Visory Master Services Agreement

This Master Services Agreement including all Schedules, Service Orders, Statements of Work, and other documents referenced herein (together the  “Agreement”) is entered into between Customer and VISORY, INC. (“Visory”), a corporation organized and existing under the laws of the state of Delaware, with its principal office at 16401 Swingley Ridge Rd, Suite 430, Chesterfield, Missouri 63017 effective the date accepted by customer.

Visory is engaged in the business of providing information technology services, including but not limited to hosting services, remote access, IT technology support, technology consulting, security solutions and other IT and IT related services (the “Services”).  Customer desires Visory to provide Customer with one or more of the Services upon the terms and conditions set forth in this Agreement.  This Agreement is not to be construed as a consumer contract.

1.     Schedules and Orders

Fees for Services are set forth in the Schedule(s) and/or Customer’s signed Visory Service Order, Statement of Work (SOW), or SOW Change Order (“Ordering Documents”). Renewal Terms are subject to the then current Schedule(s) fees, terms, and conditions at the time of renewal.  In the event of a conflict between this Agreement and a Schedule or Ordering Document, the Schedule, or Ordering Document will govern but only to the extent of the conflict. Customer, or any of its subsidiaries or affiliates (an “Affiliate”), may enter into an Ordering Document and each such Affiliate shall be subject to the terms and conditions of this Agreement and any Schedule to which the Affiliate is a party. The Customer and Affiliate, as set forth above, will be jointly and severally liable for the performance of the obligations under each Schedule.  Unless otherwise stated in a Schedule or Ordering Document, rates and fees specified in the Schedule(s) and Ordering Documents are applicable for the then current Term.  If Visory experiences a significant increase in operational costs, including but not limited to costs associated with computing infrastructure, hardware, software licensing, security enhancements, compliance requirements, or price increases by any of Visory’s vendors who provide all or any portion of the Services, Visory reserves the right to adjust its fees accordingly. Such adjustments will be communicated to the client with a notice period of thirty (30) days, or, in the case of any price increase by a vendor, a shorter period equal to the amount of notice given to Visory by the vendor, and the revised rates will be applicable to the Services provided after the notice period.  Customers may terminate this Agreement and/or the Schedule(s) within thirty (30) days of the notice for good cause as  specified herein Additionally, If Visory incurs additional costs under this Agreement due to any change or anticipated change in applicable laws, regulations or orders of any governmental authority, or the interpretation thereof, (a “Change in Law”) and/or any such Change in Law affects performance under this Agreement, then Visory will be entitled to an adjustment to the fees affected thereby equal to the direct costs incurred by Visory as a result of the Change in Law.  Visory shall deliver a notice to the Customer following the date of the occurrence of the Change in Law identifying (a) the Change in Law and its impact and (b) the resulting price increase.

2.     Statements of Work

A Statement of Work (SOW) is a document outlining the specific services, deliverables, timelines, and criteria for acceptance agreed upon by Visory and Customer. Each SOW will be detailed, setting forth the scope of work, project objectives, and responsibilities of both parties. Any amendments to an SOW must be made in writing and signed by authorized representatives of both the IT provider and the client. Amendments shall become effective upon mutual agreement and signature by both parties. For any SOW where the total value of services exceeds $2000, a deposit of 50% of the total project cost is required upfront. This deposit must be received before the commencement of work as outlined in the SOW.

3.     Term and Termination

Customer’s Term commences on the month following the provisioning of services and continues for the Initial Term specified in Customer’s accepted Ordering Document unless terminated earlier as provided herein.  Thereafter, this Agreement shall automatically renew for additional one (1) year periods (each a “Renewal Term” and together with the Initial Term the “Term”) upon the same terms and conditions herein, unless either party delivers written notice of termination at least sixty (60) days prior to the expiration of the then existing Term.  Services shall be provided for the term set forth in the Schedule(s), Ordering Documents or, if not stated otherwise, for the existing Term and any Renewal Term.  Either party may terminate this Agreement or any Schedule immediately for good cause. For purposes of this Agreement, the term “good cause” is defined as embezzlement, dishonesty, fraud, breach of security of data stored not due to Customer’s activities or other acts of a criminal nature involving a party hereto or its agents and/or employees and/or the other party’s material breach of any provision contained in this Agreement or any accompanying Schedule, Service Order, or Statement of Work (including the non-payment of amounts due hereunder by Customer), and such material breach is not cured within thirty (30) days from the date written notice is received by the breaching party.   Further, either party may terminate this Agreement and any Schedule, Service Order, or Statement of Work immediately at its option if the other party (a) ceases to do business in the normal course; (b) becomes or is declared insolvent or bankrupt; (c) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) days: or (d) makes an assignment for the benefit of creditors.

