial term of twelve (12) months, commencing on the effective date. Either party may terminate this agreement by providing at least thirty (30) days’ written notice prior to the end of the current term. In the absence of such notice, the agreement will automatically renew for an additional twelve (12) month period. If any data stored on the service platform is not retrieved within thirty (30) days following termination, it may be permanently deleted.

4. Limited Liability

Limitation of Liability
The Client expressly agrees that the use of the Server(s) and Services provided by Cloud Consultant is at the Client’s sole risk. Cloud Consultant, including its employees, affiliates, agents, vendors, licensors, and any other associated party, does not warrant that the Services will be uninterrupted, error-free, or that they will meet the Client’s requirements. Additionally, Cloud Consultant does not guarantee the accuracy, reliability, or quality of any information, content, service, or merchandise provided through the Services.
Exclusion of Certain Damages
In no event shall Cloud Consultant, its officers, agents, or any party involved in the creation, production, or distribution of Cloud Consultant’s Services, be liable for any direct, indirect, incidental, special, or consequential damages arising out of or related to the use or inability to use the Services. This includes but is not limited to damages resulting from errors, omissions, interruptions, file deletions, defects, delays in operation or transmission, or any failure in performance, regardless of cause, including acts of God, communication failures, theft, destruction, or unauthorized access to Cloud Consultant’s records, programs, or Services. The Client acknowledges that this limitation applies to all content accessed or received through Cloud Consultant’s Services.
Third-Party Network Limitations
Cloud Consultant shall not be responsible for any delays, disruptions, or failures caused by third-party networks or services outside of Cloud Consultant’s direct control.
Limitation of Remedies
Notwithstanding the limitations stated above, the Client’s sole and exclusive remedy for any damages, losses, or causes of action arising under this Agreement, whether in contract, tort (including negligence), or otherwise, shall be limited to the lesser of (i) the actual damages incurred, or (ii) an aggregate maximum equal to the amount paid by the Client for the last month of Service prior to the event giving rise to the claim.

5. Terms of Use

Client may only use the Service for lawful purposes. Transmission of any material in violation of any Federal, State or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secrets. Cloud Consultant may, but is not required to, in its sole discretion, terminate Services if Client is using the Service for unlawful purposes.
Your use of the site is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the site. By posting information in or otherwise using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this site, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content — including text, communications, software, images, sounds, data, or other information — that:
1. Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies.
2. Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability.
3. Infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
4. Constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling.
5. Contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
6. Impersonates any person or entity, including any of our employees or representatives.
Cloud Consultant neither endorses nor assumes any liability for the contents of any material uploaded or submitted by third party users of the site. We generally do not pre-screen, monitor, or edit the content posted by users of communications services, chat rooms, message boards, newsgroups, software libraries, or other interactive services that may be available on or through this site. However, Cloud Consultant and its agents have the right at their sole discretion to remove any content that, in our judgment, does not comply with these Terms of Use and any other rules of user conduct for our site, or is otherwise harmful, objectionable, or inaccurate. Cloud Consultant is not responsible for any failure or delay in removing such content. Client hereby consents to such removal and waives any claim against Cloud Consultant arising out of such removal of content. See section 5.5 below for a description of the procedures that will be followed if any party believes that Client content is in violation of any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party. In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the site may be available to you or other authorized users of the site. You shall not interfere with anyone else’s use and enjoyment of the site or other similar services. Users who violate systems or network security may incur criminal or civil liability.
If a violation of any of the above provisions occurs, Client agrees that the Cloud Consultation may at any time, and at the Cloud Consultant’s sole discretion, issue a warning requesting immediate corrective action prior to pausing account access to virtual machines or servers. In addition, Client acknowledges that Cloud Consultant will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
Although this site may or may not be accessible worldwide, Cloud Consultant makes no representations that the materials on this site are appropriate or available outside of the United States due to governmental regulation in other countries, or where Internet access is not present. Accessing these materials from locations where their contents are illegal is prohibited.

6. Client Conduct

Client agrees that they should conduct themselves professionally at all times. Conduct will refer to not only the contents and/or material(s) received, transmitted and/or stored to, from or on Cloud Consultants’ hardware, but shall also be deemed to refer to the client’s self-conduct. Any verbal abuse, foul language, name calling, erroneous accusations, threats, demands, or other similar behavior by the Client shall be grounds for immediate termination of this agreement.

7. Indemnification

Client agrees that they shall defend, indemnify, save and hold Cloud Consultant harmless from any and all demands, liabilities, losses, costs and claims, including any and all attorneys’ fees asserted against Cloud Consultant, its agents, its customers, servants, officers and employees, that may arise or result from any Service provided or performed or agreed to be performed by Client, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless Cloud Consultant against Liabilities arising out of any of the following:

any injury to a person or property caused by any services rendered, products sold or otherwise distributed in connection with the Service;
any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party.
copyright infringement.
violations of Federal, State or local laws; and
any defective product or negligent service which Client provided on the Server hosted by Cloud Consultant.