4.     Payment

Visory will invoice Customer and Customer will pay Visory the invoiced amount(s) within thirty (30) days from the date of each invoice. Customer will also pay all sales, use or other value added taxes (“Taxes”) levied on the Services, if any, and such Taxes shall be separately set forth on the invoices. All invoices will be deemed accurate unless Customer disputes the invoice or any part thereof within thirty (30) days of the date of the invoice specifying in detail the nature of the dispute. Customer shall pay all undisputed amounts of the invoice within thirty (30) days of the date of each invoice. Customer will pay interest on any late payments for undisputed amounts at the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law. In addition, Customer shall be liable for and pay any and all costs, including reasonable attorneys’ fees and collection costs, incurred by Visory to enforce the terms hereof.

In the event this Agreement or any Schedule, Service Order, or Statement of Work is terminated by either party prior to the end of the Term, Customer shall be obligated to pay for all Services rendered through the date of termination.

Delivery of the Services is subject to Visory’s continuing approval of Customer’s creditworthiness. If necessary, Visory may modify the payment terms or require a cash deposit, the terms of which will be subject to mutual written agreement.

5.     Customer Data and Privacy

Visory recognizes that Customer’s data, including its own data and the data about and provided by its own customers, may be housed by Visory and is the property of the Customer and/or its customers and as such the Customer has the right to the possession of the data at any time desired during the Term of this Agreement. At any time during the Term of this Agreement or upon termination, Customer may request in writing that Visory deliver all of Customer’s data on a mobile storage device(s) and ship the mobile storage device(s) to Customer at Customer’s sole cost.

Customer acknowledges that Visory exercises no control over the content of the information passing through its facilities to provide Services, and that it is the sole responsibility of Customer to ensure that the information it transmits and receives is secured, and complies with all applicable laws, regulations, licenses and / or agreements. Moreover, because the flow of data to or from the Internet depends in large part on the performance of services provided or controlled by third parties, Visory does not warrant that Services will be uninterrupted, error free, virus free or secure. Accordingly, although Visory will use commercially reasonable efforts to take actions it deems appropriate in it sole discretion to remedy and avoid any impairment or disruption of Customer’s connections to the Internet, Visory disclaims any and all liability resulting from or related to such events. In addition, Customer expressly waives and releases Visory its principles, employees, agents, members and assigns, from any and all negligence arising from any act(s) or omission(s) undertaken by Visory, under the terms of this Agreement.

Each party shall maintain and ensure all third parties maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the other party’s Confidential Information. Those safeguards include measures to protect Confidential Information from loss, misuse, unauthorized disclosure, unauthorized access, alteration, and destruction.

6.     Confidential Information

Confidential Information is defined as any information disclosed to one party (“Receiving Party”) by the other party (“Disclosing Party”) which relates to the Disclosing Party’s past, present, or future research development, personnel, business activities and/or proprietary products, which is disclosed to the Receiving Party as a result of Services provided under this Agreement whether disclosed orally, or in written or printed documents, computer disks or tapes, whether user or machine readable, and includes, without limitation, information relating to the Disclosing Party’s software or hardware products which may include source code, data files, documentation, specifications, databases, networks, system design, file layouts, tool combinations and development methods, as well as, information relating to Disclosing Party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, client lists, Personal Identifiable Information (PII) that identifies or authenticates an individual deemed sensitive and or protected by state and federal laws  and regulations, financial results, financial information, business plans, ideas and methods, digital files, formulas, systems, presentations, compilations, devices, concepts, techniques, samples, processes and data, models, designs, patent applications, drawings, writings, and client information for which Disclosing Party has a duty not to disclose. Information shall only be considered Confidential Information for the purposes of this Agreement (i) if it is delivered to Receiving Party in writing and is marked as “confidential,” “proprietary” or with a similar designation; or (ii) if it is delivered to Receiving Party in writing or orally and is identified as confidential and/or proprietary (or with a similar designation) before, during or promptly after presentation or communication by Disclosing Party. Confidential Information does not include: (a) information which is, at the time of disclosure, in the public domain or available to the public, or enters the public domain at a later date by becoming available to the public through no fault, act or omission of Receiving Party; (b) information which is in the possession or knowledge of Receiving Party before disclosure under this Agreement; (c) information which is disclosed at any time to Receiving Party  by a third party who, to the best knowledge of Receiving Party, has the right to make such disclosure; or (d) information which is developed by or for Disclosing Party or Receiving Party independent of, and without reference to, the Information being disclosed under this Agreement.  Neither the Receiving Party or its agents or employees shall during the term of this Agreement, or any time thereafter, directly or indirectly, disclose, release, appropriate, use or publish any such Confidential information, except when required or authorized by the Disclosing Party in writing.  Each party acknowledges and agrees that all such information, media, copies and related items received by a Receiving Party are the property of the Disclosing Party or the Disclosing Party’s clients, as may be applicable. If that Receiving Party is compelled by legal process to disclose any of the Information, Receiving Party shall provide Disclosing Party with timely notice of such legal process.  If any court or governmental body compels disclosure of the Confidential Information, then only that portion of the Confidential Information which Recipient is legally required to disclose shall be furnished.  Each party is free to develop products independently without the use of the other’s Confidential Information. Neither party is obligated to restrict the future work assignments of a party’s employees, contractors or representatives who have had access to Confidential Information.  In addition, the parties and their respective employees, agents and representatives are free to use the information retained in their unaided memories without reference to or use of a party’s Confidential Information,  including ideas, concepts, know-how or techniques, without the duty to account to the other, so long as such party or their employee, agent or representative does not use and does not disclose the other party’s Confidential Information in violation of this Section Nothing contained herein shall be construed to grant either party any rights to or under the other party’s Confidential Information, including without limitation any copyrights, trademarks, patents, trade secrets, licenses or ability to grant licenses except as may be specifically set forth in any Schedule.  All improvements, add-ons or modifications to any party’s Confidential Information shall remain the exclusive property of the party who owns or has rights to such Confidential Information.

A Receiving Party shall deliver promptly to a Disclosing Party, upon termination of Services or at any other time a Disclosing Party may request, without retaining any copies, all memoranda, notes, records, specifications, software, programs and other documents relating, directly or indirectly, to any Confidential Information of a Disclosing Party obtained by the Receiving Party.  Notwithstanding the provisions of this paragraph, Visory shall be entitled to retain one copy of all items received from Customer for the sole purpose of defending itself with respect to any claim brought by Customer or as otherwise provided in this Agreement. Visory shall only disclose information provided by or received from Customer in response to a lawfully issued subpoena or other properly issued legal process from a court of competent jurisdiction.

7.     Relationship of the Parties

Visory and Customer are independent contractors.  Neither party shall have any authority to enter into or bind the other party to any third-party contract or agreement for services unless authorized in writing by the other party. Visory and its agents and employees shall not be considered an agent or employee of Customer and Customer’s agents and employees shall not be considered agents or employee of Visory. Nothing in this Agreement shall be construed to create a joint venture between the parties.

8.     Software

1. License. 
If, and to the extent that, Customer requires the use of licensed software to access the Services (“Licensed Software”), then Customer will have a nonexclusive, nontransferable license to use such software only and solely to the extent required to permit delivery of the Service. Title to Licensed Software shall at all times remain with Visory or relevant licensor and Customer shall not be entitled to claim title to, or interest in, any Licensed Software or any derivations or improvements to such software. Customer agrees to accept the software license terms reasonably required by Visory and / or the relevant licenser related to the Licensed Software.