8. Termination of Agreement

This Agreement may be terminated by either party, without cause, by giving the other party 30 days written notice. Written notice must be by Certified Mail or E-Mail. Cloud Consultant reserves the right to verify all cancellations before terminating service. Notwithstanding the above, Cloud Consultant may terminate service under this Agreement at any time, without penalty, if the Client fails to comply with any of the terms of this Agreement or if the Client defaults on any payment.
All data and software programs owned by Client will be provided back to them on an external backup drive furnished by Client, upon payment of all amounts due Cloud Consultant from Client.
If Client fails to furnish the external backup drive and/or fails to pay all outstanding invoices within 30 days of the written notice given, Cloud Consultant may delete all Client’s data stored on the hosting system.

9. Cloud Consultant’s Access to Client’s Computer System

To perform Services hereunder, and to satisfy the contractual requirements herein, Cloud Consultant shall have access to Client’s computer files at all times and reserves the right to inspect and monitor the use of the systems hosted by Cloud Consultant. Client’s signature on this Agreement gives Cloud consultant the permission to access, inspect and monitor Client’s computer files and system. If Cloud Consultant needs to obtain access or monitoring during normal work hours, Cloud Consultant will notify client via telephone or email.

10. Confidentiality

The PARTIES hereby undertake and agree with one another that none of them will at any time after the date of this Agreement (except as required by applicable law or regulation or in connection with actual or threatened legal proceedings) divulge or communicate to any person other than to officers, employees or professional advisers and agents of the PARTIES, any information relating to this Agreement, except to the extent that the same is required to enforce bona fide claims of either party or by applicable law or regulation.

11. Security

Cloud Consultant shall not be responsible for any unauthorized access to Client’s or to any third party’s electronic data arising out of or related to any actions or inaction by Client’s personnel.
Cloud Consultant shall not be responsible for any losses or damages arising out of or related to Client’s failure to follow best practices and recommendations as to software solutions and security licensing.
Client shall immediately notify Cloud Consultant of any security incidents or other unauthorized access to the client’s data. Client shall be responsible for all damages arising out of Client’s failure to so notify.

12. Migration of Data at Commencement and Termination

In order to commence services hereunder, Cloud Consultant is required to transfer data from Client’s existing system to Cloud Consultant’s system. The setup fee for such transference shall be set forth in Exhibit “A” hereto. Client acknowledges that services under the Agreement cannot commence until this setup fee is paid in full.
Upon the termination of this Agreement, Cloud Consultant can be contracted to transfer data to Client’s requested system, conditional upon Client’s payment of all amounts due under this Agreement, and Client’s payment, in advance, of a fee for such transference. The fee shall be calculated based upon the amount of data transferred but shall be a minimum of the amount paid by Client for the initial transfer of data from Client to Cloud Consultant pursuant to Section 10.1.
Client acknowledges that Cloud Consultant shall not transfer data to client unless and until all fees due under this agreement are paid, including but not limited to the transfer fee set forth in section 11.2.
Cloud Consultant shall have no liability to Client or to the clients of Client for delays in transfer of data to Client occasioned by Client’s failure to timely pay Cloud Consultant hereunder.
Cloud Consultant cannot guarantee that the functionality of any existing computers, laptops, printers or peripherals (collectively, “Hardware”) or software used by Client will work with the subscribed Cloud Solution in a hosted environment.
All the hardware and software provided by Cloud Consultant for this hosted solution is, and shall remain, the property of Cloud Consultant.
Client acknowledges it is required to provide the Hardware necessary to utilize this hosted solution and may have to purchase new Hardware to achieve desired functionality.
Cloud Hosting fees do not include support for client’s physical hardware. Client can be billed “a la carte” or request a monthly hardware support agreement.