2. Restrictions.
Customer agrees that it shall not (i) copy the Licensed Software unless allowed and permitted by the express written consent of Visory or the relevant licenser, (ii) reverse engineer, decompile, or dissemble the Licensed Software except as required by law, (iii) sell, lease, license, or sub-license the Licensed Software, or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software or confidential information of Visory Both parties agree that breach of this Section 8.2 would cause irreparable harm to Visory and / or relevant licensor entitling Visory and / or the relevant licensor immediately to pursue any and all remedies available to it in equity and law against Customer including, but not limited to, injunctive relief.

9.     Customer Technology

Except as expressly provided in this Agreement, Customer, and not Visory, is responsible for (i) the operation and maintenance of any equipment, hardware, and / or software Customer provides (“Customer Equipment”) and (ii) for ensuring that Customer Equipment complies with applicable laws, regulations, licenses and agreements. Visory is not responsible if any changes in its Facilities or Services cause Customer Equipment to become obsolete or to require modification.

10.             Limitation of Liability

IN NO EVENT SHALL VISORY, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO CUSTOMER IN EXCESS OF THE THREE (3) MONTHS PREVIOUS MONTH’S INVOICES. UNDER NO CIRCUMSTANCES SHALL VISORY HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF VISORY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.

11.             Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, VISORY MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, PERFORMANCE OR TRADE USAGE.

12.             Acceptance of Services

After completion of the Services according to an Schedule, Service Order, or Statement of Work, Customer has thirty (30) days to evaluate the Services and to notify Visory in writing that the Services do not conform with the specifications in the Schedule, Service Order, or Statement of Work specifying in detail the reasons the Services do not comply. If Customer fails to notify Visory of any non-conformity, the Services shall be deemed accepted. Upon receipt of a notice, Visory shall have ninety (90) days to modify the Services to Customer’s reasonable satisfaction, adjust its fees accordingly or agree to allow Customer to terminate the Schedule, Service Order, or Statement of Work for good cause.

13.             Subcontractors

Visory may use subcontractors in its reasonable discretion in providing the Services.  Visory will not disclose any Customer Confidential Information to any subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information in a manner substantially equivalent to that required of Visory hereunder.

14.             Indemnification

Customer agrees to indemnify, defend and hold Visory harmless from all claims, damages, demands, liabilities, costs and expenses incurred by Visory arising by reason of any claim for personal injury, property damage, breach of this Agreement or violation of applicable law, to the extent caused by the negligence or willful misconduct of Customer or its agents or employees. If Visory or it officers, directors, shareholders, employees, agents, affiliates, subcontractors subsidiaries or suppliers (the “Visory Indemnitees”) are subject to a legal claim by a third party arising out of Customer’s actual or alleged  negligence, willful misconduct, violation of law, misappropriation or infringement of a third party’s intellectual property rights or violation of this Agreement, Customer will defend at Customer’s cost and expense, indemnify and hold the Visory Indemnitees harmless from any damages, award, fine, settlement, attorneys’ fees or other amounts that is or are imposed upon the Visory Indemnitees as a result of such claim.  .

15.             Force Majeure

Other than with respect to failure to make payments due hereunder, neither party is responsible or liable under this Agreement for any delay, failure to perform, damages, losses or destruction, or malfunction, or any consequences thereof, due to circumstances beyond its reasonable control including, but not limited to, acts of nature, labor disputes or shortages, utility curtailments, power failures, civil disturbances, governmental actions, acts of God, pandemic, epidemic, or acts or omissions of third parties.

16.             Survival

The rights and obligations of the Parties set forth in this Section 17 (Survival) and in Section 5 (Customer Data and Privacy), Section 6 (Confidential Information), Section 7 (Work Product), Section 15 (Indemnity), Section 21 (Arbitration), and Section 22 (Governing Law), as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement.

17.             Waivers

Failure of either party to enforce or insist upon compliance with the provisions of this Agreement or waive compliance with any provisions of this Agreement in any instance, shall not be constructed as a general waiver or relinquishment of any provision or right of this Agreement.

18.             Assignment

Customer may not assign its rights or delegate its duties hereunder without the prior written consent of Visory, which consent may be withheld in Visory’s sole and absolute discretion. For purposes herein, the following shall not be considered an assignment requiring Visory’s consent unless such assignment is to a competitor of Visory’s: (i) sale of all or substantially all of the Customer’s assets; (ii) merger, consolidation or other reorganization or business combination of Customer; or (iii) consummation of a transaction or series of transactions in which, directly or indirectly, more than 50% of the ownership interest in the Customer is sold;  (iv) an assignment to an affiliate; or (v) a material change in the management of the Customer. Subject to the foregoing restrictions on assignment, this Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the Customer.