13. MISCELLANEOUS

Executed Counterparts. This Agreement may be executed in any number of original, fax or copied counterparts, and all counterparts shall be considered together as one agreement. A faxed or copied counterpart shall have the same force and effect as an original signed counterpart. Each of the parties hereby expressly forever waives all rights to raise the use of a fax machine to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine, as a defense to the formation of a contract.
Successors and Assigns. Except as expressly provided in this Agreement, each and all of the covenants, terms, provisions, conditions and agreements herein contained shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.
Section Headings. The section headings used in this Agreement are inserted for convenience and identification only and are not to be used in any manner to interpret this Agreement.
Severability. Every provision of this Agreement is severable and independent of any other term or provision of this Agreement. If a court of competent jurisdiction hereof holds any term or provision void or invalid for any reason, such invalidity shall not affect the remainder of this Agreement.
Governing Law. This Agreement shall be governed by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California. If any court action is necessary to enforce the terms and conditions of this Agreement, the parties hereby agree that the Superior Court of California, County of Orange, shall be the sole jurisdiction and venue for the bringing of such action.
Entire Agreement. This Agreement, the Exhibits and all references herein, contain the entire understanding among the parties hereto and supersedes all prior written and/or oral agreements, understandings, and negotiations between them respecting the subject matter contained herein.
Additional Documentation. The parties hereto agree to execute, acknowledge and cause to be filed and recorded. If necessary, any and all documents, amendments, notices and certificates which may be necessary or convenient under the laws of the State of California.
Attorney’s Fees. If any legal action (including arbitration) is necessary to enforce the terms and conditions of this Agreement, each party shall be responsible for their own attorney fees.
Amendment. This Agreement may be amended or modified only by a writing signed by all of the Parties hereto.
Remedies Cumulative. The remedies of the parties under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.
Waiver. No failure by any party to insist on the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy on a breach shall constitute a waiver of any such breach or of any other covenant, duty, agreement, or condition.
Assignability. This Agreement is not assignable by either party without the expressed written consent of all parties.
Notices. All notices, requests and demands hereunder shall be in writing and delivered by hand, by facsimile transmission, by mail, by telegram or by recognized commercial over-night delivery service (such as Federal Express, UPS or DHL), and shall be deemed given (a) if by hand delivery, upon such delivery; (b) if by facsimile transmission, upon telephone confirmation of receipt of same; (c) if by mail, forty-eight (48) hours after deposit in the United States mail, first class, registered or certified mail, postage prepaid; (d) if by telegram, upon telephone confirmation of receipt of same; or, (e) if by recognized commercial over-night delivery service, upon such delivery.

Cloud Consultant’s address for Notices hereunder is:
OCCloud9/Orange County Computer, Inc.
26150 Enterprise Way, Suite 400
Lake Forest, CA 92630 support@orangecountycomputer.com
Time. All parties agree that time is of the essence as to this Agreement.
Disputes. The parties agree to cooperate and meet to resolve any disputes or controversies arising under this Agreement. Should they be unable to do so, then either they may elect arbitration at JAMS (Judicial Arbitration and Mediation Services) or other mutually agreeable ADR (Alternative Dispute Resolution) provider and both parties are obligated to proceed thereunder. Arbitration shall proceed in Orange County, and the parties agree to be bound by the arbitrator’s award, which may be filed in the Superior Court of California, County of Orange. The parties’ consent to the jurisdiction of California Courts for enforcement of this determination by arbitration. The Cloud Consultant may be entitled to reimbursement of all costs, including but not limited to those associated with arbitration, and reimbursement of all attorney fees. In any arbitration proceeding conducted pursuant to the provisions of this Section, both parties shall have the right to conduct discovery, to call witnesses and to cross-examine the opposing party’s witnesses, either through legal counsel, expert witnesses or both, and the provisions of the California Code of Civil Procedure (Right to Discovery; Procedure and Enforcement) are hereby incorporated into this Agreement by this reference and made a part hereof.
Provision Not Construed Against Party Drafting Agreement. This Agreement shall be deemed to have been drafted by all parties, and, in the event of a dispute, no party hereto shall be entitled to claim that any provision should be construed against any other party by reason of the fact that it was drafted by one party.
Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof as if set out in full herein.
Recitals. The facts recited in Article I above are hereby conclusively presumed to be true as between and affecting the parties.
Consents, Approvals and Discretion. Except as herein expressly provided to the contrary, whenever this Agreement requires consent or approval to be given by a party, or a party must or may exercise discretion, the parties agree that such consent or approval shall not be unreasonably withheld, conditioned, or delayed, and such discretion shall be reasonably exercised. Except as otherwise provided herein, if no response to a consent or request for approval is provided within ten (10) days from the receipt of the request, then the consent or approval shall be presumed to have been given.
No Third-Party Beneficiaries. This Agreement has been entered into solely by and between the Parties, solely for their benefit. There is no intent by either party to create or establish a third-party beneficiary to this Agreement, and no such third party shall have any right to enforce any right, claim, or cause of action created or established under this Agreement.
Definitional Provisions. For purposes of this Agreement, (i) those words, names, or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (ii) wherever from the context it appears appropriate, each term stated either in the singular or plural shall include the singular and plural; (iii) wherever from the context it appears appropriate, the masculine, feminine, or neuter gender, shall each include the others; (iv) the words “hereof”, “herein”, “hereunder”. and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement; (v) all references to “Dollars” or “$” shall be construed as being United States dollars; and, (vi) all references to all statutes, statutory provisions, regulations, or similar administrative provisions shall be construed as a reference to such statute. Statutory provision, regulation, or similar administrative provision as in force at the date of this Agreement and as may be subsequently amended.
Master Service Agreement. Industry standards require Cloud Consultant to have a Master Service Agreement in connection with the MS365 License. A copy of this MSA is attached hereto as Exhibit “B” and incorporated herein by reference. Service plans offered to Client are the Basic, Silver, Gold or Platinum Packages