19.             Remedies and Waiver

All remedies hereunder are cumulative, and the exercise by any party of any rights hereunder will not preclude such party from pursuing any additional remedies available to it under this Agreement, or any other legal or equitable rights afforded such party. The waiver by a party of any breach of any term, covenant or condition contained in this Agreement shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition contained in this Agreement. The subsequent acceptance by a party of performance by the other shall not be deemed to be a waiver of any preceding breach of any term, covenant or condition of this Agreement, other than failure to perform the particular duties so accepted, regardless of knowledge of such preceding breach at the time of acceptance of the performance.

20.             Arbitration

Other than as set forth in this Section 21, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in this Section 21, if any Dispute cannot be resolved through negotiations between the parties within thirty (30) days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration under the American Arbitration Association’s commercial arbitration rules and procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before one or more neutral arbitrator(s) selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Visory. The arbitrator will apply the law set forth in this Agreement to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.  Notwithstanding anything in this Agreement to the contrary, Visory may elect to pursue any claims arising out of or related to Customer’s failure or refusal to pay any fees in any court of competent jurisdiction and, in such case, Visory shall be entitled to receive, in addition to all other damages to which it may be entitled, its costs incurred in any such suit, action, or proceeding, including actual attorneys’ fees and expenses (at the trial and appellate levels), and court costs.

21.             Governing Law

This Agreement shall, in all respects, be governed by and enforced in accordance with the laws of the State of Delaware, excluding its choice of law provisions. Visory and Client agree and consent that, except as provided for in Section 20 regarding disputes related to or arising out of Customer’s failure or refusal to pay any fees, any dispute arising under this Agreement shall be litigated or arbitrated in a location determined by Visory.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, and the parties hereby disclaim the application thereof.

22.             Notices

Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with a nationally recognized overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party indicated below, or to such other address as either party may notify the other in writing. Such notices will be deemed to have been given as of the date it is delivered or five (5) days after it was mailed. Notices to Visory: Visory, Inc, 16401 Swingley Ridge Rd, Suite 430, Chesterfield MO 63017, Attn: President. Notices to Client: Client billing contact name and address listed on the Visory Service Order, Schedule, or Statement of Work.

24.     Severability

If any provision of this Agreement shall for any reason be held illegal, invalid, or unenforceable, such provision shall be deemed separable from the remaining provisions of this Agreement and shall in no way impair the validity or enforceability of the remaining provisions of this Agreement.

25.     Suspension

Without limiting Visory’s right to terminate this Agreement, Visory may also refuse, condition suspend Customer’s access to the Services, with or without notice to Customer, upon any actual, threatened, or suspected breach of this Agreement or applicable Laws or upon any other conduct deemed by Visory to be inappropriate or detrimental to Visory, any of its affiliates, or the Services, or any other Visory customer, user, or other third party. If Visory suspects or knows that Customer is using or has used the Services for unauthorized, fraudulent, or illegal purposes, Visory may share any information related to such activity with the appropriate financial institution, regulatory authority, or law enforcement agency consistent with Visory’s legal obligations and terminate this Agreement immediately without notice.

26.     Entire Agreement

This Agreement together with any Service Order, Schedule, or Statement of Work, now or hereafter agreed to by the Parties, are incorporated into and made part of this Agreement and constitute the sole and entire agreement of the Parties regarding the Services specified herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding the subject matter hereof, including any quotations or offers issued or provided by Visory. This Agreement governs the relationship of the Parties in the subject matter of this Agreement and applies to each Schedule, Statement of Work, or Service Order that describes the delivery of the Services made available to Customer by Visory. The parties acknowledge and agree that if there is an inconsistency between the terms set forth in a Schedule, Statement of Work, or Service Order and any other provisions of this Agreement, the terms of the Schedule, Statement of Work, or Service Order shall control, but only to the extent of the conflict